Esrarul Huq Chowdhury Vs. Md. Amir Hossain and another, 2 LNJ AD (2013) 169

Case No: CIVIL APPEAL NO. 323 OF 2008

Judge: Md. Muzammel Hossain,

Court: Appellate Division ,,

Advocate: Mr. Abdul Wadud Bhuiyan,Mr. Md. Azizul Haq,,

Citation: 2 LNJ AD (2013) 169

Case Year: 2013

Appellant: Esrarul Huq Chowdhury

Respondent: Md. Amir Hossain and another

Delivery Date: 2012-11-28

APPELLATE DIVISION
(CIVIL)
 
Md. Muzammel Hossain, CJ. Abdul Wahhab Miah, J.
Nazmun Ara Sultana, J
Syed Mahmud Hossain, J.
Muhammad Imman Ali, J.


Judgment
28.11.2012.
 
Esrarul Huq Chowdhury
. . . Appellant
-Versus-
Md. Amir Hossain, Advocate and another
. . . Respondents
 
 
Evidence Act (I of 1872)
Section 73
The Bar Council-Tribunal having examined and verified the original signature of the respondent No.1 said to have been put on the objection case records as an Advocate with that of his signature put on the written statement filed before the Bar Council-Tribunal and the personal file of the respondent No.1 as an Advocate in respect of his enrollment with the Bangladesh Bar Council, the Tribunal found that the original signature of the respondent No.1 dated 03.06.1997 purportedly put on the objection case tallies with the signature of the respondent No.1 admittedly put on the written statement.….(19)
 
Bangladesh  Bar Council Cannons of Professional Conduct and Etiquette
Chapter-IV
Rule 6
Rule 6 of Chapter-IV of the Bangladesh Bar Council Canons of Professional Conduct and Etiquette provides that an Advocate shall not communicate with, or appear before a public officer, board, committee or body, in the professional capacity, without first disclosing that he is an Advocate representing interests that may be affected by the action of such officer, board, committee or body. From the materials on record both the Tribunal and the High Court Division concurrently found that the respondent No.1 violated the Rule by misrepresenting himself as an Advocate before the Assistant Settlement Officer and acted against interest of the complainant-appellant and accordingly he was found guilty of gross professional misconduct....(23)

Words and Phrases
Misconduct
The term 'misconduct' has not been defined in the Bangladesh Legal Practitioners and Bar Council Order, 1972 or the Rules framed thereunder. According to Black's Law Dictionary 'misconduct' means "A dereliction of duty; unlawful or improper behaviour." Affirmative misconduct means an affirmative act of misrepresentation or concealment of a material fact. According to the Supreme Court of India the word 'misconduct' has no precise meaning, and its scope and ambit has to be construed with reference to the subject matter and context wherein the term occurs. Accordingly, it can be said that the misconduct of an Advocate may be defined as any conduct that in any way renders an Advocate unfit for the exercise of his profe-ssion, or is likely to hamper or embarrass the administration of justice for which disciplinary action may be initiated....(33 and 34)                                                                              
 
Bangladesh Legal Practitioners and Bar Council Order, 1972 ( P.O No. 46 of 1972)
Articles 34(8) and 36(1)
Admittedly, the instant appeal before this Division was preferred by the complainant-appellant being aggrieved by the impugned judgment and order of the High Court Division in respect of modification of the order of sentence debarring the respondent No.1 from practicing in the legal profession permanently for life to a period of 5(five) years on the ground that it was not in conformity with the gravity of the offence committed by the respondent No.1.
The Respondent No. 1 committed gross Professional misconduct  of the highest decree which not only obstructed the administration of  justice but  also eroded the reputation  of  the Legal Profession  in the opinion  of  the public  and that not  being enrolled  as an advocate and engaged on behalf of the appellant,  the respondent No. 1 represented  himself as an engaged Advocate on behalf of the appellant in objection  case before the Assistant Settlement Officer and that the respondent no.1 being an Advocate of the other side expressed his desire by his letters dated 17-05-1998 and 07-06-1998 to help the complainant-appellant in a wakf case out of the way and thus the respondent no.1 intended to represent conflicting interests and thereby committed gross professional  misconduct and  as such the sentence of debarring the respondent No. 1 from pursuing legal profession permanently for life is not at all harsh, rather, it is very much conformity with the offence committed by him. The respondent No. 1 behavior was very much unbecoming as a member of the noble profession and the Bangladesh Bar Council rightly took disciplinary proceedings against him...... (32, 37 and 38).
 
Secretary, Ministry of Finance and others Vs.Mr Masdar Hossain and others, 2001 BLD(AD)126, Kazi Abdul Khaleque Vs. Haji A. F. Rahman and others, 1983 BCR (AD)397; 1982 BCR 240; Bar Council of Maharashtra Vs. M. V. Dabhalkar etc, AIR 1976 SC 242, Sambhu Ram  Yadaw Vs. Hanuman Das Khatry, (2001) 6 SSC 1; Noratanmal Chouraia  Vs. M.R. Murli  and Another, (2004) 5 SSC 689 ref.   
 
For the Appellant : Mr. Abdul Wadud Bhuiyan, Senior Advocate, instructed by Mrs. Sufia Khatun, Advocate-On-Record.
For the Respondent No.1: Mr. Azizul Huq, Advocate, instructed by Mr. Md. Aftab Hossain, Advocate-On-Record.
For the Respondent No.2: Ex-Parties.
 
Civil Appeal No. 323 of 2008
 
JUDGMENT
 
Md. Muzammel Hossain, CJ:


This appeal by leave is directed against the judgment and order dated 20.03.2006 passed by a Division Bench of the High Court Division in First Miscellaneous Appeal No.199 of 2005 dismissing the appeal with modification of sentence debarring the respondent No.1 from pursuing his legal profession permanently for life to a period of 5(five) years in any Court in Bangladesh.

The appellant as complainant instituted Complaint Case No.22 of 2001 (15 of 2001) against the respondent No.1 in the Bangladesh Bar Council which was subsequently transferred to Tribunal No.1 of the Bangladesh Bar Council for disposal.

The case of the complainant-appellant in brief is that his father was an Advocate and that he and his brothers have been in possession of the property of Ramnagar Mauza along with different properties by way of inheritance. Objection Case No.235 of 1997 was filed by the appellant and his brothers before the Assistant Settlement Officer, Dagonbhuiyan, Noakhali praying for correct-ion of recent survey map in respect of their inherited landed property. The objection case was fixed for hearing on 03.06.1997 but the appellant being unaware of the date of hearing was absent and could not take steps. The respondent No.1, the full sister's son of Imam Hossain and others, the opposite parties of objection case being gained over by them appeared in the said objection case representing himself as an Advocate on behalf of the complainant-appellant and prayed for dismissal of the said objection case on the ground that the complainant-appellant had relinquished their claim over the land and thereby got the said objection case dismissed by practicing fraud. Hence the respondent No.1 committed gross professional misconduct.
The defence case is that the allegation of fraud is false, concocted and the same is the result of personal enmity. The respondent No.1 received his licence on 06.12.1998. The cause of action of this case arose prior to the receipt of his licence from the Bar Council. Therefore the complaint petition does not come under the purview of the Bangladesh Legal Practitioners and Bar Council Order, 1972 and the Tribunal had no jurisdiction to take cognizance against the complainant-appellant and to pass the impugned judgment and order.

In the complaint case complainant-appellant filed an application praying for calling for the records of objection case No.235 of 1997 in respect of the property of Mouza Ramnagar within Police Station Dagonbhuiyan, District-Feni from the office of Assistant Settlement Officer, Dagonbhuiyan. He also filed another application praying for amendment of the complaint case to the following effect:- "প্রকাশ থাকে যে, উক্ত এ্যাডভোকেট মোঃ আমীর হোসেন সম্পর্কে আমার ভাগিনা হয় অর্থাৎ আমার চাচাত বোনের ছেলে। পক্ষান্তরে এ্যাডভোকেট মোঃ আমীর হোসেন আমার আপত্তি কেসের বিবাদী ইমাম চৌধুরী ওরফে মনির ভাগিনা অর্থাৎ সৎ বোনের ছেলে। প্রতিপক্ষ জনাব মোঃ আমীর হোসেন এল.এল.বি পাস করার পর অত্র মামলার বাদী ইসরারুল হক চৌধুরীর নিকট গত ১৭-৫-১৯৯৮ইং তারিখে একটি পত্র লেখেন। উক্ত পত্রে তিনি অত্র মামলার বাদীর পক্ষে কাজ করার জন্য আগ্রহ প্রকাশ করেছেন এবং ইহাও চিঠিতে লিখিয়াছেন যে, আমি একজন নতুন উকিল এবং আমার প্রতি একটু সদয় দৃষ্টি রাখিবেন। তিনি ঐ চিঠিতে আরও উল্লেখ করিয়াছেন যে, আমি যদিও প্রকাশ্যে মনি মামার সাথে থাকিয়া কাজ করিব ইহাতে আপনি আমাকে ভুল বুঝিবেন না কেননা প্রকৃত পক্ষে আমি আপনার হয়ে গোপনে কাজ করিব। অতঃপর উক্ত মোঃ আমীর হোসেন আর একখানা পত্র বিগত ৭-৬-৯৮ ইং তারিখে অত্র মামলার বাদীর বরাবরে প্রেরণ করেন। উহাতে তিনি ওয়াকফ এস্টেটের মামলার ব্যপারেও অত্র মামলার বাদীর পক্ষে কাজ করিবার ইচ্ছা প্রকাশ করিয়াছেন এবং সবচেয়ে গুরুত্বপুর্ণ বিষয় এই যে, উক্ত চিঠিতে নিজেকে এ্যাডভোকেট হিসেবে প্রকাশ করিয়াছেন। উল্লেখিত দুইখানা চিঠি পাঠ করিলে যে কোন লোক বুঝিতে পারিবে তিনি একজন প্রতারক ব্যতীত কিছুই নন।"

The respondent No.1 did not file any written objection against the aforesaid applications. During hearing on 09.05.2002 he ad-mitted the statements made in the amendment petition that those two letters dated 17.05.1998 and 07.06.1998 were written by him. Thereafter, the Tribunal No.1 by its order dated 09.05.2002 allowed both the applications observing, inter-alia, that the O.P. submitted that he had no objection to the aforesaid prayers of the complainant as to the amendment and calling for the records. The amendment petition accordingly formed part of the original complaint. The records of objection Case No. 235 in respect of Mouza Ramnagar JL No.76 PS Dagonbhuiyan, District Feni was called for from the Office of Assistant Settlement Officer, Dagonbhuiyan, Feni for proper adjudication of the instant case.

The original case record of Objection Case No.235 of 1997 was sent to the Tribunal by a special messenger and the same was received by the Tribunal by its order dated 10.07.2003 for examination and verification of the original signature of the respondent No.1. Thereafter, the Tribunal examined and verified the original signature of respondent No.1 put on the original objection case record with that of the signature put by him on the written statement filed before the Tribunal. The Tribunal after close examination and verification found that the original signature dated 03.06.1997 of the respondent No.1 purportedly put on the objection case tallies with that of the signature of the respondent No.1 put on the written statement which was also not denied by the respondent No.1.

The respondent No.1 in his additional written statement reiterated the statements made by him in the written statement. In paragraph Nos.3 and 5 of the additional written statement it was stated that he simply subscribed his signature stating "দাবী নাই".

Both the parties were heard at length before the Tribunal. Finally, the Tribunal No.1 by its judgment and order dated 15.01.2004 was pleased to debar the respondent No.1 from pursuing his legal profession permanently for life in any court, chamber and or before any judicial or quasi-judicial authority in Bangla-desh and his name was struck off from the Roll of Advocates of the Bangladesh Bar Council and his sanad as an Advocate granted and issued by the Bangladesh Bar Council stood cancelled with immediate effect holding, inter-alia, that after close examination and verification it was found that the original signature dated 03.06.1997 of the respondent No.1 purportedly put on the objection case tallies with that of the signature of the respondent No.1 put on the written statement which was also not denied by the respondent No.1. The order dated 03.06.1997 passed by the Assistant Settlement Officer, Dagonbhuiyan in the objection case stated that the respondent No.1 made submissions and prayer for dismissal of the case on behalf of the complainant appellant. The Assistant Settlement Officer by his order dated 03.06.1997 dismissed the case with the following observation:- "বাদী পক্ষে জনাব আমীর হোসেন এ্যাডভোকেট উপস্থিত আছেন। বিবাদী পক্ষ অনুপস্থিত। বাদী পক্ষ দাবী প্রত্যাহার করাতে কেসটি খারিজ হয়।"

Being aggrieved by the aforesaid judgment and order of the Tribunal No.1 the respondent No.1 filed review petition under Article 34(8) of the Bangladesh Legal Practitioners and Bar Council Order,1972 before the Tribunal No.1 stating, inter-alia, that after the disposal of the Objection Case No.235 of 1997 the complainant-appellant filed an application before the Director General, Land Records and Survey Department, Dhaka on 13.11.2000 making allegations against the respondent No.1. An enquiry was held by one Mahbub Mowla, Assistant Settlement Officer, Sudharam, who issued notices upon the parties including the respondent No.1 on 27.02.2001. The complainant-appellant in collusion with the said Mahbub Mawla put pressure upon the respondent No.1 and in various places the word "Adv" i.e. Advocate was written by showing that the respondent No.1 had already been enrolled as an Advocate in 2001. The respondent No.1 relying on the said suggestion had written in many places the word "Adv". For allegedly writing the word "Advocate" before becoming an Advocate and observation as to facts and findings of the Tribunal has seriously prejudiced the whole career of the respondent No.1. The finding of the Tribunal No.1 to the effect that without being an Advocate "got the case dismissed relinquishing the claim of the complainant over their property" is not at all correct or true. The respondent No.1 also challenged the jurisdiction of the Tribunal and prayed for adducing fresh evidence after restoration of the original complaint case.

The complainant-appellant filed written objection denying all material allegations made in the review petition stating, inter-alia, that the review petition is not maintainable in law and the same is barred by limitation. The respondent No.1 failed to make out a case for review. The further case of the appellant is that no additional written statement was filed by the review petitioner against the statements made by way of amendment of complaint, rather, the respondent No.1 admitted at the time of hearing of the amendment petition on 09.05.2002 that those two letters dated 17.05.1998 and 07.06.1998 were written by him. The respondent No.1 represented conflicting interests. The Tribunal passed its judgment and order based on official record of the government and the Tribunal is empowered under the law to dispose of a case without any oral evidence and in the present case both the parties declined to adduce any oral evidence and as such the judgment and order of the Tribunal is in accordance with law and it is not liable to be set aside. The respondent No.1 committed gross professional misconduct and the judgment and order of the Tribunal was passed in accordance with law and the question of writing the word "Advocate" before becoming an Advocate and the observation that the facts and findings of the Tribunal has prejudiced the whole career of the respondent No.1 does not arise at all, rather the respondent No.1 deserved such punishment. The finding of the Tribunal is absolutely correct and legal. The respondent No.1 having not been engaged as an Advocate on behalf of the complainant-appellant represented himself as an Advocate of the complainant-appellant and appeared before the Assistant Settlement Officer and relinquished the right of the appellant in writing as a result of which the objection case was dismissed causing loss and damage to the appellant and as such he committed gross professional misconduct on 03.06.1997. Further, the respondent No.1 committed gross professional misconduct on 17.05.1998 and 07.06.1998 being an Advocate of other side he expressed his desire to help the appellant in a wakf case out of the way. The conduct of the respondent No.1 is highly immoral and as such he should not be allowed to continue his legal profession as an Advocate. The respondent No.1 was rightly and legally debarred from pursuing his legal profession permanently for life and consequently his sanad as an Advocate was cancelled. The immoral activities of the respondent No.1 on 03.06.1997, 17.05.1998 and 07.06.1998 clearly show that the respondent No.1 committed gross professional misconduct which attracts the provisions of the Bangladesh Legal Practitioners and Bar Council Order and Rules,1972 and the Canons of Professional Conduct and Etiquette and his subsequent enrolment on 06.12.1998 as an Advocate will not absolve him from the clutches of the provisions of law and as such the Tribunal has rightly debarred the respon-dent No.1 from pursuing his legal profession for life by their judgment and order dated 15.01.2004. In spite of the said judgment and order of the Tribunal the respondent No.1 did not stop his practice, rather, he was pursuing his legal profession in the different courts of Noakhali District  flouting the judgment and order of the Tribunal which will be evident from the letter under Reference No.53 dated 07.04.2004 issued by the Secretary, District Bar Association, Noakhali informing the Additional District Magistrate, Noakhali that the respondent No.1 along with others had been debarred from pursuing their legal profession for life but they disobeyed such order and continued their legal practice as before and the clients were deceived and cheated by the respondent No.1. The respondent No.1 disobeyed and flouted the judgment and order of the Tribunal which is tantamount to contempt of court and as such respondent No.1 is not entitled to get any relief whatsoever in the application for review.

After hearing both the parties Tribunal No.1 by its judgment and order dated 09.08.2005 rejected the review petition.

The respondent No.1 being aggrieved by the aforesaid judgment and order of the Tribunal No.1 preferred an appeal being First Miscellaneous Appeal No.199 of 2005 before the High Court Division. Thereafter, the High Court Division by its judgment and order dated 20.03.2006 was pleased to dismiss the miscellaneous appeal with modification of the sentence debarring the respondent No.1 from pursuing his legal profession permanently for life to a period of 5(five) years.

Being aggrieved by the aforesaid judgment and order dated 20.03.2006 passed by the High Court Division in First Miscellaneous Appeal No.199 of 2005, the complainant-appellant preferred the instant appeal with the leave of this Court.

Leave was granted to consider the following submissions of the learned Advocate for the complainant-appellant:
  1. The Tribunal of the Bangladesh Bar Council after considering the whole matter came to the conclusion that the respondent No.1 committed gross misconduct inasmuch as the respondent No.1 styled, pretended and represented himself as an Advocate falsely long before his enrolment as an Advocate and without being engaged as an Advocate by the complainant-appellant, the respondent No.1 falsely represented in the objection case before the Assistant Settlement Officer and got the objection case dismissed relinquishing the claim of the complainant-appellant causing serious sufferings to the appellant as a result of which the respondent No.1 was legally debarred from pursuing his legal profession permanently which, on review, was maintained by the Tribunal No.1 inasmuch as there was no ground for review and even the High Court Division came to the finding that the impugned judgment and order passed in the complaint petition and that in the review are proper but illegally modified the quantum of sentence to a period of 5(five) years which is not permissible in an appeal from review and therefore, the judgment and order of the High Court Division is not sustainable in law.
  2. The respondent No.1 being an Advocate of other side expressed his desire by letters dated 17.05.1998 and 07.06.1998 to help the complainant-appellant in wakf case out of the way and thus the respondent No.1 intended to represent conflicting interests and by the aforementioned two letters the respondent No.1 committed gross misconduct twice independent of the allegation of committing gross misconduct made in the original petition of complaint and as such the order of sentence debarring the respondent No.1 from pursuing legal profession permanently for life is not at all harsh and it is in conformity with the offence committed, rather, the respondent No.1 deserves such punishment and therefore, the judgment and order of the High Court Division is not sustainable in law.
  3. The respondent No.1, inspite of the judgment and order of the Tribunal, although he failed to obtain any order of stay of the same, did not stop his practice, rather, he has been pursuing his legal profession in different courts of Noakhali District flouting the judgment and order of the Tribunal inasmuch as the Secretary, District Bar Association, Noakhali issued a letter under reference No.53 dated 07.04.2004 informing the Additional District Magistrate, Noakhali that the respondent No.1 along with others have been debarred from pursuing their legal profession for life but they disobeyed such order and continued their legal profession as before and the clients have been deceived and cheated by the respondent No.1 and  another similar letter dated 07.04.2004 of the Noakhali District Bar Association reveals that even after the filing of the application for review before the Tribunal, the respondent No.1 has been pursuing his legal profession and considering the matter as a whole, the respondent No.1 deserves the cancellation of his sanad as an Advocate debarring him from pursuing legal profession permanently for life, otherwise, the litigant public of Noakhali District will be deceived and cheated every now and then and therefore, the judgment and order of the High Court Division is not sustainable in law.
Mr. Abdul Wadud Bhuiyan, the learned Advocate on behalf of the appellant reiterating the grounds taken in the leave granting order has submitted that the impugned judgment and order of the High Court Division is not sustainable in law. Then he has submitted that the respondent No.1 committed gross misconduct, inasmuch as he styled, pretended and represented himself as an Advocate falsely long before his enrolment as an Advocate and without having been engaged as an Advocate by the appellant, the respondent No.1 falsely represented the appellant in the objection case on 03.06.1997 before the Assistant Settlement Officer and got the objection case dismissed relinquishing the claim of the appellant causing serious loss and damage to the appellant and the respondent No.1 being an Advocate of other side expressed his desire by letters dated 17.05.1998 and 07.06.1998 to help the appellant in waqf case out of the way representing conflicting interests and the respondent No.1 flouted the judgment and order of the Tribunal as he pursued his legal profession inspite of the judgment and order of the Tribunal debarring him from pursuing his legal profession as revealed from the letter dated 07.04.2004 issued by the Secretary, Noakhali District Bar Association notwi-thstanding that the High Court Division modified the quantum of sentence from debarring the respondent No.1 from pursuing his legal profession permanently, for life, to a period of 5(five) years amounting to a premium for such activities which he is not entitled to and therefore, the judgment of the High Court Division is not sustainable in law and as such the appeal is liable to be allowed.
 
Mr. Azizul Huq, the learned Advocate appearing for the respondent No.1 has submitted that the Bar Council has no jurisdiction to bring the respondent No.1 within the purview of professional misconduct as the offence was alleged to have been committed by the respondent No.1 on 03.06.1997 when he was not enrolled as an Advocate and no licence was granted to him by the Bar Council and as such the Tribunal failed to consider that if any offence is at all committed by the respondent No.1 at the relevant time it was committed not as an Advocate but as a private person and as such the Tribunal wrongly rejected the review petition. The learned Advocate for the respondent No.1 has referred to the decision of the case of Bal Dev Sing Dhingra -Vs- Madan Lal Gupta AIR 1999 SC 902 wherein it was held that Section 35 empowers the Bar Council to exercise its disciplinary jurisdiction to punish practicing Advocates on the roll if they have committed professional or other misconduct by practicing fraud and Section 35 has nothing to do with misconduct of non-practicing Advocates who might have committed any such misconduct when his name on the roll of the said Bar Council remained suspended. Mr. Huq has also submitted that the appeal is liable to be dismissed because of the reference to the two letters dated 17.05.1998 and 07.06.1998 and the leave granting order also laid too much emphasis in that regard against the respondent No.1 inasmuch as those letters were not at all referred to in the Tribunal nor in the High Court Division, for the first time the appellant referred to those letters about which the respondent No.1 was not aware of it. The learned Advocate for the respondent No.1 has further submitted that because of the fact that the respondent No.1 never filed any vokalatnama on behalf of the appellant in objection Case No.235 of 1997 for correction of survey map, so as to show him that by practicing fraud he styled himself as an Advocate is wrong conception inasmuch as the respondent No.1 is the relation of both the complainant-appellant and the opposite party in the objection case. He has contended that the allegations levelled against the respondent No.1 that flouting the judgment and order of the Tribunal of the Bangladesh Bar Council, the respondent No.1 has been pursuing his legal profession is utterly false and fabricated statements and that such assertion was not made by the appellant neither before the High Court Division nor before the Tribunal. Mr. Huq has finally submitted that the High Court Division rightly found that the impugned order of sentence debarring the respondent No.1 from practicing his legal profession permanently for life is too harsh and not in conformity with the offence committed and as such the appeal is liable to be dismissed.
 
We have heard the learned Counsel for both the parties, perused the Leave Granting Order, impugned judgment and order passed by the High Court Division, Concise Statements submitted on behalf of both the parties and also other materials available on record.
 
In this case complainant-appellant lodged a complaint petition before the Bangladesh Bar Council alleging misconduct of the respondent No.1 who was a member of the Noakhali District Bar Association and prayed for cancellation of his sanad. The complainant-appellant alleged that he and his brother had filed objection case No.235 of 1997 before the Assistant Settlement Officer, Dagonbhuiyan, Noakhali praying for correction of survey map in respect of their inherited property. As the complainant was not aware of the date of hearing fixed on 03.06.1997 he was absent and could not take any step on that date. The respondent No.1 being the full sister's son of one Imam Hossain Chowdhury who was the opposite party in the objection case appeared in the said objection case pretending to be the engaged Advocate of the complainant-appellant and prayed for dismissal of the said objection case on the ground that the complainant-appellant relinquished their claim over the disputed land and accordingly the objection case was dismissed and thus the respondent No.1 practicing fraud managed to have the objection case dismissed causing serious loss and damage to the complainant-appellant. It appears that hearing of the objection case took place before the Assistant Settlement Officer on 03.06.1997 and admittedly the respondent No.1 was enrolled as an Advocate on 06.12.1998. It has been argued on behalf of the respondent No.1 that since he received his sanad on 06.12.1998 he could not be prosecuted by the Bangladesh Bar Council for the alleged occurrence held on 03.06.1997. In view of the aforesaid submission the Bar Council-Tribunal having examined and verified the original signature of the respondent No.1 said to have been put on the objection case records as an Advocate with that of his signature put on the written statement filed before the Bar Council-Tribunal and the personal file of the respondent No.1 as an Advocate in respect of his enrollment with the Bangladesh Bar Council, the Tribunal found that the original signature of the respondent No.1 dated 03.06.1997 purportedly put on the objection case tallies with the signature of the respondent No.1 admittedly put on the written statement. It also appears that the Assistant Settlement Officer recorded the order dated 03.06.1997 to the following effect: "বাদী পক্ষে জনাব আমীর হোসেন এ্যাডভোকেট উপস্থিত আছেন। বিবাদী পক্ষ অনুপস্থিত। বাদী পক্ষ দাবী প্রত্যাহার করাতে কেসটি খারিজ হয়।"

The respondent No.1 in his additional written statement dated 18.09.2003 filed before the Tribunal stated that he simply subscribed his signature stating "দাবী নাই". The Tribunal also found that the complainant-appellant had neither engaged the respondent No.1 on his behalf as an Advocate by executing vokalatnama nor issued any authority to represent him in the case. Having perused the records of the objection case and other materials on record, the Tribunal rightly found that the respondent No.1 styled, pretended and misrepresented himself as an Advocate long before his enrolment as an Advocate with the Bangladesh Bar Council and without being engaged as an Advocate by the complainant-appellant, the respondent No.1 misrepresented himself as an engaged Advocate of the appellant in the objection case before the Assistant Settlement Officer and got the objection case dismissed causing serious loss and damage to the appellant. From the forgoing discussions we find that the respondent No.1 not being an Advocate falsely representing himself as an Advocate appeared before the Assistant Settlement Officer on 03.06.1997 long before his enrollment as an Advocate and by practicing fraud he represented the complainant-appellant not having been engaged as an Advocate before the Assistant Settlement Officer and got the case dismissed relinquishing the claim of the complainant-appellant over the property. This conduct of the respondent No.1 is highly immoral, reprehensible and beyond the dignity, ethics and morality and in that view of the matter the Tribunal rightly found that the respondent No.1 committed gross misconduct which is very much unbecoming of a member of the Bar. Being aggrieved by the judgment and order dated 15.01.2004 passed by the Tribunal in the complaint case, the respondent No.1 filed a review petition before the Tribunal. Under Article 36(1) of the Bangladesh Legal Practitioners and Bar Council Order,1972 the respondent No.1 could have preferred an appeal to the High Court Division against the order dated 15.01.2004 passed by the Tribunal under Article 34 of the said Order. It will be profitable for us to quote the relevant provisions of Article 34 of the Order,1972 which read as under:

"34(1) In enquiries relating to conduct of Advocates, a Tribunal shall follow such procedure as may be prescribed.
(2) ---------------- ------- -------
(3) ----------- -------------- ----------------
(4) On completion of the enquiry the Tribunal may either dismiss the complaint or, where reference to the Tribunal was made at the motion of the Bar Council, direct that the proceedings be filed; or it may make an order imposing any of the penalties referred to in clause (1) of Article 32."
(5) Where the Tribunal makes an order for the suspension of an advocate from practice, it shall specify the period of suspension, and for that period the advocate shall be debarred from practicing in any court or before any authority or person in Bangladesh.
(6) The Tribunal may make such order as to the costs of proceedings before it as it may deem fit; and where the Tribunal is of the opinion that a complaint made against an Advocate is false and vexatious, it may, in addition, and without prejudice to any other remedy available to the Advocates, impose deterrent costs not exceeding a sum of five hundred taka upon the complainant, which shall be paid to the Advocate as compensation.
(7)  --------- ---------------- ------------------ ---------------- -------------
(8) The Tribunal may of its own motion or on application made to it in this behalf, review any order passed under clause (4) or (6) and maintain, vary or rescind the same, as it thinks fit.
(9) When any advocate is reprimanded or suspended under this Order, a record of the punishment shall be entered against his name in the roll and when an advocate is removed from practice his name shall forthwith be struck off the roll; and the certificate of any advocate so suspended or removed shall be recalled."
 
In this context it is pertinent to reproduce Article 36 of the Order of 1972 which reads as under:

"36(1) Any person aggrieved by an order of a Tribunal under Article 34 may, within ninety days from the date of the communication of the order to him, prefer an appeal to the High Court.
(2) Every such appeal shall be heard by a Division Bench of the High Court which may pass such order thereon as it may deem fit and the order of the High Court shall be final."
 
But without preferring any appeal the respondent No.1 preferred a review before the Tribunal against the judgment and order dated 15.01.2004 asserting the same grounds which were mooted before the Tribunal in the complaint case. Both the High Court Division and the Tribunal rightly found that the respondent No.1 preferred review on the self same grounds which were heard in the complaint case before the Tribunal. It is well established that a review is not intended to empower the Court for correcting a mistaken view of law, taken in the main judgment. In the case of Secretary, Ministry of Finance and others -Vs- Mr. Md. Masdar Hossain and others reported in 2001 BLD (AD) 126 this Division expounded the principle as under:

"A review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected. A review lies where an error apparent on the face of the record exists. It is not a re-hearing of the main appeal. Review is not intended to empower the Court to correct a mistaken view of law, if any, taken in the main judgment. It is only a clerical mistake or mistake apparent on the face of the record that can be corrected by the leave but does not include the correction of any erroneous view of law taken by the Court. Since this Court in its judgment dated 2.12.1999 has considered the grounds of this appeal and since we find that there is no error apparent on the face of the record we do not find any reason to reconsider direction Nos.4 and 6. Even reconsideration of points wrongly or rightly considered in an appeal decided by this Division without any error apparent on the face of record is no ground for review of a judgment."
 
In view of the above decisions of this Division, the High Court Division rightly held that by preferring a review an erroneous decision can not be re-heard and corrected. A review lies where an error apparent on the face of the record exists. It is not the re-hearing of the main appeal. In a review a Court is not empowered to change the decision taken in the main judgment. It is only meant for correction of clerical error or mistake on the face of the record. Under Article 34(8) of the Bangladesh Legal Practitioners and Bar Council Order,1972 the Tribunal may of its own motion or on application made to it in this behalf, review any order passed under clause (4) or (6) and maintain, vary or rescind the said order. In the instant case there is no legal ground for review which was rightly found by the High Court Division and accordingly dismissed the appeal. Rule 6 of Chapter-IV of the Bangladesh Bar Council Canons of Professional Conduct and Etiquette provides that an Advocate shall not communicate with, or appear before a public officer, board, committee or body, in the professional capacity, without first disclosing that he is an Advocate representing interests that may be affected by the action of such officer, board, committee or body. From the materials on record both the Tribunal and the High Court Division concurrently found that the respondent No.1 violated the Rule by misrepresenting himself as an Advocate before the Assistant Settlement Officer and acted against interest of the complainant-appellant and accordingly he was found guilty of gross professional misconduct. In this context we may profitably refer to the decision of the case of Kazi Abdul Khaleque -Vs- Haji A.F. Rahman and others reported in 1983 BCR (AD) 397 wherein this Division dismissed the appeal of the concerned Advocate as gross misconduct was committed by him. In this case as reported in 1982 BCR (HCD) 240 one Kazi Abdul Khaleque was permanently removed from the Roll of Advocates of the Bar Council as an Advocate by the Tribunal on the ground that he had obtained an appointment of Legal Adviser-ship of Alijan Jute Mills falsely representing himself as an Advocate before his enrolment and also interpolated in the figures of actual retainer-ship fees and case fees.
 
We are of the view that the principle enunciated in the decision reported in 1983 BCR (AD) 397 is very much applicable to the facts and circumstances of the present case. It is truism that the respondent No.1 was not enrolled as an Advocate when the cause of action arose but fact remains that the respondent No.1 represented himself as an Advocate before the Assistant Settlement Officer in the objection case without having been enrolled as an Advocate and no power was filed on his behalf in the objection case before the Assistant Settlement Officer but in the relevant documents he wrote the word "Adv" and put his signature thereon. We have already noticed that the respondent No.1 made submission and prayed for dismissal of the objection case on behalf of the complainant-appellant before the Assistant Settlement Officer and in his additional written statement dated 18.09.2003 the respondent No.1 before the Tribunal admitted that he had simply subscribed his signature stating that he had no claim. The Tribunal also from the record found that the complainant-appellant did not at any point of time engaged the respondent No.1 as an Advocate on his behalf by executing vokalatnama or by any other authority. This shows that the respondent No.1 without having been engaged by the complainant-appellant in the objection case misrepresented him before the Assistant Settlement Officer pretending to be an Advocate and prayed for dismissal of the objection case. This conduct of the respondent No.1 is highly immoral, reprehensible and beyond the dignity, ethics and morality. In that view of the matter there is no hesitation in holding that the respondent No.1 committed gross professional misconduct which is unbecoming of a member of the noble profession of Advocates. The expression "professional misconduct" has not been defined in the Bangladesh Legal Practitioners and Bar Council Order,1972 (P.O. No.46 of 1972). However, the Bangladesh Bar Council under Article 44 (g) of the P.O. No.46 of 1972 adopted the Canons of Professional Conduct and Etiquette with the object of releasing ideal justice to all citizens, the equal protection of law and thereby secures to them the enjoyment of their lives, property and honour and an indispensable condition of such protection of the rights of citizens is the existence in society of a community of Advocates, men learned in the law and respected as models of integrity, imbued with the spirit of public service and dedicated to the task of upholding the rule of law and defending at all times, without fear or favour, the rights of citizens and in order effectively to discharge these high duties Advocates must conform to certain norms of correct conduct in their relations with members of the profession, their clients, the courts and the members of the public generally and accordingly the Bangladesh Bar Council has formulated such norms of correct conduct into a set of Canons of Professional Conduct and Etiquette. It is pertinent to quote the relevant provisions of Chapter-II of the Canons of Professional Conduct and Etiquette concerning conduct with regard to clients which read as under:-

"1. An Advocate shall not acquire an interest adverse to a client in the property or interest involved in the case. 
2. An Advocate shall not accept employment adverse to a client or former client, relating to a matter in reference to which he has obtained confidential information by reason of or in the course of his employment by such client or former client provided that an Advocate, who has not been formally engaged by a person and accepted a retainer nor received any fees for such engagement is not precluded from accepting employment adverse to the interest of such a person.
3. An Advocate shall not accept professional employment without first disclosing his relation, if any, with the adverse party, and his interest, if any, in the subject matter of such employment.
4. An Advocate shall not represent conflicting interests."
 
Further in Chapter- IV under the head 'conduct with regard to the public generally' clause 6 provides that-

"6. An Advocate shall not communicate with, nor appear before, a public officer, board, committee or body, in his professional capacity, without first disclosing that he is an Advocate representing interests that may be affected by the action of such officer, board, committee or body."
 
It is to be noted that in the case reported in 1983 BCR (AD) 397 this Division affirmed the decision of the Tribunal and the High Court Division debarring the Advocate for life from practicing in the profession.
 
Supreme Court of India in a number of decisions reiterated that "misconduct" would cover any activity or conduct which his professional brethren of good repute and competency would reasonably regard as disgraceful or dishonourable. The scope of "misconduct" is not restricted by technical interpretations of rules of conduct. This has proven conclusively in the case of Bar Council of Maharashtra -Vs- M.V. Dabholkar etc., AIR 1976 SC 242. The relevant facts of the case are that Advocates positioning themselves at the entrance to the Magistrate's Courts and rushing towards potential litigants, often leading to an ugly scrimmage to snatch briefs and undercutting of fees. The Disciplinary Committee of the Maharashtra Bar Council found that such behaviour amounted to professional misconduct, but on appeal the Bar Council of India held that the conduct did not contravene Rule 36 of the Standards of Professional Conduct and Etiquette as the Rule required solicitation of work from a particular person with respect to a particular case and this case did not meet all the necessary criteria, and such method of solicitation could not amount to misconduct. This approach of the Bar council of India was heavily reprimanded by the Supreme Court of India holding that restrictive interpretation of the relevant rule by splitting up the text does not imply that the conduct of the Advocates was warranted or justified. The standard of conduct of Advocates flows from the broad cannons of ethics and high tone of behaviour. It was held that "professional ethics cannot be contained in a Bar Council Rule nor in traditional cant in the books but in new canons of conscience which will command the member of the calling of justice to obey rules or morality and utility.  
 
The American Bar Association in the First Code of Legal Ethics in the USA reflects the view of the Lawyer's Special Rule on the Administration of Justice as under:

"A lawyer is and must ever be the high priest at the shrine of  justice".
 
Advocates in our country constitute a privileged class that enjoys the exclusive right to practice law. As an officer of the Court as well as agent of the client, the Advocate has to adhere to a standard of conduct which is befitting of his status and responsibility.
 
In most jurisdictions, the members of the legal profession are conferred the status of privileged members of the community and occupies an exclusive domain with the privilege of pleading and acting on behalf of suitors being restricted only to enrolled Advocates and Attorneys. The role of Advocates as officers of the Court is to assist the Court in the administration of justice. Advocates collect materials relating to a case and thereby assist the Court in arriving at a correct judgment. Furthermore, being a responsible officer of the Court and an important adjunct of the administration of justice, the Advocate also owes a duty to the Court as well as the opposite side. Advocates, as members of the Bar and officers of the Court, have the responsibility of "keeping the stream of justice pure and unsullied" so also to enable it to administer justice fairly and to the satisfaction of all concerned. The primary duty of the Advocate is to inform the Court as to the law and facts of the case and to aid the Court to do justice by arriving at correct conclusion. Since the Court acts on the basis of what is presented by the Advocates, the Advocates are under the obligation to be absolutely fair to the Court. All statements should be accurate, and the Advocate is under a sacrosanct obligation to ensure that he does not, through any act or omission lead to the possibility of misrepresentation, or mislead the Court or obfuscate the case in any manner. What is imperative to be borne in mind is that the legal profession cannot be considered like any other profession, or trade or business. It is a noble profession, which is intended to serve the cause of "justice". There is a difference between the legal profession and other professions because of the fact that what Advocates do affects not only an individual but the administration of justice which is the foundation of the civilized society when there is a conflict between the most specific instructions of his client and his duty to the Court, the latter takes precedence. This is a dictate not from a code of law, but a higher code of honour, which, if disregarded, offends not only the rules of the profession, but strikes at the heart of the confidence of the public in the judicial system itself. If people lose confidence in the legal profession for the deviant behaviour  of some of its members, it is not only the profession which will suffer but also the administration of justice as a whole. It is well established that an Advocate is not only a professional but he is an officer of the Court and his obligations as an officer of the Court are paramount. The Supreme Court of India in the case of Bar Council of Maharashtra -Vs- M.V. Dabholkar etc., AIR 1976 SC 242 observed that an Advocate being an officer of the Court as a public servant plays a key role in the developmental and dispute-processing activities and above all "in the building up of a just society and constitutional order". An Advocate being a member of the society worthy of confidence of the community in him is required to act as a vehicle of social justice. 
 
In this case the appellant without preferring an appeal against the original judgment dated 15.01.2004 passed by the Bangladesh Bar Council-Tribunal, preferred a review against the same. The Bar Council-Tribunal by the judgment and order dated 09.08.2005 dismissed the review holding that a review is by no means an appeal in disguise whereby an erroneous decision is re-heard and corrected and that review lies where an error apparent on the face of the record exists. The respondent No.1 being aggrieved by the aforesaid judgment and order passed by the Tribunal in review preferred First Miscellaneous Appeal No.199 of 2005 before the High Court Division. It appears that the High Court Division dismissed the appeal holding that the Bar Council has all the authority to deal with the conduct of the respondent No.1 though he was not enrolled at the relevant time. But to have a licence as an Advocate respondent No.1's conduct is unbecoming of a member of the legal profession as he acted on behalf of the complainant-appellant without having received any power. The High Court Division while dismissing the appeal modified the order of sentence debarring the respondent No.1 from practicing in the legal profession permanently for life to a period of 5(five) years. In the instant case the respondent No.1 has not preferred any appeal against the judgment passed by the Tribunal debarring himself from practicing in the legal profession permanently for life but he preferred a review against the judgment and order passed by the Tribunal. So in the eye of law no appeal was filed against the judgment of the Tribunal in the complaint case.
 
Before this Division the complainant-appellant preferred the instant appeal against the judgment and order dated 20.03.2006 passed by the High Court Division only in respect of modification of the sentence debarring the respondent No.1 from practicing in the legal profession permanently for life to a period of 5(five) years on the ground that the sentence is too harsh and not in conformity with the offence committed by the respondent No.1. Admittedly the High Court Division found that the judgment and orders passed by the Tribunal in the Complaint Case and in the Review are proper but modified the sentence on the ground that it was too harsh and not in conformity with the offence committed. From the foregoing discussions, we find that the respondent No.1 committed gross professional misconduct and that not being enrolled as an Advocate and engaged on behalf of the appellant, the respondent No.1 misrepresented himself as an engaged Advocate on behalf of the appellant in objection case before the Assistant Settlement Officer and that the respondent No.1 being an Advocate of the other side expressed his desire by his letters dated 17.05.1998 and 07.06.1998 to help the complainant-appellant in a wakf case out of the way and thus the respondent No.1 intended to represent conflicting interests and thereby committed gross professional misconduct and as such the sentence of debarring the respondent No.1 from pursuing legal profession permanently for life is not at all too harsh rather it is very much in conformity with the offence committed by him. An Advocate being an officer of the Court as well as an agent of the client has to adhere to a standard of conduct which is befitting of his status and responsibility.

Under the Bangladesh Legal Practitioners and Bar Council Order, 1972, the Bangladesh Bar Council can take disciplinary action against any Advocate who is found to be guilty of professional or other misconduct. The term 'misconduct' has not been defined in the Bangladesh Legal Practitioners and Bar Council Order,1972 or the Rules framed thereunder. According to Black's Law Dictionary 'misconduct' means "A dereliction of duty; unlawful or improper behaviour." Affirmative misconduct means an affirmative act of misrepresentation or concealment of a material fact.

According to the Supreme Court of India the word 'misconduct' has no precise meaning, and its scope and ambit has to be construed with reference to the subject matter and context wherein the term occurs. Accordingly, it can be said that the misconduct of an Advocate may be defined as any conduct that in any way renders an Advocate unfit for the exercise of his profession, or is likely to hamper or embarrass the administration of justice for which disciplinary action may be initiated.

In the case of Sambhu Ram Yadav -Vs- Hanuman Das Khatry, (2001) 6 SCC 1 a complaint was filed by the appellant against an Advocate to the Bar Council of Rajsthan, stating that while appearing in a suit as an Advocate, he wrote a letter to the client stating that the concerned judge, before whom the suit was pending would accept bribes, and asked to bribe and influence the judge to obtain a favourable order. The Disciplinary Committee of the Bar Council found the Advocate guilty of "misconduct" which made the Advocate "totally unfit to be a lawyer". The Supreme Court of India held that the legal profession is not a trade or business. Members belonging to the profession have a particular duty to uphold the integrity of the profession and not to indulge in corruption in order to ensure that justice is administered in accordance with law. Accordingly, it was held that the Advocate was guilty of misconduct of the highest degree as it not only obstructed the administration of justice but eroded the reputation of the profession in the opinion of the public.

The Supreme Court of India in the case of Noratanmal Chouraria -Vs- M.R. Murli and another, (2004) 5 SCC 689 examined the words "professional misconduct". In this case an Advocate appearing in person in the capacity of the respondent and not an Advocate in a case, assaulted and kicked the complainant and asked him to refrain from proceeding with the case. The Supreme Court of India held that an Advocate is obliged to observe the norms of behaviour expected of him, which make him worthy of the confidence of the community in him as an officer of the Court. Accordingly he was found guilty of misconduct even though he was not acting in the capacity of an Advocate. In view of the above mentioned decisions, we are of the view that broadly speaking misconduct envisages any instance of breach of discipline. It means improper behaviour, intentional wrongdoing or deliberate violation of a rule of standard of behaviour. The term "misconduct" is incapable of a precise definition. It may mean delinquency in its performance of duty and its effect on the discipline and the nature of duty. In other words it means improper and wrong behaviour which is willful in character. It may involve moral turpitude, but is not a mere error of judgment, carelessness or negligence in performance of duty.

From the judgment and order dated 15.01.2004 it appears that the Tribunal of the Bangladesh Bar Council having considered the materials on record found that the respondent No.1 had appeared before the Assistant Settlement Officer pretending to be an Advocate on 03.06.1997 long before his enrolment as an Advocate and by practicing fraud he had represented the complainant-appellant falsely not having been engaged as an Advocate before the Assistant Settlement Officer and got the case dismissed relinquishing the claim of the complainant-appellant over his property. This conduct of the respondent No.1 is highly immoral and the Tribunal rightly held that the respondent No.1 committed gross misconduct which is unbecoming of a member of the noble profession. Accordingly, the Tribunal debarred the respondent No.1 from pursuing his legal profession permanently for life and directed that his name be struck off from the Roll of Advocates of the Bangladesh Bar Council and his sanad as an Advocate issued by the Bar Council be cancelled with immediate effect. Thereafter, the Tribunal by the judgment and order dated 09.08.2005 rejected the review of the respondent No.1 and maintained its judgment and order dated 15.01.2004 in the complaint case. The High Court Division by the judgment and order dated 20.03.2006 dismissed the appeal preferred at the instance of the respondent No.1 with the finding that the judgments and orders passed in the complaint case and that of the review are proper but modified the sentence debarring the respondent No.1 from practicing in the legal profession permanently for life to a period of 5(five) years on the ground that the sentence inflicted upon the respondent No.1 was too harsh and not inconformity with the offence committed. Admittedly, the respondent No.1-Advocate has not preferred the instant appeal before this Division which means that the respondent No.1 has not challenged the finding of the High Court Division as to his guilt to the effect that both the judgments and orders passed in the complaint case and in the review are proper and there is no illegality in the findings of the High Court Division. Admittedly, the instant appeal before this Division was preferred by the complainant-appellant being aggrieved by the impugned judgment and order of the High Court Division in respect of modification of the order of sentence debarring the respondent No.1 from practicing in the legal profession permanently for life to a period of 5(five) years on the ground that it was not in conformity with the gravity of the offence committed by the respondent No.1. The moot question before this Division is to decide whether the judgment and order of the High Court Division modifying the sentence to a lesser degree is correct or not.

From the above discussions and findings we are of the view that the respondent No.1 committed gross professional misconduct of the highest degree which not only obstructed the administration of justice but also eroded the reputation of the legal profession in the opinion of the public. A lawyer is obliged to observe the norms of behaviour expected of him, which make him worthy of confidence of the community in him as an officer of the Court. In the instant case inspite of the fact that the respondent No.1 was not enrolled as an Advocate with Bangladesh Bar Council when he had falsely represented himself to be an Advocate before the Assistant Settlement Officer in the Objection Case and without being engaged on behalf of the appellant represented him in the objection case as an Advocate, his behaviour was very much unbecoming as a member of the noble profession and the Bangladesh Bar Council rightly took disciplinary proceedings against him as stated above.

For the aforesaid reasons, we find merit in the appeal. Accordingly the appeal is allowed without any order as to costs. The judgment and order dated 20.03.2006 passed by the High Court Division in First Miscellaneous Appeal No.199 of 2005 so far as it relates to modification of the sentence debarring the respondent No.1 from pursuing his legal profession permanently for life to a period of 5 (five) years is set aside and that passed by the Tribunal in the complaint case is restored. 

Ed.