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Judgment
N. Paul Vasanthakumar, J.—The prayer in this writ petition is to quash the order of the 1st respondent issued in G.O.(3D).No. 72/Home
SC Department, dated 23.08.2007 and G.O.(3D) No. 28/Home SC Department, dated 19.05.2009. The case of the petitioner is that he is a
Law Graduate, enrolled as an Advocate on 10.01.1979, and after about 4 years of practicing in the Court, he was appointed as Assistant Public
Prosecutor Gr. II on 23.09.1983 by the District Collector, Erode. He was promoted as Assistant Public Prosecutor Gr. I, in March 2000 and
thereafter, he was promoted as Assistant Director of Prosecution on 25.09.2006 and deputed to serve as Legal Advisor in the Directorate of
Vigilance & Anti-corruption, Tirunelveli. While he was serving as Assistant Public Prosecutor, Gr. I, at Cheranmahadevi, he was in-charge of
District Crime Branch cases and the Inspector of Police, District Crime Branch, Tirunelveli obtained legal opinion from the petitioner on the petition
given by one Tr. P. Lakshmana Perumal, Secretrary, Indian Industrial Mineral Producers Welfare Association, Chennai, addressed to the District
Superintendent of Police, Tirunelveli, for taking criminal action against one Tr. Srinivasan, Director, M/s. Earth Mineral Resources Pvt. Ltd. After
going through the petition, based on the averments made in the petition, the petitioner herein gave his opinion to take action against the said Tr.
Srinivasan for violations of Mines and Minerals Research and Development Act. In respect of allegation No. 4 (sedition) and allegation No. 5
(criminal intimidation), the petitioner had opined to register a case u/s 124(A) and 506-II IPC. The said opinion was given on 09.08.2004.
Following the said opinion, a criminal case was registered against the said Tr. R. Srinivasan in Cr. No. 25/2004 on the file of the District Crime
Branch, Tirunelveli for offences under sections 124(A) and 506-II IPC. After investigation, the Investigating Officer found that the complaint
preferred by the complainant Tr. Lakshmana Perumal dated 23.02.2004 was due to professional rivalry and the said complaint was preferred
based on the instigation of one Tr. Sukumaran, Proprietor of Beach Sand Minerals Company and also found that the allegation made against the
complaint was not made out and filed a report, referring the case as ""mistake of fact"".
The petitioner, being the legal advisor, was issued with a show cause notice by the 1st respondent on 13.11.2006 under Rule 17(a) of the Tamil
Nadu Civil Services (Discipline and Appeal) Rules, stating that the petitioner has offered incorrect and wrong legal opinion on the petition dated
23.02.2004 given by one Tr. Lakshmana Perumal and in response to the request of Tr. Sakthivel, formerly Inspector of Police, DCB Thirunelveli
and Tr. Sukumar. The petitioner submitted a reply specifically stating that the said legal opinion was given in the regular discharge of his duty based
on the request of the Inspector of Police, District Crime Branch, Tirunelveli and not at the instance of one Tr. Sukumar. The petitioner has also
pointed out that a mere reading of the complaint given by Tr. Lakshmana Perumal, clearly made out the ingredients of offence defined u/s 124(A)
IPC, which is a congnizable offence. However, the petitioner''s explanation was not accepted and punishment was imposed by the 1st respondent
on 23.09.2007 withholding one increment for one year with cumulative effect. The petitioner filed review petition on 10.12.2007 before the
Government and challenged the order of punishment. Thereafter, the Government issued G.O.(3D).No. 28, Home (SC) Department, dated
19.05.2009, stating that the punishment of withholding one increment for one year with cumulative effect imposed on the petitioner is set aside and
fresh proceeding was ordered to be initiated from the stage where the defects were crept in. In the order it is further stated that withholding one
increment for one year is major punishment and 17(b) proceedings should be initiated.
The said orders are challenged before this Court by the petitioner in this writ petition contending that the petitioner gave his legal opinion during
the discharge of his duty and no motive is attributed against the petitioner for giving such legal opinion. The respondents'' action in issuing charge
memo/show cause notice and initiating disciplinary proceedings against the petitioner based on legal opinion is contrary to law, particularly, when
there is no motive attributed against the petitioner for giving such a legal opinion.
The learned senior counsel appearing for the petitioner relied on a judgment passed by me in WP. No. 747 of 2007(L. Anand Vs. Secretary to
Government, Transport Department, Fort St. George, Chennai and two others), dated 12.04.2010, and also the judgment of Honourable
Supreme Court reported in Central Bureau of Investigation, Hyderabad Vs. K. Narayana Rao,
The learned counsel for the respondents, on the basis of the counter affidavit filed, submitted that the complaint given by one Lakshmana
Perumal did not disclose commission of any offence, therefore, the opinion given by the petitioner was erroneous and he was issued with a show
cause notice for giving wrong legal opinion and punishment was given. Now, the Government has ordered to proceed from the stage, where the
mistake has crept in and the petitioner can very well agitate his rights in the fresh proceedings going to be initiated.
I have considered the rival submissions made by the learned Senior Counsel appearing for the petitioner as well as the learned Government
Advocate appearing for the respondents.
The legal opinion given by the petitioner on 09.08.2012 based on the complaint given by the said Lakshmana Perumal, dated 23.02.2004, has
been filed in the typed set of papers. The petitioner has gone through the complaint and was of the opinion that a case was made out for
investigation and gave his legal opinion for the same. But, show cause notice was issued to the petitioner on 13.11.2006. No motive is attributed
against the petitioner for giving such a legal opinion on the complaint given by the complainant on 23.02.2004. In the absence of any motive, mere
giving opinion by a Public Prosecutor cannot be taken as a ground for initiating departmental proceedings.
The criminal case initiated against an advocate for giving legal opinion was quashed by the Andra Pradesh High, against which an appeal was
filed by the CBI before the Supreme Court, which was decided and reported in Central Bureau of Investigation, Hyderabad Vs. K. Narayana
Rao, In the said judgment, in para 26 to 32, the Honourable Supreme Court considered the said issue and held as follows:-
The High Court while quashing the criminal proceedings in respect of the respondent herein has gone into the allegations in the charge-sheet
and the materials placed for his scrutiny and arrived at a conclusion that the same do not disclose any criminal offence committed by him. It also
concluded that there is no material to show that the respondent herein joined hands with A-1 to A-3 for giving false opinion. In the absence of
direct material, he cannot be implicated as one of the conspirators of the offences punishable u/s 420 read with Section 109 IPC. The High Court
has also opined that even after critically examining the entire material, it does not disclose any criminal offence committed by him. Though as
pointed out earlier, a roving enquiry is not needed, however, it is the duty of the Court to find out whether there is any prima facie material available
against the person who has been charged with an offence u/s 420 read with Section 109 IPC.
In the banking sector in particular, rendering of legal opinion for granting of loans has become an important component of an advocate''s work.
In the law of negligence, professionals such as lawyers, doctors, architects and others are included in the category of persons profession some
special skills. A lawyer does not tell his client that he shall win the case in all circumstances. Likewise, a physician would not assure the patient of
full recovery in every case. A surgeon cannot and does not guarantee that the result of surgery would invariably be beneficial, much less to the
extent of 100% for the person operated on. The only assurance which such a professional can give or can be given by implication is that he is
possessed of the requisite skill in that branch of profession which he is practising and while undertaking the performance of the task entrusted to
him, he would be exercising his skill with reasonable competence. This is what the person approaching the professional can expect. Judges by this
standard, a professional may be held liable for negligence on one of the two findings viz., either he was not possessed of the requisite skill which he
professed to have possessed, or, he did not exercise, which reasonable competence in the given case, the skill which he did possess.
In Jacob Mathew Vs. State of Punjab and Another, this Court laid down the standard to be applied for judging. To determine whether the
person charged has been negligent or not, he has to be judged like an ordinary competent person exercising ordinary skill in that profession. It is
not necessary for every professional to possess the highest level of expertise in that branch which he practices.
In Pandurang Dattatraya Khandekar Vs. Bar Council of Maharashtra, Bombay and Others, this Court held that:
There is a world of difference between the giving of improper legal advice and the giving of wrong legal advice. Mere negligence unaccompanied
by any moral delinquency on the part of a legal practitioner in the exercise of his profession does not amount to professional misconduct.
Therefore, the liability against an opinion advocate arises only when the lawyer was an active participant in a plan to defraud the Bank. In the
given case, there is no evidence to prove that A-6 was abetting or aiding the original conspirators.
However, it is beyond doubt that a lawyer owes an ""unremitting loyalty"" to the interests of the client and it is the lawyer''s responsibility to act in
a manner that would best advance the interest of the client. Merely because his opinion may not be acceptable, he cannot be mulcted with the
criminal prosecution, particularly, in the absence of tangible evidence that he associated with other conspirators. At the most, he may be liable for
gross negligence or professional misconduct if it is established by acceptable evidence and cannot be charged for the offence under Sections 420
and 109 IPC along with other conspirators without proper and acceptable link between them. It is further made clear that if there is a link or
evidence to connect him with the other conspirators for causing loss to the institution, undoubtedly, the prosecuting authorities are entitled to
proceed under criminal prosecution. Such tangible materials are lacking in the case of the respondent herein.
In the light of the above discussion and after analysing all the materials, we are satisfied that there is no prima facie case for proceeding in
respect of the charges alleged insofar as respondent herein is concerned. We agree with the conclusion of the High Court in quashing the criminal
proceedings and reject the stand taken by CBI.
Applying the said judgment to the facts of this case and having regard to the fact that the petitioner has given legal opinion based on the
complaint given by the complainant and no motive being attributed for giving such a legal opinion, this Court is of the firm view that the petitioner
cannot be proceeded with departmental proceedings under Rule 17(a) & 7(b) of the said Rules. In view of the above reasons, the impugned
orders are set aside and the writ petition is allowed. Consequently, connected Miscellaneous Petitions are closed. No costs.