2017 (6) TMI 1334 - HC - Indian Laws

Direction to respondents to act in accordance with the guidelines in respondent No.1-Bar Council of India s letter dated 21st September 2013 - non-enrolment of petitioner as an advocate despite the decision of respondent No.1-Bar Council of India - whether the engagement of the petitioner with the Corporation as Legal Consultant would violate the Rule or not? HELD THAT - Exercising powers under sub-section (2) of Section 26 of the Advocates Act 1961 respondent No.2-Bar Council of Gujarat solicited opinion of respondent No.1-Bar Council of India. Respondent No.1 adopted an objective procedure of appointing a Committee of Retired Judge of the High Court obtained report. The final decision was taken on the basis of such report to refuse the enrolment to the petitioner on the ground that it would be in contravention of Rule 49 of the Rules. Thus the expert committee went into the issue and answered it. At this stage contention of party-in-person about constitution of the committee may be dealt with Bar Council of India had on the contrary required personal presence of the petitioner for giving opportunity to her for hearing. As the party-in-person was not able to remain present in the fairness the committee was constituted headed by the Retired Honourable Judge of this Court to have a proper decision on the issue. No illegality was committed by the Bar Council of India in constituting the committee. It was rather just fair and reasonable stand to have an objective view. Looking at Rule 49 of the Bar Council Rules it provides that an advocate shall not be a full-time salaried employee. The conditions attached to the contract of service of the petitioner with the Corporation are reflective of the nature of the employment. The employment envisages that services are required to be rendered during the standard hours of service as per condition No.2. Condition Nos.9 and 7 show that service as legal assistant rendered by the petitioner is a full-time job and attaches with it monthly payable amount of 25, 000/- - The mode of payment of TDS cannot determine the nature of employment for the purpose of Rule 29 of the Rules. Nothing could be propounded to persuade the Court to take a different view. From the totality of operation of the facts and considering the nature of the service contract of the petitioner with the Corporation there is no gainsaying that the petitioner incurs debility in terms of Rule 49 as her employment could be characterised as a full-time salaried employment. As a result refusal by the respondents to grant the petitioner enrolment and the certificate to practice law could be said to be eminently proper and legal - Petition dismissed.

Summary

Issues Involved:
1. Non-enrolment of the petitioner as an advocate by the Bar Council.
2. Interpretation and applicability of Rule 49 of Chapter-II Part-6 of the Bar Council of India Rules.
3. Validity of the petitioner's employment status with Gujarat Industrial Development Corporation (GIDC) in the context of Rule 49.
4. Legality of the Bar Council of India's procedure in handling the petitioner's enrolment application.
5. Interim relief and temporary enrolment number for the petitioner.

Issue-wise Detailed Analysis:

1. Non-enrolment of the petitioner as an advocate by the Bar Council:
The petitioner filed a petition under Article 226 of the Constitution seeking directions for the respondents to act in accordance with the Bar Council of India's letter dated 21st September 2013, and to issue a permanent enrolment number. The petitioner challenged the non-enrolment decision based on the Bar Council of India's Resolution No.191 of 2013, which required the petitioner to file an undertaking that she was not an employee of any establishment, including GIDC.

2. Interpretation and applicability of Rule 49 of Chapter-II Part-6 of the Bar Council of India Rules:
Rule 49 states, "An advocate shall not be a full-time salaried employee of any person, government, firm, corporation or concern, so long as he continues to practise." The Bar Council of India clarified that if a law officer is a full-time employee drawing a regular salary, they are not entitled to enrolment as an advocate. The petitioner's engagement with GIDC was scrutinized under this rule.

3. Validity of the petitioner's employment status with Gujarat Industrial Development Corporation (GIDC) in the context of Rule 49:
The petitioner was engaged as a Legal Consultant with GIDC on a contractual basis with a monthly remuneration of ?25,000. The Bar Council of Gujarat sought an opinion from the Bar Council of India, which concluded that the petitioner's engagement amounted to rendering services in violation of Rule 49. The petitioner's contract required her to visit the office regularly, deposit remuneration as security, and entitled her to travel and daily allowances, indicating a full-time employment nature.

4. Legality of the Bar Council of India's procedure in handling the petitioner's enrolment application:
The Bar Council of India constituted a committee headed by a retired High Court judge to investigate the matter. The committee's report, which was accepted by the Bar Council of India, recommended rejecting the petitioner's enrolment application. The petitioner contended that the Bar Council of India had no power to constitute such a committee, but the court found the procedure just, fair, and reasonable.

5. Interim relief and temporary enrolment number for the petitioner:
The court initially granted interim relief directing the Bar Council of Gujarat to provide a temporary enrolment number. However, this order was set aside by the Division Bench in Letters Patent Appeal No.1296 of 2016, which found that the petitioner's engagement with GIDC constituted full-time employment under Rule 49, thus barring her from enrolment.

Conclusion:
The court concluded that the petitioner's engagement with GIDC was a full-time salaried employment, violating Rule 49 of the Bar Council of India Rules. Consequently, the refusal to grant enrolment and the certificate to practice law was deemed proper and legal. The petition was dismissed, and the rule was discharged.