Bar Council of Gujarat and Ors. v. Jalpa Pradeepbhai Desai and Ors. - (High Court of Gujarat) (22 Dec 2016)

Advocate shall not be a full-time salaried employee of any person, government, firm, corporation, so long as he continues to practice

MANU/GJ/2820/2016

Civil

In instant case, Respondent applied for certificate of practice to Bar Council of Gujarat, but was informed that her enrollment form for certificate of practice is put on hold as she is rendering services to Gujarat Industrial Development Corporation and same is in violation of Rule 49 of Chapter II, Part-6 of Bar Council of India Rules. Respondent case in petition was that, contractual arrangement of her service with Gujarat Industrial Development Corporation cannot be viewed as employment and that remuneration paid to her is not by way of salary, as such, there is no employee-employer relationship. 1st Appellant referred the issue under Section 26(2) of Advocates Act, 1961 to 2nd respondent. Even after reference, when decision was not taken by 2nd respondent-Bar Council of India, learned single Judge by order directed Bar Council of India to take decision and place on record such decision in relation to entitlement of 1st respondent herein to get enrollment as an advocate on or before 13th June, 2016. Learned single Judge, by recording a finding that, Bar Council of India has not finally accepted or rejected claim of 1st respondent, passed order granting interim relief, by which directions were issued to the Bar Council of Gujarat to give temporary enrollment number to 1st Respondent. Aggrieved by such direction issued by single Judge, this Letters Patent Appeal is filed by 2nd and 3rd respondent of petition.

As per Rule 49 of Bar Council of India Rules, 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. To render services as a professional, 1st Respondent has entered into contract with Gujarat Industrial Development Corporation. The term "full time" used in Rule 49 of Rules is also to be considered as full-time office standard number of hours. When it is admitted that 1st Respondent has to be in office from 11.00 a.m. to 5.00 p.m which are standard hours of work, prima facie, it is to be considered as full-time employment. In view of terms of contract to render services by attending office for full-time, and further having regard to fixed salary per month being given to 1st Respondent, prima facie 1st respondent-petitioner is not entitled to grant of certificate of practice under Advocates Act, 1961 in view of Rule 49 of Bar Council of India Rules.

Under scheme of Advocates Act, 1961 and rules framed thereunder, there is no provision for grant of temporary certificate by Bar Council for practising as an advocate. Even assuming that tax at source is deducted from remuneration/fees payable to 1st Respondent-Petitioner under provisions of Income Tax Act, 1961, but at same time, same by itself cannot be determinative factor when claim of 1st Respondent is barred under Rule 49 of Rules. In view of conditions of service contract of 1st Respondent with Gujarat Industrial Development Corporation, service of 1st Respondent is full-time employment and she is not entitled for grant of a temporary certificate as per interim orders passed by single Judge. Accordingly, Letters Patent Appeal is allowed by setting aside order passed by single Judge in Special Civil Application.

Ratio: Rules does not provide for grant of temporary certificate by Bar Council for practising as an advocate

Relevant : Section 26(2) of Advocates Act, 1961, Rule 49 of the Bar Council of India Rules

Tags : PRACTICE CERTIFICATE ENROLMENT INTERIM RELIEF