TaxTMI 
TaxTMI 
2017 (6) TMI 1334
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....n advocate despite the decision of respondent No.1-Bar Council of India reflected in Resolution dated 24th August, 2013 bearing Resolution No.191 of 2013. Shortly stated, the grievance in the petition is about non-granting of enrolment to the petitioner as an advocate to practice law by the respondents Bar Councils. 2. The issue arises with reference to Rule 49 of Chapter-II Part-6 of the Bar Council of India Rules. In order to address and appreciate the controversy, the said Rule is usefully reproduced at the outset hereinbelow. "49. 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, and shall, on taking up any such employment, intimate the fact to the Bar Council on whose roll his name appears and shall thereupon cease to practise as an advocate so long as he continues in such employment." 2.1 Below the Rule, the following further is stated by way of clarification. *"That as Supreme Court has struck down the appearance by Law Officers in Court even on behalf of their employers the Judgement will operate in the case of all Law Officers. Even if they were allowed to appear ....
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....posal of applications for admission as an advocate and sub-section (2) thereof provides that where the Enrolment Committee of State Bar Council proposes to refuse any such application, it shall refer such application to Bar Council of India for its opinion. Sub-section (3) of Section 26 provides that the Enrolment Committee of State Bar Council shall dispose of any application referred to the Bar Council of India under sub-section (2) in conformity of the opinion of the Bar Council of India. 3.2 The Bar Council of India communicated to the Bar Council of Gujarat about Resolution No.191 of 2013, by addressing letter dated 21st September, 2013. The said law is reproduced hereinbelow which contains Resolution No.191 of 2013 as well as mentions about the report. "Sir, The General House of the Council at the meeting held on 24th August, 2013 under Item No. 256/2013 has passed the following resolution regarding Enrolment matter of Ms. Jalpa P. Desai. Resolution No. 191/2013 "The report dated 23.8.2013 submitted by Hon'ble Shri Rameshcnahdra G. Shah, Member, Bar Council of India in regard to enrolment of Ms.Jalpa P. Desai be and is hereby accepted. ....
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....ars deaf. Letters were addressed by the aggrieved petitioner and further correspondence ensued between the petitioner and Bar Councils. As the request for granting enrolment number was not being considered, the petitioner filed the present petition with the prayers as aforesaid. As the issue appeared to be on hold pending with the respondent-Bar Council of India, in the orders passed by this Court during the pendency of the matter, respondent Nos.1-Bar Council of India was directed to expedite its decision. Pursuant to order dated 25th February, 2016 passed by the Court during the pendency of the petition requiring the respondents to complete the procedure at their end, respondents activated themselves. 3.5 On behalf of the first respondent-Bar Council of India, affidavit-in-reply dated 30th March, 2016 was filed stating inter alia that for completing the procedure regarding enrolment of the petitioner as per the directions of the Court, an urgent meeting meeting was called on 03rd March, 2016 after issuing notice to the petitioner to remain present on that date; petitioner expressed her inability to come to Delhi at such a short notice. It was further stated in the affidavit th....
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....he contract basis on the lump sum amount of Rs. 25,000/- per month. It seems that she might be helping in the case matter to the Advocates on panel. Fact remains, but her service has been hired for one year on contract basis. It amounts to rendering of services which is violation of Rule-49 of Chapter-II, Part-6 of the Rule of Bar Council of India." This clear decision is made by the Bar Council of India. The Bar Council of India has also passed the resolution that in view of the above considering the provisions of the Advocates Act, if the applicant Ms. Jalpa P. Desai files undertaking on affidavit that she will not be employee of any establishment including Gujarat Industrial Development Corporation. Thereafter final enrolment certificate and certificate of practice can be granted by the State Bar Council subject to the other conditions fulfilment prescribe by the State Bar Council. Considering the above said resolution of Bar Council of India, it is clear that the contract of Ms. J. P. Desai, and GIDC is amount to rendering of services which is violation of Rule-49 of Chapter-II, Part-6 of the Rule of Bar Council of India. As per the provisions of Sec.26(2) of the Advocates A....
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....the employment of the Corporation. She assailed as erroneous the decision of the Bar Council of India and that of Committee constituted by it to deny her the enrolment in view of Rule 49 of the Rules. The decision was described as mala fide by the party-in-person. It was contended by party-in-person that Bar Council of India had no powers to constitute the committee which it constituted and the report was obtained. She also tried to raise a contention that report of the Committee appointed by Bar Council of India was titled as judgment rather than report. 4.2 The party-in-person next submitted that she was only Legal Consultant with the Corporation and her engagement could not be said to be debilitating for getting enrolled. She submitted with reference to the letters of the Corporation that even the Corporation termed her engagement as contractual only. She further submitted that she was never treated as an employee and was paying tax at source using form 16A which was for professional services and that in view of Section 194J of the Income-Tax Act, what was paid to her was was not the salary. The contentions raised by partyin- person were inclusive of all those contentions whi....
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....ar of service in the corporation. First party will be at liberty to terminate the contract with prior notice of 1 month. Condition No.9: If during the discharge of its assigned work, the second party has to visit any outstation place, the second party shall be entitled for appropriate travelling and daily allowances as are normally available to the employees of the first party. Condition No.10 : The second party, with the consent of the first party may be excused from clause (2) of this agreement, entitled to avail leave for 12 days in his/her total tenure i.e. one per month." 5. The issue required to be resolved was whether the engagement of the petitioner with the Corporation as Legal Consultant would violate the Rule or not. 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 ....
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....reof and recorded its findings which are virtually enveloping the answers to the issues and enlightening as well. They are reproduced as under. "11. As per condition no. 2, the 1st respondent agreed to visit/attend the office of the first party-Gujarat Industrial Development Corporation regularly as per the standard office hours in force. As per condition no. 7, the 1st respondent agreed to deposit an amount equal to one months remuneration which is agreed to be forfeited by the first party, that is, the Corporation in case of premature termination of contract by the 1st respondent-original petitioner. It is also not in dispute that she is paid fixed sum of Rs. 25,000/- per month. If we consider the dictionary meaning of salary, it is nothing but fixed regular payment made by an employer to an employee in return of work. The term full time used in Rule 49 of the 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 the 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. Having regard to such terms of contract to render services ....