NO PRO­VI­SION FOR TEM­PO­RARY EN­ROLL­MENT AS AN AD­VO­CATE IN THE AD­VO­CATES ACT, 1961 BAR COUN­CIL OF GUJRAT V. JALPA PRADEEPBHAI DE­SAI [SCC ON­LINE GUJ 5080. DE­CIDED ON 25.12.2016]

Libertatem Magazine - - From The Courtroom -

FACTS

The re­spon­dent pe­ti­tioner ap­plied for an ap­peal, who has ap­plied for cer­tifi­cate of prac­tice to Bar Coun­cil of Gujrat while si­mul­ta­ne­ously ren­der­ing ser­vice at a cor­po­ra­tion. Jalpa Pradeepbhai De­sai, was not al­lowed to en­roll as an Ad­vo­cate due to her as­so­ci­a­tion with Gu­jarat In­dus­trial De­vel­op­ment Cor­po­ra­tion as Le­gal Con­sul­tant. The High Court asked the Bar Coun­cil of In­dia to take de­ci­sion re­lat­ing to her en­ti­tle­ment to get en­roll­ment as an ad­vo­cate. On find­ing that the Bar Coun­cil of In­dia did not take any de­ci­sion the Court even­tu­ally granted re­lief to the re­spon­dent pe­ti­tioner in this case by means of a Writ Pe­ti­tion in a sin­gle Judge bench .The Court granted her an in­terim re­lief and di­rected the Bar Coun­cil to grant her a tem­po­rary en­roll­ment num­ber.

IS­SUES BE­FORE COURT

 The re­spon­dent pe­ti­tioner con­tended that her con­trac­tual ser­vice ar­range­ment of her ser­vice with the cor­po­ra­tion could not be viewed as em­ploy­ment.

 Re­mu­ner­a­tion paid to her was not by way of salary, there was no em­ployee-em­ployer re­la­tion­ship.

 The re­spon­dent pe­ti­tioner has to attend of­fice from 11 AM-5PM, which are stan­dard hours of work.

 The re­spon­dent pe­ti­tioner has a fixed salary of Rs.25000 per month.

HELD

The High Court of Gu­jarat held that there is no pro­vi­sion for grant of tem­po­rary cer­tifi­cate by the Bar Coun­cil for prac­tic­ing as an ad­vo­cate un­der the Ad­vo­cate’s Act 1961. The Di­vi­sion Bench ob­served that ac­cord­ing to the con­tract of the cor­po­ra­tion ob­served that the re­spon­dent­pe­ti­tioner was a full-time salaried em­ployee of the cor­po­ra­tion, she is not en­ti­tled to prac­tice as ad­vo­cate so long as she con­tin­ues in such em­ploy­ment and was barred un­der Rule 49 of the Rules. (No pro­vi­sion un­der Ad­vo­cates Act, 1961 for tem­po­rary en­rol­ment as an ad­vo­cate; Sc­conline/dec 28, 2016)

LEARN­ING OUTCOME

Even though the re­spon­dent pe­ti­tioner con­tended “I was al­lowed to en­roll as an ad­vo­cate by BCG & BCI in 20122013 and they al­lowed me to ap­pear All In­dia Bar Exam but when I cleared my exam and asked for num­ber and cer­tifi­cate of prac­tice they took U-turn. hence I ap­proached High Court,” (No Pro­vi­sion For Tem­po­rary En­roll­ment As Ad­vo­cates: Gu­jarat HC; livelaw/dec 25, 2016 ).The Court made it clear as to fact of what are to be termed as em­ploy­ment and how a prac­tic­ing lawyer as per the con­duct of the Act is barred from con­tin­u­ing its mem­ber­ship in the Bar once finds an­other em­ploy­ment.

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