Gujarat High Court
Jalpa Pradeepbhai Desai vs Bar Council Of India & 2....Opponent(S) on 21 September, 2017
Bench: R.Subhash Reddy, Vipul M. Pancholi
C/MCA/1762/2017 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
MISC. CIVIL APPLICATION (FOR REVIEW) NO. 1762 of 2017
In LETTERS PATENT APPEAL NO. 915 of 2017
In SPECIAL CIVIL APPLICATION NO. 19743 of 2015
[On note for speaking to minutes of order dated 20/07/2017 in
C/MCA/1762/2017 ]
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JALPA PRADEEPBHAI DESAI....Applicant(s)
Versus
BAR COUNCIL OF INDIA & 2....Opponent(s)
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Appearance:
PARTYINPERSON, ADVOCATE for the Applicant(s) No. 1
RC JANI & ASSOCIATE, ADVOCATE for the Opponent(s) No. 2
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CORAM: HONOURABLE THE CHIEF JUSTICE MR. R.SUBHASH REDDY
and
HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI
Date : 21/09/2017
ORAL ORDER
(PER : HONOURABLE THE CHIEF JUSTICE MR. R.SUBHASH REDDY) This matter is placed on board pursuant to note dated 05.09.2017 submitted by Mr. Manan Shah, learned advocate for respondent no.1.
We have perused the note. It appears that in the order dated 20.07.2017, name of Mr.Manan Shah, learned advocate for respondent no.1 is reflected in the appearance.
Name of Mr. Manan Shah, learned advocate appearing for respondent no.1 be recorded in appearance in the order dated 20.07.2017. Speaking to minutes note is stand disposed of.
(R. SUBHASH REDDY, CJ) (VIPUL M. PANCHOLI, J.) satish Page 1 of 1 HC-NIC Page 1 of 10 Created On Mon Oct 02 02:41:59 IST 2017 1 of 10 C/MCA/1762/2017 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD MISC. CIVIL APPLICATION (FOR REVIEW) NO. 1762 of 2017 In LETTERS PATENT APPEAL NO. 915 of 2017 In SPECIAL CIVIL APPLICATION NO. 19743 of 2015 ========================================================== JALPA PRADEEPBHAI DESAI....Applicant(s) Versus BAR COUNCIL OF INDIA & 2....Opponent(s) ========================================================== Appearance:
PARTY-IN-PERSON, ADVOCATE for the Applicant(s) No. 1 RC JANI & ASSOCIATE, ADVOCATE for the Opponent(s) No. 2 ========================================================== CORAM: HONOURABLE THE CHIEF JUSTICE MR. R.SUBHASH REDDY and HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI Date : 20/07/2017 ORAL ORDER (PER : HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI)
1. By way of this application, the applicant, original petitioner, has sought review / modification of the order dated 21.06.2017 passed by this Court in Letters Patent Appeal No.915 of 2017 by which the appeal was dismissed.
2. It was contended by the applicant, partyin person, that while deciding the Letters Patent Appeal, this Court has not adjudicated upon certain vital Page 1 of 9 HC-NIC Page 2 of 10 Created On Mon Oct 02 02:41:59 IST 2017
2 of 10 C/MCA/1762/2017 ORDER aspects that go into the root of the matter. The applicant has sought review / modification of the order dated 21.06.2017 on the following grounds;
(i) The Justice R.C. Mankad (Retd.) Committee appointed by respondent no.1 and on whose recommendation respondent no.2 refused to issue the Certificate of Practice to the petitioner, does not have any jurisdiction to make such recommendation. Therefore, the respondents ought not to have based their decision on the Report of said Committee and ought to have adjudicated the issue independently; and
(ii) The petitioner is rendering service in Gujarat Industrial Development Corporation (GIDC) as a Consultant on contractual basis and therefore, the income drawn by her cannot be classified as "salary". Instead, it is "remuneration" received towards the professional fees. To substantiate her say, it was submitted that 10% of the professional fees was deducted as TDS towards Professional Tax u/s.194J of the Income Tax Act, 1961. Therefore, the income received by her ought not to have been classified as "salary" and consequently, there does not exist any employeremployee relationship between her and the GIDC; and
(iii) The petitioner had paid requisite Fees/Charges for enrollment in the year 2012 and Page 2 of 9 HC-NIC Page 3 of 10 Created On Mon Oct 02 02:41:59 IST 2017 3 of 10 C/MCA/1762/2017 ORDER had also submitted the Affidavit of Undertaking on 07.11.2013 in compliance of the Resolution dated 21.09.2013 passed by respondent no.1. In view of the same, the respondents ought to have issued the Final Enrollment Certificate and the Certificate of Practice in her favour, which fact has not been appreciated while considering the Letters Patent Appeal.
2.1 In support of her submissions, the petitioner applicant placed reliance upon a decision of the Calcutta High Court rendered in the case of Souvik Mukherjee v. State of West Bengal & others passed in A.S.T. No.223 of 2013 dated 17.02.2014.
3. On the other hand, learned counsel appearing on behalf of the respondents, submitted that every aspect of the matter has been appropriately dealt with while deciding the Letters Patent Appeal and by way of a reasoned order, the said appeal has been dismissed. Hence, this Court may not entertain the present application seeking review of the order.
4. We have heard the applicant, partyinperson, learned counsel for the respondents and also perused the material on record. One of the main grounds sought for review of the order is that the Committee appointed by respondent no.1, on whose Report the respondents rejected the application of the petitioner seeking enrollment as Advocate, has no legal identity in the eyes of law inasmuch as there is no provision Page 3 of 9 HC-NIC Page 4 of 10 Created On Mon Oct 02 02:41:59 IST 2017 4 of 10 C/MCA/1762/2017 ORDER under law to constitute such Committee; and therefore, the respondents ought not to have acted upon such Report.
5. It can be seen from the record that when respondent no.2 sought opinion of respondent no.1 on the issue of enrollment of the applicant, initially, the respondent no.1 passed the Resolution No.191 of 2013, which reads as under;
"The Report dated 23.08.2013 submitted by Hon'ble Shri Rameshchandra G. Shah, Member, Bar Council of India in regard to enrollment of Ms. Jalpa P. Desai be and is hereby accepted".
5.1 The said Report dated 23.08.2013 reads as under;
"I have perused the record such as enrollment application of Ms. Jalpa P. Desai and letter No. BCG : 1509/2012 dated 08.10.12. On page4 vide para16 of the enrollment application it has been stated that she is presently in employment or service with Gujarat Industrial Development Corporation for one year contract basis and providing services as a Law Professional Legal Expert with a panel Advocate of the Corporation on record. It is also noticed from the agreement made between Gujarat Industrial Development Corporation and Ms. Jalpa P. Desai that her services was hired for one year on the 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 Rule49 of ChapterII, Part6 of the Rules of Bar Council of India.Page 4 of 9
HC-NIC Page 5 of 10 Created On Mon Oct 02 02:41:59 IST 2017 5 of 10 C/MCA/1762/2017 ORDER 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 enrollment certificate and certificate of practice can be granted by the State Bar Council subject to the other conditions fulfillment prescribed by the State Bar Council."
5.2 In pursuance of the said communication, the applicant submitted the Affidavit of Undertaking dated 07.11.2013, which reads as under;
"I the undersigned Jalpa Pradeepbhai Desai do hereby state on solemn affirmation that on completion of my contract with GIDC, I shall not be the employee of any establishment including GIDC. This undertaking is being affirmed with reference to opting Sanad & permission to practice as an Advocate from Bar Council of Gujarat, as it is directed by Bar Council of India vide its letter No. BCI dated 4477/2013 (Council Mtg. 24.08.2013) dated 21.09.2013."
5.3 If we carefully examine the Report submitted by the Member of respondent no.1, it is clear that in the said Report it has been stated that the service of the applicant has been hired for one year on contract basis, which amounts to rendering of service, which is violative of Rule 49 of the Bar Council of India Rules. It is not in dispute that the applicant has not challenged the said Report submitted by the Member of respondent no.1. It is further relevant to note that though the applicant has submitted the Undertaking Page 5 of 9 HC-NIC Page 6 of 10 Created On Mon Oct 02 02:41:59 IST 2017 6 of 10 C/MCA/1762/2017 ORDER dated 07.11.2013, during the course of hearing, the applicant fairly admitted that till today she is in service of GIDC and is getting Rs.40,000/ per month. Thus, though the Undertaking was filed on 07.11.2013, the applicant is still in service. Thus, the reliance placed by the applicant on the aforesaid communication and the Undertaking is misconceived.
6. From the record, it is also revealed that the applicant has, thereafter also, made correspondence with the respondents with regard to her enrollment. However, the respondent no.1 thought it fit to appoint a Committee of Four Members headed by a former Judge of this Court. If the Report / Judgment dated 20.08.2016 is examined, it is revealed that the said Committee has placed reliance upon the Resolution No.191/2013 dated 21.09.2013 and Report of the Member of respondent no.1 dated 23.08.2013 and thereafter, considering the provisions of the Advocates Act and the Rules framed thereunder, rejected the application of the petitioner. It is not in dispute that the applicant has not raised any grievance with regard to the constitution of the Committee of One Member of respondent no.1, who has submitted the Report on 23.08.2013 nor the applicant has raised any objection with regard to the constitution of the Committee of Four Members during the course of her submissions before the said Committee. Thus, when the applicant has participated in the proceedings before the Committee of Four Members, it is not open for the applicant to contend that the Committee does not have Page 6 of 9 HC-NIC Page 7 of 10 Created On Mon Oct 02 02:41:59 IST 2017 7 of 10 C/MCA/1762/2017 ORDER the jurisdiction to consider and reject the application of the petitioner.
7. In our opinion, the decision to set up the Committee was a legal and fair decision taken in the larger interest of the petitioner. Having presented her case before the Committee to her satisfaction, it is not open to the petitioner to challenge the very constitution of the Committee. The decision to challenge the constitution of the Committee is nothing but, an afterthought and hence, the said contention is devoid of any merits.
8. The applicant had also raised a contention that the remuneration received by her from GIDC could not be classified as "salary". In the order dated 21.06.2017, we have elaborately discussed the reasons as to why the services of the petitioner with GIDC has to be termed as "employment". The terms and conditions provided in the contract entered into by the petitioner with the GIDC clearly establish that there exists an employeremployee relationship between the GIDC and the petitioner. Having recorded our findings on the issue, it is not open to the petitioner to re agitate the same on the ground of review.
9. Insofar as the decision relied upon by the petitioner is concerned, the facts therein are different. In that case, the retainership agreement of the appellant therein was with a Law Firm. The appellant therein was never appointed by the concerned Page 7 of 9 HC-NIC Page 8 of 10 Created On Mon Oct 02 02:41:59 IST 2017 8 of 10 C/MCA/1762/2017 ORDER Law Firm by issuing any letter of appointment nor was the appellant paid any monthly salary. On such facts, the Calcutta High Court held that the employment of the appellant therein with the Law Firm could not be treated as fulltime employment on monthly salary basis. However, in the present case, indisputably, the petitioner is employed with the GIDC, which is a 'State' and that to on a monthly salary of Rs.25,000/. The working hours of the petitioner is also the usual Office Hours. Therefore, the employment of the petitioner was on fulltime basis only. Hence, the principle rendered in the aforesaid decision would not be of any help to the petitioner.
10. The last ground sought for review of the order is that on 19.06.2012 the petitioner had paid a sum of Rs.8150/ to the respondents towards different charges/fees for being enrolled as an Advocate and therefore, the respondents could not have denied her enrollment subsequently. With regard to the said averments, it is required to be noted that the Committee constituted by the respondent no.1 has not entertained the request of the applicant. Even prior to the constitution of the said Committee, the Member of respondent no.1 submitted the Report on 23.08.2013, as discussed herein above, wherein it has been stated that the services of the applicant has been hired for one year on contract basis, which amounts to rendering of service, which is violative of Rule 49 of the Rules framed by respondent no.1. Though the Affidavit of Undertaking dated 07.11.2013 is filed by the Page 8 of 9 HC-NIC Page 9 of 10 Created On Mon Oct 02 02:41:59 IST 2017 9 of 10 C/MCA/1762/2017 ORDER applicant, till today her contractual period has been extended and till date she is in employment of GIDC. Hence, merely because the applicant has paid a sum of Rs.8,150/ towards different charges / fees, she is not entitled to get the enrollment as an Advocate. Thus, the said contention is also misconceived.
11. The principle governing the scope of review is well settled. In this case, the applicantpetitioner was not in a position to point out any error apparent on the face of the record, which may warrant interference in the present proceeding. Hence, the application, being devoid of merits, is dismissed.
(R. SUBHASH REDDY, CJ) (VIPUL M. PANCHOLI, J.) Pravin/* Page 9 of 9 HC-NIC Page 10 of 10 Created On Mon Oct 02 02:41:59 IST 2017 10 of 10