In a judgement which might have significant implications on the legal community, especially lawyers employed in law firms,the Gujarat High Court has held that when a person is employed as a legal consultant/expert even on a contractual basis,he/she cannot be allowed to enroll and practice as a lawyer.
The judgment was delivered by Justice NV Anjaria in a petition filed by one Jalpa Pradeepbhai Desai (petitioner) against the Bar Council of India (BCI) and Bar Council of Gujarat (BCG). Desai appeared in-person while Advocate Manan A Shah appeared for BCI. Advocate RC Jani appeared for BCG.
The facts of the case- The petitioner, a law graduate, had been recruited by the Gujarat Industrial Development Corporation as a Legal Consultant/Expert. Her employment was on contractual basis but with a monthly salary of Rs. 25,000. However, when she tried to enroll as a lawyer with the BCG, the same was denied on the basis of Rule 49 of the Bar Council of India Rules. The said decision was taken after consultation with the BCI.
In fact, the BCI had suggested that the enrollment could be allowed subject to Desai swearing on affidavit that she will not be an employee of any establishment. Desai had filed an affidavit as required by the BCI, but since no positive action ensued from the BCG or BCI, she moved the Gujarat High Court.
A single judge of Gujarat High Court had granted interim relief to the petitioner and directed that an enrollment number be allotted to her on temporary basis. This interim order was overturned by a Division Bench in a Letters Patent Appeal. The matter then came before single judge to be decided on merits.
The question addressed by the Court was whether the contract between the petitioner and GIDC was in the nature of a full-time employment and consequently, hit by Rule 49.
“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 and the conditions (in the contract) show that the service as legal assistant rendered by the petitioner is a full time job and attaches with it a salary of Rs. 25,000”.
The Court concluded that the conditions of service, nature of employment and kind of contract were factors which would determine whether the petitioner is a full time salaried employee or not.
“It is the condition of contract, the nature thereof and other attendant features which would determine whether the petitioner could be comprehended as a full time salaried employee with the Corporation or not. The mode of payment of TDS cannot determine the nature of employment for the purpose of Rule 49.”
The Court held that the conditions in the contract made it evident that the petitioner was a full time salaried employee contemplated under Rule 49. The Court also noted that in the instant case, the contract was renewed on a yearly basis and it continues till date. It, therefore, held that the petitioner cannot be enrolled as a lawyer.
Many lawyers are employed by law firms based on ‘retainership agreements’. Such agreements usually come with a monthly salary and perks though there is no employee-employer relationship involved. What implications this judgment could have on such agreements remains to be seen.