The Gujarat High Court, last week, upheld the denial of enrolment to a practicing Chartered Accountant.
“…the person as a member of profession has to discharge his obligation and, therefore, the profession as an Advocate or Lawyer which is a full time, one cannot be permitted if he is already working as a profession like Chartered Accountant. The nature of work may have some kind of overlapping or connection but it is not the nature of work but it is the nature of profession, which is relevant,” Justice Rajesh H. Shukla observed.
The Court was hearing a Petition filed by Mr. Mam Raj Goel, who had submitted that he shouldn’t be barred from enrolment as he wasn’t a salaried employee. He further contended that practice as a CA was “nothing but a law practice relating to commercial branch i.e. Income Tax Act, Companies Act, Partnership Act etc. or Debt Recovery Tribunal.”
Hearing the Petition, the Court noted, “Therefore, the moot question is whether he can be allowed to have an enrollment as an Advocate for practicing in the profession of Advocate”.
The Bench observed that the enrollment as a member of the profession is subject to the law made by the Parliament i.e. the Advocates Act. Section 28 of the Advocates Act empowers the Bar Council which is an apex body to make the rule for the member of the profession i.e. the Advocates including the Rules for enrollment. As stated above, Rule 49 which is sought to be interpreted in a different manner that it does not restrict the enrollment, cannot be readily believed or accepted.
“In fact, the person as a member of profession has to discharge his obligation and, therefore, the profession as an Advocate or Lawyer which is a full time, one cannot be permitted if he is already working as a profession like Chartered Accountant. The nature of work may have some kind of overlapping or connection but it is not the nature of work but it is the nature of profession, which is relevant. Section 49 refers to the general power of the Bar Council of India to make rules. Section 49(a) clearly provides that such Rules may provide the conditions subject to which an advocate may be entitled. Thus it includes the clause or category of a person entitled to be enrolled as an Advocate under this Act. Therefore the statute empowers the body like State Bar Council or Bar Council of India to make the Rules for enrollment and also take decision and if the decision is taken it cannot be said to be illegal”
It then observed that the Bar Council of Gujarat had expressly made Rules in this regard. Besides, the form which is required to be filled up for enrolment also demands a declaration from the application to the effect that he is not engaged in any full-time or part-time profession, except as provided under the Rules of the State Bar Council. This, the Court observed, had made the position clear.
“The Bar Council of Gujarat has made the Rules in exercise of power under Section 28 read with Section 24 of the Advocates Act. Rule 2 of the Bar Council of Gujarat provides “Every person applying to be admitted as an Advocate shall in his application make a declaration that he is not in full or part-time services or employment and that he is not engaged in any trade, business or profession contrary to the rules …………..”. The form which is required to be filled up also requires similar declaration as Clause (h) specifically provides “A declaration that the applicant is not in full or part time, employment or service and is not engaged in any trade, business or profession except as provided in Rules 1 and 2 of the Rules of the State Bar Council made under Section 28(2) (d) and the Rules of the Bar Council of India”. Thus the declaration is required to be made that the applicant, who seeks enrollment as an advocate, is not engaged in any profession except as provided under Rules of State Bar Council made in exercise of power under Section 28 of the Advocates Act. This itself would make the position clear”, said the Bench.
BY: APOORVA MANDHANI FOR LIVE NEWSNETWORK