Practicing CA can not enroll as Advocate with Bar Council to practice Law. Riding on two horses in two profession, cannot be accepted – Gujarat High Court
ABCAUS Case Law Citation:
ABCAUS 2060 (2017) (09) HC
Brief Facts of the Case:
The present petition was filed by a Chartered Accountant (petitioner/CA) under Articles 226 of the Constitution of India and Sections 24 and 28 of the Advocates Act, 1961 for issuance of an order/ direction to the Bar Council of India to enroll him as a Member of the Bar Council for practice of law.
The petitioner was a Chartered Accountant (CA) and a member of the Institute of Chartered Accountant of India (ICAI) with certificate of practice and was engaged in the practice as CA.
However, the petitioner CA also had a degree of LLB and, therefore, he had applied for permission for membership of the Bar Council of Gujarat which was turned down.
Contention of the appellant CA:
It was submitted that Rule 49 of the Bar Council of India Rules does not in any manner restrict the membership as an Advocate. It was submitted that the Rules framed by the Bar Council Act are ultra vires the provision of the Advocates Act, 1961. Particularly, Sections 24 to 28 which provides which person may be admitted as advocates on a State roll, disqualifications etc. It was therefore submitted that any contrary Rule made by the Bar Council cannot be justified and enrolment cannot be denied.
It was also contended that the practice as a Chartered Accountant is nothing but a law practice relating to commercial branch i.e. Income Tax Act, Companies Act, Partnership Act etc. or Debt Recovery Tribunal etc.
He submitted that as per the Chartered Accountant Act, 1949, he had been permitted to practice as CA and the ICAI permits the practice as a Chartered Accountant to those, who are also law graduates. Therefore, in larger national interest, the amendment has been made in the Chartered Accountant Act.
It was also submitted that he was not a salaried employee and, therefore, as per Rule 49, he could not be denied merely because he is partner of the firm of Chartered Accountant.
Contentions of the Respondent Bar Council
Bar Council contended that earlier also a petition was filed for the similar prayer and, therefore, there was no justification for filing the present petition. It was also contended that the petitioner has availed alternative remedy by way of Appeal before the Bar Council of India and, therefore, the present petition may not be entertained.
It was further contended that the petitioner could get enrollment as an Advocate if he fulfills the criteria / rules framed by the Bar Council of Gujarat and Bar Council of India.
It was also contended that to decide whether the petitioner can be enrolled as an Advocate or not shall be decided in the light of the provisions of the Advocates Act, 1961 as well as Bar Council of India Rules and ICAI ICAI is not the authority in this respect.
It was submitted that Section 28 of the Advocates Act refers to the power to make Rules and it empowers the State Bar Council to make Rules to carry out the purpose.
It was submitted that under the provision of Rule 49 of the Bar Council of India Rules the petitioner being a Chartered Accountant and partner in the firm of Chartered Accountant, could not be enrolled.
Reliance was placed on the judgment of the High Court of Gujarat, holding that the person practicing in medical profession, could not practice law.
Observations made by the High Court:
The High Court observed that the Petitioner’s suggestion that he was conversant with the law and commercial matters and, therefore, he might be allowed to practice as an Advocate, was made on a general observation or perception.
The High Court observed that 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. The High Court stated that Rule 49 which the Petitioner sought to be interpreted in a different manner that it does not restrict the enrollment, could not be readily believed or accepted.
The High Court observed that 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 could not be said to be illegal.
The High Court observed that submissions made by the Petitioner that there was nothing which prohibits and, therefore, he should be allowed to ride on two horses in two profession, cannot be accepted.
The High Court noted that the Bar Council of Gujarat had 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 reads as under:
“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 …………..”.
It was further observed that The form which is required to be filled up also required similar declaration as Clause (h) specifically provided a declaration to the effect 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 was 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.
Decision:
The petition was dismissed
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