CASE BRIEF: Satish Kumar Sharma v. The Bar Council of Himachal Pradesh – Appeal (Civil) 5395 of 1997

Case Brief
Satish Kumar Sharma v. The Bar Council of Himachal Pradesh – Appeal (Civil) 5395 of 1997
Deciding Authority
Supreme Court
Name of the Judges
S.V.Patil, R.C.Lahoti
Date of Judgment
3^rd  January 2001
Facts of the Case
After securing LL.B. in 1975-76 the appellant was appointed as Assistant (Legal) by the Himachal Pradesh State Electricity Board (for short the Board). The said post was re-designated as Law Officer Grade-II in 1978. The Board, by its order dated 6.9.1983 allowed the appellant to act as an advocate of the Board and also ordered that the expenditure of his getting licence from the Bar Council shall be met by the Board. His application seeking enrolment was sent by the Secretary of the Board to the respondent on 13.10.1983. The Secretary of the respondent by letter dated 28.3.1984 informed the Board that the Office Order dated 6.9.1983 of the Board did not meet the requirements of the Rules and that the appellant should first be designated as a Law Officer. The respondent also requested the Board to send the order of appointment and the terms of such appointment of the appellant. The Board by order dated 11.6.1984 modified the earlier order dated 6.9.1983 and declared the appellant as a Law Officer of the Board. On 5.7.1984 another order was passed by the Board by changing the designation of the post of Law Officer Grade-II as Law Officer. It is, thereafter, the respondent issued a certificate of enrolment dated 9.7.1984 to the appellant. By Office Order dated 8.5.1991 the appellant was given ad hoc promotion to the post of Under Secretary  (Legal)- cum-Law Officer, which order also stated that he would continue to work in the Legal Cell of the Secretariat of the Board. Further on 14.1.1993 he was promoted as Under Secretary (Legal)- cum-Law Officer on officiating basis. By its communication dated 13.9.1993 the respondent called upon the appellant to appear before the Committee on 28.9.1993 along with all connected documents/evidence in regard to his enrolment as an advocate. The said communication indicated that in the meeting held on 10.7.1993 the respondent considered the matter regarding enrolment of certain Law Officers and decided to constitute a committee to examine the same. Thereafter on 27.12.1993 a show cause notice was sent to the appellant requiring him to explain as to why his enrolment No. HIM/35/1984 issued to him be not withdrawn. Reply to the said show cause notice was to reach by 30.12.1993. After taking extension of time twice the appellant sent a communication on 25.2.1994 stating that there was no ground for withdrawal of his enrolment reserving his right to file a detailed reply. He also stated that he would like to be represented by an advocate. The appellant was promoted as Deputy Secretary (Legal)-cum- Law Officer on ad hoc basis by the Office Order of the Board dated 30.1.1995 and he was required to continue to work in the Legal Cell. In the meeting held on 12.5.1996 the respondent passed a resolution unanimously withdrawing the enrolment of the appellant with immediate effect and directed him to surrender the enrolment certificate within 15 days therefrom. The relevant and material part of the resolution reads: –
“Shri Satish Sharma is a permanent employee of the HPSEB and presently he is holding the post of Deputy Secretary in the HPSEB and is in continuous employment of the HPSEB and under Rule 49 he is debarred to be an Advocate. Moreover, he was enrolled as an Advocate initially when he was appointed as Law Officer. Thereafter he had been getting promotions and working as Assistant Secretary/Deputy Secretary in the HPSEB. In fact he was required to intimate the said fact to the Bar Council immediately on promotion and should have surrendered the licence but he failed to do so. Under these circumstances there is no justification to retain Shri Satish Sharma on the Roll of the Bar Council as an Advocate. It is, thus, resolved that the Enrolment No. HIM/45/1984 be and is hereby withdrawn with immediate effect and he is ordered to surrender his Enrolment Certificate within a period of 15 days.”
It is this resolution, validity and correctness of which was challenged by the appellant before the High Court in the writ petition and thus this subsequent appeal.
Judgment
Counsel for the appellant, while reiterating the contentions urged before the High Court, submitted that the High Court failed to appreciate that the second para of the Rule 49 carves out an exception to the Bar created by Rule 49, precluding a full time salaried employee from practicing as an advocate; the said exception was subject only to one limitation, i.e., an express bar created by Rules, made by any State Bar Council in exercise of its powers under Section 28(2)(d) read with Section 24(1)(e) of the Advocates Act, 1961; since the respondent has not framed any rules expressly barring such Law Officers from being enrolled as advocates the appellant was entitled for enrolment. According to the counsel the High Court also failed to note that it was not a case of refusal of enrolment to a Law Officer but it was a case wherein the respondent was estopped from cancelling the certificate of enrolment issued to the appellant by the very respondent as early as on 9.7.1984; therefore, cancellation of enrolment after almost a decade and half based on an erroneous interpretation of Rule 49 of the Rules of Bar Council of India, was unjust. It was also urged that the appellant had placed all the material before the respondent before obtaining his enrolment certificate and there was no concealment of facts on his part and that the appellant was discriminately treated. The learned counsel added that the impugned action of the respondent was unwarranted as it amounted to a punishment of removal of the name of an advocate from the Roll of the State Bar Council as postulated by Section 35(d) of the Act without following the procedure.
The counsel representing the respondent made submissions supporting the orders impugned in this appeal. According to him the appellant was not at all entitled for enrolment as an advocate having regard to Rule 49 of the Bar Council of India Rules in the absence of any enabling provision to a full time salaried employee for enrolment as an advocate. The learned counsel submitted when the appellant was not at all entitled to be enrolled as an advocate the action taken by the respondent after lapse of some time is of no consequence and the delay in taking action in a case like this itself does not give protection so as to sustain the enrolment. He further submitted that there was no discrimination as alleged by the appellant looking to the nature of duties of the prosecutors in the State Departments and the appellant.
It was observed by the Hon’ble court that the argument of the learned senior counsel for the appellant was that what is not prohibited may be taken as permitted and when the appellant satisfied the requirements of Section 24, he was entitled for enrolment. This argument overlooked a positive requirement as already stated above contained in para 2 of Rule 49 that unless a concerned State Bar Council has framed rules entitling Law Officers to enroll as Advocates even though they are full-time employees, they are not entitled to enrolment. The contention that the respondent could not have cancelled enrolment of the appellant almost after a decade and half and that the respondent was estopped from doing so on the principle of promissory estoppel, did not impress the court for the simple reason that the appellant suffered threshold bar and was not at all eligible to be enrolled as an Advocate and his enrolment itself was clearly contrary to Rule 49 of the Rules in the light of the facts stated above. Hence neither the principles of equity nor promissory estoppel will come to the aid of the appellant. Similarly, there is no substance in the argument of the learned counsel for the appellant that removal of the name of the appellant from the roll of the State Bar Council amounted to a punishment under Section 35(d) of the Act without following procedure. It is clear from the facts of the case that action was not taken against the appellant on the ground of misconduct by initiating any disciplinary proceedings. But in this case the very enrolment of the appellant as an advocate itself was contrary to law and he was not at all entitled for enrolment. By cancellation or withdrawal of enrolment, things were only set right and the mistake committed on misunderstanding was corrected.
Decision
Appeal was dismissed without costs
Shubham Shandilya, IVth Year, Symbiosis Law School, Pune