WWW.LIVELAW.IN IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE DAMA SESHADRI NAIDU WEDNESDAY, THE 4TH DAY OF OCTOBER 2017/12TH ASWINA, 1939 WP(C).No. 18547 of 2008 (G) ---------------------------PETITIONER(S): ----------------SRI.K.U.JOSEPH, KARAKKATTU HOUSE, KAIRALI HOUSING COLONY, PARATHODE PO., KANJIRAPPALLY, KOTTAYAM DISTRICT. BY ADV. SRI.C.J.JOY RESPONDENT(S): -------------------BAR COUNCIL OF KERALA, REPRESENTED BY ITS SECRETARY, BAR COUNCIL BUILDINGS, ERNAKULAM-682 037. R,R BY ADV. SRI.GRASHIOUS KURIAKOSE, SC THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 04-10-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WWW.LIVELAW.IN WP(C).No. 18547 of 2008 (G) :2: APPENDIX PETITIONER'S EXHIBITS: EXT.P1
: TRUE COPY OF THE ORDER OF THE RESPONDENT DATED 28.02.1996.
EXT.P2
: TRUE COPY OF THE COVERING LETTER ALONG WITH THE APPLICATION FORM DATED 18.02.2008.
EXT.P3
: TRUE COPY OF THE COMMUNICATION DATED 13.03.2008.
RESPONDENTS' EXHIBITS: NIL
//TRUE COPY//
P.A. TO JUDGE
rv
WWW.LIVELAW.IN DAMA SESHADRI NAIDU, J. ------------------------------------------W.P. (C) No. 18547 of 2008 (G) -----------------------------------------Dated this the 4th day of October 2017. JUDGMENT Introduction: An advocate secures employment, leaves the profession, joins the government service, eventually retires and, then, wants to come back into the legal profession. When he left the profession, he had his name removed from the Bar Role; he received whatever contribution he had made to the Advocates’ Welfare Fund, too. 2. One part of the statute mandates that a former advocate seeking re-entry should pay back with interest the amount he withdrew from the Welfare Fund. Another part of the statute prevents an exgovernment employee from becoming a member of the Welfare Fund. The Question: 3. Can the Bar Council insist that the retired government servant, to re-enroll himself as an advocate, must pay back the amount he withdrew, though he could not be a member of the Welfare Fund, in the first place?
WWW.LIVELAW.IN W.P.(C.) No.
18547/2008
-2-
The Controversy: 4. Petitioner Joseph is a law graduate and was a lawyer, too, between 18.10.1987 and 06.10.1995, then, practicing at Pala Bar, Kottayam District. Later, he went into Government service: Selected as a Sales Tax Officer, he joined the service and retired on 31.12.2007. 5.
Soon after his joining the Government service, Joseph
requested the Bar Council of Kerala to remove his name from the rolls of Advocates, which the Bar Council did. It removed his name through Ext.P1 from 06.10.1995. On his request, the Bar Council of Kerala also paid to Joseph `37,500/- being his contribution to the Advocates' Welfare Fund. 6. After his retirement, Joseph applied on 18.02.2008 for reenrolment. The Bar Council, in turn, through Ext.P3 dated 13.03.2008, informed Joseph that he could have his re-entry if he repaid with 12% interest the entire amount he had withdrawn from the Advocates' Welfare Fund.
Assailing this directive of the Bar
Council, Joseph filed this writ petition.
WWW.LIVELAW.IN W.P.(C.) No.
18547/2008
-3-
Contentions: Petitioner’s: 7. Sri C.J. Joy, the learned counsel for the petitioner, has taken me through the statutory provisions. He has drawn my attention, especially, to Section 15 of the Kerala Advocates' Welfare Fund Act, 1980, to assert that Joseph, being a retired employee drawing pensionary benefits, is not eligible to be admitted as a member of the Fund or permitted to resume membership in the Fund. According to him, in the face of that statutory interdiction, the Bar Council's insisting through Ext.P3 that Joseph should pay with interest at 12% the entire amount he had legitimately withdrawn earlier is grossly inequitable, illegal, and unsustainable. 8. As to the pre-condition that a member ought to have been aware of the consequences of his getting removed from the rolls rather than having his membership suspended, Sri Joy contends that Rule 4 (a) under Chapter V of the Bar Council of Kerala Rules, 1979 ('the BCK Rules') imposing that pre-condition was introduced only in 2007, whereas Joseph had his name removed from the rolls in 1995.
WWW.LIVELAW.IN W.P.(C.) No.
18547/2008
-4-
9. Sri Joy, in the alternative, submitted that Rule 4(a) of Chapter V of the BCK Rules is ultra vires the Bar Council’s rule-making power under Section 28 of the Advocates Act, 1961. According to him, the delegated power exercised by the Bar Council should only be for furthering the objective of the Act, but not for impeding it by incorporating conditions that prevent a qualified person from enrolling himself as an Advocate. Respondent’s: 10.
Per contra, Sri Gracious Kuriakose, the learned Senior
Counsel appearing for the Bar Council of Kerala, the sole respondent, has made elaborate submissions both about the salutary nature of the Kerala Advocates' Welfare Fund Act, 1980 ('the KAWF Act') and the Bar Council of Kerala Rules('the BCK Rules'). He has also drawn our attention to Rule 5(1) and (2) of the Kerala Advocates' Welfare Fund Rules ('the KAWF Rules) and Rule 4(a) under Chapter V of the BCK Rules, as well as Section 16 of the KAWF Act. 11. To elaborate, the learned Senior Counsel has contended that Kerala Advocates' Welfare Fund Act, 1980, is a complete code spelling
WWW.LIVELAW.IN W.P.(C.) No.
18547/2008
-5-
out, among other things, the enrolling advocates' obligations and also the Bar Council’s duty to ensure the advocates’ welfare. To begin with, Sri Kuriakose has contended that Joseph initially had two options: either to keep his membership suspended until he resumed his practice or to remove himself entirely from the rolls. He chose the latter.
Had Joseph continued on the rolls after having his
membership suspended, there would have no occasion for the Bar Council to refund the amount and now insist that Joseph should repay the entire amount with 12% interest. 12. As to the vires of Rule 4(a) of the KBK Rules, Sri Kuriakose has strenuously contended that Section 28, the enabling provision, is couched in broad terms. It confers, according to him, wide powers on the Bar Council. Rule 4(a) of the KBK Rules, he asserts, is one of the eligibility criteria for a law graduate to enroll himself as an advocate. A condition—especially one aimed at ensuring the welfare of the Advocates—cannot be termed extraneous, much less ultra vires of the Bar Council. The apex body is statutorily obligated to oversee the entire gamut of the legal profession.
WWW.LIVELAW.IN W.P.(C.) No.
18547/2008
-6-
13. The learned Senior Counsel has also pointed out what is said to be a nefarious practice: some Advocates are taking recourse to the trickery of getting themselves removed from the rolls, withdrawing all the benefits from the Advocates' Welfare Fund, and soon thereafter getting themselves re-enrolled. 14. To elaborate, the learned Senior Counsel would contend that the Bar Councils with scarce fund base at the apex level and also at the state level have been struggling to garner enough funds and to ensure the advocates’ welfare. If the Court allows or sanctifies the sharp practice of Advocates' removing themselves from the rolls, withdrawing the amounts, and then re-enrolling, it would be deleterious to the professional interests of the lawyer community. In the end, the learned Senior Counsel has urged this Court not to interfere with Ext.P3. 15. Heard Sri C. J. Joy, the learned counsel for the petitioner and Sri Gracious Kuriakose, the learned Senior Counsel for the respondent, besides perusing the record.
WWW.LIVELAW.IN W.P.(C.) No.
18547/2008
-7-
Discussion: (a) Removal and Reentry: 16. In this case much depends on the statutory mandate. Section 24 of the Kerala Advocates’ Act deals with the persons who may be admitted as advocates on a state Roll. Clause (e) of sub-section (1) mandates that the person needs to fulfil “such other conditions as may be specified in the rules made by the State Bar Council under this Chapter. Further examined, section 24 falls within Chapter III, which deals with “admission and enrolment” of advocates comprises sections 16 to 28. 17. Section 26A of the Act deals with the State Bar Council’s power to remove names from Roll. A State Bar Council may remove from the State Roll the name of any advocate dead or from whom a request has been received to that effect. Here, Joseph requested the Bar Council to remove his name and it did. On the other hand, an advocate may as well desire to have his name suspended from the Roll; he can, later, have this suspension revoked.
WWW.LIVELAW.IN W.P.(C.) No.
18547/2008
-8-
18. In Chapter III, Rules 5 (1) & (2) of the Bar Council of India Rules deal with the suspension. An advocate “who voluntarily suspends his practice for any reason whatsoever shall intimate by registered post to the State Bar Council on the rolls of which his name is entered, of such suspensions together with his certificate of enrolment in original.” Further, whenever any such advocate who has suspended his practice desires to resume his practice, he shall apply to the Secretary of the State Bar Council for resumption of practice, along with an affidavit stating whether he has incurred a disqualification under Section 24A, Chapter III, of the Act during the period of suspension. So either under section 26A of the Act or under rule 5 (2) of the Rules, an advocate can renter the profession: in the former case, the advocate begins afresh; in the latter, he or she only resumes. (b) Hurdle: 19. On securing employment, Joseph had his name removed from the Roll, instead of having it suspended—an option he can exercise. And we can take no exception to that. Removal from the
WWW.LIVELAW.IN W.P.(C.) No.
18547/2008
-9-
Roll entails on outgoing advocate to refund of, say, the welfare fund contribution. Away from profession between November 1995 and December 2017, then a government servant, Joseph on retirement wanted to renter the profession. He faces a hurdle. 20. Rule 4(a), under Chapter V, of BCK Rules imposes a precondition to be met by any erstwhile advocate desiring a reentry: he should repay the entire amount he received from the Advocates' Welfare Fund when he had his name removed from the Roll. And the amount should be repaid with 12% interest per annum, at that. The provision reads: 4(a). “A person who has already ceased to be an advocate or cease to be an advocate by removal from State Rolls on request under the provisions of Sec.26A of the Advocates Act shall repay the entire amount if any received by him from the advocates Welfare Fund with 12% interest per annum on that amount to the Welfare Fund and produce the receipt thereon.
21. Joseph contends, among other things, that Rule 4 (a) is beyond the Bar Council’s rule-making power. True, Section 28 of the Advocates’ Act delegates the power to a State Bar Council to make rules “to carry out the purposes” of Chapter III. Section 28(2)(d)
WWW.LIVELAW.IN W.P.(C.) No.
18547/2008
-10-
empowers the State Bar Council to provide for “the conditions subject to which a person may be admitted as an advocate on any such roll.” (c) Welfare Fund: 22. Before we consider whether Rule 4(a) is ultra vires, we will examine Kerala Advocates' Welfare Fund Act, 1980. It is an Act “to provide for the constitution of a welfare fund for the payment of retirement benefits to Advocates in the state of Kerala.” under Section 16 of the Welfare Fund Act, after ceasing to practice, a member of the Fund can receive from out of the Fund “an amount at the rate specified in the schedule.” On ceasing to be a member, Joseph was repaid his contribution: `37,500/- in 1995. 23. Section 27 of the Welfare Fund Act empowers the Bar Council to make rules to carry into effect the Act. It must be with the previous approval of the Government by notification in the Gazette. The Bar Council did frame Rules: The Kerala Advocates’ Welfare Fund Rules, 1981.
WWW.LIVELAW.IN W.P.(C.) No.
18547/2008
-11-
24. Rule 5(1) and (2) of the Rules prescribes a precondition for a lawyer seeking readmission to the Fund. The Rule, to the extent relevant, reads: “5 (1) An application for re-admission to the Fund shall be in Form No. VI (2) Along with application, the applicant shall pay in lump to the Fund, the application fee of two hundred rupees together with the amount received by him under Section 16 of the Act with interest calculated at the rate of 12 per cent per annum from the date of receipt of the amount from the Fund till the date of application.”
25. The Bar Council invoked this Rule and demanded Joseph through the Ext.P3 letter to repay with 12% interest the amount he had received under Section 16 of the Welfare Fund Act in 1995. But Joseph insists that this Rule must go, for it offends his right under Article 19(1)(g) of the Constitution: the right to practice his profession or to carry on his occupation. (d) Profession and Privilege: 26. Lawyering hovers between being a profession and a privilege.
It has hoary, yet queer, past, tumultuous present, and perhaps trying future. With artificial intelligence—IBM’s Watson, Ross, and with
WWW.LIVELAW.IN W.P.(C.) No.
18547/2008
-12-
many menacing cognitive machines in the offing—the advocate is pitted against a machine. True, Article 19(1)(g) guarantees the right to practice, but it is subject to the terms imposed by, for example, the Advocates' Act. So, the right to practice is a fundamental right—but with reasonable statutory restrictions, at that.
It is mythical to
maintain that a right, however exalted it is, exists without a corresponding reasonable restriction placed on it. 27. To begin with, the Legislature can make a law prescribing professional or technical qualifications. It can impose restrictions on an advocate's appearing before ‘specialised or specific tribunals’, as no right can exist without a corresponding reasonable restriction placed on it. But the question here is, must a qualified person to be an advocate also secure membership in, say, a Welfare Fund? We will examine whether we need to answer this question. (e) Avoidance of Annihilation: 28. The Court will not, as the Rule of Last Resort suggests, pass upon a constitutional question although properly presented by the record if there is also present some other ground upon which the case
WWW.LIVELAW.IN W.P.(C.) No.
18547/2008
-13-
may be disposed of. This Court in Kavitha G. Pillai v. Joint Director1 has further observed2 that when the validity of an act of the Congress is drawn in question, and even if a serious doubt of constitutionality is raised, it is a cardinal principle of Constitutional Avoidance that the Court will first ascertain whether a construction of the statute is fairly possible by which the question may be avoided. 29. Here, if we can resolve the dispute within the statutory parameters, we may as well avoid adjudicating on the vires of a provision: This is what the Constitutional Avoidance is all about. (f) The Paradox: 30. Indeed, the Bar Council did rely on Rule 5 (1) and (2) of the Welfare Fund Rules to insist that Joseph should repay whatever he had received when he left the profession. Not in dispute is the fact that Joseph has retired from the Central Government service and drawn his retirement benefits, too. Then, Joseph is barred from being a member of the Welfare Fund. 12016 (5) KHC 744 (DB) 2Quoting from Andrew Nolan’s article: The Doctrine of Constitutional Avoidance: A Legal Overview (available online)
WWW.LIVELAW.IN W.P.(C.) No.
18547/2008
-14-
31. It pays, in this regard, to examine Section 15 (1), (1A) and (1B) of the Welfare Fund Act: “15. Membership in the Fund (1) Every advocate practicing in any court in the State and being a member of a Bar Association recognised by the Bar Council may apply to the Trustee Committee for admission as a member of the Fund in such form as may be prescribed. [(1A) An Advocate who is eligible for or availed of any kind of retirement benefits for the service under the Central or State Government or any Public or Private Sector Undertaking, shall not be admitted as a member of the Fund or permitted to resume membership in the Fund;] [(IB) A person who received retirement benefit from the Fund shall not be re-admitted as member of the Fund.] . . .”
(italics supplied)
32. So Joseph, a retired Central Government employee, having drawn his retirement benefits, cannot be a member of the Advocates’ Welfare Fund. Then, the precondition of his remitting the amount he had withdrawn earlier to reenter on the Bar Roll becomes a condition in contradiction. The Rule compels but the Act rejects. And the Act, as is well known, shall prevail.
WWW.LIVELAW.IN W.P.(C.) No.
18547/2008
-15-
33. To avoid a collision course between Rule 5 of the Welfare Fund Rules and Section 15 of the Welfare Fund Act, I may read down the Rule: Rule 5 may be insisted upon—subject to its passing the constitutional muster, if challenged—only when the candidate seeking readmission is not barred under Section 15 of the Kerala Advocates’ Welfare Fund Act from securing membership of the Welfare Fund. (g) Conclusion: 34. Therefore, for the reasons mentioned above, I set aside the Bar Council’s Ext.P3 order and direct the Bar Council to consider Joseph’s application without reference to Rule 5 of the Welfare Fund Rules. No order on costs.
rv
DAMA SESHADRI NAIDU, JUDGE.
WWW.LIVELAW.IN W.P.(C.) No.
18547/2008
-16-
