Kerala HC Says BCI Can Conduct A Full Fledged Inquiry On Affairs Of Advocates Welfare Fund Trust Committee With Respect to Pilferage of Rs.7 Crores [Read Judgment]

The Kerala HC on Tuesday declared that the BCI is empowered to make an enquiry into the entire affairs of the KERALA ADVOCATES WELFARE FUND TRUSTEE COMMITTEE with respect to the pilferage of Rs.7 Crores between 2007-2015. "If a member of the (State) Bar Council or members of the Trustee Committee, who are members of the Bar Council, have committed any irregularity, misappropriation and misconduct, it would be only just and proper that, the enquiry is conducted by the Bar Council of India, which is an independent body, which alone would be in a position to conduct impartial enquiry against the members of the Council", said the Division Bench. "It is also to bear in mind that the amount from the Welfare Fund is a solace to the Advocates and their family in the 'Hey day' in life and it shall be released as and when applied for it by the beneficiary. Therefore, if any fraudulent acts like the one at hand is permitted, it will cause fetter to the rights of the advocates", observed the Court, "hoping that a full-fledged enquiry would be made" by the BCI. On 3rd of October, 2018 in the felicitation function of the Chief Justice of India, which was organised by the Supreme Court Bar Association (S.C.B.A.), the Attorney General for India Mr. K.K. Venugopal in his address to the audience raised the question of misappropriation of about Rs. 7 crores by the Trustees of Bar Council of Kerala. "The matter has drawn the attention of the highest Judiciary of the nation and also of the Sr. Advocates practicing in the Supreme Court. The issue was raised by not an ordinary man, but by the Hon'ble Attorney General for India who hails from the State of Kerala itself. Therefore with great pains, he made this issue public, knowing it full well that the Chairman and other Office-bearers of the Council, the Hon'ble Chief Justice of India and other Hon'ble Judges of Supreme Court were present in that function. The Council cannot overlook the seriousness of the issue and since it is the Lawyers' money, it cannot close its eyes only because of the fact that the local police is in the hands and gloves of some of the culprits who are close to the powerful people of the State of Kerala", explains the BCI in its October 6, 2018 resolution to constitute a 4-men committee, comprising of retired High Court judges, to enquire into the state of affairs. The challenge to this action of the BCI was rejected by the Single Judge of the High Court, which was appealed against before the Chief Justice-led bench. Observations of the Court On a reading of section 7(1)(d) of the Advocates Act, 1961, it is clear that Bar Council of India is conferred with a duty to safeguard the rights, privileges and interests of the Advocates. As per clause (g) thereto, it is vested with powers of general supervision and control over the State Bar Councils. As per clause (m), it is vested with powers, coupled with a duty to do all other things necessary for discharging the functions conferred under section 7 of Act, 1961. Section 12 of Act, 1961 deals with accounts and audit and every Bar Council is duty bound to maintain such books of accounts and other books in such form and in such manner as may be prescribed. Sub-section (2) thereunder stipulates that the accounts of Bar Council shall be audited by auditors duly qualified to act as auditors of companies under the Companies Act, 1956 at such times and in such manner as may be prescribed. "Therefore, on a conjoint reading of the provisions contained under section 12 of Act, 1961, it is clear and evident that the Bar Council of Kerala was duty bound to conduct audit in terms of the provisions of the said Act and forward the same to the Bar Council of India on or before 31st day of December every year", said the court. Section 15(2)(ga) empowers the Bar Council of India to constitute one or more funds for the purpose of giving financial assistance or giving legal aid or advice. "Therefore, on a harmonious reading of the provisions of section 7 of Act, 1961 and the rules discussed above, it would be clear that the (Welfare) fund is constituted in accordance with the provisions of the Act, 1961. Therefore, whatever rules made by the Bar Council of Kerala is by virtue of the powers conferred under the Act, 1961, and whereby the supervisory powers of the Bar Council of India conferred under section 7 of Act, 1961 enables the Bar Council to conduct necessary enquiry if and when it receives any information or complaint with respect to the misappropriation of funds constituted as per the provisions of Act, 1961, (Kerala Advocates Welfare Fund) Act, 1980 and the Rules framed thereunder", noted the bench. Further, the Court appreciated that section 46(a) is a very significant provision dealing with financial assistance to State Bar Council which states that the Bar Council of India may, if it satisfies with any State Bar Council, is in need of funds for the purpose of performing its functions ...

Kerala HC Says BCI Can Conduct A Full Fledged Inquiry On Affairs Of Advocates Welfare Fund Trust Committee With Respect to Pilferage of Rs.7 Crores [Read Judgment]

Mehal Jain

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