The Madras High Court on Tuesday recommended that the state Bar Council, at the earliest, insert in its Regulations, by way of amendment, a provision for "interim pay-outs to needy advocates in these dark and difficult days".
The Division Bench was rendering its decision on a PIL moved by a Senior Advocate, raising "an important issue in general, and one that assumes particular importance in a situation such as the present pandemic where self-employed professionals are hard-pressed for a source of income/livelihood".
The petitioner sought a direction to the respondents, Bar Council of Tamil Nadu and Puducherry (BCTNP) and the State of Tamil Nadu to pay Advocates and registered Advocate Clerks a sum of Rs.50,000/- and Rs.25,000/- respectively, as an ad interim measure. The premise upon which this prayer was made is that the aforesaid amounts, in any event, constitute only a portion of the amounts earmarked to their own benefit from out of the welfare funds held by the BC in trust, to be paid over to the advocates and advocate-clerks in certain enumerated circumstances.
"We are thus, unfortunately, not in a position to accede to the prayer of the petitioner in this regard straight away but issue a direction to the respondents to consider our recommendation as aforesaid in the proper spirit and take positive and necessary action in that regard, at the earliest", observed the Court.
The BCTNP argued before the bench that the prayer of the petitioner is liable to be granted only if a specific amendment is brought to the Rules providing for the disbursement of the funds as an interim measure. As on date, the Rules stipulate specific circumstances and exigencies upon the occurrence of which only would payment be made to the person concerned. There is no provision for interim payment.
"Sadly, the BCTNP is right. Though there are several situations enumerated for remittances to be effected, circumstances such as the present, warranting interim payments at the discretion of the Trustees has simply not been envisaged and thus not provided for. However, BCI regulation 41(3) permits 80% of the total sum collected by the Bar Council of India Advocates Welfare Fund Committee for the State to be utilised for the welfare of Advocates in respect of Welfare Schemes sponsored by respective State Bar Councils. Thus, though a specific and suitable amendment/provision must be made to the State Rules providing for the mechanism for payment, the BCI Regulations have envisaged a situation where the State can formulate and sponsor a welfare scheme for Advocates and utilize the amounts collected, after seeking and obtaining concurrence of the BCI in that regard", ruled the bench.
The Court noted that Regulation 44A(6) also provides for the State Bar Council to implement such a scheme in tandem with the BCI and subject to mandatory monitoring by the BCI- "The absence of a specific and enabling Rule in the State regulations, though an immediate barrier, can and, in our recommendation, must, be inserted by way of an amendment at the earliest, to provide for interim pay-outs to needy advocates in these dark and difficult days".
The BCI Regulations provide for the collection of an amount from a member of the State Bar Council, and the deployment/crediting of the same in an Advocates welfare fund to be created by the Bar Council of India qua a specific State. Out of the amount so credited, 20% shall stand transferred to the account of the Bar Council of India every month, to form part of the corpus of the Bar Council of India Advocates Welfare Fund. Rule 41(3) provides that the remaining 80% will be retained by the State Bar Council of India Advocates Welfare Fund, to be utilized for the welfare of Advocates, being members of the respective State Bar Councils. This fund is to be administered by the Advocates
Welfare Committee for the respective State, which is to submit annual returns for due monitoring by the BCI.
Before the court, the BCTNP submitted that it is not blind to the problems faced by the Member Advocates and has been undertaking various measures for provision of financial assistance to those Advocates in need. A re quest appears to have been made to the Chief Ministers of Tamil Nadu and Puduchery for provision of financial assistance. Contributions were also sought from Senior Advocates and other Members of the Bar for onward transmission to Advocates in need and a specific relief fund account opened in the High Court Branch of the Indian Bank.
It was averred that applications were invited by the state bar council from Advocates who were in need of fi nancial assistance stipulating conditions upon satisfaction of which such assistance would be extended. An android mobile application was created for the same pur pose. As on April 20, BCTNP states that it has received 16,825 applications,15,970 through the mobile application and the remaining through post. All the ap plications were stated to be under scrutiny.
As on April 23, the total contribution received including the balance available in the welfare fund is stated to be an amount of Rs.1,23,65,113/-. The total credit available in the BCTN Advocates Relief Fund is stated to be a sum of Rs.5.00 crores. As at present, the membership of the BCTNP is 65,000 strong. It had received 16,000 applications via the Android Mobile App and 1059 applications physically, of which 12,215 were found eligible. The request of the BCTNP to the State Government was fruitful, pursuant to which, an initial grant
was received, out of which, a sum of Rs.4,000/- each is said to have been disbursed to 12,000 Advocates on May18 . Response is awaited from the State Government to the request of the BCTNP for additional funds.
The Court appreciated that the upon noting the position that the liabilities of the Trustees Committee constituted under the Uttar Pradesh Advocates' Welfare Fund Act exceeded the funds available, the Allahabad High Court, specifically invoking Section 5 of the U.P. Advocates' Welfare Fund Act, 1974, observed that the Committee could also invoke its powers to borrow funds for onward transmission to the Advocates. "The Tamil Nadu Advocates' Welfare Fund Act,
1987 also contains a similar provision in Section 10 thereof", said the Court.
The bench was of the strict view that the efforts of the BCTNP must be more aggressive and it cannot rest content with the payment of Rs.4000 per advocate. It noted that in any event, no payment at all has been made to the Clerks. "While there may be no provision available as of now to provide for interim payments, the present circumstances warrant urgent and immediate amendments to the provisions of the Act/relevant Rules to enable the BCTNP to release some portion of the funds held in trust by the Welfare Fund to the advocates, as an interim measure", the bench iterated.
Holding that "the issue raised herein remains alive and within our anxious consideration", the Court listed the matter for July 1 to check compliance.
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