A single bench of the High Court of Kerala has held that the Bar Council cannot insist that a retired employee should pay back the amount which he had withdrawn from the welfare fund upon joining government service, for re-enrolling as an advocate after retirement.
After putting in eight years of practice, the writ-petitioner had joined government service. Before that, he had got his name removed from the rolls of advocates. On removal from rolls, he was paid an amount of Rs 37,500 towards his contribution to the welfare fund created under the Kerala Advocates Welfare Fund Act 1957.
When he sought for re-enrollment, the Bar Council demanded back Rs 37,500 with 12% interest per annum, relying upon Rule 4(a) of the Bar Council of Kerala Rules and Rules 5(1) and (2) of the Kerala Advocates Welfare Fund Rules. The petitioner, therefore, challenged the vires of Rule 4(a) as ultra vires the rule-making power conferred on state bar councils under Section 28 of the Advocates Act.
It was pointed out by the Bar Council that the petitioner could have exercised the option of suspending his enrollment, instead of seeking removal from the rolls. It was also submitted by the Bar Council that some advocates were 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.
Justice Dama Sheshadri Naidu, dealing with the matter, did not deem it necessary to adjudicate upon the constitutionality of the impugned provision, on the principle of ‘Constitutional Avoidance’, which means that if a matter can be otherwise resolved on statutory parameters, courts need not venture into deciding the constitutional validity of the same. Here, the court noted a paradoxical situation in that the Welfare Fund Act prohibited a pensioner from being a member of welfare fund. This prohibition was found in Section 15(1A) of the Welfare Fund Act, which disqualified all those who were drawing pensionary benefits from being members of the fund. The petitioner, being a retiree from the Central Government service, was, therefore, not eligible to be a member of welfare fund. Hence it was observed that the precondition of his remitting the amount he had withdrawn earlier to reenter on the Bar Roll becomes a condition in contradiction.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.
Thus it was concluded that re-payment of welfare fund amount can be insisted upon on persons who are eligible to secure membership in the welfare fund on re-enrollment.
A former judge of the Kerala High Court, Justice CN Ramachandran Nair, also had to face a similar demand from the Bar Council of Kerala for resuming practice after retirement from judgeship. However, the High Court of Kerala held that permission from Bar Council of Kerala was not required for a retired high court judge to resume practice, which could be done only in the Supreme Court on account of Constitutional bar.