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(ACT 21 OF 1980)

THE KERALA ADVOCATES' WELFARE FUND ACT,1980 [1]

An Act to provide for the constitution of a welfare fund for the payment of retirement benefits to advocates in the State of Kerala and for matters connected therewith or incidental thereto.

Preamble.--WHEREAS it is expedient to provide for the constitution of a welfare fund for the payment of retirement benefits to advocates in the State of Kerala and for matters connected therewith or incidental thereto;

BE it enacted in the Thirty-first year of the Republic of India as follows:-

1. Short title, extent and commencement.--(1) This Act may be called the Kerala Advocates Welfare Fund Act, 1980.

(2) It extends to the whole of the State of Kerala.

(3) It shall come into force on such date as the Government may , by notification in the Gazette, appoint.[2]

2. Definitions--In this Act unless the context otherwise requires,-

(a) "Advocate" means a person whose name has been entered in the State roll of advocates prepared and maintained by the Bar Council of Kerala under S.17 of the Advocates' Act,1961 (Central Act 25 of 1961) […….] [3].

(b) " Bar Association" means an association of advocates recognised by the Bar Council under section 13;

(c) "Bar Council" means the Bar Council of Kerala constituted under S.3 of the Advocates' Act,1961 (Central Act 25 of 1961);

(d) [ "cessation of practice" means removal of the name of an advocate from the State roll maintained by the Bar Council on account of his retirement or death and includes any disentitlement of a member to practise in the State under Article 220 of the Constitution of India or any other law for the time being in force;] [4]

(e) "dependants" means wife, husband, father, mother and [sons and daughters][5] or such of them as exist;

(f) "Fund" means the Advocates' Welfare Fund constituted under section 3;

(g) "member of the Fund" means an advocate admitted to the benefit of the Fund and continuing to be a member thereof under the provisions of this Act;

(h) "prescribed" means prescribed by the Bar Council by rules made under this Act;

(i) "retirement" means stoppage of practice as an advocate communicated to and recorded by the Bar Council;

(j) "stamp" means the stamp printed and distributed under section 22;

(k) "State" means the State of Kerala;

(l)"suspension of practice" means voluntary suspension of practice as an advocate or suspension by the Bar Council for misconduct;

(m)"Trustee Committee" means the committee established under section 4;

(n) "vakalath" means vakalathnama and includes memorandum of appearance or any other document by which an advocate is empowered to appear or plead before any court, tribunal or other authority.

3. Advocates Welfare Fund.--(1) The Government shall constitute a fund called the Advocates' Welfare Fund.

(2) There shall be credited to the Fund -

(a) all amounts paid by the Bar Council under section 12 ;

(b) any other contribution made by the Bar Council ;

(c) any voluntary donation or contribution made to the Fund by the Bar Council of India, any Bar Association, any other association or institution, any advocate or any other person ;

(d) any grant made by the State Government to the Fund;

(e) the amount set apart from the Legal Benefit Fund constituted under sub- section (2) of section 78 of the Kerala Court Fees and Suits Valuation Act, 1959 (10 of 1960) , for providing social security measures for the legal profession;

(f) any sum borrowed under section 10 ;

(g) all sums received from the Life Insurance Corporation of India on the death of an advocate under the Group Insurance Policy;

(h) any profit or dividend received from the Life Insurance Corporation of India in respect of policies of Group Insurance of the members of the Fund;

(i) any interest or dividend or other return on any investment made of any part of the Fund;

(j) all sums collected by way of sale of stamps under section 22;

(k) all sums collected under section 15 by way of application fees and annual subscriptions and interest thereon.

(3) The sums specified in sub- section (2) shall be paid to, or collected by, such agencies, at such intervals and in such manner , and the accounts of the Fund shall be maintained in such manner, as may be prescribed.

4. Establishment of Trustee Committee.--(1) The Government may, by notification in the Gazette, establish, with effect from such date as may be specified therein, a Committee to be called the Kerala Advocates' Welfare Fund Trustee Committee.

(2) The Trustee Committee shall be a body corporate having perpetual succession and common seal with power to acquire and hold property and shall by the said name, sue and be sued.

(3) The Trustee Committee shall consist of -

(a) the Advocate General of Kerala , who shall be he Chairman of the Trustee Committee, ex-officio;

(b) the Law Secretary to Government, ex-officio;

(d) [three members] [6] of the Bar Council nominated by it;

(e) the treasurer of the Bar Council, who shall be the treasurer of the Trustee Committee, ex-officio;

(f) the Secretary of the Bar Council, who shall be the Secretary of the Trustee Committee, ex-officio;

(g) [the President of the Kerala Bar Federation, ex-officio.] [7]

(4) A member nominated by the Government under clause (c) of sub-section (3) shall hold office for a term of three years.

(5) A member nominated by the Bar Council under clause (d) of sub-section (3) shall hold office for a term of four years or for the duration of his membership in the Bar Council, whichever is less.

5. Disqualifications and removal of nominated members of Trustee

Committee.--(1) A member nominated under clause (c) or clause (d) of sub-section (3) of S.4 shall be disqualified to be a member of the Trustee Committee if he -

(a) becomes of unsound mind;or

(b) is adjudged insolvent; or

(d) is a defaulter to the Fund (in case he is a member of the Fund) or has committed breach of Trust; or

(e) is convicted by a criminal court for an offence involving moral turpitude, unless such conviction has been set aside.

(2) The Government may remove any member who is or has become disqualified under sub-section (1) from membership of the Trustee Committee:

Provided that no order removing any member shall be passed unless that member and the Bar Council in the case of a member nominated by it have been given an opportunity of being heard.

6. Resignation by nominated members of Trustee Committee and filling up of casual vacancies.--(1) Any member nominated under clause (c ) or clause (d) of sub-section (3) of S.4 may resign his office by giving three months' notice in writing to the Government or the Bar Council as the case may be, and on such resignation being accepted by the Government or the Bar Council shall be deemed to have vacated his office:

Provided that the Bar Council shall consult the Government before accepting the resignation.

(2) A casual vacancy in the office of a member referred to in sub-section (1) may be filled up , as soon as may be , by the Government or the Bar Council, as the case may be, and a member so nominated to fill such vacancy shall hold office for the unexpired portion of the term of office of the member whose place he fills .

7. Act of Trustee Committee not to be invalidated by vacancy, defect,

etc. --No act done or proceeding taken under this Act or the rules made there under by the Trustee Committee shall be invalidated merely by reason of-

(a) any vacancy or defect in the constitution of the Committee;

(b) any defect or irregularity in the nomination of any person as a member thereof; or

8. Vesting and application of Fund.--The Fund shall vest in, and be, held and applied by, the Trustee Committee subject to the provisions , and for the purposes of this Act.

9. Functions of Trustee Committee.--(1) The Trustee Committee shall administer the Fund.

(2) In the administration of the Fund, the Trustee Committee shall subject to the provisions of this Act and the rules made there under,-

(a) hold the amounts and assets belonging to the Fund in Trust;

(b) receive application for admissions or readmissions to the Fund, and dispose of such applications within ninety days from the date of receipt thereof;

[(bb) remove a member from the Fund for contravention of any of the provisions of this Act or the rules framed thereunder after giving the member concerned an opportunity of being heard ;] [8]

(c) receive applications from the members of the Fund, their nominees , legal representatives, as the case may be, for payment out of the Fund, conduct such enquiry as it deems necessary for the disposal of such applications and dispose of the applications within five months from the date of receipt thereof;

(d) record in the minutes book of the Trustee Committee its decisions on the applications;

(e) pay to the applicants amounts at the rate specified [in section 16] [9];

(f) send such periodical and annual reports as may be prescribed , to the Government and the Bar Council;

(g) communicate to the applicants by registered post with acknowledgment due the decisions of the Trustee Committee in respect of applications for admission or readmission to the Fund or claims to the benefit of the Fund;

(h) do such other acts as are ,or may be, required to be done under this Act and the rules made there under.

10. Funds, borrowing and investment.--(1) The Trustee Committee may, with the prior approval of the Government and the Bar Council, borrow, from time to time, any sum required for carrying out the purposes of this Act.

(2) The Trustee Committee shall deposit all moneys and receipts forming part of the Fund in any scheduled bank or invest the same in loans to any corporation owned or controlled by the Central Government or the State Government or in loans floated by the Central Government or the State Government or in any other manner as the Bar Council may, from time to time, direct with the prior approval of the Government.

(3) All amounts due and payable under this Act and all expenditure relating to the management and administration of the Fund shall be paid out of the Fund.

(4) The amounts of the Trustee Committee shall be audited annually by a chartered accountant appointed by the Bar Council.

(5) The accounts of the Trustee Committee as certified by the auditor, together with the audit report thereon , shall be forwarded to the Bar Council by the Trustee Committee and the Bar Council may issue such directions as it deems fit to the Trustee Committee in respect thereof.

(6) The Trustee Committee shall comply with the directions issued by the Bar Council under sub-section (5).

11. Powers and duties of Secretary.--The Secretary of the Trustee Committee shall-

(a) be the chief executive authority of the Trustee Committee and responsible for carrying out its decisions;

(b) represent the Trustee Committee in all suits and proceedings for and against the Committee;

(d) operate the bank accounts of the Trustee Committee jointly with the Treasurer;

(e) convene the meetings of the Trustee Committee and prepare its minutes;

(f) attend the meetings of the Trustee Committee with all the necessary records and information;

(g) maintain such forms, registers and other records as may be prescribed from time to time and do all correspondence relating to the Trustee Committee;

(h) inspect and verify periodically the accounts and registers of the Bar Associations regarding stamps;

(i) prepare an annual statement of business transacted by the Trustee Committee during each financial year;

(j) do such other acts as may be directed by the Trustee Committee and the Bar Council.

12. Transfer of certain monies to the Fund.--The Bar Council shall pay to the Fund annually an amount equal to twenty percent of the enrolment fees realised by it.

13. Recognition and registration of Bar Association.--(1)All association of advocates known by any name functioning in any court centre may, [……] [10] apply o the Bar Council in such form as may be prescribed for recognition and registration.

(2) Every application for recognition and registration shall be accompanied by the rules or bye-laws of the association, names and addresses of the office - bearers of the association and up-to-date list of the members of the association showing the name, address, age, date of enrolment and the ordinary place of practice of each member.

(3) The Bar Council may, after such enquiry as it deems necessary, recognise the association and issue a certificate of registration in such form as may be prescribed.

["Provided that where there are more than one association in a court centre, the Bar Council shall, for reasons to be recorded in writing, register and recognise only one association for that Centre."] [11]

(4) The decision of the Bar Council regarding the recognition and registration of a Bar Association shall be final.

[13A. Cancellation of recognition and registration of Bar Association.- The Bar Council may, for reasons to be recorded in writing, cancel the recognition and registration granted to a Bar Association, if it fails to carry out any of the duties specified in section 14:

Provided that no order cancelling the recognition and registration shall be passed without giving the Bar Association an opportunity of being heard.] [12]

14. Duties of Bar Associations.--(1) Every Bar Association shall, on or before the 15th April every year, intimate to the Bar council a list of its members as on the 31st March of that year.

(2) Every Bar Association shall intimate to the Bar Council--

(a) any change of the office bearers of the association within fifteen

days from such change;

(b) any change in the membership including admissions and

readmissions within thirty days of such change;

its members within thirty days from the date of occurance thereof;

and

(d) such other matters as may be required by the Bar Council from

time to time.

15. Membership in the Fund.--(1) Every advocate practising in any court in the State and being a member of a Bar Association recognised by the State Bar Council may apply to the Trustee Committee for admission as a member of the Fund, in such form as may be prescribed.

[ (1a) A person enrolled as an advocate after retirement from the service of Central or any State Government or any public or private sector undertakings shall not be admitted as a member of the Fund if such person is eligible for or availed of any kind of retirement benefits from such Government or public or private sector undertakings.][13]

(2) On receipt of an application under sub-section(1), the Trustee Committee shall make such enquiry as it deems fit and either admit the applicant to the Fund or for reasons to be recorded in writing reject the application:

Provided that no order rejecting an application shall be passed unless the applicant has been given an opportunity of being heard.

[(3) An Advocate applying for membership to the Fund shall pay a sum of [rupees three hundred][14] towards admission fee along with the application, in such manner as may be prescribed, to the account of the Trustee Committee.] [15]

[(4) In the event of rejection of an application, the admission fee paid along with the application shall be refunded to the applicant.] [16]

[(5) Every member shall pay an annual subscription to the Fund on or before 30th June of every year at the following rates , namely :-

(i) Where the standing of the Advocate at the Bar

is less than five years two hundred rupees

(ii) Where the standing of the advocate at the Bar

is five years and more but less than ten years five hundred rupees

(iii) Where the standing of the Advocate at the Bar

is ten years and more but less than fifteen years one thousand rupees

(iv) Where the standing of the advocate at the Bar is one thousand and five hundred rupees fifteen years and more

Provided that an advocate designated as Senior Advocate under the Advocates Act,1961 (Central Act 25 of 1961) shall pay an annual subscription at the rate of three thousand rupees.][17]

(6) [ ] [18]

(7) [A member who fails to remit the annual subscription for a year on or before the 30th June of that year may, within a period of six months from the said date, remit the amount in arrears together with fine at the rate of five rupees per month or part thereof.] [19]

(8) [Where a member fails to remit the annual subscription together with fine within the period specified in sub-section (7), the Trustee Committee shall issue a notice to such member by registered post in the address as entered in the register of members of the Fund directing him to show cause, if any, why he should not be removed from the membership of the fund for non payment of the subscription. Where the defaulter, within one month from the date of such notice, furnishes sufficient cause to the satisfaction of the Trust Committee for the non payment and also remits the entire arrears of subscription together with fine till the date of payment and notice charge, the Trust Committee may abstain from taking or proceeding with any action against him in respect of such non payment, and in other cases, the Trust Committee shall remove the defaulter from the membership of the Fund.][20]

[(8A) Notwithstanding anything contained in the foregoing provisions of this section, where, on receipt of a complaint or otherwise, the Trustee Committee is satisfied after such enquiry as they may think fit, that a member has voluntarily suspended practice or ceased to practice without intimation to the Trust committee, or has become disqualified to practice under any law for the time being in force, they may, after giving such member a reasonable opportunity for showing cause against the proposed action and after considering the cause, if any, shown, remove him from the membership of the fund.][21]

(9) Every member shall, at the time of admission to the membership of the Fund make a nomination conferring on one or more persons the right to receive the amount which may be due to him from the Fund in the event of his death before the amount has been paid to him.

(10) If a member nominates more than one person under sub-section (9) he shall specify in the nomination the amount or share payable to each the nominees in such manner as to cover the whole of the amount that may be due to him.

(11) A member may at any time cancel a nomination by sending a notice in writing to the Trustee Committee, provided that a member shall along with such notice send a fresh nomination.

(12) Every member who voluntarily suspends practice or retires shall, within fifteen days of such suspension or retirement, intimate that fact to the Trustee Committee and if any member fails to do so without sufficient reasons the Trustee Committee may reduce, in accordance with such principles as may be prescribed, the amount due to that member.

16. Payment from the Fund on cessation of practice.--(1) A member of the Fund shall, on cessation of practice, be entitled to receive from out of the Fund an amount at the rate specified to the Schedule:

[Provided that a member removed under sub-section (8) or sub-section (8A) of section 15 or a member who has not continued his membership of the Fund at least for five years shall be entitled, on cessation of practice-

(a) after the commencement of Kerala Advocates' welfare Fund (Amendment) Act, 1995, to fifty percentage of the amount at the rate of three thousand and one hundred and twenty five rupees calculated for every completed year of practice; and

(b) before the commencement of the said Act, to fifty percentage of the amount at the rate specified in sub-section (1A) calculated for every completed year of practice.][22]

(1A) Notwithstanding anything contained in sub-section (1) or in any judgment, decree or order of any court, tribunal or other authority, a member on cessation of his practice on or before the 2nd day of March, 1993 shall be entitled to receive from out of the fund an amount calculated at the rate of one thousand rupees for every completed year of practice for the period upto 5th May, 1989 and at the rate of two thousand rupees for every completed year of practice for the remaining period;][23]

(2) In the event of death of a member, the amount shall be paid to his nominee or, where there is no nominee, to his legal heirs.

[(2A) Notwithstanding anything contained in sub-section (2), in the event of death of a member while in active practice and before attaining the age of fifty-five years, his nominee or where there is no such nominee his legal heirs, as the case may be, shall be entitled to receive from out of the Fund an amount at the rate specified in the Schedule or an amount of two lakh rupees whichever is higher.][24]

(3) [ ][25]

(4) [For calculating the period of completed year of practice for the purpose of payment--

(i) under sub-section (1), every two years of practice at the bar, and

(ii) under sub-section (1A), every four years of practice at the bar before the admission of a member to the Fund shall be computed as one year of practice and added on to the number of years of practice after such admission:

Provided that in computing the period of suspension of practice, either voluntary or otherwise, shall be excluded:

Provided further that in the case of a person who resumes practice after being in government service or in any other employment, the period of practice counted for retirement benefit or other service benefits therein, if any, shall not be taken into account.

Provided also that in the case of a person who does not apply to become a member of the Fund within six months, from the commencement of the Kerala advocates' welfare Fund (Amendment) Act, 1995 or within six months of his enrolment as advocate, as the case may be, the period of practice, if any, before admission of such person to the Fund shall not be taken into account.][26]

(5) In the case of a member who dies within five years of his admission to the Fund, his nominee or legal heir, as the case may be , shall be eligible to get an amount at the rate of [three thousand one hundred and twenty five rupees per year of practice , or five thousand rupees whichever is higher][27]

[(5A)Notwithstanding anything contained in this Act, where an applicant for membership in the Fund dies before he is admitted as a member of the Fund, his nominee or legal heir,as the case may be, shall be eligible to get an amount at the rate one thousand rupees per year of practice for the period commencing from the 5th day of April, 1981 and ending with the 5h day of May, 1989 [two thousand rupees per year of practice from the 6th day of May, 1989 till the date preceding the date of commencement of the Kerala Advocates Welfare Fund (Amendment) Act,1993 and thereafter at the rate of three thousand one hundred and twenty-five rupees per year of practice],[28] provided the deceased was otherwise eligible to be admitted as a member of the Fund.][29]

(6) An application for payment from the Fund shall be preferred to the Trustee Committee in such form as may be prescribed.

(7) An application received under sub-section (6) shall be disposed of by the Trustee Committee after such enquiry as it deems necessary.

17. Restriction on alienation, attachment, etc., of interest of member in the Fund.- (1) The interest of any member in the Fund, or the right of a member or his nominee or legal heirs to receive any amount from the Fund, shall not be assigned, alienated, or charged and shall not be liable to attachment under any decree or order of any court, tribunal or other authority.

(2) No creditor shall be entitled to proceed against the Fund or the interest therein of any member or his nominee or legal heirs.

Explanation.- For the purposes of this section , "creditor" includes State, or an official assignee or receiver appointed under the Insolvency Act, 1955 (2 of 1956) or any other law for the time being in force.

18. Group Life Insurance for members and other benefits.- The Bar council may, for the welfare of the members of the fund,-

(a) obtain from the Life Insurance Corporation of India policies of Group Insurance for the members of the Fund;

(b) provide for medical and educational facilities for the members of the Fund and their dependants ;

19. Meetings of Trustee Committee.- (1) The Trustee Committee shall meet at least once in three calendar months or more often if found necessary to transact business under this Act or the rules made thereunder.

(2) [Five members][30] of the Trustee Committee shall form the quorum for a meeting of the Committee.

(3) The Chairman or in his absence, a member elected shall preside over a meeting of the Trustee Committee.

(4) Any matter coming up before a meeting of the Trustee Committee shall be decided by a majority of the members present and voting at the meeting and, in the case of an equality of votes, the Chairman or the member presiding over the meeting shall have a casting vote.

20. Travelling and daily allowance to members of Trustee Committee.- The non-official members of the Trustee Committee shall be eligible to get such travelling allowance and daily allowance as are admissible to the members of the Bar Council.

21. Appeal against decisions of Trustee Committee.- (1) An appal against any decision of the Trustee Committee shall lie to the Bar Council.

(2) The appeal shall be in the prescribed form and shall be accompanied by -

(a) the order appealed against; and

(b) a receipt evidencing payment of one hundred rupees to the credit of the Bar Council in any of the branches in Kerala of the State Bank of India [or its subsidiary banks, in any Nationalised Bank or in any District Co-operative Bank or in any Scheduled Bank].[31]

(3) The appeal shall be filed within thirty days from the date of receipt of the order appealed against.

(4) The decision of the Bar Council on the appeal shall be final.

22. Printing and distribution of stamps by the Bar Council.- (1) The Bar Council shall cause to be printed and distributed welfare fund stamps of the value of [five rupees and ten rupees][32] with the Bar Council Emblem and its value inscribed thereon.

(2) [The stamps shall be of such size and colour as may be decided by the Bar Council from time to time]. [33]

(3) The custody of the stamps shall be with the Bar Council.

(4) The Bar Council shall control the distribution and sale of the stamps through Bar Associations.

(5) The Bar Council and Bar Associations shall keep proper accounts of the stamps in such form and in such manner as may be prescribed.

(6) The Bar Associations shall purchase the stamps from the Bar Council after paying the value thereof less ten per cent of such value towards incidental expenses.

(7) Every stamp affixed on vakalaths filed before any court, tribunal or other authority shall be cancelled in the manner provided for in the Kerala Court Fees and Suits Valuation Act, 1959 (10 of 1960)

23. Vakalath to bear stamps.- (1) [34][Every vakalath filed by an advocate [who is a member of the Fund ][35] shall in addition to the court fee stamps affixed thereon, be affixed with the welfare fund stamp of the value of [fifteen rupees[36]] in the case of vakalath filed before the High Court, and of the value of [ten rupees][37] in the case of vakalath filed before subordinate courts, tribunals or other authorities, and no vakalath shall be valid unless it is so stamped:

Provided that nothing contained in this sub-section shall apply in respect of any memorandum of appearance filed by an advocate appearing on behalf of the Government.