Full Judgment Text
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 23.08.2018
+ W.P.(C) 3574/2014
O.P. FAIZI ..... Petitioner
Through: Mr. S.N. Bhardwaj, Adv.
versus
UNION OF INDIA & ORS ..... Respondents
Through: Ms. Suparna Srivastava, Standing
Counsel for UOI.
Mr. Ramesh Singh, Standing Counsel
for GNCTD.
CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE V. KAMESWAR RAO
RAJENDRA MENON, CHIEF JUSTICE (ORAL):
1. Seeking a writ of mandamus, petitioner, a practising Advocate and an
elected member of the Bar Council of Delhi has filed this petition in public
interest seeking the following two reliefs:
“ (i) Issue a writ of Mandamus, or any other appropriate writ,
direction or order thereby directing the Respondents Nos.1 and
2 to take a considered and conscious decision for amending
Schedule-I to the Advocates’ Welfare Fund Act, 2001, for
upward revision and review of the quantum of payment to which
Advocate Members of the Welfare Fund are entitled on
cessation of practice;
(ii) To issue a Writ of mandamus, or any other appropriate
writ, direction or order thereby directing the Respondents Nos.1
W.P.(C) 3574/2014 Page 1 of 9
and 2 to appropriate sufficient and reasonable amount of grant
every year as their contribution to the Advocates’ Welfare Fund
under Section 3(d) of the Advocates’ Welfare Fund Act, 2001, in
the light of the fact that vide an order passed on 25.02.2011, the
State of Tamil Nadu has decided to sanction annual grant upto
Rs.2.50 crores for the Tamil Nadu Advocates’ Welfare Fund; ”
2. The case of the petitioner is that the Advocates’ Welfare Fund Act,
2001 was enacted by the Central Government inter alia providing for
constituting a welfare fund for the benefit of Advocates. It is a Central Act
and by virtue of Section 38 the same applies to States in which there is no
special or separate enactment by the concerned State Government with
regard to the subject in question. Schedule II of the Central Act details the
particulars of various State enactments already covering the field. As per
the enactments indicated in Schedule II, the Government of NCT of Delhi
has not been mentioned therein and therefore it can be safely construed as
stated by the petitioner that there is no enactment on the subject in question
by the Government of NCT of Delhi and consequently the Central Act of
2001 applies to the Government of NCT of Delhi. Section 2(b) of the Act of
2001 defines the Appropriate Government and according to this the State
Government in the case of an Advocate admitted on the roll of the Bar
Council of a particular State would be the Appropriate Government.
Further, cessation of practice is defined in Section 2(c) to mean removal of
an Advocate’s name from the State roll by virtue of the eventualities
contemplated under Section 26(A) of the Advocates Act, 1961 (hereafter
referred to as ‘the Act’) happening. Section 26(A) of the Act further
provides for removal from the roll by the State Bar Council the name of an
Advocate who is dead or from whom a request is received to that effect.
W.P.(C) 3574/2014 Page 2 of 9
That being so, it is canvassed that cessation of practice includes not only
removal from the rolls on account of death of the Advocate concerned but
also eventually cessation of practice by an Advocate enrolled with the State
Bar Council.
3. Section 3 of the Central Act, namely, the Advocates’ Welfare Fund
Act, 2001 mandates every Appropriate Government to make appropriation
of funds in its budget for giving grant to the Advocates’ Welfare Fund.
4. Further, the fund created under the Central Act is managed by the
Trust Committee called the Advocates’ Welfare and Trust Committee. For
the present, the Additional Solicitor General of India is the Chairperson of
the Committee and the Secretary of the Bar Council of India is the ex officio
Secretary.
5. Section 21 of the Central Act deals with the issue of payment to be
made on cessation of practice by an Advocate and for the sake of brevity the
benefit to be granted under Section 21 of the Act as detailed therein reads as
under:
“ 21. Payment of amount on cessation of practice.
(1) Every advocate who has been a member of the Fund for a
period of not less than five years shall, on his cessation of
practice, be paid an amount at the rate specified in Schedule I
Provided that where the Trustee Committee is satisfied that
member of the Fund ceases to practice within a period of five
years from the date of his admission as a member of such Fund
as a result of any permanent disability, the Trustee Committee
may pay such member an amount at the rate specified in
Schedule I.
(2) Where a member of the Fund dies before receiving the
amount payable under sub-section (1), his nominee or legal
W.P.(C) 3574/2014 Page 3 of 9
heir, as the case may be, shall be paid the amount payable to
the deceased member of the Fund. ”
6. From the aforesaid provision and the rate of payment specified in
Schedule I to the Act, it is clear that the financial assistance to be given to an
Advocate member of the fund on cessation of practice ranges from ` 1,000/-
on completion of one year practice to ` 30,000/- after completing 30 years of
practice. Further, Section 32 of the Central Act empowers the Appropriate
Government to amend the rates specified in the Schedule.
7. Grievance of the petitioner before us in this petition is that the benefit
accruing to an Advocate member as is specified in Schedule I is too less in
comparison to what is paid by various State Governments under the Welfare
Fund. It is pointed out that under the Rajasthan Advocates’ Welfare Fund
Act, 1987, the maximum amount payable to an Advocate is ` 4.25 lakhs.
Similarly, under the Kerala Advocates’ Welfare Fund Act, 1980, an
Advocate on completing 32 years of practice is entitled to an amount of
` 3 lakhs. It is further averred that the High Court of Patna and Haryana at
Chandigarh in Civil Writ Petition (PIL) No. 12680/2012 H.C. Arora v.
Union of India has issued certain direction to the Government of Chandigarh
and Haryana with regard to enhancement of payment under the Welfare
Fund Act and it is said that the Government of Haryana has enhanced the
welfare fund to ` 4,60,000/- on cessation of practice after completing 40
years of practice. Further, an order passed by the Punjab and Haryana High
Court on 11.07.2013 in Civil Writ Petition (PIL) No.12680/2012 is brought
on record as Annexure IV to say that the following directions have been
issued by the High Court of Punjab and Haryana and based on the same
enhancement has been made in the State in question. The directions issued
W.P.(C) 3574/2014 Page 4 of 9
by the High Court of Punjab and Haryana at Chandigarh on 11.07.2013
reads as under:
“ The petitioner, who appears in person, submits that
suitable amendments have been incorporated by the Haryana
Government, increasing the amount to Rs.4,60,000/- on
cessation of practice after completing 40 years in the
profession. He submits that qua Punjab the proposal has
already been sent with respect to medical claims and death of a
member which we are informed is pending consideration before
the State of Punjab.
Looking into the inflation which has caused steep
increase in the cost of living, in the absence of social security
system, we consider it appropriate to direct that the State of
Punjab would look into this aspect and endeavour to at least
bring it on parity with the State of Haryana.
The decision may be taken within a maximum period of
one month from today.
We expect the Union Territory of Chandigarh to act on
parity with the aforesaid and take the necessary steps within the
same period of time.
Petition accordingly stands disposed of. ”
8. Accordingly, in sum and substance it is the case of the petitioner that
the amount paid to an Advocate enrolled with the Bar Council of Delhi on
cessation of practice is very much on the lower side and now with various
factors like cost of living, etc. having increased, the amount needs
enhancement and therefore the directions as prayed for. It is further stated
that in the NCT of Delhi a one-time payment towards the corpus of ` 1 crore
is granted whereas in other States the amount of corpus is paid every year
and the amount ranges from 1 crore to 2.5 crores in various States.
` `
Accordingly, contending that there is great disparity in the matter of
W.P.(C) 3574/2014 Page 5 of 9
granting benefit to Advocates ceasing practice in the State of Delhi, the
aforesaid prayers are made.
9. Learned counsel appearing for the petitioner took us through various
provisions of the statute, orders passed and the system followed in various
States as are indicated hereinabove to canvass his contentions.
10. Respondent – Union of India represented by learned counsel
Ms. Suparna Srivastava invited our attention to a Gazette notification
Annexure R-1/1 dated 25.10.2001 issued by the Ministry of Home Affairs in
exercise of the powers under the statute to say that as far as the Appropriate
Government for discharging liabilities and carrying out various activities
under the Central Act is concerned, it is the State Government, namely, the
Government of NCT of Delhi and the Central Government has no role to
play in the matter. As far as the Government of NCT of Delhi is concerned,
they filed a short affidavit and by referring to the provisions of Rule 22 of
the Delhi Advocates’ Welfare Rules, 2001, point out that certain amounts
are being collected under the aforesaid Rule and as a one-time contribution
` 1 crore towards the Advocates’ Welfare Fund was being contributed by the
Government of NCT of Delhi. They only narrate the factual scenario in the
backdrop of the statutory provision but on merit with regard to the claim
made the entire counter affidavit is silent.
11. We have taken note of the contentions advanced, the statutory
provisions as are detailed hereinabove and the manner in which the welfare
fund is being operated in various States as has been brought to our notice.
As far as the NCT of Delhi is concerned, it is clear that the amount payable
is as detailed in Schedule I available at Page 27 of the paper book which
goes to show that after cessation of practice, on completing one year the
W.P.(C) 3574/2014 Page 6 of 9
amount paid is ` 1,000/- which becomes ` 30,000/- if the cessation of practice
takes place after 30 years. As far as the State of Rajasthan is concerned
under the Rajasthan Advocates’ Welfare Fund Act, 1987, after cessation of
practice on completing 5 years membership the amount paid is 15,000/-
`
which gradually increases with the number of years of practice put by the
Advocate prior to cessation of practice and if cessation of practice takes
place after 40 years, the amount payable is ` 4,25,000/-. Similarly, with
respect to the State of Kerala, the amount payable on 5 years practice is
` 46,875/- and after 32 years of practice it is ` 3 lakhs. We are informed that
in Haryana also, the amount has been increased and it is about 4,60,000/-
`
on cessation of practice after completing 40 years of practice.
12. From the aforesaid, it is clear that there is disparity in the matter of
payment of benefit in various States and as indicated hereinabove in the
States of Rajasthan, Kerala, Tamil Nadu and Haryana, examples of which
have been placed on record, the amount payable on cessation of practice is
on a higher side as compared to Delhi where the maximum amount payable
after 30 years of practice is only ` 30,000/- whereas it is ` 3 lakhs in the State
of Kerala and about 4 lakhs in the State of Rajasthan and Haryana. That
`
being so, prima facie we are convinced that a case of disparity is made out
by the petitioners and, if that be so, as this Court exercising its jurisdiction
under Article 226 of the Constitution of India cannot issue a mandamus to
the State Government to fix the amount at a particular rate but at least taking
note of the disparity can grant the benefit or relief as prayed for vide Para
No.1 which, in fact, is the relief granted by the learned High Court of Punjab
and Haryana as is reproduced hereinabove.
W.P.(C) 3574/2014 Page 7 of 9
13. As was done by the Punjab and Haryana High Court, we are of the
considered view that looking to the inflation, the steep increase in the cost of
living, the fact about absence of social security to the Advocates, endeavour
is required to be made in the NCT of Delhi also for enhancement of the
benefit under the scheme and a serious effort to bring it at par at least with
some States like Haryana or Rajasthan, is required to be undertaken and
there is no reason why such a direction should not be granted. Similarly,
with regard to Prayer No.2, we find that only a one-time payment of
` 1 crore was made for creating a corpus under the fund whereas in other
States like Tamil Nadu under the Tamil Nadu Advocates’ Welfare Fund, as
is evident from Annexure P5 an annual grant of ` 2.5 crores is made towards
the corpus for managing the fund. This also requires reconsideration by the
Government of NCT of Delhi and either the corpus should be increased or
an annual grant made on an amount as may be determined which is
reasonable and which fulfils the mandate and the purpose for which the
Central Act and the fund was created.
14. As it is the Government which is required to consider various aspects
of the matter and take an administrative decision, we deem it appropriate to
allow this petition to the extent of issuing a mandamus to the respondent
No.2 and direct them to consider the grievance of the petitioners and take a
conscious decision after adverting to various facts as are detailed
hereinabove including the benefit extended under the Act in the States of
Rajasthan, Kerala, Tamil Nadu and Haryana and consider taking a decision
for upward revision and make a review of the quantum by payment made to
the Advocates under the welfare fund. Similarly, an appropriate decision be
also taken for considering enhancement of the corpus by taking note of the
W.P.(C) 3574/2014 Page 8 of 9
annual grants being made in various States like Tamil Nadu and in this
respect also which is the prayer made vide prayer clause (2), a conscious
decision as directed hereinabove be taken.
15. Accordingly, we direct that within a period of two months from the
date of receipt of a copy of this order, the Competent Authority in the
Government of NCT of Delhi shall take a decision with regard to the issues
in question and if required shall consider consulting the Bar Council of
Delhi and other stakeholders, evaluate various issues relevant to the subject
in question, approach the issue with a pragmatic view, and, take a decision
and communicate it to all concerned. While taking the decision, the benefits
granted in various States and other parameters required should also be taken
note of and after evaluating all aspects of the matter the decision should be
taken. Needless to emphasize that in case the petitioners or anybody has any
grievance with regard to the decision as may be taken, they are at liberty to
take recourse to such remedy as may be available under law for ventilating
their grievance.
With the aforesaid, we dispose of the writ petition.
CHIEF JUSTICE
V. KAMESWAR RAO, J
AUGUST 23, 2018
kks
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