Introduction:

1. An advocate secures employment, leaves the profession, joins the government service, eventually retires and, then, wants to come back into the legal profession. When he left the profession, he had his name removed from the Bar Role; he received whatever contribution he had made to the Advocates' Welfare Fund, too.

2. One part of the statute mandates that a former advocate seeking re-entry should pay back with interest the amount he withdrew from the Welfare Fund. Another part of the statute prevents an ex-government employee from becoming a member of the Welfare Fund.

The Question:

3. Can the Bar Council insist that the retired government servant, to re-enroll himself as an advocate, must pay back the amount he withdrew, though he could not be a member of the Welfare Fund, in the first place?

The Controversy:

4. Petitioner Joseph is a law graduate and was a lawyer, too, between 18.10.1987 and 06.10.1995, then, practicing at Pala Bar, Kottayam District. Later, he went into Government service: Selected as a Sales Tax Officer, he joined the service and retired on 31.12.2007.

5. Soon after his joining the Government service, Joseph requested the Bar Council of Kerala to remove his name from the rolls of Advocates, which the Bar Council did. It removed his name through Ext.P1 from 06.10.1995. On his request, the Bar Council of Kerala also paid to Joseph Rs. 37,500/- being his contribution to the Advocates' Welfare Fund.

6. After his retirement, Joseph applied on 18.02.2008 for re-enrolment. The Bar Council, in turn, through Ext.P3 dated 13.03.2008, informed Joseph that he could have his re-entry if he repaid with 12% interest the entire amount he had withdrawn from the Advocates' Welfare Fund. Assailing this directive of the Bar Council, Joseph filed this writ petition.

Contentions: Petitioner’s:

7. Sri C.J. Joy, the learned counsel for the petitioner, has taken me through the statutory provisions. He has drawn my attention, especially, to Section 15 of the Kerala Advocates' Welfare Fund Act, 1980, to assert that Joseph, being a retired employee drawing pensionary benefits, is not eligible to be admitted as a member of the Fund or permitted to resume membership in the Fund. According to him, in the face of that statutory interdiction, the Bar Council's insisting through Ext.P3 that Joseph should pay with interest at 12% the entire amount he had legitimately withdrawn earlier is grossly inequitable, illegal and unsustainable.

8. As to the pre-condition that a member ought to have been aware of the consequences of his getting removed from the rolls rather than having his membership suspended, Sri Joy contends that Rule 4 (a) under Chapter V of the Bar Council of Kerala Rules, 1979 (the BCK Rules) imposing that pre-condition was introduced only in 2007, whereas Joseph had his name removed from the rolls in 1995.

9. Sri Joy, in the alternative, submitted that Rule 4(a) of Chapter V of the BCK Rules is ultra vires the Bar Council’s rule-making power under Section 28 of the Advocates Act, 1961. According to him, the delegated power exercised by the Bar Council should only be for furthering the objective of the Act, but not for impeding it by incorporating conditions that prevent a qualified person from enrolling himself as an Advocate.

Respondent’s:

10. Per contra, Sri Gracious Kuriakose, the learned Senior Counsel appearing for the Bar Council of Kerala, the sole respondent, has made elaborate submissions both about the salutary nature of the Kerala Advocates' Welfare Fund Act, 1980 (the KAWF Act) and the Bar Council of Kerala Rules (the BCK Rules). He has also drawn our attention to Rule 5(1) and (2) of the Kerala Advocates' Welfare Fund Rules (the KAWF Rules) and Rule 4(a) under Chapter V of the BCK Rules, as well as Section 16 of the KAWF Act.

11. To elaborate, the learned Senior Counsel has contended that Kerala Advocates' Welfare Fund Act, 1980, is a complete code spelling out, among other things, the enrolling advocate