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2022 Supreme(Online)(KER) 25024
HIGH COURT OF KERALA
S.MANIKUMAR, CJ, SHAJI P.CHALY, J
ADV.JOS MECHERY – Appellant
Versus
THE STATE OF KERALA – Respondent
WP(C) NO. 15695 OF 2020
For the Appellants/Petitioners: R.T.PRADEEP, M.BINDUDAS, K.C.HARISH
For the Respondents: P.NARAYANAN, RAJIT, TEK CHAND
Courts cannot mandate legislative action, yet can enforce compliance regarding existing statutory obligations.
Headnote:(A) Constitution of India - Article 226 - Public Interest Litigation - Socio-economic crisis due to the Covid-19 pandemic - The petitioner sought interim financial assistance for Advocates and compliance with contributions to the Welfare Fund from the Government. (Paras 1 to 10)
(B) Legal Benefit Fund - The petitioner's second prayer for disbursement from the Legal Benefit Fund was noted, but legislative direction was reaffirmed to be outside judicial purview. (Paras 10 to 11)
Facts of the case:
The petitioner, an Advocate from Thrissur Bar Association, filed for a writ mandamus to mitigate the financial distress faced by advocates due to COVID-19, seeking a payment rule amendment and outstanding contributions from the Government to the Welfare Fund.
Findings of Court:
The State is directed to expedite the resolution of outstanding financial claims while reiterating legislative boundaries on court powers to mandate rule changes. The court clarified its limitations in commanding legislative action but retained authority to address administrative delays regarding the Welfare Fund.
Issues: Whether the court can direct the Bar Council to frame rules for interim payments amid pandemic distress and compel payment to the Welfare Fund.
Ratio Decidendi: The court acknowledges its inability to mandate legislative changes while ensuring the enforcement of existing obligations regarding the Advocates Welfare Fund.
Result: Writ petition disposed of.
| Table of Content |
|---|
| 1. court discusses limits of mandamus regarding rule changes. (Para 2) |
| 2. financial assistance sought for advocates. (Para 3 , 4) |
| 3. arguments presented regarding financial aid. (Para 5 , 6) |
| 4. writ petition disposition. (Para 7) |
| 5. court's clarification on existing obligations. (Para 8) |
JUDGMENT
S.MANIKUMAR, CJ.
Instant Public Interest Litigation is filed seeking the following reliefs:-
“I. To issue a writ of mandamus or any other appropriate writ order or direction to respondents to frame or amend rules to provide interim pay out upto 75% of the retirement benefit commensurating with the number of years of practice having on the credit of an advocate to mitigate the sufferings of practicing advocates on account of Covid-19 pandemic;
II. To issue a writ of mandamus or any other appropriate writ order or direction to 1st respondent to pay the entire outstanding contribution from Legal Benefit Fund towards share of Welfare Fund or Bar Council of Kerala within such time fixed by this Hon’ble Court;
III. Such other reliefs as this Hon’ble Court may deem fit and proper in the facts and circumstances of the case.”
2. When the matter came up on 03.08.2020, we passed the following order:
The petitioner, an Advocate and member of Thrissur Bar Association, has filed the instant public interest litigation for a mandamus directing the respondents to frame or amend rules to provide interim pay out upto 75% of the retirement benefit commensurating with the number of years of practice having on the credit of an advocate to mitigate the sufferings of practicing advocates on account of Covid-19 pandemic.
2. The petitioner has also sought for a mandamus directing the State of Kerala represented by the Chief Secretary, Thiruvananthapuram (respondent No.1) to pay the entire outstanding contribution from Legal Benefit Fund towards share of Welfare Fund of Bar Council of Kerala within such time fixed by this court.
3. Supporting the prayers sought for, the petitioner has contended that the State Government is bound to pay the portion of the Legal Benefit Fund to the Welfare Fund of Bar Council of Kerala to the tune of Rs.30 crores. According to the petitioner, need of the hour is that the members of the fund should be given interim pay out to the tune of 75% of the retirement benefit commensurating with the number of years of practice in the profession to meet the contingency.
4. The petitioner has further contended that the Bar Council of Tamil Nadu made an interim pay out of Rs.4,000/- to an Advocate to meet the contingency emerging out of Covid-19 pandemic. In a public interest litigation filed for a direction to the Bar Council of Tamil Nadu for interim pay out of Rs.50,000/- to an Advocate and Rs.25,000/- to an Advocate Clerk, vide order dated 16.6.2020 in W.P.No.7419 of 2020, a Division Bench of the Madras High Court directed the Bar Council of Tamil Nadu, not to be contended with the paltry payment of Rs.4,000/- to each Advocate and directed to come out with more quantum of payment by making amendment to the provisions of the Act and Rules by being alive to the situation. In the above said circumstances, the petitioner has sought for the prayers stated supra.
5. Inviting the attention of this court to the order of the Hon'ble Division Bench of Madras High Court stated supra, Mr.R.T.Pradeep, learned counsel for the petitioner made submissions in support of the prayers sought for.
6. Per contra, inviting the attention of this court to the communication of the Bar Council of India dated 28.7.2020 addressed to the President/Secretaries of all the High Court Bar Associations, Mr.P.Narayanan, learned Senior Government Pleader submitted that Bar Council of India has filed a Writ Petition No.688 of 2020 under Article 32 of the Constitution of India before the Hon'ble Supreme Court, wherein Union of India, all States and Union Territories have been arrayed as respondents with a plea to issue a direction to provide financial assistance and that during
