Failure To Make Interim Pay-Outs To Needy Advocates, Clerks In Pandemic: Madras HC Asks BCI, BCTN & P To Disclose Complete Financials, Grants Received From State [Read Order]

The Madras High Court on Wednesday directed the BCI and Bar Council of Tamil Nadu & Puducherry to file their audited financial statements for the periods 2018-2019 and 2019-2020.

The Division Bench of Justices M. Sathya Narayanan and Anitha Sumanth required that the financials so filed must be complete, containing details of (i) income and expenditure/profit and loss (ii) balance sheet, (iii) bank accounts and balances thereof and (iv) fixed deposits.

The Court further ordered that details as regards the grants given by the State to the Bar Council of Tamil Nadu for the previous five years to also be filed by July 22.

The bench was considering a PIL moved by a Senior Advocate, seeking a direction to the respondents, Bar Council of Tamil Nadu and Puducherry (BCTNP) and the State of Tamil Nadu to pay Advocates and registered Advocate Clerks a sum of Rs.50,000/- and Rs.25,000/- respectively, as an ad interim measure, amidst the COVID pandemic. The premise upon which this prayer was made is that the aforesaid amounts, in any event, constitute only a portion of the amounts earmarked to their own benefit from out of the welfare funds held by the BC in trust, to be paid over to the advocates and advocate-clerks in certain enumerated circumstances.

Accordingly, the Court had on June 16 ordered that the state Bar Council, at the earliest, insert in its Regulations, by way of amendment, a provision for "interim pay-outs to needy advocates in these dark and difficult days". Noting that as on date, the Rules stipulate specific circumstances and exigencies upon the occurrence of which only would payment be made to the person concerned, and that there is no provision for interim payment, the bench had said, "We are thus, unfortunately, not in a position to accede to the prayer of the petitioner in this regard straight away but issue a direction to the respondents to consider our recommendation as aforesaid in the proper spirit and take positive and necessary action in that regard, at the earliest". The bench was of the strict view that the efforts of the BCTNP must be more aggressive and it cannot rest content with the payment of Rs.4000 per advocate. It had noted that in any event, no payment at all has been made to the Clerks. "While there may be no provision available as of now to provide for interim payments, the present circumstances warrant urgent and immediate amendments to the provisions of the Act/relevant Rules to enable the BCTNP to release some portion of the funds held in trust by the Welfare Fund to the advocates, as an interim measure", the bench had iterated.

On Wednesday, when the matter came up for compliance, the bench was informed that that no action whatsoever has been taken by the respondents in regard to the directions issued by us in our order dated 16.06.2020. "the Bar Council of India (BCI) as well as Bar Council of Tamil Nadu and Puducherry (BCTN&P) for their part, do not dispute that they have not taken any action pursuant to our earlier order as yet and cite the national and State lockdowns for their inaction", recorded the Court.

The bench also requested the Advocate General to ensure that virtual meetings of the Welfare Funds Trust Committees relating to both Advocates and Advocate Clerks, are conducted before the next date of hearing.

On June 16, the bench had ruled, "Though there are several situations enumerated for remittances to be effected, circumstances such as the present, warranting interim payments at the discretion of the Trustees has simply not been envisaged and thus not provided for. However, BCI regulation 41(3) permits 80% of the total sum collected by the Bar Council of India Advocates Welfare Fund Committee for the State to be utilised for the welfare of Advocates in respect of Welfare Schemes sponsored by respective State Bar Councils. Thus, though a specific and suitable amendment/provision must be made to the State Rules providing for the mechanism for payment, the BCI Regulations have envisaged a situation where the State can formulate and sponsor a welfare scheme for Advocates and utilize the amounts collected, after seeking and obtaining concurrence of the BCI in that regard"

The Court had noted that Regulation 44A(6) also provides for the State Bar Council to implement such a scheme in tandem with the BCI and subject to mandatory monitoring by the BCI- "The absence of a specific and enabling Rule in the State regulations, though an immediate barrier, can and, in our recommendation, must, be inserted by way of an amendment at the earliest, to provide for interim pay-outs to needy advocates in these dark and difficult days".

The bench had observed that the BCI Regulations provide for the collection of an amount from a member of the State Bar Council, and the deployment/crediting of the same in an Advocates welfare fund to be created by the Bar Council of India qua a specific State. Out of the amount so credited, 20% shall stand transferred to the account of the Bar Council of India every month, to form part of the corpus of the Bar Council of India Advocates Welfare Fund. Rule 41(3) provides that the remaining 80% will be retained by the State Bar Council of India Advocates Welfare Fund, to be utilized for the welfare of Advocates, being members of the respective State Bar Councils. This fund is to be administered by the Advocates

Welfare Committee for the respective State, which is to submit annual returns for due monitoring by the BCI.

On the occasion, the Court had appreciated that upon noting the position that the liabilities of the Trustees Committee constituted under the Uttar Pradesh Advocates' Welfare Fund Act exceeded the funds available, the Allahabad High Court, specifically invoking Section 5 of the U.P. Advo­cates' Welfare Fund Act, 1974, had said that the Committee could also invoke its powers to borrow funds for onward transmission to the Advocates. "The Tamil Nadu Advocates' Welfare Fund Act, 1987 also contains a similar provision in Section 10 thereof", the Madras High Court had stated on June 16.

Writ Petition No 7419 of 2020 and WMP No.8886 of 2020  
Dr.A.E.Chelliah Versus The Chairman and Members of the Bar Council of Thamizh Naadu and Puducherry, & Ors.

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