THE TAMIL NADU ADVOCATES' WELFARE FUND ACT, 1987

THE TAMIL NADU ADVOCATES' WELFARE FUND ACT, 1987

Tamil Nadu Act 49 of 1987

Received the assent of the Governor on 1987 and published in Part IV-Section 2 of the Tamil Nadu Government Gazette Extraordinary, dated the 27th May, 1987.

An Act to provide for the constitution of a Welfare Fund for the benefit of advocates on cessation of practice and for matters connected therewith or incidents thereto in the State of Tamil Nadu.

Be it enacted by the Legislative Assembly of the State of Tamil Nadu is the Thirty-eighth Year of the Republic of India as follows: -

1. Short title, extent and commencement. - (1) This Act may be called the Tamil Nadu Advocates' Welfare Fund Act, 1987.

(2) It extends to the whole of the State of Tamil Nadu.

(3) This Act, except clause (a) of sub-section (2) of section 3 and 12, shall come into force at once and clause (a) of sub-section (2) of section 3 and section 12 shall come into force on such date as the Government may, by notification, appoint.

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

(a) "advocate" means a person whose name has been entered in the roll of advocates prepared and maintained by the Bar Council under section 17 of the Advocates Act, 1961 (Central Act 25 of 1961) and who is a member of a Bar Association or an Advocates Association;

(b) "Advocates Association" means an association of advocates [recognised and registered by the Bar Council] under section 13;

(c) "Bar Association'" means an association of advocates [recognised and registered by the Bar Council] under section 13;

(d) "Bar Council" means the Bar Council of Tamil Nadu constituted under section 3 of the Advocates Act, 1961 (Central Act 25 of 1961);

(e) "cessation of practice" means removal of the name of an advocate from the State roll under section 26-A of the Advocates Act, 1961 (Central Act 25 of 1961);

(f) "dependents" means the spouse, parent and [children dependent on the member of the Fund];

(g) "Fund" means the Tamil Nadu Advocates Welfare Fund constituted under section 3;

(h) "Government" means the State Government;

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

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

(k) "stamp" means the Tamil Nadu Advocates Welfare Fund Stamp printed and distributed under section 22;

(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 Tamil Nadu Advocates Welfare Fund Trustee Committee established under section 4;

(n) "Vakalathnam" a 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;

[(o) "year" means the financial year.]

3. Advocates Welfare Fund. - (1) The Government shall constitute a fund called the Tamil Nadu 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 Advocates Association/ or other association or institution, or any advocate or other person;

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

(e) any sum borrowed under section 10;

(f) all sums collected under section 15;

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

(h) any profit or dividend or refund 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 retum-on any investment made of any part of the Fund; and

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

(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) With effect on and from such date as the Government may, by notification, appoint in this behalf, there shall be established a Committee by the name the Tamil Nadu Advocates Welfare Fund Trustee Committee.

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

(3) The Trustee Committee shall consist of-

(a) the Advocate General of the State of Tamil Nadu, who shall be the Chairman of the Trustee Committee, Ex-Officio;

(b) the Secretary to the Government in Law Department, Ex-Officio;

(c) the Secretary to the Government in Home Department, Ex-Officio;

(d) the Government Pleader or the Public Prosecutor, as may be nominated by the Government;

(e) three members of the Bar Council nominated by it for a period of three years; and

(f) the Secretary of the Bar Council who shall be the Secretary of the Trustee Committee, Ex-Officio.

5. Disqualification and removal of nominated member of Trustee Committee. - (1) A person shall be disqualified for being nominated under clause (e) of subsection (3) of section 4 as, and for being, a member of the Trustee Committee, if he-

(a) becomes of unsound mind; or

(b) is adjudged insolvent; or

(c) is absent without leave of the Trustee Committee for more than three consecutive meetings of the Committee:

Provided that the member ceasing to hold office under this clause may be restored by the Trustee Committee, if such member makes an application for the condonation of the absence; or

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

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

(f) ceases to practise as an advocate.

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

Provided that no order removing any member shall be passed unless the member and the Bar Council 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 (e) of sub-section (3) of section 4 may resign his office by giving three months notice in writing to the Bar Council and on such resignation being accepted by the Bar Council, such member shall vacate his office.

(2) A casual vacancy in the office of a member who has resigned may be filled up, as soon as may be, by the Bar Council, and a member so nominated shall hold office only so long as the member in whose place he is nominated would have been entitled to hold office if the vacancy did not occur.

7. Act of Trustee Committee not to be invalidated by vacancy, defect, etc. - No act done or no proceeding taken by or under this Act by the Trustee Committee shall be invalidated merely by reason of-

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

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

(c) any defect or irregularity in such act or proceeding not affecting the merits of the case.

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 thereunder,-

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

(b) receive applications for admission or re-admission to the Fund, and dispose of such applications within ninety days from the date of receipt thereof;

(c) receive applications from the members of the Fund, their nominees or legal heirs, as the case may be, for payment out of the Fund, conduct such enquiry as it deems necessary and dispose of the applications [x x x];

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

(e) pay to the applicants amounts at the rates specified in the Schedule;

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

(g) communicate to the applicants [by post] under certificate of posting the decisions of the Trustee Committee in respect of applications for admission or re-admission 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 thereunder.

[9A. Power to give direction. - The Bar Council or the Trustee Committee may give to the Advocates Association or Bar Association such directions as, in its opinion, are necessary or expedient for carrying out the purposes of this Act.]

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 accounts 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 and the Government 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 Trustee Committee;

(c) authenticate by his signature all decisions and instructions of the Trustee Committee;

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

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

[(hh) inspect and verify periodically the accounts and registers of the Advocates Association and Bar Association regarding the sale of stamps and other matters connected therewith;] and

(i) 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 per cent of the enrolment fees realised by it.

13. [Recognition and registration by Bar Council] of any association of Advocates. - [(1)(a) Any association of advocates, known by any name, functioning in any part of the State may, before a date to be notified, or before such extended date as may be notified, by the Bar Council in this behalf, apply for recognition and registration to the Bar Council, in such form as may be prescribed.]

(b) Any association of advocates constituted after the date of publication of the Tamil Nadu Advocates Welfare Fund (Amendment) Act, 1990 (Tamil Nadu Act 20 of 1990), in the Tamil Nadu Government Gazette, may, apply for recognition and registration to the Bar Council in such form as may be prescribed].

(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 an up to date list of the members of the association knowing 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.

(4) The decision of the Bar Council under sub-section (3) shall be final.

Explanation. - [Omitted by the Tamil Nadu Advocates Welfare Fund (Amendment) Act, 1990 (Tamil Nadu Act 20 of 1990).]

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

(2) Every Bar Association and Advocates Association shall inform the Bar Council of-

(a) any change in the membership including admissions and re-admissions within thirty days of such change;

(b) the death or other cessation of practice or voluntary suspension of practice of any of its members within thirty days from the date of occurrence thereof; and

(c) such other matters as may be required by the Bar Council, from time to time.

[(3) Every Advocates Association and every Bar Association shall carry out the directions given by the Bar Council or the Trustee Committee, as the case may be.]

[14A. Cancellation of recognition and registration of Advocates Association and Bar Association. - Where the Advocates Association or the Bar Association fails to discharge any of the duties imposed under section 14, or fails to carry out the direction given under section 9-A, the Bar Council may, for reasons to be recorded, by order, cancel the recognition and registration of such Association:

Provided that no order canceling the recognition and registration of any Advocates Association or Bar Association shall be passed unless the Advocates Association or the Bar Association has been given a reasonable opportunity of being heard.]

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

(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) Every applicant shall pay an application fee of [one thousand rupees] along with the application to the account of the Trustee Committee.

[(4) Every member of the Fund shall pay an annual subscription to the Fund on or before the [30th June] of every year or a life-time subscription, as the case may be, at the following rates, namely:-

(5) Any member of the Fund who fails to remit the annual subscription for any year before the [30th June] of that year shall be liable to be removed from the membership in the Fund.

(6) A person removed from the membership in the Fund under sub-section (5) may be re-admitted to the Fund on payment of the arrears with the re-admission fee of [fifty rupees] within six months from the date of removal.

(7) Every member of the Fund shall, at the time of admission to the membership to the Fund, make nomination conferring on one or more of his dependants the right to receive, in the event of his death, any amount payable to the member under this Act.

(8) If a member of the Fund nominates more than one person under sub-section (7), he shall specify in the nomination the amount or share payable to each of the nominees.

(9) A member of the Fund may, at any time, cancel a nomination by sending a notice in writing to the Trustee Committee, provided that he sends along with such notice a fresh nomination together with a registration fee of [fifty rupees].

(10) Every member of the Fund who has requested the removal of his name whom the State roll under section 26-A of the Advocates Act, 1961 (Central Act 25 of 1961), or who voluntarily suspends practice shall, within fifteen days of such request or suspension, intimate that fact to the Trustee Committee and if any member of the Fund fails to do so without sufficient reasons, the Trustee Committee may reduce, in accordance with such principles as may be prescribed, the amount payable to that member under this Act.

16. 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 the Schedule:

Provided that where the Trustee Committee is satisfied that a member of the Fund ceases to practice within a period of five years from the date of his admission as a member of the Fund as a result of [any permanent physical or mental disability], the Trustee Committee may pay the member of the Fund an amount at the rate specified in the Schedule.

[Explanation I. - For the purpose of calculating the number of years of standing of a member of the Fund for the purpose of this sub-section, every four years of practice as an advocate before the admission of a member to the Fund shall be counted as one year's standing and every year of practice over and above four years before such admission shall be counted equivalent to three months' standing and the total number of years of standing so counted shall be added to the number of years of practice after such admission.

Explanation II. - The period during which a member of the Fund remained under suspension shall not be considered for the purpose of counting the years of standing.]

[(1-A) Notwithstanding anything contained in sub-section (1), every member of the Fund who has completed or completes twenty-five years of practice as an advocate on the date of coming into force of the Tamil Nadu Advocates Welfare Fund (Amendment) Act, 1995 shall, on completion of five years as a member of the Fund and on his cessation of practice, be paid a lump sum amount of [one lakh rupees.]

(2) Where a member of the Fund dies before receiving the amount payable under sub-section (1), his nominee or legal heir, as the case may be, shall be paid the amount payable to the deceased member of the Fund.

[(3) Any person removed from the membership in the Fund under subsection (5) of section 15 and re-admitted to the Fund under sub-section (6) of that section shall not be entitled to payment of any amount from the Fund under this Act during the period between the date of his removal from the membership in the Fund and the date of re-admission.]

[(4) Any member who is suspended by the Bar Council for misconduct under the Advocates Act, 1961 (Central Act 25 of 1961) shall not be entitled to payment of any amount from the Fund under this Act, for the period of such suspension.]

[(5) Where a member of the Fund dies, his nominee or legal heir, as the case maybe, shall be paid an amount of [five lakh and twenty-five thousand rupees] :

Provided that if such member who, before his death, was in receipt of pension, gratuity or other terminal benefits from any State Government or Central Government or other authority or employer, his nominee or legal heir, as the case may be, shall not be entitled for the payment of the amount of [five lakh and twenty-five thousand rupees] under this sub-section.]

[(6) Every member or his nominee or legal heir, as the case may be, shall apply for payment of the Fund, to the Trustee Committee, in such form, as may be prescribed.]

[(7) Where a person, who has been paid an amount under sub-section (1) or (1-A) has been admitted as an advocate again under section 24 of the Advocates Act, 1961 (Central Act 25 of 1961), desires to be re-admitted to the Fund shall, on an application made in the same manner as specified in section 15 and on repayment of the amount received by him under sub-section (1) or (1-A), as the case may be, with interest calculated at the rate of twelve per cent per annum, be re-admitted to the Fund. He shall not be entitled to payment of any amount from the Fund under this Act, during the period between the date of his cessation of practice and the date of re-admission.]

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 of the Fund 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 the State, or an official assignee or official receiver appointed under the law relating to insolvency 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 on the life of the members of the Fund;

(b) provide in such manner as may be prescribed for medical and educational facilities for the members of the Fund and their dependants; and

(c) provide for such other benefits as may be prescribed

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

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

(3) The Chairman or, in his absence, a member elected from among the members present, 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. Traveling and daily allowances to members of Trustee Committee. - The non-official members of the Trustee Committee shall be entitled to be paid such traveling allowance and daily allowance as are admissible to the members of the Bar Council.

21. Appeal against decision of Trustee Committee. - (1) An appeal 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) a copy of the order appealed against; and

(b) a receipt evidencing payment of twenty-five rupees to the credit of the Bar Council in any of the branches of the State Bank of India in Tamil Nadu.

(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 Advocates Welfare Fund Stamps by Bar Council. - [(1) The Bar Council shall cause to be printed and distributed welfare fund stamps of the value of [ten rupees] inscribed "Tamil Nadu Advocates Welfare Fund Stamp" in such size, design and colour, as may be decided by the Bar Council.]

(2) [Omitted by the Tamil Nadu Act 43 of 1995]

(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 the Bar Associations and Advocates Associations.

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

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

23. Vakalathnama to bear stamps. - [(1) Every vakalathnama filed before any Court or tribunal or other authority shall be affixed with the [stamp to the value] of [thirty rupees] in addition to the Court-fee stamps, if any, and no vakalathnama shall be valid unless it is so stamped:

Provided that this sub-section shall not apply to any vakalathnama filed on behalf of the Central or State Government.]

(2) The value of the stamp shall neither be costs in a case nor be collected in any event from the client.

(3) Any contravention of the provisions of sub-section (1) or sub-section (2) by any member of the Fund shall disentitle him either in whole or in part to the benefits of the Fund and the Trustee Committee shall report such instances to the Bar Council for appropriate action.

(4) Every stamp affixed on vakalathnama filed before any Court, Tribunal or other authority shall be canceled in such manner as may be prescribed.

24. Protection of action taken in good faith. - (1) No suit, prosecution or other legal proceedings shall lie against any person for anything which is in good faith done or intended to be done in pursuance of this Act or any rule made thereunder.

(2) No suit or other legal proceeding shall lie against the Government or the Trustee Committee or the Bar Council for any damage caused or likely to be caused by anything which is in good faith done or intended to be done in pursuance of this Act or any rule made thereunder.

25. Bar of jurisdiction of Civil Court. - No Civil Court shall have jurisdiction to settle, decide or deal with any question or to determine any matter which is by or under this Act required to be settled, decided or dealt with or to be determined by the Trustee Committee or the Bar Council.

26. Power to summon witnesses and take evidence. - The Trustee Committee and the Bar Council shall, for the purpose of any enquiry under this Act, have the same powers as are vested in a Civil Court while trying a suit under the Code of Civil Procedure, 1908 (Central Act V of 1908) in respect of the following matters, namely:-

(a) enforcing the attendance of any person or examining him on oath;

(b) requiring the discovery and production of documents;

(c) receiving evidence on affidavit;

(d) issuing commissions for the examination of witnesses.

27. Power to make rules. - The Bar Council may, with the previous approval of the Government, by notification, make rules for the purpose of carrying into effect the provisions of this Act.

[28. Power to amend Schedule. - (1) The Government may, by notification, on the recommendation of the Trustee Committee and having due regard to the liability' of the amount in the Fund, amend the rates specified in the Schedule.

(2) Every notification issued under this section shall, as soon as possible, after it is issued, be placed on the table of the Legislative Assembly and if, before the expiry of the session in which it is so placed or the next session the Assembly takes any modification in any such notification or the Assembly decides that the notification should not be issued, the notification shall thereafter have effect only such modified form or be of no effect, as the case may be, so however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under the notification.]

[Schedule]

[See Sections 9(2)(e), 16 and 28]

Explanation. - In calculating the total number of years of membership of the Fund, any fraction of a year of membership of the Fund shall be construed as a full completed year.