Dismissed

M.V. Muraleedharan Nair v. Kerala Advocate Clerks' Welfare Fund Committee

Kerala HC4 Dec 2017WP(C)/1923/2017

Case brief

AI extract

What is this about?

In a writ petition filed by an advocates' clerk, the High Court held that the complaint lacked specific details regarding irregularities. Consequently, it directed the Committee to consider a fresh representation containing particulars of alleged irregularities in the members' list or record maintenance.

What did the court decide?

Petitioner directed to prefer a fresh representation with specific particulars of irregularities in the members list or record maintenance.

M.V. Muraleedharan Nair Vs Kerala Advocate Clerks'… — Service and Employment | Kerala HC (2017)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN

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MONDAY, THE 4TH DAY OF DECEMBER 2017/13TH AGRAHAYANA, 1939

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WP(C).No. 1923 of 2017 (M)

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PETITIONER:

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M.V. MURALEEDHARAN NAIR

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AGED 53 YEARS, SON OF VASUDEVAN POTTY, 'ANANDAM', MURIYAMANGALAM, MAMALA P.O., ERNAKULAM, PINCODE-682305.

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BY ADVS.SRI.BOBY MATHEW SMT.K.MEERA

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RESPONDENTS:

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KERALA ADVOCATE CLERKS' WELFARE FUND COMMITTEE T.C.26/580(1), SERA 24, 'MANI MANDIRAM', BEHIND PRESS CLUB, THIRUVANANTHAPURAM, PINCODE-695001, REPRESENTED BY ITS SECRETARY.

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Addl. 2. KERALA ADVOCATE CLERKS' ASSOCIATION ERNAKULAM DISTRICT COURT UNIT (KACWFC 45/2004), ERNAKULAM, KOCHI-682011, REPRESENTED BY ITS SECRETARY.

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R1 BY ADV. SRI.P.R.SREEJITH R1 BY ADV. SRI.K.V.MANOJ KUMAR R1 BY ADV. SRI.M.PROMODH KUMAR R2 BY ADV. SRI.P.K.RAVISANKAR

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 26-10-2017, THE COURT ON 04-12-2017 DELIVERED THE FOLLOWING:

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WP(C).No. 1923 of 2017 (M)

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APPENDIX

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PETITIONERS' EXHIBITS

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-------- EXHIBIT	--- P1	------------ TRUE COPY OF THE COMPLAINT DATED 02-11-2015 GIVEN BY CLERK N.B.RADHAKRISHNAN OF THE ERNAKULAM DISTRICT COURT UNIT TO THE SECRETARY OF THE SAID UNIT.
EXHIBIT	P2	TRUE COPY OF THE COMPLAINT DATED 27-11-2015 SUBMITTED BY THE PETITIONER BEFORE THE CHAIRMAN OF THE RESPONDENT.
EXHIBIT	P3	TRUE COPY OF THE COMPLAINT DATED 11-12-2015 SUBMITTED BEFORE THE DISTRICT JUDGE BY ADV. DINESH R.SHENOY AGAINST THE ATTACK ON HIS CLERK IN THE COURT BUILDING.
EXHIBIT	P4	TRUE COPY OF THE INSPECTION REPORT DATED 06-01-2016 OF THE RESPONDENT IN REGARD TO THE INSPECTION DATED 29- 12-2015 AT THE ERNAKULAM DISTRICT COURT UNIT OF THE KERALA ADVOCATE CLERK'S ASSOCIATION.
EXHIBIT	P5	TRUE COPY OF THE COMMUNICATION DATED 13-10-2016 SUSPENDING THE PETITIONER FROM THE CLERKS ASSOCIATION, RECEIVED BY THE PETITIONER ON 22-10-2016.
EXHIBIT	P6	TRUE COPY OF THE REPORT DATED 02-03-2016 OF THE SECRETARY OF THE ERNAKULAM DISTRICT UNIT OF THE CLERKS' ASSOCIATION TO THE STATE COMMITTEE.
EXHIBIT	P7	TRUE COPY OF THE COMPLAINT DATED 04-10-2016, MADE BY THE ERNAKULAM DISTRICT UNIT OF THE CLERKS' ASSOCIATION AGAINST THE PETITIONER WHICH RESULTED IN EXT. P5 SUSPENSION.
EXHIBIT	P8	TRUE COPY OF THE MINUTES DATED 13-10-2016 OF THE MEETING DATED 08-10-2016 OF THE STATE COMMITTEE OF THE CLERKS' ASSOCIATION DECIDING TO SUSPEND THE PETITIONER.
EXHIBIT	P9	TRUE COPY OF THE APPLICATION DATED 31-10-2016 OF THE PETITIONER MADE UNDER THE RIGHT TO INFORMATION ACT TO THE RESPONDENT.
EXHIBIT	P10	TRUE COPY OF THE COMMUNICATION DATED 30-11-2016 ISSUED TO THE PETITIONER BY THE PUBLIC INFORMATION OFFICER OF THE RESPONDENT IN REPLY TO EXT. P9.
EXHIBIT	P11	TRUE COPY OF THE CIRCULAR DATED 07.02.2014 ISSUED BY THE 1ST RESPONDENT.
EXHIBIT	P12	TRUE COPY OF THE COUNTER AFFIDAVIT DATED 3.4.2014 FILED BY THE 2ND RESPONDENT BEFORE THIS HON'BLE COURT IN WPC 8018/14.
RESPONDE --------	NTS ---	' EXHIBITS -----------
R2(A):		TRUE COPY OF THE REPLY DATED 23.7.2016 ISSUED BY THE 1ST RESPONDENT.
R2(B):		TRUE COPY OF THE ORDER DATED 21.11.2016 IN IA 7867/16 IN OS NO.1382/16 ON THE FILE OF THE 1ST ADDITIONAL MUNSIFF'S COURT, ERNAKULAM. /TRUE COPY/- PA TO JUDGE

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ANU SIVARAMAN, J.

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= = = = = = = = = = = = = = = W.P.(C).No.1923 of 2017

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= = = = = = = = = = = = = = = Dated this the 4^th day of December, 2017

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JUDGMENT

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1.The prayers in this writ petition are as follows:-

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a) Issue a writ of mandamus or any other appropriate Writ, Order or Direction commanding the respondent to conduct a detailed inquiry into Ext.P2 complaint and submit the report thereof before this Hon'ble Court prior to taking earnest and strict action.

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b) Issue such other appropriate orders and directions as deemed fit and proper by this Hon'ble in the facts and circumstances of the case.”

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2.Petitioner is an Advocates' clerk and a permanent member of the 2^nd respondent Association. It is submitted that the members, who are Advocates' Clerks, are eligible for membership in the Welfare Fund managed by the 1^st respondent. It is stated that the 1^st respondent had issued instructions regarding the marking of attendance by its members. Certain disputes had arisen with regard to the manner of marking attendance by certain members of the Association and the petitioner had occasion to prefer Exhibit P3 complaint before the 1^st respondent with regard to the

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W.P.(C).No1923/17

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same. It is stated that no action had been taken by the 1^st respondent to consider the complaints raised by the petitioner in terms of Exhibit P2. However, a routine enquiry was conducted by the 1^st respondent in the premises of the 2^nd respondent. It is stated that a report regarding an inspection conducted on 29.12.2015 was submitted by the officers of the 2^nd respondent which is produced as Exhibit P4. It is stated that the petitioner had been suspended from the 2^nd respondent-Association and the said proceedings are pending before the Civil Court. The petitioner's contention in this writ petition is to the effect that no steps have been taken to consider his complaint which has been ventilated by Exhibit P2 representation.

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3.A counter affidavit has been filed by the 1^st respondent contending as follows:-

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“On perusing the Exhibit P4 report, it is learnt that, the inspection team has sought explanation within 15 days against 10 members, as they did not sign the attendance register. Also they had inspected all other registers, documents and gave necessary directions in that regard to the Unit Secretary, Ernakulam District Court Unit for specific explanations and for compliance and to report to the office of Kerala Advocate's Clerk Welfare Fund

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W.P.(C).No1923/17

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Committee. As the inspection team found no specific irregularity in the functioning of the Association, Ernakulam District Court Unit and also necessary directions were already given to the Unit Secretary for compliance and to report, this Respondent had closed the petitioner's Exhibit P2 complaint.”

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4.The 2^nd respondent has filed a counter affidavit contending that Exhibit P4 report had been submitted after an inspection conducted on the basis of Exhibit P2 complaint preferred by the petitioner. It is further stated that the issue of action against the petitioner for having submitted complaints against the Association is pending in the civil court and that the present writ petition is only an attempt to get over the charges of grave misconduct and indiscipline levelled against the petitioner. It is contended by the learned counsel appearing for the 2^nd respondent that the complaint preferred by the petitioner does not disclose the existence of any public or statutory duty on the 1^st respondent and therefore this Court cannot issue a writ of mandamus directing the consideration of the complaint in the absence of any statutory obligation to do so. The learned counsel relied on the decisions of the Apex Court in Malliah v.Bai Reddy [1988 KHC 686], Oriental bank of Commerce v.Sunder Lal Jain and Anr. [AIR 2008

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W.P.(C).No1923/17

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SC 1339] in support of the contention that it would only be a statutory duty that could be enforced by issuance of a writ of mandamus.

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I have considered the contentions advanced. The Kerala Advocates' Clerks Welfare Fund Act, 2003 provides for the constitution of a Welfare Fund and the establishment of the Welfare Fund Committee. Section 11 of the Act provides for the functions of the Committee which is principally to administer the fund and to control and supervise the Kerala Advocates' Clerks Welfare Fund Scheme, 1985. Section 16 provides that every Advocates Clerks Association shall intimate to the Committee a list of its members as on 31^st of March of that year. Section 17 provides for membership of the Fund. Sub-section 11 of Section 17 reads as follows:-

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“(11).Where on receipt of a complaint or otherwise, the Committee has reason to believe that an Advocates' Clerk secured admission as a member of the Fund by misrepresentation, fraud or undue influence, it shall be competent for the Committee to remove the name of such Advocates' Clerk from the Membership of the Fund.

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Provided that no order under this sub-section shall be passed unless the person likely to be adversely affected has been given an opportunity of being heard.”

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W.P.(C).No1923/17

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6.Rules made under Section 25 of the Act provides that a member of Advocates' Clerks Association, who is granted approval under Rule 3, shall make an application through the Association, in which he is a member, for membership in the Fund in Form No.5. The Welfare Fund Committee is therefore admittedly a statutory committee formed under the provisions of the Welfare Fund Act. The contention of the learned counsel for the 2^nd respondent is that the maintenance of Attendance Register is not included in the statutory duty of the committee and is only an exercise carried out by the 2^nd respondent in accordance with an executive direction issued by the Committee. It is, therefore, contended that a writ of mandamus would not be available to direct the Committee to consider a request in respect of the maintenance of a Register with regard to the attendance of Advocates Clerks.

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7.From a perusal of the provisions of the Welfare Fund Act and the Rules, it is clear that the matter of administration of the Welfare Fund and the pre-existing 1985 Scheme are statutorily entrusted to the 1^st respondent Committee. The 1^st respondent would therefore be well within its powers in

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W.P.(C).No1923/17

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issuing directions which it deems necessary for the proper administration of the Fund. To contend that the maintenance of an Attendance Register is not a matter provided for specifically in the Act and that therefore conduct of an inspection with regard to the maintenance of such a Register would not be a statutory duty of the Welfare Fund, which can be enforced through a writ of Mandamus, is according to me a highly hyper-technical argument. The statutory duty of the 1^st respondent-Committee being for the administration of the Fund, all the powers incidental thereto would also come within the definition of its statutory functions.

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8.However, it would be for the petitioner to provide the clear details of the irregularities that he alleges so that the 1^st respondent can take an appropriate decision in the matter. It is pertinent to note that the petitioner has, in Exhibit P2, raised general allegations regarding the right of membership to the Fund and also raised a complaint against certain office bearers of the 2^nd respondent Association. Though it is stated in the counter affidavit of the 1^st respondent that the complaint of the petitioner had also been taken into account, Exhibit P4

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W.P.(C).No1923/17

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report does not disclose any consideration of the request made by the petitioner.

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9.In the above view of the matter, I am of the opinion that the complaint made by the petitioner in Exhibit P2 cannot be directed to be considered for the lack of any details or particulars in the same. In the light of the averment in the counter affidavit filed by the 1^st respondent, it is ordered that in case the petitioner prefers a fresh representation with all particulars of the irregularities in the members list or in the maintenance of records by the 2^nd respondent, the 1^st respondent will consider the same in accordance with law.

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This writ petition is ordered accordingly.

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Sd/- Anu Sivaraman, Judge

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M.V. Muraleedharan Nair v. Kerala Advocate Clerks' Welfare Fund Committee

Case brief

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M.V. Muraleedharan Nair v. Kerala Advocate Clerks' Welfare Fund Committee

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