Dismissed

R.Thyagarajan v. the Kerala Advocates Clerks Welfare Fund

Kerala HC10 Nov 2021WP(C)/4606/2011

Case brief

AI extract

What is this about?

The court dismissed a writ petition challenging a circular that required retrospective payment of enhanced annual subscription fees. Holding that the amended Act clearly mandated payment at the enhanced rate, the court ruled the circular was a mere explanation and rejected the challenge against it.

What did the court decide?

The writ petition challenging the circular requiring enhanced subscription fees was dismissed.

R.Thyagarajan Vs the Kerala Advocates Clerks Welfare… — Writ and Judicial Review | Kerala HC (2021)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
WEDNESDAY, THE 10TH DAY OF NOVEMBER 2021 / 19TH KARTHIKA,

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1943

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WP(C) NO. 4606 OF 2011

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PETITIONER:

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R.THYAGARAJAN

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S/O.RAMAN,KALLELI MADOM(SREE RAGOM),SOUTH ARYADU,,
KOMALAPURAM VILLAGE,AVALOOKKUNNU.P.O,ALAPPUZHA.

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BY ADVS.
SRI.R.VIJAYACHANDRAN
SRI.C.A.CHACKO
SRI.M.KISHORKUMAR
SRI.SUNIL J.CHAKKALACKAL

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RESPONDENTS:

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1 THE KERALA ADVOCATES CLERKS WELFARE FUND COMMITTEE, REPRESENTED BY THE SECRETARY,, T.C.26/580,SERA-24,OOTTUKUZHY,THIRUVANANTHAPURAM695001

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2 STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY,SECRETARIAT,THIRUVANANTHAPURAM-695001

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ADDL.R3 KERALA ADVOCATE CLERKS ASSOCIATION, REPRESENTED BY ITS GENERAL SECRETARY STATE COMMITTEE, REG. NO.81/83, P.O., TALIPARAMBA

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ADDL.R3 IS IMPLEADED AS PER ORDER DATED 01.09.2011
IN IA NO.14346/2011
BY ADVS.
SRI.K.B.GANGESH
SMT.MALU JOHN
SRI.T.A.SHAJI
SMT.SMITHA CHATHANARAMBATH

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OTHER PRESENT:

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SRI.ATHUL SHAJI FOR RESPONDENT,
SMT DEEPA NARAYANAN, SR.GP

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 10.11.2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:

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W.P.(C).No.4606/2011

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P.V.KUNHIKRISHNAN, J.

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W.P.(C).No.4606 of 2011

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---------------------------------------------Dated this the 10^th day of November, 2021

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JUDGMENT

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This writ petition is filed with following prayers:

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i. Issue a Writ of Certiorari or any other appropriate writ, order or direction to quash Ext.P2 Circular, so far as it requires payment of enhanced annual subscription fee from the 1^st day of April 2004, issued by the 1^st respondent after calling for the records leading to its issuance.

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ii. Issue a Writ of mandamus or any other appropriate writ, order or direction to the respondents to provide Medical Insurance Coverage of recognized Insurance Company to all the members of the said Fund.

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iii. Declare that the petitioner is not liable to remit any amount towards subscription fee dues for the previous years and the subscription fee is enhanced from 2010 onwards alone; and the amount already received by the 1^st respondent from the members of the Fund on the basis of the Ext.P2 circular is to be re-funded.

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iv. Issue such other reliefs as this Hon'ble Court may deem fit and proper in the facts and circumstances of the case.

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W.P.(C).No.4606/2011

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This writ petition is filed challenging Ext.P2 circular issued by the 1^st respondent requiring all members of the Kerala Advocates' Clerks Welfare Fund to remit Rs.6400/each as due amount towards the annual subscription fees. According to the petitioner, such a circular is issued misinterpreting the amended provisions of Sections 17(5) and 17(5a) of the Kerala Advocates' Clerks Welfare Fund Act (for short, the Act). Petitioner is an advocate clerk and member of the said welfare fund. The 2^nd respondent amended Section 17 of the Act in the year 2010 so as to enhance the annual subscription fees from Rs.400/- to Rs.1200/- and by virtue of sub-section (5a) of the new provision, the members were permitted to remit their subscription fee dues from 1^st day of April 2004 by three instalments, without interest. According to the petitioner, this arrears is the original amount and not the enhanced amount.

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Heard the counsel for the petitioner and the Standing Counsel for the 1^st respondent. I also heard the Government Pleader.

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The point raised by the petitioner is that as per Ext.P2 circular, the respondents directed the advocate clerks

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W.P.(C).No.4606/2011

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to pay the enhanced subscription retrospectively. The counsel submitted that in Ext.R1(a) ordinance there is no such stipulation and the 1^st respondent has no right to issue a circular to enlarge the scope of Ext.R1(a) ordinance by way of a circular. On the other hand, the Standing Counsel for the 1^st respondent submitted that what is stated in Ext.P2 circular is only the same version in Ext.R1(a) ordinance and there is no enlargement or expansion as stated by the petitioner in the circular.

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I considered the contentions of the petitioner and the respondents. The main point raised by the petitioner is that the enhanced subscription need not be paid retrospectively. It will be better to extract Sections 17(5) and 17(5a) of the amended Act.

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“(5) Every member of the Fund shall pay to the Fund an annual subscription of one thousand two hundred rupees and if it is paid in lump sum, shall be paid on or before 30^th June of every year and, if not, shall be paid in three equal instalments on or before 30^th June, 30^th September and 31^st December respectively:

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Provided that the members who fail to remit the annual subscription in lump sum or in instalments within the specified time limit as aforesaid, shall

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W.P.(C).No.4606/2011

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remit such arrears with interest at twelve per cent on or before 31^st December.

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(5a) Every existing member shall remit the arrears of the annual subscription due for the period from the 1^st day of April, 2004 to the 26^th day of November, 2010, the date on which the Kerala Advocates' Clerks Welfare Fund (Amendment) Ordinance, 2010 (57 of 10), was published in the gazette in three equal instaments, before 31^st December, 2010, 30^th June, 2011 and 31^st December, 2011 respectively:

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Provided that those who fail to remit any instalment on 31^st December, 2011 shall remit such arrears with twelve per cent interest in equal instaments not exceeding six before 30^th September, 2012. ”

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Section 17(5) says that every member of the fund shall pay to the fund an annual subscription of one thousand two hundred rupees and if it is paid in lumpsum, shall be paid on or before 30^th June of every year and, if not, shall be paid in three equal installments on or before 30^th June, 30^th September and 31^st December respectively. Section (5a) is also added as per the ordinance. Section (5a) says that every existing member shall remit the arrears of the annual subscription due for the period from the 1^st day of April, 2004 to the date of publishing of this ordinance, in three equal

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W.P.(C).No.4606/2011

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instalments, before 31^st December, 2010, 30^th June, 2011 and 31^st December, 2011 respectively.

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Admittedly the above provisions are not challenged in this writ petition. When an amendment is made to certain provisions in an Act, the amendment is part of the Act itself. Sections 17(5) and 17(5a) of the Act is very clear about the payment of arrears in the enhanced rate. I think there is no expansion of the said provisions in Ext.P2 circular. What is stated in Ext.P2 circular is only the explanation of Sections 17(5) and 17(5a) of the Act. I think there is no scope to challenge the circular alone especially when the Act is not challenged in this writ petition.

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Therefore, this writ petition fails and the same is accordingly dismissed.

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sd/-

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P.V.KUNHIKRISHNAN JUDGE

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W.P.(C).No.4606/2011

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APPENDIX OF WP(C) 4606/2011

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PETITIONER EXHIBITS
EXHIBIT P1COPY OF MEMBERSHIP CARD ISSUED BY THE
1ST RESPONDENT TO THE PETITIONER
EXHIBIT P2COPY OF THE SAID CIRCULAR ISSUED BY
THE 1ST RESPONDENT DATED 13.12.2010

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RESPONDENTS EXHIBITS
EXHIBIT R1(A)COPY OF THE ORDINANCE 26 OF 2011 DATED
18.03.2011
EXHIBIT R1(B)COPY OF THE AMENDED RULES PUBLISHED BY
GO (MS) NO.65/2011/LAW DATED 11.4.11

R.Thyagarajan v. the Kerala Advocates Clerks Welfare Fund

Case brief

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R.Thyagarajan v. the Kerala Advocates Clerks Welfare Fund

Case brief

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