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ADVOCATES WELFARE FUND ACT, 2001

ADVOCATES WELFARE FUND ACT, 2001

45 of 2001

Prefatory Note Statement of Objects and Reasons.Social Security in the form of financial assistance to junior lawyers and welfare schemes for indigent or disabled advocates, has long been a matter of concern for the legal fraternity. Clause (a) of sub-section (2) of Section 6 and clause (a) of sub-section (2) of Section 7 of the Advocates Act, 1961, confer powers upon the State Bar Councils as well as the Bar Council of India, inter alia, to constitute through their rules one or more funds for the purpose of "giving financial assistance to organise welfare schemes for the indigent, disabled or other advocates". Sub-section (3) of Section 6 and sub-section (3) of Section 7 of the Advocates Act further provide that a State Bar Council as well as the Bar Council of India may receive grants, donations, gifts or benefactions for the said purpose which shall be credited to the appropriate fund or funds constituted under sub-section (2) of the said sections. Welfare schemes have accordingly been introduced in some States. Most of the States have enacted legislations on the subject. However, there is neither any uniformity nor the said provisions arc considered adequate. Moreover, the Advocates Act, 1961 does not authorise levy of any welfare fund stamp on Vakalatnama. There has, therefore, been felt a need for a Central legislation applicable to the Union territories and the States which do not have their own enactments on the subject, for constitution of "Advocates' Welfare Fund" by the appropriate Government. The Fund shall, inter alia, be composed of contributions made by a State Bar Council, any voluntary donation or contribution by the Bar Council of India, advocates associations, other associations or institutions or persons, any grant made by the appropriate Government and sums collected by way of sale of "Advocates' Welfare Fund Stamps". 2. All practising advocates shall become members of the Fund on payment of an application fee and annual subscription. The Fund shall vest in, and be held and applied by, the Trustee Committee established by the appropriate Government. The Fund shall, inter alia, be used for making ex gratia grant to a member of the Fund in case of a serious health problem, payment of a fixed amount on cessation of practice and in case of death of a member, to his nominee or legal heir, medical and educational facilities for the members and then- dependants, purchase of books and for common facilities for advocates. The income accrued to the Fund, shall be exempt from income tax. 3. The Bill seeks to achieve the above objects.An Act to provide for the constitution of a welfare fund for the benefit of advocates and for matters connected therewith or incidental there to Be it enacted by Parliament in the Fifty-second Year of the Republic of India as follows

CHAPTER 1 : PRELIMINARY :

SECTION 1: Short title, extent and commencement.:

- (1) This Act may be called the (Advocates Welfare Fund Act, 2001,)

(2) It extends to the whole of India.

(3) It shall come into force on such date as the Central Government may, by notification, appoint; and different dates may be appointed for different provisions of this Act and for different States, and any reference in any such provision to the commencement of this Act shall be construed in relation to any State as a reference to the coming into force of that provision in that State.

SECTION 2 : Definitions:

-In this Act, unless the context otherwise requires,- (a) "advocate" means an advocate whose name has been entered in the State roll prepared and maintained by a State Bar Council under (Section 17) of the (Advocates Act, 1961)

(25 of 1961) and who is a member of a State Bar Association or State Advocates' Association;

(b) "appropriate Government" means,- (i)in the case of advocates admitted on the roll of a Bar Council of a State, the State Government; (ii)in the case of advocates admitted on the roll of a Bar Council of a Union territory, the Central Government;

(c) "cessation of practice" means removal of the name of an advocate from the State roll under (Section 26A) of the (Advocates Act, 1961)

(25 of 1961);

(d) "Chairperson" means the Chairperson of the Trustee Committee referred to in clause (a) of sub-section (3) of (Section 4);

(e) "chartered accountant" means a chartered accountant as defined in clause (b) of sub-section (1) of (S.2) of the (Chartered Accountants Act, 1949)

(38 of 1949) and who has obtained a certificate of practice under sub-section (1) of (Section 6) of that Act;

(f) "dependants" means the spouse, parents or minor children of a member of the Fund;

(g) "Fund" means the Advocates' Welfare Fund constituted under sub-section (1) of (Section 3);

(h) "insurer" shall have the meaning assigned to it in clause (9) of (S.2) of the (Insurance Act, 1938) (4 of 1938);

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

(j) "notification" means a notification published in the Official Gazette of the appropriate Government and the expression "notified" shall be construed accordingly;

(k) "prescribed" means prescribed by rules made under this Act;

(l) "Schedule" means a Schedule to this Act;

(m) "scheduled bank" shall have the meaning assigned to it in clause (e) of (S.2) of the (Reserve Bank of India Act, 1934) (2 of 1934);

(n) "stamp" means the Advocates' Welfare Fund Stamp printed and distributed under (Section 26);

(o) "State" means a State specified in the First Schedule to the Constitution and shall include a Union territory;

(p) "State Advocates' Association" means an association of advocates in a State recognised by the Bar Council of that State under (Section 16) ;

(q) "State Bar Association" means an association of advocates recognised by the Bar Council of that State under (Section 16);

(r) "State Bar Council" means a Bar Council referred to in (Section 3) of the (Advocates Act, 1961 (25 of 1961);

(s) "suspension of practice" means voluntary suspension of practice as an advocate or suspension of an advocate by a State Bar Council for misconduct;

(t) "Trustee Committee" means the Advocates' Welfare Fund Trustee Committee established under sub-section (1) of (Section 4) ;

(u) "Vakalatnama" 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;

(v) words and expressions used and not defined in this Act but defined in the (Advocates Act, 1961) (25 of 1961) shall have the meanings respectively assigned to them in that Act.

CHAPTER 2 : CONSTITUTION OF ADVOCATES’ WELFARE FUND :

SECTION 3 : Advocates’ Welfare Fund:

-(1) The appropriate Government shall constitute a fund to be called the "Advocates' Welfare Fund".

(2) There shall be credited to the Fund- (a) all amounts paid by a State Bar Council under (Section 15) ; (b) any other contribution made by a State Bar Council; (c) any voluntary donation or contribution made to the Fund by the Bar Council of India, any State Bar Association, any State Advocates' Association or other association or institution, or any advocate or other person; (d) any grant which may be made by the Central Government or a State Government to the Fund after due appropriation made in this behalf; (e) any sums borrowed under (Section 12) ; (f) all sums collected under (Section 18); (g) all sums received from the Life Insurance Corporation of India or any other insurer on the death of any member of the Fund under any Group Insurance Policy; (h) any profit or dividend or refund received from the Life Insurance Corporation of India or any other insurer in respect of policies of Group Insurance of the members of the Fund; (i) any interest or dividend or other return on any investment made out of any part of the Fund; (j') all sums collected by way of sale of stamps under (Section 26) .

(3) The sums specified in sub-section (2) shall be paid to, or collected by, such agencies, at such intervals and in such manner, as may be prescribed.

CHAPTER 3 : ESTABLISHMENT OF TRUSTEE COMMITTEE :

SECTION 4 : Establishment of Trustee Committee :

-(1) With effect from such date as the appropriate Government may, by notification, appoint in this behalf, there shall be established a Trustee Committee to be called the "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 a State - Chairperson, ex officio; Provided that where there is no Advocate General of a State, the appropriate Government shall nominate a senior advocate to be the Chairperson; (b)the Secretary to the appropriate Government - Member, ex officio; in its Law Department or Ministry (c)the Secretary to the appropriate Government - Member, ex officio; in its Home Department or Ministry (d)the Chairman of the State Bar Council - Member, ex officio; (e)the Government Pleader or the Public - Member; Prosecutor, as may be nominated by the appropriate Government (f)two advocates to be nominated by the State - Members; Bar Council (g)the Secretary of the State Bar Council - Secretary, ex officio.

(4) The Chairperson nominated under the proviso to clause (a) of sub-section (3) shall hold office for a period not exceeding three years from the date on which he enters upon his office.

(5) Every Member of the Trustee Committee nominated under clause (e) or clause (f) of sub-section (3) shall hold office for a period not exceeding three years from the date on which he enters upon his office.

SECTION 5 : Disqualifications and removal of Chairperson of Member of Trustee Committee :

-(1) The appropriate Government shall remove from office the Chairperson or any Member of the Trustee Committee, who- (a) is, or at any time has been, adjudged as an insolvent; or (b) has become physically or mentally incapable of acting as the Chairperson or a Member of the Trustee Committee; or (c) has been convicted of an offence which, in the opinion of the appropriate Government, involves moral turpitude; or (d) has acquired such financial or other interest as is likely to affect prejudicially his functions as the Chairperson or a Member of the Trustee Committee; or (e) has so abused his position as to render his continuation in office detrimental to the public interest; or (f) is, or at any time has been, absent without leave of the Trustee Committee for more than three consecutive meetings of the Trustee Committee: Provided that the Trustee Committee may, on sufficient ground, condone the absence of such Chairperson or Member.

(2) No such Chairperson or Member of the Trustee Committee shall be removed under clause (d) or clause (e) of sub-section (1) unless he has been given a reasonable opportunity of being heard.

SECTION 6 : Resignation by nominated Chairperson and Members of Trustee Committee and filling up of casual vacancy :

-(1) The Chairperson referred to in sub-section (4) of (Section 4) or a Member nominated under clause (e) of sub-section (3) of that section may resign his office by giving three months' notice in writing to the appropriate Government and on such resignation being accepted by the appropriate Government such Chairperson or Member shall vacate his office.

(2) A Member nominated under clause (f) of sub-section (3) of (Section 4) may resign his office by giving three months' notice in writing to the State Bar Council and on such resignation being accepted by the State Bar Council such Member shall vacate his office.

(3) A casual vacancy in the office of the Chairperson or a Member referred to in sub- section (1) who has resigned may be filled up, as soon as may be, by the appropriate Government and the Chairperson or a Member so nominated shall hold office only so long as the Chairperson or the Member in whose place he is nominated would have been entitled to hold office if the vacancy did not occur.

(4) A casual vacancy in the office of a Member referred to in sub-section (2) who has resigned may be filled up, as soon as may be, by the State 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.

SECTION 7: Vacancies, etc. not to invalidate proceedings of Trustee Committee. No act or proceeding of the Trustee Committee shall be invalid merely by reason of -

(a) any vacancy in, or any defect in the constitution of, the Trustee Committee; or

(b) any defect or irregularity in the nomination of a person acting as the Chairperson or a Member of the Trustee Committee; or

SECTION 8: Meeting of Trustee Committee :

-(1) The Trustee Committee shall meet at least once in every three calendar months and at least four such meetings shall be held in every year to transact business under this Act and the rules made thereunder.

(2) Three Members of the Trustee Committee shall form the quorum for a meeting of the Trustee Committee.

(3) The Chairperson of the Trustee Committee or, if for any reason, he is unable to attend a meeting of the Trustee Committee, any other Member chosen by the Members of the Trustee Committee present from amongst themselves at the meeting shall preside at the meeting.

(4) All questions which come up in a meeting of the Trustee Committee shall be decided by a majority vote of the Members of the Trustee Committee present and voting, and, in the event of an equality of votes, the Chairperson, or in his absence, the Member of the Trustee Committee presiding, shall have a second or casting vote.

SECTION 9 : Travelling and daily allowances to nominated Chairperson and Members of Trustee Committee:

-The Chairperson referred to in sub-section (4) of (Section 4) and Members of the Trustee Committee referred to in clauses (e) and (f) of sub-section (3) of that section shall be entitled to be paid such travelling and daily allowances as are admissible to the members of the State Bar Council.

SECTION 10 : 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.

SECTION 11 : Functions of Trustee Committee :

-(1) Subject to the provisions of this Act and any other law for the time being in force, the Trustee Committee shall administer the Fund.

(2) Without prejudice to the generality of the provisions contained in sub-section (1), the Trustee Committee shall- (a) hold the amounts and assets belonging to the Fund in trust; (b) receive applications for admission or re-admission as members 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 within five months from the date of receipt thereof; (d) record in the minutes book of the Trustee Committee, its decisions on the applications; (e) pay to the members of the Fund or their nominees or legal heirs, as the case may be, the amounts at the rates specified in (Schedule 1) ; (f) send such periodical and annual reports as may be prescribed, to the appropriate Government and the State Bar Council; (g) communicate to the applicants, by registered post with acknowledgment due or through electronic mode, the decisions of the Trustee Committee in respect of applications for admission or re-admission as members 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.

SECTION 12: Borrowing and Investment :

-(1) The Trustee Committee may, with the prior approval of the appropriate Government and the State 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 monies and receipts forming pan of the Fund in any scheduled bank or invest the same in debt instruments of any corporation owned or controlled by the appropriate Government or in loans floated by the appropriate Government or in any other manner as the State Bar Council may, from time to time, direct with the prior approval of the appropriate 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.

SECTION 13: Accounts and Audit:

-(1) The Trustee Committee shall maintain proper accounts and other relevant records and prepare an annual statement of accounts and annual report in such form and in such manner as may be prescribed.

(2) The accounts of the Trustee Committee shall be audited annually by a chartered accountant appointed by the State Bar Council.

(3) The accounts of the Trustee Committee as audited by the chartered accountant together with his audit report shall be forwarded to the State Bar Council by that Committee and the State Bar Council may issue such directions, as it deems fit, to the Trustee Committee in respect thereof.

(4) The Trustee Committee shall comply with the directions issued by the State Bar Council under sub-section (3).

(5) The Trustee Committee shall pay from the Fund the charges for the audit as may be fixed by the State Bar Council.

SECTION 14: 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;

(d) operate bank account of the Trustee Committee jointly with the Chairperson;

(e) convene meetings of the Trustee Committee and prepare minutes of such meetings;

(f) attend 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 a financial ye

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