The Secretary, The Kerala Advocate'S Clerks Welfare Fund Committee vs Geetha Mohan

Preeta A.K., J.

This Writ Appeal is preferred against the judgment of the learned Single Judge setting aside Ext.P5 order which limited the benefit of Kerala Advocate Clerks Welfare Fund due to the 1^st respondent at ₹15,000/-.

The brief facts necessary for the consideration of this appeal are as follows:

The respondent herein is the widow of late Sri.G.Mohankumar, who was a registered Advocate Clerk attached to the office of an advocate practicing in various courts at Mavelikkara, Pathanamthitta and Thiruvalla since 1975. Ever since the Kerala Advocate Clerks Welfare Fund was constituted, he was a member of the Fund. He died on 22.10.2009. On his death, the legal heir of the said Mohankumar, submitted Ext.P4 application claiming the benefit under Kerala Advocate Clerks Welfare Fund Act, 2003 and the Rules framed thereunder. By Ext.P5, her claim was disposed of stating that her eligibility is only for a sum of ₹15,000/-. The Writ Petition was filed seeking a direction to the appellant herein to disburse the actual amount taking into account the completed years of service.

The appellant herein resisted the Writ Petition on the ground that the deceased had enrolled as a member of the Welfare Fund only pursuant to the Committee decision dated 30.11.2004 and that as on the date of death, he had only 4 years, 10 months and 23 days membership in the Welfare Fund. As he had not completed the qualifying period of 5 years, the appellant had sanctioned ₹15,000/- as per Rule 11(2)(a) of the Kerala Advocate Clerks Welfare Fund Rules, 2004 (hereinafter referred to as, 'the Rules').

The learned Single Judge, by the judgment impugned, quashed Ext.P5 and declared that the deceased was entitled to get half of the entire prior period of his service as an Advocate Clerk reckoned for getting the benefit as prescribed under Rule 11(2)(b). Aggrieved by the judgment, this Writ Appeal is preferred.

We have heard Adv.Jayasree K.P., the learned counsel appearing for the appellant and Adv.Sanand Ramakrishnan, representing the learned counsel for the respondent.

The sole question to be considered in this Writ Appeal pertains to the interpretation of Rule 11(2) of the Rules.

The Statement of objects and reasons of the Kerala Advocate Clerks Welfare Fund Act, 2003 (hereinafter referred to as, 'the Act') evinces that the legislation was a response to the clamour of the Advocate Clerks in the State of Kerala for constitution of a statutory welfare fund for payment of retirement and other benefits. The Preamble to the Act states, “An Act to provide for the Constitution of a Welfare Fund for the Benefit of Advocates' Clerks in the State of Kerala and for matters connected therewith or incidental thereto”. Apparently, the Act is a social security legislation and the canons of interpreting a social legislation are different from the canons of interpretation of taxation law. The courts must not countenance any subterfuge which would defeat the provisions of social legislation and the courts must even, if necessary, strain the language of the Act in order to achieve the purpose which the legislature had while placing this legislation on the statute book. The Act, therefore, must receive a liberal construction so as to promote its objects. This is the essence of what a Court must bear in mind while considering the interpretation of a Welfare legislation.

The substantive provision entitling an Advocate Clerk to receive benefits from the Welfare Fund is found in Section 18 of the Act, which reads as under :

In exercise of the power under Section 25 of the Act, the Rules have been framed. Rule 11 of the Rules corresponds to Section 18 of the Act and deals with the payment from the Fund on termination of employment. Rule 11 of the Rules reads as follows:

Section 18 read with Rule 11 of the Rules makes it apparent that the entitlement to receive payment is dependent on the factum of the Advocate Clerk becoming a member of the Fund. Therefore, the moot question is when does the “membership” commence ? Is it on the day the member has been admitted to the Fund or does it relate back to the year of admission ?

Before we deal with the same, it would be appropriate to have a look at the relevant statutory scheme holding the field. Section 2 (l) of the Act defines the term “Member of the Fund” as “an Advocate's Clerk admitted to the fund and continuing to be a member thereof by paying the subscriptions under the provisions of this Act”.

Section 17 of the Act provides that every Advocates' Clerk in the State may apply to the Committee for admission as a member of the Fund. Section 17(5) of the Act provides the mode of payment to the Fund and reads as follows:

The afore-extracted provisions throw light on the interpretation of Rule 11 which provides for a qualifying period of 5 years for receipt of benefit under the Fund.

Ext.P5 was issued on the interpretation of the Rule that admission to the fund commences with the actual date of induction as a member whereas the claim of the Respondent is on the basis that once admitted into membership and annual subscription is paid, “the doctrine of relate back” will apply.

In Workmen of American Express International Banking Corporation v. Management of American Express International Banking Corporation, (1985) 4 SCC 71, the Apex Court has held as follows:

Thus, when two interpretations are possible one must not lose site of the fact that the Act is a beneficial piece of legislation and the provision made therein is intended to provide some solace to the intended category who would not otherwise come within the ambit of any Social security legislations. The Welfare Fund is created to serve a definite purpose of sustaining an Advocate Clerk and his family members after his retirement. The Act is enacted with a view to ensure social welfare and security. Hence, such a beneficial piece of legislation has to be understood and construed in its proper and correct perspective so as to advance the legislative intention underlying its enactment rather than abolish it. Assuming two views are possible, the one, which is in tune with the legislative intention and furthers the same, should be preferred to the one which would frustrate it.

The term “annual subscription” has not been defined in the Act. The payment of “annual subscription” is the criteria for retaining membership in the fund. The term “subscription” as defined in Black’s Law Dictionary ^{11.Bryan A.Garner, ed., Black's Law Dictionary, (8 ed. Thomson Reuters), s.v. “[subscription]”} refers to “An oral or a written agreement to contribute a sum of money or property, gratuitously or with consideration, to a specific person or for a specific purpose”. The qualification of the term subscription by the term “annual” implies that such contribution is one happening once every year or covering a period of one year. Therefore, going by the literal meaning, Annual subscription implies a contribution done on yearly basis and in the present context a contribution done on yearly basis for being a member in the Fund.

Therefore, when the statute provides for annual subscription to the fund with flexible dates for payment throughout the year ending with 31^st of December unless otherwise specified, the doctrine of relation back applies. The intention of the legislature is made clear in Section 17(6) of the Act which again provides that removal from membership is in cases where the member of the Fund fails to remit the annual subscription for a year [before 31^st December] of that year. Therefore, it is apparent that the actual date of admission of an Advocate Clerk to the Welfare Fund has no relevance in computing his qualifying period for entitlement. On being admitted to membership and on making payment towards annual subscription, the same relates back to the 1^st day of the year of admission. In the instant case, admittedly the Advocate Clerk had been admitted to the membership of the Fund on 30.11.2004. Therefore, for calculating the five year period, the year 2004 has to be reckoned as the starting point. Yet another reasoning also holds good. Going by the definition of 'member of the fund', two conditions have to be complied with, (1) being admitted to the Fund and (2) paying subscriptions. Once the Committee takes decision to admit the member to the Fund, the member has to pay a sum of ₹200/- as admission fee and then pay the annual subscription, which the member has the option of paying in lump sum or in installments, the last of which can be 31^st December. In that view, the only reasonable conclusion would be that on admission and payment of annual subscription, the date of admission is immaterial as the subscription amount is for yearly benefit. Ext.P5 restricting the benefit of the Fund to ₹15,000/- (as it stood prior to the amendment) is therefore arbitrary and illegal.

In the result, for the reasons stated by the learned Single Judge and supplemented by the reasons stated herein, we declare that the respondent is entitled to get the benefit from the fund as envisaged by Rule 11(2)(b) by reckoning the entire service period. The Writ Appeal is accordingly dismissed.

Interlocutory applications, if any pending, shall stand closed.

Document No.1 True English Translation of Exhibit P4

Document No.2 True English Translation of Exhibit P5

Document No.3 True English Translation of Exhibit R1(a)

Document No.4 True English Translation of Exhibit R1(b)

Document No.5 True English Translation of Exhibit R1(c)

Document No.6 True English Translation of Exhibit R1(d)

Document No.1 A true copy of the Minutes of the meeting dated 06.11.2024 of the Kerala Advocates' Clerks Welfare Fund Committee.

Document No.2 A true English translation of Document No.1(Minutes of the meeting dated 06.11.2024 of the Kerala Advocates' Clerks Welfare Fund Committee.)