W.A. No. 3 of 2017 in WP(C) 23107/2016. Case: State of Kerala Vs P. Krishnan Nair and Ors.. High Court of Kerala (India)

Case NumberW.A. No. 3 of 2017 in WP(C) 23107/2016
CounselFor Appellant: C.P. Sudhakaraprasad, Advocate General and Manu V., Adv. and For Respondents: George Varghese, Adv.
JudgesMohan M. Shantanagoudar and Anil K. Narendran, JJ.
IssueConstitution of India - Articles 166, 166(1), 166(2), 226, 77(1), 77(2); Kerala Advocates' Clerks Welfare Fund Act, 2003 - Sections 2, 3, 4, 5
Judgement DateFebruary 08, 2017
CourtHigh Court of Kerala (India)

Judgment:

Anil K. Narendran, J.

  1. This appeal arises out of the judgment of the learned Single Judge dated 18.11.2016 in W.P.(C). No. 23107/2016.

  2. The appellant is the 1st respondent in that Writ Petition filed by the 1st respondent herein seeking for a declaration that the nomination of the said respondent as a member from among the members of Advocates Clerks of the Kerala Advocates' Clerks Welfare Fund Committee as per Ext. P4 is liable to be given effect to and consequential proceedings issued in furtherance of the same. The 1st respondent has also sought for a writ of mandamus commanding the appellant to give effect to his nomination as a member of the Kerala Advocates Clerks Welfare Fund Committee in terms of Section 4 of the Kerala Advocates' Clerk Welfare Fund Act, 2003 and allow him to perform duties as a member of the said Committee.

  3. After considering the rival submissions, the learned Single Judge by the impugned judgment allowed the Writ Petition. Consequently, the appellant State and the 2nd respondent Kerala Advocates' Clerks Welfare Fund Committee are directed to pass appropriate orders on the basis of the nomination made by the Government on 22.3.2016 and 31.3.2016, as evident from Ext. P4 order of the Government in the note file, and the whole exercise is directed to be completed within one month from the date of receipt of a copy of the judgment.

  4. Feeling aggrieved by the judgment of the learned Single Judge, the appellant/State is before this Court in this appeal.

  5. We heard the arguments of the learned Advocate General appearing for the appellant State and the learned counsel for the 1st respondent/writ petitioner.

  6. The 1st respondent is a member of the Kerala Advocates' Clerks Welfare Fund Scheme, who has been issued with Ext. P1 certificate of registration. He has been working as an Advocate Clerk since 1976 at Nedumangad in Thiruvananthapuram district. He was the President of the Kerala Advocates' Clerks Association, Nedumangad Unit for nine years and functioned as the District Secretary of the Kerala Advocates' Clerks Association, Thiruvananthapuram district for five years. He left the State Committee of the Kerala Lawyers Clerks Association for three years and acted as its General Secretary for another three years. He was also a member of the State Executive Committee for two years.

  7. The Kerala Advocates' Clerks Welfare Fund Committee, the 2nd respondent herein, has been constituted under Section 4 of the Kerala Advocate Clerks Welfare Fund Act, 2003 (hereinafter referred to as 'the Act'). As per sub-section (1) of Section 4 of the Act, the Government may, by notification, establish with effect from such date as may be specified therein, a Committee to be called the Kerala Advocates' Clerks Welfare Fund Committee. As per sub-section (2), the said Committee shall be a body corporate having perpetual succession and a common seal with the power to acquire, hold and dispose of property and shall by the said name, sue and be sued.

  8. Going by sub-section (3) of Section 3, the Committee shall consist of the members enumerated under clauses (a) to (f) of the said sub-section. Clause (e) to sub-section (3) provides that such committee shall consist of three members to be nominated by the Government from among Advocate Clerks. As per sub-section (4), a member nominated under clause (e) of sub-section (3) shall hold office for a term of three years or until he ceases to be a member of the Advocates' Clerks Association, whichever is earlier. As per sub-section (5), a member nominated under clauses (b) and (d) and appointed under clause (f) of sub-section (3) shall hold office during the pleasure of the Government.

  9. Section 5 of the Act deals with disqualification and removal of nominated members of the Committee, if he becomes of unsound mind; or is adjudged as insolvent; or is absent without leave of the Committee for more than three consecutive meetings; or is a perpetual defaulter to the Fund (in case he is a member of the Fund) or has committed breach of trust; or is convicted by a criminal court for an offence involving moral turpitude, unless such conviction has been set aside on appeal.

  10. One Sri Pala Gopalakrishnan Nair was renominated as a Government nominee in the Welfare Fund Committee under clause (e) of sub-section (3) of Section 4 of the Act on 26.3.2015. He died on 19.1.2016 resulting a vacancy of a...

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