Letters Patent Appeal No.560 OF 2001
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Against the Order dated 2.2.1999 passed in
CWJC no.1991 of 1998.
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KANTI TIWARI----------------------Appellant
Versus
THE BIHAR ADVOCATE WELFARE FUND--Respondents
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For the Appellant : Mr. Shashi Shekhar Tiwary
For the Respondents : Mr. Arvind Kumar Verma
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P R E S E N T
THE HON'BLE MR. JUSTICE BARIN GHOSH
THE HON'BLE MR. JUSTICE C.M.PRASAD
Barin Ghosh &
C.M. Prasad, JJ.
On 02nd July, 2008, the learned counsel
appearing on behalf of the respondent-Bihar
Advocates’ Welfare Fund Trust Committee
submitted that in two weeks’ time the case of
the appellant will be further considered and,
accordingly, a prayer was made for adjournment
of the hearing of the appeal for two weeks. In
view of such submission we granted such
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adjournment. Today when the matter was called
for hearing the respondent-Bihar Advocates
Welfare Fund Trust Committee through another
Advocate informed us that he is unable to
inform this Court whether any step has been
taken to further consider the case of the
appellant or not. In the circumstances, we
decided to decide the appeal on its merit. Heard.
2. The respondent-Committee has been
constituted by and under the Bihar Advocates’
Welfare Fund Act, 1983, whereby and under
provisions have been made for creation of a Fund
in order to facilitate payment of certain amount
of money to the family of a deceased Advocate
member of the Fund. The husband of the
appellant was an Advocate and was also a member
of the Fund since 05 th August, 1987. Sub-
sections (7) and (8) of section 16 of the Act
are as follows:
“16.(7)- Any member who fails to remit
the annual subscription for an year before the
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30th June of that year shall be removed from the
membership of the Fund:
Provided that no order of removal from
membership of a member shall be passed without
providing an opportunity of hearing. Notice to
members shall be served by registered post and
the expenses on it alongwith other expenses
shall be recoverable from member alongwith
subscription.
(8) A person removed from the membership
of the Fund under sub-section (7) shall be re-
admitted to the Fund on payment of the arrears
with interest at twelve per cent per annum
within six months from the date of such
removal.”
3. The husband of the appellant remitted
annual subscription for the year 1990 on or
before 30th June, 1990 but did not remit
subscription for the years 1991 and 1992. The
appellant, upon death of her husband on 26th
November, 1992, applied for payment from the
Fund in view of death of her husband. By a
letter dated 13th February, 1996 the Committee
informed the appellant that in view of the
decision taken by the Committee on 02nd May, 1993
the membership of the husband of the appellant
of the Fund was terminated with effect from 31 st
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July, 1992 and, accordingly, she is not entitled
to receive anything from the Fund. The said
stand taken by the respondent-Committee in its
letter dated 13th February, 1996 led to filing
of the writ petition, which having been
dismissed the appellant is before us.
4. In view of the provisions contained
in sub-sections (7) of section 16 of the Act,
failure of the husband of the appellant to
remit annual subscription to the Fund for the
year 1991 within 30 th June, 1991 entailed his
removal from the membership of the Fund, but
then, in view of the proviso contained in sub-
section (7) of section 16 of the Act, such
removal was not ipso-facto, the same required an
order directing removal of membership, which
could only be passed after giving an opportunity
of hearing to the husband of the appellant and
notice of such hearing was required to be served
by registered post. If there was failure to
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pay on time the annual subscription for the year
1991, the question of removal of the husband of
the appellant from membership of the Fund from
31st July, 1992 did not arise, even after giving
an opportunity of hearing to the husband of the
appellant. Be that as it may, in the counter
affidavit it was contended that by a notice
dated 29th October, 1991 the husband of the
appellant was asked to deposit annual
subscription for the said year by 21st November,
1991 and since the same was not deposited, by
the order dated 02nd May, 1993, the husband of
the appellant was removed from the membership
with effect from 31st July, 1992.
5. The one and the only thing that was
required to be gone in, in the writ petition,was
whether the alleged notice dated 29th October,
1991 requiring the husband of the appellant to
deposit the required fee by 21st November, 1991
was sent by registered post and whether before
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the order dated 02 nd May, 1993 was passed, any
notice by registered post was sent to the
husband of the appellant giving him an
opportunity of hearing or not. The respondent-
Committee failed to produce any evidence
suggesting that the purported notice dated 29th
October, 1991, was served by registered post and
at the same time failed to even assert that any
notice was sent either by registered post or
otherwise to the husband of the appellant before
the order dated 02 nd May, 1993 was passed
removing the husband of the appellant from the
membership of the Fund with effect from 31 st July,
1992.
6. As appears from the law quoted above
that the same grants an opportunity to a member
to know that by reason of his failure to remit
subscription on time, he has exposed himself to
the risk of removal from membership, so that he
can remove his default. Even after removal, the
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law grants an opportunity to the removed member
for re-admission. The scheme is a welfare
scheme and aimed at providing welfare to the
members of the Fund. In the instant case,
before passing the order dated 02 nd May, 1993, no
attempt was made to let the husband of the
appellant know, who by that time had already
died, that there has been a default on his part.
It is true that it was obligatory on the part of
the husband of the appellant to keep his
membership alive by remitting annual
subscription on time, but then the Act itself
gave a protection to him by providing an
opportunity of hearing before it is decided to
pass an order of removal from membership for his
failure to deposit on time the subscription
payable by him to the Fund.
7. In the circumstances, the one and the
only logical conclusion would be that the order
dated 02nd May, 1993, which was passed against a
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dead person, is not only illegal, but the said
order was passed without taking even the minimum
of the steps required to be taken as provided
for in the Act.
8. In absence of the said order, the
husband of the appellant remained a member
despite having had failed to deposit the
required fees for the years 1991 and 1992. In
the circumstances, we allow the appeal, set
aside the judgment and order under appeal and,
at the same time, allow the writ petition and
quash the order of the Committee dated 02 nd May,
1993 with a direction upon the Committee to pay
to the appellant her dues due and payable from
the Fund on account of death of her husband
forthwith but not later than three months from
today proceeding on the basis that the husband
of the appellant was a member of the Fund at the
time of his death together with interest at the
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rate of six per cent per annum from the date of
the application.
(Barin Ghosh, J.)
(C.M. Prasad,J.)
Patna High Court,
The 22nd July, 2008.
AAhmad/ (NAFR).