Himachal Pradesh act 028 of 2015 : The Himachal Pradesh Advocate's Clerks Welfare Fund Act, 2015

AUTHORITATIVE ENGLISH TEXT

THE HIMACHAL PRADESH ADVOCATE'S CLERKS

WELFARE FUND ACT, 2015

ARRANGEMENT OF SECTIONS

Sections:

1. Short title and commencement.

2. Definitions.

3. Advocate's Clerks Welfare Fund.

4. Establishment of Welfare Fund Committee.

5. Disqualification and removal of nominated members of the Committee.

6. Resignation by nominated members of the Committee and filling up of casualvacancies.

7. Act of the Committee not to be invalid by defect, vacancy etc.

8. Vesting and application of Fund.

9. Functions of the Committee.

10. Borrowing and investment of Fund.

11. Powers and functions of the Secretary.

12. Himachal Pradesh Advocate's Clerks Welfare Fund Stamp.

13. Recognition and registration of Advocate's Clerks Association.

14. Duties of Advocate's Clerks Association.

15. Membership of the Fund.

16. Payment from the Fund on cessation of employment.

17. Restriction on alienation, attachment etc. of interest of members in the Fund.

18. Group Life Insurance and other benefits for members.

19. Meetings of the Committee.

20. Travelling and daily allowance to the members of the Committee.

21. Review.

22. Protection of action taken in good faith.

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23. Bar of jurisdiction of civil courts.

24. Power to summon witnesses and take evidence.

25. Power to make rules. Schedule.

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THE HIMACHAL PRADESH ADVOCATE'S CLERKS

WELFARE FUND ACT, 2015

(ACT NO. 28 of 2015)¹ (Received the assent of the Governor on the 17^thOctober, 2015 and was published both in Hindi and English in R.H.P. dated 20^th October, 2015 at p. 4804-4826).

An Act to provide for the constitution of a Welfare Fund and utilization thereof for promotion of the Advocate's clerks in the State of Himachal Pradesh and for matters connected therewith or incidental thereto.

B E it enacted by the Legislative Assembly of Himachal Pradesh in the Sixty-sixth Year ofthe Republic of India as follows:—

1. Short title and commencement.—(1) This Act may be called the Himachal PradeshAdvocate's Clerks Welfare Fund Act,

2015.

(2) It shall come into force on such date as the State Government may, by notification,appoint.

2. Definitions.—In this Act, unless the context otherwise requires,—

(a) "Advocate" means a person whose name has been entered in the State roll ofAdvocates prepared and maintained by the Bar Council of Himachal Pradeshunder section 17 of the Advocates Act, 1961 and who is a member of a BarAssociation or an Advocates Association;

(b) "Advocate's clerk" means a clerk employed by an Advocate and recognized bysuch authority and in such manner as may be prescribed and who is a member ofan Advocate's Clerks Association;

(c) "Advocate's Clerks Association" means an Association of Advocate's clerksrecognized and registered under section 13;

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(d) "Bar Association" means an association of Advocates recognized and registeredby the Bar Council under section 14 of the Himachal Pradesh Advocates WelfareFund Act, 1996;

(e) "Bar Council" means the Bar Council of Himachal Pradesh constituted undersection 3 of the Advocates Act, 1961;

(f) "cessation of employment" means removal of the name of an Advocate's clerkfrom the State roll maintained by the Committee on account of his retirement;

(g) "Committee" means the Himachal Pradesh Clerks Welfare Fund Committeeconstituted under section 4;

(h) "dependant" means any of the following relatives of a deceased member of theFund, namely :—

(I) widow, minor legitimate son, unmarried legitimate daughter or widowedmother; and

(II) major legitimate son or legitimate married daughter who by virtue of infirmity is wholly dependant on the earnings of the member at the time ofhis death;

(i) "Fund" means the Himachal Pradesh Advocate's Clerks Welfare Fundconstituted under section 3;

(j) "Government" means the Government of Himachal Pradesh;

(k) "Member of the Fund" means an Advocate's clerk admitted to the benefit of theFund and continuing to be a member thereof under the provisions of this Act;

(l) "notification" means a notification published in Rajpatra, Himachal Pradesh andthe word 'notified' shall be construed accordingly;

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

(n) "retirement" means stoppage of employment as an Advocate's clerk for reasonother than joining service or for carrying on any other gainful

occupation,communicated to and recorded in the prescribed manner;

(o) "Schedule" means Schedule appended to this Act;

(p) "stamp" means the Himachal Pradesh Advocate's Clerks Welfare Fund stampprinted and distributed under section 12; and

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(q) "vakalatnama' means a vakalatnama, memorandum of appearance or any otherdocument by which an Advocate or any other local practitioner is empowered toappear and plead before any court, tribunal or other authority.

3. Advocate's Clerks Welfare Fund.—(1) The Government shall, by notification,constitute a Fund to be called "the Himachal Pradesh Advocate's Clerks Welfare Fund".

(2) There shall be credited to the Fund,—

(a) all amounts collected by way of sale of stamps under section 12;

(b) any voluntary donations or contribution made to the Fund by the Bar Council, anyBar Association, any other Association or Institution, any Advocate or any otherperson;

(c) any sum borrowed under section 10;

(d) all sums received from the Life Insurance Corporation of India or any otherInsurance Company on the death of a member of the Fund under a GroupInsurance Policy;

(e) any profit or dividend received from the Life Insurance Corporation of India orany other Insurance Company on the death of a member of the Fund under aGroup Insurance Policy;

(f) any interest or dividend or other returns on any investment made of any part ofthe Fund; and

(g) all sums collected under section 15.

4. Establishment of Welfare Fund Committee.—(1) The Government shall, bynotification, establish with effect from such date as may be specified therein, a Committee to becalled the Himachal Pradesh Advocate's Clerks Welfare Fund Committee.

(2) The Committee shall be a body corporate having perpetual succession and a commonseal with power to acquire, hold and dispose of property and shall, by the said name, sue or besued.

(3) The Committee shall consists of the following, namely:—

(a) the Chairman of the Himachal Pradesh -ex-officio- Chairman;

Bar Council

(b) the Secretary (Law)to the Government - ex-officio Member;

(c) the Secretary (Home) to the Government -ex-officio Member;

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(d) the Secretary (Finance) to the -ex-officio Member;

Government

(e) the Registrar General of Himachal -ex-officio Member; Pradesh High Court

(f) three members to be nominated from amongst the Advocate's clerks by suchauthority and in such manner as may be prescribed, of whom one shall benominated by the Committee as the State Treasurer of the Fund; and

(g) the Secretary to be appointed by the Chairman in accordance with suchregulations as may be made by the Committee in respect of the recruitment andconditions of service of the Secretary:

Provided that the Secretary so appointed shall not have the right to vote at the meetings ofthe Committee.

(4) In case the Secretary (Law), Secretary (Home) or Secretary (Finance) to theGovernment is unable to attend the meeting of the Committee for any reason, he may depute anyofficer of his Department not below the rank of Deputy Secretary to attend the meeting.

(5) In case the Registrar General of Himachal Pradesh High Court is unable to attend themeeting of the Committee for any reason, he may depute any officer not below the rank of DeputyRegistrar to attend the meeting.

(6) A member nominated under clause (f) of sub-section (3) shall hold office for a term ofthree years from the date of such nomination or until he ceases to be a member of the Advocate'sClerks Association, whichever is earlier.

(7) The Secretary shall be paid such remuneration out of the Fund as may be prescribed.

5. Disqualification and removal of nominated members of the Committee.—(1) Amember nominated under clause (f) of sub- section (3) of section 4 shall be disqualified to be amember of the Committee and shall cease to be such member if he—

(a) becomes of unsound mind; or

(b) is adjudged as insolvent; or

(c) remains absent without leave of the Committee for more than three consecutivemeetings of the Committee:

Provided that the member ceasing to hold office under this clause may be restoredby the Committee, if such member makes an application for condonation of absence; or

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(d) is a defaulter to the Fund (if he is a member of the Fund) or has committed breach oftrust; or

(e) is convicted by a criminal court for an offence involving moral turpitude, unless suchconviction has been set aside.

(2) The Chairman may remove any member who is or has become disqualified under sub-section(1) from the membership of the Committee:

Provided that no order removing any member shall be passed unless the member has beengiven an opportunity of being heard.

6. Resignation by nominated members of the Committee and filling of casualvacancies.—(1) Any member nominated under clause (f) of sub-section (3) of section 4 mayresign his office by giving three months notice in writing to the Chairman and on such resignationbeing accepted he shall be deemed to have vacated his office.

(2) Any casual vacancy in the office of a member referred to in sub-section (1) shall befilled as soon as possible and a member so nominated to such vacancy shall hold office for theresidue of the term of his predecessor.

7. Act of the Committee not to be invalid by defect, vacancy etc.—No act done orproceeding taken under this Act or the rules made thereunder by the Committee shall be invalidatedmerely by reason of—

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

(b) any defect or irregularity in nomination of any person as a member thereof; or

(c) any defect or irregularity in such act or proceeding not affecting the merits of the case.

8. Vesting and application of Fund.—The Fund shall vest in and be held and applied bythe Committee subject to the provisions and for the purposes of this Act.

9. Functions of the Committee.—(1) It shall be the function of the Committee toadminister the Fund.

(2) In the administration of the Fund, the Committee shall, subject to the provisions of theAct and the rules made thereunder—

(a) hold the amounts and assets belonging to the Fund;

(b) receive application for admission or readmission to the Fund and dispose of suchapplications within sixty days from the receipt thereof;

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(c) receive applications from the members of the Fund, their nominees or legalrepresentatives, as the case may be, for payment out of the Fund;

(d) conduct such inquiry as it deems necessary, for the disposal of such applications anddispose of the applications within five months from the date of receipt thereof;

(e) record in the minutes book of the Committee its decision on the applications;

(f) pay to the applicants amount at the rates specified in the Schedule;

(g) maintain such accounts and books and send such periodicals and annual reports to theBar Council, as may be prescribed;

(h) communicate to the applicants under certificate of posting the decision of theCommittee in respect of applications for admission or re-admission to the Fund orclaims to the benefit of the Fund; and

(i) do such other acts, as are or may be, required to be done under this Act and the rulesmade thereunder.

10. Borrowing and investment of Fund.— (1) The Committee may, with the priorapproval of the Bar Council, borrow, from time to time, any sum required for carrying out thepurposes of this Act.

(2) The Committee shall deposit all moneys and receipts forming part of the Fund in anyScheduled Bank as defined under the Reserve Bank of India Act, 1934 or invest the same in loansto any Corporation owned or controlled by the Central Government or the State Government or inany other manner as the Bar Council may, from time to time, direct with prior approval of theGovernment.

(3) All amount due and payable under this Act and all expenditure relating to themanagement and administration of the Fund shall be paid out of the Fund.

(4) The accounts of the Committee shall be audited annually by a Chartered Accountantappointed by the Committee.

(5) The accounts, as certified by the auditor together with the audit report thereon, shall beforwarded to the Bar Council by the Committee and the Bar Council may issue such directions as itdeems fit to the Committee in respect thereof.

(6) The Committee shall comply with the directions issued by the Bar Council under subsection(5).

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11. Powers and functions of the Secretary.—The Secretary of the Committee shall—

(a) be the Chief Executive Authority of the Committee and responsible for carrying out itsdecisions;

(b) represent the Committee in all suits and proceedings for and against the Committee;

(c) authenticate by his signature all decisions and instructions of the Committee;

(d) operate the Bank Accounts of the Committee jointly with the Treasurer;

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

(f) attend the meetings of the Committee with all necessary records and information;

(g) maintain such forms, registers and other records, as may be prescribed, and do allcorrespondence relating to the Committee;

(h) prepare an annual statement of business transacted by the Committee during eachfinancial year; and

(i) do such other acts as may be directed by the Committee.

12. Himachal Pradesh Advocate's Clerks Welfare Fund Stamp.—(1) There shall beprinted or caused to be printed by the Bar Council in such form and in such manner as may beprescribed, stamp inscribed "the Himachal Pradesh Advocate's Clerks Welfare Fund"

each of thevalue of five rupees.

(2) Every vakalatnama or memorandum of appearance filed before any court, authority ortribunal shall be affixed with a stamp as specified in sub-section (1) in addition to the court feesstamps, if any, and stamp to be affixed under any other Acts and vakalatnama or memorandum of appearance shall not be valid unless it is so stamped:

Provided that this sub-section shall not apply to any vakalatnama or memorandum of appearance filed on behalf of the Central or State Government.

(3) The person or authority receiving vakalatnama with such stamp shall forthwith effectcancellation of the stamp by punching out the same.

(4) The custody of the stamps printed under this section shall be with the Bar Council andthe supply and sale of stamps shall be in such manner as may be prescribed.

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13. Recognition and registration of Advocate's Clerks Association.—(1) AnAssociation of Advocate's Clerks constituted after the commencement of this Act may, within twomonths from the date of such constitution and an Association of Advocate's Clerks constituted before the commencement of this Act may, within two months from the date of commencement of this Act, apply to the Committee in such form and in such manner as may be prescribed, for recognition and registration as an Advocate's Clerks Association under this Act.

(2) Every application for recognition and registration shall be accompanied by the rules orbye-laws of the Association, names and addresses of the office bearers of the Association and anup-to-date list of the members of the Association with name, address, age and the ordinary place ofemployment of such member.

(3) The Committee may, after such inquiry as it deems necessary, recognize theAssociation as an Advocate's Clerks Association and issue a certificate of recognition in such formas may be prescribed.

(4) The decision of the Committee regarding the recognition of Association shall be final.

14. Duties of Advocate's Clerks Association.—(1) Every Advocate's Clerks Associationshall, on or before 15^thApril every year, intimate to the Committee a list of its members as on 31^st March of the year.

(2) Every Advocate's Clerks Association shall intimate to the Committee of,—

(a) any change of the office bearers of the Advocate's Clerks Association within fifteendays from such change;

(b) any change in number of members including admission and re-admission within thirtydays of such change;

(c) the death or retirement of any of its members within thirty days from the date ofoccurrence thereof; and

(d) such other matters as may be required by the Committee from time to time.

15. Membership of the Fund.—(1) Every Advocate's Clerks in the State may apply tothe Committee, in such form and in such manner as may be prescribed, for admission as a memberof the Fund.

(2) On receipt of an application under sub-section (1), the Committee shall make suchenquiry as it deems fit and either admit the applicant to the Fund or for reasons to be recorded inwriting, reject the application :

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10 H. P. ADVOCATE'S CLERKS WELFARE FUND ACT, 2015 Provided that no order rejecting an application shall be passed unless the applicant has beengiven an opportunity of being heard.

(3) Every applicant shall pay an application fee of rupees one hundred alongwith application to the account of the Committee.

(4) Every applicant shall pay to the Fund an admission fee of rupees one hundred at thetime of admission or re-admission.

(5) Every person admitted as a member of the Fund shall pay a membership fee of rupeesone thousand five hundred payable in two equal half yearly instalments.

(6) Every member of the Fund shall, at the time of admission, make a nominationconferring on one or more dependants of his family the right to receive the amount from the Fundin the event of his death. However, that if he has no family he may nominate any person he likes.

(7) If more than one person is nominated, the amount of share payable to each nomineeshall be specified in the nomination.

(8) A member of the Fund may at any time cancel a nomination by sending a notice inwriting to the Committee alongwith a fresh nomination.

(9) Where on receipt of a complaint or otherwise, the Committee has reason to believe thatan Advocate's clerk secured admission as a member of the Fund by misrepresentation, fraud orundue influence, the Committee shall have power to remove the name of such Advocate's clerkfrom the membership of the Fund :

Provided that no such order shall be passed unless the person, likely to be affectedadversely, has been given an opportunity of being heard.

16. Payment from the Fund on cessation of employment.—(1) A member of the Fundshall, on cessation of employment, be entitled to receive from and out of the Fund an amount at therate specified in the Schedule.

(2) In the event of death of a member, a consolidated amount of rupees fifty thousand shallbe paid to the nominee or, where there is no nominee, to his dependants.

(3) A member of the Fund may withdraw his membership at any time after five years ofhis admission as a member of the Fund and on such withdrawal he shall be entitled to receive fromand out of the Fund an amount at the rate specified in the Schedule and he may also be eligible for re-admission to the Fund as a new member subject to such conditions as may be prescribed :

Provided that a member suffering from permanent

disablement may withdraw hismembership at any time.

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(4) For calculating the period of completed years of employment for the purpose of payment under this Act, every four years of employment under an Advocate, if any, before admission of a member to the Fund, shall be computed as one year of employment and added to the number of years of employment after such admission.

(5) An application for payment from the Fund shall be made to the Committee in suchform as may be prescribed.

(6) An application received under sub-section (5), shall be disposed of by the Committeeafter such enquiry as it deems necessary.

17. Restriction on alienation, attachment etc. of interest of members in the Fund.—(1)The interest or the right of a member of the Fund or his nominee or legal heirs to receive anyamount from the Fund, shall not be assigned, alienated or charged and shall not be liable toattachment under any decree or order of any court, tribunal or other authority.

(2) No creditor shall be entitled to proceed against the Fund or the interest therein of anymember of the Fund or his nominee or legal heirs.

Explanation.—For the purpose of this section, "creditor"

includes the State, or any official assignee or official receiver appointed, under the law relating to insolvency for the time being inforce.

18. Group Life Insurance and other benefits for members.—The Committee may, for the welfare of the members of the Fund,—

(a) take from the Life Insurance Corporation of India or any other Insurance Companies, policies of Group Insurance on the life of the members of the Fund; and

(b) provide for medical and educational facilities and such other benefits, as may beprescribed for the members of the Fund and their dependents.

19. Meetings of the Committee.—(1) The Committee shall meet atleast once in three months or more often if found necessary to transact its business under this Act or the rules made thereunder.

(2) Five members shall form the quorum for a meeting of the Committee.

(3) The Chairman or in his absence, a member, elected by the members present at the meeting, shall preside over a meeting of the Committee.

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(4) Any matter coming before the Committee in the meeting shall be decided by a majority of the members present and voting at the meeting and in case of tie, the Chairman shall have acasting vote.

20. Travelling and daily allowance to the members of the Committee.—The nominatedmembers of the Committee shall be eligible to get such travelling allowance and daily allowance,as may be prescribed.

21. Review.—The Committee may, suo-motu, at any time or on an application from any interested person, within ninety days of any order passed by it, review any such order:

Provided that the Committee shall not pass any order adversely affecting a person, unless such person has been given an opportunity of being heard.

22. Protection of action taken in good faith.—(1) No suit, prosecution or other legalproceeding shall lie against any person for anything which is, in good faith, done or intended to bedone in pursuance of this Act or any rules made thereunder.

(2) No suit or other legal proceeding shall lie against the Committee or the Bar Council forany damage caused or likely to be caused by anything which is, in good faith, done or intended tobe done in pursuance of this Act or any rules made thereunder.

23. Bar of jurisdiction of civil courts.—No civil court shall have jurisdiction to settle,decide or deal with any question or determine any matter which is under this Act required to besettled, decided or dealt with or determined by the Committee.

24. Power to summon witnesses and take evidence.—The Committee shall, for the purposes of any enquiry under this Act, have the same powers as are vested in a Civil Court while trying a suit under the Code of Civil Procedure, 1908 in respect of the following matters, namely:—

(a) enforcing the attendance of any person examining him on oath;

(b) requiring the discovery and production of documents;

(c) receiving evidence on affidavit; and

(d) issuing commission to the examination of witnesses.

25. Power to make rules.—(1) The Government may, by notification, make rules forcarrying out the purposes of this Act.

(2) Every rule made under this Act shall be laid, as soon as may be, after it is made, before the Legislative Assembly while it is in session for a total period of fourteen days which may be comprised of one session or two successive sessions and if, before the expiry of the session inwhich it is so laid or the next session immediately

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H. P. ADVOCATE'S CLERKS WELFARE FUND ACT, 2015 13 following, the Legislative Assembly makes any modification in the rule or decides that the rule should not be made, the rules shall, thereafter, have effect only in such modified form or be of no effect, as the case may be, so, however, that any suchmodification or annulment shall be without prejudice to the validity of anything previously done under that rule.

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Schedule

[See sections 2(o), 9(2) (f), 16 (1) and (3)] Rupees

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.

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