Kerala High Court: A Single Judge Bench comprising of Dama Seshadri Naidu, J. heard a petition dealing with the issue of re-enrolment of a lawyer in the State Bar Council after retirement from government service. The petitioner, after joining government service as a Sales Tax Officer requested the Kerala Bar Council to remove his name from the role of advocates and also got back his contribution to the Advocates’ Welfare Fund. However, post his retirement, he applied for re-enrolment whereby he was directed to repay with 12 per cent interest, the entire amount he had withdrawn from the welfare fund, as per the Welfare Fund Rules framed by the Kerala Bar Council. The petitioner challenged this rule as a violation of his fundamental right to practice any profession.
Moreover, the Court was presented with a paradoxical situation since the Welfare Fund Act also provides that “a person who received retirement benefit from the Fund shall not be re-admitted as member of the Fund”. The Court followed the principle of Constitutional Avoidance, which states that “the Court will first ascertain whether a construction of a statute is fairly possible by which the (constitutional) question may be avoided”. Therefore, stating that “the Rule compels but the Act rejects. And the Act, is as well-know, shall prevail”, the Court directed the Bar Council to consider the petitioner’s application without paying heed to the Welfare Fund Rules. [K.U. Joseph v. Bar Council of Kerala, 2017 SCC OnLine Ker 16393, order dated 04-10-2017]
