Letters Patent Appeal No.560 OF 2001 ******* Against the Order dated 2.2.1999 passed in CWJC no.1991 of 1998. ******* KANTI TIWARI----------------------Appellant Versus THE BIHAR ADVOCATE WELFARE FUND—Respondents ******* For the Appellant : Mr. Shashi Shekhar Tiwary For the Respondents : Mr. Arvind Kumar Verma ******* 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 2 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 05th 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 3 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 31st 4 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 30th 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 5 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 6 the order dated 02nd 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 02nd May, 1993 was passed removing the husband of the appellant from the membership of the Fund with effect from 31st 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 7 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 02nd 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 8 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 02nd 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 9 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).