Paradip Port Trust, Paradip Vs. Their
Workmen [1976] INSC 213 (9 September 1976)
GOSWAMI, P.K.
GOSWAMI, P.K.
CHANDRACHUD, Y.V.
GUPTA, A.C.
CITATION: 1977 AIR 36 1977 SCR (1) 537 1977
SCC (2) 337
ACT:
Industrial Disputes Act 1947--Sec. 36--When
legal practitioners can appear before the Tribunal--Whether Secs. 36(1) and
36(2) is controlled by s. 36(4).
HEADNOTE:
The appellant is a major port. An industrial
Dispute was raised by the respondent workmen with regard to the termination of
the services of one of the employees. The dispute was referred to the
Industrial Tribunal under section 10(1)(d) of the Industrial Disputes Act, 1947.
The appellant sought to be represented through Shri T. Mishra, Advocate, who
was described as "Legal Consultant" of the appellant.
Mr. Misra admittedly is a practising advocate
of the Orissa High Court. An objection was taken by the respondent to the
representation of the appellant by Mr. Misra. The respondents refused to give
their consent as required by section 36(4) of the Act.
The Tribunal came to the conclusion that the
relationship between the appellant and Mr. Misra is that of a client and his
lawyer and not that of an employer and employee. The Tribunal also held that
merely by execution of a power of attorney the restrictions attached to a legal
practitioner contained in subsection (4) by Section 36 cannot be circumvented.
Dismissing the appeal,
HELD: 1. The Industrial Law in India did not
commence with a show of cold shoulder to lawyers. For the first time
restriction was imposed in the year 1950 on the engagement of legal
practitioners before the Appellate Tribunal without consent of the parties and
leave of the Tribunal. The restrictions on legal representations before the
Industrial Courts existed in England also. The act envisages investigation and
settlement of industrial disputes and with that end in view has created various
authorities at different levels all independent of one another. It is
reason,able to suppose that the presence of legal practitioners in conciliation
may divert attention to technical pleas and will detract from the informality
of proceedings impeding smooth and expeditious settlement. Legal practioners
entrusted with their briefs cannot be blamed if they bring forth their legal
training and experience to the aid and benefit of their clients. But Labour Law
operation operates in a field where there are two unequal contestants. The Act,
therefore, appears to be taking care of the challenge of the situation in which
a weaker party is pitted against the stronger before adjudicating authorities.
Under section 36 (1) a workman who is a party to a dispute is entitled to be
represented in any proceeding under the Act by 3 classes of officers mentioned
in sub-clauses (a), (b) and (c) of that sub-section. By sub-section (3) a total
ban is imposed (a), (b) and (c) of a party to a dispute by legal practitioners
in any conciliation proceedings under the Act or in any proceedings before a
Court of enquiry. Under section 36(4) a parry who desired to be represented by
a legal practitioner has to take prior consent of the opposite party and leave
of the Tribunal.
[539G, H, 540A, E-F, 541H, & 542A]
2. The rules of representation under section
36(1) and (2) are unconditional and are not subject to the conditions laid down
in section 36(4). [543A]
3. Section 36 deals with the representation
of the parties. Neither the Act nor section 36 provides for appearance of the
parties themselves when they are individuals or Companies or. Corporations. The
Tribunals and Labour Courts being quasi-judicial authorities dealing with the
rights affecting the parties cannot adjudicate their disputes in the absence of
the parties. It is therefore, incumbent on the Tribunals and Labour Courts to
afford reasonable opportunity to the parties to appear before them and hear
them while adjudicating the industrial disputes. [543B-C] 538 Section 36 is not
exhaustive. It is not intended under the Act that Companies and Corporations
are confined 10 representation of their cases only through the officers
specified in section 36(2) of the Act. They can be represented by the Director,
their own officers. However, they cannot engage legal practitioners by means of
special power of attorney. [543C, F]
4. If a legal practitioner is appointed as an
officer of a Company or Corporation and is. in their pay and under their
control and is not a practising advocate. the fact that he was earlier a legal
practitioner or has a legal degree will not stand in the way of the Company or
the Corporation being represented by him. Similarly, if a legal practitioner is
an officer of an association of employers or an office bearer of a Trade Union,
there is nothing in section 36(4) to prevent him from appearing before the
Tribunal. [544 C-D] There is no scope for the enquiry by the Tribunal into the
motive for the appointment of such legal practitioner as office bearer of the
Trade Union or the Employers' Association. [544-F]
5. The contention that 'and' should be read
as 'or' in section 36(4) is negatived. Consent of the opposite party is not an
idle alternative but a ruling factor in Section 36(4). [546 E-F]
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 766 of 1976.
Appeal by Special Leave from the Order dated
29-11-75 of the Industrial Tribunal, Orissa in Industrial Dispute Case No. 5/75
and Special Leave Petitions (Civil) Nos. 1844A and 1845/76 L.N. Sinha, Sol.
Gen, Govind Das, (Mrs.) S. Bhandare, M. S. Narasimhan, A. K. Mathur and A.K.
Sharma, for the Appellant.
J. P. Goyal and Shree Pal Singh; for the
Respondent.
Gobind Das, P.H. Parekh and (Miss) Manju
Jatly; for the petitioner [In S.L.P. (Civil) Nos. 1844A and 1845/76].
The Judgment of the Court was delivered by
GOSWAMI, J. The Appellant, the Paradip Port Trust, is a major port governed by
the provisions of the Major Port Trusts Act, 1963 and is managed by Board of
Trustees constituted under the provisions of the said Act. Under section 5 of
the said Act the Board of Trustees is a body corporate having perpetual
succession and a common seal with power, subject to the provisions of the Act,
to acquire, hold or dispose of property and may sue or be sued in the name of
the Board. An industrial dispute was raised by the Paradip Shramik Congress
representing the workmen with regard to the termination of the service of one Nityananda
Behera, a temporary teacher in the Paradip Port Trust High School.
The dispute was referred to the Industrial
Tribunal (Central) Bhubaneswar, Orissa, under section 10( 1 ) (d) of the
Industrial Disputes Act, 1947 (briefly the Act).
The respondents (hereinafter to be referred
to as the Union) appeared before the Tribunal through the Adviser and General
Secretary of Paradip Shramik Congress. The appellant sought to be represented
before the Tribunal through Shri T. Misra, Advocate, who was a "Legal 539
Consultant" of the Trust. The appellant filed their authority in Form 'F'
under rule 36 of the Orissa Industrial Dispute Rules in his favour. The
appellant subsequently filed also a Power of Attorney executed by the Chairman
of the Board of Trustees in favour of Shri T. Misra who was admittedly a
practising Advocate of the Orissa High Court.
An objection was taken by the Union to the
representation of the Paradip Port Trust (hereinafter to be described as the
employer) by Shri T. Misra, Advocate, and the Union refused to give their
consent to his representation as required under section 36(4) of the Act.
The Tribunal after hearing the parties upheld
the objection of the Union. The Tribunal examined the terms and conditions of
the appointment of Shri T. Misra as Legal Consultant of the employer and held
as follows :"His duties and the restrictions on his practice which have
been extracted above and the terms as to his professional fees, etc. indicate
that the relationship of the first party and Shri Misra is clearly that of a
client and his lawyer and not that of employer and employee. Hence, Shri Misra
cannot be said to be Officer of the first party." The Tribunal further
held:
"Merely by execution of a
power-of-attorney, the restrictions attached to a legal practitioner contained
in sub-section (4) of the Act cannot be circumvented. I would accordingly bold
that Shri Misra who is a legal practitioner cannot represent the first party
before this Tribunal even if he holds a power-of-attorney executed in his
favour by the first party? The appellant has obtained special leave of this
Court against the above order of the Tribunal. We have heard the
Solicitor-General on behalf of the appellant and Shri Goyal for the
respondents.
Along with the above, appeal two Special
Leave petitions Nos. 1844 A and 1845 of 1976 are also posted for hearing for
admission and we have heard Mr. Gobind Das at great length.
The two Special Leave Petitions are by the
management of Keonjhar Central Cooperative Bank Ltd. One application is
relating to rejection by the Tribunal of the Bank's prayer for representation
before the Tribunal through its Advocate, Shri B.B. Rath, on the ground of
objection by the Union under section 36(4) of the Act. The second application
relates to the, order of the Tribunal allowing Shri A.C.
Mohanty, Advocate and Vice President of the
Keonjhar Central Cooperative Bank Employees Union under section 36(1) of the
Act notwithstanding the objection of the management.
Industrial law in India did not commence with
a show of cold shoulder to lawyers as such. There was an unimpeded entrance of
legal practitioners to adjudication halls before tribunals when the Act first
came into force on April 1, 1947. Three years later when the Labour Appellate Tribunals
were constituted under the Industrial Disputes (Appellate Tribunal) Act 1950, a
restriction was imposed on the parties 3 --1234SCI/76 540 in engagement of
legal practitioners before the Appellate Tribunal without consent of the
parties and leave of the Tribunal. When this was introduced in the appellate
forum, the same restriction was imposed for the first time upon representation
of parties by legal practitioners before the Industrial Tribunals as well [see
Section 34 of the Industrial Disputes (Appellate Tribunal) Act, 1950]. In view
of the recent thinking in the matter of preferring legal aid to the poor and
weaker sections of the people it may even be possible that the conditional
embargo under section 36(4) may be lifted or its rigour considerably reduced by
leaving the matter to the Tribunals permission as has been the case under the
English law.
Restriction on parties in respect of legal
representation before Industrial Courts is not a new phenomenon. It was there
in England in the Industrial Courts Act, 1919 (9 & 10 Geo 5 c 69) and. does
not appear to be altered even by the Industrial Relations Act, 1971. Section 9
of the English Act provides that except as provided by rules, "no person
shall be entitled to appear on any such proceedings by counsel or
solicitor." However, rule 8 of the Industrial Court (Procedure) Rules 1920
allows persons to appear by counsel or solicitor with permission of the court.
The Act envisages Investigation and
settlement of industrial disputes and with that end in view has created various
authorities at different levels all independent of one another. The word
adjudication occurs only with reference to labour courts, industrial tribunals
and national tribunals. These bodies are manned by Judges of High Courts or by
officers with appropriate Judicial and labour law experience. The conciliation
proceedings held by a Board or a Conciliation Officer are mainly concerned with
mediation for promoting settlement of industrial disputes. It is reasonable to
suppose that the presence of legal practitioners in conciliation may divert
attention to technical pleas and will detract from the informality of the,
proceedings impeding smooth and expeditious settlement. Legal practitioners
entrusted with their briefs cannot be blamed if they bring forth their legal
training and experience to the aid and benefit of their clients. But labour law
operates in a field where there are two unequal contestants. The Act, therefore,
takes care of the challenge of the situation in which the weaker party is
pitted against the stronger before adjudicating authorities. That appears to be
one of the reasons for introducing consent of the parties for representation by
legal practitioners. Employers, with their purse, naturally, can always secure
the services of eminent counsel.
The question that arises for consideration
will turn on the interpretation of section 36 of the Act which may be quoted:
36(1) A workman who is a party to a dispute
shall be entitled to be represented in an proceeding under this Act by(a) any
member of the executive or other office bearer of a registered trade union of
which he is a member;
541 (b) any member of the executive or other
office bearer of a federation of trade unions to which the trade union referred
to in clause (a) is affiliated;
(c) where the worker is not a member of any
trade union, by any member of the executive or other office hearer of any trade
union connected with, or by any other workman employed in the industry in which
the worker is employed and authorised in such manner as may be prescribed.
(2) An employer who is a party to a dispute
shall be entitled to be represented in any proceeding under this Act by-(a) an
officer of an association of employers of which he is a member;
(b) an officer of a federation of associations
of employers to which the association referred to clause (a) is affiliated;
(c) where the employer is not a member of any
association of employers by an officer of any association of employers connected
with, or by any other employer engaged in, the industry in which the employer
is engaged and authorised in such manner as may be prescribed.
(3)No party to a dispute shall be entitled to
be represented by a legal practitioner in any conciliation proceedings under
this Act or in any proceedings before a Court.
(4) In any proceeding before a Labour Court,
Tribunal or National Tribunal, a party to a dispute may be represented by a
legal practitioner with the consent of the other parties to the proceeding and
with the leave of the Labour Court, Tribunal or National Tribunal, as the case
may be." Section 36 provides for representation of parties before the
Tribunals and the Labour Court. Under section 36(1) a workman who is a party to
a dispute shall be entitled to be represented in any proceeding under the Act
by three classes of officers mentioned m (a), (b) and (c) of that sub-section.
Similarly under section 36(2) an employer who is a party to a dispute shall be
entitled to be represented in any proceeding under the Act by three classes of
officers mentioned in (a), (b) and (c) of that sub-section. By sub-section (3)
a total ban is imposed on representation of a party to a dispute by a legal
practitioner in any conciliation proceedings under this Act or in any
proceedings before a Court of enquiry. Then comes section 36(4) which
introduces the requirement of prior consent of the opposite party and 542 leave
of the Tribunals and of the Labour Court, as the case may be, for enabling a
party to be represented by a legal practitioner.
Under the scheme of the Act the parties to an
industrial dispute are employers and employers; employers and workmen;
and workmen and workmen [section 2(K)]. The
definition of "appropriate Government" under section 2(a) of the Act
lays bare the coverage of industrial disputes which may be raised concerning,
amongst others, several types of corporations, mentioned therein, companies,
mine, oil field, cantonment board and major port. The definition of employer
under section 2(g), which is a purposive but not an exhaustive definition,
shows that an industrial dispute can be raised in relation to an industry
carried on even by the Government and by local authorities. It need not be
added that industry is also carried on by private owners, private companies and
partnerships. Employers and workmen will, therefore, be drawn from numerous
sources. Leaving aside for the present industrial disputes between employers
and employers and workmen and workmen, such disputes, almost, always are
between employers and workmen. Prior to the insertion of section 2A in the Act
by the Amendment Act 35 of 1965 a dispute raised only by a single individual
workman did not come under the category of an industrial dispute within the
meaning of section 2(k). Left to himself, no remedy was available to such an
aggrieved individual workman by means of the machinery provided under the Act
for adjudication of his dispute. Such an individual dispute, for example,
relating to the discharge or dismissal of a single workman, however, became an
industrial dispute only if a substantial body of workmen or a union of workmen
espoused his cause.
The trade union of workmen, therefore, comes
to be recognised as a live instrument under the Act and has an active role to
play in collective bargaining. Thus, so far as workmen are concerned, union is,
almost, always involved in the dispute from the inception. Since the dispute,
itself, in a large number of cases takes the character of industrial dispute
from participatory involvement of the trade union, the Act confers an
unbartered right upon the workmen to be represented by a member of the
executive or by an office bearer of a registered trade union. It is, therefore,
in the very scheme of things that a workman's absolute right to be represented
by an office bearer of the union is recognised under the Act. Indeed it would
have been odd in the entire perspective of an industrial dispute and the
objects and purposes of the Act not to give due recognition to the union. But
for a provision like section 36(1 ) of the Act, there may have been difficulty
under the general law in the way of the office bearers of the union representing
workmen before the adjudicating authorities under the Act unless, perhaps,
regulated by the procedure under section 11 of the Act. To put the matter
beyond controversy an absolute right is created in favour of the workmen under
section 36(1) in the matter of representation. Having made such a provision for
the workmen's representation the employer is also placed at par with the
workmen in similar terms under the Act and the employer may also be represented
by an officer of the association of employers of which the employer is a
member. The 543 right is extended to representation by the office bearers of
the federation of the unions and by the officers of the federation of
employers. The provisions of section 36(1) and 36(2) confer on the respective
parties absolute rights of representation by persons respectively specified
therein.The rights of representation under section 36(1) and section 36(2) are
unconditional and are not subject to the conditions laid down under section
36(4) of the Act. The said two sub-sections arc independent and stand by
themselves.
As stated earlier, section 36 deals with
representation of the parties. Neither the Act nor section 36 provides for
appearance of the parties themselves when they are individuals or companies or
corporations. The Tribunals and the Labour Courts being quasi-judicial
authorities dealing with rights affecting the parties cannot adjudicate their
disputes in absence of the parties. It is, therefore, incumbent upon the
Tribunals and Labour Courts to afford reasonable opportunity to the parties to
appear before them and hear them while adjudicating industrial disputes. This
position is indisputable. Section 36, therefore, is not exhaustive in the sense
that besides the persons specified therein there cannot be any other lawful
mode of appearance of the parties as such. As indicated earlier section 36 does
not appear to take count of companies and corporations as employers. It is,
however, common knowledge that industrial disputes are raised in a
predominantly large number of cases where companies or corporations are
involved. Since companies and corporations have necessarily to appear through
some human agency there is nothing in law to prevent them from being
represented in any lawful manner. As Salmond says :, "Every legal person,
therefore, has corresponding to it in the world of natural persons certain
agents or representatives by whom it acts .................... "(Salmond
on Jurispudence, 12th Edition, page 312.) It is not intended under the Act that
companies and corporations are confined to representation of their cases only
through the officers specified in section 36(2) of the Act. They can be
represented by their directors or their own officers authorised to act in that
behalf in a lawful manner provided it is not contrary to any provision of the
Act. This would not, however, mean that the companies and corporations, and for
the matter of that any party, are free to engage legal practitioners by means
of a special power of attorney to represent their interests before the
Tribunals without consent of the opposite party and leave of the Tribunal.
Again, although under section 36(2)(c) there
is provision for the contingency of an employer not being a member of an
association of employers, the device of representation provided therein would
not fit in the case of a Government Department or a public corporation as an
employer. These categories of employers, known to the Act, will be put to the
most unnatural exercise of enlisting the aid of an outside 544 association,
albeit connected with the same type of industry, to defend their cases before
Tribunals. Such an absurd intent cannot be attributed to the legislature in
enacting section 36, which will be, if that section is the be all and end all
of the types of representations envisaged under the Act. The impossibility of
the position indicated above a crucial pointer to section 36 being not
exhaustive but only supplemental to any other lawful mode of representation of
parties.
The parties, however, will have to conform to
the conditions laid down in section 36(4) in the matter of representation by
legal practitioners. Both the consent of the opposite party and the leave of
the Tribunal will have to be secured to enable a party to seek representation
before the Tribunal through a legal practitioner qua legal practitioner. This is
a clear significance of section 36(4) of the Act.
If, however, a legal practitioner is
appointed as an officer of a company or corporation and is in their pay and
under their control and is not a practising advocate the fact that he was
earlier a legal practitioner or has a legal degree will not stand in the way of
the company or the corporation being represented by him. Similarly if a legal
practitioner is an officer of an association of-employers or of a federation of
such associations, there is nothing in section 36(4) to prevent him from
appearing before the Tribunal under the provisions of section 36(2) of the Act.
Again, an office bearer of a trade union or a
member of its executive, even though he is a legal practitioner, will be
entitled to represent the workmen before the Tribunal under section 36(1) in
the former capacity. The legal practitioner in the above two cases will appear
in the capacity of an officer of the association in the case of an employer and
in the capacity of an office bearer of the union in the case of workmen and not
in the capacity of a legal practitioner.
The fact that a person is a legal
practitioner will not affect the position if the qualifications specified in
section 36(1) and section 36(2) are fulfilled by him.
It must be made clear that there is no scope
for enquiry by the Tribunal into the motive for appointment of such legal
practitioners as office bearers of the trade unions or as officers of the employers’
associations. When law provides for a requisite qualification for exercising a
right fulfilment of the qualification in a given case will entitle the party to
be represented before the Tribunal by such a person with that qualification.
How and under what circumstances these qualifications have been obtained will
not be relevant matters for consideration by the Tribunal in considering an
application for representation under section 36(1) and section 36(2) of the
Act. Once the qualifications under section 36(1) and section 36(2) are
fulfilled prior to appearance before Tribunals, there is no need under the law
to pursue the matter in order to find out whether the appointments are in
circumvention of section 36(4) of the Act.
Motive of the appointment cannot be made an
issue before the Tribunal.
545 We may note here the difference in
language adopted in section 36(1) and section 36(2). While section 36(1) refers
to "any member of the executive" or "other office bearer,"
section 36(2), instead, mentions only "an officer." Now
"executive" in relation to trade union means the body by whatever
name called to which the management of the affairs of the trade union is
entrusted section 2(gg). "Office bearer" in relation to a trade union
includes any member the executive thereof but does not include an auditor
section 2(III). So far as trade unions are concerned there is no difficulty in
ascertaining a member of the executive or other office-bearer and section 36(1)
will create no difficulty in practical application. But the word
"officer" in section 36(2) is not defined in the Act and may well
have been, as done under section 2(30) of the Companies Act. This is bound to
give rise to controversy when a particular person claims to be an officer of
the association of employers. No single test nor an exhaustive test can be laid
down for determining as to who is an officer in absence of a definition in the
Act. When such a question arises the Tribunal, each individual case, will have
to determine on the materials produced before it whether the claim is
justified. We should also observe that the officer under section 36(2) is of
the association or of the federation of associations of employers and not of
the company or corporation.
The matter of representation by a legal
practitioner holding a power of attorney came up for consideration before the
Full Bench of the Appellate Tribunal of India in the year 1951 (see Kanpur
Hoisery workers' Union v.J.K. Hosiery Factor)', Kanpur)(1). The provision for
representation which applied to the Appellate Tribunal was section 33 of the repealed
Industrial Disputes Appeallate Tribunal) Act, 1950.
This section corresponds to section 36 of the
Industrial Disputes Act with which are concerned. Although the Appellate
Tribunal rejected the claim of the party to be represented by the legal
practitioner on the basis of a power of attorney, with which we agree, the
reasons for its conclusion based solely on the ground of section 36 being
exhaustive do not meet with our approval. The Appellate Tribunal took the view
that the Act intended to restrict the representation of parties to the three
clases of persons enumerated in sub-sections (1) and (2) of section 33. The
Appellate Tribunal was of the view that sub-sections(1) and (2) of section 33
were intended to be exhaustive of the persons (other than the party himself)
who might represent either of the party. Since holding of a power of
attorney-is not one such mode the claim of the legal practitioner failed, according
to the Appellate Tribunal. The Rajasthan High Court in Duduwala & Co. and
others v. Industrial Tribunal and another(2) took the same view. Our attention
has been drawn to the decisions of the Calcutta and Bombay High Courts where in
a contrary view has been taken with regard to the interpretation of section 36
as being exhaustive [see Hall & Anderson, Ltd. v.S.K. Neogi and another(3)
and Khadilkar (K. K.) General Secretary, Engineering Staff Union Bombay v. Indian
Hume Pipe Company, Ltd.,Bombay, and another] (4). For the reasons already given
by us we are (1) [1952] I L.L.J. 384. (2) A.I,R. 1958 Raj. 20 (3) [1954]
I.L.L.J. 629. (4) [1967] I.L.L.J. 139 546 of opinon that the views of the
Labour Appellate Tribunal and that of the Rajasthan High Court in this aspect
of the matter are not correct and the Calcutta and Bombay High Courts are right
in holding that section 36 is not exhaustive.
The Solicitor General contends that
"and" in section 36(4) should be read as "or" in which case
refusal to consent by a party would not be decisive in the matter. The Tribunal
will then be able to decide in each case by exercising its judicial discretion
whether leave, in a given case, should be given to a party to be represented by
a lawyer notwithstanding the objection of the other party. It is pointed out by
the Solicitor General that great hardship will be caused to public corporations
if the union is given a carte blanche to finally decide about that matter of
representation by refusing to accord its consent to representation of the
employer through a legal practitioner. It is pointed out that public
corporations, and even Government running a transport organisation like the
State transport, cannot be expected to be members of any employers' association.
In their case section 36(2) will be of no avail.
To deny them legal representation would be
tantamount to denial of reasonable opportunity to represent their cases before
the Tribunal. It is submitted that since such injustice or hardship cannot be
intended by law the final word with regard to representation by legal
practitioners before the Tribunal should rest with the Tribunal and this will
be effectively implemented if the word "and" in section 36(4) is read
as "or". This, it is said, will also achieve the object of the Act in
having a fair adjudication of disputes.
We have given anxious consideration to the
above submission. It is true that "and" in a particular context and
in view of the object and purpose of a particular legislation may be read as
"or" to give effect to the intent of the Iegislature. However, having
regard to the history of the present legislation, recognition by law of the
unequal strength of the parties in adjudication proceedings before a Tribunal,
intention of the law being to discourage representation by legal practitioners
as such, and the need for expeditious disposal of cases, we are unable to hold
that "and" in section 36(4) can be read as "or".
Consent of the opposite part is not an idle
alternative but a ruling factor in section 36(4). The question of hardship,
pointed out by the Solicitor General, is a matter for the legislature to deal
with and it is not for the courts to invoke the theory of injustice and other
consequences to choose a rather strained interpretation when the language of
section 36 is clear and unambiguous.
Besides, it is also urged by the appellant
that under section 30 of the Advocates Act, 1961, every advocate shall be
entitled "as of right" to practise in all courts, and before only
tribunal section 30(i) and (ii). This right conferred upon the advocates by a
later law will be properly safeguarded by reading the word "and" as
"or" in section 36(4), says counsel. We do not fail to see some
difference in language in section 30(ii) from the provision in section 14(1)
(b) of the Indian Bar Councils Act, 1926, relating to the right of advocates to
appear before courts and tribunals. For example, under section 14(1) (b) of the
547 Bar Councils Act, an advocate shall ;be entitled as of right to practise
save as otherwise provided by or under any other law in any courts (other than
High Court) and tribunal.
There is, however, no reference to "any
other law" in section 30(ii) of the Advocates Act. This need not detain
us.
We are informed that section 30 has not yet
come into force.
Even otherwise, we are not to be trammelled
by section 30 of the Advocates Act for more than one reason. First, the Industrial
Disputes Act is a special piece of legislation with the avowed aim of labour
welfare and representation before adjudicatory authorities therein has been
specifically provided for with a clear object in view. This special Act will
prevail over the Advocates Act which is a general piece of legislation with
regard to the subject matter of appearance of lawyers before all courts, tribunals
and other authorities. The Industrial Disputes Act is concerned with. representation
by legal practitioners under certain conditions only before the authorities
mentioned under the Act. Generalia Special bus Non Derogant. As Maxwell puts
it:
"Having already given its attention to
the particular subject and provided for it, the legislature is reasonably
presumed not to intend to alter that special provision by a subsequent general
enactment unless that intention be manifested in explicit language ...... or
there be something in the nature of the general one making it unlikely that an
exception was intended as regards the special Act. In the absence of these
conditions, the general statute is read as silently excluding from its
operation the cases which have been provided for by the special one."(1)
Second, the matter is not to be viewed from the point of view of legal
practitioner but from that of the employer and workmen who are the principal
contestants in an industrial dispute. It is only when a party engages a legal
practitioner as such that the latter is enabled to enter appearance before
courts or tribunals. Here, under the Act, the restriction is upon a party as
such and the occasion to consider the right of the legal practitioner may not
arise.
In the appeal before us we find that the
Tribunal, after considering the materials produced before it, held that Shri T.
Misra could not claim to be an officer of the corporation simply because he was
a legal consultant of the Trust.
The Tribunal came to this conclusion after
examining the terms and conditions governing the relationship of Shri Misra
with the Trust. He was neither in pay of the company nor under its control and
enjoyed freedom as any other legal practitioner to accept cases from other
parties. It is significant to note that one of the conditions of Shri Misra's
retainer is that "he will not appear in any suit or appeal against the
Port until he has ascertained from the Chairman that his services on behalf of
the Port will not be required." That is to say, although on a retainer and
with fixed fees for appearance in eases there is no absolute ban to appear even
(1) Maxwell on lnterpretation of Statutes 11th Ed. P. 169.
548 against the Port. This condition is not
at all consistent with the position of an officer of the Trust. We agree with
the opinion of the Tribunal that Shri Misra cannot be held to be an officer of
the Trust.
A lawyer, simpliciter, cannot appear before
an Industrial Tribunal without the consent of the opposite party and leave of
the Tribunal merely by virtue of a power of attorney executed by a party. A
lawyer can appear before the Tribunal in the capacity of an office bearer of a
registered trade union or an officer of associations of employers and no
consent of the other side and leave of the Tribunal will, then, be necessary.
In the result the appeal is dismissed with
costs.
Necessarily the Special Leave Petitions also
fail and stand dismissed.
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