Madras High Court
The National Horticultural vs The Government Of India on 2 November, 2012
Author: Vinod K.Sharma
Bench: Vinod K.Sharma
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 2/11/2012
CORAM
THE HONOURABLE Mr.JUSTICE VINOD K.SHARMA
Writ Petition (MD) No.11249 of 2012
and
Writ Petition (MD) No.11250 of 2012
The National Horticultural
Research and Development Foundation
55 Pandiyan Nagar
Dindigul 624 001. ... Petitioner in
both the
petitions
Vs
1. The Government of India
Ministry of Law and Justice
Department of Legal Affairs
through its Secretary
New Delhi.
2. The Presiding Officer
Labour Court
Trichy.
3. P. Murugesan ... Respondents in
both the
petitions.
Petitions filed under Article 226 of the Constitution of India praying for
the issuance of Writs of Declaration, declaring Section 36 (4) of the
Industrial Disputes Act, 1947 as unconstitutional and void.
!For petitioner ... Mr.V.O.S.Kalaiselvam
^For respondents ... Mr.S.R.Neelakantan
for R.1
Mr.Saji Bino for R.3
(Amicus Curiae)
- - - - -
:COMMON ORDER
The petitioner prays for the issuance of writs of declaration to declare Section 36 (4) of the Industrial Disputes Act, 1947 as unconstitutional and void and the consequential relief of issuance of a writ in the nature of certiorari to quash the impugned order passed by the learned Labour Court, Tiruchirapalli in declining the application filed by the petitioner for permission to engage an Advocate to defend the case on behalf of the Management.
2. The third respondent raised an Industrial Disputes before the learned Labour Court, Tiruchirapalli to challenge the order of dismissal and for reinstatement with continuity of service and all other benefits.
3. The reference is opposed by the petitioner for want of jurisdiction of the labour Court to entertain and try the Industrial Disputes raised by the third respondent. The petitioner, therefore, sought permission of the learned labour Court to engage an Advocate to defend the case.
4. The application was opposed by the third respondent by invoking Section 36 (4) of the Industrial Disputes Act. The application moved by the petitioner was rejected which was challenged by the petitioner in this Court.
5. While upholding the order, the Honourable Division Bench, permitted the petitioner to move the learned Labour Court under Section 30 of the Advocates Act. The application moved by the petitioner was also rejected.
6. The order of the learned Labour Court reads as under:-
"Point for Consideration :
Whether the petitioner is entitled for a permission to engage an advocate to defend the case ?
On perusal of the records, it appears that Industrial Dispute is pending on the file of this Court from 2012.
The Industrial Dispute petition is represented by the workman as a party in person. The management filed this petition to engage an advocate.
In order to decide it is useful to refer the section and related judgement which governs, the issue :
Section 36(3)(4) of the Industrial Disputes Act reads as follows :
(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 Labourt Court, Tribunal or National Tribunal, as the case may be).
Section 30 of Advocates Act reads as follows :
Right of advocates to practice :
Subject to provisions off this Act, every advocate whose name is entered in the (State Roll) shall be entitlted as of right to practice throughout the territories to which this Act extends :
(i)In all Courts including the Supreme Court;
(ii)Before any tribunal legally authorized to take evidence; and
(iii)Before any other authority or person before whom such advocate is by or under any law for the time being in force entitled to practice.
The workman relied upon a judgement of Hon'ble Supreme Court delivered in a case between Paradip Port Trust, Paradip Vs Their workmen reported in AIR 1977 SC 36 in para 16 in which it is held as follows:
"We are informed that section 30 has not yet come into force. Even otherwise, we are not to be trammeled by 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".
"Secondly, the matter is not to be viewed from the point view off legal practitioner but from that of the employer and workman who are the principal contestants in an industrial dispute. It is onlywhen 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.
The learned counsel for the petitioner had relied upon a judgement of Hon'ble High Court of Madras in a case between Rajamani Vs Presiding Officer and another reported in 2007(3) M.L.J. page 53 in which it is held as follows :
RATIONES DECIDENDI :
1."Though the word 'officer' was substituted in Section 36(1) with the phrase 'any number of the executive or other office-bearer' and the word 'officer' was not substituted in sub-section(2), they must be taken to carry the same meaning for the purpose of representation"
2."Any office-bearer of a Trade Union though he is a legal practitioner, can represent workmen, likewise, a legal practitioner, if he is an officer of an Association of the employers can also appear before the Tribunal."
3."Any person who is holding the office of any Society or Association or Authority can be included in the expression 'officer'."
This judgement is not applicable to the facts of this case because the petitioner is not a member of Associations.
On a perusal of these judgements and rival contentions, this Court is of the view that since Apex Court had come to the conclusion that Industrial Disputes Act is a special legislation with valid object of aim of Labour welfare and the special act will previal over the General Act, Advocates Act, this Court has no hesitation to come to conclusion on the basis of judgement laid down by Hon'ble Supreme Court, the petitioner is not entitled for the permission sought for."
7. The learned counsel for the petitioner vehemently contended that the petitioner has a right to be represented by the legal practitioners which cannot be objected to by the workmen as such objection will be contrary to Section 30 of the Advocates Act, which stipulates that every Advocate whose name is entered in the State Roll shall be entitled as of right to practice throughout the territories to which this Act extends.
(i). In all Courts including the Supreme Court;
(ii). Before any tribunal or person legally authorized to take evidence; and
(iii). Before any other authority or person before whom such advocate is by or under any law for the time being in force entitled to practice.
8. The learned counsel for the petitioner also contended that the learned labour Court misapplied the judgment of the Honourable Supreme Court in PARADIP PORT TRUST, PARADIP Vs. THEIR WORKMEN (AIR 1977 SC 36) in view of the fact that Honourable Supreme Court had taken that view before coming into force of Section 30 of the Advocates Act.
9. The learned counsel for the petitioner placed reliance on the judgment of the Honourable Allahabad High Court in I.C.I.INDIA LTD Vs. LABOUR COURT (IV) AND ANOTHER (1992 - 1 L.L.N - 972), wherein the Honourable Allahabad High Court has been pleased to laid down as under:-
"3. A Counter affidavit has been filed by respondent 3 and I have heard the counsel for the petitioner and respondent 2. In my opinion S.6-I(2) of the Uttar Pradesh Act as well as S.36 (4) of the Central Industrial Disputes Act are ultra vires Arts.14 and 1 (1) (g) of the Constitution of India and are consequently illegal. It is well known that industrial law is a complicated branch of law and only persons who have knowledge of labour laws, and also some practical experience, can properly represent the parties befor the Labour Court/Tribunal. The principles of labour laws are quite different from the principles of ordinary civil law, and what to say of a lay man even an ordinary civil lawyer, unless he has studied labour law, cannot properly present the case before the labour court/Tribunal. For example, it is an established principle in labour law that the Labour Court has got powers which no civil Court has got, example to create contracts, and to enforce contracts of personal service. Labour law is largely Judge-made law, and hence only a person who has studied this branch of law can properly represent a party before the labour Court. It has become a highly technical branch, and only trained persons can properly assist the Labour Court/Tribunal in the matter. Hence to debar lawyers merely because the opposite party objects is wholly unreasonable and arbitrary.
4. The argument that lawyers will cause delay is, in my opinion, wholly frivolous. No doubt the aim of industrial adjudication is to expeditiously decide an industrial dispute because industrial friction affects not only the employer and the workmen, but also the public at large, but it is not understandable how the appearance of a lawyer will obstruct expeditious disposal. On the contrary a lawyer who is trained in labour law can quickly focus the attention of the Labour Court/Tribunal to the main points of the dispute, and place the relevant case law so that the Labour Court can quickly dispose of the dispute. Hence, debarring of lawyers, even with the proviso that a lawyer can appear if the other side gives consent, is in my opinion, wholly arbitrary. As a matter of fact, it is well known that this arbitrary provision in the two Industrial Disputes Act, viz., S.36 (4) in the Industrial Disputes Act and S.6-I(2) of the Uttar Pradesh Industrial Disputes Act, has led to all sorts of subterfuges. Lawyers have had to resort to creation of artificial employer's or employees' organisations of which they claim to be representatives, or appear as officers of the concern. This invites all sorts of objections and much time of the Labour Court has to be wasted and devoted to first deciding this matter before proceeding to dispose of the dispute on merits. The provision to my mind, is clearly arbitrary and hence violative of Art.14 of the Constitution of India.
6. In my opinion, the aforesaid provisions in both the Central and Uttar Pradesh Acts are also violative of Art. 19 (1) (g) of the Constitution of India since they amount to unreasonable restriction on a lawyer's right to practise his profession. A whole class of labour lawyers has sprung up after enforcement of the Industrial Disputes Act, and the aforesaid provisions amount to unreasonable restriction on their right to practise. To say that lawyers raise all sorts of technical objections to delay the disposal of the case, is to my mind, a wholly frivolous objection. The Presiding Officer of the Labour Court/Tribunal can always conduct the proceedings firmly and in such a manner that no delay is caused, and he can always reject any objection which he finds to be frivolous or hyper-technical and which comes in the way of speedy disposal of the dispute.
8. For the aforesaid reasons, I hold that S. 36 (4) of the Industrial Disputes Act, 1947, as well as S.6-I (2) of the Uttar Pradesh Industrial Disputes Act, 1947, are unconstitutional and hence void."
10. The learned counsel also placed reliance on the judgment of this Court in the MANAGEMENT, HINDUSTAN MOTORS EARTH MOVING EQUIPMENT DIVISION LTD., CHENNAI CAR PLANT, THIRUVALLOORE Vs. PRESIDING OFFICER, PRINCIPAL LABOUR COURT, CHENNAI AND OTHERS reported in 2007 (1) LLN - 449, wherein liberty was granted to the Management to engage a legal practitioner of their own choice by holding that as the workmen had not objected to engagement of a counsel. Therefore, he is deemed to have given up his right under Section 36 (4) of the Industrial Disputes Act.
11. The reliance was also placed by the learned counsel for the petitioner on the judgment of the Honourable Calcutta High Court in M/s.DURGAPUR CINEMA AND ANOTHER AND 9 INDUSTRIAL TRIBUNAL, DURGAPUR AND OTHERS reported in 1991 (63) FLR - 635 laying down that the appearance of Lawyer cannot and should not be shut down on any flimsy ground.
12. The writ petition is opposed by the Amicus Curiae, who was appointed by this Court by contending that the Honourable Supreme Court in PARADIP PORT TRUST, PARADIP VS. THEIR WORKMEN has upheld the validity of Section 36 (4) by laying down as follows:-
26. A lawyer, simpliciter, cannot appear before an Industrial Tribunal without the consent of the opposite party and leave of the tribunalmerely 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.
Section 36 is 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 the 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.
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 legislature. 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 arc unable to hold that "and" in Section 36(4) can be read as "or". Consent of the opposite party 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.
23. Further, Section 30 of the Advocates Act cannot be invoked. 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 specialibus non derogdnt. 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 one5."
24. Second, the matter is not to be viewed from the point of view of legal practitioners 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.
13. It was also the contention of the learned counsel that the larger Bench of the Honourable Punjab High Court in M/s.MANSUR ALI Vs. JASBIR SINGH AND OTHERS (LPA No.250 OF 2009 IN C.W.P.No.4322 OF 2007) decided on November 13, 2009, taking note of Section 30 of the Advocates Act was pleased to uphold the constitutional validity of Section 36 (4) of the Industrial Disputes Act but the order of the larger Bench of the Honourable Punjab and Haryana High Court is under challenge before the Honourable Supreme Court wherein the following interim order has been passed.
"Heard learned counsel for the appearing parties.
In this case the petitioner has challenged the impugned judgement of the High Court of Punjab & Haryana dated 13.11.2009 by which the High Court held that a lawyer cannot appear before a Labour Court/Industrial Tribunal under the Industrial Disputes Act without the consent of the workman and the leave of the Court in view of Section 36(4) of the Industrial Disputes Act.
We, prima facie, are of the opinion that this provision in the Industrial Disputes Act debarring the lawyers from appearing before the Labour Court/Industrial Tribunal is unconstitutional being violative of Articles 14 and 19(1)(g) of the Constitution of India. This is because industrial law has become so complex that a layman cannot possibly present his case properly before the Labour Court/Industrial Tribunal. Similarly, Section 13 of the Family Courts Act, 1984 debarring lawyers from appearing before the Family Courts also appears to us, prima facie, to be unconstitutional because family law has become so complex that an ordinary layman cannot possibly be expected to put up his/her case properly before the Family Courts. Hence to debar lawyers will really be denying justice to millions of people.
We, therefore, the petitioner to add the above grounds challenging the validity of these provisions in the Industrial Disputes Act and the Family Courts Act within two weeks, to which reply may be filed within four weeks thereafter. We are expanding the scope of this special leave petition suo motu by adding the ground challenging the validity of Section 13 of the Family Courts Act.
Issue notice to Attorney General of India, who may also file response in meantime.
We have requested Mr.Fali S. Nariman, learned senior counsel, to assist us as Amicus Curiae in this case and he has kindly agreed to do so. Mr. Fakhruddin, learned senior counsel, may also assist Mr.Fali S. Nariman.
Copy of this Order as well as of the special leave petition will be supplied to the learned Attorney General, Mr.Fali S. Nariman and Mr. Fakhruddin forthwith. Copy of this order will also be given to the parties on payment of usual charges.
Listed on 12.07.2011."
14. The contention of the learned counsel for the petitioner therefore, is that the impugned order cannot be sustained as the constitutional validity of Section 36 (4) is under consideration by the Honourable Supreme Court.
15. On consideration, I find no merit in this writ petition.
16. This Court in W.P.(MD) No.5239 of 2010 decided on 12/7/2010 did not follow the judgment of the Honourable Allahabad High Court in I.C.I INDIA LTD VS. LABOUR COURT (IV) AND ANOTHER and the judgment of the Hon'ble Single Judge has been approved by the Division Bench as the writ appeal filed against the judgment of the Honourable Single Judge was dismissed.
17. The observation of the Honourable Supreme Court prima facie holding that Section 36 (4) of Industrial Disputes Act is unconstitutional cannot be treated to be a precedent, as the Honourable Supreme Court in N.K.BAJPAI Vs. UNION OF INDIA AND ANOTHER (CIVIL APPEAL No.2850 of 2012) decided on 15/3/2012 has held as under:-
15. The Advocates Act, 1961 (hereinafter referred to as 'the Advocates Act') itself was introduced to implement the recommendations of the All India Bar Committee made in 1953. It aimed at establishment of an All India Bar Council, a common rule for the advocates and integration of the Bar into a single class of practitioners known as 'advocates'. It was also to create autonomous Bar Councils, one for the whole of India and one for each State. The Advocates Act provides for various aspects of the legal -profession. Under Section 29 of the Advocates Act, only one class of persons is entitled to practice the profession of law, namely, advocates. Section 30 of the Advocates Act provides that subject to the provisions of the Act, every advocate whose name is entered in the State rolls shall, as a matter of right, be entitled to practice throughout the territories to which this Act applies, in all courts including the Supreme Court of India. Such an Advocate would also be entitled to practice before any tribunal or person legally authorized to take evidence and before any other authority or person before whom such an advocate is, by or under any law for the time being in force, entitled to practice. Section 33 of the Advocates Act further states that except as otherwise provided in that Act or in any other law for the time being in force, no person shall, on or after the appointed day, be entitled to practice in any court or before any authority or person unless he is enrolled as an advocate under the Advocates Act. A bare reading of these three provisions clearly shows that this is a statutory right given to an advocate to practice and an advocate alone is the person who can practice before the courts, tribunals, authorities and persons. But this right is statutorily regulated by two conditions - one, that a -person's name should be on the State rolls and second, that he should be permitted by the law for the time being in force, to practice before any authority or person. Where the advocate has a right to appear before an authority or a person, that right can be denied by a law that may be framed by the competent Legislature. Thus, the right to practice is not an absolute right which is free of restriction and is without any limitation.
There are persons like Mukhtiars and others, who were earlier entitled to practice before the Courts, but the Advocates Act itself took away the right to practice which was available to them prior to its coming into force. Thus, the Advocates Act placed a complete prohibition upon the right to practice of those persons who were not advocates enrolled with the State Bar Council.
16. Therefore, the right to practice, which is not only a statutory right under the provisions of the Advocates Act but would also be a fundamental right under Article 19(1)(g) of the Constitution is subject to reasonable restrictions. An argument could be raised that a person who has obtained a degree of law is entitled to practice anywhere in India, his right, as enshrined in the - Constitution and under the Advocates Act cannot be restricted or regulated and also that it is not necessary for him to enroll himself on any of the State rolls. This argument would be fallacious in face of the provisions of the Advocates Act as well as the restrictions contemplated in Article 19(6) of the Constitution. The Legislature is entitled to make a law relating to the professional or technical qualifications necessary for carrying on that profession."
18. Therefore, in view of the authoritative pronouncement by the Honourable Supreme Court and keeping in view of the fact that this Honourable Court has upheld the validity of Section 36 (4), this writ petition being devoid of any merit is ordered to be dismissed. No costs. Consequently, the connected Miscellaneous Petitions are also dismissed.
19. The Amicus Curiae is directed to be paid Rs.5,500/- (Rupees Five thousand and five hundred only) by the Legal Services Authority attached to Madurai Bench of Madras High Court.
mvs To
1. The Government of India Ministry of Law and Justice Department of Legal Affairs through its Secretary New Delhi.
2. The Presiding Officer Labour Court Trichy.