“Restrictions on Appearance of Advocates under Sec 36(4) of Industrial Disputes Act 1947 – Needs Reconsideration”
The subject of appearance of the Advocates as of right before the Labour courts and industrial Tribunal created under the Industrial disputes at 1947 had been a matter of controversy for a long time. The reason being that although the Advocates Act 1961 was enacted, still Sec. 30 of the said Act was ineffective for want of notification by the Central Government
The Central government issued notification dated 9/6/2011 giving effect to Section 30 of the Advocate Act 1961 with effect from 15th of June 2011.
The section is reproduced below for reference.
30. Right of Advocate to practice:- Subject to the provisions of this Act, every advocate whose name is entered in the 1[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 authorised 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.
It would be interesting to see the history of section 30 of the Advocates Act 1961.
The Industrial disputes Act came in existence in 1947. Sec. 36 (4) of the said Act provided that the Advocates cannot appear before the authorities under the said Act, without consent of the opposite side and permission of the authority.
The said section came into being when industries in India were in a very primitive stage and mainly consisted of jute, textile and some public sector undertakings. The service sector and the engineering industries were under developed and most of the work force was unskilled having no knowledge about the labour Laws. The trade union movement also was very weak. The situation as existed in the year 1947 and the subsequent situation as it was in the year 2001 is graphically described by the Hon. Bombay High Court in the matter of
T.K.Varghese VS. Nichimen Corpn.
“However, the Trade Union movement has become more than 50 years old after 1947. It has crossed its age of Infancy long back. It has also created a number of very good Trade Unionists who have acquired knowledge, legal acumen and skill to defend the working class In the proceedings under this Act. Very often these dedicated and reputed trade Union leaders are more than a match to even the best of the practitioners before the Labour Court or Tribunal or National Tribunal. Similarly there are many seasoned office-bearers of a number of Trade Unions functioning in this country, who have also acquired rich experience in the field of legal fight. Now let us consider the position of the employers in that context. Will it be a fair and equal fight between a powerful Trade Union represented by a very seasoned, senior and experienced Trade Union representative or a leader against an ordinary small or petty employer if he is not assisted by a legal practitioner? The Trade Unions are professional litigants under the Act while employers are not; they have to engage the services of legal practitioners to fight their battle. And if they are prevented from engaging legal practitioners as against the powerful representatives of the Trade Unions it will not be a fair, just and equal trial of strength between the two. In my humble opinion we have to reconsider, revise and review the position which existed in the year 1947 vis-a-vis and the position which is in the year 2001. There has been a sea change in the circumstances. A large number of small employers have also come on the industrial scene. They cannot be denied the services of legal practitioners when they are dragged in the Industrial litigation. There are number of good Advocates or legal practitioners available now even for the workmen or Trade Unions. In the early 50's there was dearth of legal practitioners to appear for the Trade Unions as the Unions could not pay even a small fee. The legal profession has grown up to such an extent that the lawyers' services are available to all those who can pay a reasonable remuneration. There are number of such advocate who have dedicated themselves to the cause of the working class and who do not expect much return for the mission to which they have devoted. We have good number of Advocates to stand for the cause of social justice. It would therefore be unreasonable and unfair to deny the same opportunity to the employer, the other side of the legal battle.”
Subsequently in 1961 the Advocates Act came into existence which under section 30 provided that the Advocates as of right can appear before any judicial forum or other authorities including the Supreme court.. It must be noted that it can be safely presumed that the legislature was aware of existence of section 36(4) of the Industrial dispute Act, but despite that Sec. 30 of the Advocates Act 1961 did not put any restriction or condition on appearance of Advocates before any judicial forum.
Till 15th of June 2011.,Sec.30 of the Advocates Act 1961 was not effective for want of notification and therefore till that date Sec 36 (4) of The industrial disputes Act 1947 held the field.
The reason as to why Sec. 30 of the Advocate Act of was not notified came before Hon. High Court Allahabad in the matter of “Bar Council of Uttar Pradesh VS. Union of India”. The following is the relevant part of the said judgment.
“3. A counter affidavit has been filed in the present case on behalf of Union of India. In paragraph 3 (E) it has been stated that a bill was introduced in the RajyaSabha in the year 1992 seeking amendment in Section 30 of the Advocates Act, 1961 to provide that the provisions of Section 30 cannot override the provisions of special enactment such the Industrial Dispute Act, 1947, the Family Courts Act, 1984 which prohibit the appearance of Advocate. After the introduction of the Bill, the Bar Council of India and the Bar Associations throughout the country and other bodies objected to the Bill. In view of the opposition, Advocates (Second Amendment) Bill 1992 was withdrawn and it was decided to defer the question of bringing Section 30 of the Act into force having regard to the prevailing circumstances.”
This Indicates that at that time central government was aware that if new statute is not enacted, to save the restrictions, the restrictions imposed on appearance of Advocates in different judicial forums would not be saved after notification of section 30 of the Advocates Act.
6. Thus after the withdrawal of the 1992 bill, and subsequent to notification of section 30 of the Advocate Act, the Advocates have got unfettered right to practice before all courts in India including Supreme Court.
7. The current position clearly should be that the Advocates are entitled as of right to appear before any court, tribunal including the Supreme Court and for this either consent of the other side and/or the permission of the concerned Authority is not required.
8. There are many authorities to support the view that after issuing the notification regarding Sec. 30 of the Advocate Act 1961, the Advocate can practice before any judicial forum without the consent of the other side and/or the permission of the concerned Authority. Few of the authorities supporting this proposition are as below.
. C.P.Saji vs. Union of India & others (19/7/2011) Kerala H.C.
The said judgment related to scope of Section 13 of the Family Courts Act, 1984 ., which placed restrictions on appearance of Advocates. The Hon. Court considered the effect of notification issued in respect of sec. 30 of the Advocates Act 1961.Hon. Court relied on the decision of Apex Court in Aeltemesh Rein Vs. Union of India (AIR 1988 SC 1768) and held in Para 12,
12. As observed by the Apex Court in paragraph 4 of the decision cited supra, when Section 30 of the Advocates Act is brought into force, every Advocate whose name is entered in the State roll will be entitled as of right to practice throughout the territories to which the Act extends, before the Courts, Tribunals and other authorities or persons referred to therein. It is also observed in the very same paragraph that, there are various enactments in force in the country, which impose restrictions on the right of an Advocate to appear before certain Courts, Tribunals and authorities, like section 36 (4) of the Industrial Disputes Act 1947, Section 13 of the Family Court Act 1984.
In ChandradevRamYadav VS.Lokayukta U.P. (12/3/2012) Allahabad H.C.,the effect of notification of section 30 of the Advocate Act was considered. The matter related to right of Advocates to appear before Lokayukta, which was a judicial forum and it was held in Para17.
17.To the extent above, there appears to be no room of doubt that in view of the notification of the Government of India,the Advocates have right to appear before the Lokayukta.
In M.M. Sudame VS. State of Maharashtra Bombay H.C. Decided on (15/3/2012), Hon. Court held in Para 15
15. Hence, the right of an Advocate to practice before the Courts other than the Supreme Court of India includes High Courts, tribunals or any person authorised to take evidence; must be taken as flowing from Section 30 of the Advocates Act. Since Section 64 of the Act deals with exclusion of right of an Advocate to practice before the University and College Tribunal, the provision must be held to be repugnant to Section 30 of the Advocates Act and consequently void as per Article 254(1) of the Constitution of India.
Desirability of issuing notification in respect of Section 30 of the Advocates Act,was clearly expressed by the Hon. Apex Court in the matter of Aeltemesh Rein VS.Union Of India & others AIR 1988 Page1768,S.C. Hon. Court also stated the effect of such notification when issued.
When section 30 of the Act is brought into force every advocate whose name is entered in the State roll will be entitled as of right to practice throughout the territories to which the Act extends, before the Courts, Tribunals and other authorities or persons referred to therein. Even today there are laws in force in the country which impose restrictions on the right of an advocate to appear before certain Courts, Tribunals and authorities. Section 36(4) of the Industrial Disputes Act, 1947 provides that 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 13 of the Family Courts Act, 1984 provides that no party to a suit or proceeding before a Family Court shall be entitled, as of right, to be represented by a legal practitioner. There is a proviso to the said section where under if the Family Court considers it necessary in the interests of justice it may seek the assistance of a legal expert as amicus curiae. There are certain land tribunals constituted under some of the Acts which are in force in certain States before which Advocates cannot appear at all. In many of the cases which come up before the Courts or Tribunals before which Advocates cannot appear as of right complicated questions of law affecting the rights of individuals arise for consideration and they need the assistance of Advocates.
In Bar Council of Uttar Pradesh VS. Union of India decided on 9/9/1997,it was stated that “Section 30 has existed on the statute book since 1961 when the Advocates Act was enacted, but strangely it has not yet been enforced. There has been a long standing demand of the members of the Bar to enforce Section 30 and in our opinion this demand appears to be justified in view of the fact that the law in our country has become complex and there is a plethora of the case law in various branches which only a trained experienced lawyer can know. Hence by not enforcing Section 30 the Government is depriving the public from the assistance of lawyers which is now a-days indispensable.
A large number of laws have been enacted by the State Legislatures and Parliament and hence in our opinion, it was not proper on the part of the Central Government to defer the decision to enforce Section 30 of the Act even after the mandamus issued by the Hon'ble Supreme Court. In our opinion, it is high time for the Central Government to now take a positive decision on this matter. Although in view of the Supreme Court's decision in Aeltemesh Rein's case (supra) we cannot issue a mandamus to the Central Government to enforce Section 30 yet we strongly recommend to the Central Government to enforce Section 30 as soon as possible as that would be very beneficial to the litigant public who would thereby get the assistance of trained lawyers before Courts, tribunals and other authorities mentioned in Section 30. “
In ICI India Ltd. vs. Labour Court (IV) and another],1992 - 1 L.L.N. 972 Hon. Allahabad High Court declared that the provisions of Sec. 36(4) of the industrial disputes Act 1947 are ultra vires the constitution.
In the matter of M/s Hygenic Foods vs. jasbir Singh Hon. Supreme Court also prima facie held that Sec. 36 (4) of the Industrial Disputes Act was ultra vires the constitution. The matter was disposed off keeping the question of vires of sec. 36(4) of Industrial Disputes Act open.
In this case the petitioner has challenged the impugn judgment 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.
The matter was disposed of keeping the question of vires of sec. 36(4) of Industrial Disputes Act open with remarks that “we permit 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 motto by adding the ground challenging the validity of Section 13 of the Family Courts Act.”
Some of the matters were prior to notification of Section 30 of the Advocate Act 1961.
The view that Sec. 36(4) of the industrial disputes Act 1947 is an equitable provision and if one-party engages labour practitioner to represent it then on equitable grounds the other party has to be permitted to be represented by Labour practitioner. The pretext that the labourpractitioner is appearing as a union leader in case of one party is of no consequence and on the equitable grounds the other party also should be permitted to appear through Labour practitioner. Few of the authorities supporting this proposition are as below..
In T.K.Varghese VS. Nichimen Corpn. Bombay H.C. Decided on ( 26/1/2001),it was held
. “In my humble opinion we have to reconsider, revise and review the position which existed in the year 1947 vis-a-vis and the position which is in the year 2001. It would therefore be unreasonable and unfair to deny the same opportunity to the employer, the other side of the legal battle. It would however be for the Legislature to reconsider and review the position of Section 36 of the Industrial Disputes Act. Besides, the Trade Unions have also become financially well off to engage the services of good legal practitioners”.
In “The Management Hindustan Motors Vs. Presiding Officer Decided on (20/1/2007)”, the Hon. Madras High Court held “In the case of the respondents / workmen engaging a trained reasoned lawyer in the garb of a trade union leader, the writ petitioner Managements should not be denied the very same right by relying upon Section 36(4) of the I.D. Act. This will result in grave injustice and will be in violation of Article 14 of the Constitution of India in the light of A.K. Roy's case and Bombay Port Trust case (cited supra). Therefore, the impugned orders passed by the first respondent Labour Courts dated 03.3.2006 and 19.6.2006 are hereby set aside and it is directed that the respondent Managements are entitled to engage a legal practitioner of their own choice in the peculiar facts and circumstances of the cases.”
13.Subsequent to that judgment as already referred above there are catena of decisions of Apex Court and other High Courts to the effect that after notification of Sec. 30 of Advocate Act, the provisions restricting right of appearance of Advocates in Family Courts, School Tribunals, College Tribunals, Lokayukt, revenue tribunals are held to be invalid. It is noteworthy that no court has held that for giving effect to Sec. 30 of Advocates Act, the respective restrictive provisions in all Acts mentioned above need amendment.
It is also worth mentioning that Govt. was aware that after coming in force of Sec. 30 of Advocate Act, restrictive sec. 36 of the Industrial Disputes Act would be invalid and that was the reason for not giving effect to Sec .30 of Advocate Act. The Govt. wanted to save some restrictive provisions like Sec.36 (4) of Industrial Disputes Act 1947 by bringing a bill, but that idea was dropped, after opposition from Advocates and Bar Councils. This is clear from Affidavit filed by the Govt. in the matter of Bar Council of U.P. vs. Union of India (the relevant part already quoted above and full text filed separately)
It is safe to assume that while passing the about judgments Hon. Apex court as well as Hon. High Courts were aware about the judgment of the Apex Court in the matter of “Paradip Port trust” case,which was of 1975.It is worth noting that when the judgment was given in the matter of “Paradip Port trust”,section 30 of the Advocates Act 1961 was not notified and therefore the effect of such notification was not before the Hon. Apex Court for consideration. It is submitted that opinions expressed about hypothetical non existing fact situations does not form any precedence and they are merely passing remarks.
It is further submitted that only the issues decided by the courts would form the precedence and stray remarks made by the courts on points which the court was not called upon to decide do not constitute either ratio or precedence.
In a recent judgment in the matter of “Hindustan Organic Chemicals Limited Employees'Union”,Hon. Bombay High Court was considering the effect of notification relating to Sec. 30 of Advocates Act on Sec. 36 (4 ) of Industrial Disputes Act 1947.The said case came before the Hon.Court against the orders passed by lower courts that even after the issuance of the notification making section 30 of the Advocates Act effective, section 36 ( 4 ) of the Industrial Disputes Act 1947, still held the field and Advocates were not allowed to appear before the Authorities without the consent of the other side and permission of the Hon. Court.
Hon. High court did not interfere with the judgment of the lower courts and held that in view of “Paradip Port trust” case, section 36( 4 ) of the Industrial Disputes Act 1947, still held the field, and Advocates are required to have consent of the opposite side and permission of the Hon. Court to appear before the authorities under the Industrial Disputes Act 1947.
It must be understood that the matter before the Hon. High Court was by way of writ petition. The views of the lower Courts in the matter were the possible views, which any prudent person could have taken and they were not perverse. However it is submitted that if some other court takes a contrary view and holds that section 36 ( 4 ) of the Industrial Disputes Act 1947, does not hold the field in view of notification relating to Sec. 30 of Advocates Act, that also would be a possible view of a prudent person and would not be perverse requiring interference in writ jurisdiction.
Prior to 9th June 2011, when notification about section 30 of the Advocates Act was published and the said section was made effective, the provisions of sec.36(4) of the industrial disputes Act 1947 held the field, but after that date the situation as it prevailed at the time of “Paradip Port trust” case has changed and now we have to consider the judgments passed subsequently. At this juncture it would be useful to consider some of the judgments which would make the concept of precedence and ratio clear.
In State Of Rajasthan vsGaneshiLal on 10 December, 2007 by S.C. It was stated that
“Reliance on the decision without looking into the factual background of the case before it is clearly impermissible. A decision is a precedent on its own Acts. Each case presents its own features. It is not everything said by a Judge while giving a judgment that constitutes a precedent.
A decision is an authority for what it actually decides. What is of the essence in a decision is its ratio and not every observation found therein nor what logically flows from the various observations made in the judgment. The enunciation of the reason or principle on which a question before a Court has been decided is alone binding as a precedent. A case is a precedent and binding for what it explicitly decides and no more.
Courts should not place reliance on decisions without discussing as to how the factual situation fits in with the act situation of the decision on which reliance is placed. Observations of Courts are neither to be read as Euclid's theorems nor as provisions of the statute and that too taken out of their context.
The following words of Lord Denning in the matter of applying precedents have become locus classicus:
"Each case depends on its own facts and a close similarity between one case and another is not enough because even a single significant detail may alter the entire aspect, in deciding such cases, one should avoid the temptation to decide cases (as said by Cordozo) by matching the colour of one case against the colour of another. To decide therefore, on which side of the line a case falls, the broad resemblance to another case is not at all decisive."
It is submitted that only the issues decided by the courts would form the precedence and stray remarks made by the courts on points which the court was not called upon to decide may constitute either ratio or precedence.
Earlier to June 2011, no issue could be raised before any court as to whether the Advocates Act 1961 would prevail over the industrial disputes Act 1947, because since sec.30 of the Advocates Act was not notified, the provisions of section 36(4) of the industrial disputes Act 1947 held the field.
But now after the notification relating to Sec. 30 of Advocates Act,there is legally changed situation. It is further pointed out that while expressing the desirability of issuing notification relating to Sec. 30 of Advocates Act, the Hon. Apex Court as well as other High courts were aware of the judgment issued in a matter of “Paradip Port trust” case.
The central government as well as Hon. Apex Court were of the view that after issuing the notification relating to Sec. 30 of Advocates Act, the restrictive provision of section 36 ( 4 ) of the Industrial Disputes Act 1947, would cease to be effective.
It should also be appreciated that the law cannot remain static and in the changing circumstances, the law is to change if it is to maintain its utility.
Therefore the validity of section 36 ( 4 ) of the Industrial Disputes Act 1947, after issuance of notification relating to Sec. 30 of Advocates Act in June 2011, needs to be re-visited either by larger bench of the Bombay High Court or by Apex Court., because there is tremendous change in ground reality and unless law keeps pace with ground reality, it becomes only ornamental and becomes an obstacle to Industrial and social growth.
A Flat. No.1,LaxmiPraasaad Apts.,1128/B,