PETITIONER:
PARADIP PORT TRUST, PARADIP
Vs.
RESPONDENT:
THEIR WORKMEN
DATE OF JUDGMENT09/09/1976
BENCH:
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 prac-
titioners 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 termina-
tion 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 respond-
ents 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 circum-
vented.
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 investi-
gation 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 concili-
ation 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 practi-
tioners 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 ap-
pearance 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 dis-
putes in the absence of the parties. It is therefore, incum-
bent 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 repre-
sented 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’ Associa-
tion. [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]
JUDGMENT
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 Appel-
lant.
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 consti-
tuted 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 (Cen-
tral) 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 appel-
lant 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 au-
thority 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 representa-
tion 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 objec-
tion 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 Tribu-
nals were constituted under the Industrial Disputes (Appel-
late 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 Indus-
trial 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 representa-
tion 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 indus-
trial 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 tribu-
nals. These bodies are manned by Judges of High Courts or
by officers with appropriate Judicial and labour law experi-
ence. The conciliation proceedings held by a Board or a
Conciliation Officer are mainly concerned with mediation for
promoting settlement of industrial disputes. 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 the, proceedings imped-
ing 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, there-
fore, 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 represen-
tation by legal practitioners. Employers, with their purse,
naturally, can always secure the services of eminent coun-
sel.
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 proceed-
ing 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 autho-
rised 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 pro-
ceeding 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 associa-
tions of employers to which the association re-
ferred 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 concili-
ation proceedings under this Act or in any proceed-
ings 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-sec-
tion. 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 concili-
ation 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 indus-
try 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 recog-
nised 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, alsmost, always involved in
the dispute from the inception. Since the dispute, itself,
in a large number of cases takes the character of industri-
al 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, there-
fore, 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 represent-
ing workmen before the adjudicating authorities under the
Act unless, perhaps, regulated by the procedure under sec-
tion 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 condi-
tions 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 individu-
als or companies or corporations. The Tribunals and the
Labour Courts being quasi-judicial authorities dealing with
rights affecting the parties cannot adjudicate their dis-
putes in absence of the parties. It is, therefore, incum-
bent upon the Tribunals and Labour Courts to afford reasona-
ble 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 industri-
al 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 pre-
vent 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 representa-
tives 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 provi-
sion 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 indus-
try, 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 represen-
tation 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 practi-
tioner 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 ap-
pointments 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, mentiones 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 offi-
cer 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 wheth-
er 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 Appel-
late Tribunal rejected the claim of the party to be repre-
sented by the legal practitioner on the basis of a power of
attorney, with which we agree, the reasons for its conclu-
sion based solely on the ground of section 36 being exhaus-
tive do not meet with our approval. The Appellate Tribunal
took the view that the Act intended to restrict the repre-
sentation of parties to the three clases of persons enumer-
ated in sub-sections (1) and (2) of section 33. The Appel-
late 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, ac-
cording 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 exhaus-
tive.
The Solicitor General contends that "and" in section
36(4) should be read as "or" in which case refusal to con-
sent by a party would not be decisive in the matter. The
Tribunal will then be able to decide in each case by exer-
cising 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 repre-
sentation 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’ associa-
tion. 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 submis-
sion. 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 repre-
sentation 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 conse-
quences 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 tribu-
nals. 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 sec-
tion 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 specifical-
ly 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 appear-
ance of lawyers before all courts, tribunals and other au-
thorities. 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 Derogant. As Maxwell puts
it:
"Having already given its attention to the
particular subject and provided for it, the legis-
lature is reasonably presumed not to intend to
alter that special provision by a subsequent
general enactment unless that intention be main-
fested 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 practi-
tioner as such that the latter is enabled to enter appear-
ance 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 corpora-
tion 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 Industri-
al Tribunal without the consent of the opposite party and
leave of the Tribunal merely by virtue of a power of attor-
ney 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.
P.H.P. Appeal and pettions dismissed
549