1. This is a reference under S. 12(5) of the Industrial Disputes Act arising out of a demand by the employees against the Acme Printing and Cone . v. P. D. Vyas 1954 II L.L.J. 148 and contends that a tribunal's inherent power to allow anybody to represent a party is not affected by S. 36(4). He points out that Tendolkar, J., who decided that case, cited with approval the following extract from the decision of Chagla, C.J., in a previous case 54 Bom. L.R. 285 :
'Now, it is for the courts or for tribunals to determine as a matter of procedure as to how parties should be represented and how they should present their case to the court of the tribunal .............'
From this it follows, according to Sri Mahale, that the tribunal has overriding power and can allow a legal practitioner to appear even though the opposite party does not consent. Sri Mahale also referred me to Maxwell on Interpretation of Statutes, 9th Edn., p. 248, (10th Edn., p. 238). These some cases are discussed in which the words 'or' and 'and' were read one for another. In one case R. v. Everdon [(1807) 9 p&h; 101] the words 'sick and maimed' soldiers occurred in a certain statute. It was held that the legislature could not have intended that the provision should only apply to such soldiers who are both sick and maimed and not to those who are only sick or only maimed and therefore it should be read, as if it said that it would apply to sick soldiers and to maimed soldiers. Sri Mahale says that in case of S. 36(4) the legislature could not have intended to take award the power of the tribunal to allow any person to appear, if it thinks proper that he should be on behalf of any party, despite absence of consent of the opposite party. According to Sri Mahale, if this view is not taken, it would be possible for one party to appear through a pleader if the other party took no objection in time, and to prevent the other party form doing the same by not consenting. I am unable to agree with Sri Mahale, and I do not think that there is anything in the decision of the Bombay High Court cited above, or the authorities referred to in Maxwell on Interpretation of Statutes, to justify reading 'or' for 'and' in S. 36(4). In the case of Alembic Chemical Works it was laid down that if the tribunal is of opinion that a legal practitioner who has become an officer of the corporation or of union, with a view to circumvent the provisions of Sub-section (4) of S. 36, it can refuse to allow him to appear. In such a case, in the view of the High Court, an officer will not be an officer in the thorough sense of the word. It has not been said anywhere in that case, that in spite of want of consent of the opposite party, the tribunal can allow a party to appear through a legal practitioner. It must be borne in mind that a decision is only an authority for what it actually decides, and not for any logical consequences that may flow from observations of a general nature made in it. So far as the English decision referred to in Maxwell is concerned, I think it is equally inapplicable to the present case. For the fulfillment of the obvious intention of S. 36(4) it is not necessary to depart from the plain language of the statute. This is justified only when it is absolutely essential, or where this clear that adherence to the ordinary meaning and rules of grammar will defeat the intention of the legislature. It is obvious in the English case cited above that the statute was meant to apply to both sick or maimed soldiers, and it would have led to absurdity if its application was confined only to soldiers who are not maimed, but ar also sick. So far as S. 36(4) is concerned, I think the only object that the legislature had in view in framing it was to prevent any party having an unfair advantage over the other. Generally speaking, employers are financially in a position to engage able lawyers to represent their case. The finances of the unions do not, in most cases, permit them to do the same. It is therefore made necessary that a party should consent before the opposite party can appear through a legal practitioner. This privilege was only given to labour, but is also conferred on the employer, with a view to prevent the union form refusing to consent and then appearing through a pleader itself. For fulfilment of this object, the modification in the meaning or in the language of the Sub-section (4) of S. 36 on the lines suggested by Sri Mahale is not necessary. I am therefore not prepared to read 'and' in sub-section (4) of S. 36 as if it was 'or', and to take the view that in spite of a party not consenting to the appearance of the other party through a legal practitioner, the tribunal can permit it to do so.
2. Apart from this, I think that even if the tribunal had such a power, it should not exercise it arbitrarily. It should only permit a party to appear through the legal practitioner in spite of want of consent of the opposite party, when not doing so would result in grave miscarriage of justice. In the present case no such compelling reasons for giving such a permission exist. I therefore, cannot allow Sri Mahale to appear on behalf of the company.