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Perfect Paper and Steel Converters Private Ltd. and anr. Vs. Bombay National General Workers Union and ors. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtMumbai High Court
Decided On
Case NumberWrit Petition No. 1011 of 1983 with O.S. Writ Petition No. 357 of 1983
Judge
Reported in1984(2)BomCR30
ActsIndustrial Court Regulations, 1975 - Regulation 2; Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 - Sections 33
AppellantPerfect Paper and Steel Converters Private Ltd. and anr.
RespondentBombay National General Workers Union and ors.
Appellant AdvocateS.J. Deshmukh and ;Shankar Naphade, Advs. for Bar Counsil as per notice and ;D.P. Hegde, Penal Counsel for Advocate General in Writ Petition No. 1011 of 1983;M.N. Bhatkal and ;P.N. Shastri, Advs., in
Respondent AdvocateS.J. Deshmukh, ;S.S. Naphade and ;Leela Mehta, Advs., for respondent No. 2 and ;P.S. Vardaiya, Adv. for respondent No. 3 in O.S. Writ Petition No. 357 of 1983
Excerpt:
labour and industrial - right to practice - regulation 2 of industrial court regulations, 1975 and section 33 of maharashtra recognition of trade unions and prevention of unfair labour practices act, 1971 - writ petition against order passed by labour court - labour court ordered that regulation 11 is exhaustive and since labour advisors are not covered said regulation they have no right to represent parties in proceedings initiated under act - recognizing right of labour adviser to practice in law in industrial court will be breach of provisions of advocates act - what is directly prohibited cannot be achieved or permitted indirectly or obliquely - order passed by labour court justified in not recognizing an omnibus and blanket right of legal advisers to practice profession of law under.....c.s. dharmadhikari, j.1. writ petition no. 1011 of 1983 is filed by m/s. perfect paper and steel converters pvt. ltd. and shri j.g. ghag, the labour adviser praying for a writ of mandamus directing the respondent no. 3, the industrial court, maharashtra, to frame appropriate regulations providing for the labour advisers to appear in the proceedings under the maharashtra recognition of trade unions and prevention of unfair labour practices act, 1971 (hereinafter referred to as the act). the petitioner no. 1 is a private limited company who is respondent in the complaint filed by the bombay national general workers' union before the industrial court under the act on the ground that the company has indulged in unfair labour practices. the petitioner no. 2 is working as labour adviser and.....
Judgment:

C.S. Dharmadhikari, J.

1. Writ Petition No. 1011 of 1983 is filed by M/s. Perfect Paper and Steel Converters Pvt. Ltd. and Shri J.G. Ghag, the Labour Adviser praying for a writ of mandamus directing the respondent No. 3, the Industrial Court, Maharashtra, to frame appropriate regulations providing for the Labour Advisers to appear in the proceedings under the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 (hereinafter referred to as the Act). The petitioner No. 1 is a Private Limited Company who is respondent in the complaint filed by the Bombay National General Workers' Union before the Industrial Court under the Act on the ground that the Company has indulged in unfair labour practices. The petitioner No. 2 is working as Labour Adviser and appearing in the proceedings under the various Acts pertaining to the Labour and Industrial Practices filed for the last 16 years. It appears from record that the respondent No. 1, Union filed a complaint on 16th November, 1981 against the petitioner No. 1 Company alleging that the Company has indulged in unfair labour practices covered by Item No. 1(a) and 4(s) of Schedule II of the Act. This complaint was resisted by the petitioner No. 1 Company by filing its appearance through representative Shri J.G. Ghag the Labour Adviser, petitioner No. 2. On 21st February, 1983 when the matter came up for hearing the Industrial Court passed an order that Shri Ghag being Labour Adviser cannot appear before the Court in view of the Full Bench decision of the Industrial Court dated 14-1-1983. In complaint U.L.P. No. 277 of 1983 and others.

2. The Original Side Writ Petition No. 357 of 1983 is filed by Mr. Laxman Chintaman Joshi against the order passed by the Full Bench of the Industrial Court holding that the Regulation 11 of the Industrial Court Regulations, 1975 is exhaustive and the appearance of Mr. L.C. Joshi Labour Adviser as representative of the M/s. Industrial Engineering Company Bombay and M/s. Krishna Steel Industries Pvt. Ltd. Bombay is not lawful. In this writ petition Mr. Joshi has claimed a writ of certiorari for quashing the order of the Full Bench dated 14-1-1983 and other consequential reliefs. It is not necessary to reproduce the various averments made in the petition filed by Mr. Joshi since it is an admitted position that Mr. Joshi is now enrolled as an Advocate under the Advocates Act, and therefore, will be entitled to appears before the Industrial Court under Regulation 11. Therefore, the contentions raised by Mr. Joshi in his writ petition have become wholly academic.

3. Before the Industrial Court a question was raised as to whether appearance of Labour Adviser as representative of the party is lawful in view of the provisions of Regulation 11 of the Industrial Courts Regulations, 1975. The Full Bench of the Industrial Court came to the conclusion that the Regulation 11 is exhaustive and since the Labour Advisers are not covered by the said regulation they have no right to represent the parties in the proceedings instituted under the Act. It is this order of the Full Bench which in substance is challenged in these two writ petitions.

4. Mr. Bhatkal the learned Counsel appearing for the petitioners in Writ Petition No. 1011 of 1983 has contended before me that the Full Bench of the Industrial Court committed an error apparent on the face of record in coming to the conclusion that the Regulation 11 is exhaustive. According to Mr. Bhatkal the right of representative granted to a party under the Act is not merely a procedural right but is substantive in nature. The parties are entitled to choose representative of their choice, unless the statute provides otherwise. The Labour Advise is a class well known and well recognised in the field of industrial education and therefore they have a right to represent the parties in the proceedings instituted under the Act. There is no prohibition in the Act which debars the Labour Advisers from representing the parties in the proceedings and therefore the view taken by the Industrial Court is wholly illegal. The said view is also ultra vires due to the powers conferred upon the Industrial Court in the matter of framing regulations under the Act. Unless there is an express provision in the Act which forbids or prohibits Labour Advisers from appearing or representing the party the Industrial Court cannot debar the Labour Adviser from appearing before it. The legislature could not have intended to confer upon the Industrial Court a blanket power in exercise of which the Industrial Court, can frame such an unreasonable and discriminatory regulation. Therefore, in substance it is contended by Mr. Bhatkal that the Regulation 11 is not consistent with the provisions of the Act or Rules made thereunder. He also contended that the term legal adviser should be construed liberally and if so construed it will take in its import even a labour adviser. The term legal adviser is not defined by the Act. Therefore, it should be construed as understood in the common parlance and should not be interpreted too technically. In any case the Regulation 11 is not exhaustive, as apart from the categories referred to therein, the parties are entitled to be represented by some other persons also though with the prior permission of the Court. Section 36 of the Industrial Disputes Act, 1947 which is para-material and/or identical to Regulation 11 has been held by the courts to be illustrative and not exhaustive. In support of this contention Mr. Bhatkal has placed reliance upon the decision of this Court in A.I.R. 1957 Bom 521 K.K. Khadilkar v. Indian Hume Pipe Co. Ltd. as well as the decision of the Supreme Court in : (1976)IILLJ409SC Paradip Port Trust, Paradip v. Their Workmen. He has also placed reliance upon the two unreported decisions of this Court in Special Civil Application No. 209 of 1972 decided on 3rd April, 1972 by K.K. Desai and Deshpande, JJ., and Misc Petition No. 1547 of 1978, M/s. Rational Art. & Press Pvt. Ltd. v. Mumbai Mazdoor Sabha & others decided on 27th January, 1982 by Desai, J. It was also contended by Mr. Bhatkal that the provisions of section 36 of the Central Act are either bodily incorporated or are incorporated by reference, into the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, and this is apparent from the fact that by section 20 of the Act, section 36(1) of the Central Act stands amended in the manner and to the extent specified in Schedule I. Therefore, the law laid down by this Court as well as the Supreme Court under section 36 of the Central Act will apply with all force to the provisions of the present enactment.

5. Mr. Damania the learned Counsel appearing for Mr. L.C. Joshi in Original Side Writ Petition No. 357 of 1983 adopted the arguments advanced by Mr. Bhatkal and contended that even if it is held that section 36 of the Central Act cannot be treated as incorporated in the present enactment, the law laid down by the courts under section 36 must apply to the provisions of the present enactment and particularly to Regulation 11 since the said provision is either para materia or supplementary. In any case the law laid down under section 36 of the Central Act will apply to Regulation 11 also. If such a construction is not put upon Regulation 11, Regulation 11 will become ultra vires, being beyond the scope of regulation-making-power of the Industrial Court under section 33 of the Act. He also contended that in no case it can be held that the Regulation 11 is exhaustive. Thereof is internal evidence available in the Act and the regulations to show that the said provision is not exhaustive. Admittedly apart from the persons referred to in the said regulation, an officer authorised by the State Government as well as an Investigating Officer can appear for the parties. Further the power of the Court to grant permission to anybody else is not taken away either expressly or by necessary implication. In this view of the matter the view taken by the Full Bench of the Industrial Court is wholly unwarranted. Shri Kapadia, Advocate also supported the contentions raised and argued by Mr. Bhatkal and Mr. Damania and added that in view of the provisions of Article 21 of the Constitution of India the procedure which the Court is expected to follow must be just and fair. Therefore, to do justice between the parties it is open to the Court to permit any person other than those specifically referred to in Regulation 11, to represent a party to the proceedings under the Act.

6. On the other hand it is contended by Mr. Deshmukh, the learned Counsel appearing for the Bar Counsel of Maharashtra that a person has an inherent right to represent himself when he is a party to a judicial or quasi judicial proceedings. A party to such proceedings has no inherent right to be represented by any other person of its choice. Such a right i.e. right of party to be represented by another person must flow from a provision of law. The capacity of person to represent a party to such a proceeding must be vested in him by some provision of law. No person other than a party to such proceeding has inherent right to represent the party to the proceeding. Under the Advocate Act, Advocates is the only recognised class of persons entitled to practise the profession of law. No person is entitled to practise in any Court or before any authority or person unless he is enrolled as an Advocate under the Advocates Act. In these writ petitions the self-styled Labour Advisers are claiming a right to practise the profession of law before the Industrial Court without being enrolled as an Advocates under the Advocates Act. In view of the specific professions of the Advocate Act, they are debarred from doing so, and, therefore, it is not open to this Court to issue a writ of mandamus directing respondent No. 3 to do something which is expressly prohibited by law. Unless it is shown that a labour adviser has a legal or inherent or constitutional right to practices law a writ of mandamus as claimed for cannot be issued. Admittedly it is not the case of the petitioner that the Labour Advisers fall in any of the categories enumerated in Regulation 11. The Labour Advisers are also not claiming any inherent or legal or constitutional right in that behalf. The persons who are entitled to represent the parties under the Act, are referred to in Regulation 11. The enumeration is exhaustive in the sense that it covers all persons who are entitled, as of right, to represent a party to the proceedings under the Act. According to Shri Deshmukh the provisions of section 36 of the Central Act and Regulation 11 are neither para-material nor supplementary. Under section 36 of the Central Act an Advocate is not entitled to represent the party as of right whereas Regulation 11 in terms authorises an Advocate to represent the parties in the proceedings under the Act. When the present Act was enacted by the State Legislature it also amended certain provisions of the Central Act to bring it in tune with the present enactment. Only because the State Legislature chose to amend the Central Act while enacting the present enactment, it cannot be said that the provisions of the Central Act and incorporated in the present legislation. According to Shri Deshmukh the so-called labour advisers have no inherent right to represent a party even under section 36 of the Central Act. Even if it is held that with the permission of the Court any person other than the one enumerated in section 36 of the Act, can appear before the Court in the proceedings under the Central Act still it is not open to Court to permit labour advisers as a class to appear and represent parties and hereby practise the profession of law. The discretion conferred upon the Court cannot be used to permit them to carry on the profession of law. Under the Act right to representation is granted to the persons who are one way or the other connected with or are interested in the process of collective bargaining or industrial adjudication. Apart from these persons the only calls recognised is that of Advocates, who are entitled to practise law. An Advocate is entitled to appear, act and plead for the parties in view of the provisions of the Advocates Act. Shri Deshmukh also contended that principle of agency as laid down by this Court in Khadilkar's case is impliedly overruled by the Supreme Court in Paradip Port Trust case. In Paradip Port Trust case the Supreme Court has not accepted the doctrine of agency as was recognised by this Court in Khadilkar's case. According to Shri Deshmukh if the writ of mandamus as claimed for by the petitioners is issued by this Court, then this Court will be granting recognition to the labour advisers as a class, entitled to practise law, which will be contrary to provisions of the Advocates Act. Therefore, according to Shri Deshmukh the Full Bench of the Industrial Court was right in coming to the conclusion that the Labour Advisers cannot be permitted to represent parties in the proceedings instituted under the Act. However it is not disputed by Mr. Deshmukh that in view of the provisions of section 32 of the Advocates Act, the Industrial Court can permit any person, not enrolled as an Advocate under the Act, to appear before it in any particular case. However it is contended by him that this discretion will have to be exercised in a judicial manner, without caprice and according to the principles of law and rules of justice. Meaning thereby that by granting blanket permission to a class of persons the Industrial Court cannot permit them to practise law. In support of this contention Shri Deshmukh has placed reliance upon the decision of the Supreme Court in Paradip Port Trust case as well as the later decision of the Supreme Court in Harishankar Rastogi v. Girdhari Sharma and anr. : 1978CriLJ778 , and the decision of this Court in Bhiwa Yeshwant v. Regional Director E.S.I. Corporation 1978 M.L.J. 589.

7. Thus the controversy involved in these writ petitions lies in a very narrow compass. In terms the petitioners i.e. the employers and the Labour Advisers have prayed for a writ of mandamus or direction in the nature of writ of mandamus directing the respondent No. 3 the Industrial Court to frame appropriate regulations providing for the Labour Advisers to appear in proceedings under the Act. Though initially it was contended that the Labour Advisers have a right to practise the profession of law before the Industrial Court, at the time of arguments the said contention was given up and instead it was contended that the Labour Advisers should be allowed to appear before the Industrial Court with the permission of the said Court. It was also contended by Shri Bhatkal that a party to the proceedings has a right to be represented by the Labour Advisers unless that right is taken away by the enactment either expressly or by necessary implication.

8. For properly appreciating the controversy raised in these writ petitions it will be worthwhile if a reference is made to the relevant provisions of the Act. The legislature has enacted a complete Code, by defining the expression. 'Unfair Labour Practice' and also providing for an independent and speedy remedy for dealing with the complaints in that behalf. Chapter IV of the Act deals with the obligations and rights of the recognised union, other unions and certain employees. Sections 20 and 21 deal with the rights of the recognised union. Section 22 deals with the rights of unrecognised union. Section 36 provides that an officer duly authorised by the State Government is entitled to appear in the proceedings on behalf of the said Government. Similarly section 37(5) provides that an Investigating Officer is entitled to appear in any proceedings under the Act. Then comes Regulation 11 which is framed under section 33 of the Act. Regulation 11 reads as under :

'11. Appearance before the Industrial Court : A party to any proceeding, an employer, an employee a trade union of the members employed in any undertaking or the owner of the undertaking or any other person impleaded to a proceeding may appear in person or may be represented by (1) a duly authorised Advocate, (2) an office-bearer of the union of which the employee is a member of (3) a member of a recognised union duly authorised by it in writing or (4) an officer who is a whole time employee of the employer, authorised by such employer. 'OR (5) an officer of an association of employers of which the employer concerned is a member, provided he is duly authorised by the association.'

From the categories enumerated in Regulation 11 it is quite clear that a party to the proceedings can appear in person and may be represented by a duly authorised Advocate, since an Advocate is entitled to practice the profession of law in view of the provisions of the provisions of the Advocates Act. An office bearer of the union of which the employee is a member or member of the recognised union duly authorised by the union in writing is also entitled to represent the employee whereas an officer who is a whole time employee of the employers and is duly authorised by such employer can represent the employer. Similarly an office bearer of the Association of the employers of which the employer concerned is a member, if duly authorised by the Association can represent the employer. It is not shown that any of the categories who are entitled to represent the employer or the employee as of right are either excluded, or are not provided for. By this regulation an unqualified right is conferred upon the parties to be represented by the class of person mentioned therein. In that sense it is exhaustive but it is not exhaustive of the power of the Court to grant permission to some other person in a give case. The persons authorised to represent the parties except an Advocate are in one way or other connected with or are interested in the process of collective bargaining or settlement of industrial disputes. In my opinion the controversy whether the Regulation 11 is exhaustive or illustrative is not germane for deciding the controversy involved in these writ petitions. Section 33 provides for framing of regulations which must be consistent with the provisions of the

Act and the Rules made thereunder. It is an admitted position that in the enactment there is no prohibition, so far as the legal practitioners are concerned. However, a contention was raised before me by Mr. Bhatkal that by process of incorporation the provisions of section 36 of the Industrial Disputes Act which includes section 36(4) are incorporated in the provisions of Unfair Labour Practices Act. It is not possible for me to accept this contention for more than one reason. Section 20 of the present enactment confers a right upon the recognised union to appear in the proceedings under the Act. Sub section (2) of section 20 reads as under :

'(2) Where there is a recognised union for any undertaking :

(a) that union alone shall have right to appoint its nominee to represent workmen on the works committee constituted under section 3 of the Central Act,

(b) no employee shall be allowed to appear or act or be allowed to be represented in any proceedings under the Central Act (not being a proceeding in which the legality or propriety of an order of dismissal, discharge, removal, retrenchment, termination of service, or suspension of an employee is under consideration), except through the recognised union; and the decision arrived at or order made, in such proceeding shall be binding on all the employees in such undertaking; and accordingly, the provisions of the Central Act, that is to say, the Industrial Disputes Act, 1947 (XIV of 1947), shall stand amended in the manner and to the extent specified in schedule I.'

The concept of recognised union was unknown to Central Act and since the provisions are made in the present enactment laying down rights and duties of the recognised union, qua proceedings under the Central Act also the legislature took this occasion to amend section 36(1) of the Central Act by Schedule I. Only because section 36(1) is amended by the present enactment it cannot be said that the section 36 as a whole is incorporated in the present enactment. On the other hand the intention is otherwise. If the legislature wanted to incorporate section 36 in the present enactment it was not necessary to make a distinct and separate provision for the representation of the parties before the Industrial Court. Since a special status was conferred upon the recognised union qua the industries and proceedings covered by the Central Act a consequential amendment became necessary to section 36 of the Central Act to bring it in the tune with the legislative intend. This is clear from the words and expressions used in section 20(2) of the Act and particularly from the words 'accordingly' and 'in the manner and to the extent specified in Schedule I.' I find it difficult to accept this contention of Mr. Bhatkal for one more reason. Section 36(4) of the Central Act, allows legal practitioner to represent the party with the consent of other parties and with the leave of the Court. The legal practitioner is not entitled to appear, act and plead the case of the party in his own right. I do not find any reason to import this restriction in the present enactment, when the legislature has not chosen to put any fetters on the right of representation by the Advocate. This is the reason why Mr. Damania Advocate, appearing for the petitioner in O.S. Writ Petition No. 357 of 1983 has not supported the said contention of Mr. Bhatkal. However it was seriously contended that the provisions of this Act, should be treated as para materia or supplementary to section 36 of the Central Act. In substance it was contended that section 36 is para materia to Regulation 11 or in any case the law laid down under section 36 must apply in principle to the provisions of the present enactment and particularly to Regulation 11 thereof. It is not possible for me to accept this contention also. In section 36 it was not provided for that a party to the proceedings can appear in person. Sub-section (4) of section 36 in terms lays down that in any proceedings before the Labour Court or Tribunal or National Tribunal a party to a dispute may be represented by a legal practitioner with the consent of other parties to the proceedings and with the leave of the Labour Court or Tribunal or National Tribunal as the case may be. Therefore, the legal practitioner is not entitled as of right to represent a party. Fetters were imposed upon the rights of the legal practitioner, who is legally entitled to represent a party and practise profession of law. Such is not the position so far as the present enactment is concerned. A party is entitled to depend upon the services of an Advocate as of right. Apart from an Advocate a party is also entitled to appear in person and to be represented by the person enumerated in Regulation 11. An officer of the State Government duly authorised can represent the State Government and an Investigating Officer is also entitled to appear in any proceedings under the Act. Thus the provisions of this Act are neither para materia nor supplementary to section 36 of the Central Act. Therefore, the principles of law laid down by this Court as well as the Supreme Court will have to be understood with reference to the relevant provisions of the Central Act as well as the present Act. Reliance was placed by the petitioners upon the decision of this Court in K.K. Khadildar's case wherein this Court has held that 'the provisions contained in section 36(2) are not exhaustive, and therefore, it is open to the employer to seek to be represented in a proceeding under the Act by a person other than those mentioned in Clauses (a), (b), and (c) of sub-section (2) of section 36. The Division Bench further held that exercise of this right is subject to the direction of the Authority concerned to deny to a particular person the right of audience. This discretion which flows from section 11 of the Central Act, which gives the Tribunal the right to regulate its proceedings, must of course be used judicially. The Division Bench also noted the striking contrast between section 36 and Order 3, Rule 1 of the Civil Procedure Code. This is what the Division Bench observed in this context in paras 18 and 19 of the judgment :

'18. Section 36 of the Act presents a striking contrast with Order 3, Rule 1 of the Code of Civil Procedure. The policy of the Code in regard to representation is to restrict the right of pleading to legal practitioners and to deny that right to recognised agents. The policy of section 36 of the Act on the other hand is to allow the right of audience to legal practitioners under stated conditions only and to concede an unrestricted right of representation in favour of a class of agents. That the right of representation mentioned in section 36 covers the right of pleading is clear from Rule 32 of the Industrial Disputes (Bombay Rules), 1956 which says that the representatives of parties shall have the right of examining, cross-examining and re-examining witnesses and of addressing the authority on completion of the evidence. If the basic policy of the two statutes is so strikingly different, it would be wrong in our opinion to construe the provisions of section 36 of the Act by reference to the decisions turning on the peculiar language of Order 3, Rule 1 of the Code of Civil Procedure.

19. On the construction of the words used in section 36 of the Act we are, therefore, of the opinion that Clauses (a), (b) and (c) of sub-section (2) are not exhaustive of the right of an employer to be represented in a proceeding under the Act. Those clauses are devised merely to create an unqualified right in an employer to be represented by a class of persons. They do not take away his right to be represented in any other lawful manner.'

Further the Division Bench found that there is an inherent right in the Court to grant permission to some other person since it is empowered to regulate its own procedure. Section 33 of the Act, empowers the Industrial Court to make regulations consistent with the provisions of the Act and the Rules made thereunder regulating its procedure. This is what has precisely been done by the Industrial Court by framing Regulation 11 and other regulations. In the present enactment there is no prohibition or fetter on the right of the legal practitioner. Therefore it could safely be said that an expert legal adviser is available to parties since they have an unqualified right to be represented by an Advocate. In Paradip Port Trust case the Supreme Court has approved the law laid down in Khadilkar's case and held that the section 36 is not exhaustive. However it was contended by Shri Deshmukh that in Khadilkar's case this Court was concerned with a person, who was working as Personal Officer of the Company. He was a lawyer by qualification being a graduate in law. He held a contract with the Company under which he was receiving monthly payment. In addition the Company used to pay him fixed fees for appearance in legal proceedings. That was not a case of a legal Adviser who was not in payment of anybody, and was freely practising law. A contention has also been raised by Shri Deshmukh that the decision of this Court in Khadilkar's case is partly overruled i.e. to the extent that the Supreme Court has not accepted the broad proposition laid down by this Court based on the law of agency. It is not necessary for me to deal with this contention of Shri Deshmukh since in my opinion it is not necessary to do so for disposing of these writ petitions. I am not concerned with the broad proposition raised by Shri Deshmukh in these writ petitions since only question which requires consideration and decision in these writ petitions relates to the right of labour advisers to appear before the Industrial Court in the proceedings instituted under the provisions of the said Act. However it is pertinent to note that in Paradip Port Trust case also the Supreme Court scrutinised the qualifications of Shri T. Mishra, who wanted to represent a party and found that the Tribunal was right in coming to the conclusion that he cannot be held to be an officer of the Trust. Thus the right of representation was not granted to any Tom Dick or Harry. Further in para 13 of the judgment the Supreme Court held that companies and corporations 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 provisions of the Act. This would not, however, mean that parties are free to engage legal practitioners by means of a special power of attorney to represent their interests before the Tribunal without consent of the opposite party and leave of the Court. Thus in substance it was held that what is not permitted by law or is prohibited cannot be achieved indirectly under the garb of power of attorney.

9. Similarly the decisions on which reliance is placed by the petitioners i.e. the unreported decisions of the Division Bench of this Court in Special Civil Application No. 209 of 1972 or Misc. Petition No. 1547 of 1978, are of little assistance for deciding the controversy involved in these writ petitions. In Writ Petition No. 209 of 1972 the Division Bench was concerned with the controversy as to whether the authority filed by Shri P.V. Joshi, who sought to represent employer before the Labour Court was sufficient or insufficient and ultimately the Division Bench came to the conclusion that the letter of authority executed in writing was sufficient to enable Shri Joshi to represent the petitioners Company before the Labour Court. In M/s. Rational Art & Press Pvt. Ltd., Desai, J., was also concerned with the controversy raised under section 36 of the Central Act. It appears that in that case one Mr. S. Chaudhary was not allowed to appear before the Court since he failed to satisfy the requirements of sub-section (2) of section 36 of the Act. Desai, J., observed that 'It is pertinent to note that Mr. Chaudhary has not been denied the right to appear for the employer by the Tribunal under any of its discretionary powers or by reason of some other aspect which may be related to his incompetence or otherwise to appear before the Tribunal but only on the consideration that he did not fall within the three categories indicated in sub-section (2)'. Therefore in none of these cases the controversy which is precisely raised in these writ petitions was raised or considered.

10. It is nobody's case that the labour advisers is a class, well known or well defined, by any enactment or statutory provision. It is also not shown nor it is argued that in his own right a Labour Adviser has any inherent, legal or constitutional right to practise law before any Court or Tribunal. However it is contended that the employer has a right to be represented by an agent of his choice in the proceedings under the Act and this right cannot be denied to him. It is not possible for me to accept such a broad proposition nor such a blanket power can be conferred upon the Labour Advisers to practise law in Industrial or Labour courts. It will be neither fair nor proper to equate labour advisers with legal practitioners or Advocates. An Advocate is bound by law that is, Advocates Act as well as ethics. He has to discharge his duties with dignity, decorum and discipline. This Court had an occasion to consider the nature of this profession in Sakharam Narayan Kherdekar v. City of Nagpur Corporation and others., : AIR1964Bom200 . While pointing out the distinction and difference between the law practice as contrasted with other commercial ventures, this Court relied upon the following observations of Henry S. Drinker in his 'Book on Legal Ethics'. The primary characteristics which distinguish the legal profession from business are : (1) a duty of public service in which one may attain the highest eminence without making much money, (2) a relation as 'an officer of Court' to administration of justice involving thorough sincerity, integrity and reliability, (3) a relation to clients in the highest degree fiduciary, and (4) a relation to colleagues at the bar characterised by candour, fairness and unwillingness to resort to current business methods of advertising and encroachment on their practice, or dealing directly with their clients'. The profession of law is a liberal and noble profession. It requires a specialised skill and training. Everyone is not entitled to practise at law or appear in courts unless he obtains a certificate of enrolment under the Advocates Act. An Advocate works under strict discipline and is subject to rigid Code of conduct and ethics both in courts as well as outside. Whether this Code is prescribed by a chosen body like the Bar Council or by statute, or by the judicial authorities, the important fact to be noted is that nobody can practise law without being subject to these disciplines. A lawyer is not entitled to canvass for his brief. He is under certain obligations and owes a duty to the Court. In fact, he is described as an officer of the Court and plays an important role in the administration of justice. It is nobody's case that before the labour adviser starts practice in Court he must have a minimum qualification. No enrolment or certificate is required for being described as a labour adviser. He need not possess any educational or other qualifications. During the course of arguments it was not disputed that there is a wild and mushroom growth in this self-styled class of labour advisers. They are not subject to any law, ethics or discipline either self-imposed or otherwise. Under certain laws there are restrictions even on the right of an Advocate, who is bound by law, ethics and discipline whereas better and higher rights are being claimed by class of persons who are freelance and not bound by any law, ethics or discipline. I am not concerned with any particular individual or personality but with the class of persons styled as labour advisers. Law cannot be so interpreted as to result in conferring greater and higher rights on the class of persons who are not bound by any law. Otherwise it will mean that a quack has better and higher rights to practise medicine than a duly qualified medical practitioner, and more irresponsible a man, greater are his rights. This Court had an occasion to deal with such a person in Bhiwa Yeshwant v. Regional Director of E.S.I. Corporation and others. 1978 M.L.J. 589. I am also informed that some legal practitioners have surrendered their certificates of enrolment and have started practice as labour advisers to overcome the bar laid down by section 36(4) of the Central Act, and section 83-A of the Bombay Industrial Relations Act.

11. Petitioner No. 2 Mr. J.G. Ghag in Writ Petition No. 1011 of 1983 has admitted that he is working as labour advise appearing in the proceedings under various labour and industrial Acts for 16 years. It also appears to be a common ground and this position was conceded before the Industrial Court that the labour advisers do practise law by appearing, acting and pleading on behalf of their clients in courts. Thus these labour advisers are carrying on profession of law, though they are not enrolled as Advocates under the Advocates Act. To say the least to recognise such a class will be negation of the provisions of the Advocates Act. Person's right to practise is recognised by Chapter IV of the Advocates Act. Advocates is the only recognised class of persons who are entitled to practise law. Section 29 makes this position very clear. Section 33 then lays down that Advocates alone are entitled to practise. As per section 33 of the Advocates Act, except as otherwise provided for in the said Act, or in other law for the time being in force, no person shall, on or after the appointed day, be entitled to practise in any Court or before any authority or person unless he is enrolled as an Advocate under this Act. There is an exception to this general rule which is incorporated in section 32 of the Act. It lays down that notwithstanding anything contained in this chapter, any Court, authority or person may permit any person, not enrolled as an Advocate under the Advocates Act to appear before it or him in any particular case. Therefore, specific prohibition has been laid down by the Advocates Act, both in positive and negative form that no person other than an Advocate will be entitled to practise law in any Court or before any authority. Section 45 makes this position clear beyond doubt. It provides for penalty for persons illegally practising in courts and before other authorities. Therefore recognising the right of a labour adviser to practise law in the Industrial Court will be in breach of the provisions of Advocates Act. Unless it is shown that a labour advise has an inherent or legal or constitutional right to practise law, a prayer for issuing a writ of mandamus as claimed for cannot be granted. Granting of such a writ of mandamus will run counter to the very provisions of the Advocates Act, and it is well settled principle of law that what is directly prohibited cannot be achieved or permitted indirectly or obliquely.

12. It is no doubt true that an employer has a right to be represented before the Industrial Court in any lawful manner. He has an unqualified right to be represented by the class of persons enumerated in Regulation 11. In a given case the Court in its judicial discretion may grant him permission to be represented by some other person i.e. other than the one referred to in regulations. However since the Labour Advisers are not entitled to practise the profession of law in view of the provision of Advocates Act, they cannot be permitted to achieve the same result, that is to practise the profession of law by framing a regulation under section 33 of the Act. They cannot also be permitted to practise the profession of law under the cover or garb of special power of attorney. In this context Shri Deshmukh has rightly placed reliance upon the decision of the Supreme Court in Harishankar Rastogi v. Girdhari Sharma and another, : 1978CriLJ778 . The following observations of the Supreme Court in para 2 are pertinent :

'2, Advocates are entitled, as of right, or practise in this Court (section 30(i) of the Advocates Act, 1961). But this privilege cannot be claimed, as of right, by any one else. While it is true that Article 19 of the Constitution guarantees the freedom to practise any profession, it is open to the State to make a law imposing, in the interest of the general public, reasonable restrictions on the exercise of the right. The Advocates Act, by section 29, provides for such a reasonable restriction, namely that the only class of persons entitled to practise the profession of law shall be Advocates. Even so, is it not open to a party who is unable for some reason or other to present his case adequately to seek the help of another person in this behalf? To negative such a plea may be to deny justice altogether in certain cases, especially in a land of illiteracy and indigence and judicial processes of a supplicated nature. That is precisely why legislative policy has taken care to provide for such contingencies. Sections 302, 303 and 304 of the Criminal Procedure Code are indicative of the policy of the legislature. I do not think that in this Court we should totally shut out representation by any person other than the party himself in situations where an Advocate is not appearing for the party. A comprehensive programme of free legal services is in a sense a serious obligation of the State if the rule of law were to receive vitality in its observance. Until then parties may appear through Advocates, and where they are not represented by one such through some chosen friend. Such other person cannot practise the profession of habitually representing parties in Court. If a non-Advocate specialises in practising in Court, professionally he will be violating the text of the interdict in the Advocates Act. I cannot allow him to do so. Nevertheless, it is open to a person, who is party to a proceeding, to get himself represented by a non-Advocate in a particular instance or case. Practising a profession means something very different from representing some friends or relation on one occasion or in one case or on a few occasions or in a few cases. In the present instance, permission is sought for representation through a non-Advocate. It is absolutely clear that anyone who is not an Advocate, cannot, as of right, force himself into this Court and claim to plead for another. Permission may however, be granted by this Court taking the justice of the situation and several other factors into consideration for such non-professional representation. This approach accords with the policy of the Criminal Procedure Code (I am concerned with a criminal proceeding here) as spelt out in section 2(q). A pleader by definition, includes any person other than one authorised by law to practise in a Court if he is appointed with the permission of the Court, to act in a particular proceeding. This Court's power may well be exercised in regulating audience before it in tune with the spirit of section 2(q) of the Code.'

Then in para 3 of the judgment the Supreme Court has considered the wisdom of the discretion in granting permission to some other persons to represent a party. The Supreme Court observed that the Bar is an extension of the system of justice, and an Advocate is an officer of the Court. He is master of an expertise but more than that accountable to the Court and governed by a high ethic. The success of the judicial process often depends on the services of legal profession. Then in para 4 this is what the Supreme Court has observed :

'4. Having regard to this conspectus of considerations I hold that a private person, who is not an Advocate has no right to barge into Court and claim to argue for a party. He must get the prior permission of the Court, for which the motion must come from the party himself. It is open to the Court to grant or withhold permission in its discretion. In fact, the Court may, even after grant of permission, withdraw it halfway through if the representative proves himself reprehensible. The antecedents, the relationship, the reasons for requisitioning the services of the private person and a variety of other circumstances must be gathered before grant or refusal of permission.'

Though the Supreme Court held that the Court has power to grant permission to the party to be represented by a chosen friend, it is made clear that such other person cannot practise the profession of habitually representing parties in Court. If a non-Advocate specialises in practising in Court, professionally he will be violating the text of the interdict in the Advocates Act and he cannot be allowed to do so. Therefore, it is quite obvious that what is prohibited by the Advocates Act cannot be indirectly achieved or granted while exercising the discretionary power of the Court. The discretion conferred upon the Court will have to be exercised in judicial manner without caprice and according to the principles of law and rules of natural justice. No general rule can be laid down in this behalf and to some extent it must depend on the facts and circumstances of each case. Sufficient guidelines have been laid down by the Supreme Court in Harishankar Rastogi's case for exercising this discretionary power. Therefore, in my opinion the Full Bench of the Industrial Court was right in not recognising an omnibus and blanket right of the legal advisers to practise the profession of law under the Maharashtra Recognition of Trade Union and Prevention of Unfair Labour Practices Act.

13. It was than contended by Mr. Damania that this Court can direct the Industrial Court to frame appropriate regulations for laying down conditions subject to which the right of the labour advisers to carry on their profession, could be recognised I find it difficult to issue any such direction since the very concept of Labour Advisers is not duly defined by any law or statutory provision. A writ, order or direction in the nature of writ of mandamus can be issued only in the cases where there is a statutory duty imposed upon an authority and there is a failure on the part of that authority to discharge that statutory obligation. Therefore, the appeal made by Mr. Damani lies somewhere else that is to the Legislature.

14. However it was contended by Mr. Bhatkal that the term legal adviser as used in section 33 of this act and section 92 of the B.I.R. Act should be liberally construed so as to include in its import the category of labour advisers. It is not possible for me to accept this contention also. Even if the said term is construed very liberally still it cannot take in its import a person who is not authorised to practise the profession of law. It can at the most take in its import a person who is authorised in law to represent a party before a Court of law. But this engagement of a representative must be lawful, and not prohibited by the law in the field. Once it is held that practice of law is governed by the relevant provisions of the Advocates Act, then anything which is prohibited by the Advocates Act cannot be termed as legal or lawful. Therefore, in my opinion it cannot be said that the view taken by the Full Bench of the Industrial Court is so unreasonable, so as to call for an interference in the writ jurisdiction of this Court.

15. It appears that before the Industrial Court Mr. Shastri, Counsel for the Union had urged that an action should be taken against Mr. Joshi under the Advocates Act since he is practising the profession of law without being enrolled as an Advocate. This question has been kept open by the Industrial Court. However in my opinion at least at this stage no action is called for against Mr. Joshi under the Advocates Act. It cannot be disputed that Mr. Joshi was appearing before the Industrial Court since no objection was raised in that behalf. Further as soon as an objection was raised Mr. Joshi has chosen to get himself enrolled as an Advocate under the Advocates Act. I am informed that he is duly enrolled as an Advocate. I am fully satisfied that all through Mr. Joshi has acted bona fide. Therefore, at least at this stage no action is called for against Mr. Joshi under the Advocates Act. In all fairness Mr. Deshmukh appearing for Bar Council or Mr. Varadaiyya, Counsel for the Union have not pressed for such an action.

16. In the view which I have taken, therefore, there is no substance in these writ petitions. Petitions fail. Rule is discharged. However in the circumstances of the cases there will be no orders as to costs.


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