1. The facts in this case are briefly as follows : The first petitioner in this case is Reckitt & Colman of India Limited a company incorporated in India having its factories where it employs workmen. By an order dated 2-6-1954 the Government of West Bengal referred to the respondent 1 the 3rd Industrial Tribunal, Calcutta certain disputes between the company and its workmen represented by the union, namely, the Reckitt & Colman Workers' Union. A copy of the order of reference is annexed to the petition and marked with the letter 'A'.
The proceedings before the respondent 1 commenced on 8-6-1954. A copy of the order sheet of proceedings before him up to 30-3-1954 is annexed to the petition and marked with the letter 'B'. For the purposes of this application it will be necessary to refer also to the subsequent order sheet a copy whereof has been produced at the hearing. I direct that the said copy be marked as an exhibit and also kept on the record.
It appears from the order sheet that the proceedings went on as follows : On 8-5-1354 the order was received by the Tribunal and notice was issued. On 25-C-1954 Sri J. K. Ghose appeared for the company and prayed for time which was granted. What happened was that the company engaged the services of Messrs. Orr Dignam & Co.a well-known firm of solicitors in Calcutta, and Sri Ghose an advocate was employed by the said firm and was instructed by the solicitors to represent the company at the hearing.
On 10-7-1954 it was brought to the notice of the Tribunal that the company had authorised Messrs. Orr Dignam & Co. to represent them, and the Tribunal gave a direction that the other side should be informed of this. Subsequent to this direction the matter came up before the Tribunal on various occasions, and one or other party appeared and filed pleadings, obtained adjournments and so forth.
2. Next we come to the order made on 11-3-1955. The order sheet states as follows :
'Parties present : Shii P. P. Jinwalla, Counsel with Sri N. K. Raha, Advocate, appears for the company.
Sri Ram Sau appears for the Union.
The company filed a petition under Section 21 of I. D. Act to treat the matter contained in the balance-sheet as confidential. Case opened at great length and perused the balance-sheet. The Union filed a petition for directing the company to produce account books relating to certain items contained in the balance-sheet. The company opposes. The Union is to apply according to law. After hearing the parties a suggestion is made to them to effect an amicable settlement of the dispute. Parties are willing to do so and pay for time to get necessary approval. The case is accordingly adjourned to 30-3-55.'
3. It will, therefore, appear from the order sheet itself that the hearing of the case had actually started and in fact it was 'opened at great length'. The Tribunal then perused the balance-sheet and subsequently there was a talk of amicable settlement and the case was adjourned. No objection was taken to the appearance of lawyers for the company. On 30-3-1.955 the matter again appeared before the Tribunal and the Tribunal was informed that the compromise could not be effected and the matter was adjourned till 2-6-1955 for hearing.
It appears, however, that the matter was again adjourned from time to time. On 5-9-1955 the President of the Trade Union filed a petition objecting to the representation of the company by a legal practitioner. This objection was conveyed to the company. On 30-9-1955 the matter came up before the Tribunal and the Union renewed its objection. On that day, the Tribunal upheld the objection. It appears that on that date both parties prayed for time and the matter was adjourned.
On 5-10-1955 the order sheet shows that the company was ready but the Union filed a petition for time and the case was again adjourned to the 19th of December. On 19-12-1955 the Union was ready but the company filed a petition for time to move the High Court regarding the exclusion of lawyers to represent it. The Tribunal, however, refused to grant any further adjournment and held that the company had ample time to move the High Court. It ordered that the matter would be heard forthwith and if the company was not ready It would be heard ex parte.
4. The representative of the company informed the Tribunal that the necessary papers had been made over to the solicitors for moving the High Court and it was not in a position to proceed. The hearing was however not adjourned. On 21-12-1955 the award was made.
On 23-12-1955 this Rule was issued upon the respondents to show cause why an order in the nature of a writ of certiorari should not be made quashing and/or setting aside the award, why a writ in the nature of prohibition should not be made restraining the respondents from giving theeffect thereto and why a writ in the nature of mandamus should not be made commanding the first respondent to forbear from determining the disputes referred to him without giving the petitioner a proper hearing and for other reliefs. An interim order was made, and I shall have occasion to refer to it later on.
5. Two points have been taken by Mr. Jinwalla appearing on behalf of the petitioner in support of the rule. The first point is that Section 33(4), Industrial Disputes Act, 1947 is ultra vires, as offending against Article 19(1)(g) of the Constitution. The second point is that assuming that the provision of law was intra vires, it was not competent to the Tribunal to stop the petitioner availing itself of the services of a lawyer for the purposes of representation before the Tribunal, at the stage in which it was done. The grievance is that once consent has been given expressly or impliedly it cannot be revoked.
6. Section 36(4) runs as follows :
'In any proceeding before a 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 Tribunal.'
7. It will be observed that in this application the company is the first petitioner. The second petitioner is a partner of Messs. Orr Dignam & Co. and the third petitioner is an Advocate employed by them. He was a junior to Mr. Jinwalla in the case and had appeared on 11-3-1955 and attempted to appear later on as well.
With regard to the first point, Mr. Jinwalla argues that a citizen of India has the right under Article 19(1)(g) of the Constitution to practise arty profession. He says that so far as the petitioners 2 and 3 are concerned, that right has been infringed by Section 36(4), Industrial Disputes Act. It is, therefore, void. This point has been agitated before other High Courts and it has been held by the Bombay and the Madras High Courts that such a provision of law was intra vires and valid.
The first case is a Divisional Court judgment of the Bombay High Court : -- 'Mulchand Gulab-chand v. Mukund Shivram', : AIR1952Bom296 (A). A dispute between the petitioner who was a member of the Bombay Provincial Co-operative Bank Limited, and the Society, was referred to arbitration under Section 54, Co-operative Societies Act. The petitioner wanted to appear before the Arbitral Tribunal through his Advocate.
Under Rule 36 framed by the Provincial Government under the Act, it is laid down that in proceedings held under Rules 32 to 35, no party shall be represented by a legal practitioner. The Tribunal refused to allow the petitioner to be represented by a legal practitioner. An application was thereupon made to the Bombay High Court and it was contended that Rule 36 was ultra vires inasmuch as it totally prohibited representation of a party by a legal practitioner and was unreasonable.
Chagla C. J. pointed out that the company did not have any fundamental right to be heard through its Advocate or its lawyer. It was, therefore, a case of construing whether a rule made within the ambit of the Statute was bad as being unreasonable. The learned Chief Justice pointed out that the jurisdiction of the Courts in this respect was very limited. He however dealt with the right of a lawyer to practise under such circumstances. He pointed but that the right of a lawyer to practise was not an absolute right. It was governed by the Bar Councils Act which provided by Section 14(1) that an Advocate enrolled under the Bar Councils Act might practise in Courts other than the High Court, or before any otherTribunal, 'save as otherwise provided by Sub-section (2) or by or under any other law for the time being in force.'
In the opinion of the learned Chief Justice, if any law, which regulated the procedure before such Courts and Tribunals, prevented the appearance of a lawyer then he had no right to practise therein, not only because of the provisions of that law, but because under the Bar Councils Act itself he obtained no right to practise therein.
The learned Chief Justice further pointed out that the position in England was the same, and as soon as a person had been called to the Bar he could, unless he was prohibited either by a Statute or by some convention of the Bar or some conditional limitation imposed upon him by his Inn, practise as counsel, in accordance with the rules of the profession.
Therefore in England also, a Barrister had not an unlimited and absolute right to practise before a Tribunal. It was open to the law of the land to prohibit a Banister from practising before any Tribunal, and if the law prohibited him from practising, then his right was controlled and restricted by the law for the time being in force. He proceeded to say as follows':
'In coming to this conclusion we are conscious of the fact that we should try and safeguard the rights and privileges of lawyers. We are also conscious of what valuable assistance litigants obtain from the legal profession. We are also conscious of the fact that as far as possible where legal rights are to be decided and judicial decisions are to be given, litigants should be permitted to be represented by lawyers.
But whether before a particular Tribunal a lawyer should be allowed to appear or not is a matter of policy with which this Court cannot primarily be concerned. All that we may point out is that it may lead to considerable hardship if in important matters where complicated questions of fact or law arise a litigant is denied the right and privilege of being represented by a lawyer of his choice. It may be that the Arbitrator's themselves and those presiding over judicial or quasi-judicial Tribunal themselves may feel the necessity of having the help and guidance of the lawyers.
Rule 36 is so absolute and so drastic in its terms that even if the Arbitrators wanted the assistance of lawyers they are precluded from allowing practitioners to appear before them. The Arbitrators may also feel that in a particular cause a litigant's rights would be affected or jeopardised by his not being permitted to fight his cause through a lawyer.
The Rule 36 as framed gives no discretion whatever to the Arbitrators. We would suggest to Government to consider whether it is not advisable to reframe Rule 36 so as to give a discretion to the Arbitrators whether to permit lawyers or not and not to permit Rule 36 to remain in its absolute unqualified form.'
8. The nest case that may be cited is --'Rangaswami v. Industrial' Tribunal Port St. George, Madras', : (1953)IILLJ24Mad (3). This was a case under Section 36(4), Industrial Disputes Act, 1947, as amended by the Industrial Disputes (Appellate Tribunal) Act, 1950. There also objection was raised by a company which was a party to a reference, and its lawyer. It was contended on behalf of the lawyer that Section 36(4) violated his fundamental right under Article 19(1)(g) of the Constitution. It was contended on behalf of the company that the section infringed the rule of equality embodied in Article 14 of the Constitution. It was further contended that the prohibition to be represented by an Advocate except with the consent of the other side was against all principlesof natural justice. Subbarao J. relied on the Bombay case cited above and decided against all the contentions mentioned above. The learned Judge pointed out that the lawyer's right to practise was subject to limitations contained in the Bar Councils Act. One of such limitations is that he shall be entitled to practise in any other Court in British India and before any other Tribunal 'save as otherwise provided by or under any other law for the time being in force.'
9. According to the learned Judge, the lawyer cannot accept the privilege or right to practise before a Tribunal and at the same time reject the limitations subject to which that right, was conferred on him. If so understood, his right to practise, that is the right circumscribed by the provisions of the Act whereunder he was enrolled, was not infringed by the provisions of Section 36(4), Industrial Disputes Act. There was, therefore, no violation of his fundamental right under Article 19(1)(g), Constitution of India.
10. The next case cited is 'Rangaswami v. Industrial Tribunal, Fort St. George, Madras, : AIR1954Mad553 (C). This judgment is in appeal from the judgment of Subbarao J. cited above. Aiyar, J. pointed out that in England a Barrister had the right to appear only before Courts. Where the question was whether a Barrister was entitled to appear before Tribunals, the answer must be found in the terms of the Statute by which the Tribunals were created.
The learned Judge pointed out that under various Acts, e.g. Section 137(3), Income-tax Act, 1913 as amended by Finance Act of 1923, Section 7, Architects (Registration) Act 1931, Sections 50 and 51, Railway and Canal Traffic Act, 1888, provisions were made expressly for the appearance of lawyers. On the contrary, there are several Statutes where it is restricted or disallowed. In America, the right to practise has been held to be not an absolute right but a privilege or a franchise. The learned Judge concluded as follows :
'The position, therefore, is that a person who has obtained the requisite legal qualifications is not entitled on that ground alone to a right of audience in Courts, He must, further, be admitted to the Bar before he could practise. That is a matter which is regulated by Statutes and the extent of the right to practise must depend on the terms of those Statutes. This right is also a privilege as it is limited to those who are admitted to the Bar. It is what the American jurists aptly describe as a 'franchise'.
In this country the matter is governed by the Bar Councils Act and the Legal Practitioners Act. The right of the first appellant to practise is therefore just what is conferred on him by Section 9 and Section 14(1) (a), (b), (c), Bar Councils Act, neither more nor less, and when the particular right claimed by him cannot be found within the four corners of these sections then there is nothing in respect of which the guarantee under Article 19(1)(g) could be invoked. That Article merely operates to protect the rights which a person otherwise possesses under the law. It does not create any new rights in him. The result then is that the right of the first appellant to appear before the Tribunal is under Section 14(1)(b), Bar Councils Act subject to any law for the time being in force. Section 36(4), Industrial Disputes Act is such a law and under that section he has a right to appear only when the third respondent consents.'
11. It was argued before the learned Judges that the provision as to permission being granted to appoint a lawyer subject to the consent of the other party is unreasonable as it puts in the power of one party to prevent his opponent from engaging counsel. The learned Judge says as follows:
'The reason for this somewhat unusual provision is stated to be that while the employer would be in a position to engage eminent counsel the labourers might not be and that would make the contest unequal. It is argued for the appellants that the above observations have lost much of their force at the present day when the labour is well organised. But apart from that, it should not be forgotten that some of the disputes that are referred to Tribunals involve complicated questions and without the assistance of trained lawyers the Tribunals might find it difficult to arrive at a just conclusion .......
To deprive them of legal assistance because of the opposition of the repesentatives of labour, would be to clog the wheels of justice. It is with a view to avoid this result that provisions are usually made in Statutes conferring on the Tribunal itself the discretion to grant permission to parties to appear by counsel. Such a provision would on the one hand enable the Tribunals to decide simple disputes speedily without the aid of counsel and at the same time enable them to get the necessary legal assistance in complicated cases.
Our attention has not been drawn to any Statute wherein a provision similar to Section 36(4), Industrial Disputes Act of 1947 has been enacted. There is, therefore, considerable force in the contention of the appellants that the section as it stands must result in a hardship. But this, however, is a matter for the Legislature to consider and not a ground for holding that the section is unconstitutional'
12. With great respect I should have thought that it might be possible to take a less strict view of the rights of lawyers to practise before Tribunals. It is true that the right of a lawyer to practise before Tribunals is not absolute, but I think that to an extent it is begging the question. A professional lawyer intends to practise before all judicial and quasi-judicial Tribunals. So i'ar as purely administrative Tribunals are concerned that is another matter.
Practising before such administrative Tribunals may be a question of privilege and privilege alone. It is true again that a lawyer can practise provided he has the requisite qualifications. But is it not implied in Article 19(1)(g) that the scope of such employment for a qualified lawyer should not be limited? In other words, it is true that a lawyer can practise before Tribunals subject to the legal provisions.'
But it is equally true that the whole basis of his practice anywhere, that is to say, either before the High Court or District Courts or any Tribunal is not unrestricted but subject to some law or other. Supposing the law which allowed him to practise in the High Court was changed preventing him from doing so, could it be said that since his privilege of practice is subject to the law, therefore there was no infringement of his fundamental right under Article 19(1)(g)?
The answer is obviously in the negative. Then I do not see why any law which prevents him from practising in the mofussil or before other judicial or quasi-judicial Tribunal is not equally a restriction which is against the provision of Article 19(1)(g). All this is certainly subject to the exception that a reasonable restriction may be imposed. That would be a question of fact.
The trend of the decisions above mentioned, is that the restriction as it stands is not entirely reasonable. Although this is my personal view, I find myself bound by the preponderance of authority and am constrained to hold that the provisions of Section 36(4) are not ultra vires. I must, however, associate myself with the remarks of the learned Judges quoted above. I think that the Legislature should take note of the fact that Industrial Disputes are not being adjudicated before Tribunals or in proceedings, where the intricacies of law find no place.
in practice, these Tribunals have become as much a Court as any other. The cases before the Tribunals bristle with points of law, some of which often come up to this Court, and I might say from my personal experience, involve questions which are hot easily solved. As a matter of fact, so far as the Appellate Tribunal, is concerned, there is a provision by which jurisdiction is conferred only if there was a substantial point of law involved. It is therefore conceded that substantial points of law might be involved in such proceedings. In fact, they often are.
13. It might be remembered that the Tribunals have now their own law reports, and one has only to open the reports to see whether the proceedings involve intricacies of law or not. On the other hand one must not lose sight of the fact that these Tribunals which deal with the affairs of poor workmen, should not be the happy hunting ground of those who believe in the exploitation of human miseries. Cases sometime do happen where on the one hand we have a wealthy employer and on the other a poor workman without resources. I, therefore, agree with Aiyar J. whom I have quoted above, that power should be given to the Tribunal in an appropriate case to prevent lawyers from appearing. But there is no justification for making it conditional upon the consent of one party or the other. This is almost equivalent to total exclusion. This, however, is a matter of legislative policy and I must rest content with having made my observations.
14. The next point that has been taken illustrates the dangers inherent in the impugned ruleof law. It would appear from the facts set outabove that the company informed the Tribunal atthe outset, of its intention to be represented by alawyer. There was no objection at the commencement of the hearing when Mr. Jinwalla appearedand the case was opened at length. At a subsequent stage the Union objected to the appearanceof a lawyer. By that time it must be taken to haveconsented to such appearance.
There is nothing in Section 36(4), that the consent was to be in any particular form. The Tribunal had informed the Union of the intention of the company to be represented by a lawyer and there was no objection at that stage. Therefore it must be inferred that the Union consented to the appearance of a lawyer and that the Tribunal granted it, because in fact it allowed the lawyer to appear in the case. The conduct of the Union in objecting at a later stage, amounts to a revocation of its consent.
There is no provision in the Act by which consent or leave once given can be revoked or retracted. If this was allowed, then it is easy to see that when the case had advanced the party losing might at once retract the consent and the other side would be intensely prejudiced. It might be done in the middle of cross-examination, or in the middle of the exposition of a difficult point of law. This will be an absurd construction of the particular provision of law. In my opinion, the order of the Tribunal at such a stage refusing to allow the company to be represented by a lawyer is illegal and cannot be supported.
15. Then comes the question of delay. It is said that the company had enough time to move the High Court for relief. It appears that on 5-10-1955 the company was going to appear through a lawyer and urged that the order preventing it from doing so was not right, but that it was the Union which asked for an adjournment. On the 19th December, the company asked for time to movethe High Court, because it was realised then that it would not be allowed to be represented by a lawyer. The papers were placed with the solicitors who had to consider the matter before taking any steps.
Although there has been some delay, I do not think that there has been such delay as to disentitle the company from getting any relief. The position is that the award which has been made without giving the company sufficient opportunity of being represented is bad. When the rule was issued I issued an interim injunction restraining the respondents, which included the Government, from giving any effect to the proceedings had before the first respondent. It appears that notwithstanding this interim order, the award has been published.
The learned Advocate General appearing at that stage on behalf of the respondent informed me that this was not done deliberately but through inadvertence, and although the Government was willing to cancel the publication there did not appear to be any provision for doing so. I have already stated that although in this particular case I accept the explanation, in future such dereliction would be sternly punished.
However, regard being had to the matter as it stood, there was no alternative left to the petitioners but to formally file an appeal in order to save limitation. This, however cannot be taken to be a voluntary act disentitling it from relief. The result is that on this point the application must succeed and the rule is made absolute and the award of the first respondent dated 21-12-1955 and the publication thereof dated 19-1-1956 must be set aside and quashed and a writ in the nature of certiorari issued for that purpose. There will also be a writ in the nature of mandamus and prohibition restraining the respondents from giving effect to it.
16. The result is that the matter must go backto the Tribunal to be re-heard according to law.There will be no orders as to costs.