JUDGMENT
P.G. Agarwal, J.
1. These batches of six writ petitions were heard analogously and disposed of by this common order.
2. Heard the learned counsel for both sides.
3. The writ petitioners before us have challenged the vires of the provisions of Section 36(4) of the Industrial Dispute Act, 1947, which reads as follows :
“In any proceeding (before a Labour Court, Tibunal 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).”
4. In order to appreciate the contentions raised, we may briefly reproduce the facts of Civil Rule No. 505 of 1993. The writ petitioner-management of Muttrapore Tea Estate is engaged in the business of manufacturing of tea having tea estate in the District of Sibsagar. An industrial dispute arose between the workmen of the said tea estate and the management whereupon a reference being Reference No. 5 of 1985 was made before the Labour Court of Dibrugarh by the appropriate Government. The petitioner was represented by an advocate before the Labour Court and the same was objected to by the Assam Chah Sramik Sangha. The objection as upheld by the Labour Court rejecting the application filed by the management. The Labour Court, however, allowed the management’s prayer to the extent that one of its lawyers may remain present as amicus curiae.
5. The case of the petitioner is that the Industrial Law is a complicated branch of law and only persons having knowledge of Labour Laws are in a position to tackle the legal intricacies of the labour disputes. The subject has become complex and only persons having legal background, training and experience may be able to help the court or defend the case of the litigating party and as a result it may amount denial of reasonable opportunity to represent the case before the court. It is further submitted that in view of the recent trend of offering legal aid to the poor and directives of the State Policy contained in Article 39(b) of the Constitution, it is imperative that a party to a litigation be provided with power of obtaining the services of legally trained person.
6. The further case of the petitioner is that Section 36(4) of the Act confers unrestricted and unfettered power on a litigating party in a proceeding to withhold his consent in the matter and allowing the other party to be represented by a legal practitioner and the court has no say in the matter and thus, the above provision abridges the power of the court. The petitioner submits that so far the workmen are concerned, they are represented by the Union and the office bearers of the union generally have no experience in the matter whereas the management is deprived from getting legal help aid which is violative of the fundamental rights guaranteed under Article 19(1)(g) of the Constitution.
7. The writ petitioners have also contended that the impugned provisions of law do not subserve the very object of the Industrial Disputes Act, which provides for investigation and settlement of industrial disputes and the very aim of the Act is to maintain a healthy working environment for production and amity between the management and the workmen. The petitioners have urged the Labour Court to declare the provisions ultra vires following the decision of the Hon’ble Allahabad High Court in the case if ICI Inida Ltd. v. The P.O., Labour Court reported in 1992 Labour Law Reporter 477 and another decision of the Calcutta High Court in the case reported in 1992 LLJ (1) 701.
8. The respondent Chah Sramik Sangha has placed reliance on a decision of the Apex Court in the case of Pardip Port Trust, Pardip v. Their Workmen reported in AIR 1997 SC 36. The respondent Union of India on the other hand submits that the right to representation is not a right and the representation through counsel may be allowed only if the statutory rules or standing orders permit the same and they have placed reliance on two decisions of the Aex Court: (1) Cresent Dyes and Chemicals Ltd. v. Ram Naresh Tripathi reported in (1993) 2 SCC 115 and (2) Bharat Petroleum Corporation Ltd. v. Maharashtra General Kamgar Union and Ors. reported in (1999) 1 SCC 626.
9. The State of Assam, on the other hand has submitted that Article 14 of the Constitution is not applicable as there are no ingredients and the provision Under Section 36(4) of the Act applies to both sides, i.e., permission is required to be given to the either side and it is not that the Union or the workmen are allowed to be represented by their lawyer without consent of the management and the consent of the Union as is required only when the management wants to be represented by a lawyer. It is further submitted that even if the consent is given to the other side, the ultimate authority lies with the court.
10. Relying on the principles of the fair hearing or fair procedure, the petitioner have placed reliance in the case of Pett v. Greyhound Racing Association Ltd. reported in 1968 2 All England Reports 545. The decision in Pett v. Greyhound Racing Association Ltd. was considered by the Apex Court in the case of Board of Trustees of the Port of Bombay v. Dilipkumar Raghavendranath Nadkarni and Ors., reported in (1983) 1 SCC 124 wherein the Apex Court held as follows:-
“The time honoured and traditional approach is that a domestic enquiry is a managerial function and that it is best left to management without the intervention of persons belonging to the legal profession. This approach was grounded on the view that a domestic tribunal holding as enquiry without being unduly influenced by strict rules of evidence and the procedural juggernaut should hear the delinquent employee in person and in such an informal enquiry, the delinquent officer would be able to defend himself. The essential assumption underlying this belief is questionable but it held the field for some time and there are decisions of this Court in Broke Bond India (Pvt.) Ltd. v. Shubha Roman (S.) and Dunlop Rubber Co. v. Workmen, in which it has been held that in a disciplinary enquiry before a domestic tribunal a person accused of misconduct has to conduct his own case and therefore as a corrolary it cannot be said that in such an enquiry against a workman natural justice demand that he ought to be represented by a representative of his union much less a member of the legal profession. While buttressing this approach, an observation was made that unless rules prescribed for holding the enquiry do not make an enabling provision that the workman charged with misconduct is entitled to be represented by a legal practitioner, the Enquiry Officer and/or the employer would be perfectly justified in rejecting such a request as it would vitiate the informal atmosphere of a domestic tribunal. A Strikingly different view was sounded by lord Denning in Pett v. Greyhound Racing Association Ltd., wherein the concerned authority directed an enquiry to be held into the withdrawal of a trainer’s dog from a race at a stadium licensed by the National Greyhound Racing Club. The rules of the club did not prescribe the procedure to be followed in such an enquiry, and there was negative provision excluding a legal practitioner from such an enquiry. The procedure for enquiry was the routine one of examination and cross-examination of the witness. The licensee charged with misconduct sought permission to be represented by counsel and solicitor at the enquiry, which request was turned down by track stewards. When the matter reached the Court of Appeal, Lord Denning observed as under :
I should have thought, therefore, that when a man’s reputation or livelihood is at stake, he not only has a right to speak by his own mouth. He has also a right to speak by counsel or solicitor.
The trend therefore is in the direction of permitting a person who is likely to suffer serious civil or pecuniary consequences as a result of an enquiry, to enable him to defend himself adequately, he may be permitted to be represented by a legal practitioner. But we want to be very clear that we do not want to go that far in this case because it is not necessary for us to do so. The all important question: where as a sequel to an adverse verdict in a domestic enquiry serious civil and pecuniary consequences are likely to ensure, in order to enable the person so likely to suffer such consequences with a view to giving him a reasonable opportunity to defend himself, on his request, should be permitted to appear through a legal practitioner, is kept open.”
11. Although the observations were made by the Apex Court way back in the year 1978, the provisions have not been changed by the Legislature during the last 25 years. The decision in the Board of Trustees (supra) was approved by the Apex Court in the case reported in (1997) 11 SCC 346. We find that there is similar provision under the Family Court debarring the advocates from appearing before the Family Court in the matter of matrimonial dispute and the matter went upto the apex Court where the Apex Court refused to declare the deeming provision as ultra vires of Section 36 of the Act and the subject-matter for consideration before the Apex Court was in the case of Pardip Port Trust, Paradip v. Their Workmen reported in (1977) 2 SCC 339 wherein the Apex Court held as follows :-
The Solicitor General contends that “and” in Section 36(4) should be read as ‘or’ in which case refusal to consent by a party would not be decisive in the matter. The tribunal will then be able to decide in each case by exercising its judicial discretion whether leave, in a given case, should be given to a party to be reported by a lawyer not withstanding 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 the matter of representation by refusing to accord its consent to representation of the employer through a legal practitioner, it is pointed out that public corporations, and even Government running a transport organization like the State transport cannot be expected to be members of any employer’s association. 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 submission. 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 legislature. 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 representation 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 party is not an idle alternative by 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 consequences to choose a rather strained interpretation when the language of Section 36 is clear and unambiguous.’
12. In the case of Andhra Pradesh Power Diploma Engineers Association v. Andhra Pradesh State Electricity Board, reported in 1995 (2) Lab & Ind. Case 2654, the embargo put under Section 36(4) of the Act was sought to be overcome by drawing up a panel of advocates and designating them as Honorary Secretary by the State Chamber of Commerce and Industry. This did not find favour with the Full Bench of the Andhra Pradesh High Court and the Full Bench merely reiterated its fond hope that the Legislature may consider the matter or is to vest the authority either in the court or in the Tribunal.
13. The learned counsel for the petitioners have also submitted that there may be extreme cases where one side has taken advantage of the concession given by the other side but when it came back to them, they refused. It is not a case of quid pro quid, i.e., you scratch my back and I will scratch yours. The liberty to give consent is with the party and if he once uses discretion and allow the other side to be represented by counsel, he can not claim as a matter of right, as if he is working for the same benefit and the other side also must give consent.
14. In view of what has been stated above, we have no hesitation whatsoever to hold that provisions of Section 36(4) of the Act are not violative of Article 14 of the Constitution of India or the principles of natural justice and hence, no interference is called for in the impugned order.
15. In the result, all these writ petitions are dismissed. There is no order as to costs.