Can lawyers appear before labour court as of right? The Supreme Court has referred this question doubting its judgment in Paradip Port Trust, Paradip versus Their Workmen delivered about five decades ago.
In Thyssen Krupp Industries India Private Limited vs. Suresh Maruti Chougule, The bench comprising Justice L. Nageswara Rao and Justice Hemant Gupta referred to a larger bench the question whether the Advocates Act is a general piece of legislation with respect to the subject matter of appearance of lawyers in labour courts?
The bench was considering special leave petitions and a writ petition challenging the constitutional validity of Section 36(4) of the Industrial Disputes Act, 1947.The bench noted that the contentions raised in these petitions that an advocate shall be entitled to practice in all courts including the Tribunal as of right, were already dealt in Paradip Port Trust, Paradip versus Their Workmen.
Section 36(4) ID Act
Section 36(4) of the ID Act provides that a party to a dispute in a proceeding before a Labour Court, Tribunal or a National Tribunal may be represented by a legal practitioner with the consent of the other parties to the proceeding and with the leave of the Labour Court, Tribunal or National Tribunal as the case may be.
Section 30 Advocates Act
This provision of the Advocates Act deals with an Advocate's right to practice. It reads as follows: Subject to provisions of this Act, every advocate whose name is entered in the 1[State roll] shall be entitled as of right to practise throughout the territories to which this Act extends-(i) in all courts including the Supreme Court;(ii) before any tribunal or person legally authorised to take evidence; and (iii) before any other authority or person before whom such advocate is by or under any law for the time being in force entitled to practise.
Paradip Port Trust, Paradip versus Their Workmen Judgment
In this judgment, the Supreme Court noticed that Section 30 of the Advocates Act has not come into force in view of which there is no right that could be claimed by Advocates to appear before the Labour Courts. It was further held that the ID Act being a special Act will prevail over the Advocates Act, 3 which is a general piece of legislation with regard to the subject matter of appearance of lawyers before all Courts, Tribunals and other authorities.
During the hearing, the Bar Council of India submitted that the Advocates Act is a special Act and that the ID Act is a general Act and therefore Section 30 of the Advocates Act overrides Section 34 of the ID Act.
Whether the Advocates Act is a general piece of legislation with respect to the subject matter of appearance of lawyers in labour courts?
Taking note of these contentions, the bench referred the matter to larger bench and observed:
In the context of matters pertaining to industrial disputes and the mechanism provided for resolution of the disputes, we have no doubt that the ID Act is a special piece of legislation. However, whether the Advocates Act is a general piece of legislation with respect to the subject matter of appearance of lawyers in labour courts, needs a detailed consideration. Section 30 of the Advocates Act confers a right on an advocate to practice before any Tribunal. Applying the test laid down by this court in Ashoka Marketing, it is doubtful whether the Advocates Act can be termed a general piece of legislation in respect of the subject matter in dispute. As the judgement in Paradip Port Trust is by a Bench of 3 judges, and taking into account the importance of the issues raised in these cases, we are of the considered opinion that these matters be referred to a larger Bench
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