Article (November-2021)

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Restrictions on appearance of Advocates in Labour Courts need re-consideration

Girish Patwardhan

Designation : -   Advocate

Organization : -  Indore

01-Nov-2021

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The subject of appearance of the Advocates as of right before the Labour courts and industrial Tribunal created under the Industrial disputes at 1947 had been a matter of controversy for a long time. The reason being that although the Advocates Act 1961 was enacted, still Sec. 30 of the said Act was ineffective for want of notification by the Central Government.

The Central government issued notification dated 9/6/2011 giving effect to Section 30 of the Advocate Act 1961 with effect from 15th of June 2011.

The said section 30 of Advocates Act, 1961 is reproduced below for reference.

30. Right of Advocate to practice:- Subject to the provisions of this Act, every advocate whose name is entered in the 1[State roll] shall be entitled as of right to practice 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 practice.

It would be interesting to see the history of section 30 of the Advocates Act 1961.

The Industrial disputes Act came in existence in 1947. Sec. 36 (4) of the said Act provided that the Advocates cannot appear before the authorities under the said Act, without consent of the opposite side and permission of the authority.

The said section came into being when industries in India were in a very primitive stage and mainly consisted of jute, textile and some public sector undertakings. The service sector and the engineering industries were under developed and most of the work force was unskilled having no knowledge about the labour Laws. The trade union movement also was very weak. The situation as existed in the year 1947 and the subsequent situation as it was in the year 2001 is graphically described by the Hon'ble Bombay High Court in the matter of T.K. Varghese VS. Nichimen Corporation, 2001 (90) FLR Page 91. The relevant para of the judgment is quoted as under:

"However, the Trade Union movement has become more than 50 years old after 1947. It has crossed its age of Infancy long back. It has also created a number of very good Trade Unionists who have acquired knowledge, legal acumen and skill to defend the working class in the proceedings under this Act. Very often these dedicated and reputed trade Union leaders are more than a match to even the best of the practitioners before the Labour Court or Tribunal or National Tribunal. Similarly there are many seasoned office-bearers of a number of Trade Unions functioning in this country, who have also acquired rich experience in the field of legal fight. Now let us consider the position of the employers in that context. Will it be a fair and equal fight between a powerful Trade Union represented by a very seasoned, senior and experienced Trade Union representative or a leader against an ordinary small or petty employer if he is not assisted by a legal practitioner? The Trade Unions are professional litigants under the Act while employers are not; they have to engage the services of legal practitioners to fight their battle. And if they are prevented from engaging legal practitioners as against the powerful representatives of the Trade Unions it will not be a fair, just and equal trial of strength between the two. In my humble opinion we have to reconsider, revise and review the position which existed in the year 1947 vis-a-vis and the position which is in the year 2001. There has been a sea change in the circumstances. A large number of small employers have also come on the industrial scene. They cannot be denied the services of legal practitioners when they are dragged in the Industrial litigation. There are number of good Advocates or legal practitioners available now even for the workmen or Trade Unions. In the early 50's there was dearth of legal practitioners to appear for the Trade Unions as the Unions could not pay even a small fee. The legal profession has grown up to such an extent that the lawyers' services are available to all those who can pay a reasonable remuneration. There are number of such advocate who have dedicated themselves to the cause of the working class and who do not expect much return for the mission to which they have devoted. We have good number of Advocates to stand for the cause of social justice. It would therefore be unreasonable and unfair to deny the same opportunity to the employer, the other side of the legal battle."

Subsequently in 1961 the Advocates Act came into existence which under section 30 provided that the Advocates as of right can appear before any judicial forum or other authorities including the Supreme court. It must be noted that it can be safely presumed that the legislature was aware of existence of section 36(4) of the Industrial dispute Act, but despite that Sec. 30 of the Advocates Act 1961 did not put any restriction or condition on appearance of Advocates before any judicial forum.

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Till 15th of June 2011 Section 30 of the Advocates Act 1961 was not effective for want of notification and therefore till that date Sec 36 (4) of The Industrial Disputes Act 1947 held the field.
The reason as to why Sec. 30 of the Advocate Act of was not notified came before Hon. High Court Allahabad in the matter of "Bar Council of Uttar Pradesh VS. Union of India"1997 (31) ALR 306. The following is the relevant part of the said judgment:

"3. A counter affidavit has been filed in the present case on behalf of Union of India. In paragraph 3 (E) it has been stated that a bill was introduced in the Rajya Sabha in the year 1992 seeking amendment in Section 30 of the Advocates Act, 1961 to provide that the provisions of Section 30 cannot override the provisions of special enactment such the Industrial Dispute Act, 1947, the Family Courts Act, 1984 which prohibit the appearance of Advocate. After the introduction of the Bill, the Bar Council of India and the Bar Associations throughout the country and other bodies objected to the Bill. In view of the opposition, Advocates (Second Amendment) Bill 1992 was withdrawn and it was decided to defer the question of bringing Section 30 of the Act into force having regard to the prevailing circumstances."

This indicates that at that time central government was aware that if new statute is not enacted, to save the restrictions, the restrictions imposed on appearance of Advocates in different judicial forums would not be saved after notification of section 30 of the Advocates Act.

Thus after the withdrawal of the 1992 bill, and subsequent to notification of section 30 of the Advocate Act, the Advocates have got unfettered right to practice before all courts in India including Supreme Court.

The current position clearly should be that the Advocates are entitled as of right to appear before any court, tribunal including the Supreme Court and for this either consent of the other side and/or the permission of the concerned Authority is not required.

There are many authorities to support the view that after issuing the notification regarding Section 30 of the Advocate Act 1961, the Advocate can practice before any judicial forum without the consent of the other side and/or the permission of the concerned Authority. Few of the authorities supporting this proposition are as below:

C.P. Saji vs. Union of India & others (19/7/2011) Kerala H.C.

The said judgment related to scope of Section 13 of the Family Courts Act, 1984, which placed restrictions on appearance of Advocates. The Hon'ble Court considered the effect of notification issued in respect of section 30 of the Advocates Act 1961 Hon'ble Court relied on the decision of Apex Court in Aeltemesh Rein Vs. Union of India (AIR 1988 SC 1768) and held in Para 12,

As observed by the Apex Court in paragraph 4 of the decision cited supra, when Section 30 of the Advocates Act is brought into force, every Advocate whose name is entered in the State roll will be entitled as of right to practice throughout the territories to which the Act extends, before the Courts, Tribunals and other authorities or persons referred to therein. It is also observed in the very same paragraph that, there are various enactments in force in the country, which impose restrictions on the right of an Advocate to appear before certain Courts, Tribunals and authorities, like section 36 (4) of the Industrial Disputes Act 1947, Section 13 of the Family Court Act 1984.

In Chandrade Ram Yadav Vs Lokayukta U.P. (12/3/2012) Allahabad H.C., the effect of notification of section 30 of the Advocate Act was considered. The matter related to right of Advocates to appear before Lokayukta, which was a judicial forum and it was held in Para 17:

17. To the extent above, there appears to be no room of doubt that in view of the notification of the Government of India, the Advocates have right to appear before the Lokayukta.

In M.M. Sudame Vs. State of Maharashtra Bombay H.C. Decided on (15/3/2012), Hon. Court held in Para 15:

15. Hence, the right of an Advocate to practice before the Courts other than the Supreme Court of India includes High Courts, tribunals or any person authorised to take evidence; must be taken as flowing from Section 30 of the Advocates Act. Since Section 64 of the Act deals with exclusion of right of an Advocate to practice before the University and College Tribunal, the provision must be held to be repugnant to Section  30 of the Advocates Act and consequently void as per Article 254(1) of the Constitution of India.

Desirability of issuing notification in respect of Section 30 of the Advocates Act was clearly expressed by the Hon. Apex Court in the matter of Aeltemesh Rein Vs Union of India & others AIR 1988 Page1768, S.C. Hon'ble Court also stated the effect of such notification when issued.

When section 30 of the Act is brought into force every advocate whose name is entered in the State roll will be entitled as of right to practice throughout the territories to which the Act extends, before the Courts, Tribunals and other authorities or persons referred to therein. Even today there are laws in force in the country which impose restrictions on the right of an advocate to appear before certain Courts, Tribunals and authorities.

Section 36(4) of the Industrial Disputes Act, 1947 provides that in any proceeding before a Labour Court, Tribunal 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.

Section 13 of the Family Courts Act, 1984 provides that no party to a suit or proceeding before a Family Court shall be entitled, as of right, to be represented by a legal practitioner. There is a proviso to the said section where under if the Family Court considers it necessary in the interests of justice it may seek the assistance of a legal expert as amicus curiae. There are certain land tribunals constituted under some of the Acts which are in force in certain States before which Advocates cannot appear at all. In many of the cases which come up before the Courts or Tribunals before which Advocates cannot appear as of right complicated questions of law affecting the rights of individuals arise for consideration and they need the assistance of Advocates.

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Girish Patwardhan - Advocate, Indore