Shiwji Singh vs Labour Court and Others

R.L. Narasimham, C.J.—This is an application under Articles 226 and 227 of the Constitution by an employee against an interlocutory order passed in the course of a proceeding u/s 26 of the Bihar Shops and Establishments Act, 1953, on 31 August 1963, by the presiding officer, labour court, Chotanagpur division, Ranchi. On that date the employer wanted permission to engage a lawyer named Sri G.N. Gangulli to represent him. This was objected to by one Sri D. Bagchi who appeared for the employee on the ground that under Rule 41 of the Bihar Shops and Establishments Rules a legal practitioner was prohibited from appearing in a proceeding under Sections 16 and 26 of the Act. This Rule 41 appears to have been made soon after the passing of the parent Act sometime in 1955, but in 1961 the Act itself was amended by the amending Act 7 of 1961 by which the following new Section 28A was inserted in the Act:

28A. Appearance by legal practitioner.� A legal practitioner may, in any proceeding under this Act, appear, lead or act on behalf of any party on such conditions as may be prescribed.

There was also a consequential amendment of the Rule-making power u/s 40 (2) of the Act by insertion of a new Clause (11) as follows:

the conditions subject to which parties may be represented by legal practitioners in proceedings under this Act before the prescribed authority.

It is conceded by counsel for both sides that no rules regarding the conditions under which a legal practitioner may appear in proceedings under the Act have yet been made. The learned presiding officer was undoubtedly right in saying that in consequence of the amendment made to the parent Act by Section 28A old Rule 41 of the rules has ceased to have any effect. The right of a legal practitioner to appear is expressly recognized in the statute Subject of course to such conditions as may be made by the rules. But Rule 41 contains an absolute prohibition to permissions being granted to a legal practitioner to appear in respect of certain proceedings. This rule, being indirect conflict with the right conferred by Section 28A of the Act, must, therefore, be held to have become invalid from the date of amendment.

The mere fact that rules regarding the conditions for appearance of a legal practitioner have not yet been made will not in any way make Section 28A ineffective. The making of rules on the subject is made purely discretionary by the use of the expression "may." If the rule-making authority, namely, the State Government, did not make any rules regarding the conditions for the appearance of a legal practitioner, his right as recognized in the main portion of Section 28A will continue to remain in full force.

Sri Roy, however, urged that if the right to prescribe conditions be taken as a right to restrict a legal practitioner, the rule-making power can be exercised for the purpose of normally prohibiting the appearance of a legal practitioner in respect of certain classes of proceedings and that consequently Rule 41 may not be held to be wholly ineffective. I am not Inclined to accept this extreme contention. The power to prescribe conditions under which a legal practitioner may practise may not ordinarily include the power to completely prohibit him from practising in respect of any proceeding. The conditions mentioned in Section 28A must be taken to be somewhat of a regulatory nature and it is well-settled that the power to regulate implies the continued existence of the thing to be regulated. Hence total prohibition would not come within the scope of the regulatory power. We must, therefore, hold that Rule 41 is no longer valid. It was, therefore, open to the tribunal to permit the employer to be represented by a lawyer.

In view of this decision, it is unnecessary to examine the correctness of the alternative reason given by the learned presiding officer to the effect that Sri G.N. Gangulli could also appear as a labour adviser. This requires some investigation on facts, and in exercise of our extraordinary jurisdiction it will not be proper to examine whether in fact he was a labour adviser or not.

The main grievance of the employee, however, seems to be that he was not given an adjournment when Sri Gangulli was permitted to appear for the employer and the proceedings were rushed through on 31 August 1963 and the witnesses were examined, cross-examined and discharged and arguments were also heard in part. It is stated by counsel for both sides that the presiding officer, Sri C.R. Mitter, is no longer presiding over labour court and this proceeding will have to go in any case to another officer. It will undoubtedly be open to that officer to examine how far this grievance of the employee is genuine. If he is satisfied that the essential rules of natural justice, which require that adequate opportunity should be given to both parties to adduce evidence and also fully cross-examine the witnesses of the rival party, have not been fully complied with in this case, we are sure he will give both parties ample opportunity to adduce all available evidence and also further opportunity to cross-examine the witnesses of the rival party. This observation is, however, made without in any way fettering the discretion of the new presiding officer to dispose of the proceeding according to law.

The application is, therefore, dismissed, but in the circumstances, without costs.

G.N. Prasad, J.

I agree.