Revisiting The Paradip Port Trust Judgement- Should There Be Restrictions On Appearance Of Advocates Before Labour Courts And Tribunals?

Section 36(4) of the Industrial Disputes Act,1947("ID Act") puts a bar upon advocates on appearing before authorities (such as the Labour Courts and Tribunals) mentioned under the Act, without the consent of the opposite side and the permission of the authority(s) in consideration. Clinically speaking, a bare reading of both these provisions seems to present a dilemma wherein S 30, Advocates Act allows a class of people in question (advocates) to appear before any kind of court/tribunal whereas S. 36(4), ID Act proscribes them from appearing before a specific type of court/tribunal. This contradistinction was addressed by the Supreme Court in Paradip Port Trust,Paradip and Ors. Vs Their Workmen AIR 1977 SC 36 ("Paradip Port Trust"), where it was held that The ID Act, being a special legislation, would override the Advocates Act which is a general law. With that said, nearly 45 years have passed since this judgement was delivered and the world has, to say the least, gone through a lot since then. Whether the philosophy adopted by the court in stating that either party in a labour dispute wouldn't be benefitted by an advocate's presence during the proceedings- stands the test of time, and whether it correctly identified the Advocates Act as a general piece of legislation - forms the basis of this article, which would be discussed in seriatim.

Presence Of Advocates In Labour Courts – A Hindrance To 'Expeditious' Proceedings?

In the exordium of Paradip Port Trust, the court begins by saying that legal practitioners should not be a part of conciliation proceedings because they may overcomplicate the colloquial setting of the dispute resolution mechanism-

"It is reasonable to suppose that the presence of legal practitioners in conciliation may divert attention to technical pleas and will detract from the informality of the proceedings impeding smooth and expeditious settlement." (Para 9)

Though this line of reasoning stands true with respect to conciliation, the problematic part comes in when the court uses the same explanation in elucidating the argument that the expertise of legal practitioners may expose the weaker party (the 'workers' or the 'employees') to get pitted against the stronger one (the 'employers') before the adjudicating authorities in a battle between the 'unequals'.

Firstly, the argument put forth by the court with regard to the derailment of 'expeditious' procedure seems to be a bit generalized and rather ad hominin towards legal practitioners on various grounds. A legal practitioner, who is well versed with the laws at hand, can not only efficiently focus the attention of the Labour Court/Tribunal to the important areas of the dispute, but also place the relevant precedents to dispose of the matter quickly. The a priori is something that cannot be effectively executed by the 'office bearer' or 'officer' as enumerated under S. 36(1) and 36(2) of the ID Act (the former provides the workman involved in a dispute to be represented by officers of the trade union and the latter provides the employer to be represented by officers of the employer's association). A similar contention has been asserted by the Allahabad High Court in I.C.I.India Ltd. Vs. Presiding Officer, Labour Court (IV) and Ors. 1992 LLR 477 to the extent of it labeling S. 36(4) as "clearly arbitrary and violative of Article14 of the Indian Constitution." (Para 4)

Secondly, though the intention of the court in exemplifying the parity between both the antipodal parties is not misconceived, it surely is antediluvian. It is true that during the pre-independence era and some part of the post- independence era (sometime after the ID Act was enacted, that is) the trade unions did find it difficult to assist workers in terms of representation, but there has been a sea change in the circumstances since then. Of course, the employers possess substantial wherewithal in comparison to the unions, but it would still be too credulous to assume that the trade unions cannot, by themselves, even arrange for decent legal practitioners. The trade unions are the only insulation available to the workers involved in legal quarrels. It hitherto becomes imperative for the unions to make appropriate arrangements for the employees/workers in terms of proper representational measures, come what may. Further, the semblance of the 'unequal' argument appears to wane off because, consent of the opposite party, in omnibus, is not an idle alternative but a ruling factor in Section 36(4) i.e., either party can refuse to grant permission to the other side from engaging a legal practitioner, and had 'narrowing down the inequality between both parties' really been the intent of the legislature, then the power to refuse would only have been vested with the employee's/worker's side, and not the employer's side.

ID Act Vs Advocates Act- A Game Of 'Special' Vs 'General'; Or 'Special' Vs 'Special'?

The moot point involving the question of resolving the conflict b/w the incongruous provisions of the ID Act (S. 36) and The Advocates Act (S. 30) was addressed by the court in paragraph 29 of Paradip Port Trust. Here, it is important to note that one of the main factors considered by the court for assessing the aforesaid was the fact that Section 30 of the Advocates Act had not come into force during that point in time and was only bought into effect by the Government on 15^th June, 2011. Anyhow, the court while deciding that S. 36(4) of the ID Act would prevail over S.30 of the Advocates Act made the following observation-

"The Industrial Disputes Act is a special piece of legislation with the avowed aim of Labour welfare and representation before adjudicatory authorities therein has been specifically provided for with a clear object in view. This special Act will prevail over the Advocates Act which is a general piece of legislation with regard to the subject- matter of appearance of lawyers before all courts, tribunals and other authorities. The Industrial Disputes Act is concerned with representation by legal practitioners under certain conditions only before the authorities mentioned under the Act."

A general piece of legislation simpliciter is one which applies to a whole community- and whose purview is unlimited in terms of the area that it covers and the effects it induces (with the 'individual' being the focal point of interpretation); while a special statute also applies to a community, but is limited in respect of area and effect which, inter alia, makes it limited (in terms of an individual) and personal (Queen v. London County Council (1893) 2 QB 454, Bowen, L.J).

The court's stand that the ID Act is special piece of legislation is accurate. After all, The ID Act (in any context) is a beneficial legislation, enacted to provide peaceful settlement of disputes and measures for preserving harmonious relations between the employers and employees. Howbeit, concerns have been raised by experts in the past of whether The Advocates Act can be regarded as a general statute or not. In Thyssen Krupp Industries India Private Limited vs. Suresh Maruti Chougule and Ors. 2019 163 FLR 91, a two- judge bench of the Supreme Court raised its apprehension on the same and referred the matter of interpretation of Advocates Act to a three- judge bench. Though the construction of the Advocates Act as a general or special legislation completely depends upon the hermeneutics and circumstances of the situation, there are strong reasons to believe that regardless of how it's interpreted, the Advocates Act would override the ID act in either situation: -

Taking Advocates Act As A General Statute

When viewed from the perspective of taking the ID act in its entirety (i.e. in the sense of a broad but not selective interpretation) and the workers/employees as the focal point, the rule of beneficial construction would mandate the Advocates Act as a general act. The reason for this being that only a part/section of the ID act deals with the representation of advocates as against the Advocates Act, in which the community of advocates is in cynosure. The ID Act is the one whose provision is being challenged here (the primary statute in consideration), so the community that it deals with i.e. the working class should take the precedence and not the advocates.

Ordinarily speaking, the general rule used whenever there is a conflict between a general and special law is spelt out in the maxim 'Generalia Specialibus Non Derogant'- i.e. general provisions will not abrogate special provisions (Maxwell on Interpretation of Statutes, 11th Edition, page 169). It is also an accepted principle that general provisions of a later act cannot repeal the special provisions of an earlier act (Seward v. Vera Cruz (1884) 10 AC 59). A substantial jurisprudence -in this regard, has also been put forth by the Indian courts. In Life Insurance Corporation of India and Ors. Vs. D.J. Bahadur and Ors. AIR 1980 SC 2181, Jurist Judge, Justice V.R. Krishna Iyer opined that in determining whether a statute is special or general, one must focus on the principal subject matter plus the particular perspective (p. 1127) and that the whole tussle between special and general should not have any 'arbitrary' effect and the 'beneficiary aim' of the industrial law should remain (this was said because interestingly, the court was dealing with the question of the ID act being a special legislation this case also). Another important test laid down in this judgement was-

"A later general law will override a prior special law if the two are so repugnant to each other that they cannot co-exist even though no express provision in that behalf is found in the general law." (Para 113, point iii)

Upon applying this test in the present situation, and even looking from a normative point of view, the removal of S.36(4) would only benefit and not sabotage the labour community at the end. Labour law is mostly a judge made law- majorly relying on precedents. It even has a different procedure as to what is followed in the civil courts. Due to the presence of all these elements, it has become a highly technical branch of law. So, it should be reasonable, at least, to allow a trained legal practitioner to represent parties before the labour courts. The fairness of S.36 loses its edge when powerful employers inoculate themselves by choosing lawyers posing qua 'officers' of their associations as their representatives. Even though it is within the power of the trade unions to do the same, they often neither have the resources nor the Machiavellian guile to pull such tricks off their sleeve and have to thus depend upon their semi-trained union officers only. What is, then, the purpose of not allowing advocates to represent parties when they very well can be represented by lawyers (who have not enrolled themselves with the bar council) in the guise of officers? All of this, not to even mention the peremptory provision of S.36(4) of being at the mercy of the other party to engage a good, skilled legal practitioner for oneself. Is it not, dare I say, painfully obvious that the opposite party would not want you to be represented by someone who could lessen their chances of getting the favorable relief? Taking the above into account, S. 36(4) of the ID act would not stand the above tests and should be struck down.

Taking Advocates Act As A Special Statute

As discussed previously, it is now clear that the inclusiveness of advocates in the industrial dispute setting would not only aid the parties, but also the court/tribunal. Then, even if a restrictive approach of viewing the legal practitioners as the principal community in question (under the Advocates Act) as against a certain section of practitioners engaged in labour disputes (as only a single section of the ID Act deals with representation/restriction of advocates as a proviso, which is not, ipso facto, the main aim of the act; it is only a subset of the statute) would not jeopardize the interests of employees/working class.

Legislative intent also plays an important role in determining whether a statute is special or not. The Advocates (Second Amendment) Bill, 1992 was introduced in the Rajya Sabha seeking an amendment in S. 30, Advocates Act to provide that the provisions of this section cannot override that of the ID Act. After much deliberation and discussions, this bill was not passed by the Upper house of the Parliament and was later withdrawn. The fact that the parliament did not pass the bill seems to show that the intent of the legislature, in this context, was to allow the S. 30 to override S. 36(4)- the omission of which would have suggested otherwise. Accordingly, the absence of the 'non-overriding' clause in S. 30, Advocates Act would automatically render it a special statute.

The test involved in resolving the conflict between two special statutes is somewhat more obscure as compared to the tests used for solving the general- special statute conflict. In Ashoka Marketing Ltd. AndOrs. Vs. Punjab National Bank and Ors. AIR 1991 SC 855 , The Supreme Court had encountered a similar circumstance where it had to decide which one among the Public Premises Act, 1971 ("Public Premises Act") and Delhi Rent Control Act, 1958 ("Rent Control Act"), both of which were constructed as special enactments, would have an overriding effect on the other. After taking into consideration all possibilities, it was finally held that the Public Premises Act would prevail over the Rent Control Act because of the principle that 'later laws abrogate earlier contrary laws' (Leges Posteriores Priores Contrarias Abrogant). While expounding this principle, the court remarked that whenever two special enactments had inconsistent provisions and the later law had a specific non-obstante clause providing, implicitly or explicitly, that its provisions would have an overriding effect over other enactments, then the latter would prevail (para 55). In this case, since section 15 of The Public premises act had a non obstante clause dealing with jurisdiction which, in turn, gave it an overriding effect against the Rent Control Act. Similar obiters can also be found in Shri Ram Narain v. The Simla Banking and Industrial Co. Ltd. AIR 1956 SC 614, Kumaon Motor Owners' Union Ltd. and Anr. v. The State of Uttar Pradesh AIR 1966 SC 785, and Sarwan Singh and Anr. v. Kasturi Lal AIR 1977 SC 265.

Following this analogy, section 30 of the advocates act (the later law) serves as the non-obstante clause entitling advocates to appear before all courts/ tribunals of India as against S. 36(4) of the ID Act (the one having the inconsistent provision of barring advocates on appearing before the specialized courts/tribunals). The legislature also did not amend either of the laws, meaning thereby it had no intention of allowing the previous enactment to overshadow the later one. Hence, in this scenario also, S. 30, Advocates Act would override S. 36(4), ID Act.

New Codes-Same Story

The Industrial Relations Code, 2020 ("Code"), was among the 4 Labour Codes, three of which were passed by both houses of the parliament on 23^rd September, 2020 and received the President's Assent on September 28,2020. The code is set to replace three major central laws, including the ID Act. The main aim of this consolidation was to "get rid of the existing complex legislations riddled with archaic provisions and inconsistent definitions". Ironically, section 94 of the Code appears to be strikingly similar to S. 36 of the ID Act, with a few exceptions- which may prove to be problematic in the long term. Section 94(3) and 94(4) are produced below-

"94. (3) No party to a dispute shall be entitled to be represented by a legal practitioner in any conciliation proceedings under this Code or any proceedings before Tribunal or National Industrial Tribunal.

(4) Notwithstanding anything contained in sub-section (3), in any proceeding before a Tribunal or a National Industrial 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 or National Industrial Tribunal, as the case may be."

The first part of Section 94(4) presents a caveat on the lines of - "Notwithstanding anything contained in sub-section (3)". This is a new addition in comparison to S.36(4). The term 'notwithstanding' loses its essence due to the 'shall' mentioned in the previous clause. 'Shall', in the legal method, is ordinarily synonymous to 'must' and is reflective of a duty or a burden. S.94(3) should also not be seen as an independent provision because it does not only deal with conciliation proceeding per se, as the term 'or' does not limit it to the conciliation proceeding only. It consequently becomes inclusive of "any proceedings before the Tribunal or National Tribunal" including inquiry and adjudication. Due to this, clauses three and four of S.94 become repugnant to each other. Though, a restrictive interpretation might limit S.94(3) to only include conciliation and/or inquiry proceedings (exclusive of adjudication), but what is the need of including such perplex and contradictory provisions when the ultimate aim of the code was to do away with "complex terms"?

The Code has also abolished Labour Courts and retained the Industrial and National Industrial Tribunals (see S.44 clause one). Now, instead of a single member, the Tribunal would be having two members- A Judicial member and An Administrative member (see S.44clause two). Increasing the number of hands required for adjudication and administration of matters is no small deal because it, for one, indicates the need for more experienced and technical people to adjudge disputes. This means that the government may have, in some way or the other, felt that issues surrounding labour and employment laws are getting more complex and eclectic day by day. All this prompts a major question- when the government increased the strength of the tribunal in light of the evolving and composite nature of the labour jurisprudence, wasn't there also a need to allow advocates to represent the parties and assist the court, without any bar, for such 'supposed' complex matters?

Right to practice before the courts as advocates, though not a fundamental right, is in a way, a sacrosanct duty accorded to them by the society. It purports them to provide purposeful support to the individuals involved in legal trials, especially the downtrodden and the weak. Should then the bourn of this ideal be shirked in respect of some areas, where it is, especially in view of the contemporary socio-legal constructs, needed the most? Even when seen from the perspective of workers, the perpetual erosion of their right to meaningful representation before the court of law, to say the least, presents a sordid sight. It is disgraceful on the part of the law makers to still include the same archaic and age- old, unjust provisions in the new codes that they should have struck off at the first glance. By doing this, they have defeated the very purpose of enacting the new codes. Blindly imposing the same antiquated provisions in a slightly different verbatim will not magically transform a bad law into a good law. This arbitrary Lakshman Rekha of limiting advocates' appearance before the labour authorities should be done away with. A Law cannot stand still; it must change with changing social concepts and values.

Views are personal.