Obtaining of consent of other party or leave of tribunal representing party before Tribunal not ultra vires.

This is an application under Article 226 of the Constitution of India for issuing a writ of certiorari to quash the order of the first respondent, dated 24th September, 1951. The second petitioner is the Liberator, Ltd., represented by its Secretary. The first petitioner is an advocate. By G.O. No. 3167, dated 10th July, 1951, the Government of Madras referred the industrial dispute between the second petitioner and its employees to the first respondent, the Tribunal constituted by the second respondent, the State of Madras. On nth September, 1951, the first petitioner sought to file his vakalat on behalf of the second petitioner before the Tribunal. The representative of the labourers objected to the first petitioner appearing for the second petitioner. On 24th September, 1951, after hearing the parties, the Tribunal held, relying upon the provisions of section 36 (4) of the Industrial Disputes Act, 1947, that it had no power to grant leave to the first petitioner to appear on behalf of the company, the second petitioner. Section 36(4) of the Industrial Disputes Act, 1947 as amended by the Industrial Disputes (Appellate Tribunal) Act, 1950, reads as follows:-

"In any proceeding before a 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."

"The provisions of this section are clear and unambiguous. Before a Tribunal a legal practitioner cannot appear unless the Tribunal gives its leave and the other parties to the proceedings give their consent. Learned counsel for the petitioners therefore contended that the provisions of section 36(4) are constitutionally void viewed from two different aspects. From the standpoint of the first petitioner, i.e., the advocate, it is argued that the section violated his fundamental right to do business guaranteed to him under Article 19(1) of the Constitution of India. From the viewpoint of the second petitioner, i.e., the employer, it is pointed out that the section infringes the rule of equality embodied in Article 14 of the Constitution. Learned counsel further addds that the prohibition to be represented by an advocate before the Tribunal except with the consent of the other side is against all principles of natural justice.

The constitutional validity of the section from the standpoint of the advocate mainly depends upon the nature of his right. Learned counsel for the petitioner would say that every person has a right to practise in a court or before a tribunal and the section which unreasonably restricts that right is void under Article 13 of the Constitution of India. The question therefore is, what is the nature of the petitioner’s right to practise before a court or tribunal. This question was raised and answered in this High Court as well as the Bombay High Court. Before the cases are noticed, the relevant provisions of the Bar Councils Act may be read:

"Sec. 9(1): The Bar Council may, with the previous sanction of the High Court, make rules to regulate the admission of persons to be advocates of the High Court:

Provided that such rules shall not limit or in any way affect the power of the High Court to refuse admission to any person at its discretion.

Sec. 14(1): An advocate shall be entitled as of right to practise.- (b) Save as otherwise provided by sub-section (2) or by or under any other law for the time being in force in any other Court in British India and before any other tribunal or person legally authorised to take evidence; and

(c) before any other authority or person before whom such advocate is by or under the law for time being in force entitled to practise."

In Mulchand v. Mukund1, Chagla, C.J. and Gajendragadkar, J., defined the scope of the right of a person to practise having regard to the aforesaid provisions in the following words:

"Therefore, his right to practise is controlled by this important provision that any other law for the time being in force ma