Restrictions on lawyers’ role in labour courts

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In Thyssen Krupp Industries v Suresh Maruti Chougule, Union of India, Bar Council of India & Ors, Bombay High Court dismissed a challenge by Thyssen as to the constitutional validity of section 36(4) of the Industrial Disputes Act, 1947 (ID Act), which restricts the appearance of lawyers in labour courts, tribunals and national tribunals, and held that there is a legal distinction between the right of an advocate to practise law guaranteed by sections 29 and 30 of the Advocates Act, 1961, and the right to appear and address a court of law or tribunal.

In this case, Thyssen dismissed a welder from its employment in 2015 for acts of misconduct. The matter was initially heard before a conciliation officer and then in reference before a labour court in Pune. An application was filed by the welder under section 36(4) of the ID Act, objecting to Thyssen’s engagement of a legal practitioner, which was allowed by the labour court. Thyssen’s counsel argued that because industrial adjudication is becoming increasingly complicated, employees/companies are unable to represent their cases effectively before a labour court, and therefore the assistance of a trained advocate is necessary.

On the contrary, the counsel for the welder argued that the right to practise law is not a fundamental, vested or a legal right, therefore a party cannot claim such a right to engage an advocate.

The high court held that there is a legal distinction between a right of an advocate to practise law, guaranteed by sections 29 and 30 of the Advocates Act, and the right to appear and address a court of law or tribunal. The right to practise granted by the Advocates Act does not confer on a litigant the right to be represented by a particular advocate and only presupposes that a litigant is entitled to be represented by an advocate if necessary. Further the right to practise is not an absolute right but only restricted in nature. Limitations can be placed on such a right by prescribing dress for legal practitioners or in some other manner. It was observed that as a litigant does not have a fundamental right to be represented by a lawyer in any court, it is difficult to accept the argument that section 36(4) of the ID Act is unconstitutional, and ultra vires articles 14 and 21 of the constitution of India.

The dispute digest is compiled by Bhasin & Co, Advocates, a corporate law firm based in New Delhi. The authors can be contacted at lbhasin@bhasinco.in or lbhasin@gmail.com. Readers should not act on the basis of this information without seeking professional legal advice.