HIGH COURT OF GUJARAT
C R Shah
L C Joshi
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(1.) The short question involved in this petition is aS to what meaning should be given to the term Legal Practitioner occurring in sec. 36(4) of the Industrial Disputes Act 1947 (the Act for short). The question has been directly covered by a decision rendered by us today i.e. 20/09/1983 in Special Civil Application No. 3706 of 1981 wherein we have held that the term Legal Practitioner ocCurring in sec. 36(4) of the Act cannot be given restricted meaning as defined in the Advocates Act 1961 In the facts and circumstances of that case we held that a person though not qualified to hold Sanad as an advocate and who has admittedly not taken the Sanad of an advocate but who was in fact doing the practice of law would fall within the term Legal Practitioner used in sec. 36(4) of the Act. While taking this view we have followed the decision of the Supreme Court in the case of A K. ROY V. UNION OF INDIA REPORTED IN A.I.R. 1982 S.C. 710 wherein it has been held that it is the substance which requires to be taken into consideration and not the form. The relevant portion from the decision rendered by us today in Special Civil Application No. 3706 of 1981 may be reproduced: The Supreme Court observed that regard must be had to the substance and not the from and whosoever assists or advises on facts or law must be deemed to be in the position of a legal adviser. If the ratio of the decision of the Supreme Court is applied to the facts of the present case in our opinion a person who though not legally entitled to practice practices profession of law would be covered by the term legal practitioner used in sec. 36(4) and he cannot be allowed to represent the party before the Labour Court unless two conditions laid down in that provision are satisfied. As observed by the Supreme Court regard must be had to the substance and not to the form and the party cannot be allowed to do indirectly what it cannot do directly. Respondents cannot be allowed to take shelter behind the excuse that respondent No. 2 is not a legal practitioner as defined under the provisions of the Advocates Act. Applying the said principles to the facts and circumstances of this case it becomes clear that the older by which respondent No. 1 was permitted by the first Labour Court Ahmedabad to appear in the recovery application filed by the petitioner herein will have to be quashed and set aside.
(2.) Respondent No. 1 herein was admittedly the Assistant Commissioner of Labour of the then Government of Bombay up to 1951 and thereafter he took up the assignment of Labour Adviser of Bombay Chamber of Commerce & Industry and continued in that capacity until 31/03/1972. During his tenure as Labour Adviser he used to give advice to the Members of the Chambers on labour matters and make representations to Government on various important labour matters as may be required from time to time. He has admitted in his application filed before the Labour Court that he has also served on various committees appointed by the Government such as Norms Committees Committee on Unfair Labour Practices Committee for suggesting amendments to Bombay Shops & Establishments Act etc. For about six years he worked as Labour Adviser to Indian Merchants Chamber. According to his own admission he was making as Labour Adviser of the respondent-society and was requited to give advice on labour matters and also represent them before the Labour Court Industrial Tribunal whenever necessity. He has also admitted that he occasionally represented employers who sought his assistance in this regard. His only contention was that he cannot be said to be engaged in regular practice (as a professional advocate). This contention found favour with the Labour Court and the Labour Court came to the conClusion that to fall within the definition of the phrase Legal Practitioner as occurring in sec. 36(4) of the Act one should be a legal practitioner as defined in the Advocates Act 1961 This view is not correct. Taking such a view would amount to adhering to the form and disregarding the substance which will be clearly against the principles laid down in the decision of the Supreme Court in A. K. Roys case (supra). In above view of the matter we are of the view that respondent No. 1 herein is a legal practitioner and he cannot appear before the Labour Court without the consent of the other side and without the permission of the Court. Hence the petition requires to be allowed.
(3.) In the result the petition is allowed. The impugned order passed by the Labour Court produced at Annexure I dated July 25 1979 is hereby quashed and set aside. The application Exh. 12 submitted by the petitioner herein is ordered to be allowed. Respondent No. 1 cannot be permitted to appear on behalf of Respondent No. 2- Society unless the other side consents and the Labour Court gives permission. Rule made absolute to the extent indicated hereinabove with cost. Petition allowed.;
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