SHIWJI SINGH Vs. LABOUR COURT

JUDGEMENT

(1.) 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 under Section 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.

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

(3.) 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.