Industrial law has become super complex

Written by Indu Bhan | Indu Bhan | Updated: Jun 29 2011, 07:42am hrs
Lawyers right to court justice

Taking a suo motu notice of the prohibition under Section 36(4) of the Industrial Disputes Act, the Supreme Court has struck down a no-lawyer clause that barred lawyers from appearing before a labour court/industrial tribunal without the consent of the workman and the permission of the court. Holding such a rule as unconstitutional, the apex court said that it violated the equality provisionArticle 14 of the Constitutionand the freedom to pursue any profession in Article 19(1)(g). The order soon paved way for the government to notify Section 30 of the Advocates Act 196. Now lawyers can practise in all courts and tribunals as a matter of right. Overruling the Punjab and Haryana High Courts 2009 order in the case of M/s Hygienic Foods vs Jasbir Singh, the Supreme Court said that industrial law has become so complex that a layman cannot possibly present his case properly before the labour court/industrial tribunal. Similarly, Section 13 of the Family Courts Act, 1984, debarring lawyers from appearing before the family courts also appears to us, prima facie, to be unconstitutional because family law has become so complex that an ordinary layman cannot possibly be expected to put up his/her case properly before them. Hence, to debar lawyers will really be denying justice to millions of people.

The long arm of the court

The Supreme Court has reiterated that the existence of an arbitration clause in a contract would not bar the high courts or the Supreme Court from deciding any dispute between the parties. While dismissing the East Central Railways petition, it said that the courts need not force the parties to go for the alternative remedy of arbitration every time. Injustice, whenever and wherever it takes place, has to be struck down as anathema to the rule of law and the provisions of the Constitution, it stated, thus holding that the mere existence of an arbitration clause does not ipso facto preclude the availability of writ remedy. In the case of Union of India vs Tantia Construction Ltd, the Railways had awarded a contract for the construction of a rail over-bridge to the company. Later, the firm was asked to undertake additional work at its own risk and cost. Aggrieved by this, the firm moved the Patna High Court alleging that the decision of the Railways had the effect of requiring the company to execute works of larger quantity than originally agreed upon. However, the high court ruled in favour of the firm by holding that the company could not be saddled with the cost of work that it had never undertaken to execute.

Whose fault is it anyway

The Supreme Court, in the case of Subhankar Biswas vs Sandeep Mehta, has held that no roving enquiry is permissible against managers of a company that is accused of committing an offence, unless there are specific allegations that the accused executive was in charge of the day-to-day affairs of the company. It said that prosecution is under an obligation to give details so that the persons responsible for the offence are identified and the criminal proceedings are initiated only against them. In this case, chairman HB Lal and deputy general manager Biswas had moved the Calcutta High Court seeking the quashing of the criminal proceedings initiated against them on a complaint filed under the Standards of Weights and Measures (Packaged Commodities) Rules. While the high court quashed the proceedings against the chairman after it found that he was not directly connected with the daily affairs of the company, the deputy general manager was not exonerated. Biswas then moved the Supreme Court, stating the allegations against him and the chairman were identical and the complaint itself was not maintainable as it did not indicate as to who was responsible for the day-to-day affairs of the company. The Supreme Court accepted Biswass argument and quashed the proceedings against him as well.