judgement:
Appeal No. 1212 of 1974.
From the Judgment and Order dated 26 4 74 of the Madhya Pradesh High Court in Election Petition No. 4/72.
526 Hardayal Hardy and S.K. Gambhir, for the Appellant.
D.V. Patel, B. Jindal, M.M.L. Srivastava and E.C. Agarwa la, for the respondent.
The Judgment of the Court was delivered by JASWANT SINGH, J.
This appeal under section 116 A of the Representation of the People Act, 1951 (hereinafter referred to as 'the Act ') is directed against the judgment and order dated April 26, 1974, of Indore Bench of the High Court of Madhya Pradesh whereby the election of the appel lant to the Madhya Pradesh Legislative Assembly from Kha chrod Assembly Constituency No. 247 at the general elections of 1972 has been set aside under section 100(1)(b) of the Act on the election petition filed by Vimal Kumar Choudhury, respondent herein, who Was an elector in the said constituency.
Pursuant to the notifications issued under section 30 of the Act calling upon the aforesaid constituency to elect a member to the M.P. Legislative Assembly, nomination papers by the appellant and some others were filed on February 8, 1972.
On scrutiny of the nomination papers held by the Returning Officer on February 9, 1972, nomination of 8 candidates was found valid.
Out of the said 8 candidates, 3 withdrew their candidature with the result that only five candidates including the appellant who was set up by Bhar tiya Jan Sangh and Rajendra Jain (p.W. 39) who was set up by the Indian National Congress contested the election.
The poll took place on March 8, 1972.
On March 12, 1972, the appellant was declared elected as a result of counting of the polled votes which showed that he had secured 23,572 votes as against 22,327 secured by Rajendra Jain (P.W. 39), his nearest rival.
On April 24, 1972, the respondent herein presented an election petition challenging the elec tion of the appellant alleging commission by the latter of various acts of corrupt practices.
The particulars of cor rupt practices alleged to have been committed by the appel lant were set out by the respondent in Paragraphs 13, 14 and 15 of his election petition.
In paragraph 13 of the elec tion petition, it was inter alia stated as under : "(13).
That the respondent has committed the corrupt practice of publication of false statement of fact in relation to the personal character and/or conduct of Shri Rajendra Jain (hereinafter referred to as the 'Congress Candidate ') falling in the purview of section 123(4) of the Act as per the facts and particulars mentioned hereinafter.
Leaflet (13)(xi).
That the Congress candidate is the follower of the Jainism wherein the eating of cow meat is absolutely prohibited.
Shri Rajendra Kumar Jain does not eat meat at all.
Amongst Hindus who form a majority of the voters in the Constituency, cow is regarded as a sacred animal and worshipped like God.
Persons who eat cow meat are looked with hatred by the Hindus and are discarded from the society.
527 (13) (xii).That the respondent/Election Agent got printed and distributed a leaflet enti tled: "Beware, understand the Congress Candidate." (Leaflet is attached hereto and marked as Annexure 'A ').
(13)(xiii).
That the leaflet Annexure 'A ' contains the following statement of facts which are false, which the respondent either believed to be false or did not believe to be true in relation to the personal character and for conduct of the Congress Candidate, being the statement reasonably calculated to prejudice the prospects of Congress candidate 's election: " .
What to speak of other things, Rajendra Jain went on tour to those countries where beef is prepared and served in Hotels and there he took beef even.
Do you want to cast your vote in favour of a person who is atheist who is a beef eater and is devoid of Dharma . " (13) (xiv) .
That the pararticulars re garding the date, place, time and name regarding the distributors of Annexure 'A ' are given herein below : Sr.
Date Place Name of Time Distribution (a) 5.3.
72 Khachrod (Shukar Rampartap s/o About variya Chouk)in Ramsukh 3.00 P.M. the meeting of Jan Khachrod Sangh at which the respondent and his election age nt Shri Amrudda Heda were also present.
(b) 6. 3.72 Ramsingh 9.00 A.M. to R/o Ganesh 11.00 A.M. Chowk, Birlagram, Nadga.
The election petition was vigorously contested by the appellant.
In the course of the written statement filed by him, the appellant denied to have any concern with or knowledge of the aforesaid leaflet and averted that during the election time, he never saw any such leaflet; that it was only in the course of the election petition that he came to know of the leaflet and that he had no knowledge of the truth or falsity of the contents thereof.
The appellant further averred that it was only after the defeat of Rajen dra Jain that the story of the leaflet was manouvred and manufactured for the purpose of the election petition.
The appellant further averred that he did not do anything to prejudice the prospects of the election of Rajendra Jain.
On the pleadings of the parties, the learned Judge (to whom the election petition was .assigned for trial and disposal by the Chief Justice of the High Court) framed a number of issues but it is only with the following issues with which we are concerned in this appeal: 528 "4) (a).
Whether the leaflet Annexure 'A ' was published by or with the consent of the respondent by the persons and on the dates mentioned in para (13)(xiv) of the petition ? (b) If so, whether the said leaflet contained false statements in relation to the personal char acter and conduct of the congress candidate Rajen dra Jain which the respondent did not believe to be true or believed to be false ?" On consideration of the evidence adduced by the parties during the course of the regular trial of the petition, the learned trial Judge allowed the election petition and set aside the election of the appellant under section 100(1)(b) of the Act.
The findings arrived at by the learned Judge in so far as they are relevant for the purpose of this appeal are as follows : "Though the findings on most of ,the issues are against the petitioner yet it has been found that the pamphlet exhibit P 10 which was a false state ment with regard to the personal conduct and char acter of the candidate Rajendra Jain was got print ed by the respondent at the printing press of P.W.34 Ramprasad.
The defence raised by the re spondent with regard to this pamphlet has been found to be not established.
It has been held that it was the respondent who himself by letter exhibit
P 20 got this pamphlet printed in the printing press of P.W. 34.
Ramprasad.
The evidence given by the petitioner about its distribution by Ram Singh (P.W. 21) and Rampratap Dhakad (not examined) with the consent of the respondent has been disbelieved.
However, it has been found as a fact that it was the respondent himself who got 2000 copies of this pamphlet printed and published.
This is, therefore, a clear case where the respondent is guilty of getting this pamphlet printed and published against the congress party candidate Rajendra Jain.
The respondent is, in the light of the aforesaid finding clearly guilty of committing the corrupt practice as mentioned in sub section (4) of section 123 of the Representation of the People Act.
When such a pamphlet is published by the returned candi date the only inference that can be drawn is that the publication was reasonably calculated to prejudice the prospects of the election of the other contesting candidate Rajendra Jain; Conse quently under section 100(1)(b) the election of the respondent is liabIe to be declared void and set aside.
" The trial Judge, however, left the parties to pay and bear their own costs of the petition.
It is against this judgment and order that the present appeal has been pre ferred.
Mr. Hardy, who has taken great pains to present the case of the.
appellant has, in the first instance, attempted to lead us to the realm of hyper technicalities.
He has tried to pick up faults in the verifica 529 tion on the election petition and the affidavit accompanying the petition and has urged that the petition ought to have been dismissed by the High Court in limine under section 86 of the Act in view of the fact that the verification and the affidavit ,did not contain sufficient particulars of the corrupt practices attributed to the appellant and did not at all give particulars ,of printing of the offending leaflet.
He has further urged that the petition was also liable to be dismissed as the copy of the petition meant to be served on the appellant was not accom panied by a copy of annexure 'A ' i.e. Exh.
We find ourselves unable to accede to these contentions.
The alle gations of corrupt practice and particulars thereof as given in paragraph 13 of the election petition reproduced above are sufficiently clear and precise.
The affidavit accompanying the petition in support of the allegations of corrupt practice and the particulars thereof also conform to the form prescribed for the purpose.
The appellant had an easy access to the court record and could have no difficulty in gathering the necessary material to meet the case set up by the respondent by a reference to the leaflet (Exh.
P 10) which formed an annexure to the election petition.
It is also now well settled that failure to give pariculars of printing of the pamphlet is not detrimental and cannot lead to the dismissal of the petition.
(See Prabhu Narayan vs A. K. Srivastava) (1).
That apart, the petition could also not have been dismissed in view of section 99 of the Code of Civil procedure which clearly says that a defect which does not affect the merits of the case or the jurisdiction of the Court cannot invalidate the decision.
The preliminary con tentions of Mr. Hardy cannot, therefore, be sustained.
Continuing his arguments, Mr. Hardy, while fairly.
and rightly conceding that the contents of the aforesaid leaflet (Exh.
P 10) do cast a reflection on the personal conduct and character of Rajendra Jain (P.W. 39) and as such fall within the mischief of section 123(4) of the Act, has vehemently assailed the aforesaid findings of the trial Judge with regard to the printing and publication of the leaflet (Exh.
P 10) by the appellant.
He has contended that the evidence adduced in the case does not at all establish that it was the appellant or his election agent or any one of his sup porters who got the offending leaflet (Exh.
P 10) printed or published or that the leaflet was distributed to the members of the public of Khachrod Constituency with the consent of the appellant or his election agent to prejudice the election prospects of Rajendra Jain (P.W.39).
In view of the concession made by Mr. Hardy that the contents of the aforesaid leaflet (Exh. P 10) do cast a reflection on the personal conduct and character of Rajendra Jain (P.W. 39) and as such would fail within the mischief of section 123(4) of the Act, the only point that survives for decision in this appeal is whether the High Court was right in setting aside the election of the appellant on the ground of 'publication ' by him or with his consent: of the leaflet which according to the respondent contained false statement of facts as to the personal character and conduct of Rajendra Jain (P.W. 39) and was reasonably calculated to prejudice the prospects of the latter 's election to the State Legislative Assembly in the general elections of 1972.
(1)[1975] 3 S.C.C. 788.
530 The first and foremost question which is required to be determined in this connection is whether it was the appel lant who got the offending leaflet printed.
It is necessary to go into the question of printing of the leaflet (Exh.
P 10) as the finding in respect thereof is bound to have as held by this Court in Prabhu Narayan 's case (supra), an important bearing on the question of its distribution either by the appellant or with his consent and a discussion of the evidence regarding printing provides a satisfactory method of assuring oneself as to whether the distribution was made, as alleged, by the appellant or with his consent.
Now the proof regarding printing of the leaflet (Exh.
P 10) consists of the evidence of Ramprasad (P.W.24) who is the Manager of Kamla Printing Press, Ujjain, which is owned by his wife.
Mr. Hardy has stressed that the statement of Ramprasad is untrustworthy; that his conduct does not inspire confidence and that his statement being that of an accomplice cannot be relied upon without independent corrob oration.
Though Mr. Hardy his levelled trenchant criticism against the evidence of Ramprasad (P.W. 24,), we are not inclined to agree with him.
There is nothing strange about the conduct or behaviour of Ramprasad which may impel us to discard his testimony.
Despite the searching cross examina tion to which he was subjected, his credit has remained unshaken.
The mere fact that he printed the offending leaflet cannot clothe him with the character of a guilty associate or partner in the crime of corrupt practice within the meaning of ,section 123 (4) of the Act, which consists in the publication by the candidate or his agent or by any other person with the consent of the candidate or.
his election agent, of any statement of fact which is false or which he either believes to be false or does not believe to be true, in relation to the personal character or conduct of any candidate which is reasonably calculated to prejudice the prospects of that candidate 's election.
In the instant case, Ramprasad (P.W. 24) was neither the election agent of the appellant nor is there any allegation that he published the offending leaflet.
Section 127 A of the Act on which Mr. Hardy has placed strong reliance in support of his contention that Ramprasad (P.W. 24) was in the position of an accomplice has no relevance.
It has nothing to do with the offence in question.
The ommission on the part of Ramprasad to send to the concerned District Magistrate a copy each of the declaration and the printed material as required by sub section (2) of section 127 A of the Act may lay him open to prosecution for an offence under sub section (4 ) of section 127 A of the Act but would not make him an accomplice or render his statement untrustworthy.
Ramprasad (P.W. 24) has affirmed that on February 22, 1972, Rajaram from Khachrod .came to him and made inquiries from him regarding the printing charges of a leaflet, and that he turned up again on the following day with letter (Exh. P 20) from the appellant and told him that he had been sent by him.
The witness has further deposed that Rajaram departed after handing over to him the letter (Exh.
P 20), the draft or manuscript of the leaflet (Exh.
P 21) which had to be printed and the printing charges amounting to Rs. 45/ .
He has further stated that the charges were acknowledged by him the same day by means of a receipt of the even date; that on February 24, 531 1972, when he had completed the composition of draft of the leaflet, Anirudh Hada (R.W. 1), an advocate of Ujjain, came to him and after telling him that he was the representative and worker of the appellant, went through the printed proof (Exh. P .23) of the leaflet (Exh.
P 10) and advised him that the name of Rajaram Parmar appearing at one place on the first sheet and at two places on the second sheet in the proof should be removed and replaced by the words 'a citizen of Khachrod '.
The witness has further stated that 2,000 copies of the leaflet were printed by him on February 25, 1972 and handed over to Rajaram.
The state ment of Ramprasad (P.W. 24) receives strong corroboration not only from the various documents viz. the draft (manu script) (Exh.
P 21), carbon copy of receipt (Exh. P 22), proof (Exh.
P 23) of the offending leaflet, carbon copy of the bill (Exh.
P 24), entry (Exh.
P 25) in his cash book dated February 24, 1972 regarding the payment of the print ing charges of Rs. 45/ and entry (Exh. P 26) in his Order Book Register in respect of the leaflet produced by him but also from the letter (Exh.
P 20) which admittedly bears the signatures of the appellant and contents whereof are in the handwriting of his brother, Surendra Singh.
The letter runs as follows : " 23.2.72 Shri Ramprasadji, KamaIa Press, Ujjain.
Please print 2000 pamphlets of the matter which I have sent through Rajaram.
I need this pamphlet early.
Hence print it within a day or two.
I am sending Rs. 45/ with Rajaram, which please accept.
The proof will be seen by Hadaji, who will come to you.
Sd/ Kunwar Virendra singh, Member, Legislative Assembly, M.P. Constituency Khachrod, District Ujjain.
" The above letter, it would be seen, contains intrinsic evidence which goes a long way to support the testimony of Ramprasad (P.W. 24).
It clearly establishes (i) its own despatch to the witness by the appellant through Rajaram; (ii) the despatch to the witness by the appellant through Rajaram of the draft or manuscript of the matter to be printed, (iii) the placing of the order by the appellant for printing of 2,000 copies of the manuscript (Exh.
P. 2.1) in the form of leaflets; (iv) the remittance by the appellant through Rajaram of Rs. 45/ to defray the printing charges; and (v) the advice by the appellant to the witness that the proof would be seen by Mr. Anirudh Hada.
Although Mr. Hardy has tried hard to persuade us to hold that the letter could not have been written by or at the instance of the appellant, we are not inclined to agree with him.
There is nothing unusual in the contents of the letter being in the hand of 532 Surendra Singh in view of the statement of Chander Singh (R.W. 25) (corroborated as it is by the clear admission of the appellant himself that the relations between the two brothers i.e. Surendra Singh and the appellant remained cordial from the time of the wedding of the appellant 's daughter which took place in August, 1967 to nearly four months after the general elections of 1972.
and that in the said general elections, Surendra Singh worked with the appellant and also accompanied him sometimes.
That Ramprasad 's (P.W. 24 's) statement possesses a ring of truth and he was not trumped up by any of the arch ene mies of the appellant including Surendra Singh and Rajendra Jain (P.W. 39) as Mr. Hardy would have us believe is mani fest from another telling circumstance viz. the significant omission on the Part of the appellant to contradict Rampra sad (P.W. 24) by examining Rajaram who was no other than his own polling agent as is evident from Exhibit P 30 which admittedly bears the signatures of the appellant.
It can, therefore, be safely presumed that Rajaram was not prepared to support the appellant by refuting the statement of Ram prasad (P.W.24).
The assertion of the appellant that he deputed his brother, Surendra Singh alongwith Chander Singh (R.W. 25) to go to Ranasan in the State of Gujarat to bring his jeep from his relative, Thakur Harish Chander Singh, who was not returning, the same despite several demands made from him through letters and telegrams; that while so deputing his brother he handed over to him six blank official letter heads which were used by him as a Member of the State Legis lative Assembly after putting his signatures and affixing the rubber stamp of his designation thereon so that they might be utilized for making reports/complaints to the Police or other officials of the Transport Department in case his relative refused to return his jeep and that Surendra Singh misused one of the aforesaid letter heads and fabricated Exh.
P 20 as his relations with him became strained over the demand for division of the landed property which was got mutated by his father during his lifetime in the name of Surendra Singh 's son is nothing but a tissue of lies woven to escape the grave consequences of addressing the letter (Exh.
P 20) to Ramprasad (P.W. 24).
The contents of the letter (Exh.
P 26) being, therefore, in the hand of Surendra Singh is not a circumstance which can rea sonably arouse suspicion regarding its genuineness.
On the contrary, it is consistent with the normal course of human conduct.
It may well be that the appellant being otherwise busy, dictated the contents of the letter (Exh.
P 20) to his brother,Surendra Singh and thereafter put his own signature thereon.
It cannot also be overlooked that the appellant has been shifting his stand from time to time with regard to the aforesaid blank sheets to suit his own convenience.
Whereas at one place in the complaint (Exh. P 33) filed by him on July 31,1973, in the Court of Magistrate 1st Class, Khahrod, he averted that he delivered those forms 533 to Chand Singh Raghubanshiand Berulal, Driver, at another place in the same complaint, he made a veiled averment to the effect that the letter heads were handed over by him to his brother, Surendra Singh.
The plea taken by the appellant that he gave six blank letter heads with his signatures thereon to his brother, Surendra Singh, is also falsified by the .First Information Report (Exh.
R 79) made by him to the station House Officer, Police Station, Chhatripura, Indore, on September 26, 1973 wherein he appears to have stated that Surendra Singh sold his Fiat car No. MPO.
1241 by forging his signatures on a document.
If the appellant had in fact handed over.
six blank letter heads with his signatures thereon to Surendra Singh, as asserted by him, the latter could have easily used one of those letter heads.
It is also worthy of note that whereas at the foot of the complaint (Exh.
P 33), the appellant cited Chand Singh, s/o Saman Singh Raghubanshi, resident of Mosi Gate, Khachrod as his witness, in the instant election petition he has produced Chander Singh, s/o Chandrabhansingh of Khachrod as his witness in proof of the handing over of the afore said six letter heads bearing his signatures to Surendra Singh.
It is also difficult to believe that the appellant would hand, over half a dozen blank letter heads bearing his signatures to his brother, Surendra Singh specially when his wife, according to his own admission in the report (Exh. R 84) dated July 26, 1973 accompanied his brother to Ranasan.
All these circumstances furnish a proof positive of the falsity of the statement of the appellant in regard to the circumstances in which letter (Exh.
P.20) came into existence.
The foregoing discussion leaves no room for doubt that it was the appellant who got the offending leaflet printed at the Kamla Printing Press, Ujjain.
This takes us to the crucial question of the distribu tion of the offending leaflet by the appellant or his election agent or by some other person with the consent either of the appellant or his election agent.
Though the appellant and his election agent, Anirudh Hada, advocate (R.W. 1) have asserted that they had no connection with the distribution of the leaflet and the learned counsel for the appellant has also sought to make capital out of the High Court 's observation at one place that the distribution of the, leaflet was not by the appel lant or with his consent and at another place that the appellant himself was responsible for the publication of the leaflet (which according to the decision of this Court in Prabhu Narayan 's case (supra) means distribution of the printed material).
We shall show by reference to the unim peachable direct and circumstantial evidence which the High Court has failed to consider in its proper perspective that the only conclusion which could reasonably have been arrived at was that the distribution of the leaflet (which has not been disbelieved by the High Court to have been made) was by and with the consent of the appellant or his election agent.
534 As already stated the respondent had alleged in the election petition that the leaflet was distributed on two different dates and at two different places in his constit uency (1) on March 5, 1972 at Shukravariya Bazar, Khachrod at the meeting of Jan Sangh at which the appellant and his election agent, Anirudh Hada, Advocate were seated on the dais and (ii) on March 6, 1972 at Nagda.
The distribution of the leaflet on March 5, 1972 is alleged to have been made by Rampratap and on March 6, 1972 by Ram Singh (P.W. 21).
We propose to discuss the evidence with regard to these two distributions separately.
That a public meeting was organised and held on the afternoon of March 5, 1972 by the Jan Sangh Party in Shukravariya Bazar, Khachrod, at which the Rajmata of Gwalior, the appellant and his election agent, Anirudh Hada, advocate (R.W. 1 ) were seated on the dais and which was addressed by the Rajmata of Gwalior admits of no doubt as the same is admitted by both the appellant and his election agent, Anirudh Hada, (R. W. 1) as also by the appellant 's witness, Ramdas (R.W. 24).
It is only the distribution of the leaflet (Exh.
P 10) at this meeting which is denied by them.
The denial cannot, however, be sustained in view of clear and convincing evidence of Badri lal (P.W. 15), Nanalal (P.W. 27) Khursheed Ahmed (P.W. 35) and Shaitanmal Sisodia (P.W. 38).
All these witnesses have categorically stated that at the aforesaid meeting at which besides others the Rajmata of Gwalior, the appellant and his election agent, Anirudh Hada (R.W. 1) were seated on the dais, they saw leaflet (Exh. P 10) which appeared to have been issued in the name of a Nagrik of Khachrod being distributed to the persons who had assembled to attend the meeting by Rampratap Dhaked of Khachrod.
The witnesses have further stated that in the aforesaid leaflet (Exh. p 10) it was inter alta written that Rajendra Jain "while touring abroad had taken cow meat.
" If the appellant or Anirudh Hada had nothing to do with the distribution of the leaflet, there was nothing to stop them from restraining Rampratap from distributing the same or admonishing him for doing so.
It is no doubt true that the respondent has not been able to produce Rampratap in proof of his allegation but it cannot be lost sight of that the former did summon the latter as his witness but he did not appear despite serv ice.
the course of the statement made by him as his own witness, the respondent has explained that on Rampratap 's omission to appear before the Court as his witness despite service, he contacted the latter to enquire about the reason for his non appearance and was told by the latter that he could not attend the Court since his brother was married to the niece of Vardiram (R.W. 30) and his appearing as a witness in the Court would strain his relations with Vardiram.
In the course of his statement, Vardiram (R.W. 30,), who is staunch worker of Jan Sangh and who appears to have worked for Jan Sangh and addressed public meetings in support of its candidates during the last general elections had to admit that his real nephew was engaged to the daugh ter of Rampratap.
It is also significant that though Ram pratap was also summoned as a witness by the appellant, the latter gave him upon December 12, 1973.
It is, therefore, crystal clear that the non appearance of Rampratap as a witness for the 535 respondent was entirely due to his anxiety to maintain cordial relations with Vardiram.
The totality.
of the evidence adduced in the case, therefore, leaves no room for doubt that the distribution of the leaflet (Exh. P 10) at the meeting of the Jan Sangh Party held on the afternoon of March 5, 1972 in Shukravariya Bazar, Khachrod, was with the consent of the appellant or his election agent, Anirudh Hada, advocate (R.W. 1).
The distribution of the copies of the leaflet (Exh. P 10) at Nagda on March 6, 1972 also stands proved.
by the direct evidence of Ram Singh (P.W. 21), Ajit Singh (P.W. 22), Shanker Singh (P.W. 23) and Jawahar Lal (P.W. 37).
Ram Singh (P.W. 21) who besides being an employee of the Gwalior Rayon Mills is a newspaper hawker has stated that during the last general elections, he worked for Thakur Virendrasingh who was a candidate of the Jan Sangh party.
He has further stated that two days before the date of voting, he distributed free of cost about 300 copies of leaflet (Exh.
P 10) in which it was stated that Rajendra Jain was a meat eater, that he eats flesh and that the voters should know him.
The witness has unequivocally stated that it was the appellant who gave him the leaflets and asked him to distribute the same and told him that his remuneration for this job would be duly paid to him and that subsequently, Rs. 4/ were paid to him as remuneration for distributing the leaflets by the President of Nagda Nagar Jan Sangh Party.
Although it has been emphasized by Mr. Hardy that the statement of Ram Singh (P.W. 21) cannot be relied upon as he is a staunch worker of the Congress organ isation and is also a member of the Indian National Trade Union Congress which is a subsidiary institution of the Indian National Congress, it cannot be ignored that the Indian National Congress and the Indian National Trade Union Congress did not see eye to eye with each other in the matter of choice of the candidates for election during the last general elections.
This is evident from the statement of appellant 's own witness, Vishnu Singh (R.W. 2) who has deposed that the Indian National Trade Union Congress sup ported Maheshchandra Lala who was an independent candidate.
The statement of Ram Singh (P.W. 21) receives ample corroboration from the evidence of Shanker Singh (P.W. 23) and Jawahar Lal (P.W. 37) (who is a non Congressman).
These witnesses have clearly stated that one or two days before the date of voting, Ram Singh (P.W. 21) who is also a news paper hawker distributed copies of leaflet (Exh.
P 10) without any charge in Nagda in which it was inter alia mentioned that Rajendra Jain was a cow meat eater and during his trip abroad he stayed at the places where cow meat was served.
Ajit Singh (P.W. 22) has also affirmed that about two days before the date of polling when he had gone to Nagda Mandi for shopping, he came across a leaflet wherein it was mentioned that "while Rajendra Jain was abroad, he stayed in hotels where cow meat was served and that he being a Jain, stayed in such hotels." Even if the testimony of Ram Singh (P.W. 21) which has been disbelieved by the High Court is excluded from consideration, even then there are some unimpeachable and telling pieces of =circum stantial evidence to establish the distribution of the leaflet (Exh.
P 10) by the 536 appellant or with his consent which cannot be easily ignored.
These circumstances are (i) it was the appellant who as already observed caused the election leaflet (Exh.
P 10) to be printed by Ramprasad (P.W. 24.) at the Kamla printing Press, Ujjain; (ii) in the normal course of human conduct, no one gets any material printed without a purpose and in the instant case, the purpose manifestly was to malign the conduct and character of Rajendra Jain by distri bution of the leaflet (Exh.
P 10) amongst the inhabitants of Khachrod Constituency, (iii) the selection of time and place for distribution of the leaf .
let (Exh.
P 10)) which openly denounced Rajendra Jain and cast aspersions on his personal character and conduct and appealed to the elector ate not to vote for him.
The offending leaflet was got distributed at a largely attended election meeting held at Khachrod to canvass support for the appellant where both the appellant and his election agent were present and at other places in Nagda which were frequented by the voters of Khachrod Constituency at a time when the tempo of the elect iion campaign was at its climax, and (iv) the omission on the part of the appellant to prove that the leaflet (Exh.
P 10) emanated from a source which had no connection with the appellant or his election agent.
Not only is the distribution of the offending leaflet proved to have been made by the appellant or his election agent or with their consent but it has also been proved by the unrebutted testimony of Rajendra Jain that the leaflet contained false statement of facts calculated to injure his personal conduct and character with a view to prejudice the prospects of his election.
In the result, the appeal fails and is hereby dismissed with costs.
P.B.R. Appeal dismissed.

summary:
The respondent, who was an unsuccessful candidate in the general election to the State Assembly, impugned the appel lant 's election on the ground that he had committed a cor rupt practice within the meaning of section 100(1)(b) of the Representation of the People Act, 1950, in that he had printed and circulated a pamphlet maligning the respondent.
Allowing the petition, the High Court set aside the elec tion.
In appeal to this Court it was contended on behalf of the appellant as a preliminary objection (i) that since the election petition served on the appellant was not accompa nied by a copy of the impugned pamphlet, the petition _was liable to be dismissed and (ii) that the evidence of the Manager (P.W. 24) of the Press in which the pamphlet had been printed, being that of an accomplice could not be relied upon.
Dismissing the appeal, HELD: (1) (a) The petition could not have been dismissed in view of section 99 of the Code of Civil Procedure which clear ly says that a defect which does not affect the merits of the case or the jurisdiction of the Court cannot invalidate the decision.
[529 D] (b) It is well settled that failure to give particulars of printing of the pamphlet is not detrimental and cannot lead to the dismissal of the petition.
[529 D] Prabhu Narayan vs
A.K. Srivastava; , re ferred to.
In the instant case, the allegations of corrupt practice and particulars thereof given in the election petition were sufficiently clear and precise.
The affidavit conforms to the form prescribed for the purpose.
Moreover, the appel lant had an easy access to the Court record and could have no difficulty in gathering the necessary material to meet the case set up by the respondent by a reference to the leafet.
[529 C] (2) (a) The mere fact that P.W. 24 printed the offending leaflet could not clothe him with the character off a guilty associate or partner in the crime of corrupt practice within the meaning of section 123(4) of the Act.
[530 D] (b) Moreover, the omission on the part of P.W. 24 to send to the concerned District Magistrate a copy each of the declaration and the printed material as required by section 127 A(2) of the Act may lay him open to prosecution for art offence under sub section
(4) of that section but would not make him an accomplice or render his statement untrustworthy.
[530 F] In the instant case, P.W. 24 was neither an election agent of the appellant nor was there any allegation that he published the offending leaflet.
Despite the searching cross examination to which he was subjected, his credit had remained unshaken.
[530 E]


judgement:
Appeal No. 766 of 1976.
Appeal by Special Leave from the Order dated 29 11 75 of the Industrial Tribunal, Orissa in Industrial Dispute Case No. 5/75 and Special Leave Petitions (Civil) Nos. 1844A and 1845/76 L.N. Sinha, Sol.
Gen, Govind Das, (Mrs.) section Bhandare, M. section Narasimhan, A. K. Mathur and A.K. Sharma, for the Appel lant.
J. P. Goyal and Shree Pal Singh; for the Respondent.
Gobind Das, P.H. Parekh and (Miss) Manju Jatly; for the petitioner [In S.L.P. (Civil) Nos. 1844A and 1845/76].
The Judgment of the Court was delivered by GOSWAMI, J.
The Appellant, the Paradip Port Trust, is a major port governed by the provisions of the and is managed by Board of Trustees consti tuted under the provisions of the said Act.
Under section 5 of the said Act the Board of Trustees is a body corporate having perpetual succession and a common seal with power, subject to the provisions of the Act, to acquire, hold or dispose of property and may sue or be sued in the name of the Board.
An industrial dispute was raised by the Paradip Shramik Congress representing the workmen with regard to the termination of the service of one Nityananda Behera, a temporary teacher in the Paradip Port Trust High School.
The dispute was referred to the Industrial Tribunal (Cen tral) Bhubaneswar, Orissa, under section 10( 1 ) (d) of the (briefly the Act).
The respondents (hereinafter to be referred to as the Union) appeared before the Tribunal through the Adviser and General Secretary of Paradip Shramik Congress.
The appel lant sought to be represented before the Tribunal through Shri T. Misra, Advocate, who was a "Legal 539 Consultant" of the Trust.
The appellant filed their au thority in Form 'F ' under rule 36 of the Orissa Industrial Dispute Rules in his favour.
The appellant subsequently filed also a Power of Attorney executed by the Chairman of the Board of Trustees in favour of Shri T. Misra who was admittedly a practising Advocate of the Orissa High Court.
An objection was taken by the Union to the representa tion of the Paradip Port Trust (hereinafter to be described as the employer) by Shri T. Misra, Advocate, and the Union refused to give their consent to his representation as required under section 36(4) of the Act.
The Tribunal after hearing the parties upheld the objec tion of the Union.
The Tribunal examined the terms and conditions of the appointment of Shri T. Misra as Legal Consultant of the employer and held as follows : "His duties and the restrictions on his practice which have been extracted above and the terms as to his professional fees, etc. indicate that the relationship of the first party and Shri Misra is clearly that of a client and his lawyer and not that of employer and employee.
Hence, Shri Misra cannot be said to be Officer of the first party.
" The Tribunal further held: "Merely by execution of a power of attorney, the restrictions attached to a legal practitioner contained in sub section (4) of the Act cannot be circumvented.
I would accordingly bold that Shri Misra who is a legal practitioner cannot represent the first party before this Tribunal even if he holds a power of attorney executed in his favour by the first party? The appellant has obtained special leave of this Court against the above order of the Tribunal.
We have heard the Solicitor General on behalf of the appellant and Shri Goyal for the respondents.
Along with the above, appeal two Special Leave petitions Nos.
1844 A and 1845 of 1976 are also posted for hearing for admission and we have heard Mr. Gobind Das at great length.
The two Special Leave Petitions are by the management of Keonjhar Central Cooperative Bank Ltd. One application is relating to rejection by the Tribunal of the Bank 's prayer for representation before the Tribunal through its Advocate, Shri B.B. Rath, on the ground of objection by the Union under section 36(4) of the Act.
The second application relates to the, order of the Tribunal allowing Shri A.C. Mohanty, Advocate and Vice President of the Keonjhar Central Cooperative Bank Employees Union under section 36(1) of the Act notwithstanding the objection of the management.
Industrial law in India did not commence with a show of cold shoulder to lawyers as such.
There was an unimpeded entrance of legal practitioners to adjudication halls before tribunals when the Act first came into force on April 1, 1947.
Three years later when the Labour Appellate Tribu nals were constituted under the Industrial Disputes (Appel late Tribunal) Act 1950, a restriction was imposed on the parties 3 1234SCI/76 540 in engagement of legal practitioners before the Appellate Tribunal without consent of the parties and leave of the Tribunal.
When this was introduced in the appellate forum, the same restriction was imposed for the first time upon representation of parties by legal practitioners before the Industrial Tribunals as well [see Section 34 of the Indus trial Disputes (Appellate Tribunal) Act, 1950].
In view of the recent thinking in the matter of preferring legal aid to the poor and weaker sections of the people it may even be possible that the conditional embargo under section 36(4) may be lifted or its rigour considerably reduced by leaving the matter to the Tribunals permission as has been the case under the English law.
Restriction on parties in respect of legal representa tion before Industrial Courts is not a new phenomenon.
It was there in England in the Industrial Courts Act, 1919 (9 & 10 Geo 5 c 69) and.
does not appear to be altered even by the Industrial Relations Act, 1971.
Section 9 of the English Act provides that except as provided by rules, "no person shall be entitled to appear on any such proceedings by counsel or solicitor.
" However, rule 8 of the Industrial Court (Procedure) Rules 1920 allows persons to appear by counsel or solicitor with permission of the court.
The Act envisages Investigation and settlement of indus trial disputes and with that end in view has created various authorities at different levels all independent of one another.
The word adjudication occurs only with reference to labour courts, industrial tribunals and national tribu nals.
These bodies are manned by Judges of High Courts or by officers with appropriate Judicial and labour law experi ence.
The conciliation proceedings held by a Board or a Conciliation Officer are mainly concerned with mediation for promoting settlement of industrial disputes.
It is reason able to suppose that the presence of legal practitioners in conciliation may divert attention to technical pleas and will detract from the informality of the, proceedings imped ing smooth and expeditious settlement.
Legal practitioners entrusted with their briefs cannot be blamed if they bring forth their legal training and experience to the aid and benefit of their clients.
But labour law operates in a field where there are two unequal contestants.
The Act, there fore, takes care of the challenge of the situation in which the weaker party is pitted against the stronger before adjudicating authorities.
That appears to be one of the reasons for introducing consent of the parties for represen tation by legal practitioners.
Employers, with their purse, naturally, can always secure the services of eminent coun sel.
The question that arises for consideration will turn on the interpretation of section 36 of the Act which may be quoted: 36(1) A workman who is a party to a dispute shall be entitled to be represented in an proceed ing under this Act by (a) any member of the executive or other office bearer of a registered trade union of which he is a member; 541 (b) any member of the executive or other office bearer of a federation of trade unions to which the trade union referred to in clause (a) is affiliated; (c) where the worker is not a member of any trade union, by any member of the executive or other office hearer of any trade union connected with, or by any other workman employed in the industry in which the worker is employed and autho rised in such manner as may be prescribed.
(2) An employer who is a party to a dispute shall be entitled to be represented in any pro ceeding under this Act by (a) an officer of an association of employers of which he is a member; (b) an officer of a federation of associa tions of employers to which the association re ferred to clause (a) is affiliated; (c) where the employer is not a member of any association of employers by an officer of any association of employers connected with, or by any other employer engaged in, the industry in which the employer is engaged and authorised in such manner as may be prescribed.
(3)No party to a dispute shall be entitled to be represented by a legal practitioner in any concili ation proceedings under this Act or in any proceed ings before a Court.
(4) In any proceeding before a Labour Court, Tribunal or National 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 Labour Court, Tribunal or National Tribunal, as the case may be.
" Section 36 provides for representation of parties before the Tribunals and the Labour Court.
Under section 36(1) a workman who is a party to a dispute shall be entitled to be represented in any proceeding under the Act by three classes of officers mentioned m (a), (b) and (c) of that sub sec tion.
Similarly under section 36(2) an employer who is a party to a dispute shall be entitled to be represented in any proceeding under the Act by three classes of officers mentioned in (a), (b) and (c) of that sub section.
By sub section (3) a total ban is imposed on representation of a party to a dispute by a legal practitioner in any concili ation proceedings under this Act or in any proceedings before a Court of enquiry.
Then comes section 36(4) which introduces the requirement of prior consent of the opposite party and 542 leave of the Tribunals and of the Labour Court, as the case may be, for enabling a party to be represented by a legal practitioner.
Under the scheme of the Act the parties to an industrial dispute are employers and employers; employers and workmen; and workmen and workmen [section 2(K)].
The definition of "appropriate Government" under section 2(a) of the Act lays bare the coverage of industrial disputes which may be raised concerning, amongst others, several types of corporations, mentioned therein, companies, mine, oil field, cantonment board and major port.
The definition of employer under section 2(g), which is a purposive but not an exhaustive definition, shows that an industrial dispute can be raised in relation to an industry carried on even by the Government and by local authorities.
It need not be added that indus try is also carried on by private owners, private companies and partnerships.
Employers and workmen will, therefore, be drawn from numerous sources.
Leaving aside for the present industrial disputes between employers and employers and workmen and workmen, such disputes, almost, always are between employers and workmen.
Prior to the insertion of section 2A in the Act by the Amendment Act 35 of 1965 a dispute raised only by a single individual workman did not come under the category of an industrial dispute within the meaning of section 2(k).
Left to himself, no remedy was available to such an aggrieved individual workman by means of the machinery provided under the Act for adjudication of his dispute.
Such an individual dispute, for example, relating to the discharge or dismissal of a single workman, however, became an industrial dispute only if a substantial body of workmen or a union of workmen espoused his cause.
The trade union of workmen, therefore, comes to be recog nised as a live instrument under the Act and has an active role to play in collective bargaining.
Thus, so far as workmen are concerned, union is, alsmost, always involved in the dispute from the inception.
Since the dispute, itself, in a large number of cases takes the character of industri al dispute from participatory involvement of the trade union, the Act confers an unbartered right upon the workmen to be represented by a member of the executive or by an office bearer of a registered trade union.
It is, there fore, in the very scheme of things that a workman 's absolute right to be represented by an office bearer of the union is recognised under the Act.
Indeed it would have been odd in the entire perspective of an industrial dispute and the objects and purposes of the Act not to give due recognition to the union.
But for a provision like section 36(1 ) of the Act, there may have been difficulty under the general law in the way of the office bearers of the union represent ing workmen before the adjudicating authorities under the Act unless, perhaps, regulated by the procedure under sec tion 11 of the Act.
To put the matter beyond controversy an absolute right is created in favour of the workmen under section 36(1) in the matter of representation.
Having made such a provision for the workmen 's representation the employer is also placed at par with the workmen in similar terms under the Act and the employer may also be represented by an officer of the association of employers of which the employer is a member.
The 543 right is extended to representation by the office bearers of the federation of the unions and by the officers of the federation of employers.
The provisions of section 36(1) and 36(2) confer on the respective parties absolute rights of representation by persons respectively specified therein.
The rights of representation under section 36(1) and section 36(2) are unconditional and are not subject to the condi tions laid down under section 36(4) of the Act.
The said two sub sections arc independent and stand by themselves.
As stated earlier, section 36 deals with representation of the parties.
Neither the Act nor section 36 provides for appearance of the parties themselves when they are individu als or companies or corporations.
The Tribunals and the Labour Courts being quasi judicial authorities dealing with rights affecting the parties cannot adjudicate their dis putes in absence of the parties.
It is, therefore, incum bent upon the Tribunals and Labour Courts to afford reasona ble opportunity to the parties to appear before them and hear them while adjudicating industrial disputes.
This position is indisputable.
Section 36, therefore, is not exhaustive in the sense that besides the persons specified therein there cannot be any other lawful mode of appearance of the parties as such.
As indicated earlier section 36 does not appear to take count of companies and corporations as employers.
It is, however, common knowledge that industri al disputes are raised in a predominantly large number of cases where companies or corporations are involved.
Since companies and corporations have necessarily to appear through some human agency there is nothing in law to pre vent them from being represented in any lawful manner.
As Salmond says :, "Every legal person, therefore, has corresponding to it in the world of natural persons certain agents or representa tives by whom it acts . . . . "(Salmond on Jurispudence, 12th Edition, page 312.) It is not intended under the Act that companies and corporations are confined to representation of their cases only through the officers specified in section 36(2) of the Act.
They can be represented by their directors or their own officers authorised to act in that behalf in a lawful manner provided it is not contrary to any provision of the Act.
This would not, however, mean that the companies and corporations, and for the matter of that any party, are free to engage legal practitioners by means of a special power of attorney to represent their interests before the Tribunals without consent of the opposite party and leave of the Tribunal.
Again, although under section 36(2)(c) there is provi sion for the contingency of an employer not being a member of an association of employers, the device of representation provided therein would not fit in the case of a Government Department or a public corporation as an employer.
These categories of employers, known to the Act, will be put to the most unnatural exercise of enlisting the aid of an outside 544 association, albeit connected with the same type of indus try, to defend their cases before Tribunals.
Such an absurd intent cannot be attributed to the legislature in enacting section 36, which will be, if that section is the be all and end all of the types of representations envisaged under the Act.
The impossibility of the position indicated above a crucial pointer to section 36 being not exhaustive but only supplemental to any other lawful mode of represen tation of parties.
The parties, however, will have to conform to the conditions laid down in section 36(4) in the matter of representation by legal practitioners.
Both the consent of the opposite party and the leave of the Tribunal will have to be secured to enable a party to seek representation before the Tribunal through a legal practitioner qua legal practitioner.
This is a clear significance of section 36(4) of the Act.
If, however, a legal practitioner is appointed as an officer of a company or corporation and is in their pay and under their control and is not a practising advocate the fact that he was earlier a legal practitioner or has a legal degree will not stand in the way of the company or the corporation being represented by him.
Similarly if a legal practitioner is an officer of an association of employers or of a federation of such associations, there is nothing in section 36(4) to prevent him from appearing before the Tribunal under the provisions of section 36(2) of the Act.
Again, an office bearer of a trade union or a member of its executive, even though he is a legal practitioner, will be entitled to represent the workmen before the Tribunal under section 36(1) in the former capacity.
The legal practi tioner in the above two cases will appear in the capacity of an officer of the association in the case of an employer and in the capacity of an office bearer of the union in the case of workmen and not in the capacity of a legal practitioner.
The fact that a person is a legal practitioner will not affect the position if the qualifications specified in section 36(1) and section 36(2) are fulfilled by him.
It must be made clear that there is no scope for enquiry by the Tribunal into the motive for appointment of such legal practitioners as office bearers of the trade unions or as officers of the employers associations.
When law provides for a requisite qualification for exercising a right fulfilment of the qualification in a given case will entitle the party to be represented before the Tribunal by such a person with that qualification.
How and under what circumstances these qualifications have been obtained will not be relevant matters for consideration by the Tribunal in considering an application for representation under section 36(1) and section 36(2) of the Act.
Once the qualifications under section 36(1) and section 36(2) are fulfilled prior to appearance before Tribunals, there is no need under the law to pursue the matter in order to find out whether the ap pointments are in circumvention of section 36(4) of the Act.
Motive of the appointment cannot be made an issue before the Tribunal.
545 We may note here the difference in language adopted in section 36(1) and section 36(2).
While section 36(1) refers to "any member of the executive" or "other office bearer," section 36(2), instead, mentiones only "an officer." Now "executive" in relation to trade union means the body by whatever name called to which the management of the affairs of the trade union is entrusted section 2(gg).
"Office bearer" in relation to a trade union includes any member the executive thereof but does not include an auditor section 2(III).
So far as trade unions are concerned there is no difficulty in ascertaining a member of the executive or other office bearer and section 36(1) will create no difficulty in practical application.
But the word "officer" in section 36(2) is not defined in the Act and may well have been, as done under section 2(30) of the Companies Act.
This is bound to give rise to controversy when a particular person claims to be an officer of the association of employers.
No single test nor an exhaustive test can be laid down for determining as to who is an offi cer in absence of a definition in the Act.
When such a question arises the Tribunal, each individual case, will have to determine on the materials produced before it wheth er the claim is justified.
We should also observe that the officer under section 36(2) is of the association or of the federation of associations of employers and not of the company or corporation.
The matter of representation by a legal practitioner holding a power of attorney came up for consideration before the Full Bench of the Appellate Tribunal of India in the year 1951 (see Kanpur Hoisery workers ' Union vs
J.K. Hosiery Factor) ', Kanpur)(1).
The provision for representation which applied to the Appellate Tribunal was section 33 of the repealed Industrial Disputes Appeallate Tribunal) Act, 1950.
This section corresponds to section 36 of the with which are concerned.
Although the Appel late Tribunal rejected the claim of the party to be repre sented by the legal practitioner on the basis of a power of attorney, with which we agree, the reasons for its conclu sion based solely on the ground of section 36 being exhaus tive do not meet with our approval.
The Appellate Tribunal took the view that the Act intended to restrict the repre sentation of parties to the three clases of persons enumer ated in sub sections (1) and (2) of section 33.
The Appel late Tribunal was of the view that sub sections(1) and (2) of section 33 were intended to be exhaustive of the persons (other than the party himself) who might represent either of the party.
Since holding of a power of attorney is not one such mode the claim of the legal practitioner failed, ac cording to the Appellate Tribunal.
The Rajasthan High Court in Duduwala & Co. and others vs Industrial Tribunal and another(2) took the same view.
Our attention has been drawn to the decisions of the Calcutta and Bombay High Courts where in a contrary view has been taken with regard to the interpretation of section 36 as being exhaustive [see Hall & Anderson, Ltd. vs
S.K. Neogi and another(3) and Khadilkar (K. K.) General Secretary, Engineering Staff Union Bombay vs Indian Hume Pipe Company, Ltd.,Bombay, and another] (4).
For the reasons already given by us we are (1) [1952] I L.L.J. 384.
(2) A.I,R. (3) [1954] I.L.L.J. 629.
(4) [1967] I.L.L.J. 139 546 of opinon that the views of the Labour Appellate Tribunal and that of the Rajasthan High Court in this aspect of the matter are not correct and the Calcutta and Bombay High Courts are right in holding that section 36 is not exhaus tive.
The Solicitor General contends that "and" in section 36(4) should be read as "or" in which case refusal to con sent by a party would not be decisive in the matter.
The Tribunal will then be able to decide in each case by exer cising its judicial discretion whether leave, in a given case, should be given to a party to be represented by a lawyer notwithstanding the objection of the other party.
It is pointed out by the Solicitor General that great hardship will be caused to public corporations if the union is given a carte blanche to finally decide about that matter of representation by refusing to accord its consent to repre sentation of the employer through a legal practitioner.
It is pointed out that public corporations, and even Government running a transport organisation like the State transport, cannot be expected to be members of any employers ' associa tion.
In their case section 36(2) will be of no avail.
To deny them legal representation would be tantamount to denial of reasonable opportunity to represent their cases before the Tribunal.
It is submitted that since such injustice or hardship cannot be intended by law the final word with regard to representation by legal practitioners before the Tribunal should rest with the Tribunal and this will be effectively implemented if the word "and" in section 36(4) is read as "or".
This, it is said, will also achieve the object of the Act in having a fair adjudication of disputes.
We have given anxious consideration to the above submis sion.
It is true that "and" in a particular context and in view of the object and purpose of a particular legislation may be read as "or" to give effect to the intent of the Iegislature.
However, having regard to the history of the present legislation, recognition by law of the unequal strength of the parties in adjudication proceedings before a Tribunal, intention of the law being to discourage repre sentation by legal practitioners as such, and the need for expeditious disposal of cases, we are unable to hold that "and" in section 36(4) can be read as "or".
Consent of the opposite part is not an idle alternative but a ruling factor in section 36(4).
The question of hardship, pointed out by the Solicitor General, is a matter for the legislature to deal with and it is not for the courts to invoke the theory of injustice and other conse quences to choose a rather strained interpretation when the language of section 36 is clear and unambiguous.
Besides, it is also urged by the appellant that under section 30 of the , every advocate shall be entitled "as of right" to practise in all courts, and before only tribunal section 30(i) and (ii).
This right conferred upon the advocates by a later law will be properly safeguarded by reading the word "and" as "or" in section 36(4), says counsel.
We do not fail to see some difference in language in section 30(ii) from the provision in section 14(1) (b) of the , relating to the right of advocates to appear before courts and tribu nals.
For example, under section 14(1) (b) of the 547 Bar Councils Act, an advocate shall ;be entitled as of right to practise save as otherwise provided by or under any other law in any courts (other than High Court) and tribunal.
There is, however, no reference to "any other law" in sec tion 30(ii) of the .
This need not detain us.
We are informed that section 30 has not yet come into force.
Even otherwise, we are not to be trammelled by section 30 of the for more than one reason.
First, the is a special piece of legislation with the avowed aim of labour welfare and representation before adjudicatory authorities therein has been specifical ly provided for with a clear object in view.
This special Act will prevail over the which is a general piece of legislation with regard to the subject matter of appear ance of lawyers before all courts, tribunals and other au thorities.
The is concerned with.representation by legal practitioners under certain conditions only before the authorities mentioned under the Act.
Generalia Specialibus Non Derogant.
As Maxwell puts it: "Having already given its attention to the particular subject and provided for it, the legis lature is reasonably presumed not to intend to alter that special provision by a subsequent general enactment unless that intention be main fested in explicit language . or there be something in the nature of the general one making it unlikely that an exception was intended as regards the special Act.
In the absence of these conditions, the general statute is read as silently excluding from its operation the cases which have been provided for by the special one.
"(1) Second, the matter is not to be viewed from the point of view of legal practitioner but from that of the employer and workmen who are the principal contestants in an industrial dispute.
It is only when a party engages a legal practi tioner as such that the latter is enabled to enter appear ance before courts or tribunals.
Here, under the Act, the restriction is upon a party as such and the occasion to consider the right of the legal practitioner may not arise.
In the appeal before us we find that the Tribunal, after considering the materials produced before it, held that Shri T. Misra could not claim to be an officer of the corpora tion simply because he was a legal consultant of the Trust.
The Tribunal came to this conclusion after examining the terms and conditions governing the relationship of Shri Misra with the Trust.
He was neither in pay of the company nor under its control and enjoyed freedom as any other legal practitioner to accept cases from other parties.
It is significant to note that one of the conditions of Shri Misra 's retainer is that "he will not appear in any suit or appeal against the Port until he has ascertained from the Chairman that his services on behalf of the Port will not be required.
" That is to say, although on a retainer and with fixed fees for appearance in eases there is no absolute ban to appear even (1) Maxwell on lnterpretation of Statutes 11th Ed. P. 169.
548 against the Port.
This condition is not at all consistent with the position of an officer of the Trust.
We agree with the opinion of the Tribunal that Shri Misra cannot be held to be an officer of the Trust.
A lawyer, simpliciter, cannot appear before an Industri al Tribunal without the consent of the opposite party and leave of the Tribunal merely by virtue of a power of attor ney executed by a party.
A lawyer can appear before the Tribunal in the capacity of an office bearer of a registered trade union or an officer of associations of employers and no consent of the other side and leave of the Tribunal will, then, be necessary.
In the result the appeal is dismissed with costs.
Necessarily the Special Leave Petitions also fail and stand dismissed.

dataset_name: IN-Abs

summary:
The appellant is a major port.
An industrial Dispute was raised by the respondent workmen with regard to the termina tion of the services of one of the employees.
The dispute was referred to the Industrial Tribunal under section 10(1)(d) of the .
The appellant sought to be represented through Shri T. Mishra, Advocate, who was described as "Legal Consultant" of the appellant.
Mr. Misra admittedly is a practising advocate of the Orissa High Court.
An objection was taken by the respondent to the representation of the appellant by Mr. Misra.
The respond ents refused to give their consent as required by section 36(4) of the Act.
The Tribunal came to the conclusion that the relationship between the appellant and Mr. Misra is that of a client and his lawyer and not that of an employer and employee.
The Tribunal also held that merely by execution of a power of attorney the restrictions attached to a legal practitioner contained in subsection (4) by Section 36 cannot be circum vented.
Dismissing the appeal, HELD: 1.
The Industrial Law in India did not commence with a show of cold shoulder to lawyers.
For the first time restriction was imposed in the year 1950 on the engagement of legal practitioners before the Appellate Tribunal without consent of the parties and leave of the Tribunal.
The restrictions on legal representations before the Industrial Courts existed in England also.
The act envisages investi gation and settlement of industrial disputes and with that end in view has created various authorities at different levels all independent of one another.
It is reason,able to suppose that the presence of legal practitioners in concili ation may divert attention to technical pleas and will detract from the informality of proceedings impeding smooth and expeditious settlement.
Legal practioners entrusted with their briefs cannot be blamed if they bring forth their legal training and experience to the aid and benefit of their clients.
But Labour Law operation operates in a field where there are two unequal contestants.
The Act, therefore, appears to be taking care of the challenge of the situation in which a weaker party is pitted against the stronger before adjudicating authorities.
Under section 36 (1) a workman who is a party to a dispute is entitled to be represented in any proceeding under the Act by 3 classes of officers mentioned in sub clauses (a), (b) and (c) of that sub section.
By sub section (3) a total ban is imposed (a), (b) and (c) of a party to a dispute by legal practi tioners in any conciliation proceedings under the Act or in any proceedings before a Court of enquiry.
Under section 36(4) a parry who desired to be represented by a legal practitioner has to take prior consent of the opposite party and leave of the Tribunal.
[539G, H, 540A, E F, 541H, & 542A] 2.
The rules of representation under section 36(1) and (2) are unconditional and are not subject to the conditions laid down in section 36(4).
[543A] 3.
Section 36 deals with the representation of the parties.
Neither the Act nor section 36 provides for ap pearance of the parties themselves when they are individuals or Companies or.
Corporations.
The Tribunals and Labour Courts being quasi judicial authorities dealing with the rights affecting the parties cannot adjudicate their dis putes in the absence of the parties.
It is therefore, incum bent on the Tribunals and Labour Courts to afford reasonable opportunity to the parties to appear before them and hear them while adjudicating the industrial disputes.
[543B C] 538 Section 36 is not exhaustive.
It is not intended under the Act that Companies and Corporations are confined 10 representation of their cases only through the officers specified in section 36(2) of the Act.
They can be repre sented by the Director, their own officers.
However, they cannot engage legal practitioners by means of special power of attorney.
[543C, F] 4.
If a legal practitioner is appointed as an officer of a Company or Corporation and is.
in their pay and under their control and is not a practising advocate.
the fact that he was earlier a legal practitioner or has a legal degree will not stand in the way of the Company or the Corporation being represented by him.
Similarly, if a legal practitioner is an officer of an association of employers or an office bearer of a Trade Union, there is nothing in section 36(4) to prevent him from appearing before the Tribunal.
[544 C D] There is no scope for the enquiry by the Tribunal into the motive for the appointment of such legal practitioner as office bearer of the Trade Union or the Employers ' Associa tion.
[544 F] 5.
The contention that 'and ' should be read as 'or ' in section 36(4) is negatived.
Consent of the opposite party is not an idle alternative but a ruling factor in Section 36(4).
[546 E F]