V. Kameswar Rao, J. (Oral)
1. The challenge in this writ petition is to the order dated February 20, 2013 passed by the Labour Court on an application filed by the petitioner under Section 36 of the Industrial Disputes Act, 1947 (for short, the ‘Act’) in I.D. No. 184/09 whereby the said application was dismissed.
2. The application is dated August 09, 2012 filed against the appearance of the Authorized representative of the respondent on the ground that he being an Advocate, the petitioner has not given his consent for his appearance on behalf of the respondent which is mandatory in terms of that Section. The position of law has been crystallized by this Court as well as by the Supreme Court. The Supreme Court in the case reported as AIR 1977 SC 36, Paradip Port Trust Vs. Their Workmen. has held as under:
'a lawyer, simplicitor cannot appear before an Industrial Tribunal without the consent of the opposite party and leave of the Tribunal merely by virtue of a power of attorney executed by a party. A lawyer can appear before the Tribunal in the capacity of an 'Office-bearer' of registered trade Union or an officer of association of employers and consent of the other side and leave of the Tribunal will, then, be necessary'.
3. The respondent herein did not file his reply to the said application. The same was argued on the basis of the Judgments and highlighting the fact that the Advocates were representing the respondent since 2009, but the petitioner has not taken any objection till the filing of the application, thereby giving an implied consent on the appearance of the Advocates on behalf of the respondent. It was further submitted on behalf of the respondent that even the Labour Court had not passed any order, restraining the Advocates for appearance on behalf of the respondent herein. Section 36 of the Industrial Disputes Act, 1947 reads as under:
36. Representation of parties: -
(1) A workman who is a party to a dispute shall be entitled to be represented in any proceeding under this Act by--
(a) [any member of the executive or office bearer] of a registered trade union of which he is a member:
(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 2[ any member of the executive or other office bearer] of any trade union connected with, or by any other workman employed in, the industry in which the worker is employed and authorized 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 proceeding 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 association of employers to which the association referred to in 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 authorized 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 conciliation proceedings under this Act or in any proceedings before a Court.
(4) In any proceeding 1[ 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 2[ with the leave of the Labour Court, Tribunal or National Tribunal, as the case may be].]
4. The Labour Court while dismissing the application, relied upon the Judgment of the Division Bench of this Court titled as M/s. Bhagat Brothers. Vs. Paras Nath Upadhyay, decided on August 13, 2008 in LPA No. 212/2008 wherein in para 7 and 9, the Division Bench held as under:
'7. Section 36(4) does not prescribe that the consent must be given in a particular manner or in a particular form. In a given case the consent of a party, which is the basis for grant of leave to the other party for being represented by an advocate in a proceeding under the Industrial Disputes Act, could be inferred from the surrounding circumstances as also the conduct the consenting party. Section does not insist upon a written consent.
Consent can be implied. Consent once given cannot be revoked at a later stage because there is no provision in the Industrial Disputes Act enabling such withdrawal or revocation.
9. Since there was no objection raised on the first date of the proceedings to the appearance of a legal practitioner on behalf of the other side, the consent is to be taken as implied consent. As the Labour Court has also allowed Mr. J.K.Singhal, the legal practitioner, to appear on behalf of the appellant company, it will have to be deemed that the Labour Court had granted leave to Mr. Singhal to appear for the appellant-management, though there was no specific or express consent given by the respondent workman or his representative and though the Labour Court had not specifically granted leave to Mr. Singhal to appear for the appellant-management. From the conduct of the union representative as well as from the fact that Mr. Singhal was allowed to appear in the matter before the Labour for several dates, leave will have to be inferred having been granted'.
5. The Labour Court was of the view, implied consent of the petitioner can be inferred from the circumstances of the case and also as the Labour Court had granted leave to the counsel for the respondent to appear on behalf of the respondent.
6. The learned counsel appearing for the petitioner has taken me to different orders passed by the Labour Court since January 04, 2010. According to him, at no point of time, did the petitioner had come to know that the Authorized Representative appearing for the respondent was an Advocate. According to him, it was only on August 09, 2012 that the workman could able to detect the fact that the Authorized Representative appearing for the respondent was an Advocate. The learned counsel submits that immediately the petitioner filed an application under Section 36 of the Act. According to him, the Labour Court has erred in concluding that there is an implied consent of the petitioner for the appearance of the Advocates on behalf of the respondent.
7. On the other hand, the learned counsel appearing for the respondent would submit that different Advocates were appearing for the respondent on different dates. According to him, the counsels were appearing in the robes of an Advocate. The workman could have protested their appearance at the first instance. He would point out the appearance of Mr. Saurabh Munjal, Advocate on July 08, 2011, Mr. Jitesh Pandey, Advocate on September 15, 2011, Mr.Saurabh Munjal, Advocate on November 29, 2011 and Mr.Jitesh Pandey, Advocate on January 07, 2012. According to him, at no point of time, did the petitioner protest the appearance of the Advocates on behalf of the respondent. He would further state that the objection has been taken when the petitioner was to be cross examined.
8. On a specific query to the learned counsel for the respondent as to whether Advocates appears in robes before the Labour Court, the answer was in affirmative. I find that the surrounding circumstances and the conduct of the petitioner was such that consent
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can be implied inasmuch as there was no objection raised by the respondent on the first day when Mr. Saurabh Munjal, Advocate had appeared on July 08, 2011. I find, even on September 15, 2011, Mr. Jitesh Pandey, Advocate appeared on behalf of the respondent, there was no objection taken by the petitioner. I also find Mr. Saurabh Munjal and Mr. Jitesh Pandey, Advocates appeared thereafter in the presence of the workman on November 29, 2011 and January 07, 2012. Further, since the objection has been taken when the case was listed for cross-examination, the objection is clearly an afterthought. In view of the aforesaid factual position, I agree with the conclusion arrived at by the Labour Court and I dismiss the writ petition being without any merit. 9. No costs. C.M No.11594/2013 (Stay) Dismissed as infructuous.