[Cites 22, Cited by 0]
Bombay High Court
M/S. Bella Vista Drycleaners vs Vishwanath Kanojia on 2 December, 2025
Author: Milind N. Jadhav
Bench: Milind N. Jadhav
2025:BHC-AS:52361
CRA.94.2024.doc
Ajay
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
CIVIL REVISION APPLICATION NO. 94 OF 2024
M/s. Bella Vista Drycleaners .. Applicant
Versus
Vishwanath Kanojia, Akhil Bhartiya General
Kamgar Union and Anr. .. Respondents
....................
Mr. Sunil Rajaram More, Advocate for Applicant.
None appears for Respondents.
Mr. Shailesh S. Pathak, Appointed Advocate through the Legal Aid
Department to assist the Court.
....................
CORAM : MILIND N. JADHAV, J.
RESERVED ON : OCTOBER 06, 2025
PRONOUNCED ON : DECEMBER 02, 2025.
JUDGEMENT:
1. Heard Mr. More learned Advocate for Applicant and Mr.
Pathak learned appointed Advocate to assist the Court. None appears
for Respondents despite being served.
2. On 15.09.2025, after hearing Mr. More, learned Advocate for
Applicant the following order was passed:-
"1. Heard, Mr. More learned Advocate for Applicant -
Employer.
2. Reference (IDA) No. 158-D of 2021 is heard by 7th Labour
Court, Bandra, Mumbai. A preliminary issue as to whether the
Applicant employer can be allowed to be represented by
Advocate in the Reference is the question which is decided in
the negative, agitated before me. Applicant is a small time
laundry employing 4-5 persons. In Reference (IDA), Revision
Applicant being the First Party - employer filed Application
below Exh. C-5 seeking a direction and permission from Labour
Court to engage / appoint Advocate to represent its case in the
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present matter and conduct cross-examination. That Application
is comprehensively rejected by virtue of the impugned order
appended at page Nos. 38-49 of the Revision Application.
3. Mr. More would draw my attention to the impugned order
and submit that in view of the extant decisions, passed by the
Delhi High Court in the case of M/s. Bhagat Brothers v. Paras
Nath Upadhyay and the impugned order is bad in law. He
would submit that Applicant is a small time laundry in Mumbai
and its proprietor has no knowledge of law so as to cross-
examine the Union's witness in the present proceedings before
the Labour Court. He would submit that substantive right of
prosecuting the case by the employer therefore stands denied.
4. After hearing Mr. More and going through the aforesaid
decision in my opinion prima facie an arguable case is made out
by Mr. More for immediate stay of order dated 01.12.2023 and
issuance of notice to Respondent. Hence order dated 01.12.2023
is stayed in the meanwhile.
5. In view of the above issue notice to the Respondents made
returnable on 29.09.2025. Humdast permitted. In addition to
Court's notice, Applicant is directed to serve copy of the CRA
along with copy of this order on the Respondents and inform
them about the next date of hearing by any permissible mode of
service and file appropriate affidavit of service with tangible
proof thereof on or before the next date.
6. In view of the controversy which has arisen, I have sought
assistance of Mr. Shailesh Pathak learned Advocate appearing
regularly in this Court in Labour Law matters to appear in the
present case to assist the Court to decide the aforesaid question
of representation by Advocate in Reference proceedings. I
hereby direct High Court Legal Services Committee to appoint
Mr. Pathak, learned Advocate to appear in the present case to
assist the Court to decide the aforesaid question of
representation by Advocate in Reference proceedings. High
Court Legal Services Committee shall give the appointment
letter to him to that effect.
7. Mr. Pathak in his opening remark informs the Court that
the present issue has been decided by various High Courts
including this Court also and according to his opinion, the core
issue is now pending in the Supreme Court. He would submit
that depending upon the exigency of the case, there are
arguments and cross-arguments made whereby Courts have
either allowed appointment of Advocate to represent the parties
in the proceedings or denied in some cases. He would submit
that challenge before the Supreme Court, inter alia, pertains to
the provisions of Section 36(4) of the Industrial Disputes Act,
1947. He would submit that coupled with the said provisions
Section 30 of the Advocates Act has also been invoked.
8. A copy of the CRA is directed to be given to Mr. Pathak
forthwith. Mr. More in presence of Court has handed over copy
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of CRA to Mr. Pathak. He shall prepare his submissions and
accordingly file the same to assist the Court in the aforesaid
case.
9. Stand over to 29th September, 2025 under the caption
"for Directions"."
3. Briefly stated, Respondent No.1 - employee was engaged as
a temporary worker in Applicant's laundry. It is Applicant's case that
Respondent No.1 - employee abruptly left the job without prior
intimation or notice to Applicant. Thereafter, Respondent No.1 filed
Application before the Labour Commissioner seeking reinstatement
and continuity in service alongwith backwages. Applicant appeared
through his Advocate and filed reply therein. However owing to non-
prosecution by Respondent No.1 - employee, Labour Commissioner
passed order of closure of proceedings. Subsequently, Applicant
received summons to appear before the 7th Labour Court at Bandra.
Applicant approached the Court through his Advocate and was
informed that Respondent No.1 - employee filed Application under
Section 36 of the Industrial Disputes Act, 1947 (for short 'ID Act')
seeking to restrain Applicant from being represented by Advocate.
Consequently, Applicant filed his written statement drafted by his
Advocate but filed by his representative. Thereafter, Respondent No.1 -
employee filed his evidence alongwith documents whereupon the
Labour Court directed Applicant to commence cross-examination.
Applicant being a person with limited expertise in the field of law filed
Application seeking permission for appointment of Advocate to
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conduct cross - examination and complete the trial. By order dated
01.12.2023, Labour Court rejected the said Application. Hence the
present Civil Revision Application.
4. Mr. Pathak, learned Advocate appointed through the Legal
Aid Department to assist the Court would submit that the definition of
'Industry' under Section 2(j) of the ID Act stands settled by the decision
of the Seven Judge Bench of the Supreme Court in the case of
Bangalore Water Supply and Sewerage Board Vs. A. Rajappa and Ors. 1
wherein even small scale industry or individual engaging a few persons
was held to be within the ambit of 'Industry'.
4.1. He would submit that in the present case the activity of
operating a laundry with 4-5 employees would therefore come within
the definition of 'Industry'. He would submit that the primary object of
Section 36 of ID Act is to regulate representation of parties before the
Tribunal and to maintain balance between the workmen and employer.
He would submit that under Section 36(3) of the ID Act engagement of
legal practitioner is restrained while Section 36(4) carves out a limited
exception permitting representation by a legal practitioner with two
conditions i.e. (i) with the consent of the opposite party and (ii) with
the leave of the Court or Tribunal.
1 1978 SCC OnLine SC 65
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4.2. He would submit that refusal of such representation by the
Court cannot be exercised mechanically or on mere objection by the
opposite party. He would submit that Court must examine the facts of
each case and determine whether denial of such representation would
cause prejudice or violation of the principles of natural justice and lead
to any disbalance between the parties before the Court. He would
submit that the above provision was enacted with the object to ensure
fairness by preventing parties from gaining an unfair advantage
through legal representation which was then a real issue when
employees were not represented by their Unions or Advocates which
were not within the reach of "employees" and it derived them
adequate representation. He would submit that the period in which
this Act came to be enacted pertained to an era when litigation could
not be said to be between equals and the nature of industrial activity
was limited. He would however submit that the earlier position no
longer prevails in present times.
4.3. In support of his submissions, he has referred to and relied
upon the decisions of the Supreme Court and this Court in the case of
Paradip Port Trust, Paradip Vs. Their Workmen2; Thyssen Krupp
Industries (India) Pvt. Ltd. Vs. Suresh Maruti Chougule and Ors. 3;
Yeshwant Harichandra Gharat Vs. Clairant Chemicals (I) Ltd, Mumbai 4
2 1977 (2) SCC 339
3 2023 SCC OnLine SC 1707
4 [2010(3) Mh.L.J.]
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and A.S. Mohammed Rafi Vs. State of Tamil Nadu represented by
Home Department and Ors.5 wherein the legality and sanctity of
Section 36 of ID Act stands affirmed. He would submit that the said
provision must be interpreted harmoniously thereby giving due effect
to both the legislative intent of maintaining equality in industrial
adjudication and the overarching principles of natural justice, fairness
and due process of law.
4.4. In the case of Yeshwant Harichandra Gharat (supra), Mr.
Pathak has placed reliance on paragraph Nos.25, 34, 40 and 41 of the
said decision to contend that the reasons for limiting the legal
representation are that same ought not to be unduly influenced by
strict rules of evidence and "the procedural juggernaut". He would
argue that denying this right would violate the principles of natural
justice and could result in the proceedings being deemed unfair or
invalid. Paragraph Nos. 25, 34, 40 and 41 of the said decision read
thus:-
"25. However, when the Management chooses to avail of legal
assistance for itself by appointing an advocate or a legally
trained person as it's representative before an Enquiry Officer,
the logical sequiter is that the very basis for the rule
discouraging or excluding legal assistance vanishes. The basis on
which legal representation is considered to be undesirable in a
domestic enquiry no longer exists upon one side being permitted
to avail of the assistance of an advocate or a legally trained
person. It can hardly be suggested that, whereas one side is
entitled to the benefit of the assistance of a legally trained
person, the other side ought not to be permitted an equal
opportunity in this regard on the basis of such a presumption.
This, to my mind, would constitute the most fundamental
reason for permitting the charge-sheeted employee the benefit
5 (2011) 1 SCC 688
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of being represented by a legally trained person when the
Management itself chooses to avail of the same. This is the basis
on which I am inclined to agree with the conclusions arrived at
by the Division Bench of the Madras High Court.
xxxxxx
xxxxxx
34. I would, even in the absence of authorities, and on
principle, be inclined to the view that even if the charges are
apparently simple and apparently uncomplicated, an employee
would be entitled to the assistance of a legal practitioner if the
Management Representative/Presenting Officer is a legally
trained person. The charges may appear simple. The facts stated
in the charge-sheet may appear simple. It may not be difficult
for the employee to understand the same. Anyone with any
experience of litigation before a Civil Court, an Arbitrator or a
Tribunal knows that simple facts may require skilful handling
which an employee or a person who is not legally trained
cannot be expected to be capable of. Skilful and adept handling
of facts and law makes all the difference, not merely to the
outcome of the matter but to the production of evidence and
placing the matter in the correct perspective. Simple facts are
handled quite differently, more skilfully by a legally trained
person. A lawyer can, by virtue of his training, complicate
simple facts and present complicated facts in clear and simple
terms. He can complicate simple cases and simplify, over-simply
complicated ones. That is the result of his training. I see neither
logic nor any justification in denying an employee the benefit of
the assistance of a legally trained person where the
Management avails of the same.
xxxxxx
xxxxxx
40. In the present case, the Petitioner has raised serious
allegations against the Enquiry Officer himself. He has also
made allegations against the Union-members. There is,
therefore, every possibility of his facing stiff resistance in the
proceedings. The Petitioner has also alleged various unfair
practices against the Respondent. He has, for instance, alleged
that the entire action is mala fide. He has alleged that this was
the culmination of previous unfair treatment meted out to him
by the Respondent. He has alleged that he was threatened and
abused by his superiors. Whether the same are true or not is
another matter altogether. That is not relevant at this stage.
Establishing these facts cannot possibly be simple for the
Petitioner without the assistance of a lawyer, specially when he
is met with opposition from a legally trained person and where
there is a serious allegation made by him against the Enquiry
Officer and the Union-members.
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41. In the circumstances, the impugned order is set aside. The
Petitioner shall be entitled to appear through a lawyer for
defending himself in the enquiry proceedings. The Writ Petition,
accordingly, stands disposed of, but with no order as to costs."
4.5. He would submit that the right to defend oneself in legal
proceedings is a fundamental right and the expression 'leave of the
Court' should be perceived in a liberal manner to advance fairness and
equality and a straight jacket formula cannot be applicable to all cases.
4.6. He would submit that the principle of audi alteram partem
mandates that every person be afforded a fair opportunity to be heard
and to be represented by the person of his choice particularly where
complex procedural issues or serious consequences are involved.
5. I have heard Mr. More, learned Advocate for Applicant and
Mr. Pathak, learned Advocate appointed to assist the Court and with
their able assistance perused the entire record of the case. Submissions
made by both the learned Advocates at the bar have received due
consideration of the Court.
6. At the outset, it is seen that the controversy revolves around
the interpretation of Section 36(3) and 36(4) of the ID Act. The
question which arises for determination is whether a small-scale
employer such as the present Applicant before me can be represented
by an Advocate in proceedings before the Labour Court? Particularly
when such representation is sought to ensure effective participation
and fair adjudication since the Applicant - Laundry's proprietor /
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employer is not a person well versed with the art of cross-examination
and trial.
7. Representation of parties in Industrial adjudication under the
ID Act is governed by Section 36 which 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
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 authorised 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 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 conciliation proceedings under this
Act or in any proceedings 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
proceedings and with the leave of the Labour Court, Tribunal or
National Tribunal, as the case may be."
8. From the above, it is seen that Section 36 of the ID Act
governs representation of parties in dispute, allows workers to be
represented by Members of Registered Trade Union and employers by
an Officer of Employers' Association. A key restriction is in Section
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36(3), which imposes a complete embargo on representation of parties
through Advocates/Legal practitioners before the Conciliation Officer
and the Labour Court/Tribunals. However, Section 36(4) of ID Act
permits representation through a Legal practitioner before Labour
Courts and Tribunals with the consent of other parties and the leave of
the Court.
9. Attention is drawn to the decision of the Supreme Court in
the case of Paradip Port Trust, Paradip (supra) wherein the Court has
exhaustively dealt with the scope of Sections 36(3) and 36(4) of ID Act
in paragraph Nos.20 to 24 of the said decision which read as under:-
"20. The Solicitor General contends that "and" in Section
36(4) should be read as "or" in which case refusal to consent by
a party would not be decisive in the matter. The tribunal will
then be able to decide in each case by exercising 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 the matter of representation by refusing to accord
its consent to representation 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'
association. 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.
21. We have given anxious consideration to the above
submission. It is true that "and" in a particular context and in
view of the object and purpose of a particular legislation may
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be read as "or" to give effect to the intent of the legislature.
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 representation 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".
22. Consent of the opposite party 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 consequences to choose a rather
strained interpretation when the language of Section 36 is clear
and unambiguous.
23. Besides, it is also urged by the appellant that under
Section 30 of the Advocates Act, 1961, every advocate shall be
entitled "as of right" to practise in all courts and before any
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 Indian Bar
Councils Act, 1926, relating to the right of advocates to appear
before courts and tribunals. For example, under Section 14(1)
(b) of the 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 Section
30(ii) of the Advocates Act. 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
Advocates Act for more than one reason. First, the Industrial
Disputes Act is a special piece of legislation with the avowed
aim of labour welfare and representation before
adjudicatoryauthorities therein has been specifically provided
for with a clear object in view. This special Act will prevail over
the Advocates Act which is a general piece of legislation with
regard to the subject-matter of appearance of lawyers before all
courts, tribunals and other authorities. The Industrial Disputes
Act is concerned with representation by legal practitioners
under certain conditions only before the authorities mentioned
under the Act. Generalia specialibus non derogdnt. As Maxwell
puts it: "Having already given its attention to the particular
subject and provided for it, the legislature is reasonably
presumed not to intend to alter that special provision by a
subsequent general enactment unless that intention be
manifested 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
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special one [ Maxwell on Interpretation of Statutes, 11th Edn,
p. 169] ."
24. Second, the matter is not to be viewed from the point of
view of legal practitioners 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 practitioner as
such that the latter is enabled to enter appearance 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."
10. The Supreme Court has thus, emphatically held that both
consent of the opposite party and leave of the Court are required
before any legal practitioner is permitted to represent either party in
such proceedings. This view has been reaffirmed by the decision of the
Supreme Court in the case of Thyssen Krupp Industries India Private
Limited and Others (supra).
11. Thus, it is necessary to examine the factual matrix in this
case keeping in mind the twin tests of "consent of the other party" and
the "leave of the Court". Admittedly, Applicant before me is a small
laundry establishment employing four to five workers. The record
shows that Applicant appeared through his Advocate at the initial stage
before the Labour Commissioner which was then dismissed for default.
It is seen that Respondent No.1 - employee thereafter filed Reference
IDA No. 158-D of 2021 and invoked Section 36 to restrain such
representation. The Labour Court by its order dated 01.12.2023
rejected Applicant's request to engage Advocate to conduct cross-
examination of the worker and trial. The correctness of that order is
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under challenge.
12. In this case, it is pertinent to note that during initial
proceedings before the Labour Commissioner, Applicant was duly
represented by Advocate and reply to the original Application was filed
by the Advocate. However, due to Respondent - employee's absence in
those proceedings the case was dismissed for default. However
Respondent - employee thereafter filed his preliminary objections for
the first time in subsequent proceedings i.e. Reference IDA No.158-D of
2021 before the Labour Court.
13. The Labour Court while rejecting Applicant's plea, failed to
exercise its jurisdiction in the letter and spirit of Section 36(4). It is
seen that Court's refusal was mechanical and solely based on the
objection raised by Respondent - employee. The order does not
disclose any reason or consideration as to whether denial of
representation would cause prejudice to the Respondent - employee or
affect the fairness of the proceedings. Hence, the approach adopted by
the learned Labour Court defeats the purpose of the provision and
offends the principles of natural justice in the facts of the present case.
14. On these lines, it is necessary to set out the decision of this
Court in the case of T.K. Varghese Vs. Nichimen Corporation6 wherein
Court held that consent cannot be withheld without any reasons or
6 2001 (4) L.L.N. 187
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justification. Relevant paragraph Nos.9, 10 and 11 of the said decision
are reproduced below for immediate reference:-
"9. Moreover, if we consider the history of industrial litigation
the legal fraternity has its major contribution to the
development of this branch of law. It would be totally unjust to
deny the legal community access to this field and the Courts and
the Tribunals would face great handicap if they do not get
proper assistance from the legally trained persons in their
decisions which finally land in the higher Courts. The judgments
of the lower Courts do reflect the kind of assistance received by
them. It facilitates even the higher Courts if the decisions are
written after good assistance from the bar. The foundation of
the justice is the fair and equal fight between the parties.
Ultimately, if the Court/Tribunal grants "Leave" to a legal
practitioner to represent a party before it such leave by the
Court/Tribunal would be in the interest of justice and fair-play
while the "consent" of the other party very often is actuated by
malice or mala fides or motivated to try to get upper hand in the
litigation.
10. At the same time, we cannot forget that under section
7(3)(d-1) of the Act an advocate or attorney is permitted to
practise before the Industrial Court or Tribunal or Labour Court
to become eligible for appointment as a presiding officer of a
Labour Court. In the light of this provision what is more
important for a legal practitioner to be able to appear before the
Labour Courts/Tribunal is the unbiased leave of such forum
than the interested and motivated denial of consent by the other
party. The grant of "leave" would be more decisive rather than
the "consent" of the party. In view of the above discussion,
according to me, the leave granted by the Labour
Court/Tribunal will have overriding effect as a party cannot be
represented by a legal practitioner even when the other side
consents without the leave of the Labour Court/Tribunal.
Considering the vast development of law and the complications
which arise in the litigation the Labour Court/Tribunal has an
inherent right in the interest of justice to seek proper assistance
in resolving the Industrial dispute to the satisfaction of both the
parties and in accordance with law and grant "leave" to a party
before it to be represented by a legal practitioner.
11. There is no absolute bar for the legal practitioner to
appear before the Labour Court/Tribunal as it is under section
36(3) in the Conciliation proceedings. No party can withhold
appearance of a legal practitioner by denying "consent" without
any justification and arbitrarily for no rhyme or reason. If a
party is represented by an office bearer etc. of a Trade Union or
an Association, it cannot refuse to grant consent to the other
side without any reasonable cause and justification to engage a
legal practitioner and the Labour Court/Tribunal can always
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consider the bona fides of such a party withholding consent and
can always grant "leave" to the other parties to be represented
by a legal practitioner in the interest of justice notwithstanding
the refusal of consent by the other side. No party to the
proceedings has an unbridled and absolute right to refuse to
give consent to other party. No party can adopt unreasonable
attitude to exploit the situation arising out of section 36(4) of
the Act to the deliberate disadvantage of the other side. This
provision was enacted to help the budding Trade Union
movement and it was never intended for them to take wrongful
advantage of the same even after the Trade Unions have become
capable of defending themselves and their workmen. The
provision is always subject to the scrutiny of the Labour
Court/Tribunal and it can always decide the question of refusal
of consent by the other party and can overrule the refusal of the
consent on merits independently while considering to grant or
refuse the "leave" contemplated under section 36(4) of the Act."
15. With regard to the facts of the present case, it is seen that
Applicant - Laundry's proprietor is not legally trained. Proceedings
before Labour Court involve cross-examination of opponent's witnesses
and interpretation of statutory provisions and absence of professional
assistance in such circumstances is bound to cause grave prejudice to
the Applicant. The right to defend one's case effectively forms an
integral part of the right to fair procedure and is protected under
Articles 14 and 21 of the Constitution of India. It is absurd in the
present case to expect that Applicant - Laundry's proprietor to cross-
examine the opponent worker when he has expressed complete
helplessness about the procedure or proceedings and on the other side
allow the workman to be represented by Union representatives.
Further Applicant is a small time press - laundry employing 4 to 5
persons and not having a legal department to take care of its cases.
Hence, in my opinion, the discretion vested in the Labour Court must
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therefore be exercised liberally to advance the cause of justice in the
attending facts and circumstances of each case.
16. The submissions advanced by Mr. Pathak that the expression
"leave of the Court" under Section 36(4) of ID Act must be interpreted
in a broad and purposive manner, therefore merits acceptance in the
facts of this case. When a party demonstrates genuine inability to
represent itself and seeks professional assistance without any element
of malafides, the Labour Court ought to grant such leave unless strong
reasons exist to the contrary. A contrary interpretation would render
the statutory discretion completely trivial and perpetuate inequality
between unequally placed parties.
17. In the present case, the Labour Court overlooked these
settled principles of law and natural justice and failed to appreciate
that denial of representation to Applicant would not advance the object
of Section 36 of the ID Act but would instead result in miscarriage of
justice. The impugned order dated 01.12.2023 therefore in my opinion
cannot be sustained.
18. In view of the above observations and findings, the
impugned order dated 01.12.2023 passed by the learned 7th Labour
Court, Bandra, in Reference (IDA) No. 158-D of 2021 is quashed and
set aside. Applicant is permitted to be represented by Advocate of his
choice before the Labour Court for the purpose of conducting cross-
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examination of the opponent's witnesses, for leading evidence and
advancing submissions in the said Reference. The Labour Court shall
proceed with the matter on merits and conclude the Reference in
accordance with law.
19. This Court appreciates the able and valuable assistance
rendered by Mr. Shailesh S. Pathak, learned Advocate appointed by the
Court through the Legal Aid Services for assisting the Court in the
Civil Revision Application. Mr. Pathak shall be entitled to fees for his
appearances and the work done in accordance with law from the Legal
Aid Department.
20. Accordingly, the Civil Revision Application is allowed and
disposed.
[ MILIND N. JADHAV, J. ]
Ajay
AJAY TRAMBAK
TRAMBAK UGALMUGALE
UGALMUGALE Date: 2025.12.02
12:45:53 +0530
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