M/S. Bhagat Brothers vs Paras Nath Upadhyay
2008 Latest Caselaw 1337 Del

*                 HIGH COURT OF DELHI AT NEW DELHI



+                          LPA 212/2008



M/S. BHAGAT BROTHERS                                   ..... Appellant
                                    Through Mr.Apurab Lal, Advocate

                             versus

PARAS NATH UPADHYAY                                . ..... Respondent
                                   Through Mr.Rama Shankar, Advocate

CORAM:

HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE DR.S.MURALIDHAR



                               ORDER

% 13.08.2008

Admit. Learned counsel appearing for the respondent waives service

of notice. By the consent of the parties, the appeal is taken up for hearing.

2. This appeal has been filed against the order of the learned single Judge

dated 12th March, 2008 passed in WP(C) 9299/2006 whereby the writ petition

of the appellant-management challenging the order of the Labour Court

denying permission to the appellant-management to be represented by an

advocate was dismissed.

3. The relevant facts lie in a narrow compass. Pursuant to the notice, the

appellant-management appeared before the Labour Court through its lawyer

on 3rd June, 2004 and filed its written statement. The respondent workman

who was represented by a senior union representative filed his replication

on 29th October, 2004. Thereafter the respondent workmen filed his

evidence by way of affidavit. Throughout the proceedings the workman and

his representative did not take any objection to the appearance of Mr.J.K.

Singhal, Advocate on behalf of the appellant-management. However, an

application came to be filed on behalf of the workman on 5th July, 2005

seeking that the management be not allowed to be represented by an

advocate. On 30th November, 2005, by the impugned order, the application

was allowed by the Labour Court and the management was directed to

appoint a new authorized representative as an advocate could not be

allowed to appear on behalf of the management in view of provisions of

Section 36(4) of the Industrial Disputes Act.

4. Mr.Apurab Lal, learned counsel appearing for the appellant-

management, strenuously submitted that from the records of the Labour

Court it is clear that on 3rd June, 2004 when the appellant filed his written

statement through its advocate, the workman and his representative were

personally present before the Labour Court. Learned counsel pointed out

that this was the first date on which the union representative would have

taken objection to the presence of Mr. J.K. Singhal on behalf of the

management. Even thereafter no objection was raised by the workman or

his representative and the union representative with his large experience in

the field, cannot be said to have lost sight of such an important objection.

According to the learned counsel therefore it can therefore be inferred that

the union representative in his fair sense waived the objection considering

the fact that the appellant is a small partnership firm. Learned counsel

submitted that this is clearly a case of implied consent and the Labour Court

was not right in barring appearance of the advocate to represent the

appellant-management before the Labour Court.

5. On the other hand Mr.Rama Shankar, learned counsel appearing for

the respondent workman, submitted that the impugned order is in

consonance with the provisions of Section 36(4) of the Industrial Dispute Act,

1947 as no advocate or legal practitioner is permitted to appear in any

proceedings under the Act without the consent of the other party and

without leave of the Court. According to the submission of the learned

counsel the respondent-workman had not given his consent to the appellant-

management to be represented by Mr. J.K.Singhal as legal practitioner and

even the Labour Court had not given leave to such legal practitioner to

appear in the proceedings. It was, therefore, submitted by the learned

counsel that there was no question of there being an implied consent to the

appellant-management to be represented by its legal practitioner.

6. Section 36(4) of the Industrial Disputes Act, 1947 reads as follows:

"(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."

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. In a similar circumstance, a single Judge of

Kerala High Court in the case of Calicut Cooperative Milk Supply Union

v. Calicut Cooperative Milk Supply Workers' Union 1986 LAB 1.C. 1681

has held that consent can be inferred from the conduct of the party and the

consent once given by a party entitling the other party to be represented in

the proceedings by an advocate would enure to his benefit till the

proceedings are finally disposed. A similar view is taken by the Calcutta

High Court in Reckitt and Colman v. Jitendra Nath AIR 1956 Calcutta 353.

8. In T.K.Varghese v. Nichimen Corporation 2002-IV-LLJ (Suppl)

Bombay 1018 the Bombay High Court has held that if 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. Since the Labour Court has allowed the legal practitioner to appear

on behalf of the respondent company it will have to be deemed that the

Labour Court had granted leave to appear for the respondent company.

9. In the facts and circumstances of the case, we are inclined to agree

with the submission of the learned counsel for the appellant-management

that since there was no objection raised to the appearance of 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.

10. While interpreting Section 36(4) we must remember a crucial fact that

when the Industrial Disputes Act was enacted in the year 1947 the trade

union movement in this country was in its infancy and was absolutely a

novice before the adjudication machinery. The Legislature had visualized a

legal battle between two unequals before the Industrial Adjudicators. In

order to bring about and maintain fairness and equality, the Legislature

provided under Section 36 of the Act how the parties would be represented

in the proceedings under this Act. However, there has been sea change in

the circumstances. A large number of small employers have also come up in

the industrial scene. They cannot be denied the service of a legal

practitioner when they are dragged into industrial litigations. Trade unions

have also become financially well off to engage services of legal

practitioners. Many a times union representatives appearing for the

workmen are extremely knowledgeable and possess vast experience in the

field. Constitutional validity of Section 36(4) has been upheld by this Court

in The Cooperative Store Limited, New Delhi v. O.P.Dwivedi,

P.O.Industrial Tribunal -II & Others 1988 1 LLJ 135. However, thereafter

when the same issue came up before the Allahabad High Court, Markandeya

Katju, J (as he then was) vide his decision reported in 1992-1- LLN 972 (ICI

India Ltd. v. Labour Court (IV) & Another) has held that Section 36(4) of

the Industrial Disputes Act and a similar provision i.e. Section 6-I(2) of the UP

Industrial Disputes Act are ultra vires of the Constitution. In view of our

finding that there was implied consent it is not for us to re-examine the

constitutional validity of Section 36(4) but we feel that in the changed

circumstances a fresh look is necessary at Section 36(4). With these

observations, we allow the appeal and set aside the order of the Labour

Court as also of the learned single Judge and hold that the management is

entitled to be represented by a legal practitioner before the Labour Court.

                                               CHIEF JUSTICE


                                               S.MURALIDHAR
AUGUST 13, 2008                                    JUDGE
"v"