Delhi High Court
Hotel Le-Meridien ... vs Hotel Mazdoor Union on 19 April, 2017
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: April 19, 2017
(i) + W.P.(C) 46/2015
HOTEL LE-MERIDIEN C.J. INTERNATIONAL HOTEL
LIMITED ..... Petitioner
Through: Mr. Shashank & Mr. Saurabh
Munjal, Advocates
Versus
HOTEL MAZDOOR UNION ..... Respondent
Through: Mr. Ravindera S. Garia,
Mr. Shashank Singh & Mr. Maruf
Khan, Advocates
(ii) + W.P.(C) 376/2015
C.J. INTERNATIONAL HOTEL LIMITED ..... Petitioner
Through: Mr. Shashank & Mr. Saurabh
Munjal, Advocates
Versus
HOTEL MAZDOOR UNION ..... Respondent
Through: Mr. Ravindera S. Garia,
Mr. Shashank Singh & Mr. Maruf
Khan, Advocates
CORAM:
HON'BLE MR. JUSTICE SUNIL GAUR
JUDGMENT
% ORAL
C.M. 42154/2016 (u/S 5 of The Limitation Act) in W.P.(C) 46/2015
C.M. 42153/2016 (u/S 5 of The Limitation Act) in W.P.(C) 376/2015
There is delay of 28 days in filing the accompanying petitions.
Upon hearing, I find that averments made in these applications
provide sufficient cause to condone the delay occasioned. Applications
are allowed and delay is condoned.
The applications are disposed of.
W.P.(C) 46/2015 & C.M. 77/2015 & C.M. 2656/2015
W.P.(C) 376/2015 & C.M. 622/2015
1. In the above captioned two petitions, applications by respondent-
workmen under Sub-Section 3 of Section 36 of The Industrial Disputes
Act, 1947 stand allowed vide order of 1st November, 2014 barring counsel
for petitioner from appearing on behalf of management before the trial
court.
2. Since the question involved in these two petitions are identical,
therefore, with the consent of counsel for the parties, both these petitions
have been heard together and are being decided by this common
judgment.
3. Learned counsel for petitioner-Management assails impugned
orders on the ground that counsel for petitioner had appeared before trial
court on 28th January, 2013 and 28th February, 2013 but there was no
opposition from respondent-Workmen Union which amounts to an
implied consent and therefore, impugned order deserves to be set aside
and petitioner be permitted to be represented by a counsel before the trial
court. Reliance is placed by petitioner's counsel upon decision of a
Coordinate Bench of this Court in Samarendra Das Vs. M/S Win
Medicare Pvt. Ltd., 2014 LLR 345 to submit that in a case of implied
consent to appearance of a legal practitioner, the bar of Section 36 (3) of
The Industrial Disputes Act, 1947 would not apply. In support of above
submissions, reliance is placed by petitioner's counsel upon decisions in
Shiraz Golden Restaurant Vs. State of West Bengal & Ors. (2000) 86
FLR 978 (Cal); M/s Bhagat Brothers Vs. Paras Nath Upadhyay LPA
212/2008; B.M. Jambunathan Vs. United News of India (UNI) rep. by its
General Manager & Anr. (2008) 119 FLR 336 (AP); Paradip Port Trust,
Paradip Vs. Their Workmen (1977) 2 SCC 339.
4. Learned counsel for respondent supports the impugned order and
submits that decisions relied upon are not applicable to the facts of the
instant case and that respondent is not being represented by any counsel
before trial court and no consent, implied or express, was given for
appearance of counsel on behalf of petitioner before trial court. So, it is
submitted that these petitions deserve to be dismissed. Nothing else is
urged on behalf of either side.
5. The legal position on the afore-noted aspect, as crystallized by a
three Judge Bench of Supreme Court in Paradip Port Trust, Paradip Vs.
Their Workmen (1977) 2 SCC 339, is as under:-
"26. A lawyer, simpliciter, 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 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."
6. The afore-noted legal position holds good till date.
7. After having heard learned counsel for parties at length and on
perusal of impugned order, material on record and the decisions cited, I
find that on 14th December, 2012 counsel for both the sides had appeared
and case was adjourned for arguments on the applications in hand i.e.
under Section 36 of The Industrial Disputes Act, 1947 . It is evident from
the order sheet of 14th December, 2012 that no effective proceedings were
conducted on the said date and presence of counsel was recorded in dual
capacity i.e. as 'Counsel and as Authorized Representative'. Since
vakalatnama of counsel who had appeared on behalf of respondent was
not taken on record, so recording of presence of Sh.S.N.Sharma in dual
capacity i.e. as 'Counsel and Authorized Representative' would not
justify petitioner's representation by a counsel. It is so said because in
trial court's order sheet of 28th January, 2013 and 28th February, 2013
presence of counsel for petitioner has been recorded in dual capacity and
not as a Counsel and even on these dates of hearing, no effective
proceedings were conducted.
8. During the course of hearing, it was brought to the notice of this
Court that Sh. S.N.Sharma had not appeared on behalf of respondent, as
he had not been engaged by respondent and so, inference of implied
consent can be raised and that on 14th December, 2012 filing of an
application under Section 36 of The Industrial Disputes Act, 1947 by
respondent negates the plea of implied consent raised by petitioner's
counsel. In such a situation, decisions relied upon by petitioner's counsel
are of no avail to the case of petitioner.
9. In view of the aforesaid, this Court finds that impugned order does
not suffer from any error apparent on the face of it. Accordingly, both the
petitions and applications are dismissed, while leaving the parties to bear
their own costs.
(SUNIL GAUR)
JUDGE
APRIL 19, 2017
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