Patna High Court
Om Prakash vs The State Of Bihar on 12 May, 2025
Author: A. Abhishek Reddy
Bench: A. Abhishek Reddy
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.18738 of 2021
======================================================
Vinit Kumar Prakash Son of Maheshwar Prasad, Resident of Mohalla -
Ramkrishna Nagar, Near Bypass Road, P.S. - Ramkrishna Nagar, Town and
District - Patna.
... ... Petitioner/s
Versus
1. The State of Bihar through Principal Secretary, Department of Labour,
Patna.
2. The Presiding Officer, Labour Court, Patna.
3. The Sun Pharma Laboratory Limited, through its Managing Director, Sun
House, Plot No. 201, B/1 Western Express Highway, Goregaon (East)
Mumbai, State Maharashtra, Pin 400063.
... ... Respondent/s
======================================================
with
Civil Writ Jurisdiction Case No. 10095 of 2023
======================================================
Om Prakash Son of Late Bhaskara Nand, Raj Naina, Nandgaon L.B.S. Nagar,
P.O. and P.S.-Shastringar, District-Patna-800023.
... ... Petitioner/s
Versus
1. The State of Bihar Through Principal Secretary, Labour Resources
Department, Govt. of Bihar, Patna.
2. The Presiding Officer, Labour Court, Patna.
3. Abbott Health Care Pvt. Ltd. Godrej BKC, Plot C- 68, G Block, 13-19 Floor
BKC, Near MCA Club Bandra (East) Mumbai-400051 through its Managing
Director.
4. The Zonal Manager Abbott Health Care Pvt. Ltd. Multispecialty, B Block
Sai Corporate Park, Rukanpura Bailey Road, Patna.
... ... Respondent/s
======================================================
Appearance :
(In Civil Writ Jurisdiction Case No. 18738 of 2021)
For the Petitioner/s : Mr.Akhilesh Dutta Verma
For the Respondent/s : Mr.Raghwendra Kumar (Sc22)
(In Civil Writ Jurisdiction Case No. 10095 of 2023)
For the Petitioner/s : Mr.Sunil Kumar Singh
For the Respondent/s : Mr.Smt. Anuradha Singh (Sc21)
======================================================
CORAM: HONOURABLE MR. JUSTICE A. ABHISHEK REDDY
ORAL JUDGMENT
Date : 12-05-2025
Heard the learned counsel for the parties.
Patna High Court CWJC No.18738 of 2021 dt.12-05-2025
2/12
The CWJC No. 18738 of 2021 has been filed for the
following relief(s):-
"That the application is for issuance of
writ in the nature of certiorari for quashing the order
dated 27.08.2021 passed by the presiding officer,
Labour Court, Patna in I.D. Case No. 08/2019
whereby and where under the petition filed by the
management u/s 36(2) of the Industrial Dispute Act
has been allowed and the objection raised by the
petitioner whereby and where under it was objected
that as per section 36(4) of the statute which barred
for appearance of practicing advocate, and for any
other order or orders as may deem fit and proper in
the fact and circumstances of the case and also for any
other relief/ reliefs the petitioner may found entitled."
3. The CJWC No. 10095 of 2023 has been filed for the
following reliefs:-
"(i) For quashing the order dated
20.1.2023
and 25.4.2023 passed by learned Labour
Court in Reference Case No. 46/2019 and Reference
Case No.1/2021 whereby and where under practicing
Advocates has been allowed to appear in this case on
behalf of the employer of the said company as it is in
contravention of section 36 of Industrial Dispute Act,
1947.
(ii) For restraining Advocates to appear
on behalf of the company in Reference Case No.
46/2019 and Reference Case No.1/2021 pending in the
Labour Court, Patna
(iii) For grant of any other reliefs for
which petitioner is found entitled in the facts and
circumstances of the case."
4. The issue involved in both the cases is one and
similar, therefore, both the cases are disposed of by this common
order.
Patna High Court CWJC No.18738 of 2021 dt.12-05-2025
5. The CWJC No. 18738 of 2021 is filed assailing the
order dated 27.08.2021 passed by the learned Presiding Officer,
Labour Court, Patna in the I.D. Case No. 08 of 2019 whereby the
learned Presiding Officer has allowed the application filed under
Section 36(4) of the Industrial Disputes Act, 1947 (ID Act).
6. The brief facts of the case are that the petitioner is
working as an employee in the third respondent-company and
disciplinary proceedings were initiated against the petitioner. After
enquiry, an order of termination was passed on 25.05.2018.
Therefore, the petitioner has filed a case under Section 2A of the
ID Act before the Labour Court, Patna challenging order of
termination dated 25.05.2018 and the same was registered as ID
Case No. 08 of 2019. That after issuance of the notices to the
respondent No. 3 herein, the management has appeared through its
lawyers Mr. Alok Kumar Sinha and one Mr. Rakesh Kumar Tiwari
representing themselves as the office bearers of the Bihar
Employers' Association. That the petitioner has raised his
objection under Section 36(4) of the ID Act objecting to the
appearance of the lawyers. However, the Labour Court has
rejected the objection of the petitioner and allowed the application
filed by the respondent No. 3 herein, vide order dated 27.08.2021
aggrieved by the same, the present writ petition is filed.
Patna High Court CWJC No.18738 of 2021 dt.12-05-2025
7. It is the case of the petitioner that the so called
representatives of Bihar Employers' Association Mr. Alok Kumar
Sinha and Mr. Rakesh Kumar Tiwari are both practicing advocates
and styling themselves as Honorary Secretary and Honorary Joint
Secretary of the said association have filed the said application.
That the application filed by the said lawyer is a false claim made
without there being any evidence on record. That the Labour Court
has failed to see that the provisions of the Act more particularly,
Section 36 of the ID Act cannot be defeated by the management by
employing advocates masquerading as office bearers of an
association. The Labour Court failed to verify the credentials of
the said persons and allowed the application made by the
management to represent this case. That Section 36 of the ID Act
is meant to safeguard the interests of the workers/ employees and
the same cannot be defeated by showing practicing advocates as
the office bearers of an association.
8. Learned counsel appearing on behalf of the petitioner
has stated that not a scrap of paper has been filed to substantiate
the claim of the management that the above two named advocates
are really the office bearers. That the post held by the said two
advocates i.e., Honorary Secretary and Honorary Joint Secretary
clearly points out to the fact that they have been solely engaged by
Patna High Court CWJC No.18738 of 2021 dt.12-05-2025
the management only for the purpose of defeating the provisions
of the Act. Learned counsel for the petitioner has relied on the
following judgments.
"i. In the case of Purbanchal Cables and
Conductors Pvt. Ltd. & Ors. Vs. Assam State
Electricity Board and Ors.
ii. In the case of M/s. Hygienic Foods
Malerkotla Road Khanna, District-Ludhiana vs.
Jasbir Singh and Ors. reported in 2009 SCC OnLine
P&H 10299.
iii. In the case of Andhra Pradesh Power
Diploma Engineers' Association vs. Andhra Pradesh
State Electricity Board and Ors. reported in 1996
LAB I.C. 2654. "
9. Per contra, the learned counsel appearing on behalf of
the respondent No. 3 has vehemently opposed the very
maintainability of the present writ petition and stated that the
provisions of the Act more particularly, Section 36(4) gives the
power to the management to engage the services of advocate who
are an office bearers of an association of employers or federation
of such association. Learned counsel has stated that office bearer
of a trade union or member of its executive even if he is a legal
practitioner can represent the management and there is nothing in
the Act that prevents the management from engaging the services
of the member of an association who is also a practicing advocate.
Learned counsel for the respondents has relied on the following
judgments.
Patna High Court CWJC No.18738 of 2021 dt.12-05-2025
"i. In the case of Rakesh Ranjna Keshri son of Sri
Laxman Narain Keshri Vs. The Presiding Officer,
Labour Court, Bhagalpur & Anr. reported in 2011 (1)
PLJR (HC) 418.
ii. In the case of Engineering Mazdoor Sabha vs.
State of Jharkhand reported in 2024 LAB I.C. 1022.
iii. In the case of Paradeep Port Trust Versus Their
Workmen with Management of Keonjhar Central Co
Operative Bank Limited Versus Their Workmen
reported in 1977 (2) SCC 339.
iv. In the case of the Behar Journals Ltd. Patna Vs.
H.K. Chaudhari and Anr. reported in AIR 1964 Patna
v. In the case of Supreme Court Employees Welfare
Association Petitioner vs. Union of India and ors.
reported in AIR 1990 Supreme Court 334."
10. In order to resolve the issue involved in the present
writ petition, it is necessary to extract the relevant portion of the
ID Act more particularly, 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) 2 [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 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--
Patna High Court CWJC No.18738 of 2021 dt.12-05-2025
(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 2 [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 3 [with the leave of the Labour Court,
Tribunal or National Tribunal, as the case
may be]"
11. A perusal of the Section 36 makes it abundantly clear
that unless and until the employee consents to the request of the
management for engaging an advocate, an advocate cannot
represent the management. Further, it is to be noted that the said
advocate can represent the management only after the leave of the
Labour Court with the consent of the employee only.
12. The Hon'ble Supreme Court in the case of Paradeep
Port Trust Versus Their Workmen with Management of
Keonjhar Central Co Operative Bank Limited Versus Their
Workmen reported in 1977 (2) SCC 339 has held as under;
Patna High Court CWJC No.18738 of 2021 dt.12-05-2025
"13. 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 individuals or companies or
corporations. The tribunals and the labour courts
being quasi-judicial authorities dealing with rights
affecting the parties cannot adjudicate their disputes
in absence of the parties. It is, therefore, incumbent
upon the tribunals and labour courts to afford
reasonable 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 industrial
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 prevent 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 representatives by whom it acts...."
(Salmond on Jurisprudence, 12th Edn., p. 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.
14. Again, although under Section 36(2)(c)
there is provision for the contingency of an employer
not being a member of an association of employers,
the device of representation provided therein would
Patna High Court CWJC No.18738 of 2021 dt.12-05-2025
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
association, albeit connected with the same type of
industry, 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 is a crucial pointer to Section
36 being not exhaustive but only supplemental to any
other lawful mode of representation of parties.
15. 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 the
clear significance of Section 36(4) of the Act."
13. Further, the Hon'ble Supreme Court at Para No. 16
has held as under;
"16. 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 practitioner 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
Patna High Court CWJC No.18738 of 2021 dt.12-05-2025
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. "
14. A perusal of the impugned order reveals that there
was no material before the authority to substantiate the claim of
the respondent management that the above two named advocates
were actually the Honorary Secretary/ Honorary Joint Secretary as
claimed, except filing Form-E as per Rule 30 of the ID (Bihar)
Rules, 1961, no other documents has been filed by the
management.
15. It is to be noted that bye-laws of the association have
not been filed to show as to whether there is any post of Honorary
Secretary or not in the said Association. Further, it is to be noted
that there is nothing on record to show as to when the above two
named persons were appointed or elected to the post of the
Honorary Secretary/ Honorary Joint Secretary. In the absence of
any material on record, the Labour Court ought not to have
allowed the application made by the respondent/ management.
Though reliance has been placed on the judgment of a Division
Bench of this Hon'ble Court passed in LPA No. 491 of 2021 dated
07.09.2017, it is to be noted that the same is distinguishable from
the facts of the present case. The provisions of Section 36 mandate
that an employer cannot be represented by an advocate. The
Patna High Court CWJC No.18738 of 2021 dt.12-05-2025
benefits of the provision to appoint an office bearer who is also an
advocate can accrue only if there is any evidence to substantiate
the claim made by the said employer. In the absence of any
material to show that the bye-laws of the association provide for
the appointment of any Honorary Secretary/ Honorary Joint
Secretary, who is also a practicing advocate, the same cannot be
allowed.
16. Having regard to the above, the CWJC No. 18738 of
2021 is allowed and the impugned order dated 27.08.2021 is set
aside. The facts in CWJC No. 10095 of 2023 are also similar. By
virtue of the order dated 20.01.2023 & 25.04.2023 passed in
Reference Case No. 46 of 2019 & Reference Case No. 01 of 2021
respectively has allowed the application of the Management to
represent the employer by the above named advocates.
17. Having regard to the above made discussion, the
CWJC No. 10095 of 2023 is allowed and both the order dated
20.01.2023 & 25.04.2023 are set aside. However, it is made clear
that in case the management files any application seeking
appointment of an office bearer who is also a practicing advocate
along with material to substantiate its claim i.e., bye-laws of the
association provide for appointment of an Honorary Secretary/
Honorary Joint Secretary before the Labour Court, the same shall
Patna High Court CWJC No.18738 of 2021 dt.12-05-2025
be dealt with by the Labour Court on its own merits without
reference to the present order.
18. With the above direction, both the writ petitions
stand allowed.
(A. Abhishek Reddy, J)
Ayush/-
AFR/NAFR NAFR
CAV DATE NA
Uploading Date 05.06.2025.
Transmission Date NA
