The main legal point established in the judgment is the requirement for clear and positive consent for representation by a legal practitioner under Section 36 of the Industrial Disputes Act, 1947.

ANIL KUMAR, J.

1. The petitioner has impugned the order dated 30th November, 2005 of the Labor Court by which the application of the workman under Section 36 of the Industrial Disputes Act, 1947 was allowed holding that the petitioner management is not entitled to be represented by a legal practioner without the consent of the workman and without the permission of the Court and in the circumstances the advocate appearing on behalf of petitioner was barred from representing the petitioner and the matter was adjourned to facilitate the petitioner to appoint a new authorized representative.

2. The petitioner contended that it is a partnership firm dealing in sale and purchase of yarns which was dissolved in 2000. The respondent was allegedly working with M/s.Suman Agencies for 16 years and he left the service after getting his dues after full and final settlement of his claims. However, on 18th September, 2003 a claim was filed through the trade union claiming that he was employed with the petitioner for a monthly salary of Rs.5000/- for 20 years and on 7th August, 2001 when he demanded arrears of salary, the management/petitioner got angry and he was compelled to give his resignation and respondent was thrown out of service.

3. The reply to the claim filed by the petitioner was filed through Sh.J.K.Singhal, Advocate. Replication to the reply filed by the petitioner was filed and thereafter workman filed his evidence by way of affidavit. After filing the evidence on affidavit, the respondent workman filed an application under Section 36 seeking that the petitioner/management be not allowed to be represented by a counsel. On 30th November, 2005 by the impugned order the application was allowed and the petitioner was directed to appoint a new authorized representative, as an advocate could not be allowed to appear on behalf of petitioner/management.

4. The petitioner has impugned the order allowing the application dated 3rd July, 2005 disallowing petitioners advocate to appear on his behalf and directing the petitioner to engage a new authorized representative, on the ground that the consent of the respondent for appearance of the counsel on behalf of the petitioner could be inferred on account of various facts including that the respondent did not object to appearance of petitioners advocate till 5th July, 2005 when an application was filed on behalf of the respondent workman. The order has been impugned by the petitioner on the ground that the petition under Section 36 of the Industrial Disputes Act, 1947 could not be made by the respondent at any time. It is asserted that on account of the conduct of the respondent, implied consent can be inferred in allowing the petitioner to be represented through an advocate. For implied consent it is contended on behalf of petitioner that before the application was filed on 5th July, 2005 the petitioner was represented by the counsel and no objection was taken by the respondent. The learned counsel for the petitioner has relied on Britannia Engineering Products and Services Ltd Vs. Second Labour Court and Ors, 2003-II-LLJ 200 and T.K.Varghese Vs. Nichimen Corporation, 2002-IV-LLJ in support of the contention that there was implied consent on the part of the respondent and consequently the Labour Court could not allow the application of the petitioner and could not bar the advocate to appear on behalf of the petitioner. The petitioner has also contended relying on 2002 IV LLJ (Suppl.) 1018,

T.K. Verghese v. Nichmen Corporation and 2003 II LLJ 1024, Britania Engineering Products and Services Limited v. Second Labour Court that implied consent given by the workman could not be allowed to be withdrawn and there was no need for fresh consent on the part of the workman.

5. Perusal of the judgments relied on by the petitioner reflect that they are apparently distinguishable. In T.K. Verghese (supra), on February 28, 2000, the appearance was put on behalf of the management through the Genera