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2014 Supreme(Del) 446
High Court of Delhi
THE HONOURABLE MR. JUSTICE V. KAMESWAR RAO
Samarendra Das
Versus
M/s. Win Medicare Pvt. Ltd.
W.P.(C) No. 5159 of 2013
Decided On : 11-02-2014
Advocate Appeared:
For the Petitioner:Kumar Chitranjan, Advocate.
For the Respondent:Jitesh Pandey, Advocate.
Implied consent for representation by Advocates and the significance of surrounding circumstances and conduct in inferring consent.
Headnote:
Industrial Disputes Act - Appearance of Advocates - Section 36
Fact of the Case:
The petitioner filed a writ petition challenging the dismissal of their application under Section 36 of the Industrial Disputes Act, 1947, regarding the appearance of the respondent's authorized representative, who was an Advocate without the petitioner's consent.
Finding of the Court:
The court found that the petitioner's conduct implied consent for the appearance of Advocates on behalf of the respondent, as no objection was raised when Advocates appeared on multiple occasions prior to the objection during cross-examination.
Issues: The main issue was whether the petitioner had given implied consent for the appearance of Advocates on behalf of the respondent, and if the objection raised was an afterthought.
Ratio Decidendi: The court held that consent can be implied from the surrounding circumstances and conduct of the parties, and that the objection raised by the petitioner was an afterthought, leading to the dismissal of the writ petition.
Final Decision: The writ petition was dismissed as without merit, and no costs were awarded.
V. Kameswar Rao, J. (Oral)
1. The challenge in this writ petition is to the order dated February 20, 2013 passed by the Labour Court on an application filed by the petitioner under Section 36 of the Industrial Disputes Act, 1947 (for short, the ‘Act’) in I.D. No. 184/09 whereby the said application was dismissed.
2. The application is dated August 09, 2012 filed against the appearance of the Authorized representative of the respondent on the ground that he being an Advocate, the petitioner has not given his consent for his appearance on behalf of the respondent which is mandatory in terms of that Section. The position of law has been crystallized by this Court as well as by the Supreme Court. The Supreme Court in the case reported as AIR 1977 SC 36, Paradip Port Trust Vs. Their Workmen. has held as under:
“a lawyer, simplicitor 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 registered trade Union or an officer of association of employers and consent of the other side and leave of the Tribunal will, then, be necessary”.
3. The respondent herein did not file his reply to the said application. The same was argued on the basis of the Judgments and highlighting the fact that the Advocates were representing the respondent since 2009, but the petitioner has not taken any objection till the filing of the application, thereby giving an implied consent on the appearance of the Advocates on behalf of the respondent. It was further submitted on behalf of the respondent that even the Labour Court had not passed any order, restraining the Advocates for appearance on behalf of the respondent herein. Section 36 of the Industrial Disputes Act, 1947 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 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 authorized 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 authorized 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 1[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 2[ with the leave of the Labour Court, Tribunal or National Tribunal, as the case may be].]
4. The Labour Court while dismissing the application, relied upon the Judgment of the Division Bench of this Court titled as M/s. Bhagat Brothers. Vs. Paras Nath Upadhyay, decided on August 13, 2008 in LPA No. 212/2008 wherein in para 7 and 9, the Division Bench held as under:
“7. Section 36(4) does not prescribe that the consent must be given in a particular manner or in a particu
