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1998 Supreme(Ker) 512
Judges : J.B.KOSHY
Francis Gomez - Appellant
Versus
State of Kerala - Respondent
Case No : O.P.No. 282/93
Decided On : 11/09/1998
Advocates Appeared :
S. Gopakumaran Nair For Petitioners Government Pleader (P.K. Santhamma) For Respondents
Consent for legal representation can be implied from the surrounding circumstances and conduct of the consenting party, and once given, it cannot be revoked at a later stage.
Headnote:
Consent - Industrial Disputes Act - The court held that consent for legal representation can be implied from the facts and circumstances of the case, and once given, it cannot be revoked at a later stage. The absence of a prescribed procedure for giving consent allows for inference of consent from the surrounding circumstances and conduct of the consenting party.
Fact of the Case:
An industrial dispute was raised regarding termination of services of certain employees of a canteen. The management was represented by a lawyer, and the union raised an objection at a later stage.
Finding of the Court:
The court found that implied consent for legal representation was given by the union, and once given, it cannot be revoked at a later stage. The objection raised at a later stage was not maintainable.
Issues: The main issues were whether consent for legal representation can be implied and whether it can be revoked at a later stage.
Ratio Decidendi: The court held that consent for legal representation can be implied from the surrounding circumstances and conduct of the consenting party. Once consent is given, it cannot be revoked at a later stage.
Final Decision: The court quashed the order and directed the Labour Court to proceed with the dispute, with a directive to complete the proceedings and pass an award within six months.
J.B. Koshy, J.
Two main questions are raised in this original petition: (1) Whether consent as envisaged under S.36(4) of the Industrial Disputes Act, 1947 (hereinafter referred to as 'The Act') to legal practitioners to appear in a proceeding before the Labour Court can be implied on the facts and circumstances of the case; and (2) Whether consent once given can be revoked at a later stage.
2. An industrial dispute was raised by an employees union regarding termination of services of certain employees of the canteen run by Kerala Financial Employees Cooperative Society Ltd. In the array of parties petitioners are made parties as representing the management. The industrial dispute was numbered as I.D. No. 27 of 1992. The first posting of the case was on 6.3.1992. On that day itself Advocate Sri. M.S. Vijayachandra Babu filed vakalath for the management. Union was represented by the President of the Union who also happened to be a practising advocate. The case was adjourned to 10.4.1992 and there were several subsequent postings. On the sixth posting an oral objection was raised by the Union regarding representation of the management by a lawyer. S.36(4) of the Industrial Disputes Act reads as follows:
"36 (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".
Therefore, for being represented by a legal practitioner or by an advocate before an adjudicating authority, there should be consent of other party and also leave of the Court. The Labour Court based on the oral objection of the party, by Ext. P3 order held that management cannot be represented by the advocate who already filed vakalath. Challenging Ext. P3 order this Original Petition was filed contending that when vakalath was accepted by the Court on the first posting date there was implied consent of the opposite party and leave of the court and once the consent is given it cannot be revoked later. Neither the section nor the rules made under the Act did not prescribe any form for consent or statute does not prescribe a particular manner in which consent should be given or separate petition should be filed every time for grant of leave by the Court. In Reckitt & Coleman of India Ltd. v. Jintendra Nath Maitra (1957) 1 LLJ 63 (Cal. in Engineering Mazdodr Sabha v. M.R. Meher ((1966) I LLJ 580 (Bom.)) and in MSCO (P) Ltd. v. S: U. Rime ((1982) I LLJ 434 (Bom)) it was held that if vakalath is filed by a lawyer without any objection raised by the workman and it is accepted by the Court then it was inferred that union has given consent for appearance by a lawyer and leave of the court was also given. Here, an advocate himself filed vakalath. No objection was raised by the union on knowing that an advocate filed vakalath for the management. The court has also accepted and taken the vakalath in file. On these facts and circumstances it can be inferred that consent was given. Therefore, I am of the view that in the absence of prescribed procedure for giving consent, from the facts and circumstances it can be inferred that consent was given by the opposite party.
3. There is no provision under S.36(4) to withdraw the consent once given. Once the consent is given it cannot subsequently be withdrawn. I am forfeited of this view by the decision of this Court in Calicut Co-op. Milk Supply Union v. Calicut Co-op. Milk Supply Workers Union ((1986) II LLJ 422), wherein it was held that:
"This Section does not prescribe that the consent must be given in a particular manner or in a particular form. If that be so, the consent of a party which is the basis of the grant of leave to the other party for being represented by a lawyer in a proceeding under the ID. Act, can be inferred from the surrounding circumstances as also the conduct of the consenting part
