The Industrial Disputes Act, 1947 prevails over the Advocates Act, requiring express consent and court leave for legal representation in industrial disputes.

JUDGMENT :

Rekha Borana, J.

1. The issue involved in the present petitions being common, they are decided vide this common judgment. The facts of S.B. Civil Writ Petition No. 13161/2022 are being taken into consideration for the purpose of adjudication.

2. The present writ petition has been preferred against the order dated 29.07.2022 (Annex. 8) passed by learned Industrial Disputes Tribunal cum Labour Court (hereinafter referred as 'the Labour Court') whereby application filed on behalf of the respondent workman under Section 36(3) of the Industrial Disputes Act, 1947 (hereinafter referred to as 'the Act of 1947') has been allowed and that under Section 36(1) filed on behalf of the petitioner Company has been rejected.

3. The brief facts of the case are that respondent-workman raised an industrial dispute on 02.01.2018 and when no settlement was arrived at, the Conciliation Officer issued a certificate under section 2A of Industrial Dispute Act, 1947 (hereinafter referred as 'The Act of 1947') to approach the Labour Court for adjudication of the said dispute. The statement of claim was filed by one Mr. Himmat Singh, representative of the workman and after service of notices, vakaltnama (P/A) dated 21.01.2019 by Advocate Mr. Nitin Ojha was filed on behalf of the employer-company.

The matter then proceeded on for the reply. On 23.02.2020, the authority letter was filed by one Mr. Ashok Trivedi to represent the workman.

4. Application under Section 36(1) of the Act was then filed by the counsel appearing on behalf of the employer-company with the submission that Mr. Ashok Trivedi has no locus to represent the workman, he not being the person related to cement industry and he being a banker. Secondly, Bhartiya Cement Majdoor Sangh of which Mr. Ashok Trivedi represented to be a Member of Executive/Officer Bearer was not a registered trade union and hence, he would not fall in the category of the persons entitled to represent the workman in terms of Section 36(1) of the Act.

5. A reply to the said application was filed and it was submitted that Bhartiya Cement Majdoor Sangh had applied for registration in terms of the Trade Unions Act, 1926 on 10.07.2018 which application was rejected vide order dated 06.09.2018 but the appeal against the said order was allowed on 31.10.2019 and the union was directed to be registered. However, the said order when not complied with, a writ petition was filed before the High Court and ultimately, on 13.12.2021, the registration certificate of the union was issued by the Registrar of Trade Union, Jaipur. Meaning thereby, the union was registered and hence, Mr. Ashok Trivedi who was appointed as Law Minister/Legal Advisor of the said union, was entitled to represent the workman.

6. Consecutively, while filing reply to the above application, an application under Section 36(3) of the Act of 1947 was also filed on behalf of respondent-workman with the submission that counsel Mr. Nitin Ojha cannot be held entitled to represent the employer-company in terms of Section 36(2) and hence, in terms of Section 36(3), he cannot represent the employer-company. It was further submitted that there being no consent by the workman or leave of the Court, the exception as provided under Section 36(4) of the Act shall also not apply. A reply to the said application was preferred on behalf of the employer-company with the submission that there is no absolute bar for a legal practitioner to appear before the Labour Court/Tribunal and no party can withhold the appearance by denying consent without any reason. Further, it was submitted that the consent as provided under Section 36(4) can even be implied as no objection was raised on behalf of the opposite party at the time of filing of vakalatnama (P/A) and further, as the Court also did not restrain the counsel from appearing, it would be implied to be a deemed consent/leave.

7. After hearing the parties on both the applications, the Labour Court vide impugned order dated 29.07.2022