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Rajasthan High Court
Honble B.J. SHETHNA, J.
The Pali Central Cooperative Bank Ltd., Pali - Appellant
Versus
The Judge, Industrial Tribunal Cum Labour Court, Jodhpur & Anr. - Respondents
S.B. Civil Writ Petition No. 5075 of 1999
Decided On : February 08, 2000
Section 36(3) of the Act which provides that no party to the dispute shall be entitled to be represented by legal practitioner in any conciliation proceedings under the Act or in any proceedings before the Court. The court includes the Tribunal. Thus, there is a clear embargo on a legal practitioner appearing in any proceedings before the Tribunal under Section 36(3) of the Act, however, the said embargo is lifted under Section 36(4) of the Act only if there is a consent of the other parties to the proceedings and that too with the leave of the Tribunal. Under the circumstances, mere filing of the vakalatnama by an Advocate for the Bank before the Tribunal was not sufficient. If the Bank wanted to be represented through its lawyer, then it was expected from the Bank to file an application before the learned Tribunal to that effect and seeking consent from the respondent workman for that, which was not done in this case. That apart, even assuming for the sake of arguments that when vakalatnama was filed by the lawyer for the Bank and the representative of the workman not objected to that, that itself was not sufficient because Section 36(4) of the Act clearly provides that it should be with the leave of the Tribunal. Unless and until the Tribunal grants leave or permission to the Bank to appear through the lawyer, it cannot be presumed that there was a consent. In any case, one can never presume that allowing the Advocate to file his vakalatnama for the Bank before it, the Tribunal deemed to have granted that leave or permission. There should be such order in writing. (Para 10)
(2). Learned counsel Mr. Mehta for the Bank vehemently submitted that having granted implied permission to represent the Bank through a lawyer, it was not open to the learned Tribunal to revoke such permission by subsequent order dated 22.7.99 on an application submitted by the workman. Mr. Mehta has taken me through the order-sheet at Annex.1 dated 22.6.98. The order-sheet dated 22.6.98 shows that Mr. M.P. Srivastava, the representative of the workman, and Mr. R.K. Kapoor Advocate presented his vakalatnama for the Bank. On subsequent date i.e. on 31.7.98, on behalf of the workman, his representative Mr. M.P. Srivastava was present and for the Bank Mr. Onkar Singh was present and the reply was filed by the Bank.
(3). The order-sheet dated 28.8.98 shows that Mr. M.P. Srivastava, the representative of the workman, was present and for the Bank, Mr. Sanjay Kapoor Advocate was present. On that day, on behalf of the workman, an affidavit was filed. On 25.9.98, Mr. M.P. Srivastava, the representative of the workman, was present and Mr. Onkar Singh Cashier of the Bank was present for the Bank. On 30.10.98, Mr. M.P. Srivastava, the representative of the workman, was present and on behalf of the Bank, Mr. R.K. Kapoor Advocate was present. On 23.12.98 Mr. M.P. Srivastava, the representative of the workman, was present and for the Bank, Mr. Kailash Chandra Vyas was present. From the order-sheet dated 29.1.99, it appears that on behalf of the workman. Mr. Lalit Sharma appeared and filed his power in place of Mr. M.P. Srivastava and submitted an application under Section 36 of the Industrial Disputes Act, 1947 (for short ``the Act) raising an objection that on behalf of the Bank, an Advocate cannot appear. Thereafter, the matter was adjourned from time to time on 26.3.99, 14.5.99 and 18.6.99 for one or the other reasons.
(4). On 22.7.99, on behalf of the respondent workman, Mr. Lalit Sharma was present but on behalf of the Bank, no one was present. However, one Mr. Moti Lal Solanki Cashier was present without any power, therefore, he was not permitted to participate in the proceedings.
(5). The Tribunal after hearing Mr. Lalit Sharma-representative of the workman and considering the application dated 21.1.99 objecting the appearance of an Advocate on behalf of the Bank under Section 36 of the Act, granted the application and refused to grant permission to the Bank to appear through its lawyer by an order dt. 22.7.99. This impugned order dated 22.7.99 (Annex.2) is under challenge in this petition.
(6). In support of his submission, learned counsel Mr. Mehta for the Bank has relied upon a Single Bench judgment of Kerala High Court in the case of Calicut Co-operative Milk Supply Union vs. Calicut Co-operative Milk Supply Workers Union and another (1), A photostat copy of the same is produced on the record. Relying upon the aforesaid judgment, it was submitted by Mr. Mehta that in this case also when the Bank appeared through its Advocate Mr. R.K. Kapoor on 22.6.98 before the Tribunal, there was an implied consent given by the workman which was never objected on atleast seven (7) occasions and it was for the first time objected on 29.1.99 when another representative Mr. Lalit Sharma appeared for the workman that the Advocate cannot appear for the Bank in view of Section 36 of the Act. He, therefore, submitted that having granted implied permission by the Tribunal on 22.6.98 when Mr. R.K. Kapoor Advocate filed his vakalatnama before the Tribunal, it was not open to the Tribunal to revoke its consent by a subsequent order dated 22.7
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