The main legal point established is that Section 36(4) of the Industrial Disputes Act, 1947, mandates clear and positive consent from the opposing party and leave of the Tribunal for legal representation in industrial disputes.

JUDGMENT :

S.N. Prasad, J.

This writ petition has been preferred by the Management of M/s Glaxo Smithkline Pharmaceuticals Ltd., assailing the orders passed by the Labour Court, Bhubaneswar dated 26.3.2016 and dated 30.7.2016 in I.D. Case No.4 of 2015.

2. By order dated 26.3.2016 the petition filed by the petitioner on 15.2.2016 for engagement of legal practitioners to represent on their behalf before the Labour Court is rejected, while the order dated 30.7.2016 of the Labour Court is to review the order dated 26.3.2016 is rejected.

3. Brief facts of the case in narrow compass is that an industrial dispute case has been initiated being I.D. Case No. 4 of 2015 at the instance of the opposite party no.2 who was working as Medical Business Associate-II in the petitioner-company. On being dismissed for proved misconduct in a departmental proceeding, opposite party no.2 raised an industrial dispute questioning the legality of the action of the Management in terminating his service w.e.f. 1.2.2013, conciliation being failed, appropriate government made a Reference to the opposite party no.1 on 22.1.2015, which was registered as I.D. Case No. 4 of 2015 by the Labour Court, Bhubaneswar. Petitioner has entered their appearance on being noticed by the Labour Court, filed its written statement inter alia challenged maintainability of the case and lack of jurisdiction of the Labour Court to try the lis. After completion of pleadings and settlement of issues, the petitioner Management filed two petitions in the case on 15.2.2016, one for recasting the issues and take up the fairness of domestic enquiry as a preliminary issue and another petition under section 36(4) of the Industrial Disputes Act, 1947 stating therein that the authorized representative of the petitioner Management is not aware of the legal procedural aspects and do not have experience and exposure in handling industrial dispute matters effectively for which they may be prejudiced. Petitioner Management has no offices throughout the State of Orissa and it is managing the case date wise through its local Officer, who has been arrayed as Management No.3 in the said Reference till the said date to handle the matter. It is also impracticable and an expensive affair on the part of the petitioner-Management to conduct the case by deputing its Authorized Representatives from Mumbai. Petitioner has got no objection if the other side is being represented through a legal practitioner namely Debasis Patnaik and his Associate.

The opposite party no.2 filed objections to the petitions and prayed for rejection. The Labour Court after hearing the parties has rejected the applications on the ground that the expressed provision in this regard legislated by the Legislation under Section 36(4) of the Industrial Act and as such since the opposite party no. 2 has not given consent to allow the petitioner to contest their case through legal representative, hence it cannot be allowed and accordingly it has been rejected. The petitioner being aggrieved with the order is before this Court by way of the writ petition on the ground that the Tribunal has rejected the application without considering the grounds mentioned in the petition and also without considering various judgments pronounced by Court wherein provision of Section 36(4) of the I.D. Act has been said to be not mandatory.

4. This Court has taken up the writ petition and decided to dispose of the same since legal question has been raised by the petitioner. Before answering the issue it would be appropriate to refer to the provisions of Section 36 of the Industrial Disputes Act, 1947 which contains the provision “representation of parties”.

“S-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 fe