The central legal point established in the judgment is the impact of the Allahabad High Court judgment declaring Section 36(4) of the Industrial Disputes Act, 1947 unconstitutional on the case and the requirement of consent for engagement of a lawyer by a party.

JUDGMENT :

1. This writ application has been filed by the petitioner praying for quashing of order dated 20.6.2013 passed by the learned Presiding Officer, Labour Court, Bhubaneswar in I.D. Case No.37 of 2012 filed under Section 2A(2) of the Industrial Disputes Act, 1947 permitting engagement of a lawyer by the opposite party to conduct her above noted case.

2. Mr. Somnath Mishra, learned counsel for the petitioner while drawing our attention to sub-section 4 of Section 36 of the Industrial Disputes Act, 1947, for short “the Act” submitted that despite objection from the petitioner side, the above noted order has been passed which clearly violates the above noted provision which makes it clear that a legal practitioner cannot be engaged by a party if the other party does not consent to the same. In such background, he prayed that the impugned order be set aside. In this context, he drew our attention to the memo of objection under Annexure-4 filed by the petitioner to the prayer of the opposite party – workman for engagement of a lawyer. In this context, he also relied upon the decision of the Supreme Court in the case of Paradip Port Trust, Paradip v. Their Workmen reported in (1977) 2 SCC 339. He submitted that the said decision makes it clear that the word “and” used in sub-section 4 of Section 36 of “the Act” cannot be read as “or” and that the word “consent” of the other parties as used in that subsection is not an idle alternative but a ruling factor in the said sub-section. Since the prayer of the opposite party for engagement of a lawyer has been allowed by the learned Labour Court, Bhubaneswar though no consent was given by the petitioner Management to such prayer, the impugned order under Annexure-5 is legally vulnerable and ought to be set aside.

3. Mr. S.K. Mishra, learned counsel representing the opposite party strongly defended the impugned order and relied upon a host of decisions. But he mainly put emphasis on the decision of Allahabad High Court in the case of I.C.I. India Ltd. v. Presiding Officer, Labour (IV) and others reported in (1992) 64 FLR 968 wherein sub-section 4 of Section 36 of “the Act” has been held to be unconstitutional. Advancing his arguments further, he submitted that as per the decision of the Supreme Court in the case of Kusum Ingots & Alloys Ltd. v. Union of India and another reported in (2004) 6 SCC 254, it is settled that an order passéd in a writ petition questioning the constitutionality of a parliamentary Act whether interim or final shall have effect through out the country. Accordingly, he submitted that subsection 4 of Section 36 of “the Act” no more exists in the statute book and arguments advanced by learned counsel for the petitioner based on such provision ought not to be given credence. He also submitted that in Paradp Port Trust case (supra) vires of sub-section 4 of Section 36 of “the Act” was never challenged or decided. Even there the Supreme Court has made it clear that sub-sections 1 & 2 of “the Act” making provisions for representation of the parties are not exhaustive. Accordingly, he submitted that the learned Labour Court has not committed any wrong in permitting the representation of the opposite party, who was a Junior Clerk having little knowledge about the procedure under “the Act”, by a lawyer in the interest of justice. Lastly, he submitted that though the writ petition challenging constitutional validity of Section 36(4) of “the Act” is pending before the Supreme Court in Civil Appeal No. 6586 of 2019, W.P.(Civil) No.1169 of 2018 & Civil Appeal No.6587 of 2019 in the case of Thyssen Krupp Industries India Private Limited v. Suresh Murti Chougule and others, however, from order dated 22.8.2019 referring the matter to larger Bench, it appears that the attention of the Supreme Court has not been drawn to the fact that the issue of vires has already been settled by Allahabad High Court in the case of I.C.I. India Ltd. case (supra).

4. Heard learned counsel for the pa