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2015 DIGILAW 3535 (MAD)

Nhrdf v. Presiding Officer

2015-10-28

T.RAJA

body2015
ORDER T. Raja, J. The petitioner viz., National Horticultural Research and Development Foundation (NHRDF), has filed this Writ petition challenging the correctness of the order dated 09.10.2014 in I.A. No. 134 of 2014 in C.P.No.7 of 2014 passed by the Labour Court, Tiruchirappalli. 2. A simple issue raised in this Writ petition is as to whether a legal practitioner or an Advocate can represent a party to the proceedings before the Labour Court without the consent of the other side? 3. The petitioner herein has filed an Interlocutory Application in I.A. No. 134 of 2014 in C.S.No.7 of 2014 before the Labour Court, Tiruchirappalli, seeking to permit the petitioner to represent the counsel on their behalf to appear in C.S.No. 7 of 2014. The Labour Court by order dated 09.10.2014 dismissed the said Interlocutory Application holding that the petitioner is not entitled to seek the permission for the assistance of the legal practitioners in the proceedings filed by the 2nd respondent under Section 36(4) of the Industrial Disputes Act, 1947. The petitioner earlier has filed a Writ petition in W.P.(MD) No. 5239 of 2010 before this Court. This Court by order dated 12.07.2010 dismissed the Writ petition. Aggrieved over the same, the petitioner preferred a Writ Appeal in W.A.(MD)No. 631 of 2011 and a Division Bench of this Court by judgment dated 10.08.2011 dismissed the Writ Appeal. 4. The very same issue, which was raised by the petitioner herein, was also considered by this Court in W.P.(MD)Nos.11249 and 11250 of 2012 challenging Section 36(4) of the Act as unconstitutional and void. However, the same is dismissed by this Court on 02.11.2012. 5. Mr. V.O.S. Kalaiselvan, learned counsel for the petitioner has once again repeated the very same argument, which has been advanced before the Labour Court that the Labour Court has failed to consider the enforcement of Section 30 of the Advocates Act and the notification dated 09.06.2011 issued by the Government of India, Ministry of Law and Justice Department of Legal Affairs, which gives rights to the advocates to practise in all the courts including before the Tribunal etc. Therefore, he pleaded that there is no justification for non consideration of Section 30 of the Advocates Act by the Labour Court. 6. Therefore, he pleaded that there is no justification for non consideration of Section 30 of the Advocates Act by the Labour Court. 6. The learned counsel for the petitioner would further contend that as per the judgment of the Hon'ble Apex Court in AIR 1988 SC 1768 there are laws in force in the country which impose restrictions on the right of an advocate to appear before certain Courts, Tribunals and authorities and as per Section 36(4) of the Act, in any proceeding before a Labour Court, Tribunal or National Tribunal to a dispute may be represented by a legal practitioner with the consent of the other parties to the proceedings and with the leave of the Labour Court, Tribunal or National Tribunal. 7. In support of his contention, further he would submit that the 2nd respondent, who was working as a Technical Officer, was dismissed from service after conducting domestic enquiry vide order dated 21.07.2010. Aggrieved by the dismissal order, the 2nd respondent raised conciliation proceedings before the Conciliation Officer and after failed in the conciliation proceedings, he has filed I.D.No.100 of 2010 and the same is pending before the Labour Court for adjudication. Since the 2nd respondent is having knowledge in law and being a member-cum-General Secretary of the registered trade union, he is appearing on his own with his personal capacity as the General Secretary of the trade union. While so, the petitioner herein has no knowledge or experience to contest the proceedings before the legal forum and the petitioner herein is a Marathi having knowledge to speak and write in Marathi and Hindi and is having very little knowledge in English and he did not have knowledge to speak and write in Tamil and therefore, he is not able to contest the proceeding without the assistance of legal practitioner. Therefore, he filed an application seeking permission of the Labour Court under Section 36(4) of the Act. He also contended that Section 30 of the Advocates Act, which was given enforcement from 15.06.2011 by the Government of India notification dated 09.06.2011 permitted the advocates to appear for an effective and speedy disposal of this case before the Courts and Tribunals and hence, there is no bar to the advocates to appear in the proceedings before the Labour Court. But this has been wrongly constructed. 8. But this has been wrongly constructed. 8. The learned counsel has also relied upon one another judgment of the Apex Court reported in AIR 1988 SC 1768 directing the Central Government to consider the question whether Section 30 of the Advocates Act should be brought into force or not. Pursuant thereto a notification has been issued the Government of India has dated 09.06.2011 permitting the advocate for speedy disposal of the case before the Tribunal. Therefore, there is no bar for the advocate to appear before the Labour Court. Hence, the impugned order is liable to be set aside. 9. A detailed counter affidavit has been filed by the 2nd respondent. The 2nd respondent urged this Court to dismiss the Writ petition on the ground that the present Writ petition is not legally maintainable, since the very same prayer was already dismissed by this Court in W.P.(MD) No. 5239 of 2010 on 12.07.2010. The 2nd respondent has brought to the notice of this Court that the Writ petition was dismissed by this Court holding that the management is not entitled to appear through counsel without specific consent of the workman. 10. Further he would submit that when the 2nd respondent moved an application in I.A. No. 457 of 2009 under Section 36(4) of the Act and the Labour Court allowed the said application stating that the management is not entitled to appear through the counsel without specific consent of the workman, against which the management filed a Writ petition in W.P.(MD) No. 5239 of 2010 and the same was dismissed by this Court on 12.07.2010 with elaborate reasons. Aggrieved by the same, a Writ Appeal in W.A.(MD)No.631 of 2011 was also filed. A Division Bench of this Court by judgment dated 10.08.2011 has confirmed the order passed by the learned Single Judge by dismissing the Writ Appeal stating that if the management is of the view that it is entitled to appear as per the change in law, it is for the management to make necessary application before the Labour Court. 11. Therefore, once again the petitioner herein has approached this Court by filing two Writ petitions in W.P.(MD)Nos. 11249 and 11250 of 2012 challenging the legality of Section 36(4) of the Act as unconstitutional and void. 11. Therefore, once again the petitioner herein has approached this Court by filing two Writ petitions in W.P.(MD)Nos. 11249 and 11250 of 2012 challenging the legality of Section 36(4) of the Act as unconstitutional and void. This Court after elaborately considering the case of the petitioner by citing various judgment of the Supreme Court and High Court judgments upholding the validity of Section 36(4) had dismissed the Writ petitions on 02.11.2012, therefore, the 2nd respondent prayed this Court to dismiss the present Writ petition as nothing survives, since the petitioner has come to this Court with false case and the present Writ petition is also hit by the principles of res judicata. 12. This Court finds full merits on the submission made by the 2nd respondent. It is seen that by the impugned order dated 09.10.2014, the learned Labour Court relying on the judgment of the Apex Court and other High Courts has clearly held that the petitioner is not entitled to represent their case by a legal practitioner under Section 36(4) of the Industrial Disputes Act because the workman/2nd respondent has refused to give his consent. 13. In this context, it is relevant to extract Sections 36(3) and (4) of the Industrial Disputes Act, 1947. "(3) No party to a dispute shall be entitled to be represented by a legal practitioner in any conciliation proceedings under this Act or in any proceedings before a Court. (4) In any proceeding 1*[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 2*[with the leave of the Labour Court, Tribunal or National Tribunal, as the case may be].]" A clear reading of the above provision amply shows that no party to the dispute is entitled to be represented by a legal practitioner before the Labour Court or Tribunal without the consent of the other parties to the proceedings. In the case on hand, the 2nd respondent/workman has refused to give his consent, therefore, the impugned order is perfectly in order. 14. It is well settled legal position that in any proceeding before a Labour Court, Tribunal or National Tribunal a dispute may be represented by a legal practitioner with the consent of the other parties to the proceedings and with the leave of the Labour Court, Tribunal or National Tribunal. 14. It is well settled legal position that in any proceeding before a Labour Court, Tribunal or National Tribunal a dispute may be represented by a legal practitioner with the consent of the other parties to the proceedings and with the leave of the Labour Court, Tribunal or National Tribunal. In the present case the 2nd respondent has refused to give his consent for engaging a legal practitioner to represent the case of the petitioner. Therefore, this Court does not find any infirmity in the impugned order. Hence, the Writ petition fails and the same is dismissed. 15. More over, the present Writ petition is hit by the principle of res judicata. Since the petitioner has repeatedly approached this Court with the very same prayer, the Writ petition is dismissed with cost of Rs. 10,000/- payable to the 2nd respondent within a period of two weeks from the date of receipt of a copy of this order. Consequently, connected M.P.is closed.