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Himachal Pradesh High Court · body

2016 DIGILAW 466 (HP)

Him Cylinder Private Limited v. Janak Raj

2016-04-11

SURESHWAR THAKUR

body2016
JUDGMENT : Sureshwar Thakur, J. Since common questions of fact and law stand raised for consideration in all the petitions, hence they are taken up together for disposal. 2. The Labour Court-cum-Industrial Tribunal, Dharamshala (hereinafter referred to as “Tribunal”) stood transmitted by the labour Commissioner, H.P the hereinafter extracted references for rendering of adjudications thereupon :- CMPMO No. 306 of 2014& CMPMO No.138 of 2015 : “Whether termination of the services of Sh. Janak Raj S/o Sh. Uttam Chand, R/o V.P.O. Kalruhi, Tehsil Amb, District Una, H.P. w.ef. 12-7-2012 by and Employer/Factory Manager. M/s Him Cylinders Limited, Plot No.1 to 4, Industrial Area Amb, District Una, H.OP. (present office), the Employer/Managing Director, M/S Him Cylinders, D-9 Udyog Nagar, Rohatak Road, New Delhi-110041 (Corporate Office), without complying with the provisions of the Industrial Disputes Act, 1947, is legal and justified? If not, what amount back wages, seniority, past service benefits and compensation the above worker is entitled to from the above employer?” CMPMO No.316 of 2014 “Whether termination of services of Sh. Praveen Kumar S/o Sh. Bishan Dass, Village Bhavran/Kangrui, Tehsil Amb, Distt. Una, H.P. by the Managing Director, M/s Him Cylinder Ltd. Plot No.1-4, Industrial Area, Amb, Tehsil Amb, Distt. Una, H.P. during December, 2011 without complying with the provisions of the Industrial Disputes Act, 1947, as alleged by workman, is legal and justified? If not, what amount of back wages, salary, seniority, past service benefits and compensation the above worker is entitled to from the above employer/management?” 3. Claim petitions stood instituted before the learned Tribunal by the workmen/respondent (s) herein (hereinafter referred to as 'workmen’) through their authorized representatives. On the respondent/petitioner herein standing served On 14.10.2013 /11.11.2013 /21.5.2015,respectively, an appearance/representation on its behalf was put in before the learned Tribunal by Sh. Onkar Singh, Advocate. Continuously therefrom appearances on behalf of the petitioner herein stood recorded before it by Shri Onkar Singh, Advocate uptill the decision rendered by the Tribunal on an application preferred before it under Section 36 (4) of the Industrial Disputes Act, 1947 (hereinafter referred to as the Act) by the A.R. for the workmen for debarring Sh. Onkar Singh, Advocate to record his appearance before it as counsel for the respondent/petitioner herein (hereinafter referred to as 'management/employer’). 4. The A.R. for the workmen omitted to thereat record his protest against the representation of the management before the learned Tribunal by Sh. Onkar Singh, Advocate to record his appearance before it as counsel for the respondent/petitioner herein (hereinafter referred to as 'management/employer’). 4. The A.R. for the workmen omitted to thereat record his protest against the representation of the management before the learned Tribunal by Sh. Onkar Singh, Advocate, even at the time of furnishing of reply (s) by the management through their legal practitioner before the learned Tribunal to the respective claim petitions standing instituted before it by the workmen besides at the time of striking of issues inter se the parties at lis, evidently no demur emanated on the part of the A.R. for the workmen qua the unauthorized representation of the management before the learned Tribunal through a legal practitioner aforesaid arising from the factum of his not falling within the categories of persons ordained in sub clauses (a), (b) & (c) of sub-section (2) of Section 36 of the Act, categories whereof of persons alone stand validly empowered to represent it before the learned Tribunal, hence enjoining the legal practitioner for validating his representation on behalf of the management before the learned Tribunal to prior thereto obtain an express consent of the AR for the workmen which however remained un-purveyed by the latter to the legal practitioner, hence may be invalidated his representation on behalf of the management before the learned Tribunal. 5. For reiteration, a grievance stood ventilated therein of Sh. Onkar Singh, Advocate though competent to make a representation on behalf of the employer/management before the learned Tribunal, yet such representation on its behalf standing ingrained with an aura of legal sanctity only in the event of a prior express consent to his appearance before it for espousing the stand of the employer in repudiation to the claim petition projected before the Tribunal by the workmen, standing purveyed by the AR for the workmen to the legal practitioner, besides cumulatively the leave of the learned Tribunal while being statutorily imperative for validating its representation by Sh. Onkar Singh, Advocate before it, standing afforded whereas with the A.R. for the workmen not previously expressly consenting to the representation on behalf of the employer before the learned Tribunal by a legal practitioner nor the Tribunal granting leave to the appearance/representation of the employer/management before it by a legal practitioner, entailed the consequences of an embargo constituted under sub section (3) of Section 36 of the Act to stand attracted qua Onkar Singh, Advocate, his not falling within the categories of the persons enumerated in sub-clauses (a), (b) & (c) and sub-section (2) of Section 36 therein. The apposite application ventilating the grievances aforesaid of the A.R. for the workmen stood replied to by the employer/petitioner herein. The apposite provisions of sub clauses (a), (b) & (c) of sub-section (2) of Section 36 of the Act stand extracted hereinafter. "36. Representation of parties. (1) A workman who is a party to a dispute shall be entitled to be represented in any proceedings under this Act by- (a) [any member of the executive or other 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 federation of trade unions to which the trade union referred to in Clause (a) is affiliated; (c) where the worker is not a member of any trade union, by [any member of the executive or other office-bearer of any trade union connected with, or by any other workman employed in the industry in which the worker is employed and authorised in such manner as may be prescribed : [Provided that, where there is a recognised union for any undertaking under any law for the time being in force, no workman in such undertaking shall be entitled to be represented as aforesaid in any such proceeding (not being a proceeding in which the legality or propriety of an order of dismissal, discharge, removal, retrenchment, termination of service, or suspension of an employee is under consideration) except by such recognised union. (2) An employer who is a party to a dispute shall be entitled to be represented in any proceeding under this Act by– (a) an officer of an association of employers of which he is a member; (b) an officer of a federation of association of employers to which the association referred to in Clause (a) is affiliated; (c) whether the employer is not a member of any association of employers, by an officer of any association of employers connected, with, or by any other employer engaged in, the industry in which the employer is engaged and authorised in such manner as may be prescribed. (3) No party to a dispute shall be entitled to be represented by a legal practitioner in any conciliation proceeding under this Act or in any proceedings before a Court. (4) In any proceeding 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 proceedings and with the leave of the Labour Court, Tribunal or National Tribunal as the case may be." 6. Another application (s) constituted under Section 36 (4) of the Act stood instituted before the Tribunal by the employer for leave being granted to it for its standing represented before it by Sh. Onkar Singh, Advocate. The said application (s) was/were contested by the workmen by instituting a reply (s) thereto. 7. The Tribunal on a consideration of material before it, under a common order (s), allowed the application (s) preferred before it under Section 36 (2) of the Act by the A.R for the workmen, whereas it dismissed the application (s) preferred before it by the employer/management under Section 36 (4) of the Act. The employer stands aggrieved by the order (s) rendered by the Tribunal, hence has concerted to assail it by instituting writ petition (s) therefrom before this Court. 8. The expostulations of law in AIR 1977 SC 36 , Paradip Port Trust, Paradip vs. Their Workmen , the relevant paragraphs whereof stand extracted hereinafter, though cast an obligation upon an employer to elicit a prior express consent from the A.R. for the workmen for its standing represented by a legal practitioner before the learned Tribunal for hence validating any representation on its behalf by a legal practitioner. Also it is mandatory for the management for validating its representation before the Tribunal by a legal practitioner to seek the apposite leave of the learned Tribunal for the purpose aforesaid. Both the mandatory indispensable requirements of meteing of prior express consent of the A.R. for the workmen for validating the representation of the management before the learned Tribunal by a legal practitioner also the apposite leave of the learned Tribunal for the purpose aforesaid stood not satiated. Obviously, the learned Tribunal was constrained to render the impugned order (s). “15. The parties, however, will have to conform to the conditions laid down in section 36 (4) in the matter of representation by legal practitioners. Both the consent of the opposite party and the leave of the Tribunal will have to be secured to enable a party to seek representation before the Tribunal through a legal practitioner qua legal practitioner. This is a clear significance of section 36 (4) of the Act. 16. If, however, a legal practitioner is appointed as an officer of a company or corporation and is in their pay and under their control and is not a practicing advocate the fact that he was earlier a legal practitioner or has a legal degree will not stand in the way of the company or the corporation being represented by him. Similarly if a legal practitioner is an officer of an association of-employers or of a federation of such associations, there is nothing in section 36 (4) to prevent him from appearing before the Tribunal under the provisions of section 36 (2) of the Act. Again, an office bearer of a trade union or a member of its executive, even though he is a legal practitioner, will be entitled to represent the workmen before the Tribunal under section 36 (1) in the former capacity. The legal practitioner in the above two cases will appear in the capacity of an officer of the association in the case of an employer and in the capacity of an office bearer of the union in the case of workmen and not in the capacity of a legal practitioner. The fact that a person is a legal practitioner will not affect the position if the qualifications specified in section 36 (1) and section 36 (2) are fulfilled by him. 17. The fact that a person is a legal practitioner will not affect the position if the qualifications specified in section 36 (1) and section 36 (2) are fulfilled by him. 17. It must be made clear that there is no scope for enquiry by the Tribunal into the motive for appointment of such legal practitioners as office bearers of the trade unions or as officers of the employers associations. When law provides for a requisite qualification for exercising a right fulfillment of the qualification in a given case will entitle the party to be represented before the Tribunal by such a person with that qualification. How and under what circumstances these qualifications have been obtained will not be relevant matters for consideration by the Tribunal in considering an application for representation under section 36 (1) and section 36 (2) of the Act. Once the qualifications under section 36 (1) and section 36 (2) are fulfilled prior to appearance before Tribunals, there is no need under the law to pursue the matter in order to find out whether the appointments are in circumvention of section 36 (4) of the Act. Motive of the appointment cannot be made an issue before the Tribunal. 21. We have given anxious consideration to the above submission. It is true that "and" in a particular context and in view of the object and purpose of a particular legislation may be read as "or" to give effect to the intent of the legislature. However, having regard to the history of the present legislation, recognition by law of the unequal strength of the parties in adjudication proceedings before a Tribunal, intention of the law being to discourage representation by legal practitioners as such, and the need for expeditious disposal of cases, we are unable to hold that "and" in section 36 (4) can be read as "or". 22. Consent of the opposite party is not an idle alternative but a ruling factor in section 36 (4). The question of hardship, pointed out by the Solicitor General, is a matter for the legislature to deal with and it is not for the courts to invoke the theory of injustice and other consequences to choose a rather strained interpretation when the language of section 36 is clear and unambiguous. 23. The question of hardship, pointed out by the Solicitor General, is a matter for the legislature to deal with and it is not for the courts to invoke the theory of injustice and other consequences to choose a rather strained interpretation when the language of section 36 is clear and unambiguous. 23. Besides, it is also urged by the appellant that under section 30 of the Advocates Act, 1961, every advocate shall be entitled "as of right" to practise in all courts, and before only tribunal section 30 (i) and (ii). This right conferred upon the advocates by a later law will be properly safeguarded by reading the word "and" as "or" in section 36 (4), says counsel. We do not fail to see some difference in language in section 30 (ii) from the provision in section 14 (1) (b) of the Indian Bar Councils Act, 1926, relating to the right of advocates to appear before courts and tribunals. For example, under section 14 (1) (b)of the Bar Councils Act, an advocate shall be entitled as of right to practise save as otherwise provided by or under any other law in any courts (other than High Court) and tribunal. There is, however, no reference to "any other law" in section 30 (ii) of the Advocates Act. This need not detain us. We are informed that section 30 has not yet come into force. Even otherwise, we are not to be trammeled by section 30 of the Advocates Act for more than one reason. First, the Industrial Disputes Act is a special piece of legislation with the avowed aim of labour welfare and representation before adjudicatory authorities therein has been specifically provided for with a clear object in view. This special Act will prevail over the Advocates Act which is a general piece of legislation with regard to the subject matter of appearance of lawyers before all courts, tribunals and other authorities. The Industrial Disputes Act is concerned with representation by legal practitioners under certain conditions only before the authorities mentioned under the Act.Generalia Specialibus Non Derogant. As Maxwell puts it : "Having already given its attention to the particular subject and provided for it, the legislature is reasonably presumed not to intend to alter that special provision by a subsequent general enactment unless that intention be manifested in explicit language ...... As Maxwell puts it : "Having already given its attention to the particular subject and provided for it, the legislature is reasonably presumed not to intend to alter that special provision by a subsequent general enactment unless that intention be manifested in explicit language ...... or there be something in the nature of the general one making it unlikely that an exception was intended as regards the special Act. In the absence of these conditions, the general statute is read as silently excluding from its operation the cases which have been provided for by the special one." Maxwell on Interpretation of Statues, 11th Edition, page 169. 24. Second, the matter is not to be viewed from the point of view of legal practitioner but from that of the employer and workmen who are the principal contestants in an industrial dispute. It is only when a party engages a legal practitioner as such that the latter is enabled to enter appearance before courts or tribunals. Here, under the Act, the restriction is upon a party as such and the occasion to consider the right of the legal practitioner may not arise. 26. A lawyer, simpliciter, cannot appear before an Industrial Tribunal without the consent of the opposite party and leave of the Tribunal merely by virtue of a power of attorney executed by a party. A lawyer can appear before the Tribunal in the capacity of an office bearer of a registered trade union or an officer of associations of employers and no consent of the other side and leave of the Tribunal will, then, be necessary.” 9. A rummaging of the entire record of the case (s) explicitly bespeaks the factum of no prior express consent standing meted by the A.R. for the workmen, to the employer for validating its representation before the Tribunal by Sh. Onkar Singh, Advocate. Furthermore, the learned Tribunal also not contemporaneously alongwith lack of prior express consent standing meted by the AR for the workman to the management for validating its representation through a legal practitioner before the learned Tribunal granting leave to legal practitioner nominated by the management for representing its cause before the learned Tribunal constrained a conclusion from it of its representation before it by Onkar Singh, Advocate being legally un-sanctimonious. However, even in the absence of an prior express consent standing not purveyed by the A.R. for the workmen to Sh. However, even in the absence of an prior express consent standing not purveyed by the A.R. for the workmen to Sh. Onkar Singh, Advocate for hence satiating the initial condition foisted in sub section (4) of Section 36 of the Act, nonetheless the absence of an prior express consent by the A.R. for the workmen to the employer for validating its representation before it through the aforesaid would not ipso facto render open any inference of the initial condition contemplated in sub section (4) of Section 36 of the Act qua purveying of an prior express consent by the A.R for the workmen to the employer/petitioner herein for legitimizing its representation before it by a legal practitioner to hence stand unsatiated nor would the non-meting of an express prior consent by the A.R. for the workman to the management for validating its representation before it by a legal practitioner per se render unauthorized the representation on its behalf before the Tribunal by Sh. Onkar Singh, Advocate, as implied consent by the A.R. for the workmen to the representation of the management/employer/petitioner herein before the learned Tribunal by a legal practitioner as marshalable from the apposite facts besides surrounding circumstances has also been held in a judgment of Delhi High Court reported in 2014 LLR 345 Samarendra Das vs. M/s Win Medicine Pvt. Ltd. the relevant paragraphs whereof stands extracted hereinafter to legitimize the representation of the management before the Tribunal by a legal practitioner. “4. The Labour Court while dismissing the application, relied upon the judgment of the Division Bench of this Court titled as M/s Bhagat Brothers vs. Paras Nath Upadhyay, decided on August 13, 2008 in LPA No.212/2008 wherein in para 7 and 9, the Division Bench held as under:- “7. Section 36 (4) does not prescribe that the consent must be given in a particular manner or in a particular form. In a given case the consent of a party, which is the basis for grant of leave to the other party for being represented by an advocate in a proceeding under the Industrial Disputes Act, could be inferred from the surrounding circumstances as also the conduct the consenting party. Section does not insist upon a written consent. Consent can be implied. Consent once given cannot be revoked at a later stage because there is no provision in the Industrial Disputes Act enabling such withdrawal or revocation. Section does not insist upon a written consent. Consent can be implied. Consent once given cannot be revoked at a later stage because there is no provision in the Industrial Disputes Act enabling such withdrawal or revocation. 9. Since there was no objection raised on the first date of the proceedings to the appearance of a legal practitioner on behalf of the other side, the consent is to be taken as implied consent. As the Labour Court has also allowed Mr. J.K. Singhal, the legal practitioner, to appear on behalf of the appellant company, it will have to be deemed that the Labour Court had granted leave to Mr. Singhal to appear for the appellant-management, though there was no specific or express consent given by the respondent workman or his representative and through the Labour Court had not specifically granted leave to Mr. Singhal to appear fro the appellant-management. From the conduct of the Union representative as well as from the fact that Mr. Singhal was allowed to appear in the matter before the Labour for several dates, leave will have to be inferred having been granted.”………. 8. On a specific query to the learned counsel for the respondent as to whether Advocates appears in robes before the Labour Court, the answer was in affirmative. I find that the surrounding circumstances and the conduct of the petitioner was such that consent can be implied inasmuch as there was no objection raised by the respondent on the first day when Mr. Saurabh Munjal, Advocate had appeared on July 108, 2011. I find, even on September 15, 2011, Mr. Jitesh Pandey, Advocate appeared on behalf of the respondent, there was no objection taken by the petitioner. I also find Mr. Saurabh Munjal and Mr. Jitesh Pandey, Advocates appeared thereafter in the presence of the workman on November 29, 2011 and January 07, 2012. Further, since the objection has been taken when the case was listed for cross examination, the objection is clearly an afterthought. In view of the aforesaid factual position, I agree with the conclusion arrived at by the Labour Court and I dismiss the writ petition being without any merit.” 10. Further, since the objection has been taken when the case was listed for cross examination, the objection is clearly an afterthought. In view of the aforesaid factual position, I agree with the conclusion arrived at by the Labour Court and I dismiss the writ petition being without any merit.” 10. The view as propounded therein was earlier taken by the Bombay High Court in a judgment reported in 2001 (90) FLR 91, T.K. Varghese vs. Nichimen Corporation; the relevant portion whereof stands extraction hereinafter: “There is no absolute bar for the legal practitioner to appear before the Labour Court/Tribunal as it is under Section 36 (3) in the conciliation proceedings. No party can withhold appearance of a legal practitioner by denying “consent” without any justification and arbitrarily for any rhyme or reason. If a party is represented by an office bearer etc. of a Trade Union or an Association, it cannot refuse to grant consent to the other side without any reasonable cause and justification to engage a legal practitioner and the Labour Court/Tribunal can always consider the bona fides of such a party withholding consent and can always grant “leave” to the other parties to be represented by a legal practitioner in the interest of justice notwithstanding the refusal of consent by the other side.” 11. However before proceeding to apply the raison d’etre or the ratio decidendi encapsulated in the judgments aforesaid of even implied consent of the A.R. for the workmen to the representation of the management before the Tribunal by a legal practitioner as garnerable from surrounding circumstances besides the conduct of the parties appearing before the Tribunal standing on a formidable legal footing, even in the absence of an express prior consent standing purveyed by the A.R. for the workmen to the management for legitimising the representation of the employer before the Tribunal by a legal practitioner, it is imperative to proceed to discern from the material available on record qua any personification embodied therein of any implied consent standing meted by the A.R. for the workmen to the appearances recorded on behalf of the management before the learned Tribunal by a legal practitioner. An incisive rummaging of the record is loudly communicative of the factum of Sh. An incisive rummaging of the record is loudly communicative of the factum of Sh. Onkar Singh, Advocate on notice standing served upon the employer putting in appearance on its behalf before the Tribunal and his appearance on behalf of the employer before the Tribunal remaining un-protested by the A.R. for the workmen uptill reply (s) stood furnished by the petitioner herein through its legal practitioner to the claim petitions standing instituted by the workmen before the learned Tribunal. Evidently with no protest to the appearance of Sh. Onkar Singh, Advocate for representing the cause of the employer/management before the learned Tribunal forthcoming at the instance of the A.R for the workmen in proceedings before the Tribunal uptill reply (s) to the claim petitions stood furnished by it before it besides even when at the stage of striking of issues there was no demur on the part of A.R for the workmen to the representation of the management before the learned Tribunal by a legal practitioner obviously is per se evidence of acquiescence by the A.R. for the workmen to the representation of the employer/management before the Tribunal through a legal practitioner. Acquiescence as emanable from the aforesaid material existing on record tantamounts to implied consent of the AR for the workmen to the representation of the management before the learned Tribunal by a legal practitioner. Necessarily when express prior consent for reasons aforestated though not standing purveyed by the A.R. for the workmen to the representation of the employer before the Tribunal through a legal practitioner rather when implied consent is also a legally approbated mode as encapsulated in judicial dicta to foist tenability to the representation of the employer/petitioner herein before the Tribunal by a legal practitioner, as a sequitur, with the material aforestated manifesting the purveying of implied consent by the A.R. for the workmen to the representation of the employer before the learned Tribunal by a legal practitioner, the recording of findings in the impugned order of lack of express prior consent debarring the legal practitioner to make representations, before the learned Tribunal on behalf of the management, is wholly unwarranted. 12. 12. Dehors the above with the foisting of tenability to the meteing of implied consent by the A.R. for the workmen to the representation of the employer before the Tribunal even the refusal by the learned Tribunal of leave to the legal practitioner for espousing the cause of the employer before it stands also foisted upon fragile and tenuous grounds rather when this Court holds with firmness of implied consent standing meted by the A.R for the workmen to the management/petitioner herein for it standing represented before the learned Tribunal by a legal practitioner concomitantly leads to an inference of the refusal by the learned Tribunal under the impugned order to the legal practitioner representing the management/employer before it, standing anchored upon wholly shaky and nebulous reasons. The fragility of the reasons afforded by the learned Tribunal to reject application (s) preferred before it by the employer under Section 36 (4) of the Act for leave being granted to it for its cause before it being espoused by a legal practitioner intrinsically entwined with the reasoning afforded hereinabove of implied consent by the A.R. for the workmen as emenable from a close discernment of the material on record standing purveyed by him to the representation of the management before the learned Tribunal by a legal practitioner besides with the apposite implied consent standing on a firm legal pedestal for validating its representation by a legal practitioner before the Tribunal obviously while also impinging upon the soundness of the reasoning afforded by the learned Tribunal to hold qua the A.R for the workmen sustaining the grounds manifested in the apposite application, hence imperatively the fragility of the reasoning afforded by the learned Tribunal in its impugned order contrarily entails this Court to conclude of the AR for the workmen evidently without any reasonable cause rather arbitrarily withholding his express consent to the representation by the legal practitioner on behalf of the management before the Tribunal whereupon this Court rather stands enjoined to allow the application preferred by the Management before the Tribunal under Section 36 (4) of the Act for leave being granted to it for validating its representation before the Tribunal by a legal Practitioner. 13. 13. In other words, with an immense gap or hiatus occurring inter-se the representation before the learned Tribunal on behalf of the management by a legal practitioner vis-à-vis an application standing preferred before it by the AR for the workmen for debarring him for want of an express prior consent standing meted by him for hence sanctifying his representation on behalf of the management before the learned Tribunal whereas the hiatus or the gap intra-se the aforesaid representation on behalf of the management before the Tribunal by a legal practitioner besides its representation before it by a legal practitioner remaining unprotested earlier thereto vis-à-vis the belated preferment of an apposite application by the A.R. for the workmen before the Tribunal rather evinces an inference of an implied consent standing purveyed by the AR for the workmen for the representation of the management before the learned Tribunal by a legal practitioner, rendering the withholding of an express consent by the AR for the workmen to the management for its representation by a legal practitioner for espousing its cause before the learned Tribunal to stand imbued with a vice of arbitrariness as well as it being without any reasonable cause. Concomitantly, it was incumbent upon the learned Tribunal to discountenance the aforesaid concert of the AR for the workmen, its contrarily countenancing the said concert has committed a gross illegality. 14. Furthermore the factum of the Tribunal permitting the legal practitioner to put in an un-protested appearance before it under a power of attorney for espousing before it the cause of the management, is a copious manifestation of hence leave standing granted by the Tribunal to the legal practitioner to record before it his appearance on behalf of the employer rendering unnecessary the preferment of an application before it by the petitioner herein under Section 36 (4) of the Act for leave being granted to it for the purpose aforesaid. The view aforesaid taken by this Court has earlier been taken by the Bombay High Court in 2005 (107) FLR 932, Salvation Army versus Sunil J. Ingle, relevant paragraphs whereof stand extracted hereinafter. “[4] Section 36 of the Industrial Disputes Act, 1947 deals with the representation of parties. The view aforesaid taken by this Court has earlier been taken by the Bombay High Court in 2005 (107) FLR 932, Salvation Army versus Sunil J. Ingle, relevant paragraphs whereof stand extracted hereinafter. “[4] Section 36 of the Industrial Disputes Act, 1947 deals with the representation of parties. Sub section (1) provides that a workman who is a party to a dispute shall be entitled to be represented in any proceeding under the Act by any of those persons who meet the qualifications in Clauses (a) , (b) and (c). A provision is similarly made in relation to the representation to an employer in sub-section (2). Sub-section (3) then provides that no party to a dispute shall be entitled to be represented by a legal practitioner in any conciliation proceeding under the Act or in any proceedings before the Court. Sub-section (4) provides that in any proceeding 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 proceedings and with the leave of the labour Court, Tribunal or National Tribunal, as the case may be. Therefore, two requirements must be fulfilled before a legal practitioner can appear in such proceedings vis. (i) the consent of the other party to the proceedings and (ii) the leave of the Court or Tribunal as the case may be. [6] Having regard to this settled position in law, what emerges in the present case is that on 27th March, 2002, the Advocate appearing on behalf of the petitioner filed his Vakalatnama (Exh. C-3). There was no objection to the vakalatnama. On that day, the petitioner filed an application questioning the jurisdiction of the Labour Court (Exh. C-4) and the matter was adjourned by consent for the reply of the respondent to 10th April 2002. The taking of the vakalatnama on the record is indicative of the leave which must be read and regarded as having been granted by the Labour Court. There was no objection to the filing of the Vakalatnama and to the appearance of the advocate on 27th March, 2002. The taking of the vakalatnama on the record is indicative of the leave which must be read and regarded as having been granted by the Labour Court. There was no objection to the filing of the Vakalatnama and to the appearance of the advocate on 27th March, 2002. In view of the law laid down by the Division Bench of this court in Engineering Mazdoor Sabha (supra), it was clearly not open to the respondent to raise an objection, having failed to raise it on the very first day of the appearance of the advocate. Before the Labour Court, the judgment of the Division Bench of this Court in Engineering Mazdoor Sabha (supra) and of a Learned Single Judge in T. K. Varghese (supra) were cited. The labour Court declined to follow the settled position in law which emerges from these judgments for the specious reason that the respondent objected to the appearance of the Advocate on the next date of hearing. The order of the Labour court is manifestly in error and the interference of this Court under Article 227 of the Constitution is warranted. Before concluding it would be necessary to record that the respondent has not appeared in these proceedings. Counsel appearing for the petitioner stated that on several of the previous hearings, the matter had to be adjourned since the respondent had remained absent and that in pursuance of the directions of this Court telegraphic intimation has been furnished to the respondent from time to time.” In sequel, the apposite application preferred by the petitioner (s) warranted acceptance. 15. The counsel for the workmen herein contends with the force of the superior legal acumen with which a legal practitioner stands foisted vis-à-vis the A.R. for the workmen would lend an edge to or foist in the employer a leverage to underpin the cause of the workmen espoused before the Tribunal by the A.R. for the workmen rendering it to be an unequal legal battle intra se them. However, the said ground succumbs in the face of no material existing on record, of the A.R. for the workman being a raw hand or his being inexperienced, hence not possessing the requisite legal expertise to efficaciously espouse the cause of the workmen before the Tribunal. However, the said ground succumbs in the face of no material existing on record, of the A.R. for the workman being a raw hand or his being inexperienced, hence not possessing the requisite legal expertise to efficaciously espouse the cause of the workmen before the Tribunal. In the absence of the aforesaid material existing on record, this Court holds with aplomb of the enriched legal experience of the legal practitioner representing the management before the learned Tribunal not baulking or thwarting the efficacious espousal of the cause of the workmen herein before the learned Tribunal through their A.R, who too when not exemplified by any germane material existing on record to be inexperienced or a raw hand, is to be hence construable to be possessed of the requisite legal acumen for giving a competitive fight to the legal practitioner representing the management before the learned Tribunal. In view of above, the petitions are allowed and impugned order (s) stands quashed and set aside. Records be sent back forthwith.