Glaxo Smithkline Pharmaceuticals Ltd. v. Presiding Officer, Labour Court
2016-08-10
SANJU PANDA, SUJIT NARAYAN PRASAD
body2016
DigiLaw.ai
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.
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 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 2 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 authorized in such manner as may be prescribed.
(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) where 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 authorized 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 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.” It is evident that Section 36 of the ID Act seeks to regulate representation of the parties to a dispute raised under this Act. Sub-section (1) of Section 36 entitles a workman to be represented by (i) 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 (i) is affiliated; and (c) where the workman is not a member of any trade union then a workman has been given a wholesome right of being represented by any member of the executive or office bearer of any trade union connected with the industry in which the worker is employed or by any other co-worker employed in such industry. The language of sub-section (1) is quite different in its phraseology from the language used in sub-section (2) of Section 36 of the ID Act. There would be hardly any difficulty to discover a member of the executive or an office bearer of a trade union or a federation of trade unions to which the trade union referred to above is affiliated.
There would be hardly any difficulty to discover a member of the executive or an office bearer of a trade union or a federation of trade unions to which the trade union referred to above is affiliated. As long as a representative answers the prescription of any of the provisions of sub-section (1) of Section 36 of the ID Act, it would not make any difference even if he is a legal practitioner. It follows that such a representative would not be required to satisfy the conditions envisaged by Section 36(4) of the ID Act, namely, to secure consent of the other party and leave of the Court because Section 36(4) would not simply apply because an office bearer or a member of the executive would cover even a legal practitioner or an advocate enrolled under the Advocates Act. It is significant to point out that there is no bar against a legal practitioner becoming a member of the executive or office bearer of a trade union or a federation of trade unions under the Advocates Act or any rules framed thereunder. By virtue of becoming member of the executive or an office bearer of trade union no relationship of employee and employer between the advocate or the trade union into being. In sub-section (2) of Section 36 of the ID Act, the expression 'Officer' has been retained. A legal practitioner enrolled as an advocate under the Advocates Act would be covered by the expression 'any member of the executive or other office bearer' but he may not be able to answer all the attributes of an 'Officer' of an association of employer of which he is a member or an officer of federation of association of employers to which such an association is affiliated. A perusal of sub-section (2) of Section 36 of the ID Act would further reveal that the employer is entitled to be represented in any proceedings under the ID Act by an officer of an association of employer of which he is a member or an officer of a federation of association of employers to which the association of the employer is affiliated.
Sub-section (3) of Section 36 of the ID Act in un-mistakable terms states that no party to a dispute is entitled to be represented by a legal practitioner either in any conciliation proceedings under the ID Act or in any other proceedings before a Court. There is, thus, a complete bar created by sub-section (3) of Section 36 of the ID Act to be represented by a legal practitioner in two types of proceedings, namely, any conciliation proceedings which are defined in clause (e) of Section 2 of the ID Act or in any proceedings before a Court which means a Court of Inquiry constituted under the ID Act as defined in sub-section (f) of Section 2. Thus, there is complete bar on the parties to be represented by a legal practitioner in the aforesaid two types of proceedings. However, a perusal of sub-section (4) of Section 36 of the ID Act on the other hand would show that a party to the dispute may be represented by a legal practitioner with the consent of the other parties to the proceeding and with the leave of the Labour Court, Tribunal or National Tribunal, as the case may be. 5. Before dealing with the issue it would be relevant to go to the background of the insertion of the provision of Section 36 of the Industrial Disputes Act, 1947 which has been incorporated under the statute by virtue of the Act 48 of 1950. The legislation history of Section 36 show that in 1947 when the original section 36(3) was enacted by a party to an industrial dispute could be represented by a legal practitioner in any proceeding before a Court or a Tribunal. Thus there was absolute freedom for representation by lawyers. The 1950 Act imposed restrictions on legal practitioners in their appearance even before an Appellate Tribunal. Section 33(3) of the 1950 Act laid down that a party to a proceeding under that Act may be represented by a legal practitioner with the consent of the other parties to the proceeding and with the leave of the Appellate Tribunal. The restriction was imposed for the first time and that again even in respect of an Appellate Tribunal.
Section 33(3) of the 1950 Act laid down that a party to a proceeding under that Act may be represented by a legal practitioner with the consent of the other parties to the proceeding and with the leave of the Appellate Tribunal. The restriction was imposed for the first time and that again even in respect of an Appellate Tribunal. Consistent with the aforesaid objective the same restriction was extended to appearance before original Tribunals and consequently the Industrial Disputes Act was amended by the amendments in the Schedule in the 1950 Act. 1950 Act put serious restrictions on the appearance of lawyers. The issue regarding allowing parties to be represented by legal practitioners before the Labour Court or the Tribunal fell for consideration before the Division Bench of this Court in the case of M/s Orissa Ceramic Industries Ltd. Vs. GS, Orissa CW Union, 1973 Lab.I.C 622 wherein their Lordships has been pleased to take into consideration of various aspects of the matter that if the parties will not be allowed to be represented through legal representative it will create hardship and also power of the court and dealt with provision of section 36(4) by discussing in detail that as to whether in absence or consent of the parties, can the Presiding Officer or the adjudicator grant leave. Their Lordships has been pleased to discuss the insertion of the word “and” in Section 36(4) in between the consent of the parties and leave of the court and after discussing in details it has been held there that if presuming that hardship will be caused to the parties but it is not up to the court to look into this matter rather is up to the legislature to see. Their Lordships has been pleased to hold that the word “and” will be conjunctive and the consent and leave of the court will depend upon each other. Thereafter, plea taken by the Management to allow them to represent through legal representative has been rejected by affirming order of the Presiding Officer of the Labour Court. Hon’ble Apex Court in the case of Paradip Port Trust, Paradip Vs. Their Workmen, reported in AIR 1977 SC 36 it has been held by their Lordship at paragraphs 15, 21, 22, 23 & 26 which is being referred hereunder. “15.
Hon’ble Apex Court in the case of Paradip Port Trust, Paradip Vs. Their Workmen, reported in AIR 1977 SC 36 it has been held by their Lordship at paragraphs 15, 21, 22, 23 & 26 which is being referred hereunder. “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. 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 part 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. 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.
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 trammelled 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 ...... 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." 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, 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.” Hon’ble Supreme Court has interpreted section 36 of the Industrial Disputes Act. Views of the Hon’ble Supreme Court, which we have gathered after going through various paragraphs, may be summarised as (i) Section 36(1) confers an 'unbartered' and 'absolute right' upon the workman to be represented by a member of the executive or an office bearer of the registered trade unions. Likewise, the employer is also placed at par with the workman in the matter of representation before the Labour Courts, Industrial Tribunals and National Tribunals. Consequently, an employer may also be represented by an 'Officer' of the association of employer of which the employer is a member. The right is extended to representation by an Officer of the federation of employer to which the association of employer is affiliated. (ii) The rights of representation under Section 36(1) of the ID Act are unconditional and are not subject to the conditions laid down in Section 36(4) of the ID Act. Both the sub-sections are independent and stand by themselves. (iii) Section 36 of the ID Act is not exhaustive in the sense that beside the person specified therein, there can be other lawful mode of appearance of the parties as such (para 13). Such an eventuality has been envisaged by Section 36(2)(c) in case of an employer, who is not a member of an association of employers. The device of representation provided therein would not fit in the case of a Government Department or a Public Corporation as an employer. (iv) A legal practitioner, who is appointed as an officer of Company or Corporation can represent them subject to certain conditions. The first condition is that he must be on their pay rolls and under their control.
The device of representation provided therein would not fit in the case of a Government Department or a Public Corporation as an employer. (iv) A legal practitioner, who is appointed as an officer of Company or Corporation can represent them subject to certain conditions. The first condition is that he must be on their pay rolls and under their control. The second is that if a legal practitioner is appointed as an officer of a company or corporation then the mere fact that he was earlier a legal practitioner or he has a law degree to his credit was not to stand in the way of the Company or the Corporation being represented by such a person. Section 36(3) of the ID Act imposes a complete embargo on representation by a legal practitioner by either party to the dispute before the Court or in any conciliation proceedings under the Act. (v) In the matter concerning representation by a legal practitioner the parties are required to conform to the conditions laid down in Section 36(4) of the ID Act. The consent of the opposite party and the leave of the Labour Court or Tribunal have to be secured to enable a party to seek representation before the Tribunal through a legal practitioner. (vi) If a legal practitioner becomes an officer of an association of employer or a federation of such association of employer which is affiliated to such a federation within the meaning of sub-Section 2(a) and 2(b), then he can represent an employer. (vii) No advocate could claim a right to practice by placing reliance on Section 30 of the Advocates Act. That Act has to give way to ID Act because it is a special piece of legislation with the avowed aim of labour welfare. Thus, it is evident after perusing the judgment rendered by the Hon’ble Apex Court in the case of Paradip Port Trust, Paradip Vs. Their Workmen (supra) having been rendered by the three Bench Judges of the Hon’ble Supreme Court, provision of section 36(4) of the I.D. Act has exhaustively been dealt with and it has been held there that A lawyer, simpliciter, cannot appear before an Industrial Tribunal without the consent of the opposite party and leave of the Tribunal. 6. Hon’ble Delhi High Court in the case of Prasar Bharathi Broadcasting Corporation of India Vs.
6. Hon’ble Delhi High Court in the case of Prasar Bharathi Broadcasting Corporation of India Vs. Suraj Pal Sharma and another, reported in 1999(1) LLJ 1306 has discussed this issue in detail and after placing reliance of the judgment rendered by the Hon’ble Apex Court in the case of Paradip Port Trust, Paradip Vs. Their Workmen (supra) has been pleased to hold that the party will have to be conform in section 36(4) of the Industrial Disputes Act, 1947 in the matter of representative by legal practitioner and both consent of the opposite party and leave of the tribunal will have to be secured to enable a party to seek representative before the Tribunal through legal practitioner. Moreover, judgment rendered by the Hon’ble Delhi High Court in the case of Prasar Bharathi Broadcasting Corporation of India Vs. Suraj Pal Sharma and another (supra) has been reversed by the judgment rendered by subsequent Division Bench of the Hon’ble Delhi High Court in the case of M/s Bhagat Brothers Vs. Paras Nath Upadhyay in LPA No. 212 of 2008, delivered on 13.8.2008 but we, after going through the judgment rendered by the Division Bench of Hon’ble Delhi High Court in the case of Bhagat Brothers Vs. Paras Nath Upadhyay (supra) have found that the Hon’ble Delhi High Court has not taken into consideration the judgment rendered by the Hon’ble Apex Court in the case of Paradip Port Trust, Paradip Vs. Their Workmen (supra), hence we decline to approve the view of the Delhi High Court after taking into consideration the judgment rendered by the Hon’ble Delhi High Court in the case of Prasar Bharathi Broadcasting Corporation of India Vs. Suraj Pal Sharma and another (supra) in which issue has been discussed taking into consideration the ratio laid down by the Hon’ble Apex Court in the case of Paradip Port Trust, Paradip Vs. Their Workmen (supra) which still hold the field having binding precedence under Article 141 of the Constitution of India. We have gone through the judgment rendered by Hon’ble Punjab-Haryana High Court in the case of M/s Hygienic Foods Malerkotla Vs. Jasbir Singh and others, rendered in LPA No. 250 of 2009 in C.W.P. No. 4322 of 2007 decided on 13.11.2009 by its Full Bench, it has been held after taking into consideration the law laid down by the Hon’ble Apex Court in the case of Paradip Port Trust, Paradip Vs.
Jasbir Singh and others, rendered in LPA No. 250 of 2009 in C.W.P. No. 4322 of 2007 decided on 13.11.2009 by its Full Bench, it has been held after taking into consideration the law laid down by the Hon’ble Apex Court in the case of Paradip Port Trust, Paradip Vs. Their Workmen (supra) that legal practitioner cannot appear before the Industrial Tribunal or Labour Court or National Tribunal without consent of the parties and without leave of the Tribunal. We have also gone through the judgment rendered by Madurai Bench of Madras High Court in the case of The National Horticultural Vs. The Government of India passed on 2.11.2012 in Writ Petition (MD) No.11249 of 2012 and Writ petition (MD) No.11249 of 2012 wherein Hon’ble Madras High Court after taking into consideration the proposition laid down in the case of Paradip Port Trust, Paradip Vs. Their Workmen (supra) and after having discussed the impact of Section 30 of the Advocates Act, has been pleased to hold that the legal practitioner cannot be allowed to be represented in the Tribunal, or Labour Court or National Tribunal without consent of other party and without leave of the Tribunal, Labour Court or National Tribunal. After having gone through in detail we find that the proposition laid down by the Hon’ble Punjab-Haryana High Court in the case of M/s Hygienic Foods Malerkotla Vs. Jasbir Singh and others is under consideration before the Hon’ble Apex Court with respect to the constitutional validity of Section 36(4) of the Industrial Disputes Act. Thus, constitutional validity of Section 36(4) of the Industrial Disputes Act is under consideration before the Hon’ble Apex Court and as such the judgment rendered by the Hon’ble Apex Court in the case of Paradip Port Trust, Paradip Vs. Their Workmen (supra) having been delivered by larger Bench consists of Hon’ble Three Judges is still holds the field. 7. It is settled that if there is any statutory provision without any ambiguity it has to be followed in its strict sense and the court of law has got no jurisdiction to interpret the statutory provision since question of interpretation by the court of law will only arise if the statute is not expressed and explicit.
7. It is settled that if there is any statutory provision without any ambiguity it has to be followed in its strict sense and the court of law has got no jurisdiction to interpret the statutory provision since question of interpretation by the court of law will only arise if the statute is not expressed and explicit. After going through the provisions of Section 36 of the Industrial Disputes Act, 1947, in our considered view, there is no ambiguity in the same and as such no interpretation is required to be done with respect to the statutory provision as incorporated by the Legislation under section 36(4) of the Industrial Disputes Act, 1947. 8. So far as case in hand is concerned, the dispute has arisen when application filed by the petitioner-Management on 15.2.2015 for allowing them to engage legal practitioner on their behalf which has been rejected by the Labour Court since the opposite party no.2-workman has not given consent which has been challenged by the petitioner on the ground that the opposite party no.2-workman since has represented by an Advocate, hence it will be said to be implied consent on his behalf, hence petitioner has right to be represented through legal practitioner and if he will not be allowed to be represented through legal representative it will prejudice his case. However, it is not in dispute that the workman has been represented by his Advocate but it has not been pleaded in the writ petition that whether the petitioner has ever made objection with reference to engagement of Advocate by the opposite party no.2-workman to represent him and on this ground the petitioner seeks permission to represent him through legal practitioner on the basis of principles of “implied consent” but this argument of the petitioner cannot be accepted for the reason that section 36(4) of the I.D. Act permits representation of a party by a legal practitioner only with the consent of the other parties to the proceeding and with the leave of the Tribunal , as such the consent has to be clear and positive. There should be positive act or conduct on the part of the party indicating his consent.
There should be positive act or conduct on the part of the party indicating his consent. To consider the failure or inaction of a party in raising the objection at the early stages of the proceeding as implied consent and to deny him the right to object to the representation of the other party by a legal practitioner, will be against the spirit and content of the provisions of Section 36 of the I.D. Act. The concept of “implied consent” cannot be imported to the provision in Section 36(4) of the I.D. Act. As per Section 36(4) the consent of the other parties to the proceeding and the leave of the Tribunal are mandatory preconditions for the representation of a party by a legal practitioner. Thus, the Labour Court/Tribunal will have to follow a reasonable and fair procedure for giving effect to the provisions of Section 36(4) of the I.D. Act. The procedure has to be in tune with the principles underlying the particular provision and also in furtherance of the objection of the provision. Hence, if a party to the proceeding intends to engage a legal practitioner, he should specifically seek leave of the tribunal and the Tribunal, after ascertaining and considering the stand of the other parties, should record its decision, granting or refusing leave. In this process, the other parties to the proceeding will get an opportunity to positively express their consent or objection to the representation of a party by a legal practitioner. The record of the proceedings before the Tribunal will also disclose whether the other parties to the proceeding have given their consent or not. Thus the occasion for giving consent by the other parties to the proceeding arises only when a party formally seeks leave of the Tribunal for representation by legal practitioner and when the said request is considered by the Tribunal. If a party to the proceeding has given his consent in the manner stated above he may be precluded from revoking the consent already given. But in the absence of any consent given in the manner stated above the question of revocation of consent does not arise, reference in this regard may be made to the judgment rendered by the Hon’ble Delhi High Court at paragraph-8 in the case of Prasar Bharathi Broadcasting Corporation of India Vs. Suraj Pal Sharma and another (supra).
But in the absence of any consent given in the manner stated above the question of revocation of consent does not arise, reference in this regard may be made to the judgment rendered by the Hon’ble Delhi High Court at paragraph-8 in the case of Prasar Bharathi Broadcasting Corporation of India Vs. Suraj Pal Sharma and another (supra). In view of the reason mentioned in the proceeding paragraphs, there is no force on the argument of the learned counsel for the petitioner regarding having “implied consent”. 9. Learned counsel for the petitioner has argued that after coming into effect of Section 30 of the Advocates Act with effect from 9.6.2011, Advocate cannot be debarred from appearing in any court of law but after having discussed the authoritative pronouncement and dictum hereinabove, it is evident that the provision of section 36(4) has been legislated by the Legislature in the Industrial Disputes Act, 1947 which is a special piece of legislation with the avowed aim of labour welfare. The mode of representation before adjudicatory authorities has been regulated by keeping that object in view. Moreover, the matter is not to be viewed from the point of view of a legal practitioner but from that of the employer and the workmen, who are the principal contestants in an industrial dispute. In ID Act, restriction is upon a party as such and the occasion to consider the right of the legal practitioner to practise before every court as per provisions of Section 30 of the Advocates Act would not arise. In view thereof, the argument advanced by learned counsel for the petitioner in this regard is not worthy to be accepted and accordingly it is not accepted. 10. Learned counsel for the petitioner has submitted that by not allowing the petitioner to be represented through legal practitioner, it will prejudice their cases, but on the basis of discussions made above, in our conscious view, this Court is to see that the provision of enactment is to be followed in its strict sense and after going through the provisions of Section 36(4) of the Industrial Disputes Act, since there is impediment in engaging legal practitioner and as such it cannot be said that the Legislature has legislated the provision of Section 36(4) is merely for formality.
It is also settled that if anything has been incorporated by the Legislature by way of legislation, there must be some purpose behind it and it cannot be said to be redundant. Moreover, we sitting under Article 226 of the Constitution of India is to see as to whether order is in accordance with the statute or not and we, after appreciating the factual aspects and legal position, found that there is no infirmity in the order impugned. 11. So far as the order dated 30.7.2016 is concerned, it is settled proposition that the power of review/revision/appeal is creation of statute. There is no provision in the Industrial Disputes Act which confers power to the adjudicator to review its own order and as such applying this principle the Labour Court has rightly refused to review/recall the order dated 26.3.2016 by passing the order dated 30.7.2016. 12. After having discussed the fact and legal position, in our considered view, there is no illegality in the impugned orders passed by the Labour Court, Bhubaneswar dated 26.3.2016 and dated 30.7.2016 in I.D. Case No. 4 of 2015 and accordingly, we decline to interfere with the same. The writ petition fails and dismissed.