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Madhya Pradesh High Court · body

2019 DIGILAW 541 (MP)

Prakash Meena v. Ultratech Cement Ltd.

2019-07-25

PRAKASH SHRIVASTAVA

body2019
ORDER 1. By this petition the petitioner has challenged the order of the Labour Court dated 8.10.2012, whereby the objection of the petitioner in respect of representation of the respondent in the proceedings before the Labour Court through the advocate has been rejected. 2. The brief facts are that the reference has been made to the Labour Court under section 10 of the Industrial Disputes Act in respect of retrenchment of the petitioner and in the proceedings before the Labour Court, the petitioner had raised an objection that the respondent cannot be allowed to be represented through the advocate as the petitioner has not appointed any advocate to represent him and in this regard has placed reliance upon section 36(3) and (4) of the Industrial Disputes Act, 1947 (for short "the Act") and the Labour Court considering section 30 of the Advocates Act has rejected the said objection. 3. The argument of learned counsel for the petitioner is that the Labour Court has committed an error in rejecting the objection without properly appreciating the legal position, whereas learned counsel for the respondent has supported the impugned order. 4. Having heard the learned counsel for the parties and on perusal of the record, it is noticed that the fact that the petitioner is not represented through the lawyer before the Labour Court and the respondent is seeking to be represented through the lawyer, is not in dispute. Section 326(3) and (4) of the Act provides as under : "36. Representation of parties.- (1) *************************** (2) *************************** (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 [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 [with the leave of the Labour Court, Tribunal or National Tribunal, as the case may be]." 5. A bare perusal of the aforesaid provision makes it clear that in the absence of consent or in case of opposition by a party before the Labour Court, the other party cannot be permitted to be represented through an advocate. A bare perusal of the aforesaid provision makes it clear that in the absence of consent or in case of opposition by a party before the Labour Court, the other party cannot be permitted to be represented through an advocate. This issue had come up before the Hon'ble Supreme Court in the matter of Uttam Kumar Pardasani v. M/c Petcare Divin of Tetragon P. Ltd. in Civil Appeal No. 561/11 and by order dated 12.1.2011 it has been held that: "6. We are not in agreement with the impugned order. The language of section 36(4) of the Act is clear enough to suggest that when there is no consent by the workman, there will be no question of allowing any legal practitioner to appear for the management. The High Court has not considered section 36(4) of the Act and merely concluded relying on the few decisions such as Management of the Basavanagudi Co-operative Society Ltd v. N. Nagesha Rao and another, 1975 LIC 103 and Deepak Puriand and others v. Fifth Industrial Tribunal, West Bengal and others, 1986 LIC 132 We have nothing to say about the principles invoked in those decisions. 7. We also do not find the order passed by the Labour Court to be proper. The only reason given by the Labour Court for allowing the lawyer to appear for the employer is that the evidence would be required to be taken in that matter. That by itself cannot be a proper reason. In our opinion, this was not a fit case where the application of the appellant could have been rejected by the Labour Court. We, therefore, set aside the orders of the Labour Court as well as of the High Court and allow the application of the appellant objecting the appearance of the legal practitioner on behalf of the management. 8. The appeal is allowed accordingly." 6. The same issue had come up before the coordinate bench of this Court also in the matter of MANAGING DIRECTOR ITNAS PHARMACUTICAL LIMITED v. YOGENDRA SINGH CHOUHAN THROUGH M.P. MEDICAL AND SALES REPRESENTATIVE ASSOCIATION in WP No. 6445/15 and the coordinate bench by order dated 2.11.2015 has held as under : "Parties through their counsel. The same issue had come up before the coordinate bench of this Court also in the matter of MANAGING DIRECTOR ITNAS PHARMACUTICAL LIMITED v. YOGENDRA SINGH CHOUHAN THROUGH M.P. MEDICAL AND SALES REPRESENTATIVE ASSOCIATION in WP No. 6445/15 and the coordinate bench by order dated 2.11.2015 has held as under : "Parties through their counsel. Petitioners before this Court have filed this present petition being aggrieved by the order dated 12.08.2015 by which the presiding officer, labour Court has rejected the prayer of the petitioners (employer) to engage a legal counsel (advocate). Undisputed facts of the case reveals that the petitioner was transferred by the employer and thereafter, the respondent employee has sought shelter of the provisions of Industrial Dispute Act, 1947 and finally, a reference was made to the labour Court in exercise of powers conferred under section 10 of the Industrial Dispute Act, 1947. The reference was made on 21.7.2014. The employer submitted an application for engaging a counsel and the application was rejected on 5.2.2015. The employer has again preferred another application and the same was again turned down on 12.8.2015. Learned counsel for the petitioners has vehemently argued before this Court that by virtue of section 30 of the Advocates Act, 1961, an advocate is entitled to practice anywhere before any forum and his contention is that by virtue section 30 of the Advocates Act, 1961, the application preferred by the employer should have been allowed. He has placed reliance upon a judgment dated 15.2.2012 delivered by the Bombay High Court in the case of Mohan Madhukar Sudame v. State of Maharashtra (W.P. No. 3107 of 1994) and he has also placed reliance upon another judgment dated 19th July, 2011 delivered by the Kerala High Court at Ernakulam in the case of C.P. Saji v. Union of India and other (W.P (C) 18334 of 201 (N)). His contention is that keeping in view the aforesaid judgments, the application should have been allowed by the Labour Court. On the other hand, the workman appearing in person has drawn attention of this Court towards the judgment dated 12.1.2011 delivered by the Supreme Court in the matter of Uttam Kumar Pardasani v. M/s Petcare Divin of Tetragon P. Ltd. in SLP No. 25777/2008. Heard the learned counsel for the petitioners as well as the workman and perused the record. On the other hand, the workman appearing in person has drawn attention of this Court towards the judgment dated 12.1.2011 delivered by the Supreme Court in the matter of Uttam Kumar Pardasani v. M/s Petcare Divin of Tetragon P. Ltd. in SLP No. 25777/2008. Heard the learned counsel for the petitioners as well as the workman and perused the record. It is an undisputed fact that a reference has been made keeping in view section 10 of the Industrial Dispute Act, 1947 to the labour Court and the same is pending for adjudication. First application for engaging the counsel has been turned down on 5.2.2015 and thereafter, another application was preferred and the same has also been turned down by the labour on 12.8.2015. Section 36 of the Industrial Dispute Act, 1947 reads as under : "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 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. (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 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 with the leave of the Labour Court, Tribunal or National Tribunal, as the case may be].]" The aforesaid statutory provisions of law makes it clear that a legal practitioner cannot be appointed by a party without the consent of the other party. Learned counsel for the petitioners has placed heavy reliance upon section 30 of the Advocates Act, 1961 and the same reads as under:- "30. Right of advocates to practise.-Subject to provisions of this Act, every advocate whose name is entered in the [State roll] shall be entitled as of right to practise throughout the territories to which this Act extends,- (i) in all Courts including the Supreme Court; (ii) before any tribunal or person legally authorised to take evidence; and (iii) before any other authority or person before whom such advocate is by or under any law for the time being in force entitled to practise." His contention is that by virtue of the aforesaid statutory provisions, an advocate is certainly entitled to appear before the labour Court even if the workman has not consented for the same. Learned counsel for the petitioners has placed reliance Mohan Madhukar Sudame v. State of Maharashtra and his contention is that Bombay High Court has held that "by virtue of section 30, an advocate or lawyer is entitled to appear before all tribunals including the University and College Tribunal constituted under the Act. In the aforesaid case the statutory provisions in question was enacted by the State Government whereas in the present case, the Industrial Dispute Act, 1947 is the Act of Parliament and the same cannot be superseded by the Advocate Acts, 1961. In the aforesaid case the statutory provisions in question was enacted by the State Government whereas in the present case, the Industrial Dispute Act, 1947 is the Act of Parliament and the same cannot be superseded by the Advocate Acts, 1961. Under the Industrial Dispute Act, 1947, there is a categoric provision wherein it has been stated that advocates are not permitted to appear for the parties without consent of the other parties and in the present case, the Industrial Dispute Act, 1947 is very much applicable and, therefore, it cannot be said that the advocates are entitled to appear before the Tribunal that too without consent of the parties. This Court has carefully gone through the judgment delivered in the case of C.P. Saji (supra). In the aforesaid case, no specific section was dealt with by the Kerala High Court at Ernakulam as contained in section 36 of the Industrial Disputes Act. Therefore, in the considered opinion of this Court, the judgment delivered by the Kerala High Court is also of no help to the petitioners. Not only this, the apex Court in the case of Uttam Kumar Pardasani (supra) has held that that the labour Court was justified in rejecting the application preferred by the employer. In the present case, the facts establish that first application of the employer was rejected 5.2.2015 and subsequently, another application was filed and the same was also dismissed by order dated 12.8.2015, meaning thereby, the employer is deliberately delaying the conclusion of the trial before the labour Court. Resultantly, the present petition is dismissed with cost of Rs.10,000/-. The cost be deposited within a period of 30 days before the labour Court and be paid to the workman in question." 7. Hence, in view of the above judgment also the respondent-employer cannot be permitted to be represented before the Labour Court through the Advocate, since the petitioner has not consented to it and in fact has opposed it. 8. Hence, in view of the above judgment also the respondent-employer cannot be permitted to be represented before the Labour Court through the Advocate, since the petitioner has not consented to it and in fact has opposed it. 8. Counsel for the respondent has placed reliance upon the Division Bench judgment of the Bombay High Court dated 15.3.2012 in WP No. 3107/1994 in the case of Mohan Madhukar Sudame v. State of Maharashtra, reported in LAWS(BOM)-2012-3-64 but in that case section 64 of the Maharashtra Universities Act, 1994 was in issue and the Division Bench has taken the view that the Advocates Act being a Central Act will prevail over the State Act, but the position in the present case is entirely different. 9. Having regard to the aforesaid legal position, I am of the opinion that the impugned order dated 8.10.2012 rejecting the objection of the petitioner in respect of representation of the respondent through the advocate cannot be sustained and is hereby set aside. 10. The petition is accordingly allowed.