- (1.) This writ petition has been instituted in respect of an order passed by the Additional Labour Court while adjudicating upon a reference under S. 10 (1) (c) of the Industrial Disputes Act, 1947. The reference appears to be concerned with the termination of services of Shri Chuni Lai Talwar. It appears that an authority letter was filed by the workman in favour of M/s. I. K. Sharma and S. C. Munjal, whose capacity is not disclosed in the letters. Similarly, the management was represented by Shri S. N. Bhandari and Shri R. S.Dalai, Advocates. An application was filed on 17th May, 1976, objecting to the authority of Shri S. N. Bhandari and Shri R. S. Dalai, on account of the fact that they were Advocates. The management replied on 15th July, 1976 stating that only a letter of authority had been filed and Shri S. N. Bhandari and Shri R. S. Dalai did not put in appearance. An objection was taken to the representation of the workmen by Shri I. K. Sharma and Shri S. C. Munjal. The order of the Labour Court is that Shri S. N. Bhandari and Shri R. S. Dalai cannot appear on behalf of the management on account of the fact that they are Advocates whose appearance is only possible if consent is given by the workman. The objection of the management is also to the effect that Shri S. C. Munjal and Shri I. K. Sharma cannot appear for the workman on account of the fact that they are not persons competent to appear, but the Additional Labour Court has held that these persons are competent to appear. This objection appears not to have been decided on the merits but on the footing that the objection was not taken by the management at the first hearing. For this purpose, reliance has been placed on a Division Bench judgment of the Bombay High Court in Engineering Mazdoor Sabha, Bombay V/s. Mehar ,(M. R.) (Industrial Tribunal, Bombay),1966 1 LLJ 530(Bom). On the other hand, learned counsel for the petitioner has cited the Management of Messrs, Khanna Industrial Trading Corporation V/s. Its Workmen, 1972 2 LLJ 429(Delhi), before me which does not exactly agree with that view. This is a judgment of Sachar J. of this Court.
(2.) In my view, the Labour Court has missed the entire point of S. 36 of the Industrial Disputes Act, 1947 . In this Writ Petition, the petitioner wants the Court to hold that M/s. S. N. Bhandari and R. S. Dalai can appear for the petitioning management, but M/s. I. K. Sharma & S. C. Munjal cannot appear for the workman. This is an illustration of the confusion that can arise in applying the provisions of S. 36 as they stand. The intention of this section is to disentitle any representatives such as Legal Practitioners appearing for either the workman or the management. This is the meaning of S, 36 (4). It entitles a Legal Practitioner to appear before a Labour Court, Tribunal or National Tribunal only with the consent of the other party as well as the leave of the Court or Tribunal concerned. This shows that there is some restriction on the appearance of Legal Practitioners. Normally, no legal practitioner can appear as of right. This provision has been introduced not with a view to penalise Legal Practitioner, but with a view to equalise the status of the parties. It must be understood that an industrial dispute arises between managements and workmen. On the one hand, you have the capitalists with considerable financial resources and on the other hand, you have a poor workman who cannot engage a lawyer. To equate the two, a restriction has been placed in subclause (4) of S. 36 of the Act disentitling Legal Practitioners from appearing. This does not mean that Legal Practitioners cannot appear if they are otherwise qualified. For instance, if a Legal Practitioner comes within the provisions of S. 36 (1) as being a member of a trade union or a member of an executive of federation of Trade Unions, etc. he can appear in spite of lack of consent of the other side. Similarly, a Legal Practitioner may appear if he is an officer of association of employers or an officer of a federation of associations of employers. etc., even though he happens to be a Legal Practitioner. In such a case no consent is required from the other side. Therefore, there is a restriction on Legal Practitioners appearing in that capacity, they can in fact appear if they themselves happen to be competent to appear as Trade Union members for the workmen and Association of Employers members on behalf of the management. In such a case, no consent is necessary. The only difficulty arises when the Legal Practitioner does not appear in any of these capacities. In some cases, Legal Practitioners have appeared and it has been construed from the circumstances that there is an implied consent of the other side regarding their appearance. Hence, there are judgments to the effect that a consent can be implied under S. 36 (4) from the circumstances. One such judgment is the decision of the Bombay High Court just referred to above, where the objection to the appearance of a lawyer was taken some time after he had started appearing. It was held that there was an implied consent and similarly, in the decision recorded by Sachar J. it was found that though the lawyer had appeared without any consent, the facts were such that an implied consent could not be spelt out of the circumstances. There is another case referred to by Sachar J. which is a decision of the Calcutta High Court in Reckitt and Colman of India Ltd. V/s. Jitendra Nath Maitra, 1956 AIR(Cal) 353In that case, the management informed the Tribunal that they were going to be represented by a lawyer, that lawyer appeared without any objection and later the Union objected. The objection was allowed by the Tribunal. It was held by the High Court that the consent should be implied. Thus this is the legal position.
(3.) In the present case, we have two lawyers, who want to appear for the management and we have two persons who are alleged to be lawyers who want to appear for the workman. As far as the lawyers of the management are concerned, they clearly cannot appear until they get the leave of the Labour Court as well . as the consent of the workman. As they do not appear to have appeared at all so far, and the workman is not willing/ to give his consent, these lawyers cannot represent the petitioning company. Now, taking the case of the workman/a letter of authority has been filed by' him in favour of M/s. I. K. Sharma. and S. C. Munjal. That letter does not disclose that these persons are lawyers. It also does not disclose whether they are Trade Union leaders or Trade Union members. In fact, it does not disclose anything about what these persons do. It is clear from the wording of S. 36 that only persons mentioned in the section can appear for either party. The only additional parties that can appear are Legal Practitioners and that only with the consent of the other party and leave of the court. Therefore, I am of the view that neither Shri I. K. Sharma. nor Shri S. C. Munjal can appear for the workman unless they are members or executive members or office-bearers of a registered Trade Union of which the workman, Shri Chuni Lal Talwar is a member, or they are members or executive members or officebearers of a Federation of Trade Unions which includes the Trade Union of which Shri Chunni Lal Talwar is a member or if Shri Chunni Lai Talwar is not a member of any Trade Union, he can be represented by a member or executive of any Trade Union connected with the other workmen employed in the industry, etc. There is no finding in this respect re: I. K. Sharma and Shri S. C. Munjal. Apparently, the Labour Court thought that even strangers can be allowed to appear under S. 36 on the basis on which legal practitioners can appear. This is entirely incorrect.;