GARG, J. - (1.) THE petitioner has filed the present writ petition under Article 226/227 of the Constitution of India on 26. 9. 2002 against the respondents with a prayer that by an appropriate writ, order or direction the order dtd. 18. 1. 2001 (Annex. 1) by which application filed by the petitioner for perrnitting it to be represented by a lawyer was rejected and the order dtd. 6. 9. 2001 (Annex. 2) passed by the learned Labour Court (respondent No. 1) by which a prayer was made that the petitioner-firm be allowed to be represented through Shri J. P. Patodia was rejected, be quashed and set aside.
(2.) IT arises in the following circumstances: That the respondent No. 2 (Rajendra) raised an industrial dispute before the Conciliation Officer, Bhilwara alleging therein that he was engaged in March, 1995 as Salesman under the petitioner-firm, but his services were terminated w. e. f. 7. 8. 1998. The conciliation proceedings failed and the matter was referred to the Labour Court (respondent No. 1) for adjudication. On receiving the reference, notices were issued to the parties. ii) Further case of the petitioner is that the petitioner appeared before the respondent No. 1 (labour Court) on 16. 6. 2001 through his counsel and on the same day, an application was filed by the respondent No. 2 (Rajendra) under Section 36 of the Industrial Disputes Act, 1947 (hereinafter referred to as the Act of 1947) and opposed the appearance of the advocate on behalf of the petitioner-firm. The respondent No. 1 (Labour Court) allowed that application filed by the respondent No. 2 (Rajendra) vide order dtd. 18. 1. 2001 (Annex. 1) inter alia holding that since no complex question was involved in the matter, therefore, there was not need to be represented by a lawyer. iii) Further case of the petitioner is that thereafter another application was submitted by the counsel for the petitioner Shri J. P. Patodia before the learned Labour Court (respondent No. 1) stating that since the was a office bearer of Mewar Chamber of Commerce and Industry, Bhilwara, therefore, he was competent to appear and defend the case of the petitioner and thus, the petitioner-firm be allowed to be represented by him. iv) That the respondent No. 1 (Labour Court) vide order dtd. 6. 9. 2001 (annex. 2) dismissed the application filed by the petitioner inter alia holding that since Shri J. P. Patodia was an advocate also, Therefore, the petitioner-firm was not allowed to be represented by Shri Patodia. v) In this writ petition, the orders dtd. 18. 1. 2001 and 6. 9. 2001 (Annex. 1 and 2 respectively) have been challenged. In this writ petition, the following submissions have been made by the learned counsel counsel for the petitioner: i) That Shri J. P. Patodia is an office bearer of Mewar Chamber of Commerce and Industry, Bhilwara and therefore, he should have been allowed to represent the petitioner and for that he has placed reliance on the judgment of this Court in the case of Laxmi Engineering Industries vs. State of Rajasthan and Ors. (1 ). ii) That it has further been submitted by the learned counsel for the petitioner that a lawyer can represent before the Tribunal in the capacity as office bearer of registered trade union and no consent of other side or leave of the Tribunal was necessary and from that point of view also, rejection of application of the petitioner was perse illegal and orders dtd. 18. 1. 2001 (Annex. 1) and order dtd. 6. 9. 2001 (Annex. 2) should be set aside. Heard. To appreciate the controversy involved in this writ petition, for convenience, Section 36 of the Act of 1947 is being quoted here: " 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 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 of 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. (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 associations 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 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 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. " In the case of Paradip Port Trust, Paradip vs. Their workmen (2), the Hon'ble Supreme Court discussed the various provisions of Section 36 of the Act 1947 and came to the following conclusions: " (1) It is necessary 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. (2) 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. (3) Also 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. So that there is no need under the law to purpose the matter in order to find out whether the appointments are in the circumvention of Section 36 (4) of the Act. Motive of the appointment cannot be made an issue before the Tribunal. (4) Consent of the opposite party is not an idle alternative but a ruling factor in Section 36 Hence, one cannot hold that "and" in Section 36 (4) can be read as "or". (5) Nor can the fact that under the Advocates Act, 1961 an advocate can appear before all courts and tribunals matter much, for the Industrial Disputes Act is a special statute. 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 a lawyers before all courts, tribunals and other authorities. Generalia specialibus non derogant. Secondly, the matter is not to be viewed from the point of view of legal practitioners but from that of the employer and the workmen who are the principal contestants in a industrial dispute. (6) Hence, 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 of an officer of association of employers and no consent of other side and leave of the Tribunal will, then, be necessary. "
(3.) CLAUSE (4) of Section 36 of the Act of 1947 is very much clear on the point that before the Labour Court or Tribunal, a party to a dispute may be represented by a legal practitioner with the consent of the other parties and with the leave of the Labour Court or Tribunal, as the case may be. Thus, as a lawyer simpliciter cannot appear before the Industrial Tribunal without the consent of the opposite party. However, in the present case, Shri J. P. Patodia is an officer of Mewar Chamber of Commerce and Industry, Bhilwara of which the petitioner firm is a member and when this being the position, Shri J. P. Patodia could represent the petitioner-firm before the respondent No. 1 (Labour Court) as a lawyer can appear before the tribunal in the capacity of officer bearer/officer of a registered trade union and no consent of other side and leave of the Tribunal would be necessary. Thus, the findings recorded by the Labour Court are not based on correct appreciation of facts and law available on record and it can be said that the findings of the Labour Court are erroneous or perverse or patently unreasonable and hence the findings of the Labour Court suffer from basic illegality and infirmity. ;