1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH NAGPUR. WRIT PETITION NO. 100 OF 2006 The Chief Executive Officer, Zilla Parishad, Wardha. PETITIONER. VERSUS Ashok Krishnarao Raut and another. RESPONDENT. Shri. P. D. Meghe, Counsel for the petitioners. Shri. D. B. Yengal, AGP for the respondents. CORAM: J. H. BHATIA J. Date: 5th JANUARY 2009. ORAL ORDER: Respondent was served personally, but inspite of service he did not appear. Taking into consideration the short question involved in the matter fresh notice was issued by publication in newspaper stating therein that the petition will be finally disposed of at the 2 admission stage. Inspite of the said publication respondent No.1 did not appear. 2. Heard Mr. Meghe learned counsel for the petitioner. Perused the impugned order passed by the Labour Court. Respondent no.1, who had allegedly abondoned the service for about 6 years, was refused permission to resume the duties by Zilla Parishad. Being aggrieved by that order of refusal the respondent No.1 approached the Labour Authorities who referred the matter as industrial dispute before the Labour Court. Before the Labour Court at Wardha, the Zilla Parishad made an application seeking leave to be represented by legal practitioner. That application was opposed by the respondent No.1 and after hearing the parties the learned Labour Judge Wardha rejected the application mainly on the ground that there was no consent of the respondent as required under Section 36(4) of the Industrial Disputes Act for the petitioner being represented by the legal practitioner. Section 36 of the Industrial Disputes Act reads as follows: 3 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 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. (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 4 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 proceedings 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. It is clear that the workmen and employer are entitled to be represented by certain officers mentioned in Sub Section 1 and 2. In case of conciliation proceedings there is complete bar of being represented by legal practitioner as provided under Sub Section 3. However Sub Section 4 provides that in any proceedings before the Labour Court, Tribunal or National Tribunal a party to the dispute may be represented by the legal practitioner with the consent of other party to represent and with the leave of the Court the Tribunal or National Tribunal. On the first reading of this Sub Section it appears that the consent of the other side and the leave of the Court both are 5 required for a party to get it represented by the legal practitioner. However, in the case of T. K. Varghese Vs. M/s Nichimen Corporation 2001(3) Maharashtra Law Journal 711, this Court had an opportunity to interpret section 36(4), wherein this Court, after looking to several justifications, came to the conclusion that there is no absolute bar for the appointment of legal practitioner and the opposite party also cannot withhold the consent without any justification and arbitrarily. The Court observed as follows in para 10: “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 no 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 bonafides 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 not withstanding the refusal of consent by the other side. No party to the proceedings has an unbridled and absolute right to refuse to give consent to other party. No party can adopt 6 unreasonable attitude to exploit the situation arising out of section 36(4) of the Act to the deliberate disadvantage of the other side. The provision was enacted to help the budding Trade union movement and it was never intended for them to take wrongful advantage of the same even after the Trade Unions have become capable of defending themselves and their workmen. The provision is always subject to the scrutiny of the Labour Court/Tribunal and it can always decide the question of refusal of consent by the other party and can overrule the refusal of the consent on merits independently while considering to grant or refuse the “leave” contemplated under section 36(4) of the Act.” This authority has been relied upon by this Court in number of cases including the Writ Petition 2465 of 2002 (Zilla Parishad Wardha Vs. 2nd Labour Court Nagpur and another) and Writ Petition No. 4515 of 2002 (Executive Engineer Zilla Parishad Wardha Vs. Judge, 2nd Labour Court and another). In both the matters it was found that the worker was being represented by an experienced trade union leader while the Zilla Parishad did not have any such officer who could represent the case properly before the Labour Court. Therefore permission was granted to Zilla Parishad to be represented by legal practitioner inspite of refusal to give consent by the other side. 7 3. In the present case also learned counsel for the petitioner Zilla Parishad makes a statement that the respondent No.1 is represented before the Labour Court by a trade union leader, having experience of about 30 years in the Labour and Industrial Courts and on the other hand Zilla Parishad does not have any officer who is well versed with the working of the Labour, Industrial Courts and who can properly represent the cause of the Zilla Parishad. Taking into consideration these facts and circumstances and the provisions of Section 36(4) as interpreted in the case of T. K. Varghese I find that it is a fit case to grant leave to the petitioner to be represented by legal practitioner. 4. For the aforesaid reasons writ petition is allowed. Impugned order passed by the Labour Court is hereby set aside and the Zilla Parishad is granted leave to be represented by legal practitioner. JUDGE svk 8