HIGH COURT OF UTTARAKHAND, AT NAINITAL Writ Petition No.1008 of 2010 (M/S) Kisan Sahakari Chini Mills Ltd. … Petitioner Versus Sri Basant Kumar Joshi S/o late Sri Hari Krishan Joshi …. Respondent Dated:- 28th June, 2010 Hon’ble Tarun Agarwala, J. Since disputed questions of fact are not involved and the opposite party is represented by Sri I. D. Paliwal, the case is being decided at the admission stage itself. 2. Heard Sri T. A. Khan, the learned counsel for the petitioner and Sri I. D. Paliwal, the learned counsel for the respondent. 3. The services of the respondent workman was terminated by the employer petitioner and an industrial dispute was raised by the respondent, which was referred to the Industrial Tribunal. The Industrial Tribunal gave an award against the workman. During these proceedings when the award was being made, the employer was being represented through its advocate Sri G. S. Gairola and was allowed to participate before the Tribunal and, at that time, tacit consent was given by the workman. 4. Now, an application has been filed by the workman for the recall of the ex-parte award in which notices were issued by the Tribunal and the employer again sent its representative Sri G. S. Gairola to appear on their behalf. Upon a fresh vakalatnama being filed, the workman raised an objection that he has not given any consent and, consequently, the employer cannot be represented through an Advocate. The Tribunal, after considering the matter, passed the impugned order accepting the contention of the workman and disallowing the employer to be 2 represented through its advocate. The employer, being aggrieved by this, has filed the present writ petition. 5. The sole question, which arises for consideration is, whether an advocate could represent a party before the Labour Court / Tribunal under the U.P. Industrial Disputes Act. There is a specific bar for appearance of an advocate before the Labour Court / Tribunal. Section 6-I and Rule 40 of the U.P. Industrial Disputes Act provide the procedure for representation of the parties, which are extracted hereunder:- “6-I. Representation of the parties.- (1) Subject to the provisions of sub-sections (2) and (3), the parties to an industrial dispute may be represented before the Board, Labour Court, or Tribunal in the manner prescribed. (2) No party to any proceeding before a Board shall be represented by a legal practitioner, and no party to any proceeding before a Labour Court or Tribunal shall be represented by a legal practitioner, unless the consent of the other party or parties to the proceeding and the leave of the Presiding Officer of the Labour Court or Tribunal, as the case may be, has been obtained. (3) No officer of a Union shall be entitled to represent any party unless a period of two years has elapsed since its registration under the Indian Trade Union Act, 1926, and the Union has been registered for one trade only: Provided that an officer of a federation of unions may subject to such conditions as may be prescribed represent any party.” 40. Representation of parties.- (1) the parties may, in their discretion, be represented before a Board, Labour Court or Tribunal- (i) in the case of workman subject to the provision of sub- section (3) of Section 6-I, by- an officer of a union of which he is member, of (a) an officer of a federation of unions to which the union referred to in clause (a) above, is affiliated, and (b) where there is no union of workmen, any representative, duly nominated by the workmen who are entitled to make an application before a Conciliation Board under any orders issued by Government, or any member of the executive, or other officer; (ii) in the case of an employer, by- an officer of a union or association of employers of which the employer is member; or 3 (a) an officer of a federation of unions or associations of employers to which the union or association referred to in clause (a) above, is affiliated, or (b) by an officer of the concern, if so authorized in writing by the employer: Provided that no officer of a federation of unions shall be entitled to represent the parities unless the federation has been has been approved by the Labour Commission for this purpose. (2) A part appearing through a representative shall be bound by the acts of that representative. (3) An application for approval of a federation of unions for representing the par6ties before a Board, Labour Court, and Tribunal;, shall be made in From XX to the Labour Commissioner : Provided that no federation of unions shall be entitled to apply for approved unless a period of two years has elapsed since its formation. (4) On receipt of an application under sub-rule (3), above, the Labour Commissioner may, after making such enquires, as he deems fit, approved its name shall be notified in the official Gazette otherwise the applicant shall be informed of the position in writing by the Labour Commissioner. (5) The Labour Commissioner or the Registrar of the Trade Unions, Uttar Pradesh, may, at any time before or after a federation hass been approved, call for such information form the federation as he considers necessary and the federation shall furnish the information so called for. (6) Every approved federation shall- (a) intimate to the Labour Commissioner and the Registrar of Trade Unions, Uttar Pradesh, in Form XXI every change in the address of its head office and in the members of the executive (including its office-berrers) within seven days therof; and (b) submit to the Labour Commissioner and the Registrar of Trade Unions, Uttar Pradesh by the December 31 every year a list of unions affiliated to it in Form XXII. (7) The Labour Commissioner may, at any time and for reasons to be recorded in writing withdraw the approval granted to federation under sub-rule (4) above. (8) A party aggrieved by the order of the Labour Commissioner under sub-rule (4) or (7) may within one month from the date of the receipt of such order prefer appeal before the State Government, whose decision in the matter shall be final and binding.” 6. A combined reading of the aforesaid provisions makes it apparently clear that a legal practitioner can only represent a party if consent is given by the other party and leave of the Presiding Officer of 4 the Labour Court / Tribunal is obtained. Rule 40 indicates that an advocate cannot appear as a representative of an employer. 7. In the present case, the court finds that the matter is pending before the Labour Court since 1990 and two awards have been given by the Labour Court / Tribunal. In these proceedings before the labour court / tribunal, the court finds that the employer was being represented by a legal practitioner initially by Sri G. S. Gairola and, subsequently by Sri R. K. Raizada. There is nothing on record to indicate that when these two advocates were being represented, an objection was raised by the workman with regard to their engagement. Consequently, there is a tacit consent given by the workman. 8. Now, an application to recall the ex-parte award has been filed by the workman and again the employer is being represented by the same legal practitioner. At this stage, an objection has been taken by the employee to the effect that he has not given any consent and that the employer cannot be represented by a legal practitioner. By the impugned order dated 10.05.2010, the labour court has allowed the objection on the ground that since no consent has been given by the workman and held that the petitioner cannot be represented through a legal practitioner. 9. In my opinion, the approach adopted by the workman as well as by the Labour Court / Tribunal is not correct. Admittedly, the employer was being represented in these proceedings at an earlier point of time through a legal practitioner and that the legal practitioner was allowed to appear on behalf of the employer. Even though, there may not be any specific written consent from the workman, the court is of the opinion that there was a deemed tacit consent given by the workman in allowing a legal practitioner to represent the employer. Once such deemed consent is given, the workman, in the same proceeding, cannot 5 turn around and say that the deemed consent has now been withdrawn or that he now no longer wants to give consent to continue and allow the legal practitioner to represent the employer any further. Once a consent has been given, it cannot be taken back. This is the normal rule as held by the Allahabad High Court in Hydro Electric Employees’ Union, Lucknow & another Vs. U.P. State Electricity Board & another 2008 (118) F.L.R. 1173. The said judgment is squarely applicable to the present case. 10. On the question that no leave of the Presiding Officer of the Labour Court / Tribunal was obtained, the court is of the opinion that once a legal practitioner was allowed to participate and represent the employer for a considerable period of time, there would be a deemed leave granted by the court. In view of the aforesaid, the objection of the workman, being technical, cannot be sustained. The impugned order cannot be allowed to stand. The impugned order is quashed. The writ petition is allowed. (Tarun Agarwala, J.) Dated 28.06.2010 LSR