IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 09.08.2011 CORAM THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.No.12929 of 2009 and M.P.No.1 of 2009 1.State Transport Corporation of Tamil Nadu, (Coimbatore) Ltd., Rep. By its Managing Director, 37, Mettupalayam Road, Coimbatore - 43. 2.The General Manager, Tamil Nadu State Transport Corporation (Coimbatore) Ltd., Erode Region, Chennimalai Road, Erode - 638 001. ...Petitioners Vs. 1.The Presiding Officer, Labour Court, Salem. 2.A.P.Elamvaluthi ...Respondents Writ Petition is preferred under Article 226 of the Constitution of India praying for the issue of a writ of Certiorarified mandamus, calling for the records relating to the order dated 9.2.2009 made in I.A.No.5 of 2008 in unnumbered I E S O P on the files of the 1st respondent and quash the same and consequently direct the first respondent to permit the petitioner to appear in the I E S O P through their legal panel lawyer. For Petitioners : No appearance For Respondents : Mr.R.Murugesan for R2 O R D E R The petitioners are the State owned Transport Corporation. They have come forward to challenge an Award passed by the first respondent Labour Court, Salem in I.A.No.5 of 2008 in un-numbered IESOP and seeks to set aside the same and for a consequential direction to the first respondent Labour Court to permit the petitioners to appear in the IESOP/2008 through their legal panel lawyer. 2. It was claimed that the said application was filed by the second respondent under Section 13-A of the Industrial https://hcservices.ecourts.gov.in/hcservices/ Employment (Standing Order) Act, 1946. In that application, he had prayed that the Management must be directed not to follow the earlier Certified Standing Order when they were functioning as Cheran Transport Corporation. In respect of the Corporation, they should apply for certification of a new Standing Order and until such time, they should apply the Model Standing Order. The Model Standing Order framed by the State Government should be prominently exhibited in all the entrances and Special Notice Board. The memos given to him dated 17.02.2007 and 28.02.2007 under the Old Standing Order should be cancelled and the initial report given in respect of those proceedings was illegal. 3. On notice on this application, the petitioner Transport Corporation was represented by an Advocate. An application dated 21.04.2008 was filed by the second respondent seeking the Labour Court to direct the petitioner Corporation not to be represented by an Advocate in view of the prohibition contained under Section 36 (3) of the I.D.Act. 4. The petitioner Management filed a counter statement both in the objection memo as well as in the main IESOP. In answer to the objection memo, they have stated that the proceedings arose out of the Industrial Employment (Standing Order) Act and not under the I.D.Act. When the matter was posted on 08.04.2008, the petitioner had filed Vakalat by engaging their Standing Counsel. At that time, the representative of the second respondent did not raise any objection and such an objection cannot be raised belatedly on 22.04.2008 and he was estopped from doing so. 5. In the main counter statement, it was stated that similarly placed workmen earlier moved this Court in W.P.No.11350 of 2007 dated 10.04.2007, wherein this Court had held that the Management need not have any separate standing order only because there was a change of ownership. The Standing Orders will apply only to an establishment and need not be again go for a fresh certificate on the ground of change of ownership. 6. Written arguments were filed on the merits of the case by the petitioner Management. 7. The first respondent Labour Court took up the preliminary objection as the first issue. Regarding the appearance of counsel for the petitioner Corporation, it was held that since the petitioner Corporation neither obtained the consent of the workmen nor from the court, they are not entitled to appear through a the legal practitioner and they are also having sufficient officers trained in law. As to the argument that at the time of filing of the vakalat there was no objection, the Labour Court held that the vakalat was filed in the office and therefore, the workman will not be aware of the filing and for the first time, when it was called in the open Court, an objection was raised. The question that since the application is under the Industrial Employment (Standing Order) Act, there is no legal prohibition for the counsel to appear, the Labour Court held that once the issue relating to https://hcservices.ecourts.gov.in/hcservices/ standing order is raised, then it is within the purview of the I.D.Act as it falls under Item 2 of II Schedule prescribed under Section 7 of the I.D.Act and therefore, the I.D.Act will apply. Aggrieved by this order, the petitioner Corporation has come before this Court. 8. The writ petition was admitted on 13.07.2009. Pending the writ petition, an interim stay was granted and it was directed to be posted along with W.P.No.12270 of 2009. But however, it was informed that the said writ petition was already allowed by this Court on 22.11.2010. Since the learned counsel for the petitioner Corporation who initially appeared expressed that he is no longer appearing for the petitioner, the name of the petitioner corporation was directed to be printed in the cause list. 9. Admittedly, the unnumbered IESOP was filed by the second respondent only under Section 13A of the Act. Section 13A of the Industrial Employment (Standing Orders) Act, 1946 reads as follows:- "13-A Interpretation, etc., of standing orders.- If any question arises as to the application or interpretation of a standing order certified under this Act, any employer or workman [or a trade union or other representative body of the workmen] may refer the question to any one of the Labour Courts constituted under the Industrial Disputes Act, 1947 (14 of 1947), and specified for the disposal of such proceeding by the appropriate Government by notification in the Official Gazette, and the Labour Court to which the question is so referred shall, after giving the parties an opportunity of being heard, decide the question and such decision shall be final and binding on the parties." 10. It is no doubt true that the Labour court, Salem has been notified as an authority under Section 13-A by the State Government vide its notification in G.O.Ms.No.224 Labour and Employment Department, dated 11.12.2007 and the Court has jurisdiction to deal with the matters arising from Salem, Erode, Dharamapuri and Namakkal Districts. But under the provisions of Industrial Employment (Standing Orders) Act, while hearing matters under Section 13-A, there is no prohibition for legal practitioners in appearing for parties. The Act nowhere applies the provisions of the ID Act more particularly Section 36 of the ID Act for the proceedings under the Standing Orders Act, in respect of representation of parties. 11. In the absence of any specific bar for a legal practitioner in appearing before the Labour Court, which is notified authority under Section 13-A of the Standing Orders Act, the second respondent cannot object to the appearance of a legal practitioner for the petitioner corporation. It must also be noted that Section 30 of the Advocates Act 1961 has been recently https://hcservices.ecourts.gov.in/hcservices/ notified by the Central Government after 50 years after the enactment came into being and under the said provision, an Advocate can appear as a matter of right before any Court Tribunal or any quasi judicial authority and is empowered to record evidence. 12. The Labour Court had confused the jurisdiction which is provided under the ID Act and hence, it made a reference to Item No.2 of Second Schedule prescribed under Section 7. if the labour court has to deal with the matter arising out of the II schedule, then it requires a reference by the State Government under Section 10(1)(c) of the ID Act and it is not the case of the parties that the objection arose of an order of reference made by the State Government. In the present case, it is the second respondent who had invoked the jurisdiction under Section 13-A, which is a special power and it has nothing to do with the matters set out in the II Schedule of the I.D.Act. In the absence of any reference under Section 10(1) of the I.D.Act by the State Government, the proceedings cannot be said to be a 'proceeding' arising out of the ID Act, 1947. 13. Even assuming that such a proceeding before the Labour Court was pending and that the petitioner Corporation has to represent through an Advocate, since there is a prohibition under Section 36(3) of the ID Act that such appearance can be done only with the consent of the opposite party and the permission of the court. This Court vide judgment in Management of M/s.Hindustan Motors Earth Moving Equipment Division Ltd., v. Presiding Officer, Principal Labour Court and others reported in 2007 (1) MLJ 739 has held that such a power will have to be interpreted in a meaningful manner and had also permitted the appearance of a counsel. 14. In the view of the above, the writ petition stands allowed and the impugned order of the first respondent Labour Court is set aside. However, there will be no order as to costs. Connected miscellaneous petition is closed. Sd/- Asst.Registrar /True Copy/ Sub.Asst.Registrar svki To The Presiding Officer, Labour Court, Salem. Copy to: The Section Officer, VR Section, High Court, Madras. + 1 cc to Mr. Murugesan, SR.48769 W.P.No.12929 of 2009 VD(CO) Eu 30.8.11 https://hcservices.ecourts.gov.in/hcservices/ 09.08.2011 https://hcservices.ecourts.gov.in/hcservices/