AJITHKUMAR Vs. STATE OF KERALA

JUDGEMENT

(1.) A party to an industrial dispute before a Court/tribunal refuses to grant consent to engage a legal practitioner. Has the Court/tribunal got an inherent power to overrule the objection on merits and appoint a legal practitioner? Does Varghese v. Nichimen Corporation, 2001 (2) KLT SN 75 (Bombay), reflect the correct legal position? The petitioner challenges Ext. P3 order passed by the Industrial Tribunal. By the said order the Tribunal declined permission to the management to engage a legal practitioner. It may be seen that before the Industrial Tribunal the management had made an earlier attempt for appointment of legal practitioner and on being objected to, the proceedings went on without the assistance of a legal practitioner on either side. The application leading to Ext. P3 is a second attempt on the ground that the President of the union is a legal practitioner and hence the management should be permitted to engage a legal practitioner before the Tribunal. But it is not in dispute that the proceedings before the Tribunal are conducted by the General Secretary of the union who is not a legal practitioner and hence it cannot be said that there is any prejudice to the petitioner as of now. Learned counsel for the petitioner relies on a decision of the High Court of Bombay reported in Varghese v. Nichimen Corporation (2001 (2) KLT SN 75) and contends that there is no absolute bar for the Tribunal in considering the request for engaging an advocate. The Short Note reads as follows:

(2.) I am afraid, Section 36 does not in any way deny equal justice. Under Sub-section (3) of Section 36 of the Act, no party to a dispute shall be entitled to be represented by a legal practitioner in any conciliation proceedings, under the Industrial Disputes Act or in any proceedings before a Court. However, under Sub-section (4), it is provided that in any proceeding before a Labour Court, Tribunal a party to 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. The legislative intention is very clear: in case a party is to engage a legal practitioner, it can be done only if both conditions are satisfied. (1) The consent of other party. (2) Leave of the Court/tribunal. It is not enough that any one of the conditions is satisfied. Both conditions have to be satisfied. In rare situations, the statute provides for such absolute conditions. Section 36 (4) of the Act is one such condition. It is the prerogative of one of the parties to the dispute has to withhold the consent injuncting the other party from engaging a counsel. It is on the principle of equal justice. It is not as if one of the parties, is in a disadvantageous situation like the one referred to in the decision cited above before the Bombay High Court (Japartese Company) being left helpless. Sub-sections (1) and (2) of Section 36 provide for such situation where a party can be represented by office bearers of the trade union/management and association wherein the party is a member or is affiliated and in case it is not any such member, the party can be represented by any other workman/employer engaged in the industry in which the workman or employer is engaged and duly authorised. Therefore, once a party withholds consent in the matter of the other party engaging a counsel, the Labour Court/tribunal cannot go beyond that and the Court/tribunal cannot overrule the objection of one side and appoint a legal practitioner. In other words, the Court/ Tribunal gets jurisdiction to engage a counsel in a proceeding before it only if one party consents. The inherent jurisdiction of the Court/tribunal cannot be extended to the extend of overruling the objection and appointing a legal practitioner. This is of course, subject to the inherent power of any Court or Tribunal to appoint a legal practitioner as amicus curiae for the purpose of assisting the Court/tribunal.

(3.) IN fact the Apex Court has elaborately considered the scope of Section 36 (4) in Paradip Port Trust v. Their Workmen (AIR 1977 SC 36) wherein it is stated thus: