Orders disallow advocate appearance, as workmen did not give their consent
"Spirit of Section 36 of ID Act practically defeated" Judge calls for a new look on issues relating to Section 36(4)
CHENNAI: In Labour Court proceedings, if workmen engage a trained, seasoned lawyer in the garb of a trade union leader, the managements should not be denied the right to engage a lawyer, the Madras High Court has said.
Justice K. Chandru, setting aside two Labour Court orders disallowing appearance of advocates on the ground that the workmen did not give their consent, said: "The spirit of Section 36 of the Industrial Disputes Act has been practically defeated by the hide and seek game adopted by the parties before the Labour Court over the years."
Pointing out that nowhere does Section 36 of the Act talk about any written consent of a party to be obtained in the matter of another party engaging a legal practitioner, the Judge said: "This type of consent by the workmen was never contemplated in a case where workmen have a trained lawyer, whereas the management is not being allowed to defend its case by a legal practitioner. This has resulted in an anomalous situation."
The first matter related to non-employment of a workman who engaged an authorised representative whereas the management engaged an advocate in March 2002. After 55 adjournments, spread over a period of five years, the workman took advantage of Section 36(4) and objected to the management being represented by a legal practitioner. Though the management said the objection had been raised after five years when pleadings had been completed, the Labour Court sustained the objection.
Setting aside the finding and faulting the hyper-technical approach adopted by the court, Justice Chandru said, "Once the workman gives up his right to object to the appearance of counsel at the earliest stage and allowed the proceedings to go on merrily for a period of five years, there is no reason as to why such an issue should be allowed to be raised at the tail end of the proceedings." In the second matter, the workman was a claim petitioner and he was represented by a trade union leader who was actually a legal practitioner in High Court and other subordinate courts. The management was defended by an officer and hence was in a disadvantageous position. They sought permission to engage a standing counsel to advance their case. As the plea was resisted by the workman, the request was turned down by the court.
Referring to a line of apex court decisions, Justice Chandru said they were clear if there were an imbalance in the matter of defending proceedings before a quasi-judicial body, then it would result in violation of Fundamental Right to Equality. He called for a new look on issues relating to Section 36(4), and said, "the authorities must permit the defence by a legal practitioner if one party has such a facility, even if there was a constitutional/legal bar under a statute. Section 36(4) of the ID Act must, therefore, be interpreted only in this context."