The ManagementM/s.Hindustan Motors Earth MovingEquipment Division Limited v. The Presiding Officer, Principal Labour Court, Chennai.2. Mr.T.Soundrarajan

of 2006 in I.D.No.514 of 2001 and consequently direct the firstrespondent to permit the petitioner to be represented by its counsel onrecord in I.D.No.514 of 2001.For Petitioner : Mr.C.Saravana Kumar for M/s. Ramasubramaniam & AssociatesFor Respondents: Mr.V.P.Rajendran, for R2for R1-Court.W.P.No.23606/2006The ManagementCaterpillar India Pvt Ltd.,MelnallathurTiruvellore – 602 004... Petitioner.Vs.1. The Presiding Officer, Principal Labour Court, Chennai.2. Mr.T.Soundrarajan, 3. The Management, Hindustan Motors Earthmoving Equipment Division, Tiruvellore 602 004.. . RespondentsThis Petition is filed under Article 226 of the Constitution ofIndia to issue a writ of certiorari to call for records of the firstrespondent and quash its order dated 19.6.2006 made in I.A.No.117 of2006 in I.D.No.514 of 2001.For Petitioner : Mr. John for Mr.T.S.GopalanFor Respondents: Mr.V.P.Rajendran, for R2 R1- Court. https://hcservices.ecourts.gov.in/hcservices/ W.P.Nos.22142 to 22145 of 2006:The Managing Director,Tamil Nadu Cooperative Milk Producers Federation Ltd.,Chamiers Road,Chennai-35... Petitioner in all the W.Ps.Vs.The Presiding Officer,II Additional Labour Court,Chennai... 1st respondent in all the W.Ps.M.Radhakrishnan.. R2 in Wps.22142/2006 & 22144/2006P.Sundararaj.. R2 in WP.22143/2006 & 22145/2006Writ Petitions filed under Article 226 of the Constitution ofIndia, all praying to issue Writs of Certiorarified Mandamus to callfor the records of the 1st respondent respectively in I.A.No.68 of 2005in C.P.No.209 of 2004; I.A.No.69 of 2005 in C.P.No.214 of 2004;I.A.No.70 of 2005 in C.P.No.455 of 2004 and I.A.No.71 of 2005 inC.P.No.456 of 2004, all dated 3.3.2006, on the file of the II Addl.Labour Court, Chennai and quash the same on the ground that Section 36(4) of the Industrial Disputes Act is ultra vires of Articles 14 and 19(1)(g) of the Constitution of India and direct the 1st respondent toallow the writ petitioner to engage an Advocate in the above saidC.Ps.,on the file of the II Addl. Labour Court, Chennai without theconsent of the 2nd respondent.* * *For petitioner inall the W.Ps.: Mr.P.GunarajFor R.2 inall the W.Ps.: Mr.G.MuthuFor R1: Court* * * https://hcservices.ecourts.gov.in/hcservices/ C O M M O N O R D E RWrit Petition Nos.20933 & 23606 of 2006 have been filed againstthe order of the Labour Court/first respondent made in I.A.No.117/2006in I.D.No.514/2001 dated 19.6.2006 and the other four writ petitionswere filed against the order in I.A.Nos. 68 to 71 of 2005 inC.P.Nos.209 of 2004, 214 of 2004, 455 of 2004 and 456 of 2004respectively to quash the identical order dated 03.3.2006 and also todeclare Section 36(4) of the Industrial Disputes Act, 1947 [for short,'I.D. Act'] as ultravires of Articles 14 and 19(1)(g) of theConstitution of India.2.It is seen from the records that the second respondent workmanengaged an authorised representative to defend him in I.D.No.514/2001,relating to his non-employment. The writ petitioners were representedby a counsel and they filed Vakalat as early as on 27.3.2002. After 55adjournments of the case, the workman filed an application inI.A.No.117/2006 objecting to the writ petitioner/management beingrepresented by a legal practitioner, taking advantage of section 36(4)of the I.D.Act. This was resisted by a counter affidavit filed by thewrit petitioner/management stating that the fact relating to theobjection has been raised after five years and after the pleadings werecompleted and when the witnesses were about to be cross-examined andit was also stated that once the workman did not object to theappearance of the legal practitioner on the side of the management,that would amount to implied consent and the workmen has sprung asurprise after five years and has taken a point that he is not grantingconsent for appearance of the legal practitioner. 3.The Labour Court technically approached the subject andsustained the objection raised by the workman by its order dated19.6.2006 solely on the ground that the workman did not give consent.The Labour Court seems to have relied on a catena of decisions ofvarious Courts on the question of consent. Even though the restrictionunder section 36(4) has been upheld by the Supreme Court, in thepresent case, we are only concerned with the application of the saidprovision in a given situation. When once the workman gives up hisright to object to the appearance of the counsel at the earliest stageand allowed the proceedings to go on merrily for a period of five yearsspanning over 55 adjournments as in the present case, there is noreason as to why such an issue should be allowed to be raised at thetail end of the proceedings. A speedy trial is a must in anyproceedings and the workmen has put spokes on the proceedings byraising frivolous objection at the tail end of the trial. Such anobjection can never be allowed and nowhere, Section 36 of the I.D. Acttalks about any written consent of a party to be obtained in the matterof another party engaging a legal practitioner. In a given situation,the hyper technical approach of the labour Court should be avoided. https://hcservices.ecourts.gov.in/hcservices/ Ultimately, the very creation of the Industrial adjudication is for anearly disposal of the claims of the workman. But in the present case,unfortunately, the matter relating to non-employment of the workman ispending for more than five years at the hands of the Labour Court. 4.Without concerning about the same, learned counsel for theworkman states that the objection relating to the consent forappearance can be raised at any time and he also relied upon thedecisions which were also cited before the Labour Court. There is not asingle decision of this court has been cited holding the view that theobjection relating to the consent could be raised at any stage of theproceedings. On the contrary, it must be held that if the workman wantsto exercise his right under section 36 of the I.D. Act so as to preventthe employer from engaging a lawyer, he should raise his objection atthe earliest point of time. In any event, this objection seems to bevery trivial considering the fact that often the workmen arerepresented by a leader of a trade union who are well versed in LabourLaws and many times they are also Advocates and if such objections areraised at their behest, the managements can also get a membership fromsome Chamber of Commerce and can indirectly engage legal practitioners,who are otherwise office bearers of such an organisation. The spiritof Section 36 of the I.D. Act has been practically defeated by the hideand seek game adopted by the parties before the Labour Court over theyears.5.The second respondents in W.P.Nos.22142 to 22145 of 2006 arethe workmen and they have filed Claim Petitions under Section 33 C (2)of the I.D. Act before the Labour Court, claiming certain amounts,which are due to them from the writ petitioner/Management. These ClaimPetitions were resisted by the writ petitioner/Management which is aState controlled Apex Milk Federation. 6. Pending Claim Petitions, the writ petitioner / Management hadfiled I.A.Nos.68 to 71 of 2005 under Section 36(4) of the I.D. Act,stating that the second respondents/workmen, though represented by aTrade Union Leader, he is actually a legal practitioner, practicing inHigh Court and other subordinate courts and since the writpetitioner/Management is defended by an Officer of the Federation, theyare in a disadvantageous position and therefore, they sought permissionto be represented by their Standing Counsel. This plea of the writpetitioner/Management was resisted by the workmen on ground that theOfficers of the Federation themselves are the law graduates andtherefore, no such permission need be accorded and that the Managementneed not be represented by a legal practitioner and that the requestitself has been made at the time of examination of P.W.1 in thedomestic enquiry. Reliance was also placed to certain decisions ofvarious Courts to drive home the said point. https://hcservices.ecourts.gov.in/hcservices/

7.The Labour court, by identical orders dated 03.3.2006,sustained the objection raised on the part of the workmen stating thatunless there is a consent given by the workmen, as a matter of right,the Management cannot have the services of a trained lawyer. As theissue raised in these two sets of writ petitions are the same, with theconsent of the parties, they were taken up together for final disposal.8.Article 22(1) of the Constitution of India deals withprotection against arrest and detention in certain cases. The saidarticle is extracted below:"22.Protection against arrest and detention in certaincases – (1) No person who is arrested shall be detainedin custody without being informed, as soon as may be, ofthe grounds for such arrest nor shall he be denied theright to consult, and to be defended by, a legalpractitioner of his choice."However, there is a restriction on this right in cases of persons whoare arrested and detained under any law providing for preventivedetention and the Constitution under Article 22(3)(b) makes it clearthat this right is not available to any detenu under preventivedetention.9.Section 11(4) of the National Security Act specifically barsthe representation of a detenu before the Advisory board with theassistance of a legal practitioner. But when this provision waschallenged, a Constitution Bench of the Supreme Court vide its decisionreported in 1982 (1) SCC 271 [A.K.Roy vs. Union of India andothers] considered the same and upheld the said provision on the groundthat the said section is in conformity with Article 22(3)(b) of theConstitution of India. However, even while upholding the same, inparagraph 93, the Supreme Court held as follows:"93. We must therefore hold, regretfully though,that the detenu has no right to appear through a legalpractitioner in the proceedings before the AdvisoryBoard. It is, however, necessary to add an importantcaveat. The reason behind the provisions contained inArticl3 22(3)(b) of the Constitution clearly is that alegal practitioner should not be permitted to appearbefore the Advisory Board for any party. TheConstitution does not contemplate that the detainingauthority or the government should have the facility ofappearing before the Advisory Board with the aid of alegal practitioner but that the said facility should bedenied to the detenu. In any case, that is not what theConstitution says and it would be wholly inappropriate to https://hcservices.ecourts.gov.in/hcservices/ read any such meaning into the provisions of Article 22.Permitting the detaining authority or the government toappear before the Advisory Board with the aid of a legalpractitioner or a legal adviser would be in breach ofArticle 14, if a similar facility is denied to thedetenu. We must therefore make it clear that if thedetaining authority or the government takes the aid of alegal practitioner or a legal adviser before the AdvisoryBoard, the detenu must be allowed the facility ofappearing before the Board through a legal practitioner.We are informed that officers of the government in theconcerned departments often appear before the Board andassist it with a view to justifying the detention orders.If that be so, we must clarify that the Boards should notpermit the authorities to do indirectly what they cannotdo directly; and no one should be enable to take shelterbehind the excuse that such officers are not "legalpractitioners" or legal advisers. Regard must be had tothe substance and not the form since, especially, inmatters like the proceedings of Advisory Boards,whosoever assistants or advises on facts or law must bedeemed to be in the position of a legal adviser. We dohope that Advisory Boards will take care to ensure thatthe provisions of Article 14 are not violated in anymanner in the proceedings before them."[Emphasis added]10.When a matter relating to service regulation came up beforethe Supreme Court, in its judgment reported in (1983) 1 SCC 124 [Boardof Trustees of the Port of Bombay vs. Dilipkumar Raghavendranath,Nadkarni and others], the Supreme Court had an occasion to consider theright of a legal practitioner to defend an employee in a domesticenquiry. In paragraphs 10 and 11, the Supreme court held as follows:"Para 10: ... The situation is where the employer has onhis pay-rolls labour officers, legal advisers - lawyersin the garb of employees - and they are appointedPresenting-cum-Prosecuting Officers and the delinquentemployee pitted against such legally trained personnelhas to defend himself. Now if the rules prescribed forsuch an enquiry did not place an embargo on the right ofthe delinquent employee to be represented by a legalpractitioner, the matter would be in the discretion ofthe Enquiry Officer whether looking to the nature ofcharges, the type of evidence and complex or simpleissues that may arise in the course of enquiry, thedelinquent employee in order to afford a reasonable https://hcservices.ecourts.gov.in/hcservices/ opportunity to defend himself should be permitted toappear through a legal practitioner. Why do we say so ?Let us recall the nature of enquiry, who held it, whereit is held and what is the atmosphere ? Domesticenquiry is claimed to be a managerial function. A manof the establishment dons the robe of a Judge. It isheld in the establishment office or a part of it. Canit even be compared to the adjudication by an impartialarbitrator or a court presided over by an unbiased judge? The Enquiry Officer combines the judge and prosecutorrolled into one. Witnesses are generally employees ofthe employer who directs an enquiry into misconduct.This is sufficient to raise serious apprehensions. Addto these uneven scales, the weight of legally trainedminds on behalf of employer simultaneously denying thatopportunity to delinquent employee. The weightedscales and tilted balance can only be partly restored ifthe delinquent is given the same legal assistance as theemployer enjoys. Justice must not only be done but mustseem to be done is not a euphemism for courts alone, itapplies with equal vigour an rigour to all those whomust be responsible for fair play in action. And aquasi-judicial tribunal cannot view the matter withequanimity on inequality of representation. ..."Para 11:We are faced with the situation where when theenquiry commenced, the rules neither provided forpermitting the delinquent employee to be represented byan advocate nor an embargo was placed on suchappearance. The rules were silent on this point. Butthe Chairman of the appellant while rejecting therequest of the 1st respondent seeking permission toappear through a legal practitioner simultaneouslyappointed M/s.R.K. Shetty and A.B. Chaudhuary, LegalAdviser and Junior Assistant Legal Adviser respectively,in the employment of the appellant as Presenting-cum-Prosecuting Officers. What does this signify ? Thenormal inference is that according to the Chairman ofthe appellant the issues that would arise in the enquirywere such complex issues involving intricate legalpropositions that the Enquiry Officer would need theassistance of Presenting-cum-Prosecuting Officers. Andlook at the array of law officers of the appellantappointed for this purpose. Now examine the approach ofthe Chairman. While he directed two of his law officersto conduct the enquiry as prosecutor, he simultaneouslyproceeds to deny such legal representation to thedelinquent employee, when he declined the permission to https://hcservices.ecourts.gov.in/hcservices/ the 1st respondent to appear through a legalpractitioner. Does this disclose a fair attitude orfair play in action ? Can one imagine how the scaleswere weighted and thereby tilted in favour of theprosecuting officer. In this enquiry the employer wouldbe represented by two legally trained minds at the costof the Port Trust while the 1st respondent was askedeither to fend for himself in person or have theassistance of another employee such as Nadkarni who isnot shown to be a legally trained person, but thedelinquent employee cannot engage a legal practitionerat his cost. Can this ensure a fair enquiry ? Theanswer is not far to seek. Apart from any legalproposition or formulation we would consider thisapproach as utterly unfair and unjust. More so inabsence of rules, the Chairman of the appellant was notprecluded from granting a request because the rules didnot enact an inhibition. Therefore, apart from generalpropositions, in the facts of this case, this enquirywould be a one-sided enquiry weighted against thedelinquent officer and would result in denial ofreasonable opportunity to defend himself. He was pittedagainst the two legally trained minds and one has tojust view the situation where a person not admitted tothe benefits of niceties of law is pitted against twolegally trained minds and then asked to fend forhimself. In such a situation, it does not require along argument to convince that the delinquent employeewas denied a reasonable opportunity to defend himselfand the conclusion arrived at would be in violation ofone of the essential principles of natural justice,namely, that a person against whom enquiry is held mustbe afforded a reasonable opportunity to defend himself."[Emphasis added]11.Further, in paragraph 13 of the very same judgment, theSupreme Court held as follows:".......... In fact one can go so as to say that theEnquiry Officer in order to be fair and just, wheneverhe finds the employer appointing legally trained personsas Presenting – cum Prosecuting officers must enquirefrom the delinquent employee before commencement ofenquiry whether he would like to take assistance of alegal practitioner. The option then is with thedelinquent employee. In this connection, we wouldlike to refer to a weighty observation on this pointwhere dispute constitutional inhibition this Court https://hcservices.ecourts.gov.in/hcservices/ conceded such a right. In A.K.Roy v. Union ofIndia at page 334 (Para 93) [1982 SCC (Cri) p.208], thelearned chief Justice while rejecting the contentionthat a detenu should be entitled to appear through alegal adviser before the Advisory Board observed thatArticle 22(3)(b) makes it clear that the legalpractitioner should not be permitted to appear beforeany Advisory Board for any party. While noting thisconstitutional mandate, the learned Chief Justiceproceeded to examine, what would be the effect if thedepartment is represented before the Advisory Board by alegally trained person. It was held that in such asituation despite the inhibition of Article 22(3)(b) thefair procedure as contemplated by Article 21 requiresthat a detenu be permitted to appear by a legalpractitioner."[Emphasis added]12.Therefore, it is clear that the line of decisions of the Apexcourt makes it clear that if there is an imbalance in the matter ofdefending proceedings before a quasi-judicial body, then it will resultin violation of Article 14 of the Constitution of India. Therefore,the authorities must permit the defence by a legal practitioner if oneparty has such a facility even if there was a constitutional / legalbar under a statute. Section 36(4) of the I.D. Act must thereforebe interpreted only in this context. 13.When a question came up before the Allahabad High Court, theHonourable Markandey Katju, J. (as he then was), vide his decisionreported in 1992 – 1 L.L.N. 972 [I.C.I. India Ltd. vs. Labour Court(IV) and another], held that Section 36(4) of the I.D. Act and asimilar provision i.e., 6-I (2) of the U.P. Industrial Disputes Actare ultravires of the Constitution. For holding Section 36(4) of theI.D. Act as unconstitutional, the learned Judge held as follows inparagraphs 3 to 6 of the said judgment, which are usefully extractedbelow:"...... In my opinion, S.6-1(2) of the Uttar Pradesh Actas well as S.36(4) of the Central Industrial DisputesAct are ultra vires Arts. 14 and 19(1)(g) of theConstitution of India, and are consequently illegal. Itis well known that industrial law is a complicated branchof law, and only persons who have knowledge of labourlaws, and also some practical experience, can properlyrepresent the parties before the Labour Court / Tribunal.The principles of labour laws are quite different fromthe principles of ordinary civil law, and what to say ofa lay man even an ordinary civil lawyer, unless he hasstudied labour law, cannot properly present the case https://hcservices.ecourts.gov.in/hcservices/ before the Labour Court / Tribunal. For example, it isan established principle in labour law that the LabourCourt has got powers which no civil Court has got,example to create contracts, and to enforce contracts ofpersonal service. Labour law is largely Judge-made law,and hence only a person who has studied this branch oflaw can properly represent a party before the LabourCourt. It has become a highly technical branch, andonly trained persons can properly assist the Labour Court/ Tribunal in the matter. Hence, to debar lawyersmerely because the opposite party objects is whollyunreasonable and arbitrary."Para 4: The argument that lawyers will cause delay is, inmy opinion, wholly frivolous. No doubt the aim ofindustrial adjudication is to expeditiously decide anindustrial dispute because industrial friction affectsnot only the employer and the workmen, but also thepublic at large, appearance of a lawyer will obstructexpeditious disposal. On the contrary a lawyer who istrained in labour law can quickly focus the attention ofthe Labour Court/Tribunal to the main points of thedispute, Labour Court can quickly dispose of the dispute.Hence, debarring of lawyers, even with the proviso that alawyer can appear if the other side gives consent, is inmy opinion, wholly arbitrary. As a matter of fact, it iswell known that this arbitrary provision in the twoIndustrial Disputes Act, viz., S.36(4) in the IndustrialDisputes and S.6-I(2) of the Uttar Pradesh IndustrialDisputes Act, has led to all sorts of subterfuges.Lawyers have had to resort to creation of artificialemployer's or employees' organisations of which theyclaim to be representatives, or appear as officers of theconcern. This invites all sorts of objections and muchtime of the Labour Court has to be wasted and devoted tofirst deciding this matter before proceeding to disposeof the dispute on merits. The provision, to my mind, isclearly arbitrary, and hence violative of Article 14 ofthe Constitution of India.Para 5: The procedure in the Labour Courts, thoughslightly different from those of the civil Court, isstill similar to it, and hence this requires study of theprocedure also, which an untrained person does not know.For example, certain provisions of the Civil ProcedureCode apply to the Labour Couts also, vide S.11(3) of theCentral Act. Similarly many other provisions in the https://hcservices.ecourts.gov.in/hcservices/ Industrial Disputes Act are similar to the provisions inthe Civil Procedure Code. It is, therefore, whollyunreasonable to expect a layman to present his caseproperly before the Labour Court without assistance of aspecialised lawyer.Para 6: In my opinion, the aforesaid provisions in boththe Central and Uttar Pradesh Acts are also violative ofArt.19(1)(g) of the Constitution of India since theyamount to unreasonable restriction on a lawyer's right topractise his profession. A whole class of labour lawyershas sprung up after enforcement of the IndustrialDisputes Act, and the aforesaid provisions amount tounreasonable restriction on their right to practise. Tosay that lawyers raise all sorts of technical objectionsto delay the disposal of the case, is to my mind, awholly frivolous objection. The Presiding Officer of theLabour Court/Tribunal can always conduct the proceedingsfirmly and in such a manner that no delay is caused, andhe can always reject any objection which he find to befrivolous or hypertechnical and which comes in the way ofspeedy disposal of the dispute."[Emphasis added]14.The learned Judge when confronted with the judgment of theSupreme Court reported in (1976) 1 L.L.J. 409 [ Paradip Port Trustvs. Their Workmen] held that the said judgment did not deal with thevires of Section 36(4) of the I.D. Act and hence, has no application indeciding the vires of the provision. In the present case, though inone set of writ petitions vires of Section 36(4) of the I.D. Act hasbeen raised but proper parties, i.e., the Union of India and State ofTamil Nadu, have not been made as parties and hence, I am unable totake up the Constitutionality of the said provision.15.While striking down Section 20-A of the Haryana Ceiling onLand Holdings Act which prohibited the lawyers from appearing beforeany authority or officer functioning under that Act and delivering theJudgment on behalf of the Full Bench of the Punjab and Haryana HighCourt in AIR 1977 Punjab & Haryana 221 [Smt.Jaswant Kaur and anothervs. The State of Haryana and another], Justice O.Chinnappa Reddy (ashe then was) quoted a poem to highlight the distrust shown on legalpractitioners' appearance by enacting such legislative exclusions. Inparagraph 18 of the said judgment, the following passage is found:"Para 18: ....... While it is not for us to question thelegislative wisdom in enacting S.20-A, we are unable todiscover any reason for the provision. Perhaps it isfounded on the unfounded distrust expressed by a wit: https://hcservices.ecourts.gov.in/hcservices/ "In the heels of the higgling lawyers,Too many slippery ifs and buts and howevers.Too much hereinbefore provided whereas,Too many doors to go in and out of,When the lawyers are throughWhat is there left Bob ?Can a mouse nibble at itAnd find enough to fasten a tooth in ?" Thus, saying so, the Full Bench of the Punjab and Haryana High Courtremoved the bar imposed on Advocates appearing before an authority orOfficer functioning under that Act.16.This view of the Full Bench of the Punjab and Haryana HighCourt was subsequently approved by the Supreme Court vide its decisionreported in (1987) 2 SCC 692 [H.S.Srinivasa Raghavachar vs. Stateof Karnataka and others] in which it was held that Section 48-A of theKarnataka Land Reforms Act, 1961 prohibiting legal practitioners fromappearing in a proceedings before the Tribunal constituted under thatAct as ultravires in the following lines:"Para 9: ... We adopt the reasoning of the High Court ofPunjab and Haryana and direct that Section 48(8) will notbe enforced so as to prevent advocates from appearingbefore the Tribunals functioning under the Act."Though in the decision of the Full Bench of the Punjab and Haryana HighCourt in the Haryana Land Ceiling case and the Supreme Court judgmentin the Karnataka Reforms Act, the issue of bar on advocates was decidedon the basis of the legislative competence of the State, these twodecisions are only quoted to show the trend of judicial decision makingin the matter of prohibition of legal practitioners' appearance beforequasi-judicial bodies.17.Per contra, the learned counsel appearing for the respondentsworkmen submitted that the Division Bench of the Delhi High Courtupheld the Constitution validity of Section 36 in its judgment reportedin 1988 – 1 – L.L.J. 135 [The Co-operative Store Ltd., New Delhi vs.O.P.Dwivedi P.O. Industrial Tribunal II and others]. The learnedcounsel for the workmen also drew the attention of this Court to thetwo judgments of this court interpreting Section 36(2) of the I.D. Act.The first judgment is the one reported in 1998 (1) L.L.N. 712[R.M.Duraiswamy vs. Labour Court, Salem and others] where thelearned Judge of this Court held as to the true scope and meaning ofSection 36(1) and 36(2) of the I.D. Act. But, however did notdecide the issue which is nhow before this Court. https://hcservices.ecourts.gov.in/hcservices/

18.The same view was followed by another learned Judge of thisCourt vide his judgment reported in 2001 (2) L.L.N. 1111 [Tamil NaduIndustrial Co-operative bank Ltd. vs. Presiding Officer, LabourCourt, Coimbatore and another]. Therefore, the issue raised in thiswrit petition has not directly come up for consideration before thisCourt. However, the learned counsel appearing for the workmensubmitted that several other High courts have considered this point andthis Court is bound to take note of the same and adopt the reasoningwhich are in favour of the workmen. 19.In this context, a reference was made to the followingjudgments for the proposition that the consent of the workman isessential for the Management to engage a lawyer and that consent cannottaken to be implied and the question of consent can be raised at anytime of the proceedings.(i)1998 (4) L.L.N. 908 [General Manager, National Bankfor Agricultural and Rural Development vs.Presiding Officer, Industrial Tribunal – I, Hyderaband and another] –Andhra Pradesh High Court.(ii)1999 (1) L.L.N. 983 [Prasar Bharathi BroadcastingCorporation of India vs. Suraj Pal Sharma andothers] – Delhi High Court.(iii)1999 (2) L.LN. 1070 [ Bhavani Art Handicrafts vs.Gulab Singh and others – Rajasthan High Court(iv)1999 (4) L.L.N. 290 [J.B. Transport Company andothers vs. Shankarlal @ Mavaram Nathuji Patel]– Gujarat High Court.(v)2003 (2) L.L.N. 773 [Lakshmi Engineering Industriesvs. State of Rajasthan and others] – RajasthanHigh Court.(vi)2004 Lab. I. C. 4035 [Management of Muttapore TeaEstate, Assam vs. Presiding Offcer, LabourCourt, Dibrugarh, Assam] – Gauhati High Court.(vii)2004 (2) SLR 665 [Grapes Synthetics Pvt. Ltd.vs. The Judge, Labour Court, Bhilwara] –Rajasthan High Court.(viii)2005 (105) FLR 300 [Chandrakanth and othersvs. All India Reporter Ltd.] - Bombay High Court– Nagpur Bench.(ix)2005 (105) FLR 256 [Brooke Bond Lipton India Ltd.vs. Brooke Bond Sramik Union] – Orissa HighCourt.(x)2004 – 1 CLR 163 [Hindustan Motor Ltd. vs.Presiding Officer and others] – Delhi High Court https://hcservices.ecourts.gov.in/hcservices/

20.However, in none of the above decisions, there is anyreference to the Constitution Bench judgment of the Supreme Court inA.K.Roy's case (cited supra) wherein even against a constitutionaland statutory bar, the Apex Court observed that if one side isrepresented by a legal practitioner, then the other side cannot bedenied as it is discriminatory and violative of Article 14 of theConstitution of India. Even the effect of subsequent decision of theSupreme Court in Bombay Port Trust case (cited supra) was notconsidered in its real spirit.21.Even though in the present petitions, the aggrieved party isManagement, we will have to consider the case in all angles. Inthese days, most of the cases before the Labour Court are all mattersrelating to non-employment of individual workman filed under Section 2A of the I.D. Act or in the alternative, claim petitions filed underSection 33 C (2) claiming certain amount as are due to the workmenfrom their employer and it is a common knowledge that most of thesecases are filed by individuals, who are having no affiliation to anytrade Union. In that context, if they are pitted against officersof any Management trained in law representing the Management, that willalso result in a disadvantageous position to the workmen. 22.Further, gone are the days, to presume that the entry of thelawyers will bring in technicalities to industrial adjudication, whichwill result in delay in disposal. Today, notwithstanding that thefinality is attached to the Awards of the Labour Courts, large numberof matters are taken to High Court, first, by way of writ proceedingsand thereafter, by intra-Court appeals and sometimes even to theSupreme Court. Also the field has become highly technical as pointedby the Allahabad High Court. Given a situation when manytechnicalities are involved in getting the dispute adjudicated, wecannot consider an individual workman or an untrained traderepresentative defending their case without legal assistance.Today, thanks to Article 39-A of the Constitution of India providingfor legal aid to poor and the Parliament has also enacted Legal AidServices Authority Act and such authorities having been created fromTaluk level to the level of Supreme Court, a workman can have theassistance of a lawyer of his choice, if those names are in the panelof the Legal Aid Services and such a legal assistance can be obtainedfree of cost. We should have a new look on the issue relating toSection 36(4) of the I.D. Act.23.In the present sets of writ petitions, it is seen that thoughthe workmen were technically represented by a leader of the Trade Unionto which they belong, but, however, the said representative (G.Muthu)is an Advocate practising before the High Court and the otherSubordinate Courts and who has rich experience in dealing with labourlaws for over 30 years. If the same benefit is denied to the https://hcservices.ecourts.gov.in/hcservices/ Management on the basis of the workmen not giving consent in terms ofSection 36(4) of the I.D. Act, certainly it will result in an imbalancebeing created in defending the case before a quasi-judicial body and itwill violate Article 14 of the Constitution of India. This type ofwithholding of consent by the workmen was never contemplated in a casewhere workmen have a trained lawyer whereas the Management (in thesecond set of cases, a Public Sector Management) is not being allowedto defend its case by a legal practitioner. This had resulted in ananamolous situation. In fact, in the garb of exercising their rightof withholding consent in the first set of cases, the workman and hisrepresentative waited for 55 adjournments and had allowed theManagement to be represented by a lawyer including filing vakalat atan earlier point of time and have raised this issue after a period offive years. 24.In the second set of cases involving the Milk Federation,which is an Apex Co-operative Society, they themselves were forced tofile an application seeking for permission of the Court to engage alawyer and the same was resisted by the workmen and theirrepresentative especially while deciding a claim petition filed underSection 33 C (2) of the I.D. Act which is only in the nature of anexecution petition.25.Therefore, for the aforesaid reasons, I hold that in the caseof the respondents / workmen engaging a trained reasoned lawyer in thegarb of a trade union leader, the writ petitioner Managements shouldnot be denied the very same right by relying upon Section 36(4) of theI.D. Act. This will result in grave injustice and will be inviolative of Article 14 of the Constitution of India in the light ofA.K.Roy's case and Bombay Port Trust case (cited supra). Therefore,the impugned orders passed by the first respondent Labour Courts dated03.3.2006 and 19.6.2006 are hereby set aside and it is directed thatthe respondent Managements are entitled to engage a legal practitionerof their own choice in the peculiar facts and circumstances of thecases. 26.Since the first set of cases relate to non-employment and thematter is held up for five years, the Presiding Officer, Labour Court,Chennai, is directed to dispose of the same within a period of threemonths from today, which is the period contemplated under theprovisions of the I.D. Act. In the second set of cases, as it is only aclaim petition, which is in the nature of an execution petition and itis also of the year 2004, the II Additional Labour Court, Chennai, isdirected to dispose of the same in accordance with law within a periodof three months from today. Both the workmen and Management in all thewrit petitions are directed to co-operate in getting on with the trialwithout putting any further spokes on the smooth progress of the trial. https://hcservices.ecourts.gov.in/hcservices/

27.The writ petitions are allowed with the above directions.Consequently, connected Miscellaneous Petitions will stand dismissedas unnecessary. However, there will be no order as to costs.Sd/Asst.Registrar/true copy/Sub Asst.Registrarvsi/rao/griTo1. The Presiding Officer, Principal Labour Court, Chennai.2.The Presiding Officer,II Additional Labour Court,Chennai.+1cc to Mr.S.Ramasubramanian Associates Sr 3796+1cc to M/s.T.S.Gopalan & Co., Advocate Sr 3540+6ccs Mr.V.R.Rajendran, Advocate Sr 3589 to 3594+4ccs to Mr.P.Gunaraj,Advocate Sr 3596 to 3599NTK (CO)km/3.2.W.P.Nos.20933 & 23606 of 2006andM.P.Nos.1 & 2 of 2006