Sailendra Narayan Lenka v. Sanofi India Ltd., Mumbai). In it challenge has been made against order
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK WP(C) No.26815 of 2023 Sailendra Narayan Lenka …. Petitioner -versus- Sanofi India Ltd., Mumbai and others …. Opposite Parties Advocates appeared in this case: For petitioner : Sailendra Narayan Lenka (In person) For Opposite parties : Mr. Goutam Mukherji, Sr. Advocate Mr. S. K. Das, Advocate (Amicus Curiae) WP(C) No.34660 of 2023 Biswojit Malla …. -versus- Petitioner Presiding Officer, Labour Court, Bhubaneswar and others …. Opposite Parties Advocates appeared in this case: For petitioner : Mr. Sashi Bhusan Jena, Advocate Mr. S.P. Jena, Advocate For Opposite parties : Mr. Satya Smruti Mohanty, Advocate Mr. S. K. Das, Advocate (Amicus Curiae) Mrs. Suman Pattanayak, AGA Page 1 of 26 WP(C) No.35117 of 2023 Biswojit Malla …. -versus- Petitioner Presiding Officer, Labour Court, Bhubaneswar and others …. Opposite Parties Advocates appeared in this case: For petitioner : Mr. Sashi Bhusan Jena, Advocate Mr. S.P. Jena, Advocate For Opposite parties : Mr. Satya Smruti Mohanty, Advocate Mr. S. K. Das, Advocate (Amicus Curiae) Mrs. Suman Pattanayak, AGA CORAM: THE HON’BLE MR. JUSTICE ARINDAM SINHA AND THE HON’BLE MR. JUSTICE M.S. SAHOO JUDGMENT ---------------------------------------------------------------------------------------------- Dates of hearing : 16th January, 2024, 22nd and 23rd April, 2024 Date of Judgment : 23rd April, 2024 ---------------------------------------------------------------------------------------------- ARINDAM SINHA, J. 1. Three writ petitions are before us for final hearing. First is, W.P.(C) no.26815 of 2023 (Sailendra Narayan Lenka v. Sanofi India Ltd., Mumbai). In it challenge has been made against order dated 1st August, 2023 of the WP(C) nos.26815, 34660 and 35117 of 2023 Page 2 of 26 Labour Court in I.D. Case no.10 of 2023, accepting Form-G filed by the management, for it being represented in said Court. 2. The tagged two writ petitions are by another workman of, we are told, a
Decision
different company/management. The writ petitions are W.P.(C) no.34660 of 2023 and W.P.(C) no.35117 of 2023 (Biswojit Malla v. Presiding Officer, Labour Court, BBSR and others). Petitioner-workman in the tagged writ petitions has challenged orders both dated 18th September, 2023 passed by the Labour Court respectively in I.D. Case no.40 of 2019 and I.D. Misc. Case no.127 of 2019. Said orders dated 18th September, 2023 are similar, if not identical with aforesaid impugned order dated 1st August, 2023. Hence, the writ petitions were tagged. 3. Mr. Mukherji, learned senior advocate appears on behalf of opposite parties (management) in W.P.(C) no.26815 of 2023 and files affidavit dated 20th April, 2024, on leave obtained and copy served to petitioner, appearing in person. Petitioner had objected to the management being represented before the Labour Court and, by the writ petition, is following through with his objection. Mrs. Pattanayak, learned advocate, Additional Government Advocate appears on behalf of opposite party no.1 in the tagged writ petitions. WP(C) nos.26815, 34660 and 35117 of 2023 Page 3 of 26 4. Mr. Mukherji relies on, inter alia, disclosure dated 21st March, 2024 in the affidavit filed today. In it is disclosed a letter written by one learned advocate of the Supreme Court and High Court of Judicature at Mumbai, addressed to, inter alia, Chief Executive Officer (CEO) and Managing Director (MD) of his client. This writ petition is mentioned in the letter, to support allegations of violation of fundamental rights at work by the company. He submits, information regarding this case having reached said learned advocate, must be presumed as had been given by petitioner himself. Such a person cannot be heard to object to his client being represented in the Labour Court. The writ petition be dismissed. Petitioner submits, he had nothing to do with writing of the letter. He has become aware of it now, in Court, on copy of the affidavit served. He submits, there be interference as prayed for in the writ petition. 5. Mr. Mukherji continues to submit. His client has only one office in the country, at Mumbai. A term of engagement of petitioner required him to seek adjudication of any dispute, in the competent Court at Mumbai. He having approached the Labour Court, here in Odisha, is all the more reason his client requires representation in said Court. Furthermore, petitioner had filed Form- G pursuant to rule-38 in Orissa Industrial Disputes Rules, 1959. Same stands disclosed at page 50 of disposed of WP(C) no.40518 of 2023 (M/s. Sanofi WP(C) nos.26815, 34660 and 35117 of 2023 Page 4 of 26 India Limited, Mumbai v. Sanofi Employees and Allied Workers Union, Ludhiana and others). Drawing attention to the document he demonstrates that petitioner thereby authorized the person mentioned, to represent him before Joint Labour Commissioner, Bhubaneswar. We deal with this submission here and now inasmuch as rule 38 requires a party to file Form-G regarding his representation in any proceeding under the Act. The form executed by petitioner, saying it was before Joint Labour Commissioner, Bhubaneswar cannot be taken as authorization for representation of petitioner before the Labour Court. Moreover, in event petitioner had authorized representation on his behalf, it would only be on consent of the management and leave of the Court, as things stand. 6. Mr. Mukherji submits, the Supreme Court by its judgment in Paradip Port Trust v. Their Workmen, reported in (1977) 2 SCC 339 did not deal with vires challenge to section 36(4) in Industrial Disputes Act, 1947. View expressed by the learned single Judge on judgment dated 21st April, 1992 in C.M.W.P. no.6116 of 1991 (I.C.I. India Ltd. v. Presiding Officer, Labour Court (IV) and others was, inter alia, section 36(4) is unconstitutional. It was held to be void. Therefore, the view was independent of Paradip Port Trust (supra). On the view taken, it held the field. For the proposition he relies on judgment of the Supreme Court in Kusum Ingots and Alloys Ltd. WP(C) nos.26815, 34660 and 35117 of 2023 Page 5 of 26 v. Union of India reported in (2004) 6 SCC 254, paragraph 22. The paragraph is reproduced below. “22. The court must have the requisite territorial jurisdiction. An order passed on writ petition questioning the constitutionality of a Parliamentary Act, whether interim or final keeping in view the provisions contained in Clause (2) of Article 226 of the Constitution of India, will have effect throughout the territory of India subject of course to the applicability of the Act.” 7. Above position on unconstitutionality of the provision was not considered nor noticed, when the Supreme Court directed reference in ThyssenKrupp Industries India Private Limited v. Suresh Maruti Chougule, reported in (2021) 15 SCC, 769, to a larger Bench of said Court. Reproduced below is paragraph 11 (Manupatra print) directing the reference. “11. The learned Senior Counsel for the appellants and the Bar Council of India submitted that the Advocates Act is a special Act and that the ID Act is a general Act. According to them, Section 30 of the Advocates Act overrides Section 34 of the ID Act. As stated earlier, this Court in Paradip Port Trust, was of the opinion that the ID Act is a special piece of legislation and the Advocates Act is a general piece of legislation with regard to the subject matter of appearance of lawyers before the labour courts. In the context of matters pertaining to industrial disputes and the mechanism provided WP(C) nos.26815, 34660 and 35117 of 2023 Page 6 of 26 for resolution of the disputes, we have no doubt that the ID Act is a special piece of legislation. However, whether the Advocates Act is a general piece of legislation with respect to the subject matter of appearance of lawyers in labour courts, needs a detailed consideration. Section 30 of the Advocates Act confers a right on an advocate to practice before any Tribunal. Applying the test laid down by this court in Ashoka Marketing, it is doubtful whether the Advocates Act can be termed a general piece of legislation in respect of the subject matter in dispute. As the judgement in Paradip Port Trust is by a Bench of 3 judges, and taking into account the importance of the issues raised in these cases, we are of the considered opinion that these matters be referred to a larger Bench.” (emphasis supplied) He also draws attention to paragraph 13 in the order to point out that the Supreme Court directed appellant before it (the management) be permitted representation by advocate. As such ThyssenKrupp (supra) covers the situation for upholding impugned order. Mr. Mukherji submits further, the reference was not answered by the larger Bench on order dated 4th October, 2023 in, inter alia, Civil Appeal no.6586 of 2019 (ThyssenKrupp Industries India Private Limited and others v. Suresh Maruti Chougule and others). In the circumstances, the unconstitutionality viewed by the learned single Judge still holds the field. As a consequence, there can be no WP(C) nos.26815, 34660 and 35117 of 2023 Page 7 of 26 impediment for his client being represented in the Labour Court. Impugned order, therefore, is not required to be interfered with. 8. Without prejudice to his above contention regarding the view on unconstitutionality holding the field, Mr. Mukherji submits, his further contention is that the view is good. It is his contention in defence to the challenge against impugned order. It be considered by us. He draws attention to section 30 in Advocates Act, 1961. The provision is reproduced below. “30. Right of advocates to practise.-- Subject to provisions of this Act, every advocate whose name is entered in the [State roll] shall be entitled as of right to practise throughout the territories to which this Act extends,-- (i)in all Courts including the Supreme Court; (ii)before any tribunal or person legally authorised to take evidence; and (iii)before any other authority or person before whom such advocate is by or under any law for the time being in force entitled to practise.” An advocate has right to practise, inter alia, in all Courts and before any tribunal or person legally authorised to take evidence. According to him, the Labour Court would come within clause (i) under section 13. In any event, an advocate’s right to practise before any tribunal would otherwise cover the Labour Court. This is a statutory right of an advocate, to pursue his WP(C) nos.26815, 34660 and 35117 of 2023 Page 8 of 26 profession. He refers to article 19(1)(g) in the Constitution of India to submit, a fundamental right of a person is, inter alia, to practise any profession. Thus, the statutory right given to an advocate under the Advocates Act is in pursuance of the article and is his fundamental right. Any impediment would be an infringement of the fundamental right. Section 36(4) in the Act of 1947 is an impediment by the restriction imposed, on advocates’ right to practise in the Labour Court/Tribunal dealing with industrial disputes. The provision is unconstitutional as violative of article 19(1)(g). More so because sub-article (2) in article 13 prohibits the State from making any law, which takes away or abridges the rights conferred by part-III in the Constitution and accordingly, section 36(4) in the Act of 1947 must be declared void by this Court as well. 9. He reiterates, neither in Paradip Port Trust (supra) was there any vires challenge regarding section 36(4) nor in the reference directed by ThyssenKrupp (supra) and according to him, not answered by order dated 4th October, 2023 (supra). He takes us through the order to submit, the reference was said to be answered simply on reiteration of paragraphs 16, 23 and 24 in Paradip Port Trust (supra). He then draws attention to that part in the order which deals with WP(C) no.1169 of 2018 to submit, by said writ petition, vires challenge was laid before the Supreme Court but dismissed WP(C) nos.26815, 34660 and 35117 of 2023 Page 9 of 26 thereby. The dismissal was not on adjudication of the challenge. We reproduce below the part relied upon in order dated 4th October, 2023 (supra). “W.P.(C) No.1169/2018 Challenge has been laid to the provisions of Section 36(4) of the Industrial Disputes Act, 1947. We are conscious of the fact that the judgment in Paradip Port Trust, Paradip’s case (supra) did not consider the aspect of constitutional validity, but then in the separate order passed today in C.A. No.6586/2019 we have dealt with that aspect to some extent. The substratum of the issue has been discussed in Paradip Port Trust, Paradip’s case (supra) and merely because it is sought to be given a colour of a constitutional challenge to a provision makes no difference. We may also say that the constitutional challenge has to be examined within a very narrow compass and certainly those parameters are not satisfied. The writ petition is accordingly dismissed.” (emphasis supplied) 10. Mr. Mukherji takes us back to ThyssenKrupp (supra), paragraph-12 (Manupatra print). He submits, the Supreme Court recorded fair submission made on behalf of the management that they will bear expenses of the lawyer, who can be engaged by the workman provided appellant is permitted WP(C) nos.26815, 34660 and 35117 of 2023 Page 10 of 26 to engage an advocate and accordingly by paragraph-13 (Manupatra print), the workman was given liberty to engage advocate on direction that fee of said advocate shall be paid by the management. In this connection he refers to view taken by a learned single Judge of Delhi High Court on judgment dated 24th August, 2021 in W.P.(C) no.8929 of 2021 (A and B Fashions Pvt. Ltd. v. Ramesh Kumar and others), paragraph-17, elaborating on ThyssenKrupp (supra). The paragraph is reproduced below. “17. Be that as it may, any litigation before the Labour Court has various stages. Initially, the pleadings and other procedural formalities are completed between the parties. At that stage, the management and the workmen may choose not to expend their resources by engaging Advocates. However, as the matter reaches trial, it would be inapt to say that the management or the workmen would not be entitled to engage Advocates or legal practitioners to represent them, in accordance with law. If the Management wishes to be represented by a legal practitioner, the Court can consider the question of whether the workman has given consent or not, whether impliedly or otherwise. The Court, upon finding consent, may also award litigation expenses to permit the legal practitioner to appear for the Management. This is clearly the spirit of the judgment in Thyssen Krupp Industries India Private Limited (supra). WP(C) nos.26815, 34660 and 35117 of 2023 (emphasis supplied) Page 11 of 26 11. To conclude Mr. Mukherji submits, no interference is warranted since the labour Court correctly relied upon view taken by a Division Bench of this Court on judgment dated 13th May, 2022 in W.P.(C) no.20007 of 2013 (M/s. Orissa Forest Development Corporation Limited v. Minati Behera). Following Kusum Ingots (supra) the Division Bench accepted the view on unconstitutionality. He reiterates, order dated 4th October, 2023 (supra) did not consider constitutionality of the provision and therefore cannot be relied upon by petitioner to seek interference. 12. The two tagged writ petitions are W.P.(C) no.35117 of 2023 and W.P.(C) no.34660 of 2023. Mr. S.P. Jena, learned advocate appears on behalf of petitioner (workman) in both the writ petitions. His client has impugned identical orders of the Labour Court, allowing the management to have representation before it. 13. Mr. Jena relies firstly on view taken by a Division Bench of the Madras High Court in Rangaswamy v. Industrial Tribunal reported in 67 Law Weekly Part-2 54 and also AIR 1954 Madras 553 to submit, said Court held the provision in section 36(4) to be valid and not an unconstitutional denial of right of an advocate to practise his profession or discriminatory and repugnant to article 14 in the Constitution. He then relies on view taken by a learned single Judge in the High Court of Allahabad on judgment dated 22nd WP(C) nos.26815, 34660 and 35117 of 2023 Page 12 of 26 December, 2015 in V.K. Gupta v. Presiding Officer, Central Government Industrial Tribunal -cum- Labour Court, Kanpur reported in AIR 2016 All 23, paragraphs 29 to 32 and 39 to 44 (SCC Online print). He submits, constitutional validity of the provision was upheld. He lays special emphasis on paragraph-31 (SCC Online print), by which the learned Judge differed with view taken in I.C.I. India Ltd. (supra). In the circumstances, he submits, there be interference with impugned orders because his client did not and does not consent to the management being represented by legal practitioner. 14. Mr. Mohanty, learned advocate appears on behalf of the management against Mr. Jena’s client. He adopts submissions made by Mr. Mukherji. He adds, view taken in I.C.I. India Ltd. (supra) was upon noticing Paradip Port Trust (supra). He relies on paragraph-7 in I.C.I. India Ltd. (supra) (Manupatra print), reproduced below. “7. My attention has been invited to the decision of the Hon’ble Supreme Court in Paradip Port Trust v. Their Workmen MANU/SC/0309/1976 : AIR 1977 SC 36. This authority has no application because the vires of Section 36 (4) has not been decided in this case. He submits, the learned single Judge found subterfuge, in lawyers resorting to create artificial employers or employees organizations, of which they claim to be the representatives or officers, to enable their appearance before the WP(C) nos.26815, 34660 and 35117 of 2023 Page 13 of 26 Labour Court/Tribunal, obviously with reference to Paradip Port Trust (supra). As such, this Court should not interfere with impugned order, tantamounting to upholding or restoring constitutionality of the provision. 15. Drawing attention to this Court’s view in Minati Behera (supra) he demonstrates that the Bench was confronted with situation, where the management had objected to the workman being represented. In that case the workman had engaged assistance because she said she had no knowledge about the law and procedure of the Court, whereas authorized representative of the management happened to be a law knowing person. The coordinate Bench relied on Kusum Ingots (supra) to hold that earlier view taken by the learned single Judge in I.C.I. India Ltd. (supra) would apply to the State (Odisha) and accordingly, without doubt, said view of the learned single Judge would have full effect/application. In the circumstances, the Bench had no hesitation in coming to conclusion that the management cannot take the plea of sub-section (4) in section 36, to challenge impugned therein order because as per view taken in I.C.I. India Ltd. (supra), the provision already stood declared unconstitutional. He submits, it follows that whichever way the provision is looked at, either from point of view of the workman or from that of the management, consistent position in law prevailing after I.C.I. India Ltd. (supra) is that the provision is unconstitutional. This was not WP(C) nos.26815, 34660 and 35117 of 2023 Page 14 of 26 noticed by the Supreme Court in answering the reference on order dated 4th October, 2023 (supra). 16. Mr. Das, learned advocate, Amicus Curiae appears and submits, the respective managements in opposing the writ petitions did not plead the vires challenge, as defence or otherwise. He submits further, we have already correctly taken view that Form-G executed by petitioner [workman in WP(C) no.26815 of 2023] cannot be deemed to be his consent, to estopp him from challenging impugned order because the form was executed for representation before the Joint Labour Commissioner and not the Labour Court. Lastly he submits, the contention regarding right to practise by section 30 in the Act of 1961 was dealt with in Paradip Port Trust (supra) and order dated 4th October, 2023 (supra). 17. We are on notice that specific roster assignment regarding vires challenge is with the first Division Bench of this Court. The workmen, who are petitioners before us, have challenged impugned orders of the Labour Court, by which permission was given to the respective managements for them being represented before it. Amicus Curiae has pointed out that the respective managements did not plead the point in their counters. The contention of unconstitutionality of section 36(4) in the Act of 1947 has come in defence, as argument from the Bar on a point of law. The contention WP(C) nos.26815, 34660 and 35117 of 2023 Page 15 of 26 regarding unconstitutionality, argued as a defence, is not a challenge before us to be adjudicated. Having said so we must proceed to adjudicate. In event we find substance in the point, the writ petitions will be released. 18. We reproduce below the relevant provisions. Firstly, sub-section (4) in section 36 in the Act of 1947. “36. ... .... .... (4) In any proceeding before a Labour Court, Tribunal or National Tribunal, a party to a dispute may be represented by a legal practitioner with the consent of the other parties to the proceedings and with the leave of the Labor Court, Tribunal or National Tribunal, as the case may be.” (emphasis supplied) Also reproduced below is section 30 in Advocates Act, 1961. “30. Right of advocates to practise.—Subject to provisions of this Act, every advocate whose name is entered in the State roll shall be entitled as of right to practise throughout the territories to which this Act extends,-- (i) in all Courts including the Supreme Court; (ii) before any tribunal or person legally authorized to take evidence; and (iii) before any other authority or person before whom such advocate is by or under any law for the time being in force entitled to practise.” WP(C) nos.26815, 34660 and 35117 of 2023 Page 16 of 26 19. Having gone through above reproduced provisions we have also perused Paradip Port Trust (supra). The larger Bench of the Supreme Court, by the judgment, made a distinction regarding operation of the restriction by sub-section (4) in section 36. The distinction was that the restriction is not on the advocates/lawyers but the parties. As such, no question can arise or be raised by or on behalf of an advocate, on entitlement to practise in the Labour Court/Tribunal and by the restriction his/her right to profession, a fundamental right, stood infringed. We repeat, the distinction is that a party before a labour Court/Tribunal is restricted in obtaining representation, the restriction being consent had from the other party and leave of the Court. In this connection, we reproduce below paragraphs 7 and twice numbered paragraph 24 (Manupatra print) from Paradip Port Trust (supra). “7. Industrial law in India did not commence with a show of cold shoulder to lawyers as such. There was an unimpeded entrance of legal practitioners to adjudication halls before tribunals when the Act first came into force on April 1, 1947. Three years later when the Labour Appellate Tribunals were constituted under the Industrial Disputes (Appellate Tribunal) Act 1950, a restriction was imposed on the parties in engagement of legal practitioners before the Appellate Tribunal without consent of the parties and leave of the Tribunal. When WP(C) nos.26815, 34660 and 35117 of 2023 Page 17 of 26 this was introduced in the appellate forum, the same restriction was imposed for the first time upon representation of parties by legal practitioners before the Industrial Tribunals as well [see Section 34 of the Industrial Disputes (Appellate Tribunal) Act, 1950]. In view of the recent thinking in the matter of preferring legal aid to the poor and weaker Sections of the people it may even be possible that the conditional embargo under Section 36(4) maybe lifted or its rigour considerably reduced by leaving the matter to the Tribunals’ permission as has been the case under the English law.” xxx xxx xxx xxx xxx xxx “24. Second, the matter is not to be viewed from the point of view of legal practitioners but from that of the employer and workmen who are the principal contestants in an Industrial Disputes. It is only when a party engages a legal practitioner as such that the latter is enabled to enter appearance before courts or tribunals. Here, under the Act, the restriction is upon a party as such and the occasion to consider the right of the legal practitioner may not arise.” (emphasis supplied) 20. By ThyssenKrupp Industries (supra) a Division Bench of the Supreme Court felt a question did arise because in Paradip Port Trust (supra), Advocates Act, 1961 was referred to as a general piece of legislation with regard to subject matter of appearance of lawyers before all Courts, WP(C) nos.26815, 34660 and 35117 of 2023 Page 18 of 26 Tribunals and other authorities. Relying on another judgment of said Court in Asoka Marketing v. Punjab National Bank, reported in (1990) 4 SCC 406, the Bench said that applying the test laid down by said judgment, it is doubtful whether the Advocates Act can be termed a general piece of legislation and as such the direction for reference. 21. By order dated 4th October, 2023 (supra) the larger Bench answered the reference, contended by the managements as on reiterating view taken in Paradip Port Trust (supra). Necessarily the reiteration was because, by Paradip Port Trust (supra), aforesaid distinction had been made regarding the restriction imposed on the party and not on advocates/lawyers. In the circumstances, contention based on section 30 in Advocates Act, 1961, leading to reference of the question on the legislation referred to as general, was obviously thought as not required to be dealt with specifically. The controversy giving rise to the question, resulting in the direction for reference, was not whether the Advocates Act is a special or a general piece of legislation. The controversy was regarding section 36(4) in Industrial Disputes Act, 1947, if placed a restriction on operation of section 30 in Advocates Act, 1961. Challenge before the Supreme Court was contention of appellants that section 30 of the Advocates Act overrides section 34 of the Industrial Disputes Act. In event it was found by the larger Bench that such WP(C) nos.26815, 34660 and 35117 of 2023 Page 19 of 26 restriction had been placed, it would have been necessary to specifically answer the question, as to which Act would prevail over the other or conversely, which one would give way. In the circumstances, we hold on the contention raised in defence by the respective managements that the reference had been answered by order dated 4th October, 2023 (supra) and it was a complete answer. Here we may add, there was elaboration by the learned single Judge in A and B Fashions Pvt. Ltd. (supra), of the reference order by ThyssenKrupp (supra) to say, inter alia, sprit of the latter is, the (Labour) Court, upon finding consent, may also award litigation expenses to permit legal practitioner to appear. This was in reference to paragraph-12 and following direction paragraph (Manupatra print), in ThyssenKrupp (supra). Paragraph-12 is reproduced below. “12. Mr. B.H. Marlapalle, learned senior counsel appearing for the workman in the appeal arising out of SLP (Civil) No.12632 of 2018 submitted that the reference has been pending in the Labour Court since 2009. In spite of there being no interim order by the High Court, the Labour Court did not proceed with the reference. There is an interim order passed by this Court staying the proceedings before the Labour Court on 13th November, 2018. He submitted that notwithstanding the pendency of the matter before this Court, the reference No.IDA No.121 of 2016 may be decided. Mr. J.P. Cama, WP(C) nos.26815, 34660 and 35117 of 2023 Page 20 of 26 learned senior counsel appearing for the Management fairly submitted that they will bear the expenses of the lawyer who can be engaged by the workmen provided that the appellant is permitted to engage an advocate.” (emphasis supplied) With respect we are unable to accept the view regarding sprit of ThyssenKrupp (supra). It was simply and merely record of a submission made to the Supreme Court. Direction in the following paragraph was not on adjudication as otherwise there would have been no reference. Furthermore, one party paying fees for counsel to be engaged by the other, to obtain consent for the paying party to be represented, if to be taken as a view on procedure of law declared then it may give rise to allegation of conflict of interest in event the party having his counsel paid for by the other, is unsuccessful in the proceeding. 22. We must also deal with contention regarding the provision having been held to be unconstitutional by I.C.I. India Ltd. (supra) and said to be holding the field since then. We reproduce below paragraph-4 (Manupatra print) from the judgment. “4. The argument that lawyers will cause, delay is, in my opinion, wholly frivolous. No doubt the aim of industrial adjudication is to expeditiously decide an industrial dispute because industrial friction affects not only the WP(C) nos.26815, 34660 and 35117 of 2023 Page 21 of 26 employer and the workmen, but also the public at large, but it is not understandable how the appearance of a lawyer will obstruct expeditious disposal. On the contrary a lawyer who is trained in labour law can quickly focus the attention of the Labour Court/Tribunal to the main points of the dispute, and place the relevant case law so that the Labour Court can quickly dispose of the dispute. Hence, debarring of lawyers, even with the proviso that a lawyer can appear if the other side gives consent, is in my opinion, wholly arbitrary. As a matter of fact, it is well known that this arbitrary provision in the two Industrial Disputes; Act, viz. Section 36(4) in the Industrial Disputes Act and Section 6-I(2) of the U.P. Industrial Disputes Act, has led to all sorts of subterfuges. Lawyers have had to resort to creation of artificial employer’s or employees’ organizations of which they claim to be representatives, or appear as officers of the concern. This invites all sorts of objections and much time of the labour Court has to be wasted and devoted to first deciding this matter before proceeding to dispose of the dispute on merits. The provision to my mind is clearly arbitrary, and hence violative of Article 14 of the Constitution of India.” (emphasis supplied) It is apparent from above extract that reason attributed for holding the provision to be unconstitutional was view of the learned Judge that a lawyer, WP(C) nos.26815, 34660 and 35117 of 2023 Page 22 of 26 who is trained in labour law, can quickly focus attention of the Labour Court/ Tribunal to the main points of dispute and place relevant case law so that the Labour Court can quickly dispose of the dispute. Restricting appearance by lawyers was thus found to be arbitrary. This reason coupled with further finding that the viewed arbitrary provision had led to all sorts of subterfuges were basis for holding the provision to be unconstitutional. Article 14 was invoked to hold as such. Article 19(1)(g) was not invoked. 23. For better understanding the position we have view of the Division Bench of Madras High Court in Rangaswamy (supra). It had affirmed constitutionality of the provision, albeit from point of view of provisions in Bar Councils Act, 1926 but also, article 14. The Bench said, inter alia, answer to the contention of violation of article 14 is, the article does not forbid classification provided it rests on some difference relevant to the subject. It cannot be assailed as repugnant to it. The Bench said, this is so well settled that there is no need to refer to authorities on the subject. The question to be decided is whether any ground exists for treating appearance before tribunals differently from appearance before Courts. The Bench said, there can be little difficulty in answering the question. We reproduce below a passage from paragraph-7 (AIR report). “The courts as we have them, are governed by certain rules in the matter of procedure, reception of evidence WP(C) nos.26815, 34660 and 35117 of 2023 Page 23 of 26 and so forth which have their roots in age long traditions. The tribunals are comparatively recent institutions which owe their existence to statutes and the principles by which they are governed are not identical with those which courts observe. The matters which they have got to decide may be purely administrative in which case, it is conceded, there is no question of appearance by lawyers. Even when the dispute is of a character which involves the exercise of judicial functions, the tribunals would be more in the position of arbitral bodies, not bound by strict rules of procedure or of evidence. With reference to such tribunal, the Legislature which establishes them has also felt itself free to lay down the procedure which they should follow in the hearing of the disputes and it may generally be stated that subject to rules of natural justice they enjoy in the matter of procedure and trial a freedom which the courts do not possess. Thus, there are essential differences between courts and tribunals and the enactment of a special rule with reference to tribunals is, therefore, not open to attack as discriminatory under Article 14.” (emphasis supplied) The Division Bench went on to say, there is considerable force in contention made that the section, as it stands, may result in hardship. It went on to further say, this, however, is a matter for the Legislature to consider and not a ground for holding that the section is unconstitutional, as it makes no Page 24 of 26 WP(C) nos.26815, 34660 and 35117 of 2023 distinction between the employers and the employees. There is, therefore, no discrimination. This view was not considered by the learned single Judge and as such per incurium. We may also point out, the Division Bench expressed its view prior to Paradip Port Trust (supra) making the distinction to imply, cause of action of advocates against the restriction was not had. Mr. Jena had also relied on V.K. Gupta (supra) in a learned single Judge not having accepted view taken by I.C.I. India Ltd. (supra). It will be sufficient for us to reproduce paragraph-43 (SCC online print). “43. Article 19(1)(g) guarantees right to practise any profession or to carry any occupation, trade or business. This right of the petitioner is not infringed or affected by the impugned order which only debars him from appearing in a particular case that too for non- fulfillment of the statutory conditions. It does not prohibit the petitioner from practicing Law anywhere not even before the Tribunal.” 24. Facts of the case are as would appear from order sheets of the Labour Court. No consent was obtained by the respective managements, from their workmen, for them being represented in the Labour Court. The order sheets also do not give indication that on notice of the managements’ intention of being represented, their workmen raised delayed objection. Impugned orders proceed on the basis of following Minati Behera (supra), at a time when the WP(C) nos.26815, 34660 and 35117 of 2023 Page 25 of 26 Supreme Court by its larger Bench had not yet answered the reference. The coordinate Bench was not called upon to test the view. I.C.I. India Ltd. (supra) was view taken by a learned single Judge, per incurium and anyway not binding on us. 25. We are in respectful agreement with the Madras view. There is no discrimination, thus no violation of article 14 by section 36(4) in the Act of 1947. It applies to all parties to an industrial dispute, up for adjudication before a Labour Court/Tribunal. The provision also does not cause violation of article 19(1) (g), in respect of an advocate’s right to practice under section 30 in the Act of 1961. We take our view, inter alia, by reason of subsequent answer given by the Supreme Court. Minati Behera (supra) stands distinguished. 26. We appreciate assistance rendered by Amicus Curiae, Mr. Das. We believe office of the Advocate General will cause the fee to be paid to him. 27. Impugned orders in the writ petitions are set aside and quashed. The writ petitions are accordingly disposed of. Signature Not Verified Digitally Signed Signed by: SISIR KUMAR SETHI Designation: Personal Assistant Reason: Authentication Location: ORISSA HIGH COURT Date: 29-Apr-2024 11:15:10 Sks WP(C) nos.26815, 34660 and 35117 of 2023 ( Arindam Sinha ) Judge ( M.S. Sahoo ) Judge Page 26 of 26