Yep. So here I am finally starting a new epoch in my not so happening Life. Am finally entering into the mystical and magical realms of the blogosphere. And what a platform to share my blog with all my peers and contemporaries!

I say random ramblings because I'll randomly try to put things here, will scribble a lot of senseless rubbish with some senseful proses in between. Well if you are a good researcher you will get the gist of it! Hope so!

Disillusioned I say because I have no idea where I am going with my legal or for that matter my personal life. Have tried it all, living my personal life at the expense of my legal life, flunking exams, not interning, booze,fag,bikes and of course girls. 

Have tried to balance both which sadly resulted in a lethargic monotonous schedule which I couldn't keep up with. Have tried to kill my personal life, have slogged for days and days surviving on coffee and chocolate cookies, have strained my eyes staring to the computer screen that at one time I was sure my eyeballs were either going to burst or pop out. Have researched and read and drafted arguments related to Torts, Constitituional Law, IPR, that for quite some time I was under the impression that I had mastered atleast one of the subjects, which very well the judge couldn't agree less on. So I have truly and in all it's entirety failed inl all the three lifestyles. 

And believe me I've tried and tasted it all. Those uncalled for fights, those 17 shots of the not so soothing liquid, the throbbing pain, the disprin and coffee which followed later, to the Best researcher, orator, to being a normal student with no purpose whatsoever.

So where do I stand right now? well let's see. Three and a half years down the drain, current status- wandering, scribbling commenting on blogs when after around five hours have got an exam to write. But that's not the point I want to make.

 I have no idea what I'm going to do with my life. Sure will get a job, no issues with that, my C.V. and contacts are not that bad.  But what will the job change? I'll still keep on lamenting & ruminating & brooding about my life. Is this what I want from my life? No.

So if you do not won't to end up like me or like some other loser. Go get your Life straight. Figure out what you want to do with your life. Intern, research, try to find the field in which you are interested and once you find it don't let it go. 

Do what your heart says, but never backtrack. You might fail at times but remember the success achieved will bring only more happiness. 

As much as I wish to continue this rambling I will have to call it off, the phone is continuously pestering me, will have to take the call.

Will continue my ramblings later based on your views, reviews. Just hope that this piece doesn't get lost in the vast blogosphere! 

Cheers!

Q. Are internships helpful in getting a PPO. How do I go about it?

Ans.  Yes they are. Why...I'll tell you later. First get your hands on the PPO thingy.

GETTING A PPO

1.) You have to be in the 4th/ 5th year for that. (If you are in the 5 year course that is).

2.) Then, have a portfolio which is perfectly aligned to the place you are interning.

A 5th year student, interning at Anand and Anand (a leading IP firm) and expecting a PPO should have done at least couple of internships in IP boutiques, presented/ published a dozen papers on the subject and also completed some good add-on courses on IP.

3.) So you are at Anand and Anand. A teenie-weenie 4th year student. Now impress the boss you are working with.

Impress him with your research skills. Pop up the best caselaw for the best law which applies to the case.

Strain your mental sinews. Come up with brilliant analysis. Impress him/her.

Come up with brilliant plaints, legal opinions. Show-off your analytical and writing skills. Impress.

Be in your best formal clothes, best smile, neatest hairdo and shiniest shoes. Impress him/her.

Look like a studious student. Don’t be the dude.

Be the first to arrive. Leave last. Slog like anything. Interact with the associates at lunch. Impress everybody.

Ask great questions. About his/her lawyerly life and about life in general. About what coffee he likes.

Be good with the coffee. Impress.

Be a legal beagle. Wag your tail, always. Sniff for opportunities. Impress.

Be a legal eagle. Observe keenly. Show the splendour in the flight. Impress.



WHY INTERNSHIPS?


1.) Internships are like an add-on course you do.
For example you do a cyber law course from Asian School of Cyber Laws and learn about cyber law in theory (though it may have many 'real life' examples). On the other hand or the same hand (doesn't matter...depends how dexterous you are in using your hands) interning under a stud cyber law lawyer will provide you with a decent practical knowledge of the subject.

So a good 4 week internship, in a way, replicates doing a 100 hour practical course on the subject. (Note the word good. Most internships aren't good). Ah! Ha!

2.) Internships tell that you have an inherent interest in the subject.
In first year, for my NGO internship I intern at NABARD. Then I do internships only in legal departments of banks and niche law firms practicing banking law. The recruiter can bank upon the fact that I have an interest in Banking Law. (PJ...I know).

3.) Every skill gets chiselled. 
Work ethics, practical skills, interpersonal skills, communication skills, THIS skill and THAT skill.


PS- Ideally, one should intern to explore and not to pigeonhole oneself. Coz when the cat comes, the pigeon closes its eyes. He is gobbled up. The pigeon is then not in the pigeonhole. He rather becomes an a**h***. (I might go down in the history books for this quote). Ha!

PS 2- When LegalPoet doesn't write poetry, he deems himself fit to give some free advice.

PS 3- As said before (read comment # 9), I love animals.

PS 4- I'll keep on blasting law firms and hounding Kian till they don't sponsor some goodies for the bloggers. Why is it always that the writers have to starve. :P

PS 5- Then you can't blame us the writers for blowing our own trumpet...or posting the links to our own blogs. :)
 

Legally Drawn is created by Vasanth Sarathy and is published on his blog www.legallydrawn.com

It is Legally Drawn's first birthday! Congratulations!

Narco Analysis a need of the hour

In modern times with the advent of technology and increasing knowledge of the same, the criminals are gaining a lot from it. To catch up to the standards of such technically advanced and intelligent criminals, who leave no evidence, Narco Analysis has come as a relief for the investigation agencies. It is the need of the hour to introduce innovative methods to prove the accused guilty. Since law is a living process, it should change according to the changes in society, science, and ethics and so on. The Legal System should imbibe developments and advances that take place in science so far as it does not infringe fundamental legal principles that are for the good of the society. The criminal justice system should be based on just and equitable principles. Hence, to adjudge the legality of the truth serum test is very important.

Even though Article 21 is couched in a negative language enjoys a fundamental ascendancy over all other attributes Right to life and personal liberty are compendium terms which include a variety of rights and attributes. The expanded meaning includes the right to hold a particular opinion, to sustain and to nurture that opinion

Article 21 is repository of all important Human Rights, essential for a person or a citizen and when there is a natural calamity, the State as a guardian of people is obliged to provide support to the victim to save their lives.

 Narco Analysis is not used in all the cases. In selected cases where interest of society at large is involved and in other serious cases only it should be used, if necessary.

The FSL, Bangalore, has subjected more than 300 persons connected with a variety of crimes "involving organised crime by terrorist outfits, cyber crimes and other heinous crimes” from across the country, to such tests. The success rate has been 96-97 per cent as evaluated from the feedback received from investigating agencies and others. About 25 per cent of the total number of individuals subjected to Narco Analysis turned out to be "innocents". The answers are believed to be spontaneous as a semi conscious person is unable to manipulate the answers.

Article 21 is a declaration of deep faith and belief in Human Rights. In this “pattern of guarantee woven in Chapter III of the Constitution of India, personal liberty of man is at root of  Article 21 and each expression used in this Article enhances Human Dignity and Values. It lays the foundation for a society where Rule of Law has primary and arbitrary or capricious exercise of power

Thus, protection against self incrimination is an instrument for the protection of the innocent and not intended for the acquittal of the guilty. The framers of the Bill of Rights believed the rights of society were paramount to the rights of the criminal. Believing in the same principle in a spate of high-profile cases, such as those of the Nithari killers, the Mumbai train blasts, Arushi Murder case, Malegaon blasts and the most recent Mumbai blasts case suspects have been made to undergo Narco Analysis, drugged with the sodium pentothal

The discovery of the truth is the desideratum of investigation, and, all efforts have to be made to find out the real culprit, because, one guilty person, who escapes, is the hope of one million. Courts have, therefore, to adopt a helpful attitude in all efforts, made by the prosecution for discovery of the truth. If the Narco Analysis and Brain Mapping test can be helpful in finding out the facts relating to the offence, it should be used and utilized and the courts should not obstruct the conduct of the exercise

Legally Drawn is created by Vasanth Sarathy and is published on his blog www.legallydrawn.com

Legally Drawn has just celebrated its first birthday! Congratulations!

A lawyer issued a legal notice to quit on behalf of his client. He posted it through registered AD and courier. Since he did not receive any AD card, h filed a complaint with the Post office .In the meantime, he sought for the proof of delivery from the courier company. He entrusted his clerk with the responsibility of pursuing the courier company and procure the hard copy of the proof of delivery.

Below you find the email conversation which ensued:

Clerk to the courier company

Please provide us delivery report for the shipment sent on September 09 vide AWB No. 123449276. It has extremely urgent due to legal requirement and has to be filed in the court tomorrow. So kindly favour us in this regard as required either by soft or hard copy to submit the same

Regards,

P.K.Gidpade

The next day, the clerk received a reply from courier company with the soft copy of the proof of delivery attached.Since  he was asked to procure a hard copy of the same, he immediately wrote:

Dear Mr. Cheepak,

How could we explain our request which could be heard by your Jury (Ms. Jharokha & You). The day (03.02.2010), we had requested for the hard copy of said delivery report, it was assured by you telephonically and by Email of Ms. Jharokha that we will definitely send on 04.02.2010 and from that day after making several contacts, the matter is still on your wishes and obligation. Because you people have words to convince the customers and ignore the matter, however it is most important for customer and we are helpless with your great cooperation. This kind of issues have been raised to the upper channel time to time, but a single email simplify by mentioning as “We are looking into the matter” and story finished for future also. So this is the service standard we are getting through the Yellow Dart. Our firm has to file the matter in the court as mentioned in the trailing mail but the advocates has to wait until the turn of Yellow Dart ‘s wishes and blessings  will come to the queue  of our firm. So could we ask the day on which we can have your attention and could be bale to file the same in the court?

Regards,

P.K.Gidpade  

The clerk received the dart of a reply immediately from the courier company

Dear Mr Gidpade,

Jharokha is out of station, had to leave due to some emergency..hence seems missed out actioning mail on time.

We can send only electric details

The clerk was furious. He wrote

Dear Mr. Taqlief,

We have this kind of electric details but this could not be filed as evidence before the court. This has already discussed with Mr. Cheepak that we need copy of delivery receipt and agreed to collect from the Dhokhla Hub. Then Mr. Cheepak said that we are sending the scanned copy within two hours and hard copy will be received in morning i.e.04.02.2010. So please manage for the same as required.

With regards,

P.K.Gidpade

To this, Mr. Gidpade was sent a soft copy of the delievery report.

A frustrated Gidpade replied :

Dear Mr. Jayjay,

Please see my trailing mail wherein I have clearly asked for DELIVERY REPORT not for Delivery Details and this document could only be accessed from your distribution hub. Please manage to provide me as needed for legal requirement.

Regards,

P.K.Gidpade

The clerk received the below mail the next day

“Hard copies are only kept for 90 days”

To which he replied

Dear Mr. Jayjay

Now it’s clear to go ahead but spent time in processing of the said matter

No Regards,

P.K.Gidpade

 
Note: For all those lawyers/ law students who have stopped involving their brains in normally stimulating cranial efforts and have submitted themselves unabashedly to Bangia and the like[:X]; the LegalPoet presents a Bangia’s guide to his poem: [:O]

• ‘He’, in this poem is today's Neta, the Lion.
  
• ‘Hyenas’ are his sycophants/ boot-lickers.
  

• ‘Pards’ and the ‘Tigers’ are the plucky lawyers of the past, lawyers who were social engineers* in the truest sense.
  

• Who are the other animals? Is it we the people; the civil society? Should lawyers lead the pack of these animals? Are today’s lawyers who are running after law firms capable of this? YOU DECIDE.
  

FOR HIM HIS WORK SHALL SAY

For him his work shall say

That his smile is a façade.

That those greedily folded hands,

Shall soon start their task.

That those promises like since ages,

Will be given a premature pyre.

That those words which oblige service,

Are from a die-hard liar.

That he is the lion, the king,

Not half as brave, as majestic.

But because the hyenas trail him,

Feeding on the carcass he kills.

That the pards and the tigers are extinct,

For they’d have the king dethroned.

That the pards and the tigers are extinct

Do all the animals lose hope?

*One can use any term instead of ‘engineer’; social ‘doctor’ would sound just as good; social ‘tailor’ would be fine too; make it social ‘architect’ and it would go along perfectly well. (If any high-headed engineer was feeling chuffed…hope this takes out a bit of your steam). [:P]

The judgment of the Supreme court in Sundaram Finance Ltd v. NEPC India Ltd., reported in   (1999) 2 SCC 479 observed at para 12 thereof that though section 17 gives the arbitral tribunal the power to pass orders, the same cannot be enforced as orders of a court and it is for this reason only that Section 9 gives the court power to pass interim orders during the arbitration proceedings.

Subsequently, in M.D. Army Welfare Housing Organisation v. Sumangal Services Pvt. Ltd., reported in  ( 2004 ) 9 SCC 619 , the Apex Court had held at para 56 thereof that under section 17 of the Act no power is conferred on the arbitral tribunal to enforce its order nor does it provide the judicial enforcement thereof.

However, in the case of Sri Krishan Vs. Anand, OMP. No. 597/2008, decided on 18.08.2009 by Mr. Rajiv Sahai Endlaw, J. of the Hon’ble Delhi High Court, reported in Manu/De/1828/2009, the Hon’ble Delhi High Court held that Enforcement of an order of injunction passed by the Arbitral Tribunal would be enforced under Section 27 (5) of the Arbitration and Conciliation Act, 1996 which deals with "Court assistance in taking evidence” which is as under:

Persons failing to attend in accordance with such process, or making any other default, or refusing to give their evidence, or guilty of any contempt to the arbitral tribunal during the conduct of arbitral proceedings, shall be subject to the like disadvantages, penalties and punishments by order of the Court on the representation of the arbitral tribunal as they would incur for the like offences in suits tried before the court.”

The Court stated as under:

“Any person failing to comply with the order of the arbitral tribunal would be deemed to be "making any other default" or "guilty of any contempt to the arbitral tribunal during the conduct of the proceedings". Thus the remedy of the other party is to apply to the arbitral tribunal for making a representation to the court to meet out such punishment, penalty to the guilty party, as would have been incurred for default in or contempt of the court. Naturally, the arbitral tribunal would make such a representation to the court only upon being satisfied that the party/person is in default or in contempt. Once such a representation is received by this court from the arbitral tribunal, this court would be competent to deal with such party in default or in contempt as if in contempt of order of this court, i.e., either under the provisions of the Contempt of Courts Act or under the provisions of Order 39 Rule 2A Code of Civil Procedure, 1908.”

The Hon’ble Court also clarified that Section 27(5) was not noticed in Sundaram Finance Ltd. or in Sumangal Services Pvt. Ltd. (supra) perhaps, because it was hedged in the heading/title of Section 27. However, since the said heading/title cannot limit or narrow the otherwise wide amplitude of Sub-section (5) of Section 27, the default, contempt mentioned therein cannot be limited to that only in appearance of witnesses before the arbitral tribunal. To do so, would be to render the words "any other default" and "guilty of any contempt" therein otiose.

In arriving at the aforesaid dicta, the Court found support of the following  decisions which held as under:

(i)                 Anuptech Equipments Private Ltd. v. Ganpati Cooperative Housing Society Ltd. AIR 1999 Bombay 219 where in para 16 reference is made to Section  27(5) in the context of holding that the arbitral tribunal discharges the inherent judicial function of the State – it is for this reason only that in a major departure from 1940 Act, power of contempt of arbitral tribunal has been conferred; once a person can be punished for contempt of the arbitral tribunal and which can bring the administration of justice into disrespect or interference with the administration of justice, it shows the legislative intent qua the arbitral tribunal and

(ii)              Maharashtra State Electricity Board v. Datar Switchgear Ltd. reported in MANU/MH/1187/2002 also holding that Section 27(5) reveals the scheme of the legislation; the contempt of the arbitral tribunal has been made subject to imposition of disadvantages, penalties and punishments by order of the court on the representation of the arbitral tribunal, also approved by the Hon’ble Gujarat High Court in Saurashtra Chemicals Ltd. v. Hon'ble Mr. Justice K. Ramamoorthy (Retd.) reported in MANU/GJ/0329/2005.

Legally Drawn is created by Vasanth Sarathy and is published on his blog www.legallydrawn.com

I began to write this about three weeks ago. A lot has changed since then. Terror has shaken our relatively sleepy city from its sense of security.  

“And yes, we need peace more because we have a good thing going in India and we have more to lose” says Bhagat and in a way that sums up what he is trying to say – we need peace for ourselves, to hell with ‘them’. Something about the title of the column really irked me. His column is titled the ‘Underage Optimist’. I began to wonder, is he supposed to represent what the youth think? So I write this just to say, I’m young as well and this is what I think.  

The original op-ed can be found here. 

Heres what I would have written:  

The attacks in Mumbai in November 2008 were a stern test to India’s foreign policy and its commitment to peace. The administration had to contend with a rising public demand for retaliatory measures, criticism from all corners of the political arena of how the attacks were handled and the fear of looking weak in its response.  

The administration in its reaction has made an important distinction between the who it is dealing with. By ensuring that they did not sever ties with Pakistan, the Government displayed the sense to say that Pakistan did not solely consist of terrorist groups or even just of those supporting the terrorists. Whether the Government of Pakistan is doing enough to combat these elements is a question which certainly needs to be answered. But it is clear that that is where India’s foreign policy needs to be focused. Our neighbours share common histories with us, have faced common hardships and share common cultures. Why then should we vilify all those across the border and claim that the intent of some is equal to the intent of all?  

The blast in Pune shook me. I have been in Pune for almost five years and have always felt that the city has a distinct small town feel to it. German Bakery is a place I have been to countless times. It wasn’t just that it had good food; there was an atmosphere of freedom which I loved. The fact that such an unimportant place could be a target has really hit home, what could they target next? The threat seems almost too real now. They have struck fear in our hearts, we are afraid, we wonder if our friends are safe, our parents constantly check if we are back home. Something as innocuous as a bag has now become a source of fear, why just a few days ago there were two bomb scares on the same day. How are we supposed to go on from here – as a city, as a country? For now the terrorists have won. 

What worries me is that if we do not choose our response carefully, we will let the terrorists win long term. If our response is to snap ties with Pakistan, or put untenable pre-conditions on talks, how are we ever going to break this cycle? The Pune blast was just a few days ahead of the scheduled foreign secretary level talks between Islamabad and New Delhi. To me, talks present the only way to establishing a long term and sustainable peace.  

Yes, we have a good thing going on in India but is that the only reason we want peace? How can we wish peace just for ourselves, has our indifference overshadowed our humanity? Having seen the carnage that violence creates up-close, I cannot wish such pain and suffering on anyone. So in that sense I love you my Pakistani brothers and sisters. I hope you and your families are not affected by violence.I certainly hope that the violence doesn’t originate from my country.  

And no, I will not sign your petition.

Yeah right you pervert pricks. This post isn’t the answer to the kink in you. This post is not on your office fantasies. This is a post on the bad times which may come at “that time of the year” - It’s the appraisal and bonus time. That time of the year when you pretend to be extra cool with the partners. That time of the year when every miss of a semi colon feels like a burning rod shoved where it fits the best. When every cough on a con-call is like a resounding echo in Qutub Minar. When you would want to hold on to your pee till your palms start hurting because of your nails sinking in them so that you can show your partners how you sit on your chair. If you turn out to be one of those hopeless souls getting “laid off” despite all your attempts, here are TOP FIVE READYMADE ALTERNATIVES:

 

1. The Hopeless Historian

The Sheriffs Fees Act, 1852, Negotiable Instruments Act, 1881, Indian Telegraph Act, 1885 – with so much of vintage and history in law, being a historian is as easy as picking your nose! (eww)

2. The Writer

If you can draft this -

“Any other acts whatsoever beyond the reasonable control of the Party affected, then the Party so affected shall upon giving prior written notice to the other be excused from such performance to the extent that such cause prevents, restricts or interferes with it PROVIDED THAT it shall use its best to avoid or remove such cause of non performance and shall continue performance hereunder with the utmost despatch whenever such causes are removed; then upon such prevention, restriction or interference as aforesaid arising, the Investors and the Company shall meet forthwith to discuss what modifications (if any) may be required to the terms of this Agreement in order to arrive at an equitable solution.”

You might as well be the next Shakespeare or Wordsworth.

3. Weird Name Giver

This is a great business idea. The first of its kind. After names project such as Project Chumchum, Project Bulbul, Project Dil(de)do, I am sure naming new-borns babies, cats, caterpillars, gutters hair and mosquitoes is not difficult.

4. Casting (no couch here) Director

Be a casting director for a movie. “If we put Popat and Poet on this project they won’t be compatible. Popat does more of banking work. Maybe Kian and his capital market expertise may help us to get the desired result” – SIMILARLY – “Shah Rukh and Salman Khan cannot be cast in Dhoom 3 together because of their problems. So let’s put SRK with Shahid Kapoor. Shahid Kapoor with his chocolate boy image may make get the desired result and make the movie a hit.”!

5. Fingerer!

Pervert mongrels – Not again - it’s not what you think it is. After years of “fingering” and “pressing” your blackberries, the fingers sure cannot rest any more. You may take up fingering a saxophone or a piano. I am sure a little bit of tweaking and practicing and get you to Altaf Raja heights!

Worry not, the future is filled with opportunities. But keep up the fingering, unless you want to be Laid (off)!

Squawk  Squawk

LegalPopat!

A few days after the Lawyers' Collective judgment last December, Ashurst Asia emailed out "Season's Greetings from Ashurst offices around the world", with 13 shiny balls for each country it operated in.

Next to the US and France, the Indian liaison ball was the smallest of them all.

Now that Ashurst is closing its Delhi office, everyone is wondering what will happen to that delightful shiny orange ball.

Will the firm have to take down the Indian ball for next year's Christmas?

Legally India is holding an appeal to give the ball a new home. Anyone who can take it in and save it until next Christmas, please contact us.

http://business.rediff.com/report/2010/jan/15/govt-proposes-test-for-budding-lawyers.htm#write

I have a mixed feeling. It definitely is a positive step of the Govt to choose Quality over quantity. However, it is pertinent that the govt also provides job opportunities and set up more courts with better facilities. 

Its a good way to encourage competition and skim out the cream. However, I very strongly feel that , it should be a 2 way communication. For instance, let us  have the  salary revised for the quality lawyers and lets also have better courts and court facilities. Provide good, basic facilities to the quality lawyers to work proficiently and expeditiously like good internet connection and connected P.C in the courts. 

The idea is, to encourage talented lawyers to channelise their energy for the betterment of the whole Indian legal system. Cutting out the quacks from the good ones doesn't actually solve the real problem that the Indian legal system faces today. 

Hopefully, this ain't another red herring. 

It is interesting to note that the constitutional validity of section 36 of the Industrial Disputes Act, 1947  was challenged before the Delhi High Court in the matter of The Cooperative Store Limited, New Delhi v. O.P.Dwivedi, P.O.Industrial Tribunal –II & Others, reported in 1988 1 LLJ 135.In the case of Madras –Bangalore Transport Company Vs. The Madras –Bangalore Transport Company Worker's Union and Ors., reported in (1964) II LLJ 614 Kant, a Division Bench of the Karnataka High Court held  that the limited restriction imposed by S.36 in a law sanctioned by Parliament in the exercise of its legislative competence as conferred by the Constitution, cannot be viewed as an abridgment of any fundamental right. A three Judge Bench of the Supreme Court interpreted the said provision in the case of Paradip Port Trust v. Their Workmen And Management of Keonjhar Central Co-operative Bank Ltd. Vs.  Their Workmen, reported in (1977) 2 SCC 339.

However, thereafter when the same issue came up before the Allahabad High Court, Markandeya Katju, J (as he then was) vide his decision in ICI India Ltd. v. Labour Court (IV) & Another) reported in 1992-1- LLN 972, has held that Section 36(4) of the Industrial Disputes Act and a similar provision i.e. Section 6-I(2) of the UP Industrial Disputes Act are ultra vires of the Constitution.

In Kusum Ingots and Alloys Ltd. Vs. Union of India (UOI) and Anr., reported in (2004) 6 SCC 254, the Hon’ble Apex Court observed that a  parliamentary legislation when receives the assent of the President of India and published in an Official Gazette, unless specifically excluded, will apply to the entire territory of India. If passing of a  legislation gives rise to a cause of action, a writ petition questioning the constitutionality thereof can be filed in any High Court of the country. It futher held that an order passed on a 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.

Here we have a situation where the Delhi High Court has upheld the validity of Section 36 of the I.D Act and the Allahabad High Court has said that the same is unconstitutional.

Under the circumstances, what  would be the effect on the rest of the Country?

Section 36 (4) of the Industrial Disputes Act, 1947 mandates both the consent of the opposite party and the leave of the Tribunal will have to be secured to enable a party to seek representation before the Tribunal through a legal practitioner qua legal practitioner. This is a clear, significance of Section 36(4) of the Act. The same was held by a three Judge Bench of the Apex Court in the case of Paradeep Port Trust reported in  (1977) 2 SCC 339.

However, the judiciary of this country is divided on the interpretation of Section 36(4) of the Industrial Disputes Act, 1947 as to whether such consent and leave can also be “implied”.

The Courts, among others, which have decided that such a consent and leave of the Court has to be express are as under:

1.     General Manager, National Bank for Agricultural and Rural Development v. Presiding Officer, Industrial Tribunal - I, Hyderaband and Anr.- Andhra Pradesh High Court. reported in 1998 (4) L.L.N. 908

2.     Bhavani Art Handicrafts v. Gulab Singh and Ors. - Rajasthan High Court, reported in 1999 (2) L.LN. 1070

3.      J.B. Transport Company and Ors. v. Shankarlal @ Mavaram Nathuji Patel] - Gujarat High Court, reported in 1999 (4) L.L.N. 290

4.     Lakshmi Engineering Industries v. State of Rajasthan and Ors. Rajasthan High Court, reported in 2003 (2) L.L.N. 773

5.     Management of Muttapore Tea Estate, Assam v. Presiding Offcer, Labour Court, Dibrugarh, Assam- Gauhati High Court., reported in 2004 Lab. I. C. 4035

6.      Grapes Synthetics Pvt. Ltd. v. The Judge, Labour Court, Bhilwara] - Rajasthan High Court, reported in 2004 (2) SLR 665 [

7.     Chandrakanth and Ors. v. All India Reporter Ltd.] - Bombay High Court - Nagpur Bench, reported in 2005 (105) FLR 300

8.       Brooke Bond Lipton India Ltd. v. Brooke Bond Shramik Union- Orissa High Court, reported in 2005 (105) FLR 256

On the other hand, the Division Bench of the Calcutta High Court in the case of Shiraz Golden Restaurant Vs. State of West Bengal and Ors. reported in (2000) II LLJ 1101 Cal , relying upon an earlier Calcutta High Court judgment of Reckitt and Coleman of India Ltd. and Ors. Vs. Jitendra Nath Maitra and Ors., reported in AIR1956 Cal 353, and  a Division Bench judgment of the Bombay High Court in the matter of Engineering Mazdoor Sabha, Bombay v. Meher and Ors, reported in (1966) I LLJ 580 Bom, held that since the section does not prescribe that the consent must be given in a particular manner or in a particular form, the consent of a party which is the basis for the grant of leave to the other party for being represented by a lawyer in a proceeding under the I.D. Act, could be inferred from the surrounding circumstances as also the conduct of the consenting party. It held that such a consent could also be implied. It futher held that since the section does not insist upon a written consent, a consent once given could not be revoked at a later stage because there is no provision in the I.D. Act enabling such withdrawal or revocation. To put it simply, the consent once given by a party, entitling the other party to be represented in the proceeding, by a lawyer would inure to his benefit till the proceeding is finally disposed of.

Apart from the Calcutta and the Bombay High Court , the Madras High Court concurs with the above view as held in the matter of The Management, Hindustan Motors Earth Moving Equipment Division Limited, Chennai Car Plant V. The Presiding Officer, Principal Labour Court, Mr. T. Soundrarajan and Catter Pillar India Private Ltd., (Erstwhile Hindustan Motors Limited, Earthmoving  Equipment, reported in (2007) II LLJ 59 Mad  , the Kerala High Court in the matter of Calicut Co-operative Milk Supply Union v. Calicut Co-operative Milk Supply Workers Union, reported in 1986-II-LLJ-422 at 422, 423 and in the matter of Francis Gomez and Anr. Vs. President, Thiruvananthapuram Shops & Commercial Employees' Union and Ors, reported in (1999) III LLJ 1250.

Till very recently, the Delhi High Court followed 2004 1 CLR 163 [Hindustan Motor Ltd. v. Presiding Officer and Ors.] - Delhi High Court, (1999 (1) L.L.N. 983 [Prasar Bharathi Broadcasting Corporation of India v. Suraj Pal Sharma and Ors.] - Delhi High Court which stated took the view contrary to Calcutta, Bombay, Madras and Kerala. However, in a recent judgment of the Division Bench of the Delhi High Court in the matter of Bhagat Brothers decided in LPA 212 of 2008, the Division Bench overruled its earlier decisions and concurred with the view of Calcutta and Bombay on the issue.

Since the judiciary of this country appears to be divided on the interpretation of Section 36(4) of the Industrial Disputes Act, 1947, hopefully either the Supreme Court would resolve the issue once and for all or the legislature shall amend the law to suit the demands of the 21st Century.