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.