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Is it time for a fresh look at Section 36 of the I D Act?

 Section 36(4) of the Industrial Disputes Act, 1947 states that 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 proceeding and with the leave of the Labour Court, Tribunal or National Tribunal, as the case may be.

Thus, representation of a party by a legal practitioner can only be with the consent of the other party to the proceedings and with the leave of the Tribunal.

If the workman raises an objection for appearance of a practicing Advocate on behalf of the employer, then in view of the provision of Section 36, the practicing Advocate could not be permitted to appear on behalf of the employer.  

The Industrial Disputes Act was enacted in the year 1947 the Trade Union movement in this Country was in its infancy. The Legislature had visualised the legal battle between two unequals. On the one hand, the Trade Unions with scarce resources could not be pitted against the mighty employers, who had all the wealth at their command. They could hire the best lawyers at the Bar while the Trade Unions and/or workmen were likely to not have any trained persons to defend them. Their leaders had no necessary legal training and knowledge of Court functioning. The lawyers who had professionally acquired law training were rarely available for the Trade Unions and workmen who could hardly afford their fees. In order to bring about and maintain fairness and equality, the Legislature provided under Section 36 of the Act how the parties would be represented in the proceedings under the Act. The parties, of course, could themselves appear in their own litigation. A legal practitioner is permitted only with the consent of the other party in the proceedings and with the leave of the Labour Court/Tribunal or National Tribunal as the case may be. It was left to the other party and also to the discretion of the forum before which the proceedings were instituted. The underlying principle of this section is just and fair trial.

However, over the last 62 years, the Trade Union movement has long crossed its age of infancy. Today, excellent Trade Unionists are available who have acquired knowledge, legal acumen and skill to defend the working class in the proceedings under this Act. Very often these dedicated and reputed trade Union leaders are more than a match to even the best of the practitioners before the Labour Court or Tribunal or National Tribunal. Similarly, there are experienced office-bearers of a number of Trade Unions who have also acquired rich experience in the field of legal knowledge.

In view of the present business scenario and the increased entry of foreigners in this area, would it be a fair and an equal fight between a powerful Trade Union represented by a very seasoned, senior and experienced Trade Union representative or a leader against an ordinary small /foreign employer if he is not assisted by a legal practitioner? The Trade Unions are professional litigants. Since the employers are not, they are required to engage the services of legal practitioners to represent themselves in the legal battle. If they are prevented from engaging legal practitioners as against the powerful representatives of the Trade Unions it would not be a fair, just and equal trial of the strength between the two.

Since there has been a considerable change in the circumstances, both in the industrial and legal sector, the utility of such a law in today’s times need to be revisited. There is no dearth of decent legal practitioners available now even for the workmen or Trade Unions. Lawyers' services are nowadays available to all those who can pay a reasonable remuneration. A lot of advocates represent the cause of social justice. It would therefore be unreasonable and unfair to deny the same opportunity to the employer.

R.J. Kochar, J in the matter of T.K. Varghese Vs. Nichimen Corporation, reported in 2001 (4) Bom C R 168, stated that “Moreover, the provision of Section 36 has given rise to formation and floating of bogus paper organisations of employers who engage and appoint some legal practitioners as their so-called office-bearers to circumvent the provisions of Section  36 as such "office-bearers" are permitted to appear in industrial proceedings with legal authority. The result is that very good legal practitioners are appointed as "office -bearers" of the employers' organisation or even as the employees of the employers to appear for the members-employers to circumvent the objections of the Trade Unions/workmen. To face the situation successfully, the employers like the Respondents are compelled to enroll themselves as the members of such organisations to be able to be defended by legal practitioners who are the officers or office-bearers of such organisations.”

A recent decision of the Division Bench of the Delhi High Court overruling the Court’s earlier stance to the contrary in the case of Bhagat Brothers , decided in LPA 212 of 2008 echoes the observations of Justice Kochar wherein they state “It would be totally unjust to deny the legal community access to this field and the Courts and the Tribunals would face great handicap if they do not get proper assistance from the legally trained persons in their decisions which finally land in the higher Courts.”.

Further, one must also appreciate that in view of judicial review by higher courts , appeals and other judicial remedies, such industrial matters most of the time, if not always, end up in High Courts or higher up. There is no protection similar to section 36 available to the workman when it comes to the fight in the appellate forums. Thus, such partial protection also does not make sense, especially since usually there is a huge difference in the ability and affordability between the legal practitioners at the tribunals and the ones at the High Courts and/or Supreme Court.

 

In view of the above, in my humble opinion, its time for an amendment to section 36(4) of the ID Act.

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