Pasayat, J.
1. Refusal by Presiding Officer, Labour Court, Sambalpur to accept prayer of M/s Orissa Cement Limited, the petitioner there in after referred to as the 'management') to be represented by a legal practitioner in a proceeding before it, is assailed in this writ application.
2. Undisputed factual position is as follows:
Services of one Shri Baijnath Pareek (Opp. Party No. 5) there in after referred to as 'workman') were terminated, purportedly in terms of certified standing orders of the management, with effect from April 15, 1990. On a dispute being raised, the matter was conciliated by the Asst. Labour Commissioner, Rourkela and since it ended in failure, the Conciliation Officer submitted a failure report to the State Government of Orissa. On being satisfied that an industrial dispute existed between the management and the workman, State Government referred the dispute to Labour Court, Sambalpur, in exercise of power conferred under Sub-section (5) of Section 12 read with clause (d) of Sub-section (1) of Section 10 of the Industrial Disputes Act, 1947 (in short, the 'Act'). On receipt of the reference on September 4,1991 Labour Court fixed October 22, 1991 for filing of statement of claims by the workman. Such statement was filed, a petition slating that he wanted to engage a counsel to represent him, and sought for necessary permission under Section 36 of the Act. The date was fixed to November 26, 1991 for filing written statement by the management. The workman was represented through counsel on that day, while management sought for time to file its counter. The matter was adjourned to January 4, 1992. On that day both parties were present, and the management prayed for further time to file the written statement. The prayer was accepted, and the matter was adjourned to February 15, 1992. The written statement was filed by the management on February 15, 1992 and the matter was posted to March 25, 1992 for settlement of issues. On that day management asked for time on the ground that its advocate was sick and was unable to attend the Court. Prayer for adjournment was accepted and the matter was adjourned to May 22, 1992 subject to payment of cost of Rs. 100/- to the workman. On the date fixed, the workman was present, and filed a memorandum stating that he was unable to engage any advocate and desired to appear in person. A memorandum was filed by the management with a prayer to be allowed to engage a lawyer to represent it. Simultaneously an authorisation in Form G under Rule 38 of the Orissa Industrial Disputes Rules, 1959 (in short, the 'Rules') was filed. By order dated May 22, 1992 the Labour Court rejected the motion by both workman and the management to be represented through counsel. This order dated May 22, 1992 is the subject-matter of challenge in this writ application.
3. According to Mr. Pujari, learned counsel appearing for the management-petitioner, there was implied consent for engagement of legal practitioner by the workman, and merely because at a later stage, he backed out and wanted to conduct his case in person, that should not have weighed with the Labour Court, Further it is submitted that there has been manipulations in the order dated May 22, 1992 and the consent by the workman was sought to be nullified by manipulating records. The learned counsel for workman, however, submitted that there was never any consent, and the certified copy does not reflect the correct position, and the original records reflect it. According to him, the records have not been manipulated, and even if it is accepted that certain inaccuracies exist, they do not really affect conclusions of the Labour Court. No consent was given, not even an implied consent.
4. First, we shall deal with difference between certified copy and the original order sheet. In the certified copy, order dated May 22, 1992 reads as follows:
'The workman is present. The representative of the management is also present. Earlier the workman had filed an application for engagement of an advocate. The management accordingly sought for a similar permission today. But the workman instead of giving his consent for engagement of advocate by both the parties, submitted another application] praying that he is not in a position to engage advocate. In view of it the petition filed by both the parties for engagement of advocate stands rejected.......'
Petitioner's allegation is that in the original record the word in spite' has been corrected to read 'instead', and the word 'by' has been substituted for the word 'for'. We shall deal with the effect of this change later on. To the naked eye,: however, it is clear that the words 'in spite' and 'for' have been corrected to read 'instead' and 'by' in the original order-sheet. It is unfortunate that such change has been made. There can be no doubt that subsequent to the issue of certified: copies, the changes have been made. It is not known who has made the change. We express our displeasure.
5. Before we deal with the factual position in: detail, it is necessary to refer to Sub-sections (3) and (4) of Section 36 of the Act which are relevant.
'36. Representation of parties.-
(1) and (2) xxx xxx xxx
(3) No party to a dispute shall be entitled to be represented by legal practitioner in any conciliation proceedings under this Act or in any proceedings before a Court.
(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 proceeding and with the leave of the Labour Court, Tribunal or National Tribunal as the case may be.'
Section 36 deals with representation of parties. Legal practitioners entrusted with their briefs bring forth their legal training and experience to the aid and benefit of their clients. But Labour law operates in a field where there are two unequal contestants. The Act, therefore, takes care of the challenge of the situation in which the weaker parties are pitted against stronger before adjudicatory authorities. That appears to be one of the reasons for introducing restrictions contemplated by Sub-section4) for representation of parties by legal practitioners. This provision subjects the rights of a party to be represented by a legal practitioner before any of the adjudicatory authorities to two conditions, viz; (i) consent of the other party to the proceedings, and (ii) leave of the adjudicator. These conditions are cumulative and not alternative. In other words, both the conditions must be satisfied together before a legal practitioner in his professional capacity can represent a party in any proceedings before a Labour Court, an Industrial Tribunal or the National Tribunal. This position was elaborately stated by the apex Court in Paradip Port Trust v. Their Workmen (1976-II-LLJ- 409). It was urged before the apex Court in the said case that it will cause hardship to public corporations and undertakings if the union is given cane blanche to finally decide about the matter of representation by refusing to accord its consent to representation of the employers through a legal practitioner, because public corporations and undertakings cannot be expected to be members of employers' associations and in their case Section 36(2) will be of no avail. But having regard to the history of the Industrial legislation and recognition by law of the unequal strength of the parties in adjudication proceedings before a Tribunal, intention of the law being to discourage representation by legal practitioners as such, and the need for expeditious disposal of cases, the apex Court declined to consider the word 'and' as 'or'. It was observed by it that consent of the opposite party is not an ideal alternative but a ruling factor in Section 36(4).
6. There is nothing in Section 36(4) to indicate that consent is to be in any particular form. It can be implied from circumstances and conduct of the parties. There is no provision in the Act by which consent or leave once given can be revoked or retracted. An objection or an order refusing to allow the employer to be represented by a lawyer, after the consent has been expressly or impliedly given, and the lawyer was allowed to appear, would be unsustainable. The first requisite for the representation of a party by a legal practitioner is the consent of the other parties. If any one of the opposite parties does not give the consent, that is an end of the matter and the question of the leave of the adjudicating authority does not arise at all. But the consent of the opposite parties is not the final word. It rests with the adjudicatory authority who has to give leave to the representation of a party by a legal practitioner. It is the discretion of such authority to give such leave or to refuse it. This discretion has to be exercised in a judicial manner.
7. A Court under the Act is a Court of Inquiry. Section 36(3) embodies a total prohibition against the representation of a party by a legal practitioner in any conciliation proceeding or any proceedings before a Court. Clause (f) of Section 2 defines 'Court' to mean a court of Inquiry constituted under the Act. The prohibition contemplated applies only to these two proceedings, and not to proceedings before Labour Courts, Tribunals or National Tribunals, which are also created by the Act for the adjudication of Industrial Disputes. Sub-section (4) deals with the proceedings before these bodies. It is permissive in the sense that a party can employ a legal practitioner to represent him provided that the consent of the other party to the dispute is obtained as well as the leave of the Court, Tribunal or the National Tribunal as the case may be. However, there is nothing in Sub-section (4) of Section 36 which mandates that the party whose consent is sought for, must be represented by a counsel. In a given case, even if the consenting party is not represented by a legal practitioner, he may give consent to his adversary to be represented by a legal practitioner.
8. The pivotal question is whether consent had been given by the workers. Great emphasis has been laid by the learned counsel for the management on the ground indicated for seeking adjournment on March 25, 1992. It is submitted that on the ground of inability of the advocate to conduct the case adjournment was sought for, and considering that the Court granted time. If there was no consent earlier, question of granting adjournment on the ground of non-availability of Advocate would not have arisen. It is also submitted with reference to the certified copy of the order dated May 22, 1992 that the Labour Court clearly noticed that the workman in spite of having given consent, submitted another application that he was not in a position to engage an advocate, and therefore, the application filed by both the parties was rejected. No explanation is offered as to why on May 22, 1992 the management filed memorandum which reads as follows :-
'In the matter of Industrial Dispute Case No. 43 of 1991 we pray that we may be allowed to engage a lawyer on behalf of us (the first party management) to represent the above case.'
In the motion for adjournment made on March 25, 1992 there was no doubt a mention about the advocate of first party being sick and his inability to attend the hearing of the case. But, if there was consent, as claimed, there was no necessity for seeking permission to engage a legal practitioner subsequently on May 22, 1992. This infirmity has not been explained by the petitioners. A specific prayer has been made for engagement of a legal practitioner on May 22,1992 though mention was made in an earlier application about ailment of the advocate. It is clear that the parties proceeded on the basis that there was no consent given for engagement of the legal practitioner by management. We find no substance in the contention of the learned counsel for petitioner that there was implied consent by both the workman and the management for each of them being represented by legal practitioner. The learned counsel for the workman, however, submitted that the correct position having been reflected in the original order- sheet, the submission as made by the management-petitioner does not stand to reason.
9. The rival submissions need scrutiny. The management has explained that the memorandum filed on May 22,1992 was accompanied by the requisite authorisation in Form C, wherein the petitioner authorised Shri Gobardhan Pujari, Advocate, to represent its case. In the application dated March 25, 1992 reference was made to ailment of Shri S.B. Nanda, Advocate. Labour Court granted time on the ground of ailment of Shri Nanda, who, it was stated, was unable to attend the hearing of the case. If there was no consent as claimed by the petitioner, the workman could have very well pointed out to the Labour Court that Shri Nanda was not authorised to represent the management without his consent. This lends support to the plea of the petitioner that there was implied consent to the engagement of legal practitioner. It is seen that Form C accompanying the memorandum refers to authorisation of Shri Gobardhan Pujari, a legal practitioner to represent petitioner. The circumstances, therefore, point irrefutably to the conclusion that there was implied consent given by the workman to the engagement of legal practitioner. Our conclusion is reinforced by the actual order (before its unfortunate manipulation) as is correctly reflected in the certified copy. Since the Labour Court came to hold that inspite of having given his consent, the workman had taken different stands subsequently. But that is not end of the matter. Before a party can be represented by legal practitioner, leave of the Labour Court is also necessary. Labour Court has refused leave on the ground that the workman was not in a position to engage an Advocate. As indicated above, the party who is required to give consent need not necessarily be represented by a counsel. It can, however, be a ground on which the Labour Court can refuse to grant leave. But the Labour Court appears to have refused the prayer merely on the ground that other side was not represented by a lawyer, without considering that the same is not a statutory requirement. It can be one of the grounds. In a given case, considering the nature of dispute, that may be the sole ground. Since these aspects were not considered by the Labour Court in the proper perspective, we direct re-consideration by it. The matter is remitted back to Labour Court to dispose of the motion for representation by lawyer afresh.
10. An additional plea that Section 36(4) is unconstitutional has been raised in the writ application. The learned counsel for petitioner at the time of hearing did not press that point. Writ application is accordingly disposed of, but in the circumstances without any order as to costs.
S.K. Mohanty, J.
11. I agree.