Parvathi Mills, Unit of Ntc Ltd. Vs. Quilon Hotel and Tea Shop Workers Union (intuc) and anr.

- code of civil procedure, 1908.[c.a. no. 5/1908]. order 9, rule 4: [v.k. bali, cj, kurian koseph & k. balakrishnan nair, jj] restoration of petition for enhancement of maintenance dismissed for default held, application under order 9, rule 4 c.p.c., is not maintainable. reason being while exercising powers under section 7(2)(a) and entertaining maintenance petition under section 125 of cr.p.c., family court cannot be deemed or treated as civil court. proceedings for maintenance before the family court under section &(2)(a) is criminal in nature. [kunhimohammammed v nafeesa, 2003 (1) klt 364; 2004 cri lj 1000 (ker) overruled]. reference to full bench; held, single judge cannot refer the case to full bench. he can refer the case to division bench. power to refer to full bench is expressly reserved to division bench. merely because a single judge/division bench entertains another view or merely because another view is possible, the judgment shall not be distinguished. j.b. koshy, j.1. ext. p1 is the reference order referring an issue for adjudication to the industrial tribunal, quilon. the above reference was numbered as i.d. no. 30/1998. originally the dispute was posted on january 15, 1999. advocate for the company entered appearance on that day, but union was not present. the union appeared for the first time on february 12, 1999 and filed objection in an advocate appearing for the company in the case. by ext. p4 order objection was accepted. in view of the objection the industrial tribunal found that management cannot be represented by a lawyer. it is the contention of the management that since the union did not object appearance of the lawyer for the management at the first date of posting, there is implied consent and hence ext. p4 is illegal.2. for the first time the union entered appearance on february 12, 1999 and on that day itself the union objected. therefore, it cannot be stated that union has given implied consent when union was absent. the industrial tribunal has correctly considered the matter and held in favour of the union. since the union has objected on the very first day of its appearance in court, the management cannot engage an advocate in view of the clear provisions under section 36(4) of the industrial disputes act.therefore, the original petition is dismissed.