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guljit_singh_luggani (advocate)     24 May 2008

representation by lawyer

If the workman or his representative objects, the management CANNOT be represented by an Advocate in matters relating to Industrial Disputes Act,1947.

Read Section 36 of I. D. Act, 1947

Its about 60 years now since we got independence, and the trade movement in this country has progressed to a great extent.

Its high time that this provision needs to be repealed...



Learning

 6 Replies

Kiran Kumar (Lawyer)     24 May 2008

u ve certainly raised an important issue here....in my opinion yes the management must also be provided the permanant right to be represented through counsel when the employee has the same right.

Prakash Yedhula (Lawyer)     24 May 2008

Find section 36 for reference

36. REPRESENTATION OF PARTIES. - (1) A workman who is a party to a dispute shall be entitled to be represented in any proceeding under this Act by - (a) any member of the executive or other office bearer of a registered trade union of which he is a member;

(b) any member of the executive or other office bearer of a federation of trade unions to which the trade union referred to in clause (a) is affiliated;

(c) where the worker is not a member of any trade union, by any member of the executive or other office bearer of any trade union connected with, or by any other workman employed in, the industry in which the worker is employed and authorized in such manner as may be prescribed.

(2) An employer who is a party to a dispute shall be entitled to be represented in any proceeding under this Act by - (a) an officer of an association of employers of which he is a member;

(b) an officer of a federation of associations of employers to which the association referred to in clause (a) is affiliated;

(c) where the employer is not a member of any association of employers, by an officer of any association of employers connected with, or by any other employer engaged in, the industry in which the employer is engaged and authorised in such manner as may be prescribed.

(3) No party to a dispute shall be entitled to be represented by a 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.

Ravi (Lawyer)     24 May 2008

It was not clear from your statement whether an employer can engage a legal practitioner or not. After reading the provision as extracted by you, i understand that even an employer also can engage a legal practitioner with the consent of other party and also with the leave of the tribunal. Even it indicates that, the employee also requred the consent of other side and the leave of tribunal, if he wants to engage a legal practitioner. If my understanding is wrong, please let me now the correct position.

Suresh C Mishra (advocate)     22 May 2009

 now a days labour law become a very technical and representation through a lawyer from etither party it is the workman or the employer become necessary 

it is seen from experiences that a few labour leader who are also encroaching the labour authorites and courts raise such question of represenstation with their ulteriour motive , this practice only delays the matter pending years to years , but law is very simple either party can be represented by the lawyer with the consent of the othere party and with the leave ot the concerned court .

Hon'ble Justice M Katju in a case while he was in high court at 

Allahabad decided this question and declared the provisions under section 6 I of UPID act as well secton 36 of ID act are unconstitutional .

I.C.I INDIA LTD  AND PRESIDING OFFICER LABOUR COURT IV AND ANOTHER 

in this judgment para 3 is most reslevant one : a counter affidavit has been filed by the respondent 3and4 and i have heard the consel for the petitioners and respondents 2 . in my opinion section 6 I (2) if YO act as well as secton 36 (4) of Central Act are ultra vires articles 14 and 19 (1) G of the Constitution of India and are consequentially illegal , it is well known that Industrial law is a complicated branch of law and only persons who have knowledge of labour laws and also some practical experience can properly represent the parties before the labour Courts and Tribunlal . The Principle of labour laws are quiet different from the principles of ordinary civil law, and what to say of a lay man evern an ordinary civil lawyer, unless he has studied labour law can not properlly represent the case before the labour court and Tribunal. for example it is an extablished principles in the labour that the labour court has got powers which no civil court got e.g. to create contracts, and to enorce contracs of personal service . labour law is largely judge made lasw and hence only apoersoj who has studied this branch of law can peoperly represent a party before the labbour court ,it has become a highly technical branch and only trained person can properly assist the court inthe matter , hesnce to debar lawyers merely because the opposite party objects is wholly unreasonable and arbitrary

Thus the provisions regarding representation is wholly a matter of discussion and a serious views are invited in this matter again in the light of this judgment and if this case is any where quashed pl cite that case and your valuable view on this part. 

jagadish paranjape (Advocate)     23 December 2011

Now by notifying Sec 30 of the Advocates Act 1961(from 15.6.2011),the advocates as of right are entitled to practice before any court or quasi judicial authorities.That should mean that they are entitled to practice before Labour/Industrial courts without any one's consent and/or permission.It is argued that I.D.Act is special law and Advocate Act is general law and therefore I.D.Act shall prevail. As a counter it can be argued that as far as rights of advocates are concerned, Advocate Act is special law.It is also worth noting that  Advocate Act was enacted when sec 36(4) of I.D.Act was already in existenceI.D.What remained was technicality of notification.The legislature does not legislate in redundency.Therefore by this notification,life is given to sec 30 of Advocate Act and by implication sec. 36(4)of I.D.Act loses it's efficasy.This being cotroversial issue,which affects us as community of  Advocates,more and more openions of experts are necessary.

jagadish paranjape (Advocate)     07 April 2012

It is pointless to discuss as to what the law should be.That field be better handled by legislature.In any adversary system,parties have right to be represented through legally trained person.Therefore it is appropriate to consider the effect of notification relating to sec. 30 of Advocates Act  on provisions under different Acts restricting lawyers from appearing before different judicial forums.Of course on this different interpretations are possible,and members should offer their interpretations.We as practioners of law in various fields shoud be concerned in learning as to what law is rather then what law should be.It is a bold statement that all law enforcing agency's officials are amenable to palm greasing.It must be noted that when matters reach to higher judicial forums by writ,revision,appeal etc.there also they are not quickly disposed off.No one has at least till date suggested that those forums also should be barred for lawyers.Labour laws prescribe time limits during which matters should be decided and if that is not done,the judicial authority is required to state the reason for delay.In how many cases such reasons for delay in writing are given, is a matter of research.


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