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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
CIVIL APPELLATE JURISDICTION
CIVIL REVISION APPLICATION NO. 94 OF 2024
M/s. Bella Vista Drycleaners .. Applicant
Kamgar Union and Anr. .. Respondents ....................
Mr. Sunil Rajaram More, Advocate for Applicant.
None appears for Respondents.
Mr. Shailesh S. Pathak, Appointed Advocate through the Legal Aid
Department to assist the Court. ......…........…
JUDGMENT
1. Heard Mr. More learned Advocate for Applicant and Mr. Pathak learned appointed Advocate to assist the Court. None appears for Respondents despite being served.
2. On 15.09.2025, after hearing Mr. More, learned Advocate for Applicant the following order was passed:- “1. Heard, Mr. More learned Advocate for Applicant - Employer.
2. Reference (IDA) No. 158-D of 2021 is heard by 7th Labour Court, Bandra, Mumbai. A preliminary issue as to whether the Applicant employer can be allowed to be represented by Advocate in the Reference is the question which is decided in the negative, agitated before me. Applicant is a small time laundry employing 4-5 persons. In Reference (IDA), Revision Applicant being the First Party – employer filed Application below Exh. C-5 seeking a direction and permission from Labour Court to engage / appoint Advocate to represent its case in the 1 of 17 present matter and conduct cross-examination. That Application is comprehensively rejected by virtue of the impugned order appended at page Nos. 38-49 of the Revision Application.
3. Mr. More would draw my attention to the impugned order and submit that in view of the extant decisions, passed by the Delhi High Court in the case of M/s. Bhagat Brothers v. Paras Nath Upadhyay and the impugned order is bad in law. He would submit that Applicant is a small time laundry in Mumbai and its proprietor has no knowledge of law so as to crossexamine the Union’s witness in the present proceedings before the Labour Court. He would submit that substantive right of prosecuting the case by the employer therefore stands denied.
4. After hearing Mr. More and going through the aforesaid decision in my opinion prima facie an arguable case is made out by Mr. More for immediate stay of order dated 01.12.2023 and issuance of notice to Respondent. Hence order dated 01.12.2023 is stayed in the meanwhile.
5. In view of the above issue notice to the Respondents made returnable on 29.09.2025. Humdast permitted. In addition to Court's notice, Applicant is directed to serve copy of the CRA along with copy of this order on the Respondents and inform them about the next date of hearing by any permissible mode of service and file appropriate affidavit of service with tangible proof thereof on or before the next date.
6. In view of the controversy which has arisen, I have sought assistance of Mr. Shailesh Pathak learned Advocate appearing regularly in this Court in Labour Law matters to appear in the present case to assist the Court to decide the aforesaid question of representation by Advocate in Reference proceedings. I hereby direct High Court Legal Services Committee to appoint Mr. Pathak, learned Advocate to appear in the present case to assist the Court to decide the aforesaid question of representation by Advocate in Reference proceedings. High Court Legal Services Committee shall give the appointment letter to him to that effect.
7. Mr. Pathak in his opening remark informs the Court that the present issue has been decided by various High Courts including this Court also and according to his opinion, the core issue is now pending in the Supreme Court. He would submit that depending upon the exigency of the case, there are arguments and cross-arguments made whereby Courts have either allowed appointment of Advocate to represent the parties in the proceedings or denied in some cases. He would submit that challenge before the Supreme Court, inter alia, pertains to the provisions of Section 36(4) of the Industrial Disputes Act,
1947. He would submit that coupled with the said provisions Section 30 of the Advocates Act has also been invoked.
8. A copy of the CRA is directed to be given to Mr. Pathak forthwith. Mr. More in presence of Court has handed over copy 2 of 17 of CRA to Mr. Pathak. He shall prepare his submissions and accordingly file the same to assist the Court in the aforesaid case.
9. Stand over to 29th September, 2025 under the caption "for Directions".”
3. Briefly stated, Respondent No.1 – employee was engaged as a temporary worker in Applicant’s laundry. It is Applicant’s case that Respondent No.1 - employee abruptly left the job without prior intimation or notice to Applicant. Thereafter, Respondent No.1 filed Application before the Labour Commissioner seeking reinstatement and continuity in service alongwith backwages. Applicant appeared through his Advocate and filed reply therein. However owing to nonprosecution by Respondent No.1 – employee, Labour Commissioner passed order of closure of proceedings. Subsequently, Applicant received summons to appear before the 7th Labour Court at Bandra. Applicant approached the Court through his Advocate and was informed that Respondent No.1 – employee filed Application under Section 36 of the Industrial Disputes Act, 1947 (for short ‘ID Act’) seeking to restrain Applicant from being represented by Advocate. Consequently, Applicant filed his written statement drafted by his Advocate but filed by his representative. Thereafter, Respondent No.1 employee filed his evidence alongwith documents whereupon the Labour Court directed Applicant to commence cross-examination. Applicant being a person with limited expertise in the field of law filed Application seeking permission for appointment of Advocate to 3 of 17 conduct cross - examination and complete the trial. By order dated 01.12.2023, Labour Court rejected the said Application. Hence the present Civil Revision Application.
4. Mr. Pathak, learned Advocate appointed through the Legal Aid Department to assist the Court would submit that the definition of ‘Industry’ under Section 2(j) of the ID Act stands settled by the decision of the Seven Judge Bench of the Supreme Court in the case of Bangalore Water Supply and Sewerage Board Vs. A. Rajappa and Ors.[1] wherein even small scale industry or individual engaging a few persons was held to be within the ambit of ‘Industry’.
4.1. He would submit that in the present case the activity of operating a laundry with 4-5 employees would therefore come within the definition of ‘Industry’. He would submit that the primary object of Section 36 of ID Act is to regulate representation of parties before the Tribunal and to maintain balance between the workmen and employer. He would submit that under Section 36(3) of the ID Act engagement of legal practitioner is restrained while Section 36(4) carves out a limited exception permitting representation by a legal practitioner with two conditions i.e. (i) with the consent of the opposite party and (ii) with the leave of the Court or Tribunal.
4.2. He would submit that refusal of such representation by the Court cannot be exercised mechanically or on mere objection by the opposite party. He would submit that Court must examine the facts of each case and determine whether denial of such representation would cause prejudice or violation of the principles of natural justice and lead to any disbalance between the parties before the Court. He would submit that the above provision was enacted with the object to ensure fairness by preventing parties from gaining an unfair advantage through legal representation which was then a real issue when employees were not represented by their Unions or Advocates which were not within the reach of “employees” and it derived them adequate representation. He would submit that the period in which this Act came to be enacted pertained to an era when litigation could not be said to be between equals and the nature of industrial activity was limited. He would however submit that the earlier position no longer prevails in present times.
4.3. In support of his submissions, he has referred to and relied upon the decisions of the Supreme Court and this Court in the case of Paradip Port Trust, Paradip Vs. Their Workmen[2]; Thyssen Krupp Industries (India) Pvt. Ltd. Vs. Suresh Maruti Chougule and Ors.3; Yeshwant Harichandra Gharat Vs. Clairant Chemicals (I) Ltd, Mumbai[4]
4 [2010(3) Mh.L.J.] 5 of 17 and A.S. Mohammed Rafi Vs. State of Tamil Nadu represented by Home Department and Ors.[5] wherein the legality and sanctity of Section 36 of ID Act stands affirmed. He would submit that the said provision must be interpreted harmoniously thereby giving due effect to both the legislative intent of maintaining equality in industrial adjudication and the overarching principles of natural justice, fairness and due process of law.
4.4. In the case of Yeshwant Harichandra Gharat (supra), Mr. Pathak has placed reliance on paragraph Nos.25, 34, 40 and 41 of the said decision to contend that the reasons for limiting the legal representation are that same ought not to be unduly influenced by strict rules of evidence and “the procedural juggernaut”. He would argue that denying this right would violate the principles of natural justice and could result in the proceedings being deemed unfair or invalid. Paragraph Nos. 25, 34, 40 and 41 of the said decision read thus:-
4.5. He would submit that the right to defend oneself in legal proceedings is a fundamental right and the expression ‘leave of the Court’ should be perceived in a liberal manner to advance fairness and equality and a straight jacket formula cannot be applicable to all cases.
4.6. He would submit that the principle of audi alteram partem mandates that every person be afforded a fair opportunity to be heard and to be represented by the person of his choice particularly where complex procedural issues or serious consequences are involved.
5. I have heard Mr. More, learned Advocate for Applicant and Mr. Pathak, learned Advocate appointed to assist the Court and with their able assistance perused the entire record of the case. Submissions made by both the learned Advocates at the bar have received due consideration of the Court.
6. At the outset, it is seen that the controversy revolves around the interpretation of Section 36(3) and 36(4) of the ID Act. The question which arises for determination is whether a small-scale employer such as the present Applicant before me can be represented by an Advocate in proceedings before the Labour Court? Particularly when such representation is sought to ensure effective participation and fair adjudication since the Applicant - Laundry's proprietor / 8 of 17 employer is not a person well versed with the art of cross-examination and trial.
7. Representation of parties in Industrial adjudication under the ID Act is governed by Section 36 which reads as under:-
8. From the above, it is seen that Section 36 of the ID Act governs representation of parties in dispute, allows workers to be represented by Members of Registered Trade Union and employers by an Officer of Employers' Association. A key restriction is in Section 9 of 17 36(3), which imposes a complete embargo on representation of parties through Advocates/Legal practitioners before the Conciliation Officer and the Labour Court/Tribunals. However, Section 36(4) of ID Act permits representation through a Legal practitioner before Labour Courts and Tribunals with the consent of other parties and the leave of the Court.
9. Attention is drawn to the decision of the Supreme Court in the case of Paradip Port Trust, Paradip (supra) wherein the Court has exhaustively dealt with the scope of Sections 36(3) and 36(4) of ID Act in paragraph Nos.20 to 24 of the said decision which read as under:- “20. The Solicitor General contends that “and” in Section 36(4) should be read as “or” in which case refusal to consent by a party would not be decisive in the matter. The tribunal will then be able to decide in each case by exercising its judicial discretion whether leave, in a given case, should be given to a party to be represented by a lawyer notwithstanding the objection of the other party. It is pointed out by the Solicitor General that great hardship will be caused to public corporations if the union is given a carte blanche to finally decide about the matter of representation by refusing to accord its consent to representation of the employer through a legal practitioner. It is pointed out that public corporations, and even Government running a transport organisation like the State transport, cannot be expected to be members of any employers' association. In their case Section 36(2) will be of no avail. To deny them legal representation would be tantamount to denial of reasonable opportunity to represent their cases before the tribunal. It is submitted that since such injustice or hardship cannot be intended by law the final word with regard to representation by legal practitioners before the tribunal should rest with the tribunal and this will be effectively implemented if the word “and” in Section 36(4) is read as “or”. This, it is said, will also achieve the object of the Act in having a fair adjudication of disputes.
21. We have given anxious consideration to the above submission. It is true that “and” in a particular context and in view of the object and purpose of a particular legislation may 10 of 17 be read as “or” to give effect to the intent of the legislature. However, having regard to the history of the present legislation, 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, we are unable to hold that “and” in Section 36(4) can be read as “or”.
22. Consent of the opposite party is not an idle alternative but a ruling factor in Section 36(4). The question of hardship, pointed out by the Solicitor General, is a matter for the legislature to deal with and it is not for the courts to invoke the theory of injustice and other consequences to choose a rather strained interpretation when the language of Section 36 is clear and unambiguous.
23. Besides, it is also urged by the appellant that under Section 30 of the Advocates Act, 1961, every advocate shall be entitled “as of right” to practise in all courts and before any tribunal [Section 30(i) and (ii)]. This right conferred upon the advocates by a later law will be properly safeguarded by reading the word “and” as “or” in Section 36(4), says counsel. We do not fail to see some difference in language in Section 30(ii) from the provision in Section 14(1)(b) of the Indian Bar Councils Act, 1926, relating to the right of advocates to appear before courts and tribunals. For example, under Section 14(1) (b) of the Bar Councils Act, an advocate shall be entitled as of right to practise save as otherwise provided by or under any other law in any courts (other than High Court) and tribunal. There is, however, no reference to “any other law” in Section 30(ii) of the Advocates Act. This need not detain us. We are informed that Section 30 has not yet come into force. Even otherwise, we are not to be trammelled by Section 30 of the Advocates Act for more than one reason. First, the Industrial Disputes Act is a special piece of legislation with the avowed aim of labour welfare and representation before adjudicatoryauthorities therein has been specifically provided for with a clear object in view. This special Act will prevail over the Advocates Act which is a general piece of legislation with regard to the subject-matter of appearance of lawyers before all courts, tribunals and other authorities. The Industrial Disputes Act is concerned with representation by legal practitioners under certain conditions only before the authorities mentioned under the Act. Generalia specialibus non derogdnt. As Maxwell puts it: “Having already given its attention to the particular subject and provided for it, the legislature is reasonably presumed not to intend to alter that special provision by a subsequent general enactment unless that intention be manifested in explicit language... or there be something in the nature of the general one making it unlikely that an exception was intended as regards the special Act. In the absence of these conditions, the general statute is read as silently excluding from its operation the cases which have been provided for by the 11 of 17 special one [ Maxwell on Interpretation of Statutes, 11th Edn, p. 169].”
24. Second, the matter is not to be viewed from the point of view of legal practitioners but from that of the employer and workmen who are the principal contestants in an industrial dispute. It is only when a party engages a legal practitioner as such that the latter is enabled to enter appearance before courts or tribunals. Here, under the Act, the restriction is upon a party as such and the occasion to consider the right of the legal practitioner may not arise.”
10. The Supreme Court has thus, emphatically held that both consent of the opposite party and leave of the Court are required before any legal practitioner is permitted to represent either party in such proceedings. This view has been reaffirmed by the decision of the Supreme Court in the case of Thyssen Krupp Industries India Private Limited and Others (supra).
11. Thus, it is necessary to examine the factual matrix in this case keeping in mind the twin tests of “consent of the other party” and the “leave of the Court”. Admittedly, Applicant before me is a small laundry establishment employing four to five workers. The record shows that Applicant appeared through his Advocate at the initial stage before the Labour Commissioner which was then dismissed for default. It is seen that Respondent No.1 – employee thereafter filed Reference IDA No. 158-D of 2021 and invoked Section 36 to restrain such representation. The Labour Court by its order dated 01.12.2023 rejected Applicant’s request to engage Advocate to conduct crossexamination of the worker and trial. The correctness of that order is 12 of 17 under challenge.
12. In this case, it is pertinent to note that during initial proceedings before the Labour Commissioner, Applicant was duly represented by Advocate and reply to the original Application was filed by the Advocate. However, due to Respondent – employee’s absence in those proceedings the case was dismissed for default. However Respondent - employee thereafter filed his preliminary objections for the first time in subsequent proceedings i.e. Reference IDA No.158-D of 2021 before the Labour Court.
13. The Labour Court while rejecting Applicant’s plea, failed to exercise its jurisdiction in the letter and spirit of Section 36(4). It is seen that Court's refusal was mechanical and solely based on the objection raised by Respondent - employee. The order does not disclose any reason or consideration as to whether denial of representation would cause prejudice to the Respondent – employee or affect the fairness of the proceedings. Hence, the approach adopted by the learned Labour Court defeats the purpose of the provision and offends the principles of natural justice in the facts of the present case.
14. On these lines, it is necessary to set out the decision of this Court in the case of T.K. Varghese Vs. Nichimen Corporation[6] wherein Court held that consent cannot be withheld without any reasons or 6 2001 (4) L.L.N. 187 13 of 17 justification. Relevant paragraph Nos.9, 10 and 11 of the said decision are reproduced below for immediate reference:- “9. Moreover, if we consider the history of industrial litigation the legal fraternity has its major contribution to the development of this branch of law. 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. The judgments of the lower Courts do reflect the kind of assistance received by them. It facilitates even the higher Courts if the decisions are written after good assistance from the bar. The foundation of the justice is the fair and equal fight between the parties. Ultimately, if the Court/Tribunal grants “Leave” to a legal practitioner to represent a party before it such leave by the Court/Tribunal would be in the interest of justice and fair-play while the “consent” of the other party very often is actuated by malice or mala fides or motivated to try to get upper hand in the litigation.
10. At the same time, we cannot forget that under section 7(3)(d-1) of the Act an advocate or attorney is permitted to practise before the Industrial Court or Tribunal or Labour Court to become eligible for appointment as a presiding officer of a Labour Court. In the light of this provision what is more important for a legal practitioner to be able to appear before the Labour Courts/Tribunal is the unbiased leave of such forum than the interested and motivated denial of consent by the other party. The grant of “leave” would be more decisive rather than the “consent” of the party. In view of the above discussion, according to me, the leave granted by the Labour Court/Tribunal will have overriding effect as a party cannot be represented by a legal practitioner even when the other side consents without the leave of the Labour Court/Tribunal. Considering the vast development of law and the complications which arise in the litigation the Labour Court/Tribunal has an inherent right in the interest of justice to seek proper assistance in resolving the Industrial dispute to the satisfaction of both the parties and in accordance with law and grant “leave” to a party before it to be represented by a legal practitioner.
11. There is no absolute bar for the legal practitioner to appear before the Labour Court/Tribunal as it is under section 36(3) in the Conciliation proceedings. No party can withhold appearance of a legal practitioner by denying “consent” without any justification and arbitrarily for no rhyme or reason. If a party is represented by an office bearer etc. of a Trade Union or an Association, it cannot refuse to grant consent to the other side without any reasonable cause and justification to engage a legal practitioner and the Labour Court/Tribunal can always 14 of 17 consider the bona fides of such a party withholding consent and can always grant “leave” to the other parties to be represented by a legal practitioner in the interest of justice notwithstanding the refusal of consent by the other side. No party to the proceedings has an unbridled and absolute right to refuse to give consent to other party. No party can adopt unreasonable attitude to exploit the situation arising out of section 36(4) of the Act to the deliberate disadvantage of the other side. This provision was enacted to help the budding Trade Union movement and it was never intended for them to take wrongful advantage of the same even after the Trade Unions have become capable of defending themselves and their workmen. The provision is always subject to the scrutiny of the Labour Court/Tribunal and it can always decide the question of refusal of consent by the other party and can overrule the refusal of the consent on merits independently while considering to grant or refuse the “leave” contemplated under section 36(4) of the Act.”
15. With regard to the facts of the present case, it is seen that Applicant - Laundry's proprietor is not legally trained. Proceedings before Labour Court involve cross-examination of opponent's witnesses and interpretation of statutory provisions and absence of professional assistance in such circumstances is bound to cause grave prejudice to the Applicant. The right to defend one’s case effectively forms an integral part of the right to fair procedure and is protected under Articles 14 and 21 of the Constitution of India. It is absurd in the present case to expect that Applicant - Laundry's proprietor to crossexamine the opponent worker when he has expressed complete helplessness about the procedure or proceedings and on the other side allow the workman to be represented by Union representatives. Further Applicant is a small time press - laundry employing 4 to 5 persons and not having a legal department to take care of its cases. Hence, in my opinion, the discretion vested in the Labour Court must 15 of 17 therefore be exercised liberally to advance the cause of justice in the attending facts and circumstances of each case.
16. The submissions advanced by Mr. Pathak that the expression “leave of the Court” under Section 36(4) of ID Act must be interpreted in a broad and purposive manner, therefore merits acceptance in the facts of this case. When a party demonstrates genuine inability to represent itself and seeks professional assistance without any element of malafides, the Labour Court ought to grant such leave unless strong reasons exist to the contrary. A contrary interpretation would render the statutory discretion completely trivial and perpetuate inequality between unequally placed parties.
17. In the present case, the Labour Court overlooked these settled principles of law and natural justice and failed to appreciate that denial of representation to Applicant would not advance the object of Section 36 of the ID Act but would instead result in miscarriage of justice. The impugned order dated 01.12.2023 therefore in my opinion cannot be sustained.
18. In view of the above observations and findings, the impugned order dated 01.12.2023 passed by the learned 7th Labour Court, Bandra, in Reference (IDA) No. 158-D of 2021 is quashed and set aside. Applicant is permitted to be represented by Advocate of his choice before the Labour Court for the purpose of conducting cross- 16 of 17 examination of the opponent's witnesses, for leading evidence and advancing submissions in the said Reference. The Labour Court shall proceed with the matter on merits and conclude the Reference in accordance with law.
19. This Court appreciates the able and valuable assistance rendered by Mr. Shailesh S. Pathak, learned Advocate appointed by the Court through the Legal Aid Services for assisting the Court in the Civil Revision Application. Mr. Pathak shall be entitled to fees for his appearances and the work done in accordance with law from the Legal Aid Department.
20. Accordingly, the Civil Revision Application is allowed and disposed. [ MILIND N. JADHAV, J. ] Ajay 17 of 17 TRAMBAK UGALMUGALE