Dear friends,
I have raised an industrial dispute against my employer for my illegal dismissal under Section 10 (4)(a) of the ID Act, 1947.
I have not given my consent to my employer to be represented by a legal counsel. However, the employer chose to be represented by a legal counsel, to which I had filed an objection in an IA.
The employer then chose to take leave of the court via IA, which was ultimately refused, and their IA was rejected by a court order restraining them from being represented by any advocate. The HR manager of the employer appeared for the case and filed objections. Now, the employer has brought an advocate who is an office bearer of the employers' association.
Would this appointment of a legal counsel through an indirect way not be against the order of the labor court, restraining advocates from representing my employer, since I am appearing as a party-in-person and prosecuting the case myself? Section 36(3) of the ID Act states that the express consent of the opposite party as well as the leave of the court is required for an employer to be represented by a legal counsel. Is appointing a legal counsel in this manner legal? Could anyone share the latest citations on this for more clarity?
The legal counsel of the employer cites an old citation of 1983 Hotel Ashok, Bangalore. Are there any latest citations available that would uphold the sanctity of Section 36(4)? Thank you and regards,
Natraj.D
From India, Bangalore
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1I have raised an industrial dispute against my employer for my illegal dismissal under Section 10 (4)(a) of the ID Act, 1947.
I have not given my consent to my employer to be represented by a legal counsel. However, the employer chose to be represented by a legal counsel, to which I had filed an objection in an IA.
The employer then chose to take leave of the court via IA, which was ultimately refused, and their IA was rejected by a court order restraining them from being represented by any advocate. The HR manager of the employer appeared for the case and filed objections. Now, the employer has brought an advocate who is an office bearer of the employers' association.
Would this appointment of a legal counsel through an indirect way not be against the order of the labor court, restraining advocates from representing my employer, since I am appearing as a party-in-person and prosecuting the case myself? Section 36(3) of the ID Act states that the express consent of the opposite party as well as the leave of the court is required for an employer to be represented by a legal counsel. Is appointing a legal counsel in this manner legal? Could anyone share the latest citations on this for more clarity?
The legal counsel of the employer cites an old citation of 1983 Hotel Ashok, Bangalore. Are there any latest citations available that would uphold the sanctity of Section 36(4)? Thank you and regards,
Natraj.D
From India, Bangalore
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Section 36(2) permits an employer to be represented by an officer of the association of employers in which the employer is a member. However, it does not specify that the said officer should not be a legal practitioner. In Paradip Port Trust, Paradip Vs Their Workmen (1977 AIR 36, 1977 SCR (1) 537, 1977 (2) SCC 339), it was observed that there is no bar against a legal practitioner representing management when he is an office bearer of the employers' association.
In a very recent case, Thyssen Krupp Industries India Pvt Ltd Vs Suresh Maruti Chougule & Ors (2023 LLR 1181), the Supreme Court considered whether the decision in the above case needs to be relooked. The Court concluded that "if a legal practitioner is appointed as an officer of a company under their control and payroll, and is not a practicing advocate but was earlier a legal practitioner and is holding a law degree, it will not stand in the way of the company being represented by him. Similarly, if a legal practitioner is an officer of an association of employers, there is nothing in section 36(4) to prevent him from appearing before the Labour Court or Tribunal. In the same way, an office bearer of a Trade Union can appear for the workmen even if he is a legal practitioner."
Therefore, the employer is well entitled to engage an office bearer of the association in which he is a member. The office bearer can be a legally qualified person.
From India, Kannur
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In a very recent case, Thyssen Krupp Industries India Pvt Ltd Vs Suresh Maruti Chougule & Ors (2023 LLR 1181), the Supreme Court considered whether the decision in the above case needs to be relooked. The Court concluded that "if a legal practitioner is appointed as an officer of a company under their control and payroll, and is not a practicing advocate but was earlier a legal practitioner and is holding a law degree, it will not stand in the way of the company being represented by him. Similarly, if a legal practitioner is an officer of an association of employers, there is nothing in section 36(4) to prevent him from appearing before the Labour Court or Tribunal. In the same way, an office bearer of a Trade Union can appear for the workmen even if he is a legal practitioner."
Therefore, the employer is well entitled to engage an office bearer of the association in which he is a member. The office bearer can be a legally qualified person.
From India, Kannur
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Dear Madhu,
The interim order of the Labor court, which rejected the IA filed by the II party for availing leave of the court to be represented by a counsel, was rejected because the 1st party, not being gainfully employed, is unable to pay the counsel fee, and it would also prejudice the rights of the I party. It was further ordered that the II party could seek the assistance of an authorized representative within the scope of Sec. 36 of the ID act.
Based on this, the II party has now engaged a group of advocates, claiming to be office bearers of an employers' association in various positions like joint secretary, secretary. The II party asserts that it became a member of this employers' association after the passing of the above interim order. However, the membership itself is in doubt, as the documents filed by the authorized representative of the II party are fictitious. The application for membership is filled using the names, email IDs, and phone numbers of the II party's company, but it lacks the seal or signature of any officer of the company. Additionally, the Certificate of membership of the employers' association, indicating the II party as a member, has not been submitted before the honorable court. The receipt for payment copy submitted shows that the payment was made via PhonePe. Also, as per the letter of authority given to the HR manager, they do not have the power to appoint a body of an association.
Furthermore, crucial documents were not submitted to the I party while filing these documents with the court to authorize the person to appear on behalf of the company. The II party claims that there is no rule requiring all documents to be given to the I party as well. However, obtaining copies of these documents from the court by applying for certified copies has been challenging, as the clerk mentions that these documents have not been marked for evidence. In the past, when issues were framed, the burden on the II party to prove the fairness of the domestic inquiry against the I party workman was not met, as the II party failed to provide evidence. The court considered the II party's evidence as NIL after three chances. The II party's authorization holder stated in open court that there is no rule requiring documents and attachments submitted to the court to be given to the I party.
Upon reviewing all these documents in court, I filed an IA citing various citations because the office bearer of the employers' association is appearing as an advocate before the court, in violation of the provisions of Sec 36 of the ID act. This action could be interpreted as circumventing Sec 36(4) and also violating the provisions of the Advocates Act 1961 and BCI rules, Rule 49, which state that an advocate cannot hold dual roles as an office bearer and a practicing advocate. No letters for submission of the certificate of practice to the BCI when enrolled as joint secretary were filed before this court, and the authorized person appears in the professional attire prescribed for practicing advocates. Therefore, this is a violation of the provisions of Sec 36 and is unsustainable.
In my IA, I have prayed for the setting aside of the authorization filed by the II party as NULL and VOID, considering the irregularities in the membership in the association and hence VOID AB INITIO. I have also prayed for the court to uphold its interim order until the adjudication of this dispute.
Please advise accordingly, as the hearing for this IA is scheduled after the court's vacation.
From India, Bangalore
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The interim order of the Labor court, which rejected the IA filed by the II party for availing leave of the court to be represented by a counsel, was rejected because the 1st party, not being gainfully employed, is unable to pay the counsel fee, and it would also prejudice the rights of the I party. It was further ordered that the II party could seek the assistance of an authorized representative within the scope of Sec. 36 of the ID act.
Based on this, the II party has now engaged a group of advocates, claiming to be office bearers of an employers' association in various positions like joint secretary, secretary. The II party asserts that it became a member of this employers' association after the passing of the above interim order. However, the membership itself is in doubt, as the documents filed by the authorized representative of the II party are fictitious. The application for membership is filled using the names, email IDs, and phone numbers of the II party's company, but it lacks the seal or signature of any officer of the company. Additionally, the Certificate of membership of the employers' association, indicating the II party as a member, has not been submitted before the honorable court. The receipt for payment copy submitted shows that the payment was made via PhonePe. Also, as per the letter of authority given to the HR manager, they do not have the power to appoint a body of an association.
Furthermore, crucial documents were not submitted to the I party while filing these documents with the court to authorize the person to appear on behalf of the company. The II party claims that there is no rule requiring all documents to be given to the I party as well. However, obtaining copies of these documents from the court by applying for certified copies has been challenging, as the clerk mentions that these documents have not been marked for evidence. In the past, when issues were framed, the burden on the II party to prove the fairness of the domestic inquiry against the I party workman was not met, as the II party failed to provide evidence. The court considered the II party's evidence as NIL after three chances. The II party's authorization holder stated in open court that there is no rule requiring documents and attachments submitted to the court to be given to the I party.
Upon reviewing all these documents in court, I filed an IA citing various citations because the office bearer of the employers' association is appearing as an advocate before the court, in violation of the provisions of Sec 36 of the ID act. This action could be interpreted as circumventing Sec 36(4) and also violating the provisions of the Advocates Act 1961 and BCI rules, Rule 49, which state that an advocate cannot hold dual roles as an office bearer and a practicing advocate. No letters for submission of the certificate of practice to the BCI when enrolled as joint secretary were filed before this court, and the authorized person appears in the professional attire prescribed for practicing advocates. Therefore, this is a violation of the provisions of Sec 36 and is unsustainable.
In my IA, I have prayed for the setting aside of the authorization filed by the II party as NULL and VOID, considering the irregularities in the membership in the association and hence VOID AB INITIO. I have also prayed for the court to uphold its interim order until the adjudication of this dispute.
Please advise accordingly, as the hearing for this IA is scheduled after the court's vacation.
From India, Bangalore
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When these circumstances are available, why do you worry? The Interlocutory Application (IA) filed by you was to refrain the other parties from engaging practicing advocates, right? If you have evidence to show that these lawyers are appointed as office bearers just to defeat a case, you can defend it and ask the court to consider your IA.
The thread was started in January, and you are responding to my comment only now...! Is this right?
From India, Kannur
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The thread was started in January, and you are responding to my comment only now...! Is this right?
From India, Kannur
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1.12.09 dismissal 13.02.08 appeal.doc