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1 - 9 of 9 (0.21 seconds)The Industrial Disputes Act, 1947
Engineering Mazdoor Sabha, Bombay vs Meher (M.R.) (Industrial Tribunal, ... on 12 January, 1965
It will be thus seen that legal practitioners have no right to appear in any conciliation proceedings under the said Act or in any proceeding before a Court, which expressions is defined by cl. (f) of S. 2 as a Court of Enquiry constituted under the said Act. Further in any proceeding before a Labour Court or a Tribunal or a National Tribunal, a party to a dispute can be represented by a legal practitioner provided two conditions are fulfilled, namely, the consent of the other party to such proceeding is given thereto and the leave of the Labour Court or the Tribunal or the National Court. As the case may be, is granted to such appearance. Neither the said Act not any of the rules made thereunder provide for the form or the manner in which the consent of the other party is to be given. Normally, any leave granted by a Court or a Tribunal would be in writing. Similarly, in ordinary cases, the consent of the other party would also be given in writing. But the question is whether from this does it follow that the consent of the other side or the leave of the Court must always be in writing. Sub-section (4) of S. 36 does not contain any such requirement, and, therefore, it cannot be held that implied consent is negatived by the statue. The case of Engineering Mazdoor Sabha, Bombay v. Meher and others (supra) is a direct authority for the proposition that the consent of the other side can be implied from the facts and circumstances of the case. This was a decision of a Division Bench of this High Court, and therefore, binding upon me. While we turn to the facts of that case, we find that the facts of the present case are much stronger than the facts before the Division Bench. In that case, an application for interim bonus had been made by the Union. On September 12, 1963, advocate Mr. Phadke appeared for the employers and one Joshi. General Secretary of the Engineering Mazdoor Sabha, Bombay. Appeared for the union and prayered for an adjournment since one Mr. Mehta who appeared for the union was out of Bombay. Mr. Phadke had no objection to the adjournment being granted, and the matter was thereupon adjourned to September 21, 1963. On that day, an objection was raised to the appearance of Mr. Phadke. The Tribunal held that the objection ought to have been taken at the first hearing of the matter, and it was too late to take such an objection subsequently. The union filed a writ petition quash that order. The writ petition was dismissed, the High Court holding that even though the union had not given its express consent to the appearance of Mr. Phadke, the union must be held to have given its consent by not objecting to the appearance of Mr. Phadke on September 2, 1963, and that thereafter it was not open to the union to object to his appearance. Turning not to that of our own case, here we have not merely an application for an adjournment made by the representative of the union which was not objected to by the other side, but here we have a case where the union representative approaches the advocate for the petitioner company and obtains his consent to the adjournment in writing at the foot of the application for adjournment. The consent was given by Mr. Pai in express terms as advocate for the petitioner company. It is obvious that no advocate can give his consent to the adjournment of a matter unless he is representing in Court the party on whose behalf he is consenting. Such representation for party can only by a Vakalatnama on behalf of that party filed by that advocate in Court. Strangely enough, when we turn to the affidavit in reply filed by the said Krishnan, we find in paragraph 6 of that affidavit that he has gone to the length of averring that in October 11, 1977, Pai was present in Court on behalf of the Petitioners, but had not disclosed that he was an advocate and that he had not filed on that day is Vakalatnama in the Labour Court, and that without filing his Vakalatnama on behalf of the petitioners, the said Pai was present in Court and had made an endorsement to the effect that there was no objection to the adjournment being granted to the respondent No. 2, and has signed the said endorsement. In making this statements on oath, what the said Krishnan has overlooked is that the consent which was endorsed by Mr. Pai at the foot of the said application is as the advocate for the petitioner company and which anybody could plainly read. He has also not denied in the said paragraph that it was the 2nd respondent union which approached Mr. Pai to obtain this consent for the adjournment. The said Krishnan could not be unaware of the position that no advocate would have authority to consent to an adjournment in a Court or a Tribunal unless he had field in that Court or Tribunal his authority to represent his client which could only be by filing his Vakalatnama. The proceedings that have taken place subsequent to October 11, 1977, clearly show that after obtaining the consent of Mr. Pai as an advocate for the petitioners, and thereby obtaining from the Labour Court an adjournment of the hearing and time to file the statement of claim, the 2nd respondent union has turned round and his dishonestly sought to object to Mr. Pai's appearance. These are tactics which no Court or Tribunal should ever countenance. By approaching Mr. Pai and obtaining his consent as the advocate for the petitioner company, the 2nd respondent union and the 3rd respondent who is represented by it have both obtained the benefit of an adjournment and time for filing the statement of claim. They have led and induced the petitioners and Mr. Pai to believe that the 2nd respondent union had consented to the petitioners being represented by a legal practioner. They have equally induced such a belief in the Labour Court, which in view of this consent on the part of 2nd respondent permitting Mr. Pai to appear. Having done so, the respondents Nos. 2 and 3 only must be held to have given their consent to the appearance of Mr. Pai, but must be held estopped from contending that they had not given their consent or from objecting to the appearance of Mr. Pai on behalf of the petitioners. I, may point out that in the affidavit in rejoinder made by Sudhir Shah, a Director of the petitioner company it is stated that the said Shah had personally taken inspection of the records of the Labour Court on December 2, 1981, and had himself seen that the Vakalatnama was filed on October 11, 1977, by Mr. Pai. Mr. Sawant, learned Advocate, for the petitioners had accompanied the said Shah and has made a statement at the Bar that he himself had personally seen verified that the Vakalatnama of Mr. Pai was filed before the Labour Court on October 11, 1977. So much for the veracity of the said Krishnan when he says that when Mr. Pai gave his consent, he had not filed his Vakalatnama. Mr. Shetye, learned advocate, for respondents Nos.
Section 151 in The Code of Civil Procedure, 1908 [Entire Act]
Section 2 in The Industrial Disputes Act, 1947 [Entire Act]
Section 30 in The Advocates Act, 1961 [Entire Act]
Grindlays Bank Ltd vs Central Government Industrial ... on 12 December, 1980
The correct position would be as laid down by the Supreme Court in the case of Grindlays Bank Ltd. v. Central Government Industrial Tribunal and other [1981-I L.L.J. 32]. In that case the Supreme Court held that the expression "review" is used in two distinct senses namely, (1) a procedural review which is either inherent or implied in Court or Tribunal to set aside a palpably erroneous order passed under misapprehension by it, and (2) a review on merits when the error sought to be corrected to be is one of law and is apparent on the face of the record and that it is in the second case that no review lies on merits unless a statute specifically provides for it. The Supreme Court further held that when a review is sought due to a procedural defect, the inadvertent error committed by the Tribunal must be corrected ex debito Justitiae in order to prevent abuse of process and such a power inheres in every Court or Tribunal. In my opinion, had the order passed by the Tribunal on November, 9, 1977, were a wrong order and such an order was sought to be reviewed, the case would fall under the first category and the review application would be competent. The said order, however, being one rightly passed, and in my opinion, the only one which the respondent No. 1 could have passed in the facts and circumstances of the case, the question of reviewing it did not arise and the impugned order of the respondent No. 1 on the said review application is contrary to law and not sustainable on the facts of the case, and must, therefore, be set aside.
Article 226 in Constitution of India [Constitution]
The Management Of Kammavar Achukudam ... vs The Industrial Tribunal, High Court ... on 18 November, 1958
5. In the view I take of the matter, it would be unnecessary for me to express any opinion on whether in a case such as this the Labour Court would have power to review is order. Since, however, the point has been argued before me, I propose to deal with it briefly. Mr. Sawant on behalf of the Petitioners relied upon a decision of a learned single Judge of the Madras High Court in the case of Management Kammavar Achukudam Ltd and others v. The Industrial Tribunal, Madras and another . In that case, it was held that an Industrial Tribnual is creature of statute and it has no powers except those which can be traced to the statute. It was further held that in this respect it differs from Courts for in the case of Civil Courts their inherent powers are expressly saved by S. 151 of the Code of Civil Procedure, but as no such a provision exists in the statute setting up Industrial Tribunals, these Tribunals have no such a inherent powers. It is true that the Industrial Disputes Act does not contain any provision conferring power upon a Labour Court to review an order passed by it earlier. From this does it follow that in no circumstances can the Labour Court review its own order ?
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