Dear friends,
I have raised an industrial dispute against my employer for my illegal dismissal u/s. 10 (4)(a) of the ID act, 1947.
I have not given my consent to my employer to be represented by a legal counsel. But the employer chose to be represented by a legal counsel to which i had filed an objection an IA.
However, the employer chose to take leave of the court by means of IA, which was ultimately refused and their IA rejected, by means of a court order restraining not to be represented by any advocate. The HR manager of the employer appeared for the case and filed objections and 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 labour court restraining advocates representing my employer, since i am appearing as party-in-person and prosecuting the case myself. When sec. 36(3) of the ID act states that the express consent of the opposite party as well of the leave of the court is required for an employer to be represented by a legal counsel, appointing a legal counsel this way is legal?
Could anyone share latest citations on this for more clarity.
The legal counsel of the employer cites an old citation of 1983 Hotel Ashok, Bangalore. Would any latest citations which would withold the sanctity of Sec 36(4) be available.
Tks, nregds,
Natraj.D
From India, Bangalore
I have raised an industrial dispute against my employer for my illegal dismissal u/s. 10 (4)(a) of the ID act, 1947.
I have not given my consent to my employer to be represented by a legal counsel. But the employer chose to be represented by a legal counsel to which i had filed an objection an IA.
However, the employer chose to take leave of the court by means of IA, which was ultimately refused and their IA rejected, by means of a court order restraining not to be represented by any advocate. The HR manager of the employer appeared for the case and filed objections and 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 labour court restraining advocates representing my employer, since i am appearing as party-in-person and prosecuting the case myself. When sec. 36(3) of the ID act states that the express consent of the opposite party as well of the leave of the court is required for an employer to be represented by a legal counsel, appointing a legal counsel this way is legal?
Could anyone share latest citations on this for more clarity.
The legal counsel of the employer cites an old citation of 1983 Hotel Ashok, Bangalore. Would any latest citations which would withold the sanctity of Sec 36(4) be available.
Tks, nregds,
Natraj.D
From India, Bangalore
Section 36(2) permits an employer being represented by an officer of the association of employers in which the employer is a member. But it does not say 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 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 has to be relooked and came in to a conclusion that 'if a legal practitioner is appointed as an officer of a company under their control and pay roll, and is not a practicing advocate but was earlier a legal practitioner is is holding a law degree 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 similar way, an office bearer of a Trade Union can appear for the workmen even if he is a legal practitioner."
therefore, the employer is very 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
4265therefore, the employer is very 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
Dear Madhu,
The interim order of the Lbr court which rejected the IA filed by the II party for availing leave of the court for being represented by a counsel was rejected as the 1st party not being gainfully employed is unable to pay the counsel fee and also it would prejudice the rights of the I party. It was also ordered that the II party could take the assistance of the authorized representative within the scope of sec. 36 of the ID act.
Based on this, the II party has now brought it in a group of advocates who claiming themselves to be office bearers of an employers association in various position like joint secretary, secretary. The II party claims to have become a member of this employer's association after the passing of the above interim order. The membership itself is in doubt, since the documents filed by the authorised representative of the II party are fictitious. The application for membership is filled up using the names, e mail id's and phone nos of the II party co, but bears no seal or signature of any officer of the company. Also the Certificate of membership of the employers association indicating that the II party is a member is not submitted before the honble court. The receipt for payment copy has been submitted wherein the payment has been made by Phone pay. Also as per the letter of authority given to the HR manager, he has no powers to appoint a body of association. Also while filing these documents with the court for authorizing the person to appear on behalf of the company, the crucial documents are not submitted to the I party, though the II party claims that there is no rule that all documents have to be given to the I party also. I am unable get copies of these documents from the court by applying for certified copies, as the clerk says that these documents have not been marked for evidence. Also in the past when the issues were framed, the burden on the II party to prove if the domestic enquiry held against the I party workman was just and fair for which the II party did not file evidence and after 3 chances, the court considered II party evidence as NIL. The II party's authorization holder claims in the open court that there is no rule that documents and attachments submitted to the court should be given to the I party also. When the application for membership without any company seal or signature was mentioned to the PO in the open court, it was just ignored.
After going through all these documents in the court, i filed an IA citing various citations since the office bearer of the employers association is appearing as an advocate before the court, in violation of the provision of sec 36 of ID act (nothing but circumvention of sec 36(4) and also violating provisions of Advocates act 1961 and BCI rules, Rule 49 wherein an advocate cannot be in two places, as a office bearer as well as practising advocate. No letters for submission certificate of practice to the BCI when enrolled as joint secretary is filed before this court and the authorised person appears in the professional attire prescribed for practising advocates. Hence it is violation of provision of sec 36 and unsustainable.
In my IA i have prayed for setting aside of the authorisation filed by II party as NULL and VOID, since the membership in the association itself is irregular due to the above mentioned irregularities and hence VOID AB INITIO. Also prayed for the court to uphold its interim order till the adjudication of this dispute.
Please advice accordingly as the hearing on this IA is fixed after the courts vacation.
From India, Bangalore
The interim order of the Lbr court which rejected the IA filed by the II party for availing leave of the court for being represented by a counsel was rejected as the 1st party not being gainfully employed is unable to pay the counsel fee and also it would prejudice the rights of the I party. It was also ordered that the II party could take the assistance of the authorized representative within the scope of sec. 36 of the ID act.
Based on this, the II party has now brought it in a group of advocates who claiming themselves to be office bearers of an employers association in various position like joint secretary, secretary. The II party claims to have become a member of this employer's association after the passing of the above interim order. The membership itself is in doubt, since the documents filed by the authorised representative of the II party are fictitious. The application for membership is filled up using the names, e mail id's and phone nos of the II party co, but bears no seal or signature of any officer of the company. Also the Certificate of membership of the employers association indicating that the II party is a member is not submitted before the honble court. The receipt for payment copy has been submitted wherein the payment has been made by Phone pay. Also as per the letter of authority given to the HR manager, he has no powers to appoint a body of association. Also while filing these documents with the court for authorizing the person to appear on behalf of the company, the crucial documents are not submitted to the I party, though the II party claims that there is no rule that all documents have to be given to the I party also. I am unable get copies of these documents from the court by applying for certified copies, as the clerk says that these documents have not been marked for evidence. Also in the past when the issues were framed, the burden on the II party to prove if the domestic enquiry held against the I party workman was just and fair for which the II party did not file evidence and after 3 chances, the court considered II party evidence as NIL. The II party's authorization holder claims in the open court that there is no rule that documents and attachments submitted to the court should be given to the I party also. When the application for membership without any company seal or signature was mentioned to the PO in the open court, it was just ignored.
After going through all these documents in the court, i filed an IA citing various citations since the office bearer of the employers association is appearing as an advocate before the court, in violation of the provision of sec 36 of ID act (nothing but circumvention of sec 36(4) and also violating provisions of Advocates act 1961 and BCI rules, Rule 49 wherein an advocate cannot be in two places, as a office bearer as well as practising advocate. No letters for submission certificate of practice to the BCI when enrolled as joint secretary is filed before this court and the authorised person appears in the professional attire prescribed for practising advocates. Hence it is violation of provision of sec 36 and unsustainable.
In my IA i have prayed for setting aside of the authorisation filed by II party as NULL and VOID, since the membership in the association itself is irregular due to the above mentioned irregularities and hence VOID AB INITIO. Also prayed for the court to uphold its interim order till the adjudication of this dispute.
Please advice accordingly as the hearing on this IA is fixed after the courts vacation.
From India, Bangalore
When these are circumstances available, why do you worry? Interlocutory Application (IA) filed by you was to refrain the other parties from engaging practicing advocates, right? If you have evidences 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 commnet now only...! Is this right?
From India, Kannur
The thread was started in January, and you are responding to my commnet now only...! Is this right?
From India, Kannur
Community Support and Knowledge-base on business, career and organisational prospects and issues - Register and Log In to CiteHR and post your query, download formats and be part of a fostered community of professionals.
1.12.09 dismissal 13.02.08 appeal.doc