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Judgment
Mr. Mishra, learned advocate appears on behalf of petitioners (management).Mr.Ghochhayat, learned advocate,Central Government Counsel appears on behalf of Union of India and Mr. Patnaik, learned advocate for opposite party no.3 (workman).
Mr. Mishra submits, challenge of his clients in the writ petition is regarding vires of sub-section (4) in section 36, Industrial Disputes Act, 1947. There was earlier writ petition involving his clients and the workman. Being aggrieved by order made in the writ petition, his clients had preferred Special Leave Petition S.L.P. (C) CC no.568 of 2017. His clients had also invoked writ jurisdiction of the Supreme Court by Writ Petition (s) (Civil) no.28 of 2017 urging the vires challenge. By common order dated 31st January, 2017 the writ petition was allowed to be withdrawn with liberty to approach the High Court. The Special Leave Petition was dismissed. We appreciate the submission to be that only vires challenge can be urged by petitioners on having moved this Court pursuant to the liberty granted. This is because the Special Leave Petition challenging correctness of the order passed in the writ petition, stood dismissed.
Between Mr. Mishra and Mr. Patnaik several orders/ judgments have been relied upon. They are as follows:-
(i) Judgment dated 21st April, 1992 by a learned single Judge of the High Court of Allahabad in C.M.W.P. no.6116 of 1991 (I.C.I. India Ltd. Vs. Presiding Officer, Labour Court (IV) and Ors.). Opinion expressed therein is, inter alia, section 36(4) is arbitrary.
(ii) Kusum Ingots and Alloys Ltd. Vs. Union of India (UOI) and others, reported in (2004) 6 SCC 254 for declaration of law regarding approach being made to the High Court on questioning constitutionality of a provision in statute enacted by Parliament.
(iii) Order dated 6th May, 2011 of the Supreme Court in Petition(s) for Special Leave to Appeal (Civil) no.10138/2010 (M/s. Hygienic Foods v. Jasbir Singh and others). Prima facie opinion was expressed in the interlocutory order of the Supreme Court saying provision in the Act debarring lawyers from appearing before the labour Court/Industrial Tribunal is unconstitutional being violative of articles 14 and 19(1)(g) of the Constitution. By subsequent order dated 8th May, 2014 a different Bench of the Supreme Court disposed of the Special Leave Petition leaving the issue of law open to be decided.
(iv) View expressed by coordinate Bench of this Court on judgment dated 10th August, 2016 in petitioners’ own case [W.P.(C) no.13843 of 2016]. The view was that the Legislature had legislated provision in section 36(4) and it cannot be said to have been done as a mere formality. No infirmity was found in order impugned therein on the management being debarred from being represented by legal practitioner.
(v) Order dated 21st August, 2019 of the Supreme Court in, inter alia, Civil Appeal no.6586 of 2019 (Thyssen Krupp Industries India Private Limited v. Suresh Maruti Chougule and Others), whereby on granting the leave to appeal against dismissal of writ petition challenging validity of section 36(4), there was direction to place the papers before the Hon’ble The Chief Justice of India for suitable orders regarding reference to a larger Bench, in view of two earlier judgments passed by said Court in Ashoka Marketing v. Punjab National Bank, reported in (1990) 4 SCC 406 and Paradip Port Trust, Paradip v. Their Workmen reported in (1977) 2 SCC 339.
(vi) Judgment dated 13th May, 2022 of coordinate Bench in W.P.(C) No.20007 of 2013 (M/s. Orissa Forest Development Corporation Limited v. Minati Behera), wherein the Division Bench acted upon the view taken by the Allahabad High Court in I.C.I. India Ltd. (supra).
Parties are requested to place the judgments in Ashoka Marketing (supra) and Paradip Port Trust (supra) on adjourned date.
List on 7th November, 2023. Interim order to continue till next date of hearing.
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