Section 36(4) discretion must ensure parity where one party is represented by a legally trained practitioner.

The petitioners (AIIMS Jodhpur) removed the respondent, a Nursing Officer, from service on 23.03.2023 following disciplinary proceedings.

The respondent challenged this termination before the Industrial Disputes Tribunal and Labour Court, Jodhpur, under Section 33-A of the Industrial Disputes Act, 1947.

During the proceedings, the respondent moved an application under Section 36 of the Act to restrain AIIMS from being represented by a legal practitioner.

On 16.05.2024, the Tribunal allowed the application, despite the fact that the respondent was himself being represented by an enrolled advocate (Mr. Bhagirath Chandora) acting in the capacity of a trade union office bearer.

AIIMS filed the present writ petition challenging the Tribunal's restraining order.

1. Whether Section 36 of the Industrial Disputes Act, 1947, imposes an absolute bar on representation by legal practitioners before the Labour Court/Tribunal.

2. Whether the Tribunal was justified in denying legal representation to the employer when the workman was effectively receiving legal assistance through a trained advocate acting as a union official.

The court primarily applied Section 36 of the Industrial Disputes Act, 1947, noting that Section 36(4) permits representation by a legal practitioner with the consent of the opposite party and the leave of the Tribunal.

The court relied on the principle of parity and natural justice, citing the Bombay High Court in T.K. Varghese v. Nichimen Corporation, which held that discretion under Section 36 must ensure fairness between parties.

It further applied the rationale from The Registrar, Anna University v. The Presiding Officer (Madras High Court) and G.M., IB Valley Area v. Central Govt. Industrial Tribunal (Orissa High Court), asserting that denying an employer counsel when the workman is assisted by a legally trained person violates Article 14 of the Constitution and creates manifest inequality.

The court reasoned that Section 36(4) does not create an absolute prohibition but confers judicial discretion upon the Tribunal, which must be exercised based on sound principles rather than mechanically.

The court observed that the respondent’s representative, though labeled a union office bearer, was an active legal practitioner; thus, his professional status remained that of a legal expert providing technical assistance.

The court held that allowing one party to benefit from legal expertise while denying it to the other results in "one-sided" adjudication and violates the principle of parity embedded in the concept of fairness.

The court distinguished precedents like Paradip Port Trust and Thyssen Krupp Industries, noting they did not address scenarios where the objecting party was itself already represented by a legal practitioner under a different guise.

The Court held that the statutory restriction under Section 36 cannot be used to permit one party to enjoy legal assistance while denying it to the other, especially when the objector is also utilizing a lawyer.

The High Court quashed the Tribunal’s order dated 16.05.2024 and permitted AIIMS to be represented by Mr. K.S. Yadav or any other advocate of their choice.