EPFO EO/AO 2023 General Ability Test · Question 100 of 120

Correct — C, (c) Can be permitted by the forum if the other party does not object or gives consent. The governing provision is SECTION 36(4) of the Industrial Disputes Act, 1947, which reads that in any proceeding before a Labour Court, Tribunal or National Tribunal, a party to a dispute may be represented by a legal practitioner with the consent of the other parties to the proceeding and with the leave of the Labour Court, Tribunal or National Tribunal, as the case may be. Every word of that sub-section matters. Representation by a lawyer before these three forums is possible — so it is not forbidden. But it is not available for the asking, because two separate conditions must be satisfied: the other side must consent, and the forum must grant leave. Consent alone is not enough, and leave alone cannot cure the absence of consent. That is exactly what option (c) describes: the forum may permit it, and the gate is the other party's consent or absence of objection. The Supreme Court settled the point in Paradip Port Trust against Their Workmen, holding that section 36(4) confers no right on a party to be represented by a legal practitioner; the discretion of the tribunal to grant leave arises only after the opposite party has consented, so the consent is a condition precedent and not merely a factor the tribunal weighs. The Court also drew a distinction that is frequently examined: an officer of a company or of a union who happens to hold a law degree is not appearing as a legal practitioner when he appears in his capacity as an officer, and section 36(4) is not attracted to him. The policy behind the restriction is the reason it is worth remembering. Industrial adjudication was designed to be quick, cheap and accessible to a workman who could not afford counsel. If lawyers appeared as of right, the party with the deeper pocket would ordinarily be the employer, and the inequality of arms would defeat the purpose of the machinery. So the Act builds representation around collective institutions instead: section 36(1) entitles a workman to be represented by an office bearer of a registered trade union of which he is a member, of a federation to which that union is affiliated, or — if he belongs to no union — of a union connected with his industry or by another workman in it; section 36(2) gives the employer the mirror image through an association of employers. One further distinction completes the picture and explains why option (b) is written as it is. Section 36(3) says that no party shall be entitled to be represented by a legal practitioner in any conciliation proceeding under the Act or in any proceeding before a Court, meaning a Court of Inquiry. There, the bar is absolute. It is only before the three adjudicatory forums named in the stem — the Labour Court under section 7, the Tribunal under section 7A and the National Tribunal under section 7B — that the conditional permission of section 36(4) operates. Note how the options are printed: two of them turn on a negation, 'Not at all' in option (b) and 'does not object' in option (c), both set in ordinary weight rather than emphasised, so the reading has to be done carefully.

• (a)A statutory right — This overstates the position. A statutory right is one a party may assert without anyone's permission, and section 36(4) gives nothing of the kind: it makes representation by a legal practitioner conditional on the consent of the other parties and on the leave of the forum. The Supreme Court has said so expressly, holding that no right to be represented by counsel is conferred and that the tribunal's discretion is reached only after consent is given. The option is tempting because the provision is undoubtedly statutory, and because a general right to be defended by counsel exists elsewhere in Indian law — but the general right does not carry into industrial adjudication, where the statute deliberately limits it.
• (b)Not at all permissible — This understates the position by taking a rule that applies to different proceedings and extending it to these. An absolute bar does exist, but section 36(3) confines it to conciliation proceedings and to proceedings before a Court of Inquiry — the stages where the object is settlement or fact-finding rather than adjudication. Before a Labour Court, a Tribunal or a National Tribunal, section 36(4) permits representation by a legal practitioner subject to consent and leave. A candidate who knows only that the Act restricts lawyers, without knowing where the restriction is absolute and where it is conditional, will pick this option.
• (d)May be permitted if such permission is granted by the High Court of the State/Union Territory — No High Court is involved. Section 36(4) places the decision with the forum before which the proceeding is pending, once the other parties have consented; it does not route the question through any superior court, and it would defeat the Act's purpose of speedy adjudication if a preliminary application to the High Court were needed before a lawyer could appear. The High Court does have a role in industrial adjudication, but it is the supervisory jurisdiction under Articles 226 and 227 of the Constitution, exercised after an award, not a permission-granting role before a hearing.

The Industrial Disputes Act, 1947 provides machinery for investigating and settling industrial disputes, and the machinery is arranged in a deliberate order from persuasion to adjudication. Works Committees under section 3 exist in establishments with a hundred or more workmen to promote good relations. Conciliation Officers under section 4 and Boards of Conciliation under section 5 try to bring the parties to a settlement. A Court of Inquiry under section 6 investigates matters connected with a dispute and reports. Adjudication proper is done by three bodies: the Labour Court under section 7, which deals with the matters in the Second Schedule such as the propriety of a dismissal and the legality of a standing order; the Industrial Tribunal under section 7A, which deals with the Third Schedule matters such as wages, bonus, hours of work and retrenchment, and with Second Schedule matters as well; and the National Tribunal under section 7B, constituted by the Central Government for disputes of national importance or affecting establishments in more than one State. Section 36 governs who may appear before all of this machinery, and it draws the line in two places: an absolute prohibition on legal practitioners in conciliation and in a Court of Inquiry under sub-section (3), and a conditional permission before the three adjudicatory forums under sub-section (4). The premise throughout is collective representation — a workman appears through his union and an employer through his association — because the Act treats an industrial dispute as a collective matter rather than a private litigation.

The Industrial Disputes Act is examined in every EO/AO paper, and questions on it fall into three groups: the authorities and what each does, the definitions of strike, lock-out, lay-off, retrenchment and closure, and the procedural rules of which this is one. This item is a careful-reading question as much as a knowledge question, because all four options describe positions that are true of something in Indian law and only one is true of section 36(4). The habit rewarded is holding the exact conditions of a provision rather than its general drift: 'lawyers are restricted' is not enough to choose between options (b) and (c). Note the booklet's spacing before the colon at the end of the stem, which is its style throughout.

• Section 36(4) of the Industrial Disputes Act, 1947 allows representation by a legal practitioner before a Labour Court, Tribunal or National Tribunal with the consent of the other parties and the leave of the forum.
• Both conditions must be satisfied; consent of the other parties is a condition precedent to the forum's discretion.
• Section 36(3) absolutely bars representation by a legal practitioner in conciliation proceedings and before a Court of Inquiry.
• Section 36(1) entitles a workman to be represented by an office bearer of a registered trade union, of an affiliated federation, or of a union connected with his industry.
• Section 36(2) gives the employer the corresponding right through an association of employers.
• The Supreme Court in Paradip Port Trust against Their Workmen held that section 36(4) confers no right of legal representation.
• An officer of a party who happens to be legally qualified but appears in his capacity as an officer is not a legal practitioner for the purposes of section 36(4).
• Labour Courts are constituted under section 7, Industrial Tribunals under section 7A and National Tribunals under section 7B.

• Extending the absolute bar of section 36(3), which applies to conciliation and to a Court of Inquiry, to the adjudicatory forums.
• Treating representation by counsel as a right because a general right to counsel exists elsewhere in law.
• Forgetting that consent of the other party and leave of the forum are two separate requirements.
• Bringing the High Court into a question about who may appear before a tribunal; its role is supervisory and comes later.

Procedural questions on this Act ask who may appear, who may refer a dispute, which forum hears which subject, and what time limits apply to an award. Learn section 36 as a pair of rules — absolute bar in conciliation and inquiry, conditional permission in adjudication — and keep the three adjudicatory forums with their section numbers, because the paper names them precisely.

No directly related past PYQ was found.

• practice — not a real PYQ

  Under the Industrial Disputes Act, 1947, representation by a legal practitioner in conciliation proceedings is :

  • (a)Permitted with the leave of the Conciliation Officer
  • (b)Permitted with the consent of the other party
  • (c)Not permitted at all
  • (d)Permitted only for the employer

  Answer(c) Not permitted at all

• practice — not a real PYQ

  A National Industrial Tribunal under the Industrial Disputes Act, 1947 is constituted by :

  • (a)The State Government
  • (b)The Central Government
  • (c)The High Court
  • (d)The Chief Labour Commissioner

  Answer(b) The Central Government