Delhi High Court
Maheshwari Gas Service vs Ram Bachan Soni on 11 September, 2012
Author: Mukta Gupta
Bench: Mukta Gupta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Decided on: September 11, 2012
+ W.P.(C) 3107/2011
MAHESHWARI GAS SERVICE ..... Petitioner
Through: Mr. H.C. Kharbanda and Mr. Jabar
Singh, Advocates
Versus
JAI PRAKASH DUBEY ..... Respondent
Through: Mr. S.S. Ali, Advocate
AND
W.P.(C) 3160/2011
MAHESHWARI GAS SERVICE ..... Petitioner
Through: Mr. H.C. Kharbanda and Mr. Jabar
Singh, Advocates
Versus
VED PRAKASH DUBEY ..... Respondent
Through: Mr. S.S. Ali, Advocate
AND
W.P.(C) 3161/2011
MAHESHWARI GAS SERVICE ..... Petitioner
Through: Mr. H.C. Kharbanda and Mr. Jabar
Singh, Advocates
Versus
RAM BACHAN SONI ..... Respondent
Through: Mr. S.S. Ali, Advocate
Coram:
HON'BLE MS. JUSTICE MUKTA GUPTA
WP(C) No.3107/2011 & connected petitions Page 1 of 8
MUKTA GUPTA, J. (ORAL)
1. By these petitions, the Petitioner impugns the identical orders dated 11th March, 2011 whereby the applications of the Petitioner under Section 36 of the Industrial Disputes Act, 1947 (in short, „ID Act‟) was dismissed whereas the applications of the Respondents under Section 36 of the ID Act were allowed.
2. The brief facts giving rise to the filing of the present petitions are that the Respondents filed their claim before the Industrial Tribunal alleging illegal termination by the Petitioner. The claims of the Respondents were filed through Universal Proutist Labour Federation (Registered) (in short, „UPLF‟). The Petitioner took the objection that the Federation was not competent to espouse the cause of the Respondents in the written statement and also filed an application under Section 36 of the ID Act claiming that the Federation was not registered with the Labour Department. It was not a registered trade union and nothing has been placed on record regarding the subscription of the membership by the workmen to the union and that the workmen have not disclosed when they became members of the said Federation. Applications were also filed by the Respondents under Section 36 of the ID Act contending that the management could not be represented WP(C) No.3107/2011 & connected petitions Page 2 of 8 through an Advocate. The learned trial court held that in view of the bar under Section 36(3) of the ID Act, the Petitioner could not be represented by a legal practitioner or an Advocate and thus allowed the applications of the Respondents and held that the Advocate was not entitled to appear for and on behalf of the management in the present case. As regards the applications of the Respondents, it was held that it was not necessary that the workman should be a member of the union and any member of the executive or the office bearer of any trade union may be authorized under Section 36(1)(c) of the ID Act to represent the workman.
3. Learned counsel for the Petitioner has strenuously contended that in terms of Section 36(1), the workman can be represented either through a trade union or a federation of which he is a member in which case Section 36(1)(a) and (b) would apply. In the present case, the impugned order has been passed under Section 36(1)(c) of the ID Act, however, a major factor which has been ignored by the learned trial court is that even in a case where a worker is not a member of any trade union, then he can be represented by any trade union which is connected with or by any other workman employed in the industry in which the worker is employed and duly authorized. The learned trial court did not consider this requirement. The Respondents have WP(C) No.3107/2011 & connected petitions Page 3 of 8 not even placed on record any evidence that the UPLF was a trade union connected with the industry in which the Respondents were working. Further, even if it is assumed that the order was passed under Section 36(1)(a) and (b), the documents relied upon by the Respondents did not show that they are the members of UPLF. The two documents relied upon are the Registration Certificate of the Federation and the application dated 2nd December, 2008. It is the case of the Petitioner that the application dated 2nd December, 2008 seeking subscription of UPLF by the workmen is a fabricated document on the face of it, as the application is dated 2nd December, 2008 whereas it mentions about the date of removal as 4 th April, 2009. Thus, on either count, the learned trial court erred in dismissing the applications of the Petitioner and that the Respondents were duly represented by UPLF.
4. Learned counsel for the Respondents, on the other hand, contends that there is no infirmity in the impugned order in view of the law laid down by the Supreme Court in Pradip Port Trust vs. Their Workmen, AIR 1977 SC 36; and Siemens Limited vs. K.K. Gupta & Anr. 125 (2005) DLT 85 and in view of the bar under Section 36(3) of the ID Act, the Petitioner could not be represented through an Advocate. The contention of the Petitioner that the WP(C) No.3107/2011 & connected petitions Page 4 of 8 Respondents‟ claim is at best of federation, which does not fall within the ambit of Section 36(1)(c) of the ID Act is misconceived. Reliance is placed on the definition of trade union under Section 2(h) of the Trade Unions Act, 1926 where a trade union includes any federation of two or more trade unions. It is further contended that the Respondents had placed on record ample evidence in the form of subscription of membership of UPLF and have also annexed the letters in favour of the Secretary General. Reliance is also placed on Standard Coal Co. Ltd. Vs. Sri S.P. Verma & Ors. 1952 (1) LLJ 493 Patna; Prasar Bharati Broadcasting Corporation of India vs. Suraj Sharma and Anr. 1999 (81) FLR 952 (Delhi); Bharat Petroleum Corporation Ltd. vs. C.G. Industrial Tribunal and Ors. 1993 (2) LLJ 608 (Calcutta).
5. I have heard learned counsel for the parties and perused the record.
6. Section 36(1) of the ID Act reads as under:-
"36. Representation of parties -
(1) A workman who is a party to dispute shall be entitled to be represented in any proceeding under this Act by -
(a) [any member of the executive or other office bearer] of a registered trade union of which he is a member;
(b) [any member of the executive or other office bearer] of a federation of trade unions to which the trade union referred to in clause (a) is affiliated;
(c) Where the worker is not a member of any trade union, by [any member of the executive or other office bearer] of WP(C) No.3107/2011 & connected petitions Page 5 of 8 any trade union connected with, or by any other workman employed in, the industry in which the worker is employed and authorized in such manner as may be prescribed."
7. A perusal of sub-clause (a) and (b) of sub-section (1) of Section 36 of the ID Act shows that if a workman is a member of a registered trade union or a federation of trade unions, he can be represented by any member of the executive or other office bearer of the said trade union or the federation. Though learned counsel for the Respondents has tried to make a case under Section 36(1)(a) and (b), however, on the basis of documents filed before the trial court, it cannot be held that the Respondents have been successful in making out a case under Section 36(1)(a) and (b) of the ID Act. The documents filed by the Respondents are the Registration Certificate of UPLF and the application for subscription. The applications in all the three petitions are identical and on the face of it, a manipulated document. Though the applications are dated 2nd December, 2008, however, they refer to the date of 4th April, 2009 as the date of their removal. It is thus apparent that antedated applications have been filed to obtain membership of UPLF. Thus, prima facie, there is no evidence before the trial court to come to the WP(C) No.3107/2011 & connected petitions Page 6 of 8 conclusion that the Respondents were duly represented by UPLF under Section 36(1) (a) and (b) of ID Act.
8. As regards Section 36(1)(c) of the ID Act is concerned, it may be noted that one of the essential ingredient in case a workman is not a member of any trade union is that he can be represented by a trade union connected with or by any other workman employed in the industry in which the workman is employed. In the present case, no evidence has been taken on record by the trial court while passing an order under Section 36(1)(c) of the ID Act to come to the conclusion that UPLF was a federation/trade union connected with the industry in which the Respondents were employed.
9. Thus, the impugned orders dated 11th March, 2011 in all the three petitions are set aside to the extent that they dismiss the application of the Petitioner. The learned Tribunal is directed to hear the matter afresh in view of the aforesaid discussion and pass a reasoned order on the applications of the Petitioner in all the three industrial disputes.
10. So far as the orders on the application of the Respondents disallowing the representations of the Petitioner through an Advocate are concerned, I find no infirmity in the impugned orders on this count. Section 36(3) of the ID Act clearly bars the representations by a legal practitioner. Further, vires WP(C) No.3107/2011 & connected petitions Page 7 of 8 of Section 36(3) ID Act have been upheld in a number of decisions and hence, there is no infirmity to this extent.
17. In view of the above discussions, the petitions are disposed of.
(MUKTA GUPTA) JUDGE September 11, 2012 sd WP(C) No.3107/2011 & connected petitions Page 8 of 8