Gujarat High Court
J.B. Transport Company And Ors. vs Shankarlal @ Mavaram Nathuji Patel on 22 July, 1998
Equivalent citations: (1999)3GLR2019
Author: S.D. Pandit
Bench: S.D. Pandit
JUDGMENT S.D. Pandit, J.
1. J. B. Transport Company, a proprietary concern and its proprietor have filed the present petition to challenge the order passed by the Labour Court of Ahmedabad in Reference No. 428 of 1997.
2. The respondent Shankarlal @ Mavaram Nathuji Patel is working as driver with the petitioner. His employment was terminated on November 25, 1994 hence he raised an industrial dispute which resulted in Reference No. 428 of 1997. In the said reference, the present petitioner initially filed a Vakalatnama on their behalf through their Advocate Mr. S. B. Sharma which is at Exh. 9 in the said reference. The workman raised an objection for the appearance of a practising Advocate. Thereafter, another document purporting to be an authorisation was filed in the said reference and along with that authorisation, the Annexure 'C' of this petition and Annexure 'D' certificate of registration under Trade Unions Act, at Page 35 were produced before the Labour Court. Even after filing of this authorisation the workman raised a contention before the Labour Court saying that he was raising objection under Section 36(4) of the Industrial Disputes Act. It was contended on behalf of the workman that Mr. S. B. Sharma is a practising Advocate and therefore, he could not be permitted to represent the employer in the said proceeding and he was not giving his consent for his appearance as such. As against said contention of the workman, it was urged before the learned Labour Court that Mr. S. B. Sharma was not appearing as practising Advocate but he was appearing as General Secretary, Akhil Gujarat Employers' Association and he was representing the present petitioner who is a member of the Akhil Gujarat Employers' Association in his capacity as an officer of the said association. The learned Labour Court did not find favour with the said contention of the employer and did not permit Mr. S. B. Sharma to appear and conduct the matter on behalf of the employer by passing his reasoned order which is subject-matter of the present petition.
3. Mr. Sharma appearing on behalf of the petitioner in this petition raised the contention before me that it is not open for the Labour Court to go into question as to the motive of the legal practitioner as the office-bearer of the said employers' association and if the employers' association has appointed him as an officer it must be accepted. He further submitted before me that in view of the provision of Section 36(2) of the Industrial Disputes Act, 1947 and he being the General Secretary of the Akhil Gujarat Employers' Union (hereinafter referred to as 'Akhil Union'), he was entitled to represent the member of the Akhil Union in a proceeding before the Labour Court. In order consider this submission of him it is necessary to see the provision of Section 36. Though Mr. Sharma is relying upon sub-see. (2) of Section 36, it is necessary to consider the whole Section 36 in view of the controversy which I am going to consider and decide in this matter. Section 36 is running as under :
"36. Representation of parties : (1) A workman who is a party to a dispute in any manner 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 any trade union connected with, or by any other workman employed in the industry in which the worker is employed and authorised in such manner as may be prescribed.
(2) An employer who is a party to a dispute shall be entitled to be represented in any proceeding under this Act by
a) an officer of an association of employers of which he is a member;
b) an officer of a federation of associations of employers to which the association referred to in clause (a) is affiliated;
c) where the employer is not a member of any association of employers, by an officer of any association of employers connected with, or by any other employer engaged in, the industry in which the employer is engaged and authorised in such manner as may be prescribed.
3) No party to a dispute shall be entitled to be represented by a legal practitioner in any conciliation proceedings under this Act or in any proceedings before a Court.
4) If 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)."
If the above provision of Section 36 is considered then it would be quite clear that in case of workman, he could be represented in proceeding under the Act by any member of the executive or any office-bearer of a registered union. But under sub-sec (2), only an officer of an association of employers can represent a member of association. Therefore, it is necessary to find out whether Mr. Sharma could be treated as an officer of said Akhil Union. It is true that neither the Industrial Disputes Act nor any other labour law pertaining to proceeding before the Labour Court is giving the definition of word "officer". If we see the 'WEBSTER INTERNATIONAL DICTIONARY', then the said dictionary says that the person trained and commissioned to engage in paid full time service, then he would become an officer. An officer must be holding an office and taking part in the management or directions of the employer institution. He must be trained and engaged in discharging a duty and he must be paid fully for the services rendered by him. As stated earlier, the word used is an 'officer' and not an office-bearer. Mr. Sharma has fairly stated before me that he is till today a practising Advocate of this Court. For appearance before the Labour Court/Industrial Tribunal, a legal practitioner should be a regular officer of such Employers' Association/Union, otherwise it will defeat the provisions of Sees. 36(2) and (4). There must be regular appointment to become officer. If the provision of Advocates Act are taken into consideration then it would be quite clear that a practising Advocate cannot be in employment in any other institution without the leave of Bar Council. Mr. Sharma has not produced any documentary evidence before this Court or before the Labour Court to show that the said Akhil Union has appointed him as an officer by its resolution or by any order of the said Akhil Union. Merely because he happened to be a General Secretary, it could not be said that he is an officer of the association. By becoming a General Secretary, he becomes an office-bearer. There is difference between "office-bearer'.' and the "officer". The officer is an employee of the association or an institution whereas, the office-bearer would become an employer.
4. If the provisions of Section 36 are considered then it would be quite clear that the same Act prevents as a rule the appearance of the Advocate in a proceeding before Labour Court/Industrial Tribunal without the consent of the workman and the practising Advocate is permitted to appear in proceeding under the Industrial Disputes Act only with the consent of the workman. If the workman raises an objection for appearance of a practising Advocate on behalf of the employer then in view of the provision of Section 36, the practising Advocate could not be permitted to appear on behalf of the employer. This specific provision of Section 36 of Industrial Disputes Act could not be allowed to be defeated by allowing a practising Advocate to become nominal office-bearer of association and come before the Industrial Tribunal or Labour Court as an officer of that association and to conduct the matter on behalf of the employer. If such practice is permitted then it is definitely going to defeat the provision of Act.
5. Mr. Sharma has cited before me the case of Paradip Port Trust v. line Workmen, (1976-II-LLJ-409) (SC) and he has put reliance on the following :
"A lawyer can appear before the Tribunal in the capacity of an office-bearer of a registered Trade Union or an officer of the association of employers and no consent of other side and leave of Tribunal will then be necessary."
But in the earlier portion, it is clearly stated that a lawyer simpliciter cannot appear before the Industrial Tribunal. Then in para 16 of the said judgment, the Apex Court has made following observations:
"16. If, however, a legal practitioner is appointed as an officer of a company or corporation and is in their pay and under their control and is not a practising Advocate the fact that he was earlier a legal practitioner or has a legal degree will not stand in the way of the Company or the Corporation being represented by him. Similarly, if a legal practitioner is an officer of an association of employers or of a federation of such associations, there is nothing in Section 36(4) to prevent him from appearing before the Tribunal under the provisions of Section 36(2) of the Act. Again, an office-bearer of a trade union or a member of its executive, even though he is a legal practitioner, will be entitled to represent the workmen before the Tribunal under Section 36(1) in the former capacity. The legal practitioner in the above two cases will appear in the capacity of an officer of the association in the case of an employer and in the capacity of an office-bearer of the Union in the case of workmen and not in the capacity of a legal practitioner. The fact that a person is a legal practitioner will not affect the position if the qualifications specified in Section 36(1) and Section 36(2) are fulfilled by him."
From the above cited decision of Apex Court it is quite clear that if a practising Advocate subsequently ceased to be practising Advocate and takes an employment with an industry or a Company and happens to appear on behalf of that Company-employer as an office-bearer of that company before an Industrial Tribunal then merely because he was formerly a practising Advocate, his appearance could not be objected to. Because once he accepts the employment and once he becomes an officer of Company or any institution, he ceases to be a practising Advocate or legal practitioner in view of the provision of the Advocates Act. The Advocates Act does not permit a practising Advocate to take an employment without the leave of the Bar Council. Generally, the said leave is granted by Bar Council to the practising Advocate to act as part-time lecturer in Law Institution and Law Colleges.
6. In order to become an officer, the person must show that he is in employment of that institution or an undertaking or a company and it must be shown that he is on the pay-roll of the institution or company. There is nothing on the record to show that Mr. Sharma is on the pay-roll of the said Akhil Union. What is shown by Mr. Sharma is that he is the General Secretary of Akhil Union but merely because he is an office-bearer of the Akhil Union, I am unable to hold that he is an "officer" of the said Akhil Union. As he could not be an "officer" of the Akhil Union, even as per the constitution of the said Union, he could not be permitted to appear on behalf of the member of the said Akhil Union. If the Akhil Union happen to engage and appoint Mr. Sharma or engage other person as an officer of that association, then alone that person can represent the member of the said association. This question of "officer" representing an association of employers is also considered by the Full Bench of Andhra Pradesh High Court in the case of Andhra Pradesh Power Diploma Engineering v. Andhra Pradesh State Electricity Board & Anr., 1995 Lab IC 2654. In the said case, the said Full Bench has considered the word sal 'officer' and has made the following observations :
"From the observations made, it is clear that "an officer" was understood, so far as a legal practitioner is concerned, as one who is not a practising Advocate though he might have been one such earlier to his becoming an officer, and that in his present capacity as an officer of the association he is in its pay and under its control. It is relevant here to quote a passage from Buckley's Companies Act, Twelfth Edition page 681 which was extracted in an earlier decision of this Court in Mallela Suryanarayana v. Vijay Commercial Bank, AIR 1958 AP 756, regarding concept of the word "officer" -
"The word 'officer' is not to be confined to a person who has in some way or other control over the assets of the company. As person who by the terms of his appointment is made and called an officer, who is appointed by the company, paid by the company and whose function is to act on behalf of the company could cheek the directors, and whose appointment is made not on a special occasion for a special limited purpose, but under the regulations governing the constitution of the company, is an officer."
It would hence be seen that the word conveys the meaning in its, essentially, as being subjected to some type of control and check and to be in receipt of some type of remuneration from the person or body whose officer he is and that the engagement is not for a specific occasion only, it was pointed in the decision in Prabhudas Mulji Doshi v. Governor General of India in Council, ILR 1951 (1) Cal. 443, that the word "officer" imports the idea of an "office" and that to be an "officer" therefore, the person claiming must show that there is an office which he holds. A Full Bench of this Court in the decision in B. Veeraswamy v. State of A. P., AIR 1959 AP 413, also express similar view in saying "the individual who is invested with the authority and is required to perform the duties incidental to an office is an officer. For determining whether officers are subordinate or not, the test is not whether a review of such of their determinations as are quasi-judicial may be had but whether in the performance of their various duties they are subject to the direction and control of a superior officer, or are independent officers subject to such directions as the statute gives. "In Nandlal More v. R. Mirchandani, AIR 1968 Bom. 208, the Court was of the view that "officer" and 'office' are correlated and basically an "officer, whether he occupies a specific office or not, must be in the relation of an employee or servant of a company, firm or individual who is his employer or master, being an officer presupposes a relationship of employer and employee of master and servant." In that case the question to be considered was whether a power of attorney holder can be called an officer of the executor of the power of attorney. It was pointed out that a power of attorney creates a relationship of principal and agent and not of master and servant."
7. The Full Bench has also considered the case of Paradip Port Trust v. Their Workmen (supra) before laying down the above observations. I do not find any reasons to take a different view than the view taken by the Full Bench of the Andhra Pradesh High Court.
Thus, I hold that the learned Labour Court has rightly refused the permission for Mr. Sharma to appear on behalf of the employer in the said proceeding. I, thus, hold that the present petition will have to be rejected. I, accordingly reject the same with no order as to costs.