Andhra HC (Pre-Telangana)
Andhra Pradesh Power Diploma ... vs Andhra Pradesh State Electricity Board ... on 7 July, 1995
Equivalent citations: 1995(3)ALT271, (1996)ILLJ1082AP
ORDER Lingaraja Rath, J.
1. Whether an Advocate is eligible to appear before the Industrial Tribunal on behalf of a party in an Industrial dispute in his capacity as the Joint Honorary Secretary of the Federation of Andhra Pradesh Chamber of Commerce and Industry, and whether the federation is an Association of employers, or is a federation of Associations of employers, are the questions arising for decision in this case.
2. Appearance of the counsel, Sri C.V. Mohan Reddy having not been entertained by the Tribunal, the 1st respondent-Electricity Board had come before this Court in Writ Petition No. 11101 of 1993 which was disposed of with the direction, while remanding the matter to the Tribunal, to ascertain after taking evidence as to the status of the Federation of A.P. Chamber of Commerce and Industry as an Association of employers or a Federation of Associations of employers and as to the nature of the office held by Sri C.V. Mohan Reddy. The Tribunal after taking evidence came to the conclusion of Mr. Reddy being not an Officer of the Federation, and the Federation itself being not a Federation of Associations of employers and held Mr. Reddy as ineligible to appear to support the case for the 1st respondent. The matter having again come up before this Court in W.P. No. 20626 of 1993, the learned single Judge reversed the decision of the Tribunal and held Mr. Reddy as entitled to represent the cause of the 1st respondent. The present appeal has been preferred against the decision.
3. Mr. Mukunda Reddy, the party-in-person appearing for the appellants, has relied upon the decisions in H.A. Ichaporiya v. M.G. Hospital, Surat & another 1994(2) LLJ 326; Workmen v. Darbar Ginning and Pressing Factory, Hubli AIR 1966 Mysore 225 and Paradip Port Trust v. Their Workmen , in support of both the contentions raised in this appeal. On the other hand, Mr. K. Srinivasa Murthy, learned Counsel appearing for the respondents has placed reliance on the decision in P. Mallesha v. Industrial Disputes Tribunal, Hyderabad 1977 LIC 248 and Suryanarayana v. Vijay Commercial Bank AIR 1958 A.P. 756 both of which cases have been referred to in the judgment under appeal. It is submission of Mr. Murthy that proper interpretation of Sections 36(1) and 36(2) of the Industrial Disputes Act would be to hold the words 'office bearer' and 'an officer' to convey the same meaning and that any one who is an 'office bearer' in a company would be 'an officer' for the purpose of the section and would be eligible to represent the management. According to him, the concept of a guaranteed payment or being subject to the control and direction of the management are not essential ingredients to be 'an officer'.
4. The concept of an 'officer' was discussed in Suryanarayana's case (supra) and a passage in Buckley's Company Act was cited with approval. The passage observed that "a 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 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". In the decision in Paradip Port Trust case (cited supra) their Lordships observed, analysing the provisions of Sections 36(1) and 36(2) of the Act, that if 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 practicing 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. Basing upon the observation, submission is advanced by Mr. Reddy that an integral part of the test for an "officer" is both the payment as well as the control aspect, and that further a practising advocate can never become 'an officer' of a company. Mr. Murthy however places reliance on the observations made by the Court in the very decision in paragraph 18 that no single test nor an exhaustive test can be laid down for determining as to who is an officer in absence of a definition in the Act. When such a question arises the Tribunal, in each individual case, will have to determine on the material produced before it whether the claim is justified.
5. The Tribunal considering the evidence led before it, took note of the evidence of R.W. 1, the Secretary of the respondent-Federation, that out of the four categories of members of the Federation, Firms and individuals are the fourth category and in that category, advocates are admitted for the purpose of representing the cases of the members of the Federation. The witness further stated that for that purpose the Federation maintains a panel of advocates and that they are called Honorary Secretaries of the Federation. The Tribunal found that such advocates are nominated as Honorary Secretaries but are not appointed and the Federation does not have control over the Honorary Secretaries. They are not salaried employees nor are there any terms of the appointment for them.
6. Since the question falling for decision has far-reaching consequences in respect of a widely adopted practice of representation of lawyers before the Industrial Tribunals and Labour Courts, we feel that the question is apt to be resolved by a larger Bench. In that view of the matter, we direct the case to be put up before the Hon'ble the Chief Justice for constitution of an appropriate Full Bench to hear the matter.
This Writ Appeal coming on for hearing finally on 7-7-1995 before the Full Bench, the Court delivered the following:
Case Note:
Labour and Industrial interpretation Sections 36 (1) and 36 (2) of Industrial Dispute Act, 1947 and Advocates Act question of law referred to full bench whether an Advocate is eligible to appear before Industrial Tribunal on behalf of party in Industrial dispute in his capacity as joint secretary of an association upon interpretation Court concluded that an officer was understood so far as legal practitioner is concerned as one who is not a practicing advocate though he might be a practicing advocate earlier to his becoming an officer and that in his present capacity as an officer of association he is in its pay and under its control lawyers are not permitted to appear before Tribunal on their own right as lawyers.
JUDGMENT Lingaraja Rath, J.
1. Questions of pervasive importance centering around entitlement of advocates to appear for Managements in industrial adjudication before Industrial Tribunals and Labour Courts, as officers of Association of employers or of Federation of Associations of employers, provided for in Section 36(2) of the Industrial Disputes Act, 1947, hereinafter referred to as "the Act", are the issues slated for decision in this appeal.
2. Before we tackle the question urged, the factual background of the case necessitates brief elucidation.
3. An industrial dispute between the appellant and respondent No. 1 relating to the rate of allowances payable to the workmen for shift duty having been referred to the Industrial Tribunal, Hyderabad, registered as I.D. Case No. 44 of 1991 Mr. C.V. Mohan Reddy, an advocate of this Court filed vakalat along with an application for being permitted to appear for respondent No. 1. The application was rejected as the appellant did not consent to the appearance of Sri Mohan Reddy. Thereafter, Sri Reddy filed appearance on 17-8-1992 for respondent No. 1 styling himself as Joint Honorary Secretary of respondent No. 2, the Federation of Andhra Pradesh Chambers of Commerce and Industry. An objection filed by the appellant, registered as I.A. No. 181 of 1993 in I.D. No. 44 of 1991 to the appearance of Mr. Mohan Reddy was allowed on 22-6-1993 and the appearance was not entertained. The respondent No. 1 came before this Court in W.P. No. 11101 of 1993 assailing the order of the Industrial Tribunal. The writ petition was disposed of on 20-9-1993 remanding the matter to the Tribunal with direction to ascertain, after taking evidence, the status of respondent No. 2 as association of employers or federation of associations of employers and as to the nature of the office held by Mr. Mohan Reddy. After remand, the Tribunal took evidence, and by its order dated 4-11-1993 held, on analysis of the evidence, the respondent No. 2 to be not association of employers and Mr. Mohan Reddy as not being an officer of it. Writ Petition No. 20626 of 1993 was filed by respondent No. 1 challenging the order. That petition having been allowed by a learned single Judge of this Court, the present appeal has been preferred.
4. At the appellate stage an order was passed on 8-11-1994 in WAMP No. 2405 of 1994 filed by the appellant to implead the respondent No. 2 as party to the case. The respondent No. 2 appeared in pursuance of the notice issued and filed a counter-affidavit inter alia contending Section 36 of the Act to be ultra-vires of the Constitution for which order was order passed on 7-4-1995 for notice to the Central Government and the learned standing counsel for the Central Government, Sri P. Innayya Reddy took notice on their behalf. Though a counter-affidavit had been undertaken to be filed, yet no affidavit has been filed by him but during the course of hearing we have heard Mr. Innayya Reddy who submitted on the questions raised.
5. The learned single Judge in deciding the case placed on reliance on an earlier decision of this Court in P. Mallesha v. Industrial Disputes Tribunal, Hyderabad 1976 ALT 67 (NRC) = 1977 LIC 248 (A.P.) and making reference to the Memorandum of Articles of Association of respondent No. held of there being no doubt that there could be honorary Joint Secretaries of the Federation of Chambers which office legal practitioners can fill and hence they could appear before the Tribunal as such officers as was held in P. Mallesha's case 1976 ALT 67 (NRC) = 1977 LIC 248 (A.P.).
6. Mr. G. Mukunda Reddy who appeared as party-in-person representing the appellant as Secretary as urged the judgment under appeal as having not held the law correctly, and submits the respondent No. 2 not answering the description "association of employers" or "federation of associations of employers" and that honorary Secretaries of the Federation are not officers of the Federation. Besides he also urges that the question whether a person is an officer of an association is a question of fact to be determined by a fact finding body like the Tribunal and that this Court in exercise of its extraordinary jurisdiction under Article 226 of the Constitution of India would not set side such finding and substitute its own for the purpose.
7. Developing the fires submission it is contended that the word "employers" in "association of employers" or "federation of associations of employers", as is visualised under Section 36(2)(a) and (b) of the Act, only refers to industrial employers and that the association should be exclusively of such employers alone. An association of the nature of respondent No. 2 which has no exclusive membership of the industrial employers but is conglomeration of different types of members including individuals is not a body coming under clause (a) or clause (b) of sub-section (2) of Section 36 of the Act. According to him the word "employer" as it finds mention in the Act is only in the context of being an industrial employer and not otherwise. The submission has been opposed by Mr. K. Srinivasamurthy, appearing for respondents 1 and 2 saying the word "employer" to have been used without any limitation and that besides, an association of employers be not necessarily confined exclusively to employers alone.
8. The scheme of the Industrial Disputes Act, as is made clear in the preamble, is to make provisions for the investigation and settlement of industrial disputes and is calculated to assure justice to both employers and employees so as to advance the progress of industry by ensuing cordial and amicable report between the two parties of the industry. The word "employer" has been defied in Section 2(g) of the Act as meaning in relation to industry carried on by or under the authority of the Central Government, the prescribed authority in that behalf or if no authority is prescribed the head of the department; and in relation to industries carried on by or on behalf of a local authority, the Chief Executive Officer of the authority, It is of importance to note that the provision does not purport to give an exhaustive definition of the word which evidently means that the Parliament deliberately intended and defined the word only with relation to industries as being sufficient for the purpose of the Act. Hence both the preamble of the Act and the definition of "employer" in the Act rather shows the legislative intendment of the word being used in the context of industrial employers alone.
9. Section 2(j) as was originally enacted and is still in force, the amendment by Act 46 of 1982 having not been brought into force, defines "industry" as business, trade, undertaking, manufacture or calling of employers. Under Section 2(s) "workman" is a person employed in any industry. We need not go on to explore the different provisions of the Act to find all references to "employer" and "employees" since from the limited references made by us it is abundantly clear that the concept of employer in the Act is that of employer in relation of an industry alone. It would follow that when in Section 36(2) of the Act the word "employer" is used, it is used only in relation to employers of workmen as defined in the Act and the word would take its meaning only as defined in Section 2(g) i.e., with relation to industry.
10. The phrase "association of employers" in the plain sense would mean the status of the members of the association to be that of employers. The use of the words being specific and there being no ambiguity, the words are to be understood in their natural sense and are susceptible to the only meaning that the association must be of persons who are employers and have formed themselves into an association because of their status as such. In other words, the membership of the association must be qua employers and not otherwise viz., it is not meant to be an association of persons enjoying different and varieties of status of which some accidentally happen to be the employers. The qualification for becoming members of the association must be that of as employers. In common parlance when an association is named as association of a particular kind of persons, what is meant is a classification of the group of such persons who answer the classification. Thus an association of traders is designed to be a group of traders and an association of physicians is designed to be a group of physicians. It may be that in such associations some other persons may be contemplated to be taken in as members as in voluntary associations it may not be uncommon to have some heterogeneous persons whose inclusion is made because of some specific purposes. But when a statute speaks of an association of a specified kind of persons as forming a classification, it is the legislative intendment which is paramount and it is to be interpreted in that sense alone. It is for this reason it has to be understood that when Section 36(2) speaks of an association of employers or federation of associations of employers, it is meant to be association of employers alone and not of others. We are fortified in this conclusion by a decision of the Mysore High Court in Workmen v. Darbar Ginning & Pressing Factory, Hubli and another AIR 1966 Mysore 225 of Gujarat High Court in H.A. Ichaporiya v. M.G. Hospital, Surat and another 1994 (II) LLJ 326 (Gujarat) the latter one having endorsed the earlier case.
11. It has been urged by Sri Mukunda Reddy of the federation of respondent No. 2 being not an association of employers in the sense it has to be understood under the Act. Ex. R-1 filed before the Tribunal is the memorandum of association and the articles of association of respondent No. 2 Article 2(i) of the articles of association enumerates the classes of members as (a) honorary members; (b) life members; and (c) ordinary members who are divided into in Art. 2(ii) to various categories such as associate members, affiliated members, company members, firm members and individual members. Articles 3, 4 and 5 provides for the details of the respective categories of membership of Honorary Members, Life Members and Ordinary Members. Art. 3(a) stipulates an honorary member to be elected by the Managing Committee because of his eminence in the field of commerce, industry or finance and Art. 4 provides that individuals, firms and partnerships, companies and corporations and associations who are eligible for election as Ordinary Members can be admitted as Life Members at the discretion of the Managing Committee. Next comes Article 5 which is sub-divided into clauses (a) to (f) with clause (a) as a general provision saying that individuals, firms and partnerships, companies and corporations and associations engaged or interested in or indirectly connected with trade, commerce, industry, mining, transport, or other mercantile pursuits, or engaged in or connected with art, science, literature or law, whose knowledge, experience and services are likely to be found useful to the Federation and desirous of joining it so as to aid in carrying out its objects are eligible for election as Ordinary Members of the Federation in their personal, conventional or corporate name, and they shall be placed in the categories specified in Article 2(ii) as may be applicable and as set out in the sub-clauses of the article viz., Article 5(b) to 5(f). Hence while Ordinary Members are of the different categories as stipulated in Article 2(ii), their eligibility to become such members is dependent upon their being involved in the pursuits stated in clause 5(a) and are to be placed in the different categories specified in Article 2(ii) viz., Associate Members, Affiliate Members, Company Members, Firm Members and Individual Members. Of these Article 5(f) deals with Individual Membership and is as fallows:
"Any individual engaged in trade, commerce, industry, mining, transport, or other mercantile pursuits but not associated with any firm of partnership or any company or corporation as Managing Partner or Managing Agent or Managing Director or as Secretary or Manager or Officer, shall be entitled to be elected as an "Individual Member".
12. A combined reading or Article 3 of the Memorandum of Association an Articles 2(1)(c), 2(ii) and 5(a) and (f) shows, so far as relevant for the purpose of this case, that an individual who is engaged in or connected with law, and shows knowledge, experience and services are likely to be found useful to the Federation, and is desirous of joining the Federation so as to aid it in carrying out its objects is eligible to be elected as an individual member, which eligibility is more specified in clause 5(f) as an individual engaged in trade, commerce, industry, mining, transport or other mercantile pursuits. Hence even if an advocate can be taken to be a person as being engaged or connected with law, yet he would become eligible for election as an Ordinary Member only if he is engaged in such activities as trade, commerce, industry, mining, transport or other mercantile pursuits or the person and is desirous to become a member so as to aid the Federation in carrying out its objects which are promotion, encouragement, watching and protesting the interest of trade, commerce, industry, transport, manufacture, finance, banking, shipping, insurance and other type of allied works. The prominent feature hence is that the advocate ipso facto is not eligible for election as an Ordinary Member but only if he is either engaged in trade, commerce, industry or other mercantile pursuits etc., or the Federation finds his engagement or connection with law as being useful to it and further he is desirous to become a member so as to aid the federation in carrying out its objects as in Article 3. To our pointed question Mr. K. Srinivasamurthy, learned Counsel for respondents 1 and 2 is not able to urge an advocate as being engaged in any trade, industry, mining or transport or other mercantile pursuits. It is also doubtful whether an advocate can become desirous of joining a Chamber of Commerce so as to aid them in their objects as enumerated in Art. 3 of the Memorandum of Association. Article 5(a) is designed necessarily to be read with Article 5(f) as categorisation of Individual Members are to be done only as set out in Article 5(f), and reading both together the dominant factor for eligibility to individual membership appears as engagement in trade, commerce etc., activities or association with such activities with an object of aiding those activities which can hardly be said to be within and compatible with the discipline of an advocate whose status, rights and duties are determined under the provisions of the Advocates Act and the Rules framed by the Bar Council of India regarding his professional conduct.
13. A resume of the different provisions of the Memorandum of Articles of Association of respondent No. 2 shows the membership to consist of not only employers but also of individuals and others i.e., non-employers. That being so, for the reasons noticed earlier it is not possible to hold that respondent No. 2 is an association of employers under the provisions of Section 36(2)(a) of the Act.
14. Mr. Srinivasamurthy however submits that the interpretation of Section 36(2)(a) and (b) should be done in the same manner as Section 36(1). The argument is that since under Section 22 of the Trade Unions Act, 1926 (Act No. 16 of 1929) 50% of the total number of office-bearers of a registered trade union can be outsiders, that is, not persons actually engaged or employed in an industry, and yet such office-bearers of the trade union are entitled under the provisions of Section 36(1) to represent the workmen, Section 36(2) should be interpreted to bring in similar relaxation in respect of the word "association of employers" to include not only employers but also non-employers. The submission does not appeal to us. The Trade Unions Act as also the Industrial Disputes Act are special Acts in their own fields designed to met specific purposes. The Trade Unions Act is intended to provide registration of Trade Unions and in certain respects to define the law relating thereto. Hence provisions made regarding registration of Trade Unions and constitution of their executive bodies are not pari materia provisions so far as association of employers are concerned which are mainly required to be registered under the Societies Registration Act, 1860 (Act No. XXI of 1860). Merely because registered Trade Unions under the Trade Unions Act and association of employers registered under the Societies Registration Act are both referred to respectively in Sections 36(1) and 36(2) it does not mean that the constitution of one is to be understood, in the context of the Industrial Disputes Act, in the same manner as the other body is required to be constituted under the law relating to it. There is no canon of interpretation of statutes that the provisions of one special statute is to be interpreted with reference to another. In fact if the interpretation as advanced is accepted it will in effect amount to a judicial amendment to the provisions of Section 36(2) which exercise can be hardly undertaken by the Courts. We must hence conclude, so far as this aspect of the submissions are concerned, that respondent No. 2 cannot be treated as an association of employers as contemplated under Section 36(2) of the Act.
15. Now we must take up the question as to whether an advocate designated as honorary Joint Secretary of respondent No. 2 can claim to be an officer of the Federation, even if the Federation would have been an association of employers, and claim the right in that capacity as being entitled to represent a member of the Federation in a case before the Industrial Tribunal or the Labour Court. The word "officer" has not been defied in the Industrial Disputes Act for which there has been divergence of opinions as to the real import of the concept. Mr. Reddy has placed reliance on the decision of the Supreme Court in Paradip Part Trust v. Their Workmen as also a decision of the Calcutta High Court in B.P.C.L. v. P.O. and others 1992 (I) LLJ 818 (Calcutta) which has referred to the decision of the Supreme Court to show that Mr. Mohan Reddy could not have been an officer of respondent No. 2 and has further submitted, placing reliance on the same decision of the Calcutta High Court as also the decision in K.C.P.E. Association, Madras v. K.C.P. Ltd., AIR 1978 SC 474, that in the matter of interpretation of statutes relating to Industrial Law, an ambiguity has to be resolved in favour of the labour. On the other hand the respondents have drawn support from the earlier decision of this Court in P. Mallesha v. Industrial Disputes Tribunal, Hyderabad (supra) where the honorary Joint Secretary of respondent No. 2 was treated as an officer of the Federation.
16. The question directly arose for consideration in the decision of the Apex Court in Paradip Port Trust's case (supra) where the Court pointed out that Section 36 is not exhaustive, and analysed to show the distinction between Section 36(1) and Section 36(2). It was stated that while under sub-section (1) of Section 36 it is only a member of the Executive or other officer bearer of the register Trade Union who can represent the workmen, under Section 36(2) an officer of the association of employers or of the Federation of associations of employers can represent the Management. It was held that so far as practicing lawyers are concerned they can represent workmen after having become office-bearers of any registered Trade Union. But so far as an association of employers are concerned, it was observed in paragraph 13 of the judgment, that the employers can be represented by their directions or their own officers authorised to act in that behalf but that would not mean that the companies and corporation, and for the matter of that any party, are free to engage legal practitioners by means of a special power of attorney to represent their interests. It was explained in the succeeding paragraph that the parties must conform to the conditions laid down in Section 36(4) so far as representation by legal practitioners are concerned. It was specifically explained that the appearance of a legal practitioner as an officer is only possible if he is appointed as an officer of the company or the corporation and is in their pay and under their control and is not a practising advocate though the fact that he was earlier a legal practitioner or has a legal degree would not stand in the way of the company or the corporation being represented by him. So far as the question of legal practitioner becoming an officer of an association of employers is concerned it was emphatically made clear that "Similarly, if a legal practitioner is an officer of an associations 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." Illustrating further their Lordships explained that the word "officer bearer" in Section 36(1) includes "any member of the executive" but so far as the "officer" as used in Section 36(2) is concerned the expression has not been defined in the Act but could have been well done so as has been done under Section 2(30) of the Companies Act. The absence of the definition, it was noticed, was bound to give rise to controversy when a particular person claims to be an officer of the association of employers, and that no single test not an exhaustive test can be laid down as to determine who is an officer. When such a question arises the Tribunal, in each individual case, would have to determine on the materials produced before it whether the claim is justified.
17. 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 practicing 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 Suriyanarayana v. Vijay Commercial Bank 1958 ALT 1063 at 1073 = AIR 1958 A.P. 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. A person who by the terms of his appointment is made and called an office, who is appointed by the company, paid by the company and whose function is to act on behalf of the company could check 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 essentiality, 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 (1951) 1 I.L.R. Calcutta Series 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. (F.B.) also expressed 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 office. 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 at the statue gives." In Nandlal More v. R. Mirchanani the Court was of the view that "officer" and "office" are co-related an basically and "officer, whether he occupies a specific officer 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 pre-supposes a relationship of employer and employee or 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.
18. At this stage, it would be useful to refer to the provisions of the Articles of Association regarding designation of legal advisers as Honorary Secretaries and the evidence led by the respondent No. 1, through R.W. 1, the Secretary of respondent No. 2.
19. Article 20(2)(k)(2) which vests power in the Managing Committee is as follows:
"To constitute at their discretion from time to time from among the Members of the Federation a Panel of Legal Advisers and also prescribe the qualifications for the inclusion of any Member therein, and also allot such duties and functions to any of them of an advisory nature as may be in furtherance of the objects, of the Federation, as an Honorary Secretary of the Federation."
It is the case of respondent No. 2 that its Managing Committee resolved to designate Mr. Mohan Reddy, after taking him as member of it, as Honorary Secretary of the Federation. A reading of the provision extracted shows the Managing Committee as having the discretion to form a penal of Legal Advisers whose function is to be advisory in nature. The Secretary of respondent No. 2 was examined as R.W. 1 before the Tribunal who made the statement as under:
"The Honorary Secretary has not been defined in the Memorandum of Articles. The Managing Committee of the Federation does not include the Honorary Secretaries. There are no terms of appointment for the post of Honorary Secretary. I do not have any control over the Honorary Secretaries excepting intimating them about the meeting and asking them to attend the meeting. I am not paying any remuneration or payment to these honorary Secretaries by the Company. The Federation of Andhra Pradesh Chambers of Commerce and Industry has its members who are both employers and as well as individuals who are not employers. The terms of appointment of Honorary Secretaries is for 2 years and we are mentioning the terms of appointment in the orders. Copy of such orders will be produced, if necessary, Secretaries are not members of the Managing Committee of the Federation.
C.V. Suryanarayana and Mohan Reddy got enrolled as individual members during March. 1992 on payment of the annual subscription renewable. Though Sri Mohan Reddy and Sri Suryanarayana are designated as Honorary Secretaries by our order have the status of an ordinary member of the Federation of Chambers of Commerce and Industry."
He also admitted that advocates are enrolled as members in individual category and the purpose of the admission of such members is to represent the case of its members for which purpose a panel of advocates called honorary Secretaries is maintained. Mr. Srinivasamurthy explained to us that the advocated in panel are directly contacted by the members, who are parties before the Tribunal or the Labour Court, for availing of their services and that the Advocates lend their services at their own stipulated fees over which the respondent No. 2 has no control.
20. The provisions of the article as also the evidence of R.W. 1 manifestly shows that Mr. Mohan Reddy did not hold any post of the officer of respondent No. 2. It was conceded by R.W. 1 that the post of honorary Secretary is not one in the Managing Committee. There is no pay attached to the post. There is no control over him of the federation and he is no way responsible for his actions and conduct to respondent No. 2. As a matter of fact the Memorandum and Articles of Association and the evidence of R.W. 1 makes it abundantly clear that drawing up of such a panel of advocates and designating them as honorary Secretaries is nothing but an attempt to overcome the provisions of Section 36(4) of the Act and the relationship simpliciter of a lawyer and a client, otherwise barred from being taken advantage of unless consented by the workmen, is sought to be white-washed to make it appear as one authorised under another provision of the statue. The attempt is directly overreaching the dictum of the Apex Court which in Paradip Port Trust case (supra) laid down, while explaining the concept of officer, that so far as lawyers are concerned their representation must be made only in the manner contemplated under Section 36(4) though however they can appear for workmen as office-bearers of registered Trade Unions.
21. We must however make a note here of a decision of the Karnataka High Court brought to our notice by Sri Srinivasamurthy in Hotel Ashok. v. Addl. Labour Court (1984) 64 FJR 1 (Kar.) where referring to the same case of the Supreme Court and the earlier Division Bench decision of the Mysore High Court in Workmen v. Darbar Ginning & Pressing Factory, Hubli (2 supra) the learned single judge held, in an attempt to distinguish, that the work "officer" in the context of Section 36(2) could not only mean an officer in the pay and under control of the association of the employers but also an office bearer of the association viz., Members of the Managing or Executive Committee or other office bearers, Vice-President, Secretary, Joint Secretary with whatever designation and in whom the Management of the affairs of the association or federation referred to in Section 36(2) of the Act is vested according to the Constitution or bye-laws of the concerned association or federation.
22. As to the question whether the word 'officer' would include also 'office bearer' within the ambit to Section 36(2) does not arise for consideration in this case as we have already found that Mr. Mohan Reddy was not a Member of the Managing Committee of respondent No. 2 and was not an officer-bearer also. The decision hence apparently offers no support to the submission advanced by Mr. Srinivasamurthy, particularly as we have also held that respondent No. 2 could not be an association of employers under Section 36(2) for which reason being its office bearer would be of no consequence.
23. We also find ourselves in agreement with the submission advanced by the appellant that a person's claim of being an officer of an association of employers is a question of fact to be determined by the Tribunal or the Labour Court as the case may be on evidence adduced before them and that to reverse such finding the only test for exercise of Certiorari jurisdiction is to be applied. The Supreme Court itself stated that the determination of the fact is to be left to the Tribunal to decide in each case on the basis of materials produced before it, saying that no single test can be applied to judge the claim. In the decision of the Calcutta High Court in B.P.C.L. v. P.O. and Others (supra) the Court held following Paradip Port Trust case (supra) that it is within the jurisdiction of the Tribunal to decide the question and that if there is a doubt the benefit must be given in favour of labour. A finding of fact reached by the Tribunal is not available to be reversed unless it can be shown to have been reached in the absence of materials to support it or the decision to have been reached on extraneous considerations or irrelevant considerations, or that the decision is so perverse that it could not have been reached, on the basis of the available materials, by any reasonable process. Any exercise of Certiorari jurisdiction by the Constitution Court is to be circumspected by such conditions. The conclusion reached by the Tribunal in the present case does not suffer from any of these infirmities. So far as the earlier decision of the Court in P. Mallesha v. Industrial Disputes, Tribunal, Hyderabad (supra) which has been relied upon by the learned single Judge to reverse the finding of the Tribunal is concerned, it is seen that in that case the question whether a honorary Joint Secretary of respondent No. 2 is an officer or not was not raised as also the question whether respondent No. 2 itself is an association of employers or not. The Court, in that case, proceeded on the assumption of the honorary Joint Secretary to be an officer. Hence the decision can hardly be said to apply to the facts of the present case.
24. Mr. K. Srinivasamurthy, appearing for respondent No. 2 raises the question regarding the constitutional validity of Section 36(4) of the Industrial Disputes Act. Such question is raised for the first time in the counter-affidavit filed by respondent No. 2 who was added as a party at the appellate stage. In the writ petition filed by respondent No. 1 no such question was urged. Section 36(4) requires the consent of the other parties to the representation of a party through a lawyer in a proceeding before the Labour Court. Tribunal or the National Tribunal. The argument proceeds on the footing of the provision as working out inequities between the parties and that though there was justification for introduction of such restricting provision regarding appearance of legal practitioners when the Act was enacted, yet because of the changing order of the Society and the development of organised labour, the continued existence of the restrictive provision is not longer necessary and deserves a rethinking on the necessity of its continuance. In that context reliance is also placed on Section 30 of the Advocates Act, 1961 (Act No. 25 of 1961). The decision of the Supreme Court in Aeltemesh Rein v. Union of India is brought to our notice where the Court directed the Central Government to consider the question of bringing into force Section 30 of the Advocates Act within six months. It is submitted that though the time allowed is long since over, yet no steps have been taken.
25. In this case Mr. Mohan Reddy appeared for Respondent No. 1 by filing vakalat along with a petition to the Tribunal to be permitted to represent respondent No. 1. The application was rejected and the vakalat was returned as the appellant did not consent to his appearance. Hence decision was taken under Section 36(4) to disallow Mr. Mohan Reddy's appearance. It is admitted that respondent No. 1 did not challenge that order in any higher forum. Respondent No. 2 also did not challenge the order on its own. As a matter of fact Mr. Srinivasamurthy candidly submitted before us that respondent No. 2 is in no way concerned with the appearance or non-appearance of Mr. Mohan Reddy for respondent No. 1. While such is the stand taken, it is really surprising for respondent No. 2 to make an attempt to challenge constitutional vires of Section 36(4). Respondent No. 2 is only interested to sustain the appearance of its officers to represent case of its members. In that context it claims that relief that legal practitioners empanelled by it as honorary Secretaries should be treated as its officers and be allowed to represent the cases of its members and that it should be itself treated as an association of employers. It has absolutely no cause of action to support the general entitlement of lawyers to appear before the Tribunal or the Labour Court on their own right as lawyers, without subjecting the entitlement of their appearance to the consent of the opposite party and the leave of the adjudicating Court. The challenge of vires of Section 36(4) at the instance of respondent No. 2 is hence wholly untenable and is not to be permitted and that too at this stage. The decision on such a question also does not arise in the context of the case in view of what has been discussed, and it is well-settled that the Court would not enter into academic discussion regarding constitutional validity of statutory provisions unless such a decision becomes necessary for the purpose of decision of the case.
26. While deciding the questions raised in favour of the appellant, we propose to note some aspects before parting with the case. In Paradip Port Trust case (supra) the Supreme Court observed, while noticing that the restriction on the appearance of the lawyer was first introduced in the Industrial Disputes (Appellate Tribunal) Act, 1950 and similar provisions were introduced into the Industrial Disputes Act by way of amendment, the Court pointed out as under:
"In view of the recent thinking in the matter of proffering legal aid to the poor and weaker sections of the people it may even be possible that the conditional embargo under Section 36(4) may be lifted or its rigour considerably reduced by leaving the matter to the Tribunal's permission as has been the case under the English Law".
27. Though such views were expressed, yet there does not appear to have any consideration yet made of the observations regarding the justifiability of the continuance of the provisions particularly when legal aid programmes have made steady advancement in the matter of redressal of grievances before the Court and Tribunals. It is not uncommon to see that many Trade Unions have knowledgeable and expert office-bearers to protect the interests of the labour before the Courts or the Tribunals. It is even possible that eminent legal practitioners may become office-bearers of the registered Trade Unions even though they are practising advocates, and represent the cases of the workmen before the Courts or the Tribunals but that when the Management purport to engage competent counsels for themselves, their appearance may not be consented to Such circumstances obviously at times work out great iniquitous between the parties in the opportunities of defending their cases. We have hence to reiterate again the anxiety expressed by the Court of there being a need to make a reassessment and reach conclusion at the legislative level as to whether in consideration of the totality of circumstances, Section 36(4) of the Industrial Disputes Act does not need a change so as to vest either in the Court or the Tribunal the authority to consider in each case the equities involved an allow, in suitable cases, representation by lawyers of the parties in the same manner as is done by the enquiring officers in departmental proceedings conducted under the Disciplinary, Control and Appeal Rules.
28. In the result he appeal succeeds with costs, and the impugned judgment is set aside and that of the Tribunal is restored. Hearing fee Rs. 1,000/-.
29. The matter may now go back to the Tribunal which is directed to dispose of the Industrial Disputes case No. 44 of 1991 within two months from the date of receipt of a copy of the order from this Court.