Delhi District Court
Rajkumari vs M/S Maharaja Agrasen Hospital on 3 October, 2013
Rajkumari Vs M/s Maharaja Agrasen Hospital ID No. 349/12
BEFORE SH. ANAND SWAROOP AGGARWAL: POLC - XI:
KARKARDOOMA COURTS: DELHI
REFERENCE CASE (ID No. 349/12)
UNIQUE CASE ID No. 02402C0355652012
In the matter of :
Rajkumari
......... Workman.
V/s.
M/s Maharaja Agrasen Hospital
..........Management.
Date of Institution : 24.11.2012
Date of reserving for order : 19.09.2013
Date of order : 03.10.2013
ORDER :
1. This order shall dispose off an application moved on 17.05.2013 by the workman U/S 36 (2) and (3) of the Industrial Disputes Act, 1947 through his Authorized Representative Sh.
Mohan Lal Jonwal who is purportedly the General Secretary of the Maharaja Aggarsain Hospital Employees Union praying for prohibiting Ms. Deepti Singh Sodhi and Sh. Harvinder Singh advocates / legal practitioners from representing the Management in the proceedings before this court.
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Rajkumari Vs M/s Maharaja Agrasen Hospital ID No. 349/12
2. Management has filed a reply to the application moved against it by the workman.
3. I have heard Sh. Mohan Lal Jonwal Authorized Representative of the workman and Ms. Deepti Singh, Advocate for the Management. Written submissions have also been filed by the AR of the workman.
4. Authorized Representative of the workman has relied upon the following case laws:
1. Paradip Port Trust Vs. Their workers 1976 II LLJ 409;
2. Kamakshi R. Iyer Vs. Hindustan DorrOliver Ltd. & Ors. 1996 I LLJ 1131;
3. Siemens Ltd. Vs. K. K. Gupta & Ors. 125 (2005) Delhi Law Times 85;
4. Bhawani Art Handicrafts Vs. Gulab Singh & Ors. 1999 (82) FLR 781;
5. DHL Worldwide Express (India) Pvt. Ltd. Vs. AFL - DHL Employees Union & Ors. 2009 II LLJ 108 Bombay;
6. Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd. Vs. Ram Gopal Sharma & Ors. 2002 I LLJ 834;
7. Prasar Bharti Broadcasting Corporation of India Vs. Sh. Surajpal Sharma & Ors. 1999 LLR 352;
8. Maheshwari Gas Service Vs. Ved Prakash Dubey W.P. (C) 3107/2011 decided on 11.09.2012 by Hon'ble Ms. Justice Mukta Gupta, Judge, Delhi High Court.
9. Hosing Ardasar Ichhaporiya Vs. Mahavir General Page 2 to 9 (ANAND SWAROOP AGGARWAL) POLC - XI : KKD. : DELHI Rajkumari Vs M/s Maharaja Agrasen Hospital ID No. 349/12 Hospital, Surat 1994 II LLJ 326 (Gujarat High Court);
10. Filmistan (Pvt.) Ltd. Bombay Vs Syed Taki Bilgrami & Anr.1969 II LLJ 638 (Bombay High Court) On the other hand ld. counsel for the Management has relied upon:
(i) Order dated 13.08.2008 passed by the Division Bench of Hon'ble Delhi High Court in case titled as M/s. Bhagat Brothers vs. Paras Nath Upadhyay LPA 212/2008.
(ii) Francis Gomez Vs State of Kerala, 1999 I CLR 572.
(iii) MSCO (P) Ltd. Vs S D Rane & Ors.
Miscellaneous Petition no. 1360/78 decided on 04.12.1981 by Hon'ble Mr. Justice D. P. Madan, Judge, Bombay High Court.
(iv)T. A. Varghese Vs. Nichimen Corporation 2002 IV LLJ 1018
5. I have gone through the material available on judicial file very carefully and also perused the case laws relied upon by ARW / ld. counsel for management with utmost regards. Further I have given a thoughtful consideration to the issues involved in the adjudication of the applicationinhand keeping in view the facts and circumstances of this case as well the case laws relied upon by the Authorized Representative of the workman and ld. counsel for the Page 3 to 9 (ANAND SWAROOP AGGARWAL) POLC - XI : KKD. : DELHI Rajkumari Vs M/s Maharaja Agrasen Hospital ID No. 349/12 Management.
6. Applicationinhand have been moved U/S 36 (2) & (3) of the Industrial Disputes Act, 1947. At the outset I wish to point out that Section 36 (3) of the Industrial Disputes Act, 1947 has no application to the proceedings before this court in as much as the said provision of law bars the representation by a legal practitioner in the conciliation proceedings under the Industrial Disputes Act, 1947 or in any proceedings before a Court. Proceedings before this court as a Labour Court constituted U/S 7 of the Industrial Disputes Act, 1947 are not conciliation proceedings. Further the term 'Court' has been defined U/S 2 (f) of the Industrial Disputes Act, 1947 to mean a Court of Inquiry constituted under the Industrial Disputes Act, 1947. Under the Industrial Disputes Act, 1947 a Court of Inquiry is constituted U/S 6 thereof. Also this court is not a Court of Inquiry constituted U/S 6 of the Industrial Disputes Act, 1947.
This court has been constituted U/S 7 of the Industrial Disputes Act as a Labour Court. Section 36 (4) of the Industrial Disputes Act is applicable to the proceedings before this court as a Labour Court.
7. Hon'ble Delhi High Court (Division Bench) in case law titled as "M/s. Bhagat Brothers vs. Paras Nath Upadhyay" LPA 212/2008 decided on 13.08.2008 has ruled / observed as under : "6. Section 36 (4) of the Industrial Disputes Act, 1947 reads as follows : Page 4 to 9 (ANAND SWAROOP AGGARWAL) POLC - XI : KKD. : DELHI Rajkumari Vs M/s Maharaja Agrasen Hospital ID No. 349/12 "(4) 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."
7. Section 36 (4) does not prescribe that the consent must be given in a particular manner or in a particular form. In a given case the consent of a party, which is the basis for grant of leave to the other party for being represented by an advocate in a proceeding under the Industrial Disputes Act, could be inferred from the surrounding circumstances as also the conduct the consenting party. Section does not insist upon a written consent. Consent can be implied. Consent once given cannot be revoked at a later stage because there is no provision in the Industrial Disputes Act enabling such withdrawal or revocation. In a similar circumstance, a single judge of Kerala High Court in the case of Calicut Cooperative Milk Supply Union v. Calicut Cooperative Milk Supply Workers' Union 1986 LAB 1.C. 1981 has held that consent can be inferred from the conduct of the party and the consent once given by a party entitling the other party to be represented in the proceedings by an advocate would ensure to his benefit till the proceedings are finally disposed. A similar view is taken by the Calcutta High Court in Reckitt and Colman v. Jitendra Nath AIR 1956 Calcutta 353.
8. In T. K. Varghese v. Nichimen Corporation 2002 - IV - LLJ (Suppl) Bombay 1018 the Bombay High Court has held that if there was no objection Page 5 to 9 (ANAND SWAROOP AGGARWAL) POLC - XI : KKD. : DELHI Rajkumari Vs M/s Maharaja Agrasen Hospital ID No. 349/12 raised on the first date of the proceedings to the appearance of a legal practitioner on behalf of the other side, the consent is to be taken as implied consent. Since the Labour Court has allowed the legal practitioner to appear on behalf of the respondent company it will have to be deemed that the Labour Court had granted leave to appear for the respondent company.
9. In the facts and circumstances of the case, we are inclined to agree with the submission of the learned counsel for the appellant - management that since there was no objection raised to the appearance of legal practitioner on behalf of the other side, the consent is to be taken as implied consent. As the Labour Court has also allowed Mr. J. K. Singhal, the legal practitioner, to appear on behalf of the appellant company, it will have to be deemed that the Labour Court had granted leave to Mr. Singhal to appear for the appellant management, through there was no specific or express consent given by the respondent workman or his representative and though the Labour Court had not specifically granted leave to Mr. Singhal to appear for the appellant - management. From the conduct of the union representative as well as from the fact that Mr. Singhal was allowed to appear in the matter before the Labour for several dates, leave will have to be inferred having been granted.
10. While interpreting Section 36 (4) we must remember a crucial fact that when the Industrial Disputes Act was enacted in the year 1947 the trade union movement in this country was in its infancy and was absolutely a novice before the adjudication machinery. The Legislature had Page 6 to 9 (ANAND SWAROOP AGGARWAL) POLC - XI : KKD. : DELHI Rajkumari Vs M/s Maharaja Agrasen Hospital ID No. 349/12 visualized a legal battle between two unequals before the Industrial Adjudicators. In order to bring about and maintain fairness and equality, the Legislature provided under section 36 of the Act how the parties would be represented in the proceedings under this Act. However, there has been sea change in the circumstances. A large number of small employers have also come up in the industrial scene. They cannot be denied the service of a legal practitioner when they are dragged into industrial litigations. Trade unions have also become financially well off to engage services of legal practitioners. Many a times union representatives appearing for the workmen are extremely knowledgeable and possess vast experience in the field. Constitutional validity of Section 36 (4) has been upheld by this court in The Cooperative Store Limited, New Delhi v. O.P. Dwivedi, P.O. Industrial Tribunal - II & Others 1988 1 LLJ 135. However, thereafter when the same issue came up before the Allahabad High Court, Markandeya Katju, J (as he then was) vide his decision reported in 1992 - 1 - LLN 972 (ICI India Ltd. v. Labour Court (VI) & Another) has held that Section 36 (4) of the Industrial Disputes Act and a similar provision i.e. Section 6 - I (2) of the UP Industrial Disputes Act are ultra vires of the Constitution. In view of our finding that there was implied consent it is not for us to reexamine the constitutional validity of Section 36 (4) but we feel that in the changed circumstances a fresh look is necessary at Section 36 (4). With these observations, we allow the appeal and set aside the order of the Labour Court as also of the learned single Judge and hold that the management is entitled to be represented by a legal practitioner Page 7 to 9 (ANAND SWAROOP AGGARWAL) POLC - XI : KKD. : DELHI Rajkumari Vs M/s Maharaja Agrasen Hospital ID No. 349/12 before the Labour Court."
8. In my considered opinion keeping in view the above said case law, it can be said that the workman impliedly consented to the appearance of legal practitioner on behalf of the Management, in as much as on 05.04.2013 Ms. Deepti Singh, Advocate had filed her Memorandum of Appearance but the same was not objected to by Sh. Mohan Lal Jonwal, authorized representative of the workman.
To my mind, it does not matter whether on the date of first appearance by the ld. counsel for the Management only a Memorandum of Appearance or a proper authority is filed by the ld.
counsel for the Management. Law permits filing of Memorandum of Appearance by the ld. counsels for the parties till they receive formal authorization duly signed by the parties concerned and in such an eventuality appearance put on the basis oral instructions (by filing the memorandum of appearance) from the parties concerned is as good as filing of formal authority on behalf of the parties. It has not been pleaded that on the date of first appearance by ld. counsel for the management, authorized representative of the workman did not know that Ms. Deepti Singh Sodhi is or is not an advocate / legal practitioner.
9. Objections taken by management regarding representation of workman through Sh. Mohan Lal Jonwal purportedly the General Secretary of Union are found to be without any substance in view of Page 8 to 9 (ANAND SWAROOP AGGARWAL) POLC - XI : KKD. : DELHI Rajkumari Vs M/s Maharaja Agrasen Hospital ID No. 349/12 law laid down in case law "Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd. Vs. Ram Gopal Sharma & Ors." 2002 I LLJ 834. To my mind, for legal purposes, the relationship of employer employee between the management and Mr. Mohan Lal Jonwal can be taken to have finally come to an end when it comes to an end de jure as well.
This relationship comes to an end de jure only when the authority grants approval under Section 33 (2) (b) of the Industrial Disputes Act, 1947. If approval is not given, nothing more is required to be done by the employee as it will have to be deemed that the order of discharge or dismissal had never been passed. Further in my opinion when two interpretations are possible, the interpretation favourable to workman deserves to be adopted by the Court.
10. In my considered opinion, this is a case of implied consent by the workman to the appearance of the ld. counsel for the Management and the applicationinhand merit dismissal and same is hereby dismissed. Even consent by the Court for representation of managements through advocates / legal practitioners can be implied as Court has permitted such appearances on various dates.
Ordered accordingly.
PRONOUNCED IN THE OPEN COURT ON 03.10.2013.
(ANAND SWAROOP AGGARWAL) POLCXI, Karkardooma Courts, Delhi.
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