Orissa High Court
Brooke Bond Lipton India Ltd. vs Brooke Bond Sramik Union on 18 November, 2004
Equivalent citations: 99(2005)CLT244, (2005)IILLJ185ORI
Author: A.S. Naidu
Bench: A.S. Naidu
JUDGMENT A.S. Naidu, J.
1. The pertinent question that arises for determination in the aforesaid A.H.O. as well as the Writ Applications is whether an office-bearer of a worker's union, who is not a workman under the Management can represent the said union in an industrial dispute pending before the Labour Court/Industrial Tribunal.
2. The Brooke Bond Lipton India Limited has filed A.H.O. No. 203 of 2001 assailing the judgment passed by a Learned Single Judge of this Court in OJC No. 5269 of 2001 declining to interfere with the Order dated 7th March 2001 passed by the Industrial Tribunal, Orissa, Bhubaneswar in I.D. Case No. 102 of 1995 permitting the Vice-president of the Brooke Bond Shramik Union to represent the body of the workmen in the aforesaid I.D. Case.
3. The other Writ Applications have been filed either by the Managements or by the Workmen's Unions assailing the conflicting orders passed by the Industrial Tribunal in different I.D. Cases, either permitting the office-bearers of the Unions who are not workmen under the said Managements to represent the Workmen's Unions in the I.D. Cases or rejecting the petitions filed by the Workmen's Unions seeking permission to be represented by their office-bearers.
The point of law involved in ail these cases being one and the same, by consent of the parties the aforesaid Writ Applications were heard along with the A.H.O. by this Bench and are proposed to be disposed of by this common judgment.
4. Mr. S. B. Nanda, Learned Senior Advocate spearheaded the arguments, followed by other Learned Counsel appearing in various cases. Relying upon the decision of the Supreme Court in the case of State Bank of India Staff Association and Anr. v. State Bank of India and Ors., AIR 1996 SC 1685, Mr. Nanda submitted that a person who is not an employee under the Management having no cause of action should not be permitted to represent a body of workmen before the Industrial Tribunal. In other words only an employee who is an office-bearer of the Union can be permitted to represent the workmen or their Union and none else.
5. The Learned Single Judge in the judgment passed in OJC No. 5269 of 2001 held that the decision of the Supreme Court in AIR 1996 SC 1685 (supra) does not ipso facto apply to proceedings under the I.D. Act where representation of parties is expressly regulated by Section 36 of the Industrial Disputes Act. Relying upon the decision of the Supreme Court in the case of Paradip Port Trust v. Their Workmen, reported in AIR 1977 SC 36 which was delivered by a three-Judge Bench, the Learned Single Judge disposed of the Writ Application holding that the Industrial Tribunal had rightly permitted the Vice-president of the concerned Union to represent the body of workmen.
6. To appreciate the arguments advanced by the Learned Counsel it would be prudent to refer to Section 36 of the Industrial Disputes Act, 1947.
Sub-section (1) of Section 36 of the Act stipulates that a workman who is a party to a dispute shall be entitled to be represented in any proceeding under the 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 authorized in such manner as may be prescribed.
Sub-section (2) of Section 36, at the other hand, stipulates that an employer who is a party to a dispute shall be entitled to be represented in any proceeding under the 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 authorized in such manner as may be prescribed.
Sub-sections (3) and (4) of Section 36 read as follows ;
(3) No party to a dispute shall be entitled to be represented by a legal practitioner in any conciliation proceedings under the Act or in any proceedings before a Court.
(4) In any proceedings 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 party to the proceeding and with the leave of the Labour Court, Tribunal or National Tribunal, as the case may be.
7. A cumulative reading of Section 36 leads to an irresistible conclusion that the said Section provides for representation of the parties before the Tribunal or Labour Court. Under Sub-section (1) of Section 36, a workman who is a party to a dispute shall be entitled to be represented in any proceeding under the Act by the three classes of officers, morefully described in (a), (b) and (c) of that Sub-section. Similarly, under Sub-section (2) of Section 36 an employer who is a party to a dispute shall be entitled to be represented in any proceeding under the Act by three classes of officers mentioned in (a), (b) and (c) of that Sub-section. Under Sub-section (3) a total ban is imposed on representation of a party to a dispute by a legal practitioner. But then under Sub-section (4) of Section 36 with the prior consent of the opposite party and the leave of the Tribunal or Labour Court, as the case may be, a party can be represented by a legal practitioner.
8. It has held by the Supreme Court in Paradip Port Trust Case (supra):
"... It is, therefore, in the very scheme of things that a workman's absolute right to be represented by an office-bearer of the union is recognized under the Act. Indeed it would have been odd in the entire perspective of an industrial dispute and the objects and purposes of the Act not to give due recognition to the union. But for a provision like Section 36(1) of the Act, there may have been difficulty under the general law in the way of the office-bearers of the union representing workmen before the adjudicating authorities under the Act unless, perhaps, regulated by the procedure under Section 11 of the Act. To put the matter beyond controversy an absolute right is created in favour of the workmen under Section 36(1) in the matter of representation..."
9. The applicability of the ratio of the decision in the case of Paradip Port Trust (supra) was considered by this Court in the case of M/s. Kalinga Studios Ltd. represented by its Managing Director v. Presiding Officer, Industrial Tribunal, Orissa and Ors., 1993(1) OLR 559. My Lord Justice Hansaria, the then Chief Justice, speaking for the Bench observed as follows :
"Let us now see as to how far the observation made in Paradip Port Trust case that motive is not to be gone into can help the petitioner. What was observed therein was that motive for appointing a legal practitioner as an officer of the employee's association cannot be gone into. This does not prevent examination of the question whether the legal practitioner is an officer, and it is this examination which has led the Presiding Officer to conclude that Shri Nanda is not an officer, with which view we concur. Secondly, what Paradip Port Trust's case has prohibited in the examination 'motive', but not the attempt to get the employer represented by a legal practitioner by a colourable act of painting a lawyer as an officer. In so far as the present case is concerned we can say that despite cosmetics and (sic), the face could not be changed; and we can see Shri Nanda through the veil of officer, without even lifting it. We owe an obligation to the society to prevent mockery of law, which it would have been, if we would have conceded to the plea of the petitioner."
10. The Learned Single Judge in OJC No. 5269 of 2001 has extensively dealt with the decision in Paradip Port Trust case (supra) vis-a-vis the State Bank of India Staff Association case (supra), and has arrived at the conclusion that Section 36 is directly applicable to proceedings under the l.D. Act and that representation of parties before the Tribunal/Labour Court is squarely governed by Section 36 which expressly permits that a workman who is a party to the dispute involved in the proceeding may be represented by a member of the executive committee or by an office-bearer of a Registered Trade Union of which he is a member.
11. Relying upon the provisions of Section 18 of the I.D. Act, Learned Counsel for the appellant/Management-petitioners tried to convince us that no other person excepting the workmen engaged under the Management can represent the body of workmen. But then, Section 18 deals with conciliation proceedings, and not industrial disputes. The rights of representation of parties before the Tribunal or Labour Court are expressly dealt with under Section 36 of the I.D. Act. The Provisions of Sub-sections (1) and (2) of Section 36 confer on the respective parties absolute rights of representation by persons respectively specified therein. The rights of representation under Sub-section (1) and Sub-section (2) are unconditional and are not subject to the conditions laid down in Sub-section (4). Both the Sub-sections (1) and (2) are independent. This being the clear position of law, we stand unconvinced with the submissions of the Learned Counsel in this regard.
12. The Learned Single Judge in OJC No. 5269 of 2001 held that Section 36 of the Act expressly permits a Workmen's Union which is a party to an industrial dispute to be represented by a member of its executive committee or an office-bearer of the Registered Trade Union of which he is a member. On a reading of Section 36 of the Act, we do not find any infirmity or illegality in the conclusion arrived at by the Learned Single Judge. It is immaterial whether the representative of a workmen's union is in service or has been superannuated. In other words, a superannuated workman, if he continues to be an office-bearer of the Workmen's Union, can be permitted to represent the workmen before the Tribunal or Labour Court, so also the office-bearer who is not a workman under the same Management. This answers the question involved in all these cases.
13. With the aforesaid observation we dispose of the A.H.O. and all the aforesaid Writ Petitions. We grant liberty to the respective petitioners whose earlier petitions have been rejected to file separate petitions under Section 36 of the I.D. Act in the respective cases before the Industrial Tribunal, which shall be disposed of by the said authority in accordance with law and keeping in view the observations made above.
Sujit Borman Roy, C.J.
14. I agree.