Madhya Pradesh High Court
Lanxess India Pvt. Ltd. vs Grasim Krantikari Karmchari Union ... on 11 December, 2024
Author: Vivek Rusia
Bench: Vivek Rusia
NEUTRAL CITATION NO. 2024:MPHC-IND:35320
-1- WP-12312-2023
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE SURESH KUMAR KAIT,
CHIEF JUSTICE
&
HON'BLE SHRI JUSTICE VIVEK RUSIA
ON THE 11th OF DECEMBER, 2024
WRIT PETITION No. 12312 of 2023
LANXESS INDIA PVT. LTD.
Versus
GRASIM KRANTIKARI KARMCHARI UNION NAGDA THROUGH
GENERAL SECRETARY BHAWANISINGH SHEKHAWAT AND
OTHERS
Appearance:
Shri Sudeep Bhargava - Advocate for the petitioner.
Shri Amit Raj - Advocate for the respondents.
ORDER
Per: Justice Vivek Rusia Petitioner has filed the present petition being aggrieved by order dated 02.05.2023 passed by Chairman, M.P. Industrial Tribunal, Indore, whereby application filed under sub-section (3) and (4) of Section 36 of Industrial Disputes Act, 1947 (hereinafter referred as "ID Act") filed by the respondent has been allowed.
Facts of the case in short are as under:
02. The respondents No.1 & 2 raised an industrial dispute which was referred by the State Government for adjudication to the M.P. Industrial Tribunal. Shri Bhawani Singh Shekhawat appeared as Joint Secretary of respondent No.1 to represent the case of workmen i.e. Signature Not Verified Signed by: DIVYANSH SHUKLA Signing time: 12-12-2024 16:49:02 NEUTRAL CITATION NO. 2024:MPHC-IND:35320
-2- WP-12312-2023 respondent No.2. Shri Kuldeep Bhargava Advocate filed a vakalatnama on behalf of second party i.e. petitioner. The respondents No.1 & 2 filed an application under Section 36 (3) & (4) of ID Act objecting the appearance of Shri Kuldeep Bhargava Advocate on behalf of the petitioner. The said application was opposed by the petitioner by submitting that Shri Kuldeep Bhargava and Sudeep Bhargava are Vice President and Joint Secretary, therefore, they can represent by virtue of Section 36(2) of the ID Act. Vide order dated 02.05.2023, the learned Tribunal has allowed the application on the ground that Shri Kuldeep Bhargava in an enrolled advocate, therefore, he cannot represent the employer in the capacity of advocate hence, this petition before this Court.
We have heard learned counsel for the parties and perused the entire record.
03. Objecting the representation of the Lanxess India Private Limited before the Labour Court by an advocate, an application under Section 36(3) of ID Act was filed by the respondents. The said application was opposed by the petitioner. Vide impugned order dated 02.05.2023, the petitioner herein has been restrained to be represented by an advocate.
04. Shri Sudeep Bhargava, learned counsel appearing for the petitioner submits that the order dated 02.05.2023 has been passed without considering the provisions of Section 36(1)(b) of the ID Act.
05. For ready reference, Section 36 of ID Act is reproduced below:
36. Representation of parties.--(1) A workman who is a party to a dispute shall be entitled to be represented in any proceeding under this Act by--
(a) [any member of the executive or 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 2 [any member of the executive or other office bearer] of any trade union Signature Not Verified Signed by: DIVYANSH SHUKLA Signing time: 12-12-2024 16:49:02 NEUTRAL CITATION NO. 2024:MPHC-IND:35320
-3- WP-12312-2023 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 association 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) 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 proceedings and [with the leave of the Labour Court, Tribunal or National Tribunal, as the case may be].
[36A. Power to remove difficulties.--(1) If, in the opinion of the appropriate Government, any difficulty or doubt arises as to the interpretation of any provision of an award or settlement, it may refer the question to such Labour Court, Tribunal or National Tribunal as it may think fit.
(2) The Labour Court, Tribunal or National Tribunal to which such question is referred shall, after giving the parties an opportunity of being heard, decide such question and its decision shall be final and binding on all such parties.] [36B. Power to exempt.--Where the appropriate Government is satisfied in relation to any industrial establishment or undertaking or any class of industrial establishments or undertakings carried on by a department of that Government that adequate provisions exist for the investigation and settlement of industrial disputes in respect of workmen employed in such establishment or undertaking or class of establishments or undertakings, it may, by notification in the Official Gazette, exempt, conditionally or unconditionally such establishment or undertaking or class of establishments or undertakings from all or any of the provisions of this Act.]
06. The aforesaid Section 36 deals with the representation of the parties before the Labour Court, Tribunal or National Tribunal. As per sub- section (1)(a), a workmen who is a party to a dispute shall be entitled to be represented by any member of executive or other office bearer of a registered trade union of which he is a member, any member of executive or office bearer of federation of trade union and if he is not member of any Signature Not Verified Signed by: DIVYANSH SHUKLA Signing time: 12-12-2024 16:49:02 NEUTRAL CITATION NO. 2024:MPHC-IND:35320
-4- WP-12312-2023 trade union then by any member of executive or office bearer of any trade union connected with in the industry. There is no dispute in respect of the representation by Shri Amit Raj to the respondent No.1. The respondent No.1 raised an objection under Section 36(3) & (4) of ID Act in respect of appearance of Shri Kuldeep Bhargava, advocate on behalf of the petitioner. The aforesaid objection has been filed treating that Shri Kuldeep Bhargava is appearing in the capacity of advocate for the petitioner before the Industrial Tribunal. It is correct that under sub-Section (3) & (4) of Section 36 of ID Act, no party to a dispute shall be entitled to be represented by any legal practitioner in any conciliation proceeding or any proceeding under the ID Act before the Court and as per sub-section (4) of Section 36, a legal practitioner can appear with the consent of other parties to the proceedings and with the leave of the Labour Court, Tribunal or National Tribunal. So far as sub-section (3) & (4) are concerned, the petitioner and respondents cannot be represented through legal practitioner unless the respondent No.1 gave consent, and the leave is granted by the Labour Court, Tribunal, National Tribunal or Industrial Tribunal.
07. Shri Amit Raj who is representing respondent No.1 argued that the Section 36(2) of ID Act has to be read with sub-section (3) & (4) of Section 36 of ID Act and in sub-section (4) the consent of opposite party is required.
08. The Apex Court in case of Paradip Port Trust V/s Workmen, (1977) 2 SCC 339 has held that right to representation under Section 36(1) & (2) of the ID Act are unconditional and are not subject to condition laid down under Section 36(4) of ID Act, the said two sub-sections are independent and stand by themselves. Relevant para is reproduced below:
"The right is extended to representation by the office-bearers of the federation of the unions and by the officers of the federation of employers. The provisions of Section 36(1) and 36(2) confer on the respective parties absolute rights of representation by persons respectively specified therein. The rights of representation under section 36(1) and Section 36(2) are unconditional and are not Signature Not Verified Signed by: DIVYANSH SHUKLA Signing time: 12-12-2024 16:49:02 NEUTRAL CITATION NO. 2024:MPHC-IND:35320
-5- WP-12312-2023 subject to the conditions laid down under Section 36(4) of the Act. The said two sub-sections are independent and stand by themselves."
09. The validity of the aforesaid judgment was doubted in the case of Thyssen Krupp Industries India Pvt. Ltd. and others V/s Suresh Maruti Chougule and others, 2023 SCC OnLine SC 1707 and referred to the Larger Bench. Now, the Larger Bench in case of MUFG Bank Ltd. V/s Jayanand Nayak and others, 2023 SCC OnLine SC 1707 has upheld the judgment passed in the case of Paradip Port Trust (supra), therefore, the submission of Shri Amit Raj is hereby rejected.
10. Shri Amit Raj further argued that Shri Kuldeep Bhargava, advocate cannot be treated as an Officer of association of employer because he is an enrolled advocate of State Bar Council of M.P. This issue has also been considered by the Division Bench of High Court of Bombay in case of Associated Cement Staff Union V/s Associated Cement Companies Ltd. reported in 2001 SCC OnLine Bom 1002. Para 12 to 16 are reproduced below:
"12. It appears that before the learned single Judge an argument was advanced that the word "Officer" which is used in sub-section (2) which provides for representation of employer is different from the word "Office bearer" which is used in sub-section (1) which provides for representation of workmen and that therefore Pavaskar being a member of the Executive Committee cannot be said to be an officer. Support was derived from the facts that parliament substituted the word "officer" in sub-section (1) with the words "any member of the executive or other office bearer". It was, therefore, argued that a member of the executive is not covered by the word "Officer". This argument has been rejected by the learned single Judge after referring to the Trade Unions Act, 1926 in which the word "Office bearer" was substituted for the word "Officer" by Act No. 38 of 1964. Further reliance was placed on the statement of objects and reasons to the bill introduced at the time of amending section 36 of the Industrial Disputes Act. The reason given in the Bill is:--
"3. Word "officer" is not considered appropriate in the case of trade unions and has therefore sought to be substituted by the word "office bearer"."
13. The learned Single Judge relied on, and in our opinion rightly, on the decision of the Division Bench of the Calcutta High Court in Infar (India) Ltd. (supra) where that Court has held that the word „officer‟ has been used in the context of an employer and the word Signature Not Verified Signed by: DIVYANSH SHUKLA Signing time: 12-12-2024 16:49:02 NEUTRAL CITATION NO. 2024:MPHC-IND:35320
-6- WP-12312-2023 „office bearer‟ has been used in the context of the trade unions. The Calcutta High Court has noted that earlier it had not taken note of the definition of the term „office bearer‟. Section 2(111) of the Industrial Disputes Act, 1947 which defines that term as follows:--
"Office bearer" in relation to a trade union, includes any member of the executive thereof, but does not include an auditor."
14. In our view it is clear that the word „officer‟ was substituted as aforesaid so as to include, in relation to workmen, any member of the executive committee of other office bearer, probably having regard to the structure of trade unions. It does not, however, follow that because the word „officer‟ in relation to representative of employer has not been amended, it excludes a mere member of the executive committee of the association of employers. The word „officer‟ must be given its plain meaning, that is any person who holds an office or an appointed or elected functionary. We are, therefore, of the view that a member of the executive committee of an association of employers must be taken to be an officer of the employers association.
15. In the circumstances, we approve the view of the learned single Judge who has also relied on a judgment of the single Judge of the Karnataka High Court in the case of Hotel Ashoka v. Presiding Officer, Addl. Labour Court, 1984 (4) F.L.R. page 297 and a judgment of the single Judge of the Delhi High Court in Management of the Associated Cement Cos. Ltd. v. Workman, Saroj Arora, 2001 (1) C.L.R. 739.
16. We find that the learned single Judge has rightly disagreed with the decision of the Division Bench of the Orissa High Court in Kalinga Studios Limited v. Presiding Officer, Industrial Tribunal, 1994 II LLJ 108, where that court has held that a person can be said to be an officer if he is in the service and the regular officer of the association of the employers. This view was taken by the Orissa High Court in the context that the person in question was merely co-opted to the executive committee and nominated as an officer to give legal advise to conduct cases on behalf of the members of the association. Even otherwise, we find that if a person holds office or is appointed as a functionary on the executive committee of an association of employers, he would qualify for being treated as an officer of an association of employers within the meaning of section 36(2) of the Industrial Disputes Act irrespective of the manner in which he came to hold office. Having regard to the view, we have taken we are also unable to agree with the decision of the Andhra Pradesh High Court in the case of The Andhra Pradesh Power Diploma Engineers Association Generation Wing, Kothagudem Thermal Power Station Zone, Paloncha v. Andhra Pradesh State Electricity Board, Hyderabad, 1996 (1) LLJ 1082." Therefore, the aforesaid submission is also not tenable and is hereby rejected.
11. In view of the above, impugned order dated 02.05.2023 passed by Signature Not Verified Signed by: DIVYANSH SHUKLA Signing time: 12-12-2024 16:49:02 NEUTRAL CITATION NO. 2024:MPHC-IND:35320
-7- WP-12312-2023 Industrial Tribunal, Indore in case No.01/ID/2023 is hereby quashed. Shri Kuldeep Bhargava and Shri Sudeep Bhargava, advocates are permitted to represent the petitioner in the capacity of Vice President and Joint Secretary respectively of Officer of association in the pending reference.
12. With the aforesaid, the present Writ Petition stands allowed.
Certified copy, as per rules.
(SURESH KUMAR KAIT) (VIVEK RUSIA)
JUDGE JUDGE
Divyansh
Signature Not Verified
Signed by: DIVYANSH
SHUKLA
Signing time: 12-12-2024
16:49:02