Gujarat High Court
Schneider Electric India Pvt. Ltd vs Kailashben R Valand on 17 December, 2013
Author: Paresh Upadhyay
Bench: Paresh Upadhyay
SCHNEIDER ELECTRIC INDIA PVT. LTD....Petitioner(s)V/SKAILASHBEN R VALAND C/SCA/192/2013 CAV JUDGEMNT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION NO. 192 of 2013 With SPECIAL CIVIL APPLICATION NO. 197 of 2013 FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE PARESH UPADHYAY Sd/-
================================================================ 1 Whether Reporters of Local Papers may be allowed to see the judgment ?
YES 2 To be referred to the Reporter or not ?
YES 3 Whether their Lordships wish to see the fair copy of the judgment ?
NO 4 Whether this case involves a substantial question of law as to the interpretation of the Constitution of India, 1950 or any order made thereunder ?
NO 5 Whether it is to be circulated to the civil judge ?
NO ================================================================ SCHNEIDER ELECTRIC INDIA PVT. LTD. ...Petitioner Versus KAILASHBEN R VALAND & ANR. ...Respondents ================================================================ Appearance:
MR NILESH A PANDYA, ADVOCATE for the Petitioner MR MS MANSURI, ADVOCATE for the Respondent No. 1 MR PARITOSH CALLA, ADVOCATE for the Respondent No. 2 ================================================================ CORAM:
HONOURABLE MR.JUSTICE PARESH UPADHYAY Date : 17/12/2013 CAV JUDGEMNT
1. Heard Mr.Nilesh Pandya, learned advocate for the petitioner- employer and Mr.M.S.Mansuri, learned advocate for the respondent- Workmen.
2. Challenge in both these petitions is made to the common order passed by the Labour Court, Vadodara in Complaint Applications No.10 and 11 of 2012, in Reference (Demand) No.33 of 2009, dated 07.12.2012. By the impugned order, the Labour Court has denied permission to the employer, to avail service of a legal practitioner, since the workmen concerned has not consented for the same, though on behalf of the concerned workmen, legal practitioners are appearing before the Labour Court, as office bearers of the Union.
3.1 Brief facts, relevant for the purpose of these petitions are as under.
3.2 Reference (Demand) No.33 of 2009 is pending for adjudication before the Labour Court Vadodara. Merits of the said Reference are not relevant for the purpose of these petitions. During pendency of the said Reference, two workmen- the present respondents, filed Complaint Applications under Section 33A of the Industrial Disputes Act, 1947, agitating about their discontinuance of employment.
3.3 In the said Complaint Applications dated 03.11.2012, reply was filed on behalf of the employer on 27.11.2012. During the course of hearing of the said applications, an objection was raised on behalf of the workmen that, the employer be not permitted to represent its case through an advocate, since the concerned workmen have refused to give consent, in that regard.
3.4 It was the case of the employer before the Labour Court that, the workmen are represented through a very senior advocate like Mr.M.S.Mansuri, who is also a regular practitioner before the High Court of Gujarat, and therefore the employer be also permitted to represent its case through a legal practitioner.
3.5 It is the say of the learned advocate for the workmen that, the workmen have refused to give consent. Under these circumstances, considering the provision of Section 36(4) of the Industrial Disputes Act, 1947, the Labour Court has passed the impugned order, refusing leave to the employer to represent its case through a legal practitioner.
3.6 It is this order, which is under challenge in this petition.
4. Mr.Pandya, learned advocate for the petitioner- employer has stated that, the President of the Union- the Rajya General Kamdar Mandal, which has taken up the cause of the workmen in the Reference in question, is Mr.M.S.Mansuri, who is a practising lawyer before the High Court of Gujarat, who also appears before the Labour Court. Further, the General Secretary of the said Union is Mr.Parvez M. Mansuri, who is son of Mr.M.S.Mansuri, and he is also an advocate. It is contended that, either of these two, appears before the Labour Court as an office bearer of the Union, but in effect, the workmen concerned are getting the legal assistance of a practising lawyer, and under these circumstances, to say no to the petitioner employer to have service of a lawyer, is discriminatory, illegal and unconstitutional. It is further submitted that, not only on the question of law, which now-a-days, is a complex phenomenon in the field of labour jurisprudence, but even in procedural aspects, without legal assistance, practically it is impossible for any employer, even to complete the record before the Labour Court. It is submitted that, pendency of References for years in the Labour Courts is now a common phenomenon. Adjourning the matters there, time and again is a matter of routine. Under these circumstances, even if once, the employer misses to remain present before the Court on time, the matter goes in default against him. It is also contended that the protection envisaged in the year 1947 in favour of the workmen, in the changed scenario requires purposive reading and in the facts of this case, the Labour Court ought to have granted permission, as requested by the petitioner. Mr.Pandya has relied on the following judgments in support of his contentions :2011
GLHEL SC 50549 Hygienic Foods versus Jasbir Singh 2010 (1) GLH 180 Panasonic Energy India Co. Ltd.(Navino) versus Makarpura GIDC Employees Union
5. On the other hand, Mr.Mansuri has vehemently opposed these petitions and it is contended that, Section 36(4) of the Industrial Disputes Act, 1947 provides for two fold stipulations. Firstly, there should be consent of the workman, and secondly, then the Labour Court may, considering the consent of the workman, grant leave to the employer to represent through a legal practitioner. It is submitted that, since there is no consent of the concerned workmen in this case, the second contingency of granting leave did not arise at all, and therefore, no exception can be made to the order passed by the Labour Court. Mr.Mansuri is quite categorical in his submission that, in the facts of this case, his son Mr.Parvez Mansuri appeared as an office bearer of the Union on behalf of the workman, but even if it is taken that he, Mr.M.S.Mansuri himself, appears as President of the Union, then also, no permission could have been granted by the Labour Court, in absence of consent of the workmen in that regard. It is therefore contended that these petitions be dismissed. Mr.Mansuri has relied on the following decisions.
AIR 1977 SC 36 Paradip Port Trust versus Their Workmen 2012-I-LLJ-824 (Guj.) - Gujarat Flavours Pvt. Ltd. versus Rajubhai @ Tulsidas R. Patel 2005-II-LLJ 290 (Bombay) Chandrakant S/o. Ganpatrao Deshkar versus All India Reporter Ltd.
2003-II-CLR 117 (Rajasthan) Laxmi Engineering Industries versus State of Rajasthan
6. Section 36(4) of the Industrial Disputes Act, reads as under.
Sec.36(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.
7.1 Having heard learned advocates for the respective parties, this Court finds that, it is not in dispute that, the President of the Union- the Rajya General Kamdar Mandal, which has taken up the cause of the workmen is Mr.M.S.Mansuri, who is a practising lawyer before the High Court of Gujarat, and who also appears before the Labour Court. Further, the General Secretary of the said Union is Mr.Parvez M. Mansuri, who is son of Mr.M.S.Mansuri, and he is also an advocate. Before the Labour Court, either of these two appears as an office bearer of the Union, and thus, in effect, the workman concerned gets legal assistance of a practising lawyer, and under these circumstances, to deny leave to an employer to engage a lawyer, amounts to denial of equal opportunity to a party to the litigation, to put its case.
7.2 Further, this Court also finds substantial force in the argument of learned advocate for the petitioner employer, and judicial cognizance also needs to be taken of the order of the day that, not only on procedural aspects, but even on the question of law, which has by this time turned out to be a very complex phenomenon in the field of labour jurisprudence, that without legal assistance, practically it is impossible for any employer, more particularly, an individual trader-employer, even to complete the record before the Labour Court, muchless to persuade the Court that no illegality is committed by him. Further, adjournments and pendency of References for years in the Labour Courts, may be for valid reasons, is not uncommon now. Under these circumstances, even if once, the employer misses to remain present before the Court, the matter goes in default against him, and then, the gamut of multiplicity of proceedings, including filing of review application for recalling of order, challenge thereto before the higher forums, etc. starts. Sometimes, the other side even waits to have such an opportunity. In the result, the object with which such a protection was envisaged and granted by the law makers in favour of the workmen in this regard, ultimately turns out to be a long drawn proceedings against the workman himself, negating the very object for which such a protection was granted. This may sometimes even enrich the Union or its office bearers, and therefore a closer scrutiny may be required, as to whether the circumstances in which the representative of the workmen contends that, it is the workman who is objecting to the appearance of a lawyer on behalf of the employer, is it in fact the objection of the workman himself for his own interest, or the communication thereof is tainted by extraneous consideration of none else than the communicator himself. The protection envisaged in the year 1947 in favour of the workmen in the changed scenario, in my view, requires purposive reading and application.
7.3 So far the judgments cited by learned advocates for the respective parties are concerned, it needs to be recorded that precedents are on both sides. Specific reference needs to be made to the decision of Hon'ble the Supreme Court of India in the case of Paradip Port Trust (supra), which is heavily relied by learned advocate for the respondent workmen. In this regard, it needs to be recorded that, there cannot be any dispute with regard to the proposition of law annunciated therein, however it also needs to be recorded that, the observations and the judgments of the Apex Court, if are read and followed without keeping in view the context and prevalent circumstances, it would less serve the purpose of dispensation of justice, and would more result in miscarriage of justice. The observations of Hon'ble the Supreme Court of India in that very judgment, more particularly in para 21 thereof, reflects the concern regarding the object and purpose of the legislation, the history of the Industrial Disputes Act and recognition of the unequal strength of the parties before the Labour Court. It was under these circumstances, and with an intention to discourage representation by a legal practitioner by both the sides, and with a view to have expeditious disposal of the cases, this provision was kept. However, now hardly any trade Union is found, atleast one of the office bearers of which is not a practising lawyer. Though, legally or professionally, this may neither appear to be illegal nor improper, in any case, this is certainly not the situation, which was envisaged by the law makers, in the year 1947, necessitating such a protection in favour of the workmen. Time has changed, provision has not. A Court of Law, more particularly higher Courts, which are custodian of the protection of the fundamental rights of the citizen, including the employers, more particularly individual trader-employers, can ill afford to turn its eyes blind, to the reverse exploitation under the pretext of refusal of the workmen, to give consent to the employer, to have assistance of a legal practitioner.
7.4 It is not that, occasionally services are availed of legal practitioners by the Unions. It is the legal practitioners themselves, who also run Unions. At the time of independence of our Nation in the year 1947, the foremost consideration of our law making elders was the concern for the workmen, which was a suppressed class, which was required to be protected against exploitation by the employers in legal proceedings, since in the circumstances then prevailing, it was not envisaged that Union activity would one day become a parallel profession for practising lawyers. Under these circumstances, in my view, it is the duty of the Court of Law to have purposive reading and application of the provisions of law. Further, even the concept of the reading down of rule has also to be kept in view. True it is, that a workman needs to be protected against exploitation by employers in the legal proceedings, but at the same time, it is also the need of the time to ascertain that it does not result into reverse exploitation of an employer. What was envisaged by this provision, was not giving an upper hand to a workman, what was assured was, that the workman was to be protected against the upper hand of the employer in judicial proceedings. The complexity in Labour Legislation, and the outcome of a long drawn labour disputes, sometime results in enormous financial liability of the employer, which entitles the employer to have atleast equal opportunity before the Labour Courts to put its case.
7.5 Considering the totality of the facts and circumstances, this Court finds that, in the present case, refusal of leave by the Labour Court to the employer to avail services of an advocate, has resulted in denial of reasonable and equal opportunity to him to defend his case, as compared to the one, which the contesting party of that very litigation, is ceased of. Under these circumstances, injustice meted out to the petitioner employer needs to be undone, and he needs to be protected, to the extent that, he also gets equal opportunity to put his case before the Labour Court.
8. For the reasons recorded above, these petitions are allowed. The impugned order of the Labour Court, Vadodara is quashed and set aside and it is held that the petitioner employer is entitled to avail the services of a legal practitioner to put his case before the Labour Court, in the proceedings in question.
Rule made absolute. No order as to costs.
Sd/-
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