Bombay High Court
Pramod Prabhakar Kulkarni vs Balasaheb Desai Sahakari Sakhar ... on 9 August, 2000
Equivalent citations: [2001(88)FLR395], (2001)IIILLJ741BOM
Author: D.Y. Chandrachud
Bench: D.Y. Chandrachud
JUDGMENT D.Y. Chandrachud, J.
1. Rule, returnable forthwith.
2. Respondents waive service. By consent, taken up for final hearing.
3. The issue involved in the present petition is whether an "approach notice", that being the colloquial description of the notice required to be given by the employee to the employer under Section 42(4) of the Bombay Industrial Relations Act, 1946, is valid when it is addressed not by the employee personally but by an advocate on his behalf. A judgment of a learned single Judge of this Court holds the field for nearly two decades. The learned counsel for the employer sought to submit that the said judgment need to be reconsidered by a larger bench and arguments were hence also addressed by the learned counsel on the question as to whether the view taken by the learned single Judge of this Court in Vasant Ladoo Naik v. Kohinoor Mills Co. Ltd. 1981 (43) FLR 390 requires reconsideration. Before addressing myself to the submissions urged at the Bar, a statement of a few relevant facts would be in order.
(i) The Petitioner was employed by Respondent No. 1 as a clerk on February 1, 1987. On May 6, 1992, his services were terminated and the allegation of the employee, the Petitioner before this Court, is that this was a mere oral termination.
(ii) On May 25, 1992, the Petitioner approached his employer, Respondent No. 1, through the notice of ah advocate setting out the nature of his 'grievances and seeking reinstatement with full back wages and continuity of service. The notice which was addressed by the advocate expressly stated that, it was written on the basis of the information provided personally by the Petitioner, the documents shown by the Petitioner and on the authority furnished by the Petitioner. The notice set out the factual background on the basis of which the employee contended that the termination of his services was unlawful and ultimately concluded with a claim of relief from the employer.
(iii) In response to the notice, a reply dated July 10, 1992 on behalf of Respondent No. 1 was sent to the employee and the reply was also by an advocate. The Respondent contended that there was no relationship of employer and employee at all and that the question of termination from service consequently did not arise.
(iv) On July 7, 1992, the Petitioner preferred an application to the Labour Court under Sections 78 and 79 of the Bombay Industrial Relations Act, 1946 claiming the relief of reinstatement with continuity of service and full back wages.
(v) By an order dated August 12, 1999, the Labour Court at Satara allowed the application of the Petitioner and declared that the termination of service was illegal. The Respondents were directed to reinstate the Petitioner in service with continuity of service and full back wages.
(vi) In an appeal against the order of the Labour Court, the Industrial Court, by its order dated October 21, 1999, came to the conclusion that because the approach notice was given by advocate on behalf of the Petitioner, it did not meet the requirements of Section 42(4) of Bombay Industrial Relations Act, 1946 ("the Act) and the complaint was consequently liable to be rejected. The Industrial Court has consequently not addressed itself to the merits of the case.
(vii) The Petitioner, who is the aggrieved employee, seeks to challenge the impugned order of the Industrial Court in these proceedings under Articles 226 and 227 of the Constitution of India.
4. Section 42 of the Bombay Industrial Relations Act is the basis of the controversy in the present case and is therefore, extracted hereinbelow, for convenience of reference:
"(4) Any employee or a representative union desiring a change in respect of (i) any order passed by the employer under standing orders, or (ii) any industrial matter arising out of the application or interpretation of standing orders, or (iii) an industrial matter specified in Schedule III, [except item (5) thereof] shall make an application to the Labour Court and as respect change desired in any industrial matter specified in Item (5) of Schedule III, to the Industrial Court:
Provided that no such application shall lie unless the employee or a representative union has in the prescribed manner approached the employer with a request for the change and no agreement has been arrived at in respect of the change within the prescribed period."
5. Item 6 of Schedule III to the Act deals with employment including reinstatement and recruitment. The expression 'chance', which has been used in Section 42(4) is defined by Section 3(8) to mean an alteration in an industrial matter. The expression "industrial matter" is, in turn, defined by Section 2(18) of the Act as follows:
"(18) "industrial matter" means any matter relating to employment, work, wages, hours of work, privileges, rights or duties of employers or employees, or the mode, terms and conditions of employment, and includes-
(a) All matters pertaining to the relationship between employers and employees, or to the dismissal or non-employment of any person;
(b) All matters pertaining to the demarcation of functions of any employees or passes of employees;
(c) All matters pertaining to any right or claim under or in respect of or concerning a registered agreement or a submission, settlement or award made under this Act;
(d) All questions of what is fair and right in relation to any industrial matter having regard to the interest of the person immediately concerned and of the community as a whole;"
6. The Petitioner is aggrieved by an order of the employer terminating his services. That is a matter which falls within the purview of Item 6 of Schedule III. The Petitioner sought a "change" within the meaning of Section 3(8), and in respect of an industrial matter as elucidated by Section 3(18) of the Act. The proviso to Section 42(4) enunciates that before the Petitioner could apply to the Labour Court, he as an employee or the representative union, was required to approach the employer with a request for the change. If no agreement was arrived at, within the prescribed period, the Labour Court could be moved. Admittedly, no agreement was arrived at. The short question is whether the notice addressed on behalf of the Petitioner by his advocate met with the requirement of Sub-section (4) of Section 42.
7. At the outset, it may be stated that it was not urged on behalf of the Respondent that the contents of the notice fell short of what was required to be communicated under Sub-section (4) of Section 42. That could not have been the submission for the simple reason that the Respondent, upon receipt of the advocate's notice, had replied to that notice through its own advocate. The grievance of the Petitioner was, thus, made abundantly clear to the Respondent in the approach notice dated May 25, 1992. The Respondent understood that grievance and duly replied to the notice which was addressed to it on July 10, 1992. Before dealing with the merits of the submissions urged on behalf of the contesting parties, it must be stated that the proviso to Section 42(4) requires an employee or the representative union to approach the employer in the prescribed manner. The employer has to be approached by the employee or the representative union. The manner in which the approach has to be made, is to be in accordance with what is prescribed. The expression prescribed means prescribed in the Rules (Section 3(27)). Rule 53 of the Rules makes provision in this regard and lays down as follows:
"Rule 53(1) Any employee or a representative union desiring a change in respect of (i) any order passed by the employer concerned under standing orders or (ii) any industrial matter arising out of the application or interpretation or standing orders or (iii) an industrial matter specified in Schedule III shall make an application in writing to the employer. An application for change in respect of an order passed by the employer under standing orders shall be made within a period of three months from the date of such order. Where such application is made by an employee, it may be made to the employer direct or through the Labour Officer for the local area or the representative of employees concerned. A copy of the application shall be forwarded to the Commissioner of Labour and in cases where such application is not made through the Labour Officer for the local area to that officer.
(2) Where an application has been made by an employee under Sub- rule (1), the employer and the employee may arrive at an agreement within fifteen days of the receipt of the application by the employer or within such further period as may be mutually fixed by the employer and the employee or the Labour Officer for the local area or the representative of employees as the case may be.
(3) Where an application has been made, by a representative union under Sub-rule (1), the employer and the representative union may arrive at an agreement within fifteen days of the receipt of the application by the employer or within such further period as may be mutually agreed upon by the parties."
8. Rule 53, inter alia, lays down that where the application is made by an employee, it may be made to the employer direct or through the Labour Officer for the local area of the representative of employees concerned. The expression representative of employees is defined by Section 3(32) of the Act to mean a representative of employees entitled to appear or act as such under Section 30. Section 30 of the Act in turn provides as follows:
"Subject to the provisions of Section 33-A, the following shall be entitled to appear or act in the order of preference specified as the representative of employees in any local area -
(i) a Representative Union for such industry;
(ii) a Qualified or Primary Union of which the majority of employees directly affected by the change concerned are members;
(iii) any qualified or Primary Union in respect of such industry authorised in the prescribed manner in that behalf by the employees concerned;
(iv) the Labour Officer, if authorised by the employees concerned;
(v) the persons elected by the employees in accordance with the provisions of Section 28 or where the proviso to Sub-section (1) thereof applies, the employees themselves;
(vi) the Labour Officer; Provided -
Firstly, that the persons entitled to appear or act under Clause (v) may authorise any Qualified or Primary Union in respect of such industry to appear or act instead of them;
Secondly, that where the Labour Officer is the representative of the employees, he shall not enter into any agreement under Section 44 or settlement under Section 58 unless the terms of such agreement or settlement, as the case may be, are accepted by them in the prescribed manner;
Thirdly, where in any proceeding the persons entitled to appear or act under Clause (v) are more than five, the prescribed number elected from amongst them in the prescribed manner shall be entitled to appear or act instead."
9. On behalf of the Petitioner, it was submitted that the approach notice furnished on behalf of the employee by his advocate would meet the requirements of Section 42(4). The learned counsel submitted that if from the application made to the employer by an advocate on behalf of the employee, it was possible to ascertain the nature of the change which was sought by the employee and, if contents of the communication sent by the employee gave sufficient notice to the employer as to what change the employee was seeking, the communication would clearly satisfy the requirements of Section 42(4). In the present case, it was submitted that the communication addressed on behalf of the Petitioner, clearly set out his grievances and the relief which he sought, and therefore, met the requirements of the Section 42(4). It was submitted that Section 42(4) does not prohibit an agent of the employee from approaching the employer on behalf of the employee and it is well settled that what could be done by the individual could be done by an agent on his behalf. In any event, it was submitted, that though the sending of the approach notice is a mandatory requirement, the method and manner in which it must be sent, is only directory. On behalf of the Respondents, on the other hand, it was submitted that Section 42(4) contemplates that the approach notice must be sent only by the employee or by a representative union. A representative union, it was submitted, belongs to the class of agents who may possibly represent the employee and out of this class, the legislature had narrowed down its choice to one agent alone, that being a representative union. The provisions of Rule 53(1) were sought to be relied upon to urge that the approach notice has to be sent in the prescribed manner and that prescribed manner was-
(i) by the employee to the employer direct or;
(ii) through Labour Officer for the local area or;
(iii) through the representative of the employees concerned.
Section 30 of the Act which defined representative of employees furnished an order of preference. It was also submitted that the approach notice in the present case, was not valid because it was not in accordance with Forms K & L annexed to the Rules.
10. In dealing with these submissions, it must be noted at the outset that the object of requiring an employee who desires a change in respect of an industrial matter, to furnish a notice to the employer is to enable the employee to place his grievances for the consideration of the employer. The underlying rationale and principle is that before moving the Labour. Court or other forum in adjudication, the employee must bring to the notice of the employer his grievances so that if possible, it can be attended to and resolved by negotiation. That is why, Sub-rule (2) of Rule 53 contemplates that an agreement may be arrived at after the approach notice is sent. This object must be borne in mind while interpreting the provisions of Section 42(4).
11. A Division Bench of this Court consisting of Mr. Justice M. N. CHANDURKAR (as he then was) and Mr. Justice MASODKAR considered the object of Section 42(4) of the Act in Jalil Khan Hajikhan v. Managing Director, Mangrulpir Joint Motor Transport Co. P. Ltd., Akola and Ors. 1974 LIC 206. The Division Bench of this Court relied upon the judgment of Supreme Court in C.J. Patel & Co. v. Industrial Court, Maharashtra reported in 1972 LIC 444. The Supreme Court in that decision, held that the scheme of the Act was that a dispute should be settled as far as possible and primarily through conciliation and agreement. Since the exercise of jurisdiction by the Labour Court Was pre-conditioned by the issuance of an approach notice, the provisions of Section 42(4) could not be side-stepped unless the preconditions would be complied with. The Division Bench of this Court, held in the light of the observations of the Supreme Court that the object of the proviso to Section 42(4) was to give an opportunity to the employer to settle the demand made by the employee by mutual agreement and this purpose would be served when the application was made by the employee to the employer. Consequently, this Court held that a mere failure of the employee to send copies of the application made to the employer to the Commissioner of Labour and to the Labour Officer, did not prevent the employee moving the Labour Court. In this context, the Division Bench of this Court held as follows:
"The manner prescribed by Rule 53 is that either the application is to be sent directly to the employer or through the Labour Officer of the area concerned. If it is possible to positively ascertain from the application made by the employee to the employer the nature of the change which is sought by the employee and if the contents of such a communication sent by the employee are in the view of the Court sufficient to give notice to the employer as to what change the employee is seeking, in our view, such an application or a communication will satisfy the requirement of the proviso to Sub-section (4) of the Section 42."
12. Section 42(4) of the Act requires that the approach notice should be made by the employee or a representative union. The employer has to be approached in the prescribed manner. The prescribed manner is provided by Rule 53. Sub-rule (1) of Rule 53 postulates that where such an application is made by an employee, it may be made to the employer directly or through the Labour Officer for the local area or the representative of employees concerned. The provisions of Sub-rule (1) of Rule 53 provide the mode in which the approach notice can be despatched, Sub-rule (1) of Rule 53 provides a convenient mode of despatch and gives the employee an option of addressing his notice directly to the employer or routing it through the Labour Officer or a representative of the employees. Rule 53 does not posit that the approach notice shall be addressed only by the employee personally and not by an advocate on his behalf. Similarly, the reliance placed on the definition of the expression representative of employees in Section 3(32) and Section 30 of the Act would not operate to exclude the possibility of the employee addressing the notice through an advocate. A notice addressed by the advocate is a notice on the same footing as if it were by the employee himself. Therefore, in my view, there is no substance in the contention that it is not open to an advocate acting for and on behalf of the employee to address a notice to the employer.
13. The provisions contained in Rule 42(4) are intended to subserve the object of fostering a settlement of the dispute in the interest of industrial harmony, Provisions such as Section 42(4) have to be construed so as to implement the salutary object which they are intended to foster. An interpretation which would advance the object of the Act must be adopted. A narrow and restrictive interpretation of Section 42(4) and for that matter, of Rule 53 must be discarded in favour of an interpretation which will promote the underlying object and purpose. Regard must be had in this area of law, as in others, to the substance. The heart or essence of Section 42(4) is the requirement of the employee apprising the employer of his grievances. An employer can do so himself, that is personally. He can engage a lawyer to do so on his behalf. Neither the language nor the underlying object of the statute warrant the interpretation which the Respondent seems to place. A notice by an advocate acting on behalf of an employee is not an invalid notice.
14. In Vasant Ladoo Naik v. Kohinoor Mills Co. Ltd. and Ors. (supra) a learned single Judge of this Court, Mr. Justice M. L. PENDSE (as the learned Judge then was) held that an approach notice given by an advocate on behalf of the employee, is valid and meets the requirements of Section 42(4). The learned Judge held as follows:
"The legislature desired that no application should be filed by an employee unless the employee or a representative union has in the prescribed manner approached the employer with a request for a change and no agreement has been arrived at in respect of such change.
What is contemplated by this proviso is that an employee should approach his employer before filing proceedings in the Labour Court and the intention is that an employee should, not be driven to litigation if it is possible to obtain requisite relief from the employer. The proviso requires that an employee should approach the employer with a request for change, but it does not prohibit an agent of an employee to do so on behalf of the employee. It is well settled that what the individual can do, his agent can do equally well. An individual can give a power of attorney enabling such attorney to act on his behalf and every act done by such power of attorney holder is done on his behalf and every act done by such power of attorney holder is done on his behalf of the principal. Any employee can himself approach the employer. But there is nothing wrong if an employee decides to engage an agent on his behalf to approach the employer. As the employee is entitled to engage an agent, he can very well choose an advocate as his agent and if the approach is done to the employer by the letter sent by the advocate, it is difficult to conceive how the requirements of the proviso are not complied with". The judgment of the learned single Judge reflects the correct position in law and I respectfully endorse that view".
15. The learned counsel appearing on behalf of the Respondent, however, submitted that in view of the judgment of the Supreme Court in M.R. Patil v. Member, Industrial Court , the judgment of the learned single Judge and the view taken by him, would no longer hold the field. In M.R. Patil 's case, the Supreme Court considered the provisions of Section 39 of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971. Section 39 of the Act provides as follows at p. 420-422 of LLJ:
"12. Section 39. No Labour Court shall take cognizance of any offence except on a complaint of facts constituting such offence made by the person affected thereby or a recognized union or on report in writing by the Investigating Officer."
In the case before the Supreme Court, a complaint under Section 39 of the Act was instituted by a Union and not by an individual claiming to be affected by the alleged non-compliance of an interim order of the Industrial Court. The union which filed the complaint, was not a recognized union within the meaning of the Act. The Supreme Court in paragraph 15 of its judgment held:
"15. Cognizance of such offence, besides other offences under the Act, cannot however, be taken by the Labour Court unless a complaint disclosing facts constituting the offence is filed by the person affected thereby or a recognized union. The only other mode left open to the Labour Court to take such cognizance is on the basis of a report in writing by the Investigating Officer. Once cognizance of the offence is taken on such complaint or report, as the case may be, the Labour Court would have to follow the procedure laid down by the Code of Criminal Procedure, 1973 (which now replaces the Code of Criminal Procedure, 1898)."
Since admittedly, the complaint had been filed by a union which was not a recognized union, the Supreme Court held that the Labour Court had no jurisdiction to take cognizance of the complaint. The prosecution was, therefore, quashed. The Supreme Court held thus:
"17. While on this point, it need also be mentioned that though the Union has filed a host of documents to support its various contentions and repel those of the appellants, it has not produced any document much less a certificate issued under Section 12 to indicate that it was granted recognition under the Act to entitle it to file a complaint of facts constituting the offence under Section 48(1) and, for that matter, to enable the Labour Court to take cognizance thereupon under Section 39. Since the provisions of this Section are mandatory and the Labour Court has no jurisdiction to take cognizance of the offences mentioned in the Act unless there is a complaint/report in terms thereof the cognizance in the instant case on the complaint of the union must be said to be without jurisdiction."
16. Section 39 of the MRTU & PULP Act, 1971 expressly provides that a complaint can be made only:
(i) by an aggrieved person;
(ii) by a recognized union; or
(iii) on a report by the investigating officer.
The Supreme Court was dealing with a case of a complaint filed by a union which was not recognized. Since Section 39 expressly provided that the complaint should be filed by a recognised union, a complaint at the behest of a non-recognized union was not maintainable. Section 42(4) expressly permits an approach notice by an employee or a representative union. A notice by a union, which is not representative union would be barred, on the logic of the judgment of the Supreme Court. A notice by an advocate, however, stands on a different footing because it is a notice by the employee himself on whose behalf the advocate acts.
17. On behalf of the Respondents, reliance was also placed on the judgment of the Supreme Court in Crescent Dyes & Chemicals Ltd. v. Ram Naresh Tripathi , in which it was held by the Supreme Court that the right to be represented through counsel or an agent, could be restricted, controlled or regulated by statute, rules, regulations or Standing Orders. An employee facing a departmental enquiry was held to have no right to be represented through counsel or an agent, unless the law specifically conferred such a right. The Supreme Court held that the requirement of the rules of natural justice in so far as the delinquents right of hearing was concerned, did not extend to a right to be represented through counsel or agent. The judgment of the Supreme Court in the Crescent Dyes case thus, holds that when the Standing Orders applicable to the establishment, restrict the right of representation in a departmental enquiry to a workman in the same department, those Standing Orders must be given effect to. The restriction of the right to representation would be valid and in such a case, an employee cannot claim the right to be represented by an advocate. The Supreme Court was considering the provisions of Sections 21 and 22 of the MRTU & PULP Act, 1971. Under the Standing Orders which were applicable, the: chargesheeted employee was entitled to be defended by a clerk or a workman working in the same establishment. The Supreme Court held in this context as follows 1993-I-LLJ-907 at 915, 916 :
"12. In the instant case, the delinquent's right to representation was regulated by the Standing Orders which permitted a clerk or a workman working with him in the same department to represent him and this right stood expanded on Sections 21 and 22(ii) permitting representation through an officer, staff member or a member of the union, albeit on being authorised by the State Government. The object and purpose of such provision is to ensure that the domestic enquiry is completed with despatch and is not prolonged endlessly. Secondly, when the person defending the delinquent is from the department or establishment in which the delinquent is working, he would be well conversant with the working of that department and the relevant rules and would, therefore, be able to render satisfactory service to the delinquent. Thirdly, not only would the entire proceedings be completed quickly but also inexpensively. It is therefore, not correct to contend that the Standing Order or Section 22(ii) of the Act conflicts with the principles of natural justice."
18. The submission that the notice was invalid on the ground that it was not given in the Form appended to the rules is equally without substance. The notice contained a clear statement of the grievances of the Petitioner and the manner in which he expected that it should be resolved. The employer responded to that notice in his reply as well. The forms contained in the rules cannot be elevated to a mandate. The notice must convey in substance what the statute requires to be conveyed and that was what it conveyed in this case. In L.I. C v. Escorts, a similar insistence on form was rejected by the Supreme Court. Mr. Justice CHINNAPPA REDDY, speaking for the Court held thus:
"Surely, the Form cannot control the Act, the Rules or the directions. As one learned Judge of the Madras High Court was fond of saying 'it is the dog that wags the tail and not the tail that wags the dog.' We may add what this Court had occasion to say in Vasudev Ramchandra Shelat v. Pranlal Jayanand Thakar :
"The subservience of substance of a transaction to some rigidly prescribed form required to be meticulously observed, savours of archaic and outmoded jurisprudence."
The requirement of giving a notice is mandatory. The form in which it is to be given is a matter of procedure, and hence directory.
19. In the present case, there is no restriction of the kind which was imposed by the Standing Orders in the case which was being considered by the Suprqme Court. The furnishing of a notice on behalf of the employee by his advocate is neither prohibited by the express language used in Section 42(4) of the Bombay Industrial Relations Act, 1946 nor is it contrary to the object or the spirit of the provision.
20. In the written submissions, which have been filed by the Petitioner's counsel reference has also been made to the fact that a Full Bench of the Industrial Court in Abdul Kadar v. Dawn Mills, (Appeal No. 91 of 1978) has taken the view that an approach notice submitted by an advocate on behalf of an employee, meets the requirements of Section 42(4). It was submitted that under Section 95-A of the Act, the law declared by the Full Bench, was binding on the Industrial Court and ought to have been followed by the Industrial Court in the present case. This need not detain me since in the view that I have taken, a notice issued by an advocate on behalf of an employee has been held to be a valid compliance with Section 42(4).
21. In these circumstances, the impugned order of the Industrial Court suffers from an error apparent from the face of the record and is clearly contrary to the law. The petition, therefore, succeeds and the impugned order is quashed and set aside. The Industrial Court allowed the appeal only upon its view that the approach notice was not valid under Section 42(4). The Court has hence not had occasion to consider the appeal on merits. The appeal, being appeal No. IC No. 2 of 1999 filed by the Respondent is restored to the file of the Industrial Court at Salara for hearing and disposal on merits in accordance with the law. Since the dispute in the present case dates back to 1992, the Industrial Court is requested to dispose of the appeal as expeditiously as possible, but in any event not later than 3 months from today.
22. The parties shall appear before, the Industrial Court for directions for fixing the date of hearing on August 14, 2000.
23. The petition is, thus, allowed, in the circumstances with no orders as to costs.
24. Ordinary copy may be made available to the parties on request. C. C. expedited.