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[Cites 17, Cited by 0]

Himachal Pradesh High Court

______________________________________________________________________ vs Central Government Industrial ... on 5 January, 2016

Author: Rajiv Sharma

Bench: Rajiv Sharma

                                                           1




     IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

                                                             CMPMO No. 08 of 2016




                                                                                             .

                                    Date of decision 04.01.2016
______________________________________________________________________
Cement Corporation of India Ltd.





                                                .....Petitioner.
                        Vs.

Central Government Industrial Tribunal­1




                                                               of
and another                                                 .....Respondents.
­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­
Coram:
The Hon'ble Mr. Justice Rajiv Sharma, Judge
                                rt
Whether approved for reporting?1 Yes.

For the petitioner:                              Mr. Bhuvnesh Sharma, Advocate.

For the respondents:                              Nemo.

Rajiv Sharma, J. (Oral):

Respondent No. 2/claimant (hereinafter referred to as "the claimant" for the sake of brevity) has raised an industrial dispute before the Ministry of Labour/Shram Mantralaya regarding the difference of wages for the period from January, 2010 onwards till termination on 18.08.2013. The Ministry of Labour made reference to the learned Central Government Industrial Tribunal­cum­Labour Court, Court No. 1 vide Annexure P­1. Claimant has also raised another industrial dispute regarding his termination of services from 18.08.2013. This dispute was also referred to the learned Central Government Industrial Tribunal­cum­Labour­II vide order, dated 1Whether the reporters of the local papers may be allowed to see the Judgment? Yes.

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20.05.2014. Both the references were taken up together by the learned Central Government Industrial Tribunal­cum­Labour Court No. 1. The .

claimant has filed claim petition bearing L.C.A. No. 4/2014 before the learned Labour Court. The workman was represented by a person who though was not an Advocate, but he was practicing in the Labour Court for the last more than 20 years. The petitioner has also sought of permission to be represented through a legal practitioner. The workman has objected to the representation of the petitioner through counsel vide application Annexure P­3. Reply was filed by the petitioner before rt the learned Labour Court in I.D. No. 4/2014. The learned Central Government Industrial Tribunal­1, Chandigarh has allowed the application of the claimant on 02.09.2015. Hence this petition.

2. Section 36 of The Industrial Disputes Act, 1947 reads as under:

"36. Representation of parties.­ (1) A workman who is a party to dispute shall be entitled to be represented in any proceeding under this 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, by any other workman ::: Downloaded on - 15/04/2017 19:39:56 :::HCHP 3 employed in, the industry in which the worker is employed and authorized 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 of employers to which the association referred to in clause (a) is affiliated;

(c) rt 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.

(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."

3. It is evident from the plain language of Section 36 that a workman who is a party to dispute is entitled to be represented in any proceeding by any member of the executive or other office bearer of a ::: Downloaded on - 15/04/2017 19:39:56 :::HCHP 4 registered trade union of which he is a member, by 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 and 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 of employed and authorized in such manner as may be prescribed.

Similarly, an employer who is a party to a dispute is entitled to be represented in any proceeding by an officer of an association of rt employers of which he is a member, by an officer of a federation of association of employers to which the association referred to in clause

(a) is affiliated and 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. However, as per sub­section (3) of Section 36 of The Industrial Disputes Act, 1947, 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. According to sub­ section(4) of Section 36, in any proceeding, i.e., 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.

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In the present case, the claimant has objected to the engagement of legal practitioner by the Management.

.

4. Their Lordships of the Hon'ble Supreme Court in Paradip Port Trust, Paradip Vs. Their Workmen, AIR 1977 Supreme Court 36 have held that a lawyer, simpliciter, cannot appear before an Industrial Tribunal without the consent of the opposite party and leave of the of Tribunal merely by virtue of a power of attorney executed by a party.

Their Lordships have further held that Section 30 of the Advocates Act rt cannot be invoked. Their Lordships have held as under:

"15. The parties, however, will have to conform to the conditions laid down in section 36(4) in the matter of representation by legal practitioners. Both the consent of the opposite party and the leave of the Tribunal will have to be secured to enable a party to seek representation before the Tribunal through a legal practitioner qua legal practitioner.
This is a clear significance of section 36(4) of the Act.
16. If, however, a legal practitioner is appointed as an officer of a company or corporation and is in their pay and under their control and is not a practising advocate the fact that he was earlier a legal practitioner or has a legal degree will not stand in the way of the company or the corporation being represented by him. Similarly if a legal practitioner is an officer of an association of­employers or of a federation of such associations, there is nothing in section 36(4) to prevent him from appearing before the Tribunal under the provisions of section 36(2) of the Act. Again, an office bearer of a trade union or a member of its executive, ::: Downloaded on - 15/04/2017 19:39:56 :::HCHP 6 even though he is a legal practitioner, will be entitled to represent the workmen before the Tribunal under section 36(1) in the former capacity. The legal practi­ tioner in the .
above two cases will appear in the capacity of an officer of the association in the case of an employer and in the capacity of an office bearer of the union in the case of workmen and not in the capacity of a legal practitioner. The fact that a person is a legal practitioner will not affect the of position if the qualifications specified in section 36(1) and section 36(2) are fulfilled by him.
17. rt It must be made clear that there is no scope for enquiry by the Tribunal into the motive for appointment of such legal practitioners as office bearers of the trade unions or as officers of the employers associations. When law provides for a requisite qualification for exercising a right fulfilment of the qualification in a given case will entitle the party to be represented before the Tribunal by such a person with that qualification. How and under what circumstances these qualifications have been obtained will not be relevant matters for consideration by the Tribunal in considering an application for representation under section 36(1) and section 36(2) of the Act. Once the qualifications under section 36(1) and section 36(2)are fulfilled prior to appearance before Tribunals, there is no need under the law to pursue the matter in order to find out whether the ap­ pointments are in circumvention of section 36(4) of the Act. Motive of the appointment cannot be made an issue before the Tribunal.
21. We have given anxious consideration to the above submis­ sion. It is true that "and" in a particular ::: Downloaded on - 15/04/2017 19:39:56 :::HCHP 7 context and in view of the object and purpose of a particular legislation may be read as "or" to give effect to the intent of the Iegislature. However, having regard to the history of the .
present legislation, recognition by law of the unequal strength of the parties in adjudication proceedings before a Tribunal, intention of the law being to discourage repre­ sentation by legal practitioners as such, and the need for expeditious disposal of cases, we are unable to hold that of "and" in section 36(4) can be read as "or".

22. Consent of the opposite part is not an idle alternative but a ruling factor in section 36(4). The question rt of hardship, pointed out by the Solicitor General, is a matter for the legislature to deal with and it is not for the courts to invoke the theory of injustice and other conse­ quences to choose a rather strained interpretation when the language of section 36 is clear and unambiguous.

23. Besides, it is also urged by the appellant that under section 30 of the Advocates Act, 1961, every advocate shall be entitled "as of right" to practise in all courts, and before only tribunal section 30(i) and (ii). This right conferred upon the advocates by a later law will be properly safeguarded by reading the word "and" as "or" in section 36(4), says counsel. We do not fail to see some difference in language in section 30(ii) from the provision in section 14(1) (b) of the Indian Bar Councils Act, 1926, relating to the right of advocates to appear before courts and tribu­ nals. For example, under section 14(1) (b) of the Bar Councils Act, an advocate shall ;be entitled as of right to practise save as otherwise provided by or under any other law in any courts (other than High Court) and ::: Downloaded on - 15/04/2017 19:39:56 :::HCHP 8 tribunal. There is, however, no reference to "any other law"

in sec­ tion 30(ii) of the Advocates Act. This need not detain us. We are informed that section 30 has not yet come into .
force. Even otherwise, we are not to be trammelled by section 30 of the Advocates Act for more than one reason. First, the Industrial Disputes Act is a special piece of legislation with the avowed aim of labour welfare and representation before adjudicatory authorities therein has of been specifical­ ly provided for with a clear object in view.This special Act will prevail over theAdvocates Act which is a general piece of legislation with regard to the rt subject matter of appear­ ance of lawyers before all courts, tribunals and other au­ thorities. The Industrial Disputes Act is concerned with.representation by legal practitioners under certain conditions only before the authorities mentioned under the Act. Generalia Specialibus Non Derogant. As Maxwell puts it:
"Having already given its attention to the particular subject and provided for it, the legis­ lature is reasonably presumed not to intend to alter that special provision by a subsequent general enactment unless that intention be main­ fested in explicit language ...... or there be something in the nature of the general one making it unlikely that an exception was intended as regards the special Act. In the absence of these conditions, the general statute is read as silently excluding from its operation the cases which have been provided for by the special one."(1)

24. Second, the matter is not to be viewed from the point of view of legal practitioner but from that of the employer and workmen who are the principal contestants in ::: Downloaded on - 15/04/2017 19:39:56 :::HCHP 9 an industrial dispute. It is only when a party engages a legal practi­ tioner as such that the latter is enabled to enter appear­ ance before courts or tribunals. Here, under the Act, .

the restriction is upon a party as such and the occasion to consider the right of the legal practitioner may not arise.

25. In the appeal before us we find that the Tribunal, after considering the materials produced before it, held that Shri T. Misra could not claim to be an officer of the of corpora­ tion simply because he was a legal consultant of the Trust. The Tribunal came to this conclusion after examining rt the terms and conditions governing the relationship of Shri Misra with the Trust. He was neither in pay of the company nor under its control and enjoyed freedom as any other legal practitioner to accept cases from other parties. It is significant to note that one of the conditions of Shri Misra's retainer is that "he will not appear in any suit or appeal against the Port until he has ascertained from the Chairman that his services on behalf of the Port will not be required." That is to say, although on a retainer and with fixed fees for appearance in eases there is no absolute ban to appear even (1) Maxwell on lnterpretation of Statutes 11th Ed. P. 169 against the Port. This condition is not at all consistent with the position of an officer of the Trust. We agree with the opinion of the Tribunal that Shri Misra cannot be held to be an officer of the Trust.

26. A lawyer, simpliciter, cannot appear before an Industri­ al Tribunal without the consent of the opposite party and leave of the Tribunal merely by virtue of a power of attor­ ney executed by a party. A lawyer can appear ::: Downloaded on - 15/04/2017 19:39:56 :::HCHP 10 before the Tribunal in the capacity of an office bearer of a registered trade union or an officer of associations of employers and no consent of the other side and leave of the .

Tribunal will, then, be necessary."

5. In Mahendra Kumar Khatri Vs. Judge, Labour Court Jodhpur & Anr., 1993 (3) Labour Law Journal 491, the Rajasthan High of Court has held that the Labour Court cannot allow appearance of a legal practitioner, if the opposite party objects. The Learned Single Judge has held as under:

"4.
rt After hearing learned counsel for the parties, I think the order of the Labour Court deserves to be set aside. It has been clearly laid down in Section 36(4) that if the opposite party objects then the Court cannot allow the appearance of legal practitioner. The exception is only Sub­ section (2) of Section 36, but that is not the case of the respondent before me. Their Lordships of the Supreme Court have clearly laid down and interpreted the scope of Section 36 and held that a lawyer simpliciter cannot appear before the Labour Court without consent of the opposite party and leave of the Court or Tribunal as the case may be. A lawyer can appear, who is office bearer of the registered trade Union or member of association of employers. But this is not the case of the respondent. Thus, in the view of the matter Shri D.K. Parihar cannot be permitted to appear as he is not a member of any association of the employers and nor he is office bearer of registered trade Union."
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6. In Kamakshi R. Iyer Vs. Hindustan Dorr­ Oliver Ltd. & Ors., 1996 (1) Labour Law Journal 1131, the Division Bench of Bombay .

High Court has held that both the consent of the opposite party and leave of the Tribunal will have to be secured before a party can seek representation through a legal practitioner. Their Lordships have held as under:

of "6. After having heard the learned counsel for both sides and after having gone through the order passed by the learned Judge of the Labour Court as rt well as the learned Single Judge of this Court and after having considered the judgments cited before us, we are of the clear view that the order passed byh the learned single judge and that by the learned Judge of the Labour Court are contrary to the express provisions of Section 36(4) of the Industrial Disputes Act and cannot be sustained."
8. In view of the aforesaid decision of the Apex Court the matter admits of no doubt and inasmuch as admittedly the workman has objected to the company being allowed to be represented by legal practitioner, it was not permissible for the Labour Court to grant the prayer of the management."

7. In Cement Corporation of India Vs. Presiding Officer, Labour Court, Shimla & others, 1999 (1) Labour Law Journal 1276, the Cement Corporation of India has challenged the order dated October 19, 1995 passed by the Presiding Officer, Labour ::: Downloaded on - 15/04/2017 19:39:56 :::HCHP 12 Court/Industrial Tribunal, Himachal Pradesh, Shimla, whereby despite the objection of the petitioner­Corporation, the application of the .

workmen for engagement of a legal practitioner was allowed. The Division Bench of this Court allowed the writ petition and quashed the impugned order of the learned Labour Court­cum­Industrial Tribunal after relying upon the judgment of Hon'ble Supreme Court in Paradip of Port Trust's case (supra).

8. In J.B. Transport Company and others Vs. Shankar @ rt Mavaram Nathuji Patel, 2000 (1) Labour Law Journal 442, the learned Single Judge of Gujarat High Court has held that if the workman raises an objection for appearance of a practising Advocate on behalf of the employer, then in view of the provision of Section 36, the practising Advocate could not be permitted to appear on behalf of the employer.

The specific provision of Section 36 of Industrial Disputes Act could not be allowed to be defeated by allowing a practising Advocate to become nominal office­bearer of association and come before the Industrial Tribunal or Labour Court as an officer of that association and to conduct the matter on behalf of the employer. The learned Single Judge has held as under:

"4. If the provisions of Section 36 are considered then it would be quite clear that the same Act prevents as a rule the appearance of the Advocate in a proceeding before Labour Court/Industrial Tribunal without the consent of the workman and the practising Advocate is ::: Downloaded on - 15/04/2017 19:39:56 :::HCHP 13 permitted to appear in proceeding under the Industrial Disputes Act only with the consent of the workman. If the workman raises an objection for appearance of a .
practising Advocate on behalf of the employer then in view of the provision of Section 36, the practising Advocate could not be permitted to appear on behalf of the employer. This specific provision of Section 36 of Industrial Disputes Act could not be allowed to be defeated by allowing a practising Advocate to become of nominal office-bearer of association and come before the Industrial Tribunal or Labour Court as an officer of that association and to conduct the matter on behalf of the rt employer. If such practice is permitted then it is definitely going to defeat the provision of Act.

9. In Ajithkumar S.D. Vs. State of Kerala and another, 2003(1) Labour Law Journal, the learned Single Judge, as His Lordship was of Kerala High Court, has held that the legislative intention in enacting Section 36(4) of the Industrial Disputes Act, 1947 was that both the conditions mentioned therein, namely, consent of other party, and leave of the Tribunal, had to be satisfied if permission to a party to engage legal practitioner were to be granted. The learned Single Judge has held as under:

"5. I am afraid, Section 36 does not in any way deny equal justice. Under sub­section (3) of Section 36 of the Act, no party to a dispute shall be entitled to be represented by a legal practitioner in any conciliation proceedings under the Industrial Disputes Act or in any proceedings before a Court. However, under sub­section (4), ::: Downloaded on - 15/04/2017 19:39:56 :::HCHP 14 it is provided that in any proceeding before a Labour Court/Tribunal a party to dispute may be represented byh 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. The legislative intention is very clear in case a party is to engage a legal practitioner, it can be done only if both conditions are satisfied. (1) The consent of other party. (2) of Leave of the Court/Tribunal. It is not enough that any one of the conditions is satisfied. Both conditions have to be satisfied. In rare situations, the statute provides for such rt absolute conditions. Section 356(45) of the Act is one such condition. It is the prerogative of one of the parties to the dispute to withhold the consent injuncting the other party from engaging a counsel. It is on principle of equal justice. It is not as if one of the parties is in a disadvantageous situation like the one referred to in the decision cited above before the Bombay High Court (Japanese Company) being left helpless. Sub­sections (1) and (2) of Section 36 provide for such situation where a party can be represented by office bearers of the trade union/management and association wherein the party is a member or is affiliated and in case it is not any such member, the party can be represented by any other workman/employer engaged in the industry in which the workman or employer is engaged and duly authorized. Therefore, once a party withholds consent in the matter of the other party engaging a counsel, the Labour Court/Tribunal cannot go beyond that and the Court/Tribunal cannot overrule the objection of one side and appoint a legal practitioner. In other words, the ::: Downloaded on - 15/04/2017 19:39:56 :::HCHP 15 Court/Tribunal gets jurisdiction to engage a counsel in a proceeding before it only if one party consents. The inherent jurisdiction of the Court/Tribunal cannot be extended to the .
extent of overruling this objection and appointing a legal practitioner. This is of course, subject to the inherent power of any Court or Tribunal to appoint a legal practitioner as amicus curiae for the purpose of assisting the Court/Tribunal."

of

10. Consequently, in view of the definitive law laid down by rt their Lordships of the Hon'ble Supreme Court and various High Courts, as discussed hereinabove, there is neither any perversity nor any illegality in order, dated 02.09.2015, passed by the learned Central Government Industrial Tribunal­1, Chandigarh. Accordingly, the petition is dismissed, so also the pending application(s), if any. The parties are directed to appear before the learned Tribunal on 15.02.2016. No costs.

(Rajiv Sharma) Judge January 04, 2016 (bhupender) ::: Downloaded on - 15/04/2017 19:39:56 :::HCHP