Andhra HC (Pre-Telangana)
General Manager, National Bank For ... vs Presiding Officer, Industrial ... on 10 August, 1998
Equivalent citations: 1998(5)ALD578, 1998(6)ALT68, (1999)ILLJ1346AP
ORDER
1. This writ petition has been filed seeking a direction more particularly one in the nature writ of mandamus declaring the order passed by the first respondent namely the Presiding Officer, Industrial Tribunal-I Hyderabad, in ID No.36 of 1997 dated 6-3-1998, refusing to permit Ms. Sudha, an Advocate, who is said to be the Vice-President of the Organisation of the Management Union, to represent on behalf of the petitioner under Section 36(2) of the Industrial Disputes Act, 1947.
2. The facts giving rise for filing of this writ petition are as under:
The Government of India, Ministry of Labour, has referred the following dispute under Sections 10(l)(d) and 2(A) of the Industrial Disputes Act (hereinafter called as 'the Act') to the first respondent-Tribunal for adjudication.
"Whether the action of the Management NABARD, Hyderabad in terminating the services of P.S. Balasubramanayam with effect from 9-12-1984 without following the provisions of Section 25-F under ID Act is justified? If not, what relief the workman is entitled to".
3. The said reference has been taken on file as ID No.36 of 1997. After receipt of the notice, the Management filed IA No. 102 of 1997 for permission to be represented by an Advocate and that application was opposed by the Workman and the same was dismissed. Thereafter, Ms. Sudha a practising Advocate filed memo of appearance on behalf of the Management with a certificate of registration of Trade Union by name 'Organisation of Management Union, Hyderabad' which was said to have been registered under Trade Union Act on 23-4-1997 and she also filed an authorisation given by the Deputy General Manager (Administration) of NABARD authorising Ms. Sudha to represent the management in the dispute as Vice-President of that Union. The workman filed a counter resisting the memo of appearance filed by Ms. Sudha stating that the Vice-Presidentis not an officer contemplated under Section 36 of the Act and that Union was formed after the dispute arose. The first respondent-Tribunal after hearing both sides and considering the decision of the Full Bench of this Court in A.P. Power Diploma Engineers Association, Thermal Power Station, Palancha, Khammam v. APSEB, Hyderabad, 1995 (3) ALD 501, held that Ms. Sudha is only an office bearer and not an officer of the Organisation of the Management Union and as such she cannot come within the purview of Section 36 of the Act and accordingly refused permission to Ms. Sudha to appear oh behalf of the Management. Challenging the said order, the Management has come up with this writ petition.
4. Heard the learned Counsel Ms. Sudha, representing the writ petitioner-Management and Sri P.S. Balasubramaniyam the workman-in-person.
5. Ms. Sudha, the learned Counsel for the writ petitioner vehemently contends that she is not an office-bearer of the Management, of the Organisation of Management Union as held by the first respondent-Tribunal, but, she is an officer of the said Union and as such she is entitled to represent the Management under Section 36(2) of the Act. The workman in person submitted his argument in support of the impugned order and he also relied on Full Bench decision of this Court cited supra.
6. The point that arises for consideration is whether Ms. Sudha Advocate being appointed as Vice-President of Organisation of Management Union, Hyderabad, which has been registered by the Deputy Registrar, Trade Unions on 23-4-1997 is entitled to represent the Management in the dispute before the first Respondent-Tribunal under Section 36(2) of the Act.
7. Section 36 of the Act provides for representation of parties before the Tribunals and Labour Courts. Sub-sections (1) and (2) of Section 36 of the Act give corresponding rights of representation to Workman and Employer. The three clauses of sub-section (1) are made to correspond to parallel clauses of sub-section (2) in an effort, perhaps to bring about a sort of parity between the rights of labour and Management. The provisions of these two sub-sections confer on respective parties absolute1 rights of representation of persons respectively specified therein. Sub-seclion (1) deals with the right of workman who is a party to the dispute to be represented 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 officer bearers of any Trade Union 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. Under sub-section (2) an employer who is a party to the dispute is represented by (a) an officer of association of employers of which he is a member; (b) an officer of 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 any other employer engaged in the industry in which the employer is engaged and authorised in such manner as may be prescribed. Subsection (3) imposes a complete ban on the parties being represented by legal practitioner in any conciliation proceedings under the Act or in the proceedings before a Court. The parties, however, will have to confirm to the conditions laid down in sub-section (4) in the matter of representation by legal practitioner. Both the consent of the opposite party and the leave of the Tribunal will have to be secured to enable the party to seek representation before the Tribunal through a legal practitioner.
8. In the instant case, the Management is seeking representation on their behalf by Ms. Svdha, a legal practitioner in her capacity as Vice-Presidcnt of Organisation of Management Union, Hyderabad, which is said to have been registered under the Trade Union Act. The workman in person has not challenged the registration by the employers as a Union under Trade Unions Act. Therefore, that question is left open. In Paradip Port Trust v. their Workmen, , while considering clause 4 of sub-section (2) of Section 36 of the Act relating to the representation by legal practitioner in an industrial dispute Supreme Court observed in para 16 thus:
"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 of employers 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, 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 practitioner 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 legal practitioner. The fact that a person is a legal practitioner will not affect the position if the qualifications specified in Section 36(1) and Section 36(2) are fulfilled by him."
It is clear from this that a legal practitioner in his capacity of the officer of the association of the employer can represent the Management in an industrial dispute and it follows in the absence of specific provision in this Section a legal praclitioner as an office-bearer of the association of employer is not entitled to represent the Management.
9. The learned Counsel for the writ petitioner vehemently contends that Ms. Siidha though a legal practitioner has been appointed as Vice-President and as such she is an officer of the association of the employers by name the Organisation of Management-Union and as such she is entitled to represent the Management under Section 36(2) of the Act. Therefore, ihe next aspect to be considered is whether Ms. G. Sudha a legal practitioner who has been appointed as Vice-President is an officer of the association of the employers or only an office bearer of the Union of the employers by name Organisation of Management Union. Ms. G. Siidha arguing on behalf of the writ petitioner asserts that as Vice-President she is an officer of the Union and not an office bearer. It is universally accepted that the documents are supposed to be far more reliable than the 'spoken words'. Along with the writ petition the petitioner filed the copies of the memo filed by Ms. Sudha on behalf of the Management into Court. It is at page 9 of the material papers. The true copy of the authorisation given by the Deputy General Manager (Administration) of NABARD authorising Ms. Sudha to represent the Management in the dispute and also xerox copy of Form-A i.e., application for registration of Trade Union submitted on behalf of the Organisation of Management Union to the Registrar of Trade Unions, A.P., Hyderabad, along with Schedules 1, 2 and 3 are at pages 10 to 14 in the material papers. It is significant to note that it is no where mentioned either in the memo filed by Ms. Sudha or hi the authorisation letter issued by the Deputy General Manager that Ms. Sudha being the Vice-President is an officer of that Union. On the other hand, in the copy of the list of office bearers in Schedule 1 which is at para 12 in the material papers Ms. Sudha is shown as Vice-President. Thus, as seen from the Schedule 1, Ms. Siidha as Vice-President is only an office bearer of the Organisation of Management Union arid not its officer. Further as seen from pages 22 and 23 of material papers filed in this petition, the resolution was passed in the Meeting of General Body held on 24-11-1997 electing Ms. G. Sudha as an Union Office bearer and a member of the Managing Committee. These reveal that Ms. Sudha is only an office bearer or member of the Managing Committee and not an officer of the Organisation of Management Union. Therefore, the finding of the first respondent-Tribunal that Ms. Sudha is only an officer bearer has to be upheld.
10. It is not contended by Ms. Sudha that as office bearer she is also an officer of the Organisation of Managements Union. In the context of a legal practitioner being appointed as an officer of an association of the employer, the observations of the Full Bench of this Court in Andhra Pradesh Power Diploma Engineers Association, Thermal Power Station. Palancha, Khammam Dist. v. APSEB Hyderabad and another, 1995 (3) ALD 501, in para 17 are relevant. It reads as under:
"17. From the observations made it is clear that an officer was understood, so far as a legal practitioner is concerned, as one who is not a practising advocate though he might have been one such earlier to his becoming an officer, and that in his present capacity as an officer of the association he is in its pay and under its control. It is relevant here to quote a passage from Buckley's Companies Act, twelfth edition, page 681 which was extracted in an earlier decision of this Court in Suryanarayana v. Vijaya Commercial Bank, AIR 1958 AP 756, regarding concept of the word "officer":
"The word 'officer' is not to be confined to a person who has in some way or other control over the assets of the company. A person who by the terms of his appointment is made and called an officer, who is appointed by the company, paid by the company and whose function is to act on behalf of the company could check th directors, and whose appointment is made not on a special occasion for special limited purpose, but under the regulations governing the constitution of the Company, is an officer".
It would hence be seen that the word conveys the meaning in its essentiality as being subjected to some type of control and check and to be in receipt of some type of remuneration from the person or body whose officer he is and that the engagement is not for a specific occasion only. It was pointed in the decision in Prabhudas Mulji Doshi v. Governor General of India in Council, (1951) 1 The Indian Law Reports, Calcutta Series 443 that the word "Officer" imports the idea of an "office" and that to be an "officer" therefore, the person claiming must show that there is an office which he holds. A Full Bench of this Court in this decision in B. Veeraswamy v. State of A.P., , also express similar view in saying "the individual who is invested with the authority and is required to perform the duties incidental to an office is an officer. For determining whether officers are subordinate or not, the test is not whether a review of such of their determinations as are quasi-judicial may be had, but whether in the performance of their various duties they are subject to the direction and control of a superior officer, or are independent officer subject to such directions as the statute gives." In Nandlal More v. R. Mirchandani, , the Court was of the view that "Officer" and "office" are co-related and basically an "officer, whether he occupies a specific office or not, must be in the relation of an employee or servant of a company, firm or individual who is his employer or master and servant". In that case the question to be considered was whether a power of attorney holder can be called an officer or the executor of the power of attorney. It was pointed out that a power of attorney creates a relationship of principal and agent and not of master and servant".
11. In the light of the above observations of Full Bench it cannot be said that Ms. Sudha is an officer of Organisation of Managements Union as contended by her. She is neither under the pay-roll of the said Union, nor there is any relationship of master and servant between the said Union and Ms. Sudha. She is an independent legal practitioner. Therefore, the contention of the writ petitioner that Ms. Sudha legal practitioner is an officer of the said Union in her capacity as elected Vice-President, cannot be accepted. Hence, there are no merits in this writ petition and the same is liable to be dismissed.
12. In the result, the writ petition is dismissed with costs of the second respondent-workman and his costs are quantified at Rs.500/- (Rupees five hundred only).