Calcutta High Court (Appellete Side)
Nadia Dist. Central Co-Operative Bank ... vs The State Of West Bengal & Ors on 16 June, 2008
Author: Aniruddha Bose
Bench: Aniruddha Bose
Form No. J(2)
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
APPELLATE SIDE
Present:
The Hon'ble Justice Aniruddha Bose
W.P. No. 15724(W) of 2006
NADIA DIST. CENTRAL CO-OPERATIVE BANK LTD.
Vs.
THE STATE OF WEST BENGAL & ORS.
Advocates for the Petitioner: Mr. Tarun Roy
Mr. S. Paul
Advocates for the Respondent: Mr. D. Saha Roy
Judgment On: 16.06.2008 ANIRUDDHA BOSE, J:-
1. The petitioner in this writ application is a District Level Apex Co-operative Bank, registered under the West Bengal Co-operative Societies Act, 1935. The controversy, out of which the present proceeding arises relates to a dispute of the petitioner with its union, being the respondent no. 3. At the instance of the respondent no. 3, the State Government had referred the dispute to the learned 5th Industrial Tribunal, West Bengal (the respondent no. 2). In this present writ petition, however, the main dispute is over the right of the petitioner to be represented by a legal practitioner before the learned Tribunal. The union raised an objection before the Tribunal against such representation by filing an application under the provisions of Section 36(4) of the Industrial Disputes Act, 1947 ("the Act", in short). The application of the Union in this respect has been allowed on contest by an order passed on 3rd May 2006, which is under challenge in the present writ petition.
2. Before I examine the legality of the impugned order, I propose to narrate the sequence of events which resulted in passing of the impugned order. After the dispute was referred to the learned Tribunal, on 18th October 2005, the union had filed in the Tribunal its written objection against the representation the petitioner by a legal practitioner. This objection, however, was in the form of a letter. As pleaded in the writ petition, the respondent union had filed Written Statement in relation to the order of reference on 2nd December 2005. This was filed through a learned Advocate. On 19th December 2005, the petitioner claims to have filed list of documents. Copies of both these documents were handed over to the union, and the case of the petitioner is that the copies of both these documents bore the signature of their learned Advocate and were received by the union without raising any objection. The petitioner claims to have had entered into appearance before the learned Tribunal through their learned Advocate on 2nd December 2005 itself, who filed his authorisation.
3. On 30th December 2005 the Union filed a substantive application under Section 36(4) of the Act, raising objection on representation of the bank through a legal practitioner. This was eventually allowed by the learned Tribunal. The learned Tribunal, in the impugned order held that the letter dated 18th October 2005 filed by the union was not in proper form and the same was rejected summarily. It has also been recorded in the impugned order that the representative of the Union at the initial stage itself had indicated that he was not pressing the objection in the form of a letter.
After rejection of this letter, the learned Tribunal proceeded to consider the application of the union on merit.
4. The aforesaid application under Section 36(4) of the Act was contested before the learned Tribunal mainly on two points. Firstly, it was contended by the petitioner that since the letter of 18th October 2005 was rejected on the ground of not being in appropriate form, it was not open to the learned Tribunal to consider the points raised in the said letter all over again in the subsequent application. Such reconsideration, it was argued, is barred under the principle of res- judicata. The second point which was considered by the learned Tribunal was on the aspect of implied consent of the union to the representation of the bank by a learned Advocate. The fact that the bank had filed the written statement and the list of documents through its learned Advocate and the secretary of the union had also accepted the copies of the same without raising any objection is not really in dispute. The argument of the learned Advocate for the bank is that such acceptance constitutes implied consent given by the union, and such consent cannot be revoked.
5. The learned Tribunal came to a finding that acceptance of the copy of the written statement and the list of documents by the representative of the union could not lead to an interference that implied consent by the union was given for representation of the bank by a legal practitioner. The application of the union was allowed by the learned Tribunal by the order passed on 3rd May 2006, being Order no. 18 in case no. VIII-26/05.
6. Before me, this order has been challenged broadly on the same two grounds of objection which were taken before the learned Tribunal. On behalf of the union, however, it has been urged that the bank has already engaged its Deputy General Manager to conduct the proceeding on its behalf and take all necessary steps in connection with the proceeding before the Tribunal and hence the order of the Tribunal in substance has been complied with.
7. On behalf of the petitioner, it has been argued that the expression "consent" in Section 36(4) of the 1947 Act does not mean or contemplate written consent only. The argument which was advanced before the Tribunal has also been repeated before me that since the union had accepted the written statement and the list of documents filed through the learned Advocate of the bank without raising any objection, it should be deemed that consent was given by the union for representation of the bank by its learned Advocate before the learned Tribunal. The authorities cited in support of this submission are a decision of the Hon'ble High Court of Bombay in the case of Engineering Mazdoor Sabha, Bombay Vs. Meher (M. R.) (Industrial Tribunal, Bombay), and Others reported in 1966(1) LLJ 580 and a decision of the Hon'ble High Court of Kerala in the case of Calicut Co-operative Milk Supply Union Vs. Calicut Co-operative Milk Supply Workers Union reported in 1986 (II) LLJ 422. Strong reliance was also placed on a decision of this Court in the case of Reckitt & Colman of India Ltd. & Ors. Vs. Jitendra Nath Maitra & Ors. reported in 1957(1) LLJ 63. All these authorities are for the proposition that the consent contemplated in Section 36(4) 1947 Act could be implied consent and if such consent is given once, there is no provision in the Act for revocation of the same.
8. On behalf of the respondents, reliance was placed on the decision of the Hon'ble Supreme Court in the case of Paradip Port Trust Vs. Workmen reported in 1977 (2) SCC 339, Kamakshi R. Iyer (Mrs) Vs. Hindustan Dorr - Oliver Ltd. & Ors. reported in 1996 (1) LLJ page 1131, Shree Baidyanath Ayurved Bhawan Ltd. Vs. State of Bihar & Ors. reported in 2005(1) LLJ 79 and a judgment of the Hon'ble High Court of Kerala in the case of Ajithkumar S.D. Vs. State of Kerala & Anr. reported in 2003 LLJ page 239. A judgment of the Hon'ble High Court of Bombay in the case of P.G.H. Karachiwala Vs. S. S. Pawar reported in 1994(68) F.L.R. 528 was also cited by the learned counsel for the respondents, on the strength of which it was contended that taking a vokalatnama on record could not be construed to be implied leave of the Tribunal granted to a party to be represented by a legal practitioner.
9. Before dealing with the authorities cited by the learned advocates of the respective parties, and the extent to which the ratio of these decisions apply in the present case, I consider it necessary to reproduce the provisions of Section 36(4) of the Act, which reads as follows:
"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].]"
10. Now I shall refer to the factual context of the cases cited by the respective parties. In the case of Reckitt & Colman & India Ltd. (supra), the Tribunal was informed that the employer would be represented by a law firm and the Tribunal gave direction that the other side should be informed of the same. Subsequent thereto, pleadings were filed and adjournment was prayed for by both the parties from time to time. Thereafter, the matter was heard on one occasion in presence of the learned Advocate for the employer. Subsequent thereto also, the matter appeared before the Tribunal from time to time, when the parties were exploring the possibility of compromise, and on all these occasions, there was no objection against the representation of the employer by its learned Advocate. After the talks of settlement failed, an objection was taken by the union against representation of the employer by a legal practitioner. It was in this factual background, an Hon'ble Single Judge of this Court held that it must be inferred that the union had consented to the appearance of a lawyer on behalf of the employer and the Tribunal granted it because in fact it allowed the lawyer to appear before it. It was observed in this decision that the conduct of the union in objecting at a later stage amounted to revocation of its consent, and there was no provision in the Act by which consent or leave once given could be revoked. In the case of Engineering Mazdoor Sabha (supra) also a learned Advocate had appeared before the Tribunal and the appearance of the learned Advocate had been recorded in the roznama and no objection to such appearance was taken at the initial stage. On this count, the Honble High Court held that even though the union had not given express consent to the appearance of a lawyer, the union must have been held to have given its consent at least by implication by not objecting to his appearance. The decision of the Hon'ble High Court of Kerala in the case of Calicut Co-operative Milk Supply Union (supra) is also on the same point of law in similar factual situation.
11. In the present writ petition, however, I do not find any material from which implied consent on the part of the union to the appearance of the learned Advocate on behalf of the writ petitioner before the learned Tribunal could be inferred. Nor can it be implied that leave was given by the Tribunal by implication permitting representation of the bank through a legal practitioner.
12. The object of the provisions of Section 36(4) of the Act has been examined by the Hon'ble Supreme Court in the case of Paradip Port Trust (supra), and the relevant passage from this decision is reproduced below:-
"22. Consent of the opposite party is not an idle alternative but a ruling factor in Section 36(4). The question 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 consequences to choose a rather strained interpretation when the language of Section 36 is clear and unambiguous."
13. The decision of the Hon'ble High Court of Kerala in the case of Ajith kumar S.D. (supra) and the decision of the Hon'ble High Court of Bombay in the case of Kamakshi R. Iyer (Mrs) reiterates this same principle. In the case of Shree Baidyanath Ayurved Bhawan Ltd. (supra), a vokalatnama and a petition for time was filed by the learned Advocate appearing for the employer, and the vokalatnama was accepted by the Labour Court and time was granted. Subsequently, when objection was taken by the workman in terms of Section 36(4) of the Act, the defence of implied consent was invoked by the employer. However, a Single Judge of the Hon'ble High Court of Patna rejected the argument that acceptance of vokalatnama and the time petition after service of notice could constitute implied consent. The order of the Tribunal sustaining the objection under Section 36(4) of the Act raised by the workmen in that case thus was confirmed. Similarly, in the case of P.G.H. Karachiwala (supra), it was observed:-
"Taking a Vokalatnama filed on behalf of a party, on records cannot, at no stretch of imagination, be construed as implied Leave of the Court."
14. Sub-section (4) of Section 36 of the Act requires satisfaction of two conditions before a party to a proceeding can be represented by a legal practitioner before a Labour Court or a Tribunal. Consent of the opposite party is required to be obtained, as well as leave of the adjudicating forum. Authorities are uniform that such consent could be implied, but to sustain a case of implied consent or implied leave, there must be consent by implication for representation of a party by a legal practitioner before the Tribunal. In the case of Reckitt & Colman of India Ltd. (supra) and Engineering Mazdoor Sabha (supra), there were actual representations of parties through legal practitioner before the presiding officer of the Tribunal. Thus, these two authorities do not assist the case of the petitioner. In the case of Calicut Co-operative Milk Supply Union (supra) at the initial stage, the petitioner and one of the respondents (first respondent in that case) had engaged their learned Advocates, who had filed vokalatnama on their behalf. Thereafter, the latter sought leave of the Court to conduct the case without the assistance of a lawyer and prayer was made for cancellation of the vokalatnama filed on its behalf. Simultaneous prayer was made objecting to appearance of the writ petitioner through its Advocate. This objection was sustained by the adjudicatory forum but the order of the adjudicatory forum was set aside by the High Court, as it was opined by the Hon'ble Single Judge hearing the case that the conduct of the said respondent amounted to revocation of the consent already given. None of these authorities assist the petitioner's case, in its own factual context.
15. In the present case, none of the parties have contended that there was actual appearance of the learned Advocate on behalf of the employer before the Tribunal without objection from the union. On the other hand, on the first date posted before the learned Tribunal, it appears that the letter of 18th October 2005 had been filed. Even if the letter was rejected for not being in proper form, I am of the opinion that the filing of this letter itself reflects the intention of the union to object to the petitioners' representation by a learned Advocate. Thus, the question of implied consent cannot arise. Mere receipt of the written statement by an official of the union or filing of the same in the Tribunal cannot lead to an interference that there was consent by implication to such representation. Mere filing of authority or documents before the Tribunal by a legal practitioner on behalf of a party to an industrial dispute cannot automatically lead to an inference that there has been grant of implied leave to such representation. The ratio of the decisions of the Hon'ble High Court of Patna in the case of Shree Baidyanath Ayurved Bhawan Ltd. (supra) and the Hon'ble High Court of Bombay in the case of P.G.H. Karachiwala (supra) are applicable on this point, and I respectfully agree with the views taken by their Lordships on these two cases. To make out a case for such inference, there must be actual appearance of a learned Advocate for a party before the presiding officer of the Labour Court or Tribunal and participation of the learned Advocate in course of a proceeding before such fora without any objection from the other party. In the present case, however, there has been no such appearance.
16. The other point argued on behalf of the petitioner was that the issue of raising objection under Section 36(4) of the Act had become res-judicata as the learned Tribunal in the order impugned had rejected such objection raised in the letter dated 18th October 2005 summarily. I am, however, unable to accept this argument also. The letter was filed with the learned Tribunal but it does not appear that any hearing had taken place subsequent to filing of that letter. Thereafter a substantive petition was filed on 30th December 2005 by the union taking the same objection as contained in the letter. From the impugned order, it appears that both the letter and the written objection were considered by the learned Tribunal on the same date and while rejecting the letter, the Tribunal upheld the objection contained in the substantive application. Moreover, at the initial stage of the hearing of the union's application, it has been recorded in the order that the representative of the union was not pressing the objection contained in the letter. Thus, under these circumstances the principle of res- judicata cannot apply in the instant case. It cannot be said that the issue of representation of the petitioner by a legal practitioner had been heard and finally decided in any case prior to the adjudication on merit the written objection of the respondent union.
17. Under these circumstances, the impugned order of the learned Tribunal is sustained. The writ petition stands dismissed. All interim orders passed in this matter stand vacated.
18. There shall, however, be no order as to costs.
19. Urgent Photostat certified copy of this order, if applied for, may be made available to the parties on compliance of the usual formalities.
(ANIRUDDHA BOSE, J.)