Madhya Pradesh High Court
M.P. Pashchim Kshetra Vidyut Vitran Co. ... vs Bijali Karmchari Sangh Pashchim ... on 2 November, 2016
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W P No. 2567 / 2016, 3503 / 2016 and 4973 / 2016
02/11/2016
Parties through their counsel.
At the outset, learned counsel for the respondent -
workmen has drawn attention of this Court towards the judgment delivered by this Court in the case of Managing Director, Intas Pharmaceutical Ltd., and another Vs. Yogendra Singh Chouhan and another (W.P.No. 6445/2015, decided on 02/11/2015) and his contention is that the controversy involved in the present case has already been adjudicated by taking into account all the grounds raised by the petitioner. The order dated 2/11/2015 passed by this Court, reads as under:
W.P. No.6445/201502.11.2015 Parties through their counsel.
Petitioners before this Court have filed this present petition being aggrieved by the order dated 12.08.2015 by which the presiding officer, labour court has rejected the prayer of the petitioners (employer) to engage a legal counsel (advocate).
Undisputed facts of the case reveals that the petitioner was transferred by the employer and thereafter, the respondent employee has sought shelter of the provisions of Industrial Dispute Act, 1947 and finally, a reference was made to the labour court in exercise of powers conferred under Section 10 of the Industrial Dispute Act, 1947. The reference was made on 21.07.2014. The employer submitted an application for engaging a counsel and the application was rejected on 05.02.2015. The employer has again preferred another application and the same was again turned down on 12.08.2015.
Learned counsel for the petitioners has vehemently argued before this Court that by virtue of Section 30 of the Advocates Act, 1961, an advocate is entitled to practice anywhere before any forum and his contention is that by virtue Section 30 of the Advocates Act, 1961, the application preferred by the employer should have been allowed.
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He has placed reliance upon a judgment dated 15.02.2012 delivered by the Bombay High Court in the case of Mohan Madhukar Sudame Vs. State of Maharashtra (W.P. No.3107 of 1994) and he has also placed reliance upon another judgment dated 19th July, 2011 delivered by the Kerala High Court at Ernakulam in the case of C.P. Saji Vs. Union of India and other (W.P (C) 18334 of 201 (N)). His contention is that keeping in view the aforesaid judgments, the application should have been allowed by the labour court.
On the other hand, the workman appearing in person has drawn attention of this Court towards the judgment dated 12.01.2011 delivered by the Supreme Court in the matter of Uttam Kumar Pardasani Vs. M/s Petcare Divin of Tetragon P. Ltd. in SLP No.25777/2008.
Heard the learned counsel for the petitioners as well as the workman and perused the record.
It is an undisputed fact that a reference has been made keeping in view Section 10 of the Industrial Dispute Act, 1947 to the labour court and the same is pending for adjudication. First application for engaging the counsel has been turned down on 05.02.2015 and thereafter, another application was preferred and the same has also been turned down by the labour on 12.08.2015.
Section 36 of the Industrial Dispute Act, 1947 reads as under:-
"36. Representation of parties.-
(1) A workman who is a party to a dispute shall be entitled to be represented in any proceeding under this Act by--
(a) any member of the executive or 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, or by any other workman 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 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 by any other employer engaged in, the industry in which the employer is engaged and authorized in such manner as may be prescribed.
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(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 proceeding and with the leave of the Labour Court, Tribunal or National Tribunal, as the case may be].]"
The aforesaid statutory provisions of law makes it clear that a legal practitioner cannot be appointed by a party without the consent of the other party.
Learned counsel for the petitioners has placed heavy reliance upon Section 30 of the Advocates Act, 1961 and the same reads as under:-
"30. Right of advocates to practise.--Subject to provisions of this Act, every advocate whose name is entered in the [State roll] shall be entitled as of right to practise throughout the territories to which this Act extends,--
(i) in all courts including the Supreme Court;
(ii) before any tribunal or person legally authorised to take evidence; and
(iii) before any other authority or person before whom such advocate is by or under any law for the time being in force entitled to practise."
His contention is that by virtue of the aforesaid statutory provisions, an advocate is certainly entitled to appear before the labour court even if the workman has not consented for the same.
Learned counsel for the petitioners has placed reliance Mohan Madhukar Sudame Vs. State of Maharashtra and his contention is that Bombay High Court has held that "by virtue of Section 30, an advocate or lawyer is entitled to appear before all tribunals including the University and College Tribunal constituted under the Act. In the aforesaid case the statutory provisions in question was enacted by the State Government whereas in the present case, the Industrial Dispute Act, 1947 is the Act of Parliament and the same cannot be superseded by the Advocate Acts, 1961. Under the Industrial Dispute Act, 1947, there is a categoric provision wherein it has been stated that advocates are not permitted to appear for the parties without consent of the other parties and in the present case, the Industrial Dispute Act, 1947 is very much applicable and, therefore, it cannot be said that the advocates are entitled to appear before the tribunal that too without consent of the parties.
This Court has carefully gone through the judgment delivered in the case of C.P. Saji (supra). In the aforesaid case, no specific section was dealt with by the Kerala High Court at
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Ernakulam as contained in Section 36 of the Industrial Disputes Act. Therefore, in the considered opinion of this Court, the judgment delivered by the Kerala High Court is also of no help to the petitioners.
Not only this, the Apex Court in the case of Uttam Kumar Pardasani (supra) has held that that the labour court was justified in rejecting the application preferred by the employer.
In the present case, the facts establish that first application of the employer was rejected 05.02.2015 and subsequently, another application was filed and the same was also dismissed by order dated 12.08.2015, meaning thereby, the employer is deliberately delaying the conclusion of the trial before the labour court. Resultantly, the present petition is dismissed with cost of Rs.10,000/-. The cost be deposited within a period of 30 days before the labour court and be paid to the workman in question.
In the light of the aforesaid order, this Court is of the considered opinion that no case is made out for setting aside the order dated 8/3/2016 passed by the Industrial tribunal.
At this stage, Mr. Prasanna Prasad, learned counsel for the petitioner (W.P.No. 4973/2016) has placed reliance upon the order dt. 28/7/2015 passed by this Court in W.P.No. 5012/2015 and his contention is that in the light of the aforesaid order, as the plea was not raised at the first instance, the impugned order passed by the Court below deserves to be quashed.
This Court has carefully gone through the order dt. 28/7/2015 is of the opinion that in the light of the earlier order passed by this Court dt. 2/11/2015, the question of setting aside the order dated 8/3/2016 does not arise.
Not only this, the Division Bench of this Court in the case of Madhya Pradesh Hast Shilp Avam Hath Kargha Vikas
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Nigam Vs. M.P. Hast Shilp Avam Hath Kargha Karmchari Union (W.P.No. 6976/2013, decided on 30/4/2016) has passed the following order :
W.P.No. 6976/2013, 12633/2013, 6561/2014, 6562/2014, 6563/2014, 6564/2014, 6565/2014, 6566/2014, 7759/2014, 1974/2016, 2398/2016 and 2402/2016. 30.04.2016 S/Shri P. Sahu, Rajneesh Gupta, Radha Raman Shrivastava and Shobitaditya Advocate for the petitioners.
Shri S.H.Moyal and Shri Sanger Advocate with Shri R.B. Tiwari, Advocate for respondent No.1 Having heard learned counsel for the parties at length, it is seen that in all these Writ Petitions proceedings being held before the Labour Court are challenged and an interlocutory orders passed by the Labour Court disallowing representations of the petitioner - employer by a Advocate / counsel in a proceeding pending before the Labour Court are called in question. Even though the petitioners originally called in question only the order of the Labour Court disallowing them representing by an Advocate but now they have by moving an application for amendment challenged the provisions of Sec.36(4) of the Industrial Disputes Act, 1947 in the matter of prohibiting legal practitioner from appearing before the Labour Court. The question with regard to constitutional validity of this provision is subjudice before the Supreme Court also and at this stage only because of these grounds further proceedings before the Labour Court cannot be stayed. In the law laid down by the Supreme Court in the case of D. P. Maheshwari Vs. Delhi Administration, reported in 1983-II LLJ, it has been clearly held that against interlocutory orders passed by the Labour Court proceedings should not be stayed and, therefore, we are of the considered view that stay of the proceedings before the Labour Court at this stage is not called for the proceedings before the Labour Court can continue and ultimately if an award is passed against the petitioner, they will have a right to assail it on various grounds.
Taking note of all these circumstances and the facts that proceedings before the Labour Court are being stayed for a long period of time we vacate the stay order granted and permit the Labour Court to proceed in the matter in accordance with law, however, liberty with available to the petitioners to challenge the award of the Labour Court,
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ultimately if required after the final awards are passed. As far as the constitutional validity of the provisions are concerned we allow the amendment made and direct the petitioners to implead the amendment within a one week and thereafter, the matter be now listed before the appropriate Division Bench for considering the question of constitutional validity of the statutory provisions.
In the light of the order passed by the Division Bench, the proceedings before the Labour Court cannot be stayed for a long period. Not only the interim order deserves to be vacated, but the Writ Petition also deserves to be dismissed. The Writ Petitions are accordingly hereby dismissed as there is a clear statutory provision under Section 36(4) of the Industrial Disputes Act, 1947 to engage a Lawyer with the consent of the parties.
The aforesaid Writ Petitions are accordingly hereby dismissed.
(S. C. SHARMA) JUDGE KR