Punjab-Haryana High Court
M/S Hygienic Foods Malerkotla Road vs Jasbir Singh And Others on 13 November, 2009
Author: T.S. Thakur
Bench: T.S. Thakur
In the High Court of Punjab and Haryana, Chandigarh
LPA No. 250 of 2009
in C.W.P. No. 4322 of 2007
Date of Decision: November 13 , 2009
M/s Hygienic Foods Malerkotla Road, Khanna, District Ludhiana.
...Appellant
through
Mr. Mansur Ali, Advocate
Versus
Jasbir Singh and others
...Respondent Nos. 1 to 10
through
Mr. S.S. Chauhan, Advocate
CORAM: HON'BLE MR. JUSTICE T.S. THAKUR, CHIEF JUSTICE
HON'BLE MR. JUSTICE M.M. KUMAR
HON'BLE MR. JUSTICE HEMANT GUPTA
HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA
HON'BLE MR. JUSTICE JASWANT SINGH
1. Whether to be referred to the Reporters or not? Yes
2. Whether the judgment should be reported in the Yes
Digest?
LPA No. 250 of 2009 2
Per M.M. KUMAR, J. (for himself, T.S.Thakur, Chief Justice, Kanwaljit
Singh Ahluwalia and Jaswant Singh, JJ.)
The short issue raised in this reference is whether an employer can
be validly represented by a practising advocate enrolled under the Advocates
Act, 1961 (for brevity, 'the Advocates Act'), in an industrial dispute by
becoming an officer of an association of employers of which such an employer
is a member, or a federation of such associations of employer under Section 36
(2) of the Industrial Disputes Act, 1947 (for brevity, 'the ID Act').
2. In order to put the controversy in its proper perspective, it would
be appropriate to first notice a few facts. The services of workmen-respondents
were terminated by their employer- Hygienic Foods who are the appellants in
this letters patent appeal. The workmen-respondents raised industrial disputes
regarding termination of their services. The dispute was referred to the Labour
Court, Ludhiana, in the shape of various references. During the pendency of the
proceedings when most of the references were fixed for arguments, an
application was filed on 18.12.2006 on behalf of the workmen-respondents
before the Labour Court raising objection to the appearance of Mr. B.P. Bansal
and his associates for the Hygienic Foods (P-1). The principal plea raised by
placing reliance on Section 36(4) of the ID Act was that the workmen-
respondents did not consent to the appearance of Mr. B.P. Bansal and his
associates for Hygienic Foods being advocates and that they could not be
regarded as 'officer' of an association of employer or federation of such an
association of employers within the meaning of Section 36(2)(a) and (b) of the
ID Act. The application was contested by the employer Hygienic Foods by
filing reply (P-2). The Labour Court held that Sarvshri B.P. Bansal, Manoj
LPA No. 250 of 2009 3
Bansal and their associates have been representing the Hygienic Foods in those
industrial disputes since the year 2000/2001 and most of the references were
then fixed for arguments, therefore, there was implied consent by the workmen-
respondents for their appearance to represent Hygienic Foods and the same
could not be withdrawn. The other ground was that the application was filed at
a belated stage. Accordingly, the Labour Court dismissed the application vide
its order dated 19.1.2007 (P-3).
3. Feeling aggrieved, the workman challenged the order of the Labour
Court, Ludhiana before this Court in C.W.P. No. 4322 of 2007. A learned
Single Judge following the Full Bench judgment of this Court rendered in the
case of Indrasan Parsad v. Presiding Officer, 2008 (1) S.C.T. 522, held that
the order dated 19.1.2007 (P-3), passed by the Labour Court was not sustainable
because the requirement of Section 36(4) of the ID Act is that appearance of a
practising advocate for the management could be possible only if (a) the
workman has accorded express consent and (b) the leave of the Labour Court
was granted. Learned Single Judge rejected the contention of the employer-
Hygienic Foods that once the advocate is working as an 'officer' with his
employer's association within the meaning of Section 36(2) and no objection
was raised over a long period of time then at the stage of argument, such a plea
would amount to an implied consent. Accordingly the learned Single Judge
quashed the order dated 19.1.2007 and allowed the writ petition vide his order
dated 5.2.2009.
4. The employer-Hygienic Foods did not feel satisfied with the view
taken by the learned Single Judge and preferred LPA No. 250 of 2009. The
Letters Patent Bench, vide its order dated 24.4.2009, expressed the opinion that
observations in para 38 made by the Full Bench of this Court in the case of
LPA No. 250 of 2009 4
Indrasan Parsad (supra) were in conflict with those of Hon'ble the Supreme
Court in paras 16 and 17 of the judgment rendered in the case of Paradip Port
Trust, Paradip v. Their Workmen, AIR 1977 SC 36. The relevant part of the
reference order in extenso is extracted below, which reads thus:-
"4. Learned counsel for the appellant submits that there is a
conflict in the observations of the Full Bench of this Court in paras
38 and observations of the Hon'ble Supreme Court in paras 16 and
17 in Paradip Port Trust, Paradip v. Their Workmen, AIR 1977
SC 36 and the said observations have not been referred to in the
judgment of the Full Bench. He further submits that High Courts of
Karnataka, Andhra Pradesh and Calcutta in Steel Authority of
India Limited, Bangalore vs. B.Yellappa, 2007(114) FLR 1022,
Andhra Pradesh State Electricity Board v. AP Power Diploma
Engineers Assn. Trade Union, Kothagudem Thermal Power
Station and another, 1995(1) LLJ 448 and INFAR (India)
Limited vs. Madan Mohan Ghosh and others, 2001(1) LLJ 453
respectively, held that even a legal practitioner could represent a
party under section 36(2) if he was office bearer of association.
5. In view of above, we are of the view that observations of the
Full Bench of this Court may require reconsideration. Thus, the
matter may have to be decided by a larger bench on this aspect.
6. We, accordingly, direct that papers may be placed before
Hon'ble the Chief Justice for appropriate orders.
7. In the meanwhile, the authorized representative of the
appellant will be allowed to represent the appellant, if he is covered
LPA No. 250 of 2009 5
by Section 36(2) of the Act and observations of the Hon'ble
Supreme Court in Paradip Port Trust (supra) (paras 16 and 17)."
5. It is in pursuance of the aforesaid order the matter has been placed
before us.
6. At the outset it may be observed that learned counsel for the
employer did not present the legal position correctly before the Letters Patent
Bench. The reference order notices various judgments to take a prima facie
view that a legal practitioner could represent a party under Section 36(2) of the
ID Act if he was an office bearer of the association. The judgment of the
learned Single Judge of the Andhra Pradesh High Court in the case of Andhra
Pradesh State Electricity Board v. A.P. Power Diploma Engineers
Association Trade Union, Kothagudem Thermal Power Station and
another, 1995-I LLJ 448, has not been approved by the Full Bench of the
Andhra Pradesh High Court in Andhra Pradesh Power Diploma Engineering
v. Andhra Pradesh State Electricity Board, 1995 Lab IC 2654. Likewise,
the Division Bench judgment of Calcutta High Court rendered in the case of
M/s Infar (India) Ltd. v. Madan Mohan Ghosh, 2001(2) S.C.T. 305, on
which reliance was placed, has been set aside by Hon'ble the Supreme Court on
an appeal filed by the workman and is reported as Madan Mohan Ghosh v.
Infar (India) Ltd., 2001-II-LLJ 1547. Therefore, even a reference to Full
Bench may not have been necessary had the correct position been projected
before the learned Letters Patent Bench. The option left with us is either to
return the reference to the Letters Patent Bench or to opine on the issue which is
of general public importance and is likely to arise in a large number of cases
before the Industrial Tribunals and Labour Courts in the States of Punjab,
LPA No. 250 of 2009 6
Haryana and Union Territory of Chandigarh. Accordingly, we adopt the later
course and proceed to answer the question.
7. Mr. Mansur Ali, learned counsel for the Hygienic Foods argued
that under Section 36(2) of the ID Act, the management can be represented in
any proceedings by an 'officer' of an association of employer of which he is a
member or an officer of a federation of association of employers to which such
an association of the employer is affiliated. According to the learned counsel
the expression 'an officer of an association of employer' used in clause (a) of
sub-section (2) of Section 36 of the ID Act must receive a liberal construction;
and as long as a person is an 'officer' of an association of employers, his status
of being an advocate would not create a bar. He maintained that all that clause
(a) of sub-section (2) of Section 36 of the ID Act requires is that the person
representing the employer is an officer of an association of employer. Similar
argument has been advanced in respect of clause (b) of sub-section (2) of
Section 36 of the ID Act. In nutshell the argument is that a practising advocate,
as long as he is an officer of an association of employers, could legally
represent the employer before an Industrial Tribunal or Labour Court etc. In
support of his submission, learned counsel has heavily relied upon the
observations made in paras 16 and 17 of the judgment of Hon'ble the Supreme
court in the case of Paradip Port Trust (supra) and argued that in such a
situation no consent of the workman and leave of the Court as contemplated by
Section 36 (4) of the I.D Act would be necessary to permit a person to represent
the employer. He has emphasised that under Section 36(1) of the ID Act, a legal
practitioner can also appear for the workman as long as he is an 'office bearer'
of a trade union or member of its executive. Accordingly, a corresponding right
has also been given to the employer provided he fulfils the qualifications
LPA No. 250 of 2009 7
contemplated by Section 36(2) of the ID Act. He suggested that there is
mutuality in the provisions.
8. Mr. Mansur Ali has then argued that the Labour Court or the
Tribunal has no jurisdiction to make an inquiry into the motive for appointment
of such a legal practitioner as an 'office bearer' either of the trade union or of
the employer's association and, therefore, it would be too late in the day to
argue that an enrolled advocate cannot represent the employer. In support of his
submissions learned counsel placed reliance on a Division Bench judgment of
Calcutta High Court rendered in the case of M/s Infar (India) Ltd. (supra),
and argued that Section 36(1) & (2) of the ID Act have given equal
representation to the workman as well as the management. Once the aforesaid
mutuality has been maintained then the question of prejudice to the interest of
the workman would become irrelevant. Highlighting the difference between the
expression 'office bearer' as used in Section 36(1) of the ID Act and the
expression 'officer' as used in Section 36(2) of the ID Act, learned counsel
submitted that the expression 'office bearer' in relation to a trade union would
mean an office bearer of any trade union be it a President or Secretary whereas
the expression 'officer' in the context of employer would mean a person who is
an officer of the association of employer. In that regard, he has drawn our
attention to para 15 of the Division Bench judgment of Calcutta High Court in
the case of M/s Infar (India) Ltd. (supra). He also placed reliance on the view
taken by the learned Single Judge of Karnataka High Court in the case of Steel
Authority of India Ltd., Bangalore v. B. Yellappa, 2007 (114) FLR 1022,
and argued that a specific question was framed as to whether legal practitioners
who are office bearers of an association of employer or federation of such an
association of employers could represent the management in pursuance of
LPA No. 250 of 2009 8
Section 36(2) of the ID Act. He placed reliance on another Single Bench
judgment of Jharkhand High Court in the case of Nav Chandra Jha v.
Presiding Officer, 2001 LLR 483 and a Division Bench judgment of Madras
High Court in the case of Rajamani R. v. Presiding Officer, 2007-II-LLJ-704
(Mad).
9. Mr. S.S. Chauhan, learned counsel for the workmen-respondents
however, submitted that the Full Bench in Indrasan Parsad (supra) has taken
the correct view, inasmuch as, no consent of the workman, which is required by
sub-section (4) of Section 36 of the ID Act, could be implied or inferred in
favour of the management that it could be represented by a practising advocate.
He submitted that expression 'officer' used in clause (a) of sub-section (2) of
Section 36 of the ID Act cannot be construed to include an advocate enrolled
under the Advocates Act. According to the learned counsel such an officer has
to be on the pay rolls of his employer, which an advocate cannot be. He further
submits that such an advocate should also be under his disciplinary control. He
further contends that the Bar Council of India has framed Rules in pursuance of
power under Section 49(1)(c) of the Advocates Act read with the proviso
thereto. Under the heading 'Standard of Professional Conduct and Etiquette',
there is an express prohibition for an advocate to be a full-time salaried
employee of any person, government, firm, corporation or concern so long as he
continues to practise. The Rule casts an obligation on an advocate that on taking
up any employment he must intimate that fact to the Bar Council where he is
enrolled. He has to cease his practise as an advocate during the course of his
employment. The suggestion made by Mr. Chauhan is that either a person can
continue to hold license to practise as an advocate or he can be a full-time
LPA No. 250 of 2009 9
officer in an association of employer. But he cannot continue to be a practising
advocate and also an officer drawing full-time salary.
10. In order to appreciate the controversy raised, it would be useful to
first read Section 36 of the ID Act, which is extracted below:-
"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, or by any
other workman employed in, the Industry
in which the worker is employed and
authorised 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-
LPA No. 250 of 2009 10
(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
authorised 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 proceeding and with the
LPA No. 250 of 2009 11
leave of the Labour Court, Tribunal or National
Tribunal, as the case may be."
11. It is evident that Section 36 of the ID Act seeks to regulate
representation of the parties to a dispute raised under this Act. Sub-section (1)
of Section 36 entitles a workman to be represented by (i) 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 (i) is affiliated; and
(c) where the workman is not a member of any trade union then a workman has
been given a wholesome right of being represented by any member of the
executive or office bearer of any trade union connected with the industry in
which the worker is employed or by any other co-worker employed in such
industry.
12. The language of sub-section (1) is quite different in its phraseology
from the language used in sub-section (2) of Section 36 of the ID Act. There
would be hardly any difficulty to discover a member of the executive or an
office bearer of a trade union or a federation of trade unions to which the trade
union referred to above is affiliated. As long as a representative answers the
prescription of any of the provisions of sub-section (1) of Section 36 of the ID
Act, it would not make any difference even if he is a legal practitioner. It
follows that such a representative would not be required to satisfy the
conditions envisaged by Section 36(4) of the ID Act, namely, to secure consent
of the other party and leave of the Court because Section 36(4) would not
simply apply because an office bearer or a member of the executive would
cover even a legal practitioner or an advocate enrolled under the Advocates Act.
It is significant to point out that there is no bar against a legal practitioner
LPA No. 250 of 2009 12
becoming a member of the executive or office bearer of a trade union or a
federation of trade unions under the Advocates Act or any rules framed
thereunder. By virtue of becoming member of the executive or an office bearer
of trade union no relationship of employee and employer between the advocate
or the trade union into being.
13. It is significant to notice that the earlier expression 'an officer' was
substituted by Act No. 45 of 1971 with the words 'any member of the executive
or other office bearer'. There is no mention of any reason in the statement of
objects and reasons why the expression 'officer' was substituted by the words
'any member of the executive or other office bearer' in sub-section (1) of
Section 36 of the ID Act.
14. However, in sub-section (2) of Section 36 of the ID Act, the
expression 'Officer' has been retained. A legal practitioner enrolled as an
advocate under the Advocates Act would be covered by the expression 'any
member of the executive or other office bearer' but he may not be able to
answer all the attributes of an 'Officer' of an association of employer of which
he is a member or an officer of federation of association of employers to which
such an association is affiliated. A perusal of sub-section (2) of Section 36 of
the ID Act would further reveal that the employer is entitled to be represented in
any proceedings under the ID Act by an officer of an association of employer of
which he is a member or an officer of a federation of association of employers
to which the association of the employer is affiliated. Sub-section (3) of
Section 36 of the ID Act in un-mistakable terms states that no party to a dispute
is entitled to be represented by a legal practitioner either in any conciliation
proceedings under the ID Act or in any other proceedings before a Court. There
is, thus, a complete bar created by sub-section (3) of Section 36 of the ID Act to
LPA No. 250 of 2009 13
be represented by a legal practitioner in two types of proceedings, namely, any
conciliation proceedings which are defined in clause (e) of Section 2 of the ID
Act or in any proceedings before a Court which means a Court of Inquiry
constituted under the ID Act as defined in sub-section (f) of Section 2. Thus,
there is complete bar on the parties to be represented by a legal practitioner in
the aforesaid two types of proceedings. However, a perusal of sub-section (4)
of Section 36 of the ID Act on the other hand would show that a party to the
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.
15. The issue raised before us whether 'employer can be validly
represented by a legal practitioner enrolled as an Advocate and described as
'Officer' by his employer has fallen for consideration of Hon'ble the Supreme
Court in the leading case of Paradip Port Trust (supra). However, there are
observations which would be directly relevant to resolve the issue raised before
us. In that case, the provisions of Section 36 of the Act were also interpreted.
Therefore, it would be imperative for us to closely analyze the aforesaid
judgment so as to deduce the principles of law laid down by Hon'ble the
Supreme Court.
16. Few skeletal facts may first be noticed. The employer Paradip Port
Trust was represented by an Advocate Sh. T. Mishra in a reference made to the
Industrial Tribunal at the instance of Paradip Shramik Congress representing the
workmen with regard to termination of services of their workmen. The
employer projected the Advocate 'as its Officer' on the premise that he was
working with them as a 'legal consultant'. The Advocate had filed an authority
letter executed in his favour by the Paradeep Port Trust. An objection was
LPA No. 250 of 2009 14
raised by the workmen to the appearance of the Advocate. The Tribunal
sustained the objection and refused to grant him leave to appear. The
view of the Tribunal is quoted by Hon'ble the Supreme Court in para
four of the judgment, which has been approved. According to the
Tribunal, the terms and conditions of the appointment of Sh. T. Mishra as
legal consultant of his employer showed that the relationship of the Paradeep
Port Trust-employer and Shri T. Mishra was clearly that of a client and his
lawyer and not that of employer and employee. The Tribunal had further held
that in such a situation, it could not be said to be an officer of the employer-Port
Trust. The Tribunal went on to observe that merely by execution of the power
of attorney, the restrictions imposed on a legal practitioner by Sub Section (4)
of Section 36 of the Act could not be circumvented. Accordingly, it was held
that a legal practitioner cannot represent the employer Port Trust before the
Tribunal.
17. Thus, the view taken by the Tribunal was upheld. The view of
Hon'ble the Supreme Court is discernible from paras 15, 16, 25 and 26, which
reads 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 the 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 an their pay (sic?)
and under their control and is not a practising advocate the fact
LPA No. 250 of 2009 15
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 officer 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 a 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.
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 corporation simply
because he was a legal consultant of the Trust. The Tribunal
came to this conclusion after examining 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
LPA No. 250 of 2009 16
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
cases there is no absolute ban to appear even 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
Industrial Tribunal without the consent of the opposite party and
leave of the Tribunal merely by virtue of a power of attorney
executed by a party. A lawyer can appear before the Tribunal in
the capacity of an office bearer of a registered trade union or an
officer of association of employers and no consent of the other
side and leave of the Tribunal will, then, be necessary."
18. Hon'ble the Supreme Court has also interpreted Section 36 of the
ID Act. The views of Hon'ble the Supreme Court, which are discernible from
various paras may be summarised as under:
i). Section 36(1) confers an 'unbartered' and 'absolute right' upon the
workman to be represented by a member of the executive or an
office bearer of the registered trade unions. Likewise, the employer
is also placed at par with the workman in the matter of
representation before the Labour Courts, Industrial Tribunals and
National Tribunals. Consequently, an employer may also be
represented by an 'Officer' of the association of employer of which
the employer is a member. The right is extended to representation
LPA No. 250 of 2009 17
by an Officer of the federation of employer to which the
association of employer is affiliated.
ii). The rights of representation under Section 36(1) of the ID Act are
unconditional and are not subject to the conditions laid down in
Section 36(4) of the ID Act. Both the sub-sections are independent
and stand by themselves.
iii). Section 36 of the ID Act is not exhaustive in the sense that beside
the person specified therein, there can be other lawful mode of
appearance of the parties as such (para 13). Such an eventuality has
been envisaged by Section 36(2)(c) in case of an employer, who is
not a member of an association of employers. The device of
representation provided therein would not fit in the case of a
Government Department or a Public Corporation as an employer.
iv). A legal practitioner, who is appointed as an officer of Company or
Corporation can represent them subject to certain conditions. The
first condition is that he must be on their pay rolls and under their
control. The second is that if a legal practitioner is appointed as an
officer of a company or corporation then the mere fact that he was
earlier a legal practitioner or he has a law degree to his credit was
not to stand in the way of the Company or the Corporation being
represented by such a person. Section 36(3) of the ID Act imposes
a complete embargo on representation by a legal practitioner by
either party to the dispute before the Court or in any conciliation
proceedings under the Act.
v). In the matter concerning representation by a legal practitioner the
parties are required to conform to the conditions laid down in
Section 36(4) of the ID Act. The consent of the opposite party and
LPA No. 250 of 2009 18
the leave of the Labour Court or Tribunal have to be secured to
enable a party to seek representation before the Tribunal through a
legal practitioner.
vi). If a legal practitioner becomes an officer of an association of
employer or a federation of such association of employer which is
affiliated to such a federation within the meaning of sub-Section 2
(a) and 2(b), then he can represent an employer. Merely because
such an officer has been earlier a legal practitioner or he is a law
graduate or has acquired legal acumen otherwise would not impede
his appearance. Likewise, an 'office bearer' of a trade union or a
member of its executive would be entitled to represent the
workmen before the Tribunal under Section 36(1) in his capacity as
the office bearers or member of its executive, even though, he is a
legal practitioner.
vii). The expression 'office bearer' or any member of the executive in
relation to trade union as per Section 2(gg) of the ID Act means the
body by whatever name called to which the management of the
affairs of the trade union is entrusted. An 'office bearer' in relation
to a trade union would include any member of its executive.
However, the expression 'Officer' used in Section 36(2) has not
been defined in the ID Act. In the absence of any definition, some
controversy is likely to arise, therefore, Hon'ble the Supreme Court
in para 18 has observed that no single test nor an exhaustive test
can be laid down for determining as to who is an officer in absence
of a definition in the Act. When such a question arises the
Tribunal, in each individual case would be required to determine
LPA No. 250 of 2009 19
on the materials produced before it whether the claim is justified.
Hon'ble the Supreme Court further observed that an officer under
Section 36(2) is of the association or of the federation of
associations of employers and not of the company or corporation.
viii). No advocate could claim a right to practice by placing reliance on
Section 30 of the Advocates Act. That Act has to give way to ID
Act because it is a special piece of legislation with the avowed aim
of labour welfare. The mode of representation before adjudicatory
authorities has been regulated by keeping that object in view.
Moreover, the matter is not to be viewed from the point of view of
a legal practitioner but from that of the employer and the workmen,
who are the principal contestants in an industrial dispute. In ID
Act, restriction is upon a party as such and the occasion to consider
the right of the legal practitioner to practise before every court as
per provisions of Section 30 of the Advocates Act would not arise.
19. Having extracted various principles relevant to answer the question
raised in this reference from the judgment of Hon'ble the Supreme Court in
Paradip Port Trust's case (supra), it would be convenient to divide the
discussion in two parts, namely:-
(A) What are the true attributes of an 'Officer' within the
meaning of Section 36(2)(a) and Section 36(2)(b)?
(B) What would be the interpretation of expression 'association
of employers' or 'a federation of association of employers'
given in clause (a) and (b) of sub-section (2) of Section 36 of
the ID Act?
Re: Question (A):
LPA No. 250 of 2009 20
20. The discussion in the preceding para shows that no difficulty was
felt with regard to representation being made by a legal practitioner in respect of
workmen because they could lawfully become member of the executive or any
other officer bearer within the meaning of sub-section (1) of Section 36 of the
ID Act. It is also evident that in two types of proceedings no legal practitioner
is permitted to represent either of the party, namely, conciliation proceedings
under the ID Act or any proceeding before a Court as defined in Section 2(e)
and 2(f) respectively. Likewise, no difficulty has been confronted in
understanding the provision of sub-section (4) of Section 36 of the ID Act
because in any proceeding before a Labour Court, Tribunal or National
Tribunal, a party to the dispute may be represented by a legal practitioner with
the consent of the other parties to such proceedings and also with the leave of
the Labour Court, Tribunal or National Tribunal as the case may be.
21. In para 18 of the judgment of Hon'ble the Supreme Court in
Paradip Port Trust's case (supra), speaking through Justice Goswami has
observed that the expression 'Officer' used in Section 36(2) of the ID Act was
'bound' to give rise to some controversy. The prophetic words of Hon'ble the
Supreme Court have come true as there is controversy on the aforesaid issue.
However, the preponderance of authorities is that a legal practitioner cannot be
regarded as an 'Officer' as would be evident from the succeeding paras. We
will first refer to the view taken by Hon'ble the Supreme Court in Paradip Port
Trust's case (supra) itself and then to the opinion expressed by a Full Bench of
Andhra Pradesh High Court in the case of Andhra Pradesh Power Diploma
Engineers' Association v. Andhra Pradesh State Electricity Board, 1995
LAB. I.C. 2654. The relevant extract from para 18 of the judgment of Hon'ble
the Supreme Court in Paradip Port Trust's case (supra) reads thus:
LPA No. 250 of 2009 21
"......So far as trade unions are concerned there is no difficulty
in ascertaining a member of the executive or other office-bearer
and Section 36(1) will create no difficulty in practical
application. But the word "officer" in Section 36(2) is not
defined in the Act and may well have been, as done under
Section 2(30) of the Companies Act. This is bound to give rise
to controversy when a particular person claims to be an officer
of the association of employers. No single test nor an exhaustive
test can be laid down for determining as to who is an officer in
absence of a definition in the Act. When such a question arises
the Tribunal, in each individual case, will have to determine on
the materials produced before it whether the claim is justified.
We should also observe that the officer under Section 36(2) is
of the association or of the federation of associations of
employers and not of the company or corporation."
22. A perusal of the aforesaid para makes it evident that a legal
practitioner claiming to be an 'Officer' has to be officer of the association or the
federation of association of employers and not that of the company or
corporation. Hon'ble the Supreme Court appears to have made a distinction
between 'Officer' of the company or corporation which is an employer and an
"Officer" of the association or federation of employers as contemplated by sub-
Section 2(a) and 2(b) of Section 36 of the ID Act.
23. Hon'ble the Supreme Court in Paradip Port Trust's case (supra)
in unmistakable terms has laid down that when such a question is raised before
the Tribunal then in each individual case it has to be determined on the material
placed before it whether the claim of such a representative is justified that he is
LPA No. 250 of 2009 22
an officer. Such person is required to be 'Officer' within the meaning of
Section 36(2) of an association or of the federation of association of employers
and not of the company or corporation. Hon'ble the Supreme Court also
recorded its disagreement with the view expressed by the Full Bench of the
Appellate Tribunal of India in the case of Kanpur Hosiery Workers' Union v.
J. K. Hosiery Factory, Kanpur, (1952) 1 Lab LJ 384, although it agreed that
a party could not be represented by a legal practitioner on the basis of a power
of attorney.
24. However, the controversy has arisen on the interpretation of
Section 36(2) of the ID Act. The definition of expression 'Officer' is available
in Oxford Dictionary & Thesaurus which reads thus: 'officer/noun 1 person
holding position of authority or trust, esp. one with commission in armed
forces. 2 policeman or policewoman. 3 president, treasurer, etc. of society etc.'.
Likewise, Webster's Third New International Dictionary defines the expression
'Officer' to mean 'one charged with a duty; a person trained and commissioned
to engage in paid full-time service'. In the Chambers 21st Century Dictionary
the expression 'officer' has been defined to mean "1 someone in a position of
authority and responsibility in the armed forces. 2 someone with an official
position in an organization, society or government department. 3 a policeman
or policewoman. 4 a person in authority on a non-naval ship". It has
specifically excluded a solicitor from the ambit of the word 'Officer' to the
body corporate. In that regard reliance may be placed on a judgment of Calcutta
High Court rendered in the case of Bharat Petroleum Corporation Limited v.
The Presiding Officer, 1990 (2) LLJ 326. It follows that a solicitor or a
lawyer designated as a legal adviser cannot be an officer of a company or an
association or federation without first showing the relationship of employer and
LPA No. 250 of 2009 23
employee, payment of regular salary and control of the employer over such an
'Officer'. Thus, it is clear that a lawyer enrolled as an advocate under the
Advocates Act cannot become an 'Officer' of a company, corporation,
association of employers or federation of association of such employers as there
is a legal bar on their acceptance of full time employment or control by any
other body or institution. The various provisions framed under the Advocates
Act shall be discussed in the succeeding paras.
25. As is evident from the preceding para the expression 'Officer' has
definite connotation. It contemplates an office which is to be occupied by an
incumbent. Such an incumbent has to be in their pay and under their control.
Therefore, only such an officer of the association of employers or that of the
federation of association of employers can represent the employer. The
employers can also be represented by their directors or their own officers
authorized to act in that behalf. However, it would not mean that the companies
and corporations are free to engage legal practitioners by means of special
power of attorney to represent their interest. It was in this context that the
observation of Hon'ble the Supreme Court in the case of Paradip Port Trust
(supra) would be relevant in which it has been held as under:-
"19. The matter of representation by a legal practitioner holding a
power of attorney came up for consideration before the Full Bench
of the Appellate Tribunal of India in the year 1951 (see Kanpur
Hosiery Workers' Union v. J. K. Hosiery Factory, Kanpur, (1952) 1
Lab LJ 384 LATI Cal). The provision for representation which
applied to the Appellate Tribunal was Section 33 of the repealed
Industrial Disputes (Appellate Tribunal) Act. 1950. This section
corresponds to Section 36 of the Industrial Disputes Act with
LPA No. 250 of 2009 24
which we are concerned. Although the Appellate Tribunal rejected
the claim of the party to be represented by the legal practitioner on
the basis of a power of attorney with which we agree, the reason
for its conclusion based solely on the ground of Section 36 being
exhaustive do not meet with our approach. ......"
26. The matter has also been examined in some detail by a Full Bench
of Andhra Pradesh High Court in the case of Andhra Pradesh Power Diploma
Engineers' Association's case (supra). From para 16 of the Full Bench
judgment it is evident that all the attributes of an Officer as pointed out by
Hon'ble the Supreme Court in Paradip Port Trust's case (supra) have been
adopted by the Full Bench. It is appropriate to mention that these attributes
have been indicated in para 25 of the judgment in Paradip Port Trust's case
(supra) to which reference has already been made in the preceding paras. Some
of those attributes are that such an Officer has to be on the pay rolls of the
company. He has to be under its control and he could not enjoy the freedom to
accept cases from other parties as any other legal practitioner. If such are the
necessary attributes of an Officer within the meaning of Section 36(2)(a) and
(b) then a person who is a legal practitioner and registered as such, cannot
become an office bearer of the association of employers or become an office
bearer of federation of association of employers to which such an association is
affiliated. We further find that Hon'ble the Supreme Court has observed in
Paradip Port Trust's case (supra) that the rights of representation under
Section 36(2) are unconditional. Those rights are not subject to the conditions
laid down under Section 36(4) of the ID Act.
27. In the concluding sentence of para 12 of the judgment of Paradip
Port Trust's case (supra) it has further been observed that 'The said two sub-
LPA No. 250 of 2009 25
sections are independent and stand by themselves'. It is significant to notice
that sub-section (1) and (2) of Section 36 of the ID Act do not use the
expression 'legal practitioner'. The expression 'legal practitioner' has been
specifically used in sub-section (3) and (4) of Section 36 of the ID Act.
Therefore, to say that a legal practitioner can masquerade as an 'Officer' of the
association of employer or the federation of association of employers of which
such an employer's association is affiliated under Section 36(2), would amount
to achieving indirectly something that cannot be achieved directly. It is an
impossible proposition to accept. It has, however, been clarified by Hon'ble the
Supreme Court in Paradip Port Trust's case (supra) itself that once an
enrolled advocate or a legal practitioner has given up his status as an Advocate
then the mere fact that he was at any point practising as such would not result in
attaching any disability for him to become an officer of the association of
employer or federation of employers to which the employer's association is
affiliated. It has further been held that Section 36 is not exhaustive regarding
representation of the parties to a dispute arising under the ID Act. In that regard
the view taken by the Division Bench of Bombay High Court in Khadilkar
(K.K.) v. Indian Hume Pipe Company Ltd., 1967-I L.L.J. 139, has been
approved by Hon'ble the Supreme Court in Paradip Port Trust's case (supra).
We also place reliance on Single Bench judgment of Gujarat High Court in the
case of J.B. Transport Company v. Shankarlal @ Mavaram Nathuji Patel,
2000-I-LLJ 442. In that case the Gujarat High Court has held that an officer
must hold an office and take part in the management or directions of the
employer's institution. He must be trained and engaged in discharging a duty
and paid fully for the services rendered by him. For appearance before the
Labour Court/Industrial Tribunal, a legal practitioner should be a regular officer
LPA No. 250 of 2009 26
of such employees' association/union otherwise it would defeat the provisions
of Section 36(2) and 36(4). Referring to the provisions of Advocates Act,
Gujarat High Court has held that an advocate cannot be an employee in any
institution without the express permission of the Bar Council. The Gujarat
High Court has also placed reliance on the Full Bench judgment of the Andhra
Pradesh High Court rendered in the case of Andhra Pradesh Power Diploma
Engineers' Association's case (supra). Similar view has been taken by
Calcutta High Court in the case of Bharat Petroleum Corporation Limited v.
The Presiding Officer, 1990-(002)-LLJ-0326-CAL. In that case the Tribunal
had refused permission to be represented by two Executive Committee members
of the association who happen to be legal practitioners. On the basis of various
submissions made, the Calcutta High Court concluded by placing reliance on
the judgment of Hon'ble the Supreme Court in K.C.P. Employees Association
v. Management of K.C.P. Ltd., 1978-I-LLJ-322, that Industrial Law is
interpreted and applied in the perspective of Part-IV of the Constitution and if
there is any doubt on law and fact then the same has to be extended to the
weaker section i.e. labour. Accordingly, it was held that two Executive
Committee members of the association belonging to the Bharat Petroleum
Corporation were not entitled to represent the Corporation.
28. Further, if a legal practitioner is included in the definition of
expression 'Officer' then it is very handy for anyone to become such an office
bearer of an association of employer or federation of association of employers
of which the employer's association is affiliated and the provisions of Section
36(3) and Section 36(4) of the ID Act could be easily circumvented. In any
case no such intention could be imputed to the legislature because Section 36(1)
of the ID Act was amended by the Parliament in pursuance of Act No. 45 of
LPA No. 250 of 2009 27
1971. The expression 'Officer' was replaced by the expression 'any member of
the executive or other office bearer'. The Parliament did not replace the word
'Officer' occurring in Section 36(2)(a)(b) & (c) of the ID Act. Therefore, by
becoming a President, Vice-President or Secretary of an association of employer
or federation of association of employers to which such association is affiliated,
a legal practitioner cannot be permitted to assume duality of character and
camouflage the intention of the legislature. For the aforesaid view we find
ample support from the Full Bench judgment of Andhra Pradesh High Court in
Andhra Pradesh Power Diploma Engineers' Association's case (supra). In
the concluding part of para 16, their Lordships' of the Full Bench has observed
as under:-
"16. ......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, ILR (1951) 1 (Cal) 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 the decision in B.
Veeraswamy v. State of A.B., AIR 1959 Andh Pra 413, 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
LPA No. 250 of 2009 28
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 officers
subject to such directions as the statute gives." In Nandlal More v.
R. Mirchandani, AIR 1968 Bom 208, the Court was of the view
that "officer" and "office" are correlated 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. Being an officer pre-supposes a
relationship of employer and employee or master and servant." In
that case the question to be considered was whether a power of
attorney holder can be called an officer of 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."
The aforesaid view has been examined in some detail by Shri O.P.
Malhotra in his well known commentary 'Law of Industrial Disputes'.
29. Another aspect of the matter is that the Bar Council of India have
framed rules under Section 49(1)(c) of the Advocates Act, which are titled
'Standards of Professional Conduct and Etiquette'. According to Rule 49, no
advocate could be a full time salaried employee. The aforesaid rule reads as
under:-
"49. An advocate shall not be a full-time salaried employee of
any person, government, firm, corporation or concern, so long as
he continues to practice, and shall, on taking up any employment,
intimate the fact to the Bar Council on whose roll his name
LPA No. 250 of 2009 29
appears, and shall thereupon cease to practice as an advocate so
long as he continues in such employment."
30. A perusal of the aforesaid rule makes it explicit that once an
advocate is on the pay roll of an employer or an association of employer or
federation of such association of employers then it necessarily come in conflict
with Rule 49 and, therefore, an advocate to that extent cannot have duality of
character. For the aforesaid view we place reliance on the observation made in
para 17 of the judgment of Delhi High Court in the case of Siemens Ltd. v.
K.K. Gupta, 2006(1) RSJ 405 [Cf. Management of the Associated Cement
Cos. Ltd. v. Workman, Saroj Arora, 2001(2) S.C.T. 771].
31. At this stage the argument raised by Mr. Mansur Ali placing
reliance on a Single Bench judgment of Karnataka High Court in the case of B.
Yellappa (supra) may be considered. The Karnataka High Court has held that a
legal practitioner who is an office bearer of a federation or an association of
employer is entitled to represent a member of the association under Section 36
(2) of the ID Act and has provided the rationale that the Labour Court could not
go into the motive as to why the employer company had become member of the
association of employers. Likewise, reliance has also been placed on another
judgment of learned Single Judge of Karnataka High Court in the case of Hotel
Ashok v. Additional Labour Court, Bangalore, 1984 (1) Kar. LJ 227 and
Division Bench judgment of Madras High Court rendered in the case of
Rajamani R. (supra) wherein same view has been taken. With utmost respect
we are unable to subscribeto the view taken by the Karnataka and Madras High
Courts in the aforementioned judgments because the same fail to examine the
true meaning of expression 'Officer' and the expression 'association of
employer'. The true meaning of expression 'Officer' has been ascertained in
LPA No. 250 of 2009 30
the preceding paras by referring to the legislative intent which was highlighted
by the amendment of Act No. 45 of 1971 substituting the word 'Officer' in sub-
section (1) of Section 36 and retaining the same word in sub-section (2) of
Section 36. The substituted expression after 1971 in Section 36(1) is 'any
member of executive or other office bearer'. If the expression 'Officer' was to
have the same meaning then no substitution of that expression in Section 36(1)
would have been necessary. The substitution of word 'Officer' in Section 36(1)
with those of 'any member of the executive or other office bearer' is deliberate
and intentional. Therefore, we cannot include an 'office bearer' in the
expression 'Officer' and as such an intention cannot be imputed to the
legislature. Likewise, the expression 'association of employer' has to be
interpreted to mean employer alone and it would not admit any one else like
Advocates and legal practitioners. Therefore, we regret our inability to
subscribe to the aforesaid view.
32. In the light of the aforesaid discussion, it has to be concluded that
the expression 'Officer' used in sub-section (2) of Section 36 would not include
a legal practitioner because an advocate cannot satisfy various attributes
concerning relationship of employer and employee including salary whatever
name called . He can also not be under any professional or disciplinary control
of any body other than the Bar Council. An advocate also suffers a bar created
by the rules framed by the Bar Council of India. Therefore, the first question is
answered accordingly.
Re: Question (B)
33. The expression 'employer' has been defined in Section 2(g) of the
ID Act to mean an industrial employer alone. Meaning of expression
'association of employer' or 'federation of association of employers' has been
LPA No. 250 of 2009 31
considered by the Full Bench of the Andhra Pradesh High Court in Andhra
Pradesh Power Diploma Engineers' Association's case (supra). It has been
observed that in the plain sense it would mean the status of the members of the
association to be that of employer. The use of words is specific and without any
ambiguity and accordingly have to be understood in their natural sense. The
Full Bench observed that these words 'are susceptible to the only meaning that
the association must be of persons who are employers and have formed
themselves into an association because of their status as such. In other words,
the membership of the association must be qua employers and not otherwise...
...'. The Full Bench has opined that an association of persons enjoying
different and varieties of status of which some accidentally happen to be
employers would not be covered by the definition of expression 'association of
employers'. It is for the reason that when a statute speaks of an association of a
specified kind of persons as forming a classification, it is the legislative
intendment which is paramount and it is to be interpreted in that sense alone.
Accordingly, it follows that these expressions as understood within the meaning
of Section 36(2) to be an association of employers or federation of association
of employers alone and not all others. For the aforesaid view, apart from
placing reliance on the Full Bench of Andhra Pradesh in Andhra Pradesh
Power Diploma Engineers' Association's case (supra), reliance can also be
placed on a Division Bench judgment of the Mysore High Court rendered in the
case of Workmen of B.R. Darbar Ginning and Pressing Factory v. B.R.
Darbar Ginning and Pressing Factory, (1969) 2 LLJ 25 Mysore. In that case
from the Memorandum of Association and Articles of Association of Federation
of Chamber of Commerce it was found that the membership consist not only
employer but all non-employer also such as practising lawyer. The Division
LPA No. 250 of 2009 32
Bench, therefore, took the view that the federation could not be regarded as an
association of employers under Section 36(2) of the ID Act. Likewise, reliance
may also be placed on another judgment of Gujarat High Court rendered in the
case of Hosing Ardasar Ichhaporiya v. Mahavir General Hospital, Surat,
(1994) 2 LLJ 326. The further requirement of Section 36(2) is that such an
employer has to be represented by an officer of any association of employer or
federation of association of employers with which it has been affiliated or of
which it is a member.
34. From the aforesaid discussion it becomes evident that a legal
practitioner can neither be an officer of the association of employer nor he can
be member of any such association of employer because essentially the
association of employer or federation of association of employers has to be only
those of employers.
35. In the present case there is no material placed on the record to
show the nature of relationship between Mr. B.P. Bansal and his associates, his
employer or association of employer. However, Mr. B.P. Bansal, who
represented the employer in the proceedings before the Labour Court was
present in the Court on 11.9.2009. He has in unequivocal terms stated that he is
enrolled as an advocate and a member of the Ludhiana District Bar Association,
where he has a chamber. He has not shown us any document which may prove
that he is covered by the expression 'Officer' of the association of employer or
federation of association of employers to which his association of employer is
affiliated. Therefore, in such a situation he cannot be regarded as an 'Officer'
working with Hygienic Foods or an 'Officer' of an association of employers of
which he is a member or an officer of a federation of association of employers
LPA No. 250 of 2009 33
to which such an association is affiliated. He being an advocate cannot be
permitted to camouflage his status as an advocate by removing his band and
gown to become an officer of the association of employer or an officer of the
federation of association of employers to which the association of employer is
affiliated. Therefore, we are of the view that Mr. B.P. Bansal and his associate
Advocates could not have acted as an officer under Section 36(2) of the Act.
(T.S. THAKUR)
CHIEF JUSTICE
(M.M. KUMAR)
JUDGE
(KANWALJIT SINGH AHLUWALIA)
JUDGE
(JASWANT SINGH)
November 13, 2009 JUDGE
Hemant Gupta, J.(dissenting)
I have gone through the majority view authored by brother
M.M.Kumar. Though, I am in agreement in respect of Question B, to the extent
that Association or Federation of the Employers has to be of the employers
alone. However, I am unable to agree with the conclusion arrived at that a legal
practitioner, to be an Officer of the Association of the Employers, has to on pay
rolls of such association as the expression "officer" denotes relationship of
employee and employer.
LPA No. 250 of 2009 34
The issue raised has arisen in different High Courts even prior to
the Judgment of Hon'ble Supreme Court in Paradip Port Trust's case. In Hall
& Anderson Ltd. Vs.S.K.Neogi and another 1954 (1) LLJ 629, it was held
by single Bench of Calcutta High Court that if Director of a Company or a
Corporate body happen to be a practising lawyer, his appearance would not
involve any contravention of provisions of Section 36(4). It was of the view
that a legal practitioner who wished to get round the bar by shedding his
gown and obtaining a power of attorney from party is not permitted. It was
held that in case of company or corporate body it must be represented by
some one as it is not human. Thus, the Managing Director of a Public
Limited Company, a practising lawyer, was permitted to represent the
company in proceedings under the Industrial Disputes Act between the
employer and its workmen. A practising lawyer was found to be an officer of
the Employer. It observed thus -
".....It is true that we must give effect to the intention of the
legislature in construing an Act, but it is not permissible to enter
into fanciful dissertations of social philosophy in discovering
that intention. It is true that lawyers are to be excluded, but
there is no indication that they are to be excluded simply
because they are lawyers....."
In Sarbeswar Bardoloi Vs. U.K.Gohain, Judge, Industrial
Tribunal, Assam and another A.I.R. 1955 Assam 148, a Division Bench has
examined the question, "whether a legal practitioner, who is a legal advisor
of an Association is entitled to represent employer in a industrial dispute
before the Labour Court." Though the matter was remitted back to the
Industrial Tribunal to decide the question in the light of observations made
LPA No. 250 of 2009 35
above to produce evidence on the question of controversy, but the following
principles were enumerated-
"As to what are the qualifications or distinguishing marks of an
officer of an association of employers the matter is not free from
difficulty. The word "officer" has not been defined in the Act.
It does not admit of any easy definition. In the absence of any
definition dictionaries may be of some assistance though the
meaning assigned to the expression in dictionaries may not be
binding on the Courts. The Courts have to ascertain the
meanings of terms with reference to the context in which they
occur. Even so, the meaning that an expression bears according
to dictionaries may afford guidance and assistance in
ascertaining the import and connotation of the expression, the
meaning of which is in dispute. In this case, Mr. Chaudhuri has
referred us to the meaning of the expression given in the Oxford
Dictionary. The expression 'officer' in the dictionary sense
means one who holds an office. In relation to companies or
societies, it is a person who holds and takes part in the
management or direction of a society or institution, for instance,
one who is holding the office of President, Treasurer or
Secretary, Associations and corporate bodies have normally
these officers. But the list is not exhaustive. A practising
lawyer may conceivably be an officer, but the description as
legal adviser without reference to the terms of his appointment
and the duties of his office would not be enough for a finding
that he is an officer of the company. The statement is no doubt
LPA No. 250 of 2009 36
negative in character. But a positive rule covering all cases is
not at all easy to formulate and each case has to be decided on its
own facts after examining the terms of the relationship between
the legal practitioner concerned and the association or the
company, of which he claims to be a member. What is necessary
is that the legal practitioner concerned must be a regular officer
of the employers' association. If on facts, he can be found to be
a regular officer, nothing short of an attempt to circumvent the
provisions of Section 36 (4) would disqualify him from
representing a member of his association."
It also held that no legal practitioner is disqualified from
representing a party by reason of fact alone that he happens to be legal
practitioner, if his case is covered by Clause (a) and (b) of Section 36(2). It
was found that it is conceivable that a legal practitioner may be an officer of
an Association of employers of which the employer who is a party to the
issue is a member. A legal practitioner can be both, an Officer of an
Association of employers under Clause (b) and also an Officer of Federation
of Association of Employers. His being a legal practitioner would not create
bar in the way of his representing the employers.
A Division Bench of Rajasthan High Court in a judgment
reported as Duduwala & Co. and others Vs. Industrial Tribunal and
another 1959(1) LLJ 75 has examined two points of law. The first being
"whether Section 36 is exhaustive of the right to represent before an
industrial court or tribunal and, therefore, no party can claim to be
represented through a person to whom he has given a special power of
attorney". The second question was "whether a practising lawyer, who holds
LPA No. 250 of 2009 37
one of the capacities as described in Clause (a), (b) and (c) of Section 36(2),
can be prohibited from appearing before an industrial tribunal on the ground
that his appointment was a circumvention of the provisions of sub-section
(4)". It may be noticed at this stage that the said judgment has met the
approval of the Hon'ble Supreme Court in respect of first question in the
judgment reported as Paradip Port Trust (supra). But in respect of second
question, relying upon a Division Bench judgment of Assam in Sarbeswar
Bardoloi Vs. Industrial Tribunal, Assam and another AIR 1955 Assam 148
and a Bombay High Court judgment in Alembic Chemical Works Company
Ltd. And another Vs. P.D.Vyas and another 1954-II LLJ 148, it was held to
the following effect :
"It cannot be said that there is moral turpitude attaching to a
lawyer appearing before an industrial tribunal. Even sub-section
(4) recognizes that lawyers can appear before industrial tribunals
with the permission of the tribunal and the consent of the parties.
There is nothing, therefore, inherently wrong in lawyers
appearing before such tribunals. Further, there are authorities
which lay down that if a lawyer fulfils the conditions laid down
in sub-section (1) and (2), he has a right to represent the
employer or the employee. We cannot see why a distinction
should be made on the theory of circumvention and a lawyer
should be permitted to appear for the employer of the employee
if he has been holding one of the offices mentioned in sub-
section (1) or (2) before the dispute arose, but should not be so
allowed to appear if he was elected or appointed to the office
after the dispute......"
LPA No. 250 of 2009 38
In Alembic Chemical Works Company Ltd. Case (supra), a
learned Single Judge of Bombay High Court has held that Section 36 is not
exhaustive and there are cases outside Section 36 in which the parties would
be entitled to be represented in a manner other than the manner set out in sub-
section (1) and (2) of Section 36. While considering sub-section (1) and (2)
of Section 36, it held that an officer of any trade union, as referred to in sub-
section (1) or an officer or Director of a Corporation, referred to in sub-
section (2) is entitled to be represented by the procedure governing the
tribunal even though he happens to be a legal practitioner. It pre-supposes
that such an officer is a regular officer either of the trade union or the
association or in the case of an officer of a corporation a regular officer of the
corporation, and in the case of director that he is a bona fide director. It was
held that if a legal practitioner is transformed into an officer of a registered
trade union or of an association of employees or of a corporation or is
appointed a director of a corporation, in order to get over the disability
imposed on a legal practitioner representing a party, then such a person shall
not be allowed to appear and represent a party. It was held to the following
effect :
".....Therefore, it appears to me that if an officer of any trade
union who is referred to in sub-section 36(1) as qualified to
represent a workman or an officer of an association of
employees who is qualified to represent an employer under sub-
section (2 or an officer or director of a corporation through
whom a corporation is entitled to be represented by the
procedure governing the tribunal happens to be a legal
practitioner, that fact by itself cannot disqualify him from
LPA No. 250 of 2009 39
appearing before the tribunal. But this presupposes that such an
officer is a regular officer either of the trade union or the
association or in the case of an officer of a corporation a regular
officer of the corporation, and in the case of a director that he is
a bona fide director not elected a director merely for the
purposes of enabling him to appear in a pending proceeding
before a tribunal. In other words, if a legal practitioner is
transformed into an officer of a registered trade union or of an
association of employees or of a corporation or is appointed a
director of a corporation, in order to get over the disability
imposed on a legal practitioner representing a party, then such a
person shall not be allowed to appear and represent a party. But
short of an intention to circumvent the provisions of Section 36
(4) if a legal practitioner is ordinarily a regular officer either of a
trade union or an association of employees referred to in Section
36(1) and (2) or of a corporation or if he is a director bona fide
appointed as a director, I see nothing in sub-section (4) to
prevent his appearing on behalf of the party merely by reason of
the fact that he happens to be a legal practitioner."
A Single Bench of this Court in a judgment reported as M/s
Delite Cinema and others Vs. Rameshwar Dyal and another AIR 1959
Punjab 189, quoted with approval from the judgment of Rajasthan High
Court. This Court was dealing with a case of an officer of a trade union, as
per the provisions of Section 36(1) in force at that time. It was held that a
practising lawyer, who holds any of the capacities, mentioned in Section 36
LPA No. 250 of 2009 40
(1) and (2) is entitled to represent the workmen or the employer as the case
may be. It was held to the following effect :
"(13) xx xx xx
The learned counsel for the petitioner has, however,
argued that if an officer of the Trade Union is a legal practitioner
of this Court, then he is debarred under Section 36(4) of the
Industrial Disputes Act, 1947. It has, however, been held
repeatedly that a practising lawyer who holds any of the
capacities mentioned in Section 36, sub-section (1) or sub-
section (2) is entitled to represent the workmen or the employers
as the case may be. Wanchoo C.J. in Duduwala and Co. Vs.
Industrial Tribunal, AIR 1958 Raj. 20 has observed :
"It is now well settled that a lawyer can appear before an
Industrial Tribunal if he holds one of the capacities
mentioned in sub-section (1) or sub-section (2) of Section
36 and his being a practising lawyer will not be a
disqualification for his so appearing".
(14) I am in respectful agreement with this observation. I,
therefore, reject this contention of the learned counsel."
The question before the Division Bench of Bombay High Court
in a judgment reported as Khadilkar (K.K.) Vs. Indian Hume Pipe Company
Ltd., Bombay and another 1967-I L.L.J. 139 was that "Whether Section 36
is exhaustive in the manner of representation by or on behalf of company or a
corporation under Section 36(2) of the Act". It was held while approving the
judgment in Alembic Chemical Works Company Ltd. Case (supra) that
Section 36 is not exhaustive and it would be open to the employer to be
LPA No. 250 of 2009 41
represented in the proceedings under the Act in a manner other than that
specified in clause (a), (b) and (c) of sub-section 2 of Section 36. While
considering clause (c) of Section 36(2), it was observed that the company
would be entitled to be represented by an Officer of any association of
employers connected with the industry in which company is engaged or by
other employer engaged in the particular industry. Therefore, to compel a
company to be represented in dispute with its worker by an employer
engaged in similar industry would often mean the completion to engage a
rival in business. It proceeded ahead to hold as under :
"It is difficult to appreciate any logic behind the intention to
make the provisions of Sub-section (2) exhaustive. Sub-section
(2) clearly confers upon an employer the right to be represented
in a proceeding under the Act, by an agent. If representation
through an agent is permissible, there would be no reason for
restricting the employer's choice of an agent. The reason why the
three categories are specifically mentioned in Sub-section (2) is
that the legislature wanted to confer an unqualified right on an
employer to be represented by the class of persons mentioned in
the three clauses of Sub- section (2). Under S. 11 of the Act, the
tribunal can follow such procedure as it thinks fit which includes
the right to determine the mode of representation which a party
before it may adopt. The employer, however, is entitled to tell
the tribunal that he wants to be represented by any of the persons
mentioned in Cls. (a), (b) and (c) of Sub-section (2) and the
tribunal would have no right to say that it will not recognize that
form of representation. Thus, the object of Sub-section (2) is to
LPA No. 250 of 2009 42
create a right in an employer to be represented by a class of
persons and not to restrict the right of representation to the
classes enumerated.
xx xx
On the construction of the words used in S. 36 of the Act we are,
therefore, of the opinion, that Cls. (a), (b) and (c) of Sub-section
(2) are not exhaustive of the right of an employer to be
represented in a proceeding under the Act. Those clauses are
devised merely to create an unqualified right in an employer to
be represented by a class of persons. They do not take away his
right to be represented in any other lawful manner.
xx xx
In the result, we are of the opinion that the provisions contained
in S.36(2) of the Industrial Disputes Act, 1947, are not
exhaustive. It is, therefore, open to an employer to seek to be
represented in a proceeding under the Act by a person other than
those mentioned in Cls. (a), (b) and (c) of Sub- section (2). We
might only add that the exercise of this right is subject to the
discretion of the authority concerned to deny to a particular
person the right of audience. This discretion which flows from S.
11 of the Act, which gives to the tribunal the right to regulate its
procedure must of course be used judicially.
Section VII, of Rules on standards of professional (Chapter II,
Part VI) of Bar Council of India Rules at this stage needs to be extracted:
Section VII- Restriction on other Employments
LPA No. 250 of 2009 43
47. An advocate shall not personally engage in any business; but
he may be a sleeping partner in a firm doing business provided
that in the opinion of the appropriate State Bar Council, the
nature of the business is not inconsistent with the dignity of the
profession.
48. An advocate may be Director or Chairman of the Board of
Directors of a company with or without any ordinarily sitting
fee, provided none of his duties are of an executive character.
An advocate shall not be a Managing Director or a Secretary of
any company.
49. An advocate shall not be a full-time salaried employee of any
person, government, firm, corporation or concern, so long as he
continues to practise, and shall, on taking up any such
employment, intimate the fact to the Bar Council on whose roll
his name appears and shall thereupon cease to practise as an
advocate so long as he continues in such employment.
A legal practitioner is defined in Section 2 (i) of Advocates Act,
1961 to mean an advocate, Vakil, a pleader, mukhtiar or revenue agent.
Under Section VII of Bar Council of India Rules, as reproduced above, an
Advocate is permitted to be a Director or Chairman of the Board of Directors
of a company with or without any ordinary sitting fee. He shall not be a
managing director or a secretary of any company. An advocate shall not be
full time salaried employee of any person.
Still further, there is no specific statute regulating the formation
of Association of the employers. The employers can form an Association and
get the same registered under the Societies Registration Act, 1863; can form
LPA No. 250 of 2009 44
a company and also seek deletion of the word Limited in its name in terms of
Section 25 of the Companies Act, 1956, if such Company is formed for
promoting commerce, art, science, religion, charity or any other useful
objects. Such Association can be unregistered body as well as there is
nothing in Section 36 of the Act, which provides that it has to be a registered
Association of employers. Though, sub-Section (1) of Section 36 talks about
registered trade union, but sub Section (2) does not refer to an Association of
the employers as a registered Association. Therefore, an unregistered
Association of employers also falls within the scope of sub-Section (2) of
Section 36 of the Act.
In Paradip Port Trust's case (supra), one Shri T. Mishra, a legal
consultant, sought to represent the employer-Trust. He sought to appear
before the Tribunal on the basis of power of attorney executed by Chairman
of the Trust. The Tribunal, the decision of which was subject matter of
challenge before the Hon'ble Supreme Court, examined the terms and
conditions of appointment of Shri T. Mishra and held that "his duties and the
restrictions on his practice which have been extracted above and the terms as
to his professional fees etc. indicate that the relationship of the first party and
Shri Mishra is clearly that of a client and a lawyer and not that of employer
and employee. Hence, Shri Mishra cannot be said to be Officer of the first
party". The Supreme Court while considering the scope of sub-section 2 of
Section 36, inter alia, returned a finding that companies and corporations are
not confined to representation of their cases only through the officers
specified in sub-section (2) of Section 36 of the Act. They can be
represented by their Directors or their own officers authorized to act on that
behalf in a lawful manner provided it is not contrary to any provision of the
LPA No. 250 of 2009 45
Act. This would not, however, mean that the companies and corporations,
and for the matter of that any party, are free to engage legal practitioners by
means of a special power of attorney to represent their interests before the
Tribunals without consent of the opposite party and leave of the Tribunal. It
was, thereafter, the Court held to the following effect:
16. If, however, a legal practitioner is appointed as an
officer of a company or corporation and is in an 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 a
legal practitioner. The fact that a person is a legal
practitioner will not affect the position if the qualifications
LPA No. 250 of 2009 46
specified in Section 36(1) and Section 36(2) are fulfilled
by him." (Emphasis Supplied)
xx xx
25. In the appeal before us we find that the Tribunal
after considering the materials produced before it, held
that Shri T. Mishra could not claim to be an officer of the
corporation simply because he was a legal consultant of
the Trust. The Tribunal came to this conclusion after
examining the terms and conditions governing the
relationship of Shri Mishra 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 Mishra'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 cases
there is no absolute ban to appear even against the Port.
The 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 Mishra cannot be held to be an officer of
the Trust.
26. A lawyer, simpliciter, cannot appear before an
Industrial tribunal without the consent of the opposite
party and leave of the Tribunal merely by virtue of a
LPA No. 250 of 2009 47
power of attorney executed by a party. A lawyer can
appear before the Tribunal in the capacity of an office
bearer of a registered trade union or an officer of
association of employers and no consent of the other side
and leave of the Tribunal will, then, be necessary.
The Supreme Court approved the view of Calcutta and Bombay
High Court in Hall & Anderson Ltd. Vs.S.K.Neogi and another and
Khadilkar (K.K.) cases (supra), in holding that Section 36 is not exhaustive.
The judgment of Rajasthan High Court reported as Duduwala and Co. Vs.
Industrial Tribunal, AIR 1958 Raj. 20 was not approved to the extent it held
that Section 36 is not exhaustive. A perusal of the above extract would show
that Shri Mishra though a retainer for the employer-Trust was entitled to fix
fee for appearance in cases, but he could appear even against the Trust. It
was also found that Shri Mishra was neither in the pay of the company nor
under its control and enjoyed freedom as any another legal practitioner to
accept cases from other parties. In para 26, it has been categorically held that
a lawyer can appear before the Tribunal in the capacity of an officer bearer of
a registered trade union or an officer of association of employers and no
consent of the other side and leave of the Tribunal will, then, be necessary.
The restrictive meaning to the word 'officer' as a person, who is in full time
employment and drawing pay from the employer is not discernible from the
said conclusion. In terms of Section VII of the Bar Council of India Rules, as
reproduced above, the restriction on the legal practitioner is for appointment
as Managing Director or a Secretary of a Company. There is no prohibition
in the Bar Council of India Rules that a legal practitioner cannot be an officer
LPA No. 250 of 2009 48
of an association, when he does not draw any pay and allowances in such
capacity.
The above judgment considers three situations (i) When 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; (ii) If a
legal practitioner is an officer of an Association of employers or of a
federation of such association; (iii) an office bearer of a trade union or a
member of its executive, even though he is a legal practitioner. The legal
practitioners falling in the last two categories are entitled to represent either
the employer or the employee. The right of a legal practitioner falling in
second category is derived form the words in italics in the above extract from
the Supreme Court Judgment. The stand that the legal practitioner as an
Officer of an Association of employer or Federation of such Association can
only be an employee as in first category is primarily based upon the use of
word "similarly" in the paragraph extracted above. But in my opinion, the
word similarly has been used to consider another situation and not to put an
officer of an Association at par with the first category. It goes without saying
that if a person takes up full time employment, even if he was enrolled as a
legal practitioner at one point of time will not have the right to practice as an
Advocate in terms of Clause 49 of the Bar Council of India Rules. Such legal
practitioner would fall within the first category. As per the Supreme Court
Judgment, the legal practitioner in the above two cases i.e. an officer of an
Association or an office-bearer of a trade union are entitled to appear before
the Industrial Tribunal or a Labour Court not in the capacity of a legal
practitioner but as an officer of the association. The fact that he is a legal
LPA No. 250 of 2009 49
practitioner will not affect the position if the qualifications specified in
Section 36(1) and 36(2) are fulfilled by him.
The judgment in Paradip Port Trust's case (supra) came up for
consideration firstly before the Karnataka High Court in Hotel Ashok Vs.
Addl. Labour Court, Bangalore & another, 1984 Vol. 64 FLR 1. The
dictionary meaning of word 'officer' from the dictionaries was considered
and it was held that the word 'officer' includes two categories of persons; (i)
Those who hold employment or appointment of responsibility under a public
corporation, municipal corporation, institution, etc.; and (ii) those who are
members of a Governing body by whatever name it is called, such as
managing committee, board of directors, executive committee, etc.. It was
held that the word 'officer' is a wider import in that it includes not only
those, who are appointed to a post of responsibility, but it includes persons
elected or nominated to a governing body or executive or managing
committee in accordance with the constitution or bye-law of the concerned
institution or body. The relevant extract from the aforesaid judgment reads as
under :
"10. The meaning of the word 'Officer' is given at page 82 of
Volume 7 of the Oxford English Dictionary. While various
shades of meaning of the word are given therein, the meaning
which are apposite for the interpretation of S.36 of the Act read:
'Officer' * * *
2. One who holds a public, civil or ecclesiastical office; a
servant or minister of king, as one of the great
functionaries of royal house-hold, etc., a person
authoritatively appointed or elected to exercise some
LPA No. 250 of 2009 50
functions pertaining to public life, or to take part in the
administration of municipal government, the management
or direction of a public corporation, institution, etc. In
early use, applied esp. to persons engaged in the
administration of law or justice.
***
A person holding office and taking part in the
management or direction of a Society or Institution, esp.
one holding the office of president, treasurer or secretary;
an office-bearer.
The meaning indicates that inter alia two categories of person
fall within the meaning of the word 'officer'
i. Those who hold employment or appointment of
responsibility under a public corporation, municipal
corporation, institution, etc. and
ii. those who are members of a Governing body by
whatever name it is called, such as managing
committee, board of directors, executive committee,
etc., of a public corporation, company institution,
organisation, etc. in whom the management of the
affairs of the concerned body is vested, either as
member, director etc., or as president, chairman, Vice-
chairman, secretary, treasurer, etc.
11. One distinguishing feature between the two categories of
persons referred to above is in the first category i.e., in the case
of persons, who are appointed to a post, there would be a
LPA No. 250 of 2009 51
relationship of employer and employee between the body or
authority, who appoints and the appointee, whereas in the case
of 'office bearer' i.e. those elected or nominated to an office
connected with the governance or management of the affairs of a
company, corporation, organisation etc., there would be no
relationship of master and servant.
12. The word 'officer' is a wider import in that it includes not
only those, who are appointed to a post of responsibility, but it
includes persons elected or nominated to a governing body or
executive or managing committee in accordance with the
constitution or bye-law of the concerned institution or body.
(emphasis supplied)
13. Thus, while the expression 'office bearer' used in S.36(1)
of the Act has a restricted meaning, namely, it covers only
persons, who are members of the executive and other office
bearers of a trade union such as President, Vice-president,
Secretary, etc., the expression 'officer' used in sub-sec.(2) of
S.36 has a wider meaning. It includes employees appointed to
positions of responsibility as also office bearers elected or
nominated as members of the managing committee or executive
committee and as President, Vice-president, Secretary etc.,
depending upon the constitution or bye-law or Memorandum of
Association of the concerned body.
xxx xxx xxx
17. In the light of the above discussion, I am of the opinion
that the 'Officer' used in S.36(2) of the Act includes both
LPA No. 250 of 2009 52
categories of persons, namely, employees, who hold responsible
posts, under the Employers Association of which the concerned
employer is a member of a Federation to which the Association
is affiliated and legal practitioners, who are office bearers of
such Association or Federation.
xxx xxx xxx
21. It would not also be possible to hold that the expression
'officer' used in S.36(2) means only employees and that it does
not include 'office bearers' such an interpretation of the
provision would at once bring the provision into conflict with
Art.14 of the Constitution for, the effect of such interpretation
would be, one party to a dispute, namely work-men would have
the right of being represented through a trained practising lawyer
by making him an office bearer of trade union and another party
to the same dispute would be disentitled to be represented by a
trained lawyer even if he were to be an office-bearer of
employer's association, resulting in patent discrimination against
the latter. It is a cardinal rule of construction that when there are
two plausible interpretations of a provision, the one which
comes into conflict with the provisions of the Constitution
should be eschewed and the other which does not should be
preferred......."
A Single Bench of Bombay High Court in a judgment reported
as Associated Cement Companies Ltd. Vs. Associated Cement Staff Union
and another 2002(92) FLR 148 while examining the judgments of the
Supreme Court in Paradip Port Trust's case, held to the following effect :
LPA No. 250 of 2009 53
"9. The most important aspect however, is the Industrial
Disputes Act. The word workmen has been defined under
Section 2(s) on the one had and employer under Section 2(g) on
the other. A person to be an Employer must satisfy the tests as
set out in Section 2(g) of the Industrial Disputes Act. Similarly,
the workmen under Section 2 (s) includes all persons. However,
for the purpose of the Industrial Disputes Act certain categories
or classes are excluded as set out therein. Reference need not be
made to the Special categories, but to those holding supervisory
posts and drawing salary above the minimum laid down under
the Act or those employed mainly in a managerial or
administrative capacity. The word 'officer' has not been used
under the Industrial Disputes Act. Therefore, it would be clear
from this that the word 'Officer' in Section 36 would have to be
ready differently in construing the relationship of Employer and
of workmen under Section 2 (s) of the Industrial Disputes Act. A
workman in its widest amplitude includes all persons including
supervisory but excludes those employed mainly in managerial
or administrative capacity, who are denied the protection of the
Industrial Disputes Act. This to my mind is internal evidence in
the Act itself, to show that the expression "officer" is distinct
from the expression workman or those employed in supervisory,
managerial or administrative where the expression is used, is in
Section 32 of the Industrial Disputes Act in the matter of
offences committed by companies. The word officer there is
used alongwith Director, manager amongst others as defined
LPA No. 250 of 2009 54
under the Companies Act so as to specifically hold them liable
for offences committed by the company.
The expression "Officer" under the Trade Unions Act before its
amendment meant those holding office in the Trade Union.
Those holding office in the Trade Union would be the office
bearers. The same meaning will have to be assigned to "Officer"
of Association to mean that those holding office in the
Association, Trade Union or any Association of employers by
themselves can be Employers if the activities that they carry on
fall under the expression "Industry". Therefore, they can also
have persons, who will include supervisors, and persons
working in Managerial or administrative capacity. Therefore, the
expression "Officers" in Section 36 of the Industrial Disputes
Act, cannot be identified with those in employment of the
Employer whether Union or Association. They must connote
something different or distinct. That would be satisfied if it is
held that the expression "Officer" means those who constitute
the executive of Association or in other words its office bearers.
This to my mind makes it abundantly clear that what Parliament
meant when the Act was enacted and even after its amendment
vide amendment of 1971 that the word "office bearer" and
"Officer" has been used differently from those in employment of
the employer. All those in administrative work who also are
workmen but are denied the protection of the Industrial Disputes
Act. The definition of workman, has not included the expression
"Officer" unlike the Companies Act. I have therefore, no
LPA No. 250 of 2009 55
hesitation to hold that the expression Officer in Section 36(2)
would mean those holding Office in the Association namely
controlling affairs of the Association and that would include the
Executive Committee of the Association or its office bearers.
11....... With the above discussion, the first question must be
answered as under :
Any Officer or Member of the Executive Committee or the
Office Bearers of Association, if legal practitioner, will be
entitled to represent the employer in all cases where the
employer can be represented by the Association of Employers or
Federation of Employers as contemplated by Section 36(2) of
the Act. The labour Court or Tribunal in such an enquiry will
only examine the regulations, bye-laws, memorandum of
Association or the like to find out whether the Office held exists,
either as a member of the Executive or as an officer in the
Executive Committee. If a person holds such an office and that
is certified by producing a letter from the President or the
Secretary or a person authorized by the Association, that to my
mind would be sufficient proof that such person would be
entitled to appear and represent the employer. The matter then
can be disposed off on that basis. The Association must be
legally recognized in that it must be registered under son law in
force which provides for registration or recognition of such an
Association."
The said judgment has been affirmed by the Division Bench in
appeal in a judgment reported as Associated Cement Staff Union Vs.
LPA No. 250 of 2009 56
Associated Cement Companies Ltd. And others 2002-II LLJ 768. In appeal,
it was held to the following effect :
"10. In our view it is clear that the word 'officer' was substituted
as aforesaid so as to include, in relation to workmen, any
member of the executive committee or other office bearer,
probable having regard to the structure of trade unions. It does
not, however, follow that because the word 'officer' in relation to
representative of employer has not been amended, it excludes a
mere member of the executive committee of the association of
employers. The word 'officer' must be given its plain meaning,
that is any person who holds an office of an appointed or elected
functionary. We are, therefore, of the view that a member of the
executive committee of an association of employers must be
taken to be an officer of the employers association."
A Single Judge of Delhi High Court in a judgment reported as
Management, Associated Cement Cos. Ltd. Vs. Workman, Smt. Saroj
Arora 2001(88) FLR 914 has also held to the following effect :
"8. It seems that Tribunal had messed up various provisions
of Section 36 under the belief that sub-section (3) imposed a
blanket bar for a legal practitioner to represent the employer
which could be only waived with the consent of the other party
or with the leave of the Court/Tribunal under sub-section (4),
ignoring that provision of sub-Sections (1) and (2) of Section 36
provided representation by other categories of persons who
could be legal practitioner or something more at the same time.
LPA No. 250 of 2009 57
9. At this stage, Mr. Vohra, learned counsel for the
respondent-workman disputed that Mr. Sameer Parkash,
Advocate was the President or Treasurer of an Officer on special
duty of the Industrial and Commercial Association of India. I am
afraid it would not be possible to examine his plea now as he
had failed to resist before the Tribunal. Nor had Tribunal
examined this aspect of the matter. In fact, Tribunal had
disregarded his being so in the light of judgment reported in
State of Punjab Vs. Gurdarshan Singh Grewal, which was
distinguishable. All the same petitioner or alternatively Mr.
Sameer Parkash, Advocate is required to file his credentials
supporting his claim of being an officer of employer Association
and the membership of petitioner thereof before Tribunal within
two weeks from receipt of this order."
Though the judgment of Calcutta High Court in M/s Infar
(India) Ltd. Vs. Madan Mohan Ghosh 2001(1) LLJ 453 has been set aside
by the Hon'ble Supreme Court in a judgment reported as Madan Mohan
Ghosh Vs. Infar (India) Ltd. 2001-II-LLJ 1547. But a reading of the order
of the Hon'ble Supreme Court shows that the matter has been remitted to the
Industrial Tribunal for fresh consideration as to whether Shri Amar Roy, a
legal practitioner, was eligible to represent the employer. It was alleged on
behalf of the workmen that Shri Amar Roy was not the President of the
Association of which employer was a member and, therefore, he was
ineligible to represent the employer. The tribunal did not call upon the
employer to produce certain documents required by the workmen for
adjudication of the matter. The tribunal did not found any merit in the
LPA No. 250 of 2009 58
objection against the appearance of Shri Amar Roy. The learned Single Judge
held that Amar Roy may be an office bearer of the employers' association,
but not an officer of the said association. Therefore, he was not eligible to
represent the workmen. In appeal the order passed by the learned Single
Judge was set aside. The Hon'ble Supreme Court has held that the order
passed by the Tribunal was made without proper enquiry into the matter and
not based upon any acceptable material. There is no comment in the order
passed by the Supreme Court on the finding recorded by the Calcutta High
Court that the expression "officer" as given in Concise Oxford Dictionary
and Webster's New World Dictionary would include any person, who is
holding office of any society or association or authority.
Similarly, a Single Judge of Karnataka High Court in a judgment
reported as Steel Authority of India Ltd., Bangalore Vs. B. Yellappa 2007
(114) FLR 1022, has considered the question whether the legal practitioners,
who are office bearers of Federation or Association of Employers are entitled
to represent the employer, wherein it was held to the following effect :
".....It is stated that in terms of the memorandum of association
and the rules governing the said association, petitioner is entitled
to be represented by the office-bearers of the said association.
Petitioner has also produced the memorandum of articles of the
association. If that is so, Section 36(2) clearly provides for
engaging the services of the officers of the company or office-
bearers of the association or of a federation to which petitioner is
a member notwithstanding the said office or office-bearer is
incidentally a law graduate or practising lawyer. This aspect of
the matter has been settled not only by the decision of the Apex
LPA No. 250 of 2009 59
Court, but also the decision of this Court which is followed
subsequently, in a later judgment of this Court in the case of
Katwa Infotech Limited, wherein this Court has held that,
Section 36(4) of the Act will not prevent the company from
engaging the services of officer-bearers of the association or a
federation. That being the position of law and in this case
petitioner having shown that it is a member of ICEA and the
persons sought to be represented being officer-bearers of the
said association, Section 36(4) does not prevent them from
representing the petitioner notwithstanding they are Legal
Practitioners....."
A Division bench of Madras High Court in a judgment reported
as Rajamani R. Vs. Presiding Officer, II Additional Labour Court,
Chennai and another 2007-II LLJ 704, considered the argument of the
workmen that Sh. N. Balasubramanian is a practising lawyer and not a paid
officer, therefore, not entitled to represent the employer. It was held to the
following effect :
"13. In the present case, the question is whether Mr. N.
Balasubramaniam, who is the member of the managing
committee of the association is an "officer" or not. The
argument of the appellant is that the "officer" does not include
the member of the managing committee. This does not appear to
be correct interpretation because the dictionary meaning of the
word "officer" includes any person who holds the office. The
expression "officer" has been defined in Concise Oxford
Dictionary to mean "holder of public, civil or ecclesiastical
LPA No. 250 of 2009 60
office, sovereign's servant or minister appointed or elected
functionary". Similarly in Webster's New World Dictionary (2nd
Concise Edition) "officer" means "any one holding an office or
position of authority in a Government, business, society etc.".
Therefore, any person who is holding the office of any society or
association or authority can be included in the expression
"officer".
14. The word "officer" is of a wider import in that it includes
not only those, who are appointed to a post of responsibility, but
it includes persons elected or nominated to a governing body or
executive or managing committee in accordance with the
constitution or bye-law of the concerned institution or body."
The some of the judgments have taken contrary view that the
word 'officer' in Section 36(2) of the Act means a person, who is in full time
employment of a company or an association. The leading judgment taking
the said view is that of a Full Bench of Andhra Pradesh High Court reported
as A.P.Power Diploma Engineers' Association Vs. A.P.S.E.Board 1995 LIJ
2654. The first submission in the aforesaid case was that the association of
employers or federation of association of employers only refers to industrial
employers and that association should be exclusively of such employers
alone. There is no dispute about such finding. While considering the
question as to whether an Advocate designated as Honorary Joint Secretary
can claim to be an officer of the federation, reference was made to Article 20
(2) (k)(2) of the Memorandum of Association of the employers and it was
found that the office of the Honorary Secretary has not been defined in such
Articles. The managing committee of the federation does not include
LPA No. 250 of 2009 61
Honorary Secretaries. It was also found that the Advocates were enrolled as
members in individual category and the purpose of the admission of such
members is to represent the cases of its members for which purpose a panel
of advocates called Honorary Secretaries is maintained. It was held to the
following effect :
"19. The provisions of the article as also the evidence of RW 1
manifestly shows that Mr. Mohan Reddy did not hold any post
of the office of respondent No.2. It was conceded by RW 1 that
the post of Honorary Secretary is not one in the Managing
Committee. There is no pay attached to the post. There is no
control over him of the federation and he is in no way
responsible for his actions and conduct to respondent No.2. As a
matter of fact the Memorandum and Articles of Association and
the evidence of RW 1 makes it abundantly clear that drawing up
of such a panel of advocates and designating them as Honorary
Secretaries is nothing but an attempt to overcome the provisions
of S. 36(4) of the Act and the relationship simpliciter of a lawyer
and a client, otherwise barred from being taken advantage of
unless consented by the workmen, is sought to be white-washed
to make it appear as one authorized under another provision of
the statute...... "
In the aforesaid judgment, it was observed that the question
whether the word 'officer' would include also 'office bearer' within the ambit
of Section 36(2) does not arise for consideration in the aforesaid case, as Shri
Mohan Reddy not found to be not a member of the Managing Committee
and, thus, not an office bearer.
LPA No. 250 of 2009 62
The Division Bench of Mysore High Court in a judgment
reported as Workmen of B.R.D.G. & P. Factory Vs. B.R.D.G. & P. Factory
1969 (2) LLJ 25, was considering a case, where the legal practitioner has
earlier sought permission of Labour Court to appear in cases as an Advocate.
He was not permitted to appear by the Labour Court. Later, the said legal
practitioner sought to appear as representative on the basis of resolution of
Chamber of Commerce and Industry. It was resolved that the said legal
practitioner can appear before any of the Government Authorities including
Labour Court, Industrial Tribunals to represent the members of Karnataka
Chamber of Commerce and Industry. Such legal practitioner was permitted
to charge individual industrial concerns for the services rendered. Thus, it
was found that such legal practitioner is not an officer of the Chamber of
Commerce and Industry. The Bench has quoted from Sarkeshwar Bardoloi's
(supra) that a practising lawyer may not conceivably be an officer, but the
description as a legal adviser without reference to the terms of his
appointment and the duties of his office would not be enough for finding that
he is an officer of the company. It quoted Justice Deka, who delivered the
concurrent finding to the following effect :
"Holding of office would precisely indicate some sort of official
responsibilities than that of a law adviser. Where he (the officer)
must have some in the company or concern, some pay or
remuneration attached to the office, terms of appointment or
discharge, period or tenure of appointment, or some
administrative responsibilities or obligation to render some
explanation for his conduct in discharge of the duties."
LPA No. 250 of 2009 63
A single Bench of Calcutta High Court in Bharat Petroleum
Corporation Limited Vs. The Presiding Officer, 1990 (2) LLJ 326 held that
the definition of word officer in the Societies Registration Act, 1863 cannot
be used to interpret the the word officer appearing in the Industrial Disputes
Act, 1947. It held that an ordinary member of the Executive Committee of the
Employers Association is not officer of the Association competent to
represent employer in view of the Dictionary meaning of word 'Officer'. The
judgment in Globe Theatre Pvt. Ltd vs Second Labour Court 1987(55)
Factory Law Reporter 443, was considered and held that in the aforesaid
case Vice President of the employers' association has sought to represent the
employer and even if he is a legal practitioner, he appears in the capacity of
an officer of an association and not in the capacity of a legal practitioner.
The said judgment was distinguished in Bharat Petroleum's case (supra) for
the reason that the legal practitioner in the case under consideration was not a
office bearer, but an ordinary executive manner.
In J.B.Transport Company and others Vs. Shankarlal @
Manaram Nathuji Patel 2000(1) LLJ 442 a Single Bench of Gujarat High
Court returned a finding that the legal practitioner must be in regular
appointment of an employers' association to become officer.
The Single Bench of Delhi High Court in Siemens Ltd. Vs.
K.K.Gupta 2006(1) RSJ 405, has followed the Full Bench judgment of
Andhra Pradesh High Court to return a finding that it was found that the legal
practitioners were not the officers of the association. As such legal
practitioners have no other function in the association except to represent the
various employers before the labour Court.
LPA No. 250 of 2009 64
The above discussion would show that most of the judgments on
the subject does not really address the issue raised in the present appeal and
are distinguishable for one or other reason. In the present case, the legal
secretary, the representative of the employer is part of management as
per Clause 20 of the Memorandum of Association. The relevant para reads
as under:
"20. MANAGEMENT
a) The affairs of the federation shall be managed by a
governing body to known as executive committee.
The said committee shall consist of the following
office bearers, who shall be nominated by the
President. The President shall be elected by ballot
after every three years, (i) President (ii) Vice
President, (iii) General Secretary, (iv) Cashier.
b) There shall be one Legal Secretary to look after the
legal interest of the members of the Labour and
industrial disputes. He shall be a permanent
member of the federation and shall be authorized to
represent the members of the federation or any
other person who shall be a member or the
federation affiliated to this federation.
c) Any other office bearer shall be nominated by the
President, who shall be the member of the
Executive Committee.
23. FUNCTIONS OF THE OFFICE BEARERS :
LPA No. 250 of 2009 65
A) President : xxx
D) Legal Secretary :
The Legal Secretary shall have charge of all
correspondence. He shall keep accounts of the assets,
credits and liabilities of the federation. He shall collect all
dues and grant receipts. He shall institute, prosecute and
defend suits and other proceedings in Labour office,
Labour Court, Labour Tribunal or in any Court of law or
elsewhere in arbitration proceedings on behalf of the
federation or the members or any other person who shall
be member of an association affiliated to the federation.
He shall be the permanent office bearer. Sh. B.P.Bansal
S/0 Sh. M.R.Bansal, 293-L Model Town, Ludhiana, shall
be the Legal Secretary of the Federation.
Keeping in view the dictionary meaning of officer as culled
down by the Karnataka High Court in Hotel Ashok's case supra and other
judgments, referred to above, the word 'officer' include two categories of
persons including the members of the governing body by whatever name
called. Such office need not be in full time employment of the employer.
The words "any member of the executive or other officer bearer" appearing
in clause (a), (b) and (c) of sub Section (1) of Section 36, were substituted for
the word an "Officer" by Central Act No.45 of 1971. Such amendment was
necessitated on account of the amendment in Trade Union Act, 1926 by
Central Act No.38 of 1964. The Objects and Reasons for substituting the
word 'Officer' in the Trade Union Act was that the word 'Officer' is not
considered appropriate in the case of trade unions. Since the Trade Union
LPA No. 250 of 2009 66
Act, 1926 is the only enactment in respect of registration of trade union and
the expression used in subsection 'a' is registered trade union, therefore, the
amendment in sub-Section (1) of Section 36 was to maintain parity with the
phraseology used in the Trade Union Act, 1926 alone.
The judgment interpreting the word officer appearing in sub-
section (1) prior to the amendment in 1971 and/or Sub Section (2) such as
judgment of this Court in M/s Delite Cinema and others; Assam High Court
in Sarbeswar Bardoloi; Calcutta High Court in Hall & Anderson's case;
Rajasthan High Court in Daduwalla's case; Bombay High Court in Alembic
Chemicals and in Khadilkar's case hold the field even after the judgment in
Paradip Port Trust' case. In fact, the judgment in Paradip Port Trust's case
has not changed the interpretation of sub-section 1 or sub-section 2 of
Section 36 of the Act in respect of the expression 'Officer' rendered by High
Courts. The principles, which have been laid down prior thereto continue to
apply with full force even after the decision in Paradip Port Trust' case.
Shri Bansal, the representative who has sought to represent
employer, is a legal practitioner and a member of the Bar Association. But
that does not debar him from becoming a Legal Secretary of Ludhiana
Commercial Undertakings & Establishments Association and to represent the
employer in proceedings under the Industrial Disputes Act, 1947 as an officer
of such association. Present is a case, where the employer has not sought
representation before the Industrial Tribunal by a legal practitioner on the
basis of power of attorney. The employer has sought representation in its
behalf not as a legal practitioner, but as an Officer of an association of which
employer is a member. Such association is an association of employers
alone, which is evident from the terms of the Constitution of the Association
LPA No. 250 of 2009 67
"Ludhiana Commercial Undertakings & Establishments Association",
Annexure R-2. The membership of such association is open to any person
having a firm, partnership, Joint Stock Company, cooperative societies,
corporation, joint family federation engaged in trade, commerce or industry.
The 'Legal Secretary' has been defined under Clause 3(h) of the Constitution
to mean the Secretary for the time being of the Federation. The fact that such
representative is a legal practitioner will not debar him from appearing before
the learned Labour Court as an Officer of the Association, which status is
distinct from that of a legal practitioner. A legal practitioner who is on pay
rolls of an employer ceases to be legal practitioner. Such person has no right
to practice as he is in full time employment of an employer. Therefore, a
legal practitioner cannot be an officer in full term employment.
The Full Bench of this Court in Indrasan Parsad Vs. Presiding
Officer, 2008 (1) SCT 522, has proceeded to decide the controversy as the
one of implied leave or consent. In that case, Shri S.S.Saini and Shri
N.S.Rajput were appearing on behalf of the Employer as office-bearers of an
Employers' Association but the issue has not been examined in the context of
right of an Officer of an Association to appear to represent an employer under
Section 36(2) of the Act. Therefore, the ratio in the aforesaid judgment does
not decide the controversy raised in the present appeal. It deals with the issue
of implied or express consent of the parties in permitting a legal practitioner
to appear before a Labour Court. Such proposition is beyond doubt.
In view of the above, I am of the opinion that the expression
"Officer" appearing in sub-section 2 of Section 36 includes not only a paid
employee of employer or association of employers, but also an officer, who is
in the management of the employers or association of the employers. Thus,
LPA No. 250 of 2009 68
such person has a right to represent the employer, not as legal practitioner,
but as an Officer in proceedings under the Industrial Tribunal Act, 1947.
November 13, 2009 (HEMANT GUPTA)
Vimal JUDGE
LPA No. 250 of 2009 68
ORDER
In view of the majority judgement, we hold that the expression 'Officer' used in Section 36(2)(a)(b) of the ID Act, 1947 would not include a legal practitioner within the meaning of Section 2(i) of the Advocates Act,1961 on the rolls of any State Bar Council established under the said Act.
Consequently, this appeal fails and is hereby dismissed. The matter shall stand remanded back to the Labour Court for a fresh order in accordance with law upon resumption of proceedings from the stage the objection to the appearance of Shri B.P. Bansal, was taken before the said Court.
(T.S. THAKUR) CHIEF JUSTICE (M.M. KUMAR) JUDGE (HEMANT GUPTA) JUDGE (KANWALJIT SINGH AHLUWALIA) JUDGE (JASWANT SINGH) November 13, 2009 JUDGE