Bombay High Court
Punjabi Ghasitaram Halwai Karachiwala vs Sahadeo Shivram Pawar And Ors. on 8 February, 1993
Equivalent citations: (1993)95BOMLR925, [1994(68)FLR528], (1994)ILLJ1022BOM
ORDER B.P. Saraf, J.
1. In order of the Labour Court, Bombay, refusing to grant leave to the petitioner to be represented by an advocate in the proceedings before it is the subject-matter of challenge in this writ petition.
2. The petitioner is a partnership firm. The first respondent is a workman who was employed by the petitioner. In course of the employment, some charges came to be levelled against the first respondent on the basis of which a charge-sheet was served on him. A domestic enquiry was conducted and he was found guilty by the Enquiry Officer. He was, therefore, dismissed from the service by the petitioner vide order dated 25-9-1984.
3. After his dismissal from service, the first respondent raised an industrial dispute under the Industrial Disputes Act, 1947 ("the Act") which was referred to the Labour Court, Bombay, for adjudication. The Labour Court, Bombay, for adjudication. The Labour Court issued notice dated 1-11-1985 to the first respondent requiring him to file his statement of claim before 15-11-1985. A copy of the said notice was also sent to the petitioner. The petitioner also received a notice dated 1-11-1985 from the Labour Court requiring it to file its written statement on or before 21-11-1985 in reply to the statement of claim. The petitioner received another notice dated 1-11-1985 from the Labour Court informing that the matter will be taken up for hearing on 26-11-1985. Similar notice was also sent to the first respondent. On 26-11-1985, when the matter was on board of the Fifth Labour Court, Bombay, on behalf of the petitioner one Mr. K. N. Kapoor, Advocate appeared before the Labour Court and filed his Vakalatnama. The first respondent, however, did not appear on that day. He was absent. He also did not file the statement of claim as directed by the notice dated 1-11-1983. The matter was adjourned to 7-1-1986. On that day Mr. K. N. Kapoor, Advocate again appeared before the Labour Court on behalf of the petitioner. One Mr. Shridhar Poojari, Advocate and Secretary of the Bombay Labour Union appeared on behalf of the first respondent. He also filed an objection to the appearance of Mr. K. N. Kapoor and Mr. Mohit Kapoor, Advocate on behalf of the petitioner on the ground that they were not having the representative character under Section 36 of the Industrial Disputes Act, 1947. The petitioner filed a detailed reply to the objection. In the reply, it was contended inter alia, that the first respondent having not raised any objection to the to the appearance of the Advocate on the earlier date, it could not be sustained at that stage. The representation by an advocate was also sought to be sustained on the principle of equity and natural justice. The petitioner also objected to the representation of first respondent by Mr. Shridhar Poojari, who too was an advocate on the ground that there was no union by the name of Bombay Labour Union of which Mr. Poojari was stated to be the Secretary, prevailing in the establishment of the petitioner.
4. The Labour Court heard the parties and considered the objection of the first respondent to the appearance of the Advocate on behalf of the petitioner and also the reply furnished by petitioner. Before the Labour Court, it was urged on behalf of the first respondent-workman that none of the notices of the Labour Court were ever served on him and that all the notices had, in fact, been taken by the employer (petitioner) itself. As such, he did not have any knowledge of previous dates. The Labour Court perused the notices and observed that the notices clearly confirmed the submission of the first respondent. The Labour Court also observed that as soon as the first respondent-workman came to know of the proceeding, he suo motu appeared before it on 7th January, 1986 and on the very same day filed its objection in writing to the appearance of Advocate Mr. K. N. Kapoor and Mr. Mohit Kapoor on behalf of the employer. On behalf of the petitioner, Mr. K. N. Kapoor, Advocate argued the case. His contention was that as no objection had been taken by the first respondent on 26-11-1985 when Vakalatnama had been filed by him an no order had been passed by the Court on the said Vakalatnama, it amounted to implied consent of the respondent and leave of the Court. This contention of the counsel of the petitioner did not find favour with the Labour Court. It observed that there was no consent of the other side at any stage. On the other hand, the undisputed position was that the workman raised objection to the representation of the petitioner through Advocate in writing immediately after entering appearance in the proceeding. The Labour Court, therefore, held that as per the provisions of Section 36(4) of the Act, the Advocate Shri K. N. Kapoor was not entitled to represent the petitioner-employer as an Advocate or legal practitioner. It is this order of the Labour Court which has been challenged by the petitioner by filing the present writ petition.
5. I have gone through the impugned order of the Labour Court. I have also heard the learned counsel of the petitioner. On a careful consideration of the facts and circumstances of the case and the relevant provisions of the law in this regard, I am of the opinion that the Labour Court did not commit any error in passing the impugned order. The thrust of the challenge of the petitioner appears to be on implied consent of the other party and implied leave of the Court. The submission is that the consent of the other party and leave of the Court need not be express - it may be implied and may be inferred from the facts of the case. In the present case, the petitioner seeks to draw such inference from the fact that the Advocate Mr. Kapoor had entered appearance on behalf of the petitioner without any objection from the first respondent and the Court. I have given my careful consideration to this submission but I find it very difficult to accept the same. Evidently, it is not one of those cases where the parties had been participating in the proceedings before the Labour Court and the Court had been proceeding with the case with the help of the Advocate representing one of the parties without any objection from the other. On the contrary, the clear finding in this cases is that the first respondent, who was the other side, was not even served. There is a further categorical finding to the fact that all the notices addressed to the first respondent had been taken by the petitioner himself. It is also clear in this case that no leave of the Court had ever been sought by the petitioner nor any order passed by the Court on the Vakalatnama filed by the Advocate for the petitioner. as soon as the first respondent came to know of the proceedings, he appeared before the Court, filed appearance through one Mr. Poojari, who was the Secretary of a Trade union - besides being an advocate, and filed objection in writing against the representation of the petitioner through Advocate. In such a factual situation, the submission of the petitioner based on implied consent of the other party does not have legs to stand. It, therefore, fails.
6. So far as leave of the Court is concerned, nothing is there to show that the leave of the Court was sought by the petitioner at any stage or that the Court ever applied its mind to this aspect of the matter when the Vakalatnama was filed. Taking a Vakalatnama filed on behalf of a party, on records cannot, at no stretch of imagination, be construed as implied leave of the Court. The question of implied leave of the Court in such a situation, therefore, does not arise. That being so both the conditions which, in fact, are conditions precedent for being represented by a legal practitioner are totally absent in this case.
7. The Counsel for the petitioner relied on the decision of this Court in MSCO (P) Ltd. v. S. D. Rane, (1982) I LLJ 434 and a decision of the Calcutta High Court in Reckit and Colman v. J. N. Maitra, in support of his contention that consent of the other party is implied in this case. It is, therefore necessary to briefly deal with these cases. However, before doing so, I deem it expedient to set out sub-sections (3) and (4) of Section 36 which deal with the representation of the parties in proceedings before the Labour Court etc., by a legal practitioner. These sub-section read :
(3) No party to a dispute shall be entitled to be represented by a legal practitioner in any conciliation proceedings under this Act or in any proceedings before a Court.
(4) In any proceeding before a Labour Court, Tribunal or National Tribunal, a party to a dispute may be represented by a legal practitioner with the consent of the other parties to the proceedings and with the leave of the Labour Court, Tribunal, as the case may be.
A bare reading of these two sub-sections makes it clear that no parties to a dispute is entitled to be represented by a legal practitioner in any proceeding under this Act or in any proceeding before the Labour Court except in cases falling under sub-section (4) on fulfilment of the conditions specified therein. These conditions are :
(i) Consent of the other parties to the proceedings : and
(ii) Leave of the Labour Court, Tribunal etc., as the case may be.
8. The question that arose for consideration before this Court in MSCO (P) Ltd. v. S. D. Rane, (1982 (1) LLJ 434) was whether the consent referred to in Section 36(4) has to be in writing or it can be inferred from the facts and circumstances of the case. On a careful analysis of the language of the two sub-sections and the scheme of the Act, this Court held (at 437) :
"Neither the said Act nor any of the rules made thereunder provide for the form or the manner in which the consent of the other party is to be given. Normally, any leave granted by a Court or a Tribunal would be in writing. Similarly, in ordinary cases, the consent of the other party would also be given in writing. But the question is whether from this does it follow that the consent of the other side or the leave of the Court must always be in writing. Sub-section (4) of S. 36 does not contain any such requirement, and, therefore, it cannot be held that an implied consent is negatived by the statute".
While arriving at the aforesaid conclusion, reliance was placed by this Court on its earlier Division Bench decision in Engineering Mazdoor Sabha v. M. R. Meher, (1966) I LLJ 580, wherein it had been held that the consent of the other side can be implied from the facts and circumstances of the case. To the same effect is the decision of the Calcutta High Court in Reckit and Colman v. J. N. Maitra, .
9. I have carefully considered the above decisions which, in my opinion, are clear authority for the proposition that the consent need not be in writing, it may be implied from the facts and circumstances of the case and the conduct of the parties and that consent once given cannot be retracted or revoked. Difficulties do arise only in the application of these principles to the facts of a given case. In Engineering Mazdoor Sabha (1966) I LLJ 580) (Bom.), no objection to the appearance of the advocate had been taken at the first hearing of the matter, objection taken at a later stage was turned down by the Tribunal. It was in such circumstances that it was held that even though the union had not given express consent to the appearance of the Advocate, it must be held to have given its consent impliedly by not objecting to the appearance of the Advocate. Similarly, in MSCO (P) Ltd. (1982 (1) LLJ 434) (Bom), from the facts of the case the consent was implicit. In Reckit and Colman the employer had informed the Industrial tribunal at the outset of its desire to be represented by the lawyer and no objection had been raised by the workman and the employer appeared through the lawyer. It was under such circumstances the High Court held that the workman cannot at subsequent stage of the proceeding with-draw its consent impliedly given by them. Thus, in this case, there was a clear implied authority by the workman. The facts of the present case are quite different. In this case, under the facts and circumstances set out above, question of implied consent or leave of the Court cannot arise at all. The mere filing of Vakalatnama by the counsel at a stage when the other party had not even been served cannot at any stretch of imagination by construed as "implied consent". The question of consent, express or implied can arise, only after the other party enters appearance - never before it. In that view of the matter, I do not find any infirmity in the impugned order of the Labour Court.
10. So far as the objection of the counsel for the petitioners to the appearance of Mr. Poojari on behalf of the first respondent-workman is concerned, the objection appears to be misconceived. The law is well settled that the two conditions laid down in Section 36(4) apply only when a party seeks representation through a legal practitioner qua legal practitioner. But when the legal practitioner appears in the capacity of an officer of the association in the case of an employer or in the capacity of an office bearer of the union in the case of a workman and not in the capacity of a legal practitioner, these restrictions do not apply. In such cases, he is entitled to represent under sub-sections (1) and (2) of Section 36. The fact that he is a legal practitioner will not affect his position if the qualifications specified in Sections 36(1) and 36(2) are fulfilled by him. See Paradip Port Trust v. Their Workmen, (1976) 2 LLJ 409 : (1976 LIC 1770) (SC). In the instant case, evidently Mr. Poojari represented the workman before the Labour Court in his capacity as an officer of the union. He is, therefore, entitled to do so under Section 36(1) of the Act. No objection can be taken to such representation by the employer on the ground of his being a legal practitioner as he did not represent in his capacity as legal practitioner.
11. In view of the foregoing discussions, I do not find any merit in this writ petition and the same, is, therefore, dismissed. The rule is, accordingly, discharged. The interim order shall stand vacated. Under the facts and in the circumstances of the case, I make no order as to costs.
12. Certified copy expedited.