Gujarat High Court
Manager-Gujarat vs Rajubhai on 28 March, 2011
Author: H.K.Rathod
Bench: H.K.Rathod
Gujarat High Court Case Information System
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SCA/22326/2005 15/ 15 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 22326 of 2005
With
SPECIAL
CIVIL APPLICATION No. 22327 of 2005
For
Approval and Signature:
HONOURABLE
MR.JUSTICE H.K.RATHOD
=========================================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To be
referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
=========================================================
MANAGER-GUJARAT
FLAVOURS PVT. LTD & 1 - Petitioner(s)
Versus
RAJUBHAI
@ TULSIDAS R. PATEL & 1 - Respondent(s)
=========================================================
Appearance
:
M/S
TRIVEDI & GUPTA for
Petitioner(s) : 1 - 2.
MR SUBRAMANIAM IYER for Respondent(s) :
1,
DELETED for Respondent(s) :
2,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE H.K.RATHOD
Date
: 28/03/2011
ORAL
JUDGMENT
1. Heard learned advocate Mr.Joshi for M/s.Trivedi & Gupta on behalf of petitioners and learned advocate Mr.Iyer for respondent.
2. In present matter, petitioner has challenged order passed by Labour Court, Baroda in Reference (LCV) Nos.97 to 124 of 2003, dated 20.7.2005. The Labour Court, Baroda has not granted any leave because of objection raised by union representative Shri Vishnubhai Makwana against appearance of Shri Tushar Bhatt, Consultant, Shri Rajesh Parmar and Shri K.N.Kapoor, advocate, those who are appearing on behalf of petitioners before Labour Court, Baroda.
3. Learned advocate Mr.Joshi submitted that out of 28 workers, 17 workers have settled the matter with employer. This Court has passed order in SCA No.22326 of 2005 on 22.3.2011, which is quoted as under :
"Mr.Kunan Naik, learned advocate appearing on behalf of the petitioners seeks permission to delete respondent No.2.
Permission as prayed for is granted. The respondent No.2 is ordered to be deleted.
In the facts and circumstances of the case and as the proceedings before the Labour Court are stayed, Registry is directed to notify the present Special Civil Application for final hearing on 24/3/2011 at the bottom of the First Board.
It will be open for the petitioners to file separate petitions with respect to other References except Reference (LCV) No.97 of 2003 and present petition be confined to order passed in Reference (LCV) No.97 of 2003 only."
4. In these matters, Rule has been issued on 18.11.2005 and interim relief is also granted in favour of present petitioners and due to that, further proceedings in respect to aforesaid references before Labour Court, Baroda has been stayed by this Court.
5. I have considered submissions made by both learned advocates appearing on behalf of respective parties. The question which was raised before this Court being almost based on undisputed facts. Section-36(4) of Act is very relevant in deciding present two petitions preferred by petitioners. The industrial dispute raised by workmen under Section 2A of I.D.Act,1947 against their termination which referred for adjudication to Labour Court, Baroda being Reference Nos.97 to 124/1993. In aforesaid references, on behalf of Prabha Enterprise Contractor, which was party in reference, one Shri Tushar Bhatt, Consultant had appeared and for that, no consent has been given by union representative Shri Vishnubhai Makwana. Similarly, another representative Shri Rajesh Parmar from Prabha Enterprise Contractor and Gujarat Flavours Private Enterprise has filed appearance. Even that was also objected by office bearers of union representative.
Therefore, said objections were kept for hearing by Labour Court, Baroda.
5.1 On behalf of employer - Gujarat Flavours Pvt. Ltd. and others, learned advocate Mr.Kapoor has filed Vakalatnama along with learned advocate Mr.Rajesh Parmar. In their Vakalatnama, union office bearer has raised objection and not given consent by Shri Vishnu Makwana.
Therefore, matter was kept for hearing and Labour Court has considered relevant provisions of Section 36 of I.D.Act,1947 and come to conclusion that Shri Tushar Bhatt, who was consultant of employer wherein also Shri Vishnu Makwana, union office bearer has not given consent. Shri Tushar Bhatt not remained present personally for making submissions before Labour Court, Baroda. Even no written submissions produced by Shri Tushar Bhatt, Consultant. Thereafter, Shri Rajesh Parmar was engaged by employer and contractor. But he was engaged in which capacity and whose designation has not been disclosed by employer before Labour Court, Baroda and whether Shri Rajesh Parmar is an officer or advocate or legal practitioner or not. For that, no details have been given by employer as well as contractor before Labour Court, Baroda. Therefore, in respect of Shri Tushar Bhatt and Shri Rajesh Parmar, Labour Court, Baroda has not granted any permission or leave to appear before Labour Court, Baroda in aforesaid references. Thereafter, Labour Court, Baroda has considered question of learned advocate Mr.K.N.Kapoor, who has filed his Vakalatnama under Section 36(2) of the I.D.Act, which was objected by union office bearer and not given consent and therefore, Labour Court, Baroda has considered relevant provisions of Section 36(2) and (4) of I.D.Act,1947 and come to conclusion that legal practitioner / advocate is not authorized to appear in proceedings under the provisions of I.D.Act,1947 before Labour Court as a matter of right unless consent is given by union office bearer or workman and thereafter, to obtain leave from Labour Court, Baroda. Before Labour Court, Baroda it was made clear that Shri Kapoor was an advocate, who has filed his Vakalatnama and he was appearing as lawyer before Labour Court, Baroda in aforesaid references and therefore, considering decision of Apex Court in case of Paradip Port Trust v. The Workmen, AIR 1977 SC 36 and ultimately, rejected Vakalatnama of learned advocate Mr.K.N.Kapoor and not allowed to appear Mr.Kapoor in aforesaid references on behalf of petitioner.
6. Learned advocate Mr.Iyer has relied upon decision of this Court in case of J.B.Transport Co. & Ors. v. Shankarlal @ Mavaram Nathuji Patel, 1999 (3) GLR 2019. Relevant observations of aforesaid decision are in Para.3 to 7, which are quoted as under :
"3. Mr.Sharma is appearing on behalf of the petitioner in this petition raised the contention before me that it is not open for the labour court to go into question as the motive of the legal practioner as the officer bearer of the said employer's association and if the employers' association has appointed him as an officer it must be accepted. He further submitted before me that in view of the provision of Section 36(2) of the Industrial Disputes Act, 1947 and he being the General Secretary of the Akhil Gujarat Employers' Union (hereinafter referred to as 'Akhil Union'), he was entitled to represent the member of the Akhil Union in a proceeding before the labour court. In order to consider this submission of him it is necessary to see the provision of Section 36. Though Mr. Sharma is relying upon Sub Section 2 of Section 36, it is necessary to consider the whole Section 36 in view of the controversy which I am going to consider and decide in this matter. The Section 36 is running as under :-
"36. Representation of parties :- (1) A workman who is a party to a dispute in any manner shall be entitled toto represented in any proceeding under this Act by -
(a) (any member of the executive or other officer bearer) of a registered trade union of which he is a member;
(b) (any member of the executive or other office bearer) of a federation of trade unions to which the trade union referred to in clause (a) is affiliated;
(c) where the worker is not a member of any trade union, by (any member of the executive or other office-bearer) of any trade union connected with, or by any other workman employed in, the industry in which the worker is employed and authorized in such manner as may be prescribed.
(2) An employer who is a party to a dispute shall be entitled to be represented in any proceeding under this Act by -
(a) an officer of an association of employers of which he is a member;
(b) an officer of a federation of associations of employers to which the association referred to in clause (a) is affiliated;
(c) where the employer is note 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 Actor in any proceedings before a court.
(4) In any proceeding (before a Labour Court, Tribunal or National Tribunal), a party to a dispute may be represented by a legal practitioner with the consent of the other parties to the proceeding and (with the leave oft he Labour Court, Tribunal or National Tribunal, as the case may be).
If the above provision of Section 36 is considered then it would be quite clear that in case of workman, he could be represented in proceeding under the Act by any member of the executive or any office bearer of a registered union. But under Sub-section 2, only an officer of an association of employers' can represent a member of association. Therefore it is necessary to find out whether Mr.Sharma could be teated as an officer of said Akhil Union. It is true that neither the Industrial Disputes Act or any other labour law pertaining to proceeding before the labour court is giving the definition of word "officer". If we see the 'Webster International Dictionary', then the said dictionary says that the person trained and commissioned to engage in paid full time service, then he would become an officer. An officer must be holding an office and taking part in the management or directions of the employer institution. He must be trained and engaged in discharging a duty and he must be paid fully for the services rendered by him. As stated earlier, the word used is an 'officer' and not as an office bearer. Mr. Sharma has fairly stated before me that he is till today a practicing advocate of this court. For appearance before the labour court / Industrial Tribunal, a legal practitioner should be a regular officer of such Employers' Association / Union, otherwise it will defeat the provisions of Section 36(2) and (4). There must be regular appointment to become officer. If the provision of Advocates' Act are taken into consideration then it would be quite clear that a practicing advocate cannot be in employment in any other institution without the leave of Bar Council. Mr.Sharma has not produced any documentary evidence before this court or before the labour court to show that the said Akhil Union has appointed him as an officer by its resolution or by any order of the said Akhil Union. Merely because he happened to be a General Secretary, it could not be said that he is an officer of the association. By becoming a General Secretary, he becomes an office bearer. There is difference between "office bearer" and the "officer". The officer is an employee of the association or an institution whereas, the office bearer would becomes to an employer.
4. If the provisions of Section 36 are considered then it would be quite clear that the same Act prevents as a rule the appearance of the advocate in a proceeding before labour court / industrial tribunal without the consent of the workman and the practicing advocate is permitted to appear in proceeding under the Industrial Disputes Act only with the consent of the workman. If the workman raises an objection for appearance of a practicing advocate on behalf of the employer then in view of the provision of Section 36, the practicing advocate could not be permitted to appear on behalf of the employer. This specific provision of Section 36 of Industrial Disputes Act could not be allowed to be defeated by allowing a practicing advocate to become nominal office bearer of association and come before the industrial tribunal or labour court as an officer of that association and to conduct the matter on behalf of the employer. If such practice is permitted then it is definitely going to defeat the provision of Act.
5. Mr.Sharma has cited before me a case of Paradip Port Trust Vs. The workmen AIR 1977, S.C. - 36 and he has put reliance on the following head note.
"A lawyer can appear before the Tribunal in the capacity of an office bearer of a registered Trade Union or an officer of the associations of employers and no consent of other side and leave of Tribunal will then be necessary."
But in the earlier portion of the said headnote, it is clearly stated that a lawyer simpliciter cannot appear before the industrial tribunal. Then in Para-16 of the said judgment, the Apex Court has made following observations :
"16. If, however, a legal practitioner is appointed as an officer of a company or corporation and is in their pay and under their control and is not a practising advocate the fact that he was earlier a legal practitioner or has a legal degree will not stand in the way of the company or the corporation being represented by him. Similarly if a legal practitioner is an officer of an association of employers or of a federation of such associations, there is nothing in Section 36(4) to prevent him from appearing before the Tribunal under the provisions of Section 36(2) of the Act. Again, an office bearer of a trade union or a member of its executive, even though he is a legal practitioner, will be entitled to represent the workmen before the Tribunal under Section 36(1) in the former capacity. The legal practitioner in the above two cases will appear in the capacity of an officer of the association in the case of an employer and in the capacity of an office bearer of the union in the case of workmen and not in the capacity of 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."
From the above cited decision of Appex Court it is quite clear that if a practicing advocate subsequently ceased to be practicing advocate and takes an employment with an industry or a company and happen to appear on behalf of that company - employer as an office bearer of that company before a industrial tribunal then merely because he was formerly a practicing advocate, his appearance could not be objected to. Because once he accepts the employment and once he becomes an officer of company or any institution, he ceases to be a practicing advocate or legal practitioner in view of the provision of the Advocates' Act. The Advocates' Act does not permit a practicing advocate to take an employment without the leave of the Bar Council. Generally the said leave is granted by Bar Council to the practicing Advocate to act as part-time lecturer in Law Institution and Law Colleges.
6. In order to become an officer, the person must show that he is in employment of that institution or an undertaking or a company and it must be shown that he is on the pay role of the institution or company. There is nothing on the record to show that Mr.Sharma is on the pay role of the said Akhil Union. What is shown by Mr.Sharma is that he is the General Secretary of Akhil Union but merely because he is an office bearer of the Akhil Union, I am unable to hold that he is an "officer" of the said Akhil Union. As he could not be an "officer" of the Akhil Union, even as per the Constitution of the said Union, he could not be permitted to appear on behalf of the member of the said Akhil Union. If the Akhil Union happen to engage and appoint Mr.Sharma or engage other person as an officer of that association, then alone that person can represent the member of the said association. This question of "officer" representing an association of employers is also considered by the full bench of Andhra Pradesh High Court in the case of Andhra Pradesh Power Diploma Engineering Vs. Andhra Pradesh State Electricity Board and another 1995, Labour Court and Industrial Cases - 2654. In the said case, the said full bench has considered the word officer and has made the following observations.
"From the observations made it is clear that "an officer" was understood, so far as a legal practitioner is concerned, as one who is not a practising advocate though he mgiht have been one such earlier to his becoming an officer, and that in his present capacity as an officer of the association he is in its pay and under its control. It is relevant here to quote a passage from Buckley's Companies Act, twelfth Edition page 681 which was extracted in an earlier decision of this Court in Mallela Suryanarayana Vs. Viyay Commercial Bank. AIR 1958 Andhra Pradesh 756, regarding concept of the word "Officer".
"The word 'officer' is not to be confined to a person who has in some way or other control over the assets of the company. As person who by the terms of his appointment is made and called an officer, who is appointed by the company, paid by the company and whose function is to act on behalf of the company could check the directors, and whose appointment is made not on a special occasion for a special limited purpose, but under the regulations governing the constitution of the company, is an officer."
It would hence be seen that the word conveys the meaning in its essentially, 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 Vs 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 vs. State of A.P., 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 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 Vs. 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 of 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."
7. The full bench has also considered the case of Paradip Port Trust, Paradip Appellant Vs. Their workmen, Supra before laying down the above observations. I don't find any reasons to take a different view than the view taken by the full bench of the Andhra Pradesh High Court."
7. The aforesaid decision was challenged by J.B.Transport Co. before the Division Bench of this Court in LPA No.1101 of 1998 decided on 9.8.1998 where relevant observations are in Para.9 to 12 are quoted as under :
"9. We have considered the rival contentions in light of the provisions of the Act. It amply clear that by virtue of sub-section (3) of Section 36 of the Industrial Disputes Act, a legal practitioner is forbidden from appearing in any proceedings before a Court. It is also clear that there is nothing on record to show that Mr. Sharma, who later on filed his authorisation to appear on behalf of the employer, is "an officer of the association representing the employers". Considering the provision and spirit of Section 36 of the Industrial Disputes Act, it is amply clear that the Legislature expected only an officer of the association representing the employers to be permitted to represent the case of employers as against "officer bearers of a union of workmen". Mr. Sharma is the General Secretary of Akhil Gujarat Employers' Union, Ahmedabad, which, for the purpose of the Act, has to be construed as "an association of employers". It, therefore, cannot be said that an error is committed either by the Labour Court or by this Court while not permitting Mr. Sharma to represent the case of the appellants.
10. Mr. Sharma has placed reliance on several decisions to substantiate his argument that a legal practitioner, if he is an office bearer of the union, can also represent the case of the party. In this regard, heavy reliance is placed by him on a decision of Karnataka High Court in the case between Hotel Ashok and Presiding Officer, Additional Labour Court, as reported in FLR 1984 (48) 297. We have gone through that decision and find that, in that decision also reliance was placed on decision of the Apex Court in Pradip Port Trust v.
Their Workmen, AIR 1977 SC 36, wherein the Apex Court has observed as under :-
"The right is extended to representation by the office bearers of the federation of the union and the officers of the federation of employers. The provisions of Section 36(1) and 36(2) confer the respective parties absolute rights of representation by persons respectively specified therein."
This indicates that the employers can be represented by officers of either their association or federation of associations as against office bearer of union or federation of unions.
11. In light of the above observation of the Hon'ble Supreme Court and upon plain reading of the provisions of Section 36 of the Industrial Disputes Act, in our opinion, decision of Andhra Pradesh High Court rendered in the case of A.P. State Electricity Board, Hyderabad v. A.P. Power Diploma Engineers Association Trade Union, as reported in 1994 II CLR 259, wherein it has been observed that "...above legal practitioners being the Honorary Joint Secretaries of the Federation of Andhra Pradesh Chambers of Commerce and Industry and there being no embargo for the legal practitioners being the office bearers of the Federation of A.P. Chambers of Commerce and Industry, come within the ambit of Section 36(2)(a) of the Industrial Disputes Act, 1947 and are entitled to represent the employer i.e. the petitioners, but in the capacity as office bearers" cannot help the appellant.
12. Thus, considering the decisions cited by Mr. Sharma, there cannot be any dispute about the fact that a qualified legal practitioner can appear on behalf of a party and represent the case, but the only proviso applicable to it would be that he must be either an office bearer and/or a member of executive of a registered trade union where he represents a workman or he must be "an officer of an association of employers" to which the employer is a member where he represents the employer. In the instant case, there is nothing to show that Mr. Sharma is the officer of the association/union of the employer. On the contrary, he has initially filed his Vakalatnama and then authorisation as General Secretary and, therefore, keeping in light the facts of the case, we are of the opinion that he could not have been permitted to represent the appellants before the Labour Court. As such, there is no error committed in any of the orders impugned in this appeal calling for any interference except that in light of the peculiar facts of the case, in our opinion, the order or of the Labour Court awarding costs of Rs.1500/- from the appellant to the respondent and confirmed by the learned Single Judge needs to be set aside. Appeal, therefore, would stand allowed to that extent. No orders as to costs."
8. The Apex Court in case of Paradip Port Trust v. The Workmen, 1976 II LLJ 409, has examined this aspect. Relevant observations of aforesaid decision are in Para.14, 20 and 21 are quoted as under :
"14. 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.
20. We have given anxious consideration to the above submission. It is true that "and" in a particular context and in view of the object and purpose of a particular legislation may be read as "or" to give effect to the intent of the legislature. However, having regard to the history of the present legislation, recognition by law of the unequal strength of the parties in adjudication proceedings before a Tribunal, intention of the law being to discourage representation by legal practitioners as such, and the need for expeditious disposal of cases, we are unable to hold that "and" in Section 36 (4) can be read as "or".
21. Consent of the opposite party is not an idle alternative but a ruling factor in Section 36 (4). The question of hardship, pointed out by the Solicitor General, is a matter for the legislature to deal with and it is not for the courts to invoke the theory of injustice and other consequences to choose a rather strained interpretation when the language of Section 36 is clear and unambiguous."
9. In view of aforesaid decision of learned Single Judge of this Court which is confirmed by Division Bench of this Court, as referred above and also keeping in mind the facts which are not in dispute between the parties that Mr.K.N.Kapoor, advocate has filed Vakalatnama which was objected by Shri Vishnu Makwana union office bearer and not given consent for his appearance and accordingly, Labour Court has also not given leave in favour of learned advocate Mr.Kapoor. Therefore, according to my opinion, Labour Court has rightly examined the issue raised by petitioners and also rightly decided it while giving detailed reasoning in support of its conclusion, with application of mind. Therefore, according to my opinion, Labour Court has not committed any error which requires interference by this Court while exercising powers under Article 227 of the Constitution of India.
10. Therefore, there is no substance in present petitions. Accordingly, both petitions are dismissed. Rule discharged. Interim relief, if any, stand vacated in pending references and it is directed to Labour Court, Baroda to decide all the pending References being Reference Nos.97 to 124/1993 as early as possible, within a period of six months from date of receiving copy of present order.
11. Considering the submissions made by learned advocate Mr.Joshi for petitioners, it is open for petitioners to file a separate one page petition, challenging very same order as per directions issued by this Court on 22.3.2011.
[ H.K.RATHOD, J. ] (vipul) Top