Delhi High Court
Prasar Bharati Broadcasting ... vs Shri Suraj Pal Sharma & Anr. on 7 December, 1998
Equivalent citations: 1999IAD(DELHI)268, 77(1999)DLT269, (1999)ILLJ1306DEL
Author: Cyriac Joseph
Bench: Cyriad Joseph
ORDER Cyriac Joseph, J.
1. The petitioner in this writ petition challenges an order passed by the Central Government Industrial Tribunal, New Delhi on 23.5.97 in L.C.A. No. 308/89. The impugned order was passed on an application filed by the workman under Section 36 of the Industrial Disputes Act objecting to the appearance of an advocate on behalf of the management. By the impugned order the objection of the workman was upheld by the Central Government Industrial Tribunal holding that the representative of the management Shri Anil Sehgal being a legal practitioner could not be allowed to appear in the case on behalf of the management. The contention of the petitioner-manage-ment in this writ petition is that Shri Anil Sehgal was an Additional Standing Government Counsel and hence he was entitled to appear before the Industrial Tribunal on behalf of the management. According to the petitioner, an Additional Standing Government Counsel is not a legal practitioner to whom sub-sections (3) and (4) of Section 36 of the Industrial Disputes Act, 1947 will apply.
2. The petitioner is the Prasar Bharti Broadcasting Corporation and respondent No. 1 Shri Suraj Pal Sharma is in the employment of the petitioner as a General Assistant. Respondent no. 1 filed an application before the Central Government Industrial Tribunal under Section 33-C(2) of the ID Act claiming arrears of wages and the said application was registered as LCA No. 308/89 titled Shri Suraj Pal Sharma Vs. Doordarshan Kendra, New Delhi. On receipt of notice from the Tribunal the management appeared through Shri Suraj Singh, Additional Central Government Standing Counsel and filed reply. On expiry of the tenure of appointment of Shri Suraj Singh as Additional Central Government Standing Counsel the management entrusted the case with Shri U.M. Kalra, Additional Central Government Standing Counsel and thereafter with Shri Anil Sehgal, Additional Central Government Standing Counsel. On 31-3-1997 respondent No.1 filed an application under Section 36 of the ID Act praying that Shri Anil Sehgal who is a practicing advocate may be debarred from appearing on behalf of the management. Respondent No.1 contended that Shri Anil Sehgal was a practicing advocate, that he was not an officer of any federation of employers, that the employer was not a member of any federation, that the Government counsel was not an employee of the Government or the Department where the workman was employed and that he had no locus standi to appear on behalf of the management. The management filed a reply to the above mentioned application of the workman stating that the services of legal practitioners were being availed of by the management in the case which was pending since 1989 but no objection that been taken by the workman. It was also pointed out that Shri Anil Sehgal having been appointed as Additional Central Government Standing Counsel had taken over the case file from the former Additional Central Government Standing Cousel who had been looking after the case before the Industrial Tribunal. However, by the impugned order dated 23.5.1998, the Tribunal held that the management representative was not able to show that he was appearing with the consent of the other party to the proceeding and with the leave of the Tribunal. It was also held that the representative of the management was not able to show that he was falling in the category of persons who were entitled to represent the management as per provisions of the relevant Section in the Industrial Disputes Act. The Tribunal further held that Shri Anil Sehgal being a legal practitioner could not be allowed to appear on behalf of the management.
3. It is contended by the petitioner in this writ petition that a Government Counsel cannot be described as legal practitioner whose appearance is intended to be restricted under Section 36 of the I.D. Act. According to the petitioner, the post of Additional Government Standing Counsel has a tenure of three years and the appointment is made by the Government to seek advice and defend various litigations against it. As per the terms of appointment, the appointment of the Government Counsel could be terminated by giving one month's notice. The Government counsel is also granted some other facilities and they cannot be termed as legal practitioners in terms of Section 36 of the ID Act. It is further contended that under Section 36 of the ID Act all legal practitioners are not prohibited from appearing before the tribunal and that the Government counsel is permitted to appear on behalf of the Government. It is also contended that though the petitioner/management had been earlier represented through the Central Government Standing Counsel there was no objection by the workman and that there was no change of circumstances for raising the objection at a later stage.
4. For the sake of convenience sub-section 2, 3 and 4 of Section 36 of the Industrial Disputes Act, 1947 is extracted below:-
36(1) ********** (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 not a member of any association of employers, by an officer of an 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 leave of the Court, Tribunal or National Tribunal, as the case may be.
Shri Anil Sehgal, Addl. Central Govt. Standing Counsel is not "an officer of an association of employers" or "an officer of a federation of associations of employers" mentioned in sub-sec-tions 2(a) or (b) or (c) of Section 36 of the I.D. Act. Nor is he "another employer" as mentioned in sub-section 2(c). Hence he cannot represent the management on the basis of the provisions in sub-section 2(a) or (b) or (c) of Section 36. The proceedings in question are not conciliation proceedings or proceedings before a "Court" as defined in Section 2(f) of the ID Act. Therefore, sub section (3) of Section 36 is not relevant in this case. The only provision relevant in this case is sub section (4) of Section 36.
5. Though sub section (3) of Section 36 of the ID Act clearly prohibits a legal practitioner from representing any party to a dispute in any conciliation proceedings under the Act or in any proceedings before a Court, there is no such total prohibition in the case of a proceeding before a Labour Court, Tribunal or National Tribunal. Sub section (4) of Section 36 enables a legal practitioner to represent a party to a dispute in a proceeding before a Labour Court, Tribunal or National Tribunal with the consent of the other parties to the proceeding and with the leave of the Labour Court, Tribunal or National Tribunal. The consent of the other parties and the leave of the Labour Court/Tribunal/National Tribunal are mandatory prerequisites. In this case the workman had not given his consent for the representation of the management by a legal practioner. On the other hand the workman filed a formal application objecting to the appearance of the legal practitioner. According to the petitioner, the management was earlier represented by Government Counsel Shri Suraj Singh and Shri U. M. Kalra and it was not objected to by the workman. The question is not whether the workman had objected to or not. The question is whether the workman had given his consent or not. However the petitioner has not placed on record any material to show that the workman had given his consent for the representation of the management by the Government Counsel. Sub-section (4) allows a legal practitioner to appear on behalf of a party to a dispute subject to two specific conditions: (i) The other parties to the proceedings have given the consent for such appearance of the legal practitioner. and (ii) The Labour Court/Tribunal/National Tribunal has granted leave for such appearance. There is nothing to show that the workman in this case had given his connt for the appearance of any of the Government Counsel or that the Tribunal had granted leave for such appearance.
6. Learned counsel for the petitioner relied on the judgment of the Hon'ble Supreme Court in Paradip Port Trust Vs. Their workmen and contended that the Additional Central Government Standing Counsel, was entitled to appear for the management of Doordarshan Kendra. Though I have carefully read the said judgment I could not find anything therein to support the argument of the learned counsel for the petitioner. On the contrary, the said judgment is against the contentions of the petitioner. In paragraph 13 of the said judgment, after observing that Section 36 of the Industrial Tribunal is not exhaustive in the sense that besides the persons specified therein there cannot be any other lawful mode of appearance of the parties as such, the Supreme Court has held that since the companies and corporations have necessarily to appear through some human agency there is nothing in law to prevent them form being represented in any lawful manner. It is not intended under the Act that companies and corporations are confined to representation of their cases only through the officers specified in Section 36(2) of the ID Act. They can be represented by their directors or their own officers authorised to act in that behalf in a lawful manner provided it is not contrary to any provision of the ID Act. Moreover the court has clarified that companies and corporations are not free to engage legal practitioners by means of a special power of attorney to represent their interests before the Tribunal without the consent of the opposite party and the leave of the Tribunal. The Court has specifically stated in paragraph 15 of the judgment that the parties will have to conform to the conditions laid down in Section 36(4) in the matter of representation by legal practitioners and that 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. There is no contention that Shri Anil Sehgal, in his individual capacity or in this capacity as Additional Central Government Standing Counsel, is a director or an officer of the employer Doordarshan Kendra. He is a legal practitioner engaged by the Government to conduct cases on their behalf. From the terms and conditions of appointment of Central Government Standing Counsel, it is clear that even after appointment as Central Government Standing Counsel the person continues to be a legal practitioner and he does not become an employee or officer of Government in their pay and under their control. It is wrong to state that the Central Government Standing Counel is not a legal practitioner or a practicing advocate. It is true that in paragraph 16 of the judgment the Supreme Court has held that 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. But, as already pointed out, the petitioner has no case that Shri Anil Sehgal Additional Central Government Standing Counsel, is an officer of an association of employers or a federation of such associations. It is significant that in the above mentioned judgment the Supreme Court rejected the contention of the Solicitor General that "and" in Section 36(4) should be read as "or" in which case refusal onsent by a party would not be decisive in the matter and the Tribunal will be able to decide in each case by exercise of its judicial discretion whether leave, in a given case, should be given to a party to be represented by a lawyer notwithstanding the objection of the other party. The Court has categorically stated that the consent of the opposite party is not an idle alternative but a ruling factor in Section 36(4). In the case before the Supreme Court the opposite party had refused to give their consent to the representation of the employer by Shri T. Mishra, Advocate who was a legal consultant of the employer and had also filed the power of attorney executed by the employer. Shri T. Mishra was admittedly a practicing advocate of the Orissa High Court. The tribunal, after considering the materials produced before it, came to the conclusion Shri T. Mishra could not claim to be an officer of the corporation simply because he was a legal consultant of the Paradip Port Trust. He was neither in pay of the company nor under its control and he enjoyed freedom as any other legal practitioner to accept cases from other parties. Agreeing with the opinion of the tribunal that Shri Mishra could not be held to be an officer of the Trust, the Supreme Court held that a lawyer simplicitor cannot appear before an Industrial Tribunal without the consent of the opposite party and the leave of the Tribunal merely by virtue of a power of attorney executed by a party. It was further held that a lawyer could appear before the Tribunal in the capacity of an office bearer of a registered trade union or an officer of associations of employers and no consent of the other side and leave of the Tribunal would then be necessary. As already pointed out Shri Anil Sehgal continues to be legal practitioner and a practicing advocate notwithstanding his appointment as Additional Central Government Standing Counsel and e is not an officer of the employer - Doordarshan Kendra or Prasar Bharti Broadcasting Corporation. He is not an officer of any association of employers or of any federation of such associations. Hence Shri Anil Sehgal was not entitled to appear before the Industrial Tribunal without the consent of the opposite party and the leave of the Tribunal.
7. Learned counsel for the petitioner contended that the workman had not objected to the representation of the management by the Additional Central Government Standing Counsel earlier in the very same proceeding and hence he could not be allowed to raise any objection at a later stage. Such a contention had been raised in the reply filed by the management to the workman's application under section 36(4) of the ID Act. The impugned order does not say that the management was not earlier represented by the Central Government Counsel. But the Tribunal has specifically stated that the management representative was not able to show that he was appearing with the consent of the other party and with the leave of the tribunal. It would appear that earlier the Additional Central Government Counsel had been representing the management and that only when Mr. Anil Seghal entered appearance the workman raised the objectn filing a formal application. It is not clear why the workman did not raise any objection earlier. But merely because the workman did not object earlier, he cannot be precluded from objecting at a later stage. There could be several reasons for a workman for not raising the objection at the early stage of the proceeding. One of them could be that he was not aware of the statutory provision and his right to raise such objection. Another reason could be that the workman realised only belatedly his handicap in not being able to engage a legal practitioner while the management was being represented by a legal practitioner. Only at a later stage, he must have started feeling the strain and stress caused by the unequal strength of the parties in the adjudication proceedings before the tribunal. In such circumstances it will not be just or proper to preclude a workman from objecting to the representation of the management by a legal practitioner only on the ground that such objection had t been taken earlier.
8. Learned counsel for the petitioner contended that the failure of the workman to raise the objection during the early stages of the proceeding amounted to 'implied consent' and that there was no provision for revoking the consent already given. To consider the above contention of the learned counsel it is necessary to have a correct perception of the provisions contained in Section 36 of the ID Act. Intention of the law is to discourage representation of parties by legal practitioners in such proceedings. The law also recognizes the unequal strength of the parties in adjudication before a tribunal. Section 36(4) permits representation of a party by a legal practitioner only with the consent of the other parties to the proceeding and with the leave of the tribunal. Such consent has to be clear and positive. There should be some positive act r conduct on the part of the party indicating his consent. To consider the failure or inaction of a party in raising the objection at the early stages of the proceeding as 'implied consent' and to deny him the right to object to the representation of the other party by a legal practitioner, will be against the spirit and content of the provisions of Section 36 of the ID Act. The concept of 'implied consent' cannot be imported to the provision in Section 36(4) of the ID Act. As per Section 36(4) the consent of the other parties to the proceeding and the leave of the tribunal are mandatory preconditions for the representation of a party by a legal practitioner. There is no specific provision in the ID Act or in the Rules issued thereunder, which lays down a particular procedure for seeking the consent of the opposite parties or the leave of the Labour Court/Tribunal. Hence the Labour Court/Tribunal will have to follow a reasonable and fair procedure for giving effect to the provisions of Section 36(4). The procedure has to be in tune with the rinciples underlying the particular provision and also in furtherance of the object of the provision. Hence if a party to the proceeding intends to engage a legal practitioner, he should specifically seek leave of the tribunal and the tribunal, after ascertaining and considering the stand of the other parties, should record its decision, granting or refusing leave. In this process the other parties to the proceeding will get an opportunity to positively express their consent or objection to the representation of a party by a legal practitioner. The record of the proceedings before the tribunal will also disclose whether the other parties to the proceeding have given their consent or not. Thus the occasion for giving consent by the other parties to the proceeding arises only when a party formally seeks leave of the tribunal for representation by a legal practitioner and when the said request is considered by the tribunal. If a party to the proceeding has given his consent in the manner stated above he may be precluded from revoking the consent already given. But in the absence of any consent given in the manner stated above the question of revocation of consent does not arise.
9. In the impugned order the learned Industrial Tribunal has categorically stated that the representative of the management was not able to show that he was appearing with the consent of the other party and with the leave of the tribunal. The petitioner has no case that the management had at any time formally sought the leave of the tribunal or that the tribunal had considered the request after ascertaining the stand of the workman or that the workman had expressed his consent for the representation of the management by a legal practitioner. The petitioner has also no case that at any time the Tribunal had granted leave to the management for being represented by a legal practitioner. The materials placed on record would indicate that the question of representation of the management through a legal practitioner came up for the active consideration of the tribunal for the first time only when the workman filed an application under Section 36(4) of the ID Act raising objection to the appearance of the Additional Central Government Standing Counsel on behalf of the management. Hence in this case the workman had not given any consent as contemplated under Section 36(4) of the ID Act. Consequently there is no revocation of a consent already given. I may also observe that in the writ petition the petitioner has no case that the workman had given his consent or that the tribunal had granted leave. The only contention is that the workman had not earlier objected to the appearance of the legal practitioner on behalf of the management. Since the workman had not at any time given his consent under Section 36(4) the failure of the workman to object to the representation of the management by the Additional Central Government Standing Counsel at early stages cannot preclude the workman from raising the objetion at a later stage.
10. In view of the legal and factual position stated above the learned Industrial Tribunal was right in upholding the objection of the workman to the representation of the management by the Additional Central Government Standing Counsel. Hence the writ petition is devoid of merit and it is dismissed in limine.