Rajasthan High Court - Jaipur
Chief Executive Officer And Anr vs Labour Court And Industrial Anr on 3 March, 2012
Author: Mn Bhandari
Bench: Mn Bhandari
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN JAIPUR BENCH, JAIPUR ORDER SB Civil Writ Petition No.18467/2011 The Chief Executive Officer, Emcure Pharmaceutical Co. Ltd & anr versus The Labout Court & Industrial Disputes Tribunal, Ajmer & anr 3.3.2012 HON'BLE MR. JUSTICE MN BHANDARI Mr SN Sharma for petitioners BY THE COURT:
By this writ petition, a challenge has been made to the order dated 1.11.2011 by which representation of the petitioners through a lawyer is denied before the labour court in view of the provisions of section 36 of the Industrial Disputes Act, 1947 (for short 'the Act').
Learned counsel for petitioners has placed reliance on following judgments where representation has been allowed through lawyer -
1. Satya Kumar Joshi versus The Industrial Tribunal & anr reported in WLC 2003(4) (Rajasthan) 268
2. Durgapur Cinema and another vs Ninth Industrial Tribunal, Durgapur & ors, reported in LLN High Court, Calcutta page 1063, passed in Civil Order No.1001(W) of 1991 dated 30.1.1991
3. Kamakshi R Iyer (Mrs) versus Hindustan Dorr Oliver Ltd & ors, reported in ILLJ 1996 High Court, Bombay page 1131
4. ICI India Ltd versus Labour Court (IV) & anr, reported in 1992 ILLN 972 (Allahabad High Court) I have considered submissions of learned counsel and perused the judgments cited at the Bar.
The representation of the petitioners has been denied through lawyer in view of section 36 of the Act thus it is quoted hereunder for ready reference -
36. Representation of parties.-(1) A workman who is a party to a dispute shall be entitled to be represented in any proceeding under this Act by-
(a) 2[any member of the executive or office bearer] of a registered trade union of which he is a member:
(b) 2[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 2[any member of the executive or other office bearer] of any workman employed in, the industry in which the worker is employed and authorized in such manner as may be prescribed.
(2) An employer who is a party to a dispute shall be entitled to be represented in any proceeding under this Act by--
(a) an officer of an association of employers of which he is a member;
(b) an officer of a federation of association of employers to which the association referred to in clause (a) is affiliated;
(c) where the employer is not a member of any association of employers, by an officer of any association of employers connected with, or by any other employer engaged in, the industry in which the employer is engaged and authorized in such manner as may be prescribed.
(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 3[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 4[with National Tribunal, as the case may be].] Perusal of section 36(2) of the Act reveals as to who can represent an employer before the Labour Court, Tribunal or National Tribunal. As per the aforesaid provision, an officer of the association of employers to which he is a member can represent apart from an officer of the federation of association of employers. Where the employer is not a member of 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. Other than the category mentioned above, no other person is authorised to represent employer.
The issue aforesaid was considered by the Hon'ble Apex Court in the case of Paradip Port Trust versus Their Workmen, reported in 1976-II-LLJ-409 (SC) or (1977) 2 SCC 339 in reference to provisions of section 36 of the Act. It was held that representation through legal practitioner is permissible only with the consent of the opposite party apart from leave of the tribunal.
In the present matter, representation is not by one of those falling in the category of section 36 (2) of the Act. Section 36(4) of the Act is also relevant but for want of consent of the parties and leave of the court, petitioners cannot be allowed to represent through lawyer. In the aforesaid background, there is no illegality in the impugned order.
It is stated that on three dates representation through lawyer was allowed, however, I do not find consent to that effect so as the leave of the court. It is a case where objection for representation through lawyer was taken without delay.
Learned counsel for petitioners has referred the judgments. In the case of ICI India Ltd (supra) where provisions of section 36 of the Act as adopted there were struck down holding it to be ultra vires, however, in the present matter, provisions of the Act are applicable in the State of Rajasthan, as amended and are not under challenge. Till the rigour of section 36 (2) and (4) exists, the judgment in the case of ICI India Ltd (supra) does not apply.
In the case of Kamakshi R Iyer (supra), the judgment goes against the petitioners. It is held therein that consent of the opposite party and leave of the tribunal are necessary for representation through legal practitioner.
So far as judgment in the case of Durgapur Cinema & anr (supra) is concerned, it was passed totally in ignorance of the provisions of law. The learned Judge had not considered as to who can represent before the labour court or the industrial tribunal.
The judgment in the case of Satya Kumar Joshi (supra) goes against the petitioners.
In view of aforesaid, I do not find any illegality in the impugned order passed by the labour court. Hence, writ petition so as the stay application are dismissed.
(MN BHANDARI), J.
bnsharma All corrections made in the judgment/ order have been incorporated in the judgment/ order being emailed.
(BN Sharma) PS-cum-J