Dismissed

Board of Trustees of the Port of Mumbai and Ors. v. Vidyadhar Pandurang Rane

Bombay HC13 Mar 2005APP/376/2005

Case brief

AI extract

What is this about?

Appeal against a High Court judgment holding that an employee represented by a union office bearer who is also a legal practitioner is valid. The High Court held that Regulation 12(8) does not prohibit a union office bearer from appearing even when they hold a legal degree.

What did the court decide?

The appeal was dismissed, upholding the High Court's order that allowed the employee to be represented by a union office bearer who is a legal practitioner.

Board of Trustees of the Port of Mumbai and Ors. Vs… — Service and Employment | Bombay HC (2005)

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 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
 ORDINARY ORIGINAL CIVIL JURISDICTION

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 Appeal (Ld) No. 870 of 2004
 in

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 Writ Petition No. 2222 of 2004

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 1. Board of Trustees of the

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 Port of Mumbai and ors. ..Appellants

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vs.

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 Vidyadhar Pandurang Rane ..Respondent

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 Mr.E.P.Bharucha i/b M/s Mulla & Mulla & C.B.& C.
 for appellants.

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 Mr.Jaiprakash Sawant for respondent.

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CORAM: A.P.SHAH &
S.J.VAZIFDAR JJ.
18th March, 2005

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P.C.

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 1. This appeal is preferred against the judgment

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 and order of a learned single Judge of this Court

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 upholding the employee’s right to be represented by

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 one Jaiprakash Sawant in a domestic enquiry. The

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 learned single Judge has rejected the appellants’
 contention that the said Sawant is not entitled to
 represent the employee because he is a legal
 practitioner prohibited from appearing in the
 enquiry by virtue of Regulation 12(8) of the Bombay
 Port Trust Employees’ (Classification, Control and

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 Appeal) Regulations, 1976, hereinafter for

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 brevity’s sake referred to as "the Regulations".

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 2. The enquiry officer objected to the appearance
 of Jaiprakash Sawant, admittedly a qualified
 Advocate, on the ground that he is a legal
 practitioner and consequently not entitled to
 represent the respondent employee. The respondent
 then made a representation dated 23.4.2004
 contending inter alia that regulation l2(8) permits
 appearance of office bearer of a trade union in
 such an enquiry irrespective of the fact that he is
 a legal practitioner. The representation was
 referred to the Chairman and it came to be
 rejected. The respondent employee then preferred a
 writ petition which was allowed by the learned
 single Judge holding that regulation l2(8) entitles
 an employee to seek assistance of office bearer of
 the union to which he belongs to in the course of a
 domestic enquiry against such an employee and it is
 immaterial that such an officer bearer happens to
 be a legal practitioner. The learned single Judge
 placed reliance on the judgment of the Supreme
 Court in the case of Paradip Port Trust vs Their
 Workmen, AIR l977 SC 36.

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 3. We have heard the learned counsel appearing for
 the parties and we are inclined to agree with the
 view taken by the learned single Judge that the
 prohibition imposed against a legal practitioner

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 being engaged in a domestic enquiry under
 regulation l2(8) cannot apply to the case where
 officer bearer happens to be a legal practitioner.
 Regulation l2(8) which is relevant for our purpose
 reads as follows:

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 "12(8) The employee may take the assistance
 of any other employee or, if the employee is
 a class III or a class IV employee, of an
 "office -bearer" as defined in clause (d) of
 section 2 of the Indian Trade Unions Act,
 1926 (16 of 1926), of the union to which he
 belongs, to present the case on his behalf,
 but may not engage a legal practitioner for
 the purpose unless the said Presenting
 Officer appointed by the disciplinary
 authority, is a legal practitioner, or the
 disciplinary authority, having regard to the
 circumstances of the case, so permits."

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 4. The question is whether the expression "office
 bearer" under the above regulation would exclude a
 person who happens to be a legal practitioner. The
 regulations speak of an office bearer to mean the
 one as defined under the provisions of law
 comprised under the Trade Unions Act, 1926.
 Section 2(b) of the Trade Unions Act defines the

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 term "office bearer" and it states that "office
 bearer" in the case of a trade union would include
 every member of its executive except an auditor.
 Considering the definition of the term "office
 bearer" under the Trade Unions Act, even an
 executive member, who happens to be a legal
 practitioner, would be an office bearer of such
 union. Even on plain reading of this regulation,
 it is clear that there is no room for doubt that
 the prohibition against legal practitioner being
 engaged in a domestic enquiry cannot apply to the
 case where the office bearer happens to be a legal
 practitioner.

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 5. Mr.Bharucha urged before us that Jaiprakash
 Sawant cannot be said to be an office bearer of the
 union in view of the fact that he is basically a
 legal practitioner and, therefore, not entitled to
 represent the workman. We find no merit in this
 contention. There is no doubt that a legal
 practitioner is prohibited from representing an
 employee in the domestic enquiry before the enquiry
 officer. That, however, does not mean that any
 person who has obtained LL.B.degree or is a
 practicing Advocate is debarred from appearing in
 the domestic enquiry even though he is office
 bearer of the union. We find that the object of

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 Regulation 12(8) is to enable the employee to be
 represented by a person who can effectively espouse
 their cause barring legal practitioners in the said
 proceeding. The purpose is not to disable
 representative who has knowledge of law or who has
 practiced law. The purpose is to enable the
 employee to appoint a representative who
 understands the position and who can effectively
 represent them in the domestic enquiry. Therefore
 the prohibition would arise only when a
 relationship of lawyer and client arises between
 the employee and the person engaged to represent
 the employee in the domestic enquiry and not when a
 relationship between the employee and the person
 appointed to assist him is that of an office bearer
 of the union of which the employee is a member.

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 6. In Paradip Port Trust’s case the Supreme Court
 was concerned with section 36 of the Industrial
 Disputes Act, l947. Section 36(l) of the
 Industrial Disputes Act provides that a workman,
 who is a party to a dispute, shall be entitled to
 be represented in any proceedings under the
 Industrial Disputes Act by three classes of
 officers as mentioned in the clauses (a), (b) and
 (c) of sub-section (l) of section 36 namely:

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 " (a) any member of the executive or other
 office bearer of a registered trade union of
 which he is a member;

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 (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:

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 (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.

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 Sub-section (2) of section 36 provides an employer
 who is a party to a dispute shall be entitled to be
 represented in any proceedings under the Industrial
 Disputes Act by -

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 (a) an officer of an association of

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 employers of which he is a member;

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 (b) an officer of a federation of
 associations of employers to which the

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 association referred to in clause (a) is
 affiliated.

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 (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.

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 Sub-section (3) of section 36 of the Industrial
 Disputes Act provides that 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.

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 7. In the case of Paradip Port Trust the Supreme
 Court considering the provisions of section 36(4)
 of the Industrial Disputes Act, held that if the
 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

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 practitioner is an officer of an association of
 employers or of a federation of such association,
 there is nothing in section 36(4) to prevent him
 from appearing before the tribunal under the
 provisions of section 36(2) of the Industrial
 Disputes Act. The court summarised the legal
 position as follows:

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 "The legal practitioner in the above two
cases will appear in the capacity of an
officer of the association in the case of an

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employer and in the capacity of an office
bearer of the union in the case of workman
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(l) and section 36(2) are
fulfilled by him".

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 " 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 union or

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an officer of association of employers and

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no consent of the other side and leave of
the Tribunal will, then, be necessary".

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 (emphasis supplied)

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 8. The decision in Paradip Port Trust’s case was
 on the point whether the office bearer who happens
 to be a legal practitioner could represent the
 employee. The decision in Paradip Port Trust’s
 case was in relation to the proceedings before the

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 court or the Tribunal under sec.36 of the
 Industrial Disputes Act but it would not make any
 difference when the proceedings are before an
 inquiry officer. In both the cases it relates to
 the adjudication of a dispute between the parties.
 The expression "office bearer" has been
 specifically defined to have the same meaning as
 provided to the said expression under the Trade
 Unions Act and in terms of the definition under
 sec.2(b) of the Trade Unions Act, the said
 expression includes every member of the executive
 body of the union. It does not exclude any member
 merely because he happens to be a legal
 practitioner. Considering the law laid down by the
 Supreme Court in Paradip Port Trust’s case and
 considering the phraseology of regulation 12(8) of

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 the said Act the prohibition cannot be applied to
 cases where the office bearer happens to be a legal
 practitioner. The said prohibition would operate
 only when the employee wants to engage a lawyer.
 In the result we find no merit in the appeal and
 the same is hereby dismissed.

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 The Supreme Court has observed as follows:

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 "15. If, however, a legal practitioner is
 appointed as an officer of a company or
 corporation and is in their pay roll and
 under their control and is not a practising
 advocate the fact that he was earlier a
 legal practitioner or has a legal decree
 will not stand in the way of the company or
 the corporation being represented by him.

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 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 then case of

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 an employer and in the capacity of an office
 bearer of the union in the case of workmen

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 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.

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 "17. We may note here the difference in
 language adopted in section 36(1) and
 Section 36(2). While Section 36(1) refers
 to "any member of the executive "or" other
 "office bearer", Section 36(2) instead
 mentions only "an officer". Now,
 "executive" in relation to a trade union
 means the body of whatever name called to
 which the management of the affairs of the
 trade union is entrusted under Section
 2(gg). "Office bearer" in relation to a
 trade union includes any member of the
 executive thereof but does not include an
 auditor Section 2(lll). 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

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 may well have been as done under section
 2(30) of the Companies Act. This is bound

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 to give rise to controversy when a
 particular person claims to be an officer of
 the association of employers. No single

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 test nor an exhaustive test can be laid down

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 for determining as to who is an officer in
 absence of a definition in the Act. When

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 such a question arises the Tribunal, in each
 individual case, will have to determine on

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 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

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 associations of employers and not of the
 company or corporation."

Board of Trustees of the Port of Mumbai and Ors. v. Vidyadhar Pandurang Rane

Case brief

What is this about?

What did the court decide?

Board of Trustees of the Port of Mumbai and Ors. v. Vidyadhar Pandurang Rane

Case brief

What is this about?

What did the court decide?

What the court decided

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