Dismissed

M/S.Larsen and Toubro v. Presiding Officer

Orissa HC24 Jul 2017OJC/17139/1997

Case brief

AI extract

What is this about?

The High Court of Orissa dismissed a writ petition challenging an order rejecting the management's plea that a practicing advocate could not represent workmen before the Industrial Tribunal without explicit consent and leave, holding the Tribunal was correct in upholding Section 36(4) of the Industrial Disputes Act.

What did the court decide?

The writ petition was dismissed, upholding the Industrial Tribunal's orders dated 31.10.1997 and 27.11.1997.

M/S.Larsen and Toubro Vs Presiding Officer — Service and Employment | Orissa HC (2017)

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HIGH COURT OF ORISSA: CUTTACK.

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O.J.C. No.17139 of 1997

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In the matter of application under Articles 226 and 227 of the Constitution of India.

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M/s Larsen & Toubro Ltd. …… Petitioner - VersusPresiding Officer,Industrial Tribunal and another …… Opposite Parties

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For Petitioner : Mr. S.Das

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For Opp.Parties : Mr. M.S.Sahoo, Addl.Government Advocate (for O.P.No.1) M/s Jaganath Patra, A.A.Das, R.Rath, B.Mohanty,T.K.Patnaik,S.Das & P.K.Nayak)

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PRESENT:

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THE HONOURABLE KUMARI JUSTICE SANJU PANDA &

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THE HONOURABLE SHRI JUSTICE SUJIT NARAYAN PRASAD

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-----------------------------------------------------------------------------------------Date of hearing and judgment : 24.07.2017

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S. N. Prasad, J. This writ petition is under Articles 226 and 227 of the Constitution of India whereby and whereunder the order dated 31.10.1997(Annexure-1) and order dated 27.11.1997(Annexure-2) passed by the Industrial Tribunal, Rourkela in I.D.Case No.74 of 1997 is under challenge.

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Fact of the case is that a reference has been made before the Industrial Tribunal, Rourkela vide I.D. No.74 of 1997 wherein the management has filed one petition dated 24.7.1997 praying therein to disallow Sri Muralidhar Dash to represent the second party workmen on the

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ground that he being a practicing Advocate and not an employee of the First party is not entitled to represent the second party-workmen.

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The workmen, second party, has filed reply stating therein that Mr. Dash is representing him in the capacity of Office bearer of the Union under the provision of Section 36 of the Industrial Disputes Act since he had represented the workmen before the labour authority without any objection on the part of the management.

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The Tribunal, after taking into consideration the provisions of law and the failure report where Sri Dash has represented the workmen in the capacity of General Secretary, Kansabahal Industrial Labour Associates, Kansabahal, has rejected the petition of the management.

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The management has also filed one petition under section 36(4) of the I.D.Act praying for engagement of Advocate but the same was rejected taking into consideration the provisions of Section36(4) of the I.D.Act.

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The management being aggrieved with both the orders is before this Court by way of the instant writ petition.

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Learned counsel for the management has submitted that the Tribunal has committed gross error in rejecting the petition dated 24.7.1997 without considering the provisions of section 3 of the Industrial Disputes Act,1947, according to him, provision of section 36 of the I.D.Act has to be read out along with the provisions of section 3 of the I.D.Act and in order to substantiate his argument, he has relied upon the judgment rendered by the Hon‟ble Apex Court in the case of State Bank of Indian Staff Association and another –vs- State Bank of India and others reported in AIR 1996 SC 1685.

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Learned counsel representing the workmen has vehemently opposed the submission of the management by submitting that Sri Muralidhar Dash is the General Secretary, Kansbahal Industrial Labour Associates and in that capacity he has contested the case of the members of

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the Union and as such Shri Dash is competent enough to represent the Union in view of the provisions of Section 36 of the I.D.Act and as such, taking into consideration this aspect of the matter the Tribunal is right in rejecting the petition of the management.

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So far as the order dated 27.11.1997 passed by the Tribunal is concerned, the submission of the learned counsel for the workmen is that an Advocate cannot be allowed to be engaged in view of the specific bar under section 36(4) of the I.D.Act.

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We have heard learned counsel for the parties and after perusing the documents available on record as well as the statutory provisions as contained in Section 36(4) of the Industrial Disputes Act which confers power to represent the parties before the Tribunal.

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This Court, after taking into consideration the judgments rendered by the Hon‟ble Apex Court, has passed detailed judgment laying down that representation by an Advocate is only permissible if the statutory ingredients of provisions as contained under section 36(4) of the I.D.Act is fulfilled, reference in this regard may in the case of M/s Orissa Ceramic Industries Ltd. –v- GS,Orissa CW Union , 1973 Lab.I.C 622 wherein their Lordships has been pleased to take into consideration of various aspects of the matter that if the parties will not be allowed to be represented through legal representative it will create hardship and also power of the court and dealt with provision of section 36(4) by discussing in detail that as to whether in absence or consent of the parties, can the Presiding Officer or the adjudicator grant leave. Their Lordships has been pleased to discuss the insertion of the word „and‟ in Section 36(4) in between the consent of the parties and leave of the court and after discussing in details it has been held there that if presuming that hardship will be caused to the parties but it is not up to the court to look into this matter rather is up to the legislature to see. Their Lordships has been pleased to hold that the word „and‟ will be conjunctive and the consent and leave of the court will depend upon each other. Thereafter, plea taken by the Management to allow them to represent

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through legal representative has been rejected by affirming order of the Presiding Officer of the Labour Court.

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Hon‟ble Apex Court in the case of Paradip Port Trust, Paradip –v- Their Workmen , reported in AIR 1977 Supreme Court 36 it has been held by their Lordship at paragraphs 15,21,22,23 and 26 which is being referred hereunder.

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“15. 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 a clear significance of section 36(4) of the Act.

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21. 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".

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Consent of the opposite part 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.

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Besides, it is also urged by the appellant that under section 30 of the Advocates Act, 1961, every advocate shall be entitled "as of right" to practise in all courts, and before only tribunal section 30(i) and (ii). This right conferred upon the advocates by a later law will be properly safeguarded by reading the word "and" as "or" in section 36(4), says counsel. We do not fail to see some difference in language in section 30(ii) from the provision in section 14(1) (b) of the Indian Bar Councils Act, 1926, relating to the right of advocates to appear before courts and tribunals. For example, under section 14(1) (b) of the Bar Councils Act, an advocate shall ;be entitled as of right to practise save as otherwise provided by or under any other law in any courts (other than High Court) and tribunal. There is, however, no reference to "any other law" in section 30(ii) of the Advocates Act. This need not detain us. We are informed that section 30 has not yet come into force. Even otherwise, we are not to be trammelled by section 30 of the

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Advocates Act for more than one reason. First, the Industrial Disputes Act is a special piece of legislation with the avowed aim of labour welfare and representation before adjudicatory authorities therein has been specifically provided for with a clear object in view. This special Act will prevail over the Advocates Act which is a general piece of legislation with regard to the subject matter of appearance of lawyers before all courts, tribunals and other authorities. The Industrial Disputes Act is concerned with representation by legal practitioners under certain conditions only before the authorities mentioned under the Act. Generalia Specialibus Non Derogant. As Maxwell puts it:

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"Having already given its attention to the particular subject and provided for it, the legislature is reasonably presumed not to intend to alter that special provision by a subsequent general enactment unless that intention be manifested in explicit language ...... or there be something in the nature of the general one making it unlikely that an exception was intended as regards the special Act. In the absence of these conditions, the general statute is read as silently excluding from its operation the cases which have been provided for by the special one."

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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 trade union or an officer of associations of employers and no consent of the other side and leave of the Tribunal will, then, be necessary.”

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Hon‟ble Supreme Court has interpreted section 36 of the Industrial Disputes Act. Views of the Hon‟ble Supreme Court, which we have gathered after going through various paragraphs, may be summarised as

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(i) Section 36(1) confers an 'unbartered' and 'absolute right' upon the workman to be represented by a member of the executive or an office bearer of the registered trade unions. Likewise, the employer is also placed at par with the workman in the matter of representation before the Labour Courts, Industrial Tribunals and National Tribunals. Consequently, an employer may also be represented by an 'Officer' of the association of employer of which the employer is a member. The right is extended to

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representation by an Officer of the federation of employer to which the association of employer is affiliated.

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(ii). The rights of representation under Section 36(1) of the ID Act are unconditional and are not subject to the conditions laid down in Section 36(4) of the ID Act. Both the sub-sections are independent and stand by themselves.

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(iii). Section 36 of the ID Act is not exhaustive in the sense that beside the person specified therein, there can be other lawful mode of appearance of the parties as such (para 13). Such an eventuality has been envisaged by Section 36(2)(c) in case of an employer, who is not a member of an association of employers. The device of representation provided therein would not fit in the case of a Government Department or a Public Corporation as an employer.

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(iv). A legal practitioner, who is appointed as an officer of Company or Corporation can represent them subject to certain conditions. The first condition is that he must be on their pay rolls and under their control. The second is that if a legal practitioner is appointed as an officer of a company or corporation then the mere fact that he was earlier a legal practitioner or he has a law degree to his credit was not to stand in the way of the Company or the Corporation being represented by such a person. Section 36(3) of the ID Act imposes a complete embargo on representation by a legal practitioner by either party to the dispute before the Court or in any conciliation proceedings under the Act.

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(v). In the matter concerning representation by a legal practitioner the parties are required to conform to the conditions laid down in Section 36(4) of the ID Act. The consent of the opposite party and the leave of the Labour Court or Tribunal have to be secured to enable a party to seek representation before the Tribunal through a legal practitioner.

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(vi). If a legal practitioner becomes an officer of an association of employer or a federation of such association of employer which is affiliated to such a federation within the meaning of subSection 2(a) and 2(b), then he can represent an employer.

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(vii). No advocate could claim a right to practice by placing reliance on Section 30 of the Advocates Act. That Act has to give way to ID Act because it is a special piece of legislation with the avowed aim of labour welfare.

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Thus, it is evident after perusing the judgment rendered by the Hon‟ble Apex Court in the case of of Paradip Port Trust, Paradip –v- Their Workmen (supra) having been rendered by the three Bench Judges of the Hon‟ble Supreme Court, provision of section 36(4) of the I.D. Act has exhaustively been dealt with and it has been held there that A lawyer, simpliciter, cannot appear before an Industrial Tribunal without the consent of the opposite party and leave of the Tribunal.

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Hon‟ble Delhi High Court in the case of Prasar Bharathi Broadcasting Corporation of India –v- Suraj Pal Sharma and another , reported in 1999(1) LLJ 1306 has discussed this issue in detail and after placing reliance of the judgment rendered by the Hon‟ble Apex Court in the case of Paradip Port Trust, Paradip –v- Their Workmen (supra) has been pleased to hold that the party will have to be conform in section 36(4) of the Industrial Disputes Act,1947 in the matter of representative by legal practitioner and both consent of the opposite party and leave of the tribunal will have to be secured to enable a party to seek representative before the Tribunal through legal practitioner.

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Moreover, judgment rendered by the Hon‟ble Delhi High Court in the case of Prasar Bharathi Broadcasting Corporation of India –v- Suraj Pal Sharma and another (supra) has been reversed by the judgment rendered by subsequent Division Bench of the Hon‟ble Delhi High Court in the case of M/s Bhagat Brothers –vs- Paras Nath Upadhyay in LPA No.212 of 2008, delivered on 13.8.2008 but we, after going through the judgment rendered by

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the Division Bench of Hon‟ble Delhi High Court in the case of Bhagat Brothers –v- Paras Nath Upadhyay (supra) have found that the Hon‟ble Delhi High Court has not taken into consideration the judgment rendered by the Hon‟ble Apex Court in the case of Paradip Port Trust, Paradip –v- Their Workmen (supra), hence we decline to approve the view of the Delhi High Court after taking into consideration the judgment rendered by the Hon‟ble Delhi High Court in the case of Prasar Bharathi Broadcasting Corporation of India –v- Suraj Pal Sharma and another (supra) in which issue has been discussed taking into consideration the ratio laid down by the Hon‟ble Apex Court in the case of Paradip Port Trust, Paradip –v- Their Workmen (supra) which still hold the field having binding precedence under Article 141 of the Constitution of India.

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We have gone through the judgment rendered by Hon‟ble Punjab-Haryana High Court in the case of M/s Hygienic Foods Malerkotla – vs- Jasbir Singh and others , rendered in LPA No.250 of 2009 in C.W.P.No.4322 of 2007 decided on 13.11.2009 by its Full Bench, it has been held after taking into consideration the law laid down by the Hon‟ble Apex Court in the case of Paradip Port Trust, Paradip –v- Their Workmen (supra) that legal practitioner cannot appear before the Industrial Tribunal or Labour Court or National Tribunal without consent of the parties and without leave of the Tribunal.

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We have also gone through the judgment rendered by Madurai Bench of Madras High Court in the case of The National Horticultural –vsThe Government of India passed on 2.11.2012 in Writ Petition (MD) No.11249 of l2012 and Writ petition (MD) No.11249 of 2012 wherein Hon‟ble Madras High Court after taking into consideration the proposition laid down in the case of Paradip Port Trust, Paradip –v- Their Workmen (supra) and after having discussed the impact of Section 30 of the Advocates Act, has been pleased to hold that the legal practitioner cannot be allowed to be represented in the Tribunal, or Labour Court or National Tribunal without consent of

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other party and without leave of the Tribunal, Labour Court or National Tribunal.

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After having gone through in detail we find that the proposition laid down by the Hon‟ble Punjab-Haryana High Court in the case of M/s Hygienic Foods Malerkotla –vs- Jasbir Singh and others is under consideration before the Hon‟ble Apex Court with respect to the constitutional validity of Section 36(4) of the Industrial Disputes Act.

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Thus, constitutional validity of Section 36(4) of the Industrial Disputes Act is under consideration before the Hon‟ble Apex Court and as such the judgment rendered by the Hon‟ble Apex Court in the case of Paradip Port Trust, Paradip –v- Their Workmen (supra) having been delivered by larger Bench consists of Hon‟ble Three Judges is still holds the field.

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So far as the order dated 27.11.1997(Annexure-2) is concerned, we, on the basis of the observations made by us in the case referred herein above, are of the view that the Tribunal has not committed illegality in rejecting the petition vide order dated 27.11.1997.

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So far as the legality and propriety of the order dated 31.10.1997 is concerned, we, after going through the materials available on record and the order impugned, have found that Sri Muralidhar Dash, at the relevant time, was the Office Bearer of Kansbahal Industrial Labour Associates, as would be evident from the reference of letter dated 30.5.1994 addressed to the Deputy Labour Commissioner wherein demand of equal status of the temporary workers with their counterparts regular workers have been made by him.

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We, after considering the provisions of Section36(1)(a) of the I.D.Act which provides power to represent upon any member of the executive or office bearer of a registered trade union of which he is a member.

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It is not disputed that workman is not member of the Association, second party, and as such in view of the provisions of section 36(1)(a) of the I.D.Act the authority of Mr. Dash cannot be questioned.

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So far as the contention of the petitioner that Section 36 should have been read along with section 3 of the I.D.Act, we, after going through the provisions of Section 3 of the I.D. Act and the objection of the parties the Works committee is to investigate and settle industrial disputes through three fold principles; (i) Voluntary negotiation, (ii) Mutation or conciliation; (iii) arbitration or adjudication.

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The institution of a works committee is the first step in the process of investigation and settlement of industrial disputes by the direct method of negotiations between the representatives of employers and the representatives of workmen engaged in an industrial establishment. The provision of section 3 of the Industrial Disputes Act has been taken note by the Hon‟ble Supreme Court Constitution of works committee has submitted in the provisions of section 3 of the I.D.Act has been taken note by the Hon‟ble Apex Court in the case of State Bank of Indian Staff Association and another –vs- State Bank of India and others (supra) wherein the Hon‟ble Apex Court has taken note of the provisions of Section 3 along with the provisions of the scheme of section 6 read with section 22 of the I.D.Act is similar to that of Section 36 of the I.D.Act,1947. While interpreting the intent of section 3, the Hon‟ble Apex Court has been pleased to observe the object of the constitution of the works committee which is for the purpose to promote measure for securing and preserving amity and good relations between the employer and workmen and to that end, to comment upon the matters of their common interest or concern and endeavour to compose any material difference of opinion in respect of such matters. It has further been observed under the I.D.Act the representatives of the workmen have to be chosen only from amongst the workmen already engaged in the establishment and not an outsider or an ex-workmen of the establishment

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concerned or any other person, hence it would not be correct to contend that having regard to the provisions of Section 36 read with Section 3 of the I.D.Act, an honorary/temporary member or a private individual is entitled to represent the workmen in the matters aforesaid.

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Learned counsel for the management has given much emphasis upon the judgment rendered in the case of State Bank of Indian Staff Association and another –vs- State Bank of India and others (supra) by submitting that the Tribunal taking into consideration the same has rejected the petition of the management vide order dated 31.10.1997 under section 3 of the I.D.Act, but that judgment is of no help to the petitioner since the objective of the insertion of the provision of section 3 of the I.D.Act is at all different to that of the intent of incorporating provision of section 36 of the Act.

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Hence in view of the proposition discussed above, we find no reason to interfere with the order dated 27.11.1991 passed by the Tribunal.

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Since it is not in dispute that Sri Muralidhar Dash, during the relevant time, was the General Secretary of the Association. The Tribunal, after taking note of these aspects of the matter, has passed the order dated 31.10.1997 which does not warrant any interference.

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Accordingly, we, sitting under Articles 226 and 227 of the Constitution of India, do not want to exercise the extraordinary jurisdiction since there is no perversity in the finding or error apparent on the face of the record, hence the order needs no interference.

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In the result, the writ petition fails and it is dismissed.

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Orissa High Court, Cuttack, Dated the 24^th July,2017/Palai

M/S.Larsen and Toubro v. Presiding Officer

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M/S.Larsen and Toubro v. Presiding Officer

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