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Rajasthan High Court · body

2023 DIGILAW 2278 (RAJ)

Ambuja Cements Limited v. Hema Ram

2023-12-19

REKHA BORANA

body2023
JUDGMENT : Rekha Borana, J. 1. The issue involved in the present petitions being common, they are decided vide this common judgment. The facts of S.B. Civil Writ Petition No. 13161/2022 are being taken into consideration for the purpose of adjudication. 2. The present writ petition has been preferred against the order dated 29.07.2022 (Annex. 8) passed by learned Industrial Disputes Tribunal cum Labour Court (hereinafter referred as 'the Labour Court') whereby application filed on behalf of the respondent workman under Section 36(3) of the Industrial Disputes Act, 1947 (hereinafter referred to as 'the Act of 1947') has been allowed and that under Section 36(1) filed on behalf of the petitioner Company has been rejected. 3. The brief facts of the case are that respondent-workman raised an industrial dispute on 02.01.2018 and when no settlement was arrived at, the Conciliation Officer issued a certificate under section 2A of Industrial Dispute Act, 1947 (hereinafter referred as 'The Act of 1947') to approach the Labour Court for adjudication of the said dispute. The statement of claim was filed by one Mr. Himmat Singh, representative of the workman and after service of notices, vakaltnama (P/A) dated 21.01.2019 by Advocate Mr. Nitin Ojha was filed on behalf of the employer-company. The matter then proceeded on for the reply. On 23.02.2020, the authority letter was filed by one Mr. Ashok Trivedi to represent the workman. 4. Application under Section 36(1) of the Act was then filed by the counsel appearing on behalf of the employer-company with the submission that Mr. Ashok Trivedi has no locus to represent the workman, he not being the person related to cement industry and he being a banker. Secondly, Bhartiya Cement Majdoor Sangh of which Mr. Ashok Trivedi represented to be a Member of Executive/Officer Bearer was not a registered trade union and hence, he would not fall in the category of the persons entitled to represent the workman in terms of Section 36(1) of the Act. 5. A reply to the said application was filed and it was submitted that Bhartiya Cement Majdoor Sangh had applied for registration in terms of the Trade Unions Act, 1926 on 10.07.2018 which application was rejected vide order dated 06.09.2018 but the appeal against the said order was allowed on 31.10.2019 and the union was directed to be registered. 5. A reply to the said application was filed and it was submitted that Bhartiya Cement Majdoor Sangh had applied for registration in terms of the Trade Unions Act, 1926 on 10.07.2018 which application was rejected vide order dated 06.09.2018 but the appeal against the said order was allowed on 31.10.2019 and the union was directed to be registered. However, the said order when not complied with, a writ petition was filed before the High Court and ultimately, on 13.12.2021, the registration certificate of the union was issued by the Registrar of Trade Union, Jaipur. Meaning thereby, the union was registered and hence, Mr. Ashok Trivedi who was appointed as Law Minister/Legal Advisor of the said union, was entitled to represent the workman. 6. Consecutively, while filing reply to the above application, an application under Section 36(3) of the Act of 1947 was also filed on behalf of respondent-workman with the submission that counsel Mr. Nitin Ojha cannot be held entitled to represent the employer-company in terms of Section 36(2) and hence, in terms of Section 36(3), he cannot represent the employer-company. It was further submitted that there being no consent by the workman or leave of the Court, the exception as provided under Section 36(4) of the Act shall also not apply. A reply to the said application was preferred on behalf of the employer-company with the submission that there is no absolute bar for a legal practitioner to appear before the Labour Court/Tribunal and no party can withhold the appearance by denying consent without any reason. Further, it was submitted that the consent as provided under Section 36(4) can even be implied as no objection was raised on behalf of the opposite party at the time of filing of vakalatnama (P/A) and further, as the Court also did not restrain the counsel from appearing, it would be implied to be a deemed consent/leave. 7. After hearing the parties on both the applications, the Labour Court vide impugned order dated 29.07.2022, allowed the application under Section 36(3) as preferred on behalf of the respondent-workman and rejected the application under Section 36(1) as preferred on behalf of the employer. Aggrieved against the said order, the present writ petition has been preferred on behalf of the employer-company. 8. Aggrieved against the said order, the present writ petition has been preferred on behalf of the employer-company. 8. Reiterating the grounds as raised before the learned Labour Court, counsel for the petitioner relied upon the following judgments: i. Bank of India Staff Association & Anr. v. State Bank of India, (1996) 4 SCC 378 ii. T.K. Varghese v. Nichimen Corporation (2002) IV LLJ (SUP) BOM 1018, (2001) 4 LLN 187--- Writ Petition No. 2500 of 2000 Decided On: 26.02.2001 iii. Britannia Engg. Product & Services Limited v. II Labour Court; (2003) II LLJ 1024 (CAL) iv. B. Srinivasa Reddy v. Karnataka Urban Water Supply and Drainage Board Employee's Association and Ors.; AIR 2006 SC 3106 9. Learned counsel for the respondent, while supporting the order/judgment passed by the learned Labour Court, relied upon the following judgments: i. Paradip Port Trust, Paradip v. Their Workmen; AIR 1977 SC 36 . ii. The Pali Central Cooperative Bank Ltd v. Judge, Industrial Tribunal cum Labour Court, Jodhpur; 2000 (4) WLC 244 iii. Newspapers Ltd. Allahabad v. UP State Industrial Tribunal and others; AIR 1960 SC 1328 iv. The Management of Gammon (India) v. State of Orissa & Ors.; (1974) II LLJ 34 Orissa. 10. Heard learned counsel for the parties and perused the material available on record. 11. The first issue in the matter is-Whether after the issuance of notification dated 09.06.2011 vide which section 30 of the Advocates Act, 1961 has been notified to come into force with effect from 15.06.2011, the said provision would prevail over the specific provision of 36(4) of the Industrial Disputes Act, 1947? Meaning thereby, whether section 30 of the Advocates Act would prevail over Section 36(4) of the Industrial Disputes Act, 1947 and whether the bar provided under Section 36(4) of the Industrial Disputes Act would become redundant by virtue of section 30 of the Advocates Act? 12. The above issue no more remains res integra as the judgment in Paradip Port Trust (supra) had been referred to a larger Bench of the Hon'ble Apex Court and the reference has now been answered vide order dated 04.10.2023 passed in Thyssen Krupp Industries India Private Limited & Ors. v. Suresh Maruti Chougule & Ors. (Writ Petition (Civil) No. 1169/2018). The Hon'ble Apex Court while answering the reference held as under: “We are in agreement with the view adopted in Paradip Port Trust, Paradip's case (supra). v. Suresh Maruti Chougule & Ors. (Writ Petition (Civil) No. 1169/2018). The Hon'ble Apex Court while answering the reference held as under: “We are in agreement with the view adopted in Paradip Port Trust, Paradip's case (supra). As emphasized, the matter is not to be reviewed from the point of view of the legal practitioner but from the aspect of the employer and workmen who are the principal contestants in an industrial dispute as observed in the aforesaid judgment. We really find no ground to revisit the well settled position of law which has prevailed for almost half a century. We answer the reference accordingly.” 13. In the case of Paradip Port Trust (supra), it was held as under: “23. 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 any 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 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. 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: 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. (Maxwell on Interpretation of Statutes, 11th Edition, page 169.) “24. Second, the matter is not to be viewed from the point of view of legal practitioners but from that of the employer and workmen who are the principal contestants in an industrial dispute. It is only when a party engages a legal practitioner as such that the latter is enabled to enter appearance before Courts or tribunals. Here, under the Act, the restriction is upon a party as such and the occasion to consider the right of the legal practitioner may not arise.” 14. Meaning thereby, the view as taken in the case of Paradip Port Trust (supra) has been affirmed by the Hon'ble Apex Court wherein it was held that the Industrial Disputes Act, 1947 being a special Act will prevail over the Advocates Act, 1961 which is a general piece of legislation with regard to subject matter of appearance of lawyers before all Courts, Tribunals and other authorities. So far as the representation of legal practitioners in terms of the Act of 1947 is concerned, the same would be only in certain specified conditions and before the authorities as mentioned under the Act itself. The exceptions/conditions wherein/whereby a legal practitioner could appear were specified in the case of Paradip Port Trust (supra) as under: “16. So far as the representation of legal practitioners in terms of the Act of 1947 is concerned, the same would be only in certain specified conditions and before the authorities as mentioned under the Act itself. The exceptions/conditions wherein/whereby a legal practitioner could appear were specified in the case of Paradip Port Trust (supra) as under: “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.” 15. Thus, what can be concluded from the ratio as laid down in Paradip Port Trust (supra) and affirmed in Thyssen Krupp Industries (supra) is that the Advocates Act is a general legislation and would not override the special piece of legislation i.e. Industrial Disputes Act. Hence, inspite of the Advocates Act having been enacted, the provisions of the Act of 1947 would prevail. Section 36(3) of the Act of 1947 specifically bars a lawyer/legal practitioner to represent any party to a dispute and hence, the said bar would prevail subject of course, to the exceptions as provided in Section 36 itself. 16. Hence, inspite of the Advocates Act having been enacted, the provisions of the Act of 1947 would prevail. Section 36(3) of the Act of 1947 specifically bars a lawyer/legal practitioner to represent any party to a dispute and hence, the said bar would prevail subject of course, to the exceptions as provided in Section 36 itself. 16. The next issue now would be whether the present case falls under the purview of Section 36(4) of the Act of 1947 which provides an exception to Section 36(3) wherein it has been provided that a party may be represented by legal practitioner with the consent of other parties to the proceedings and with the leave of the Court or the Tribunal, as the case may be. 17. Arguing on the said issue, learned counsel for the petitioner submitted that this was a clear case of implied consent of the other party as no objection was raised by the respondent workman before the Labour Court when the vakalatnama was filed and hence, the consent once given, cannot be withdrawn or revoked. He further submitted that even the power to give consent in terms of Section 36(4) of the Act of 1947 is to the parties and not to the representative of the parties. In the present case, the application has been filed by Mr. Ashok Trivedi, representative of the respondent-workman and not by the workman himself. Therefore, the application as filed under Section 36(3) of the Act of 1947 by the representative is not maintainable. 18. Responding to the above argument, learned counsel for the respondent submitted that both the mandatory requirements as provided under Section 36(4) of the Act of 1947 have not been complied with as neither the respondent gave any consent for representation of the petitioner through a legal practitioner nor did the Court give any such permission. Further, no implied consent can be inferred from the surrounding circumstances as Section 36(4) mandates for a consent, only in writing. So far as the non-filing of any objection against vakalatnama is concerned, he submitted that the same could not be filed at that point of time due to Covid pandemic as at that point of time, only urgent matters were heard online by the Court. 19. Section 36 of the Act of 1947 reads as under: 36. So far as the non-filing of any objection against vakalatnama is concerned, he submitted that the same could not be filed at that point of time due to Covid pandemic as at that point of time, only urgent matters were heard online by the Court. 19. Section 36 of the Act of 1947 reads as under: 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) any member of the executive or office 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 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 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 Labour Court, Tribunal or National Tribunal, as the case may be.” 20. (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 Labour Court, Tribunal or National Tribunal, as the case may be.” 20. A perusal of Section 36(4) of the Act of 1947 makes it clear that it provides both for the consent of the other party as well as the leave of the Court/Tribunal. Even if it is assumed that there was an implied consent of the other party there being no objection available on record, admittedly, there is no order of granting leave by the Tribunal. This Court, in the case of Pali Central Co- operative Bank (supra), has held: “............ That apart, even assuming for the sake of arguments that when vakalatnama was filed by the lawyer for the Bank and the representative of the workman not objected to that, that itself was not sufficient because Section 36(4) of the Act clearly provides that it should be with the leave of the Tribunal. Unless and until the tribunal grants leave or permission to the Bank to appear through the lawyer, it cannot be presumed that there was a consent. In any case, one can never presume that allowing the advocate to file his vakalatnama for the Bank before it, the Tribunal deemed to have granted that leave or permission. There should be such order in writing.” The Division Bench of the Calcutta High Court, in the case of Air India Limited v. Presiding Officer & Ors, FMAT No. 1 of 2015 [2015 LAB I.C. 3071] decided on 09.06.2015, has held as under: “58. There could be a case where a party may have consented to the other party being represented by a legal practitioner, yet, may not be permitted such representation since the adjudicator has the final say. If he does not grant leave in the exercise of his discretion, it would be the end of the matter. There could be a case where a party may have consented to the other party being represented by a legal practitioner, yet, may not be permitted such representation since the adjudicator has the final say. If he does not grant leave in the exercise of his discretion, it would be the end of the matter. Conversely, even though the adjudicator may consider the desirability of allowing a legal practitioner to represent a party who is willing to engage him in course of deciding the industrial dispute referred to him, leave granted by the adjudicator to the parties to engage legal practitioners in the absence of even implied consent would be contrary to the provisions of section 36(4) of the ID Act. We are thus not persuaded to agree with the view that grant of leave is more decisive than consent, as held in T.K. Varghese (supra), because one condition is not to be read in derogation of the other. That the view expressed in T.K. Varghese (supra) is not good law has been laid down by another Division Bench of the Bombay High Court in the decision reported in 2005 (1) Mh LJ 1027 (Chandrakant Ganpatrao Deshkar v. All India Reporter). In view of Paradip Port Trust (supra), it is settled law that both the conditions have to be fulfilled if a legal practitioner is to represent a party before the adjudicator.” The Court further held: “66. We, therefore, answer the first two questions by holding that there could be circumstances wherefrom inference of consent by conduct or implied consent may be drawn but leave granted by the adjudicator has to be express or specific on exercise of judicial discretion and that such exercise must find reflection in the order-sheet maintained by the adjudicatory authority referred to in subsection (4) of section 36 of the ID Act. The concept of deemed leave is alien to the aim that the relevant provision seeks to achieve and to this extent the decision in Dipak Puri (1986 Lab IC 132 (Cal)) (supra) lays down the law correctly.” 21. Meaning thereby, even if a consent of the opposite party can be inferred, the leave granted by the Court has to be express and specific so as to be mentioned in the order sheet of the proceedings. Admittedly, there is no such order of grant of leave available on record. Meaning thereby, even if a consent of the opposite party can be inferred, the leave granted by the Court has to be express and specific so as to be mentioned in the order sheet of the proceedings. Admittedly, there is no such order of grant of leave available on record. Further, an application under Section 36(3) of the Act of 1947 by the other party is itself sufficient to show that the other party has not consented to the fact of representation of the employer by a legal practitioner. 22. In view of the above facts and the ratio as laid down, the finding as reached by the learned Tribunal being totally in consonance with the provisions of Section 36 of the Act of 1947 does not deserve any interference. The order whereby the application under Section 36(3) of the Act of 1947 as preferred on behalf of the workman has been allowed, is hereby affirmed. 23. Coming on to the application under Section 36(1) of the Act of 1947 as preferred on behalf of the petitioner Company, the issue is-Whether the workman could be represented by representative Mr. Ashok Trivedi? 24. Section 36(1) prescribes the persons through whom a workman can be represented in any proceeding under the Act of 1947. The first and essential condition prescribed is that the person representing the workman has to be a member of the executive or the office bearer of a registered trade union of which the workman is a member. The second category is of any member of the executive or the office bearer of a federation of trade unions to which the trade union of which the workman is a member, is affiliated. The third category applies when the workman is not a member of any trade union. In that case, he can be represented by any member of the executive/office bearer of any trade union connected with the industry in which the workman is employed or by any other workman employed in the said industry. 25. In the present matter, the authority letter had been filed by Mr. Ashok Trivedi stating himself to be the office bearer of Bhartiya Cement Mazdoor Sangh. It is admitted on record that on the date of reference and on the date of filing of said authority letter, the said cement trade union was not registered. 25. In the present matter, the authority letter had been filed by Mr. Ashok Trivedi stating himself to be the office bearer of Bhartiya Cement Mazdoor Sangh. It is admitted on record that on the date of reference and on the date of filing of said authority letter, the said cement trade union was not registered. The registration certificate, whatsoever, has been issued on 13.12.2021 in pursuance to the order passed by the Labour Court on 31.10.2019 in favour of the said union. The learned Tribunal while relying upon the Orrisa High Court judgment in The Management of Gammon (India) (supra), held that in matters of industrial disputes, the workman could be represented/assisted by the office bearers of the unregistered trade union too. 26. In the specific opinion of this Court, the said finding of the learned Tribunal being totally contrary to Section 2 of the Act of 1947 as well as the settled proposition of law, deserves to be and is hereby set aside. 27. Section 2(qq) of the Act of 1947 defines trade union as under: “trade union” means a trade union registered under the Trade Unions Act, 1926 (16 of 1926)” In B. Srinivasa Reddy (supra), the Hon'ble Apex Court specifically held that under the Act of 1926, unregistered trade union has no manner of right whatsoever, even the rights available under the Act of 1947 have been limited only to those trade unions which are registered under the Act of 1926 by insertion of Clause 2(qq) in the Act of 1947 w.e.f. 21.08.1984 defining a trade union to mean a trade union registered under the Act of 1926. As held in Calcutta High Court in Calcutta Port Trust Union v. Haldia Shore Ship & Transport; (2013) 3 CHN 253 (cal) the trade union which does not register under the Trade Union Act, cannot be treated as the trade union under the Industrial Disputes Act, 1947. Section 36, which deals with the representation of parties, in clear terms, stipulates that a workman is entitled to be represented in any proceeding under the Industrial Disputes Act by any member of the executive or other office bearer of a registered trade union. The Court in the said matter observed as under: “The word 'Registered Trade Union' is of great significance and can imbibe within it's contour the Trade Union Register under the Trade Union Act and not otherwise. The Court in the said matter observed as under: “The word 'Registered Trade Union' is of great significance and can imbibe within it's contour the Trade Union Register under the Trade Union Act and not otherwise. The said section further takes care of the interest of the workman who is not a member of a Trade Union to be represented by any member of the executive or other office bearer of any Trade Union connected with or by other workmen employed in the industry in which the worker is employed. In any of such eventualities, the representation is to be made through a Trade Union Registered under the Trade Union Act and not through any Association or Union which is not recognized under the said Act.” 28. Meaning thereby, the Industrial Disputes Act does not recognise a trade union other than which has been registered under the Trade Union Act. Admittedly, the date on which the authority letter in the present matter was filed by Mr. Ashok Trivedi, the union of which he claimed/represented himself to be the member/office bearer, was not registered. Hence, he did not fall in any of the three categories as specified under Section 36(1) of the Act of 1947. So far as the consequence of the said union being registered subsequently is concerned, in the opinion of this Court, the same can be of no consequence as the subsequent registration of the union cannot have a retrospective effect. On the date when Mr. Ashok Trivedi was authorised to represent the workman, the union was not registered and hence the objection as raised on behalf of the petitioner Company was very much tenable on the said date. It is nowhere the case of the workman that subsequent to the union being registered, a fresh power/authorisation letter was submitted by Mr. Ashok Trivedi or it was prayed that he is the member of the executive/office bearer of a trade union which is connected with the industry/union of which the workman is an employee/member. 29. The union being not registered on the date when the power/ authority letter was filed by Mr. Ashok Trivedi, in the specific opinion of this Court, he could not have represented the workman and hence the order whereby the application under Section 36(1) as preferred by the petitioner Company has been rejected by the learned Tribunal, is hereby set aside. The union being not registered on the date when the power/ authority letter was filed by Mr. Ashok Trivedi, in the specific opinion of this Court, he could not have represented the workman and hence the order whereby the application under Section 36(1) as preferred by the petitioner Company has been rejected by the learned Tribunal, is hereby set aside. The application as filed by the employer is allowed and it is held that Mr. Ashok Trivedi was not entitled to represent the workman on the date when the power/authority letter was submitted/filed by him. 30. In view of the above analysis and observations, the present writ petitions are disposed of. However, it would be open for the workman as well as the employer to file fresh applications for being represented by a representative in terms of Section 36 of the Act of 1947 and the learned Tribunal would be under an obligation to decide the same strictly in accordance with law. 31. The stay petitions and the pending applications, if any, also stand disposed of.