BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 12/07/2010
CORAM
THE HONOURABLE MR. JUSTICE R.S.RAMANATHAN
W.P.(MD)No.5239 of 2010
and
M.P.(MD)Nos.1 and 2 of 2010
National Horticultural Research
Development Foundation (NHRDF)
54, Pandiyan Nagar,
Dindigul ... Petitioner
Vs.
1.P.Murugesan
2.Presiding Officer,
Labour Court,
Trichy. ... Respondents
Writ Petition has been filed under Article 226 of the Constitution of
India praying for the issuance of a writ of Certiorarified Mandamus, to call for
the records pertaining to the order passed by the second respondent in
I.A.No.457 of 2009 inC.P.No.20 of 2009, dated 05.02.2010 and quash the same.
!For Petitioner ... Mr.V.O.S.Kalaiselvan
^For 1st Respondent ... Mr.P.MUrugesan
Party-in-Person
:ORDER
Heard both sides.
2.The point for determination in this writ petition is whether in the
claim petition filed by the worker, the management is entitled to engage an
Advocate without the consent of the worker as per section 36(4) of the
Industrial Dispute Act.
3.The 1st respondent filed C.P.No.20 of 2009 under section 33(c)(2) of the
Industrial Dispute Act before the Labour Court, Trichy claiming a sum of
Rs.7,67,205/- from the petitioner herein. In that claim petition, he appeared
in person and he did not engage any lawyer or trade union office-bearer. The
petitioner herein filed vakalat through counsel and that was objected to by the
petitioner and he filed an application in I.A.No.457 of 2009 under section 36(4)
of the Industrial Dispute Act stating that he is not giving consent for the
appointment of legal practitioner to the petitioner herein to prosecute the
claim petition filed by him and he is objecting the appointment of the legal-
practitioner and that petition has been allowed by the Labour Court. Aggrieved
by the same, this writ petition is filed by the petitioner.
4.The learned counsel appearing for the petitioner Mr.V.O.S.Kalaiselvam
submitted that the petitioner has a right to be represented by a legal-
practitioner and that cannot be objected to by the 1st respondent. In support
of his contention, the learned counsel appearing for the petitioner relied upon
the judgment of this Court reported in 2007(1) LLN 449 in the case of
Management,Hindustan Motors Earth Moving Equipment Division Ltd., Chennai Car
Plant, Thruvalloore vs. Presiding Officer, Principal Labour Court, Chennai and
others, 1986(II) LLJ 422 [Kerala] in the case of Calicut Co-operative Milk
Supply Union vs. Calicut Co-oerative Mil Supply Workers Union and in 1992(1)
L.L.N.972 AllaHabad, in the case of I.C.I.India Ltd., vs. Labour Court (IV) and
another and in 1991(63) FLR 635. Calcultta in the case of M/s.Durgapur Cinema
and another vs. 9th Industrial Tribunal, Durgapur and others.
5.Mr.V.O.S.Kalaiselvan, the learned counsel appearing for the petitioner
further submitted this Court has held in the judgment reported in 2007(1) L.L.N.
449 that denial of the right to engage a legal-practitioner would result in
violation of Article 21 of Constitution of India and as per Article 39-A of the
Constitution of India, free legal-aid is provided and therefore, the 1st
respondent cannot object that the petitioner should not engage a lawyer or
legal-practitioner in that case filed by him. He further relied upon the
judgment reported in 1992(1) LLN 972 (Allahabad), in the case of I.C.I India Ltd
vs. Labour Court (IV) and another, wherein the learned Judge held that debarring
lawyers appearing before the Labour Court/Tribunal are wholly arbitrary and
ultra vires of Arts. 14 and 19(I)(g) of Constitution of India. The learned
counsel appearing for the petitioner further submitted that the Labour Court has
no jurisdiction to entertain the claim petition and therefore, the jurisdiction
has to be argued and it can be done only a legally trained person and
therefore, the petitioner is entitled to have the assistance of a lawyer to
prosecute the claim petition filed by the respondent.
6.The 1st respondent appeared in person and he also submitted that he is
not a legally trained person and the petitioner has got employees, who are well
versed in legal and other matters and the petitioner can employ one of their
employers, representing the case before the court and if the petitioner is
allowed to engage a lawyer, they would take technical plea and delay the process
and therefore, the petitioner should not be allowed to represent by a Lawyer.
7.I have given my anxious consideration to the submission made by both the
parties.
8.The scope of section 36(4) of the Industrial Dispute Act was considered
by the Honourable Supreme Court in the judgment reported in (1976)II L.L.J
409(S.C) in the case of Paradip Port Trust v.Their Workmen and the Honourable
Supreme Court observed that the consent of the opposite party is not an idle
alternative but a ruling factor under S.36(4). The requirement of the statute,
cannot, therefore, be given a go-bye or wished away. This requirement is to be
complied with in order to give full effect to the provisions of S.36(4). Giving
or refusing consent is purely, a matter of the will of the party. If the consent
is refused, by any one of the parties, the question of leave of the adjudicator,
then does not arise.
9.As a matter of fact, the Learned Division Bench of this Court in the
judgment reported in A.I.R.1954 Mad. 1975 in the case of A.N.Rangasamy v.
Industrial Tribunal held as follows:- “S.36(4) is not open to attack as
discriminatory under Art.14, on the ground that while a litigant before a Civil
Court has a right to be represented by a Counsel, a party to the proceedings
before the adjudicatory Tribunal under this Act is denied that right. As it
makes no distinction between employers and employees, there is no
discrimination. Nor the fact, that the labour unions have persons with legal
education as their chief officers or that in effect the labourers have legal
assistance or that it is only the employer had that disadvantage, is a matter
which can be taken into account for deciding whether the sub-section(4), as it
stands, is repugnant to Art.14 of the Constitution.”
10.As a matter of fact, the Supreme Court in the judgment referred to
above has suggested that “it may even be possible that the conditional embargo
on S.36(4) may be lifted or its rigour considerably reduced by leaving the
matters to the Tribunal’s permission, as has been the case under the English
law.”
11.In the Full Bench judgment of the Honourable High Court reported in
[1995] Lab.I.C.2654(2662)(A.P.)(F.B) in the case of A.P. Power Diploma
Engineers’ Association vs. A.P. Electricity Board, the Honourable Court has
highlighted the ‘need to make a re-assessment and reach a conclusion at the
Legislative level as to whether in consideration of the totality of
circumstances, S.36(4) of the Industrial Disputes Act does not need a change so
as to vest either in the Court or the Tribunal the authority to consider in each
case the equities involved and allow, in suitable cases, representation by
lawyers of the parties in the same manner as is done by the Enquiring officers
in departmental proceedings conducted under the Disciplinary and Appeal Rules.
12.In the judgment reported in [1964]II L.L.J.614 (Mys) (D.B) in the case
of Madras-Bangalore Transport Co. vs. Madras-Bangalore Transport Co. Workers
Union, the Division Bench of Mysore High Court held that the the right to be
represented by a legal-practitioner is not a part of the fundamental right of
freedom of speech, or the right to hold property or the right to carry on any
trade or business. Therefore, the limited restriction imposed by S.36, enacted
by the Parliament in exercise of its legislative competence as conferred by
Constitution, cannot be viewed as an abridgement of any fundamental right.
13.In the judgment reported in [1992]I L.L.N.972, in the case of I.C.I
India Ltd., vs. Labour Court (IV) and another, the Allahabad High Court held
section 36(4) of the Industrial Dispute Act is unconstitutional and void. The
observation of the learned Judge in the rendered judgment is worth reproducing,
which are as follows:- “The argument that lawyers will cause delay is,in my
opinion, wholly frivolous. No doubt the aim of industrial adjudication is to
expeditiously decide an industrial dispute because industrial friction affects
not only the employer and the workmen,but also the public at large,but it is not
understandable how the appearance of a lawyer will obstruct expeditious
disposal. On the contrary a lawyer who is trained in labour law can quickly
focus the attention of the Labour Court/Tribunal to the main points of the
dispute, and place the relevant case-law so that the Labour Court can quickly
dispose of the dispute. Hence, debarring of lawyers, even with the proviso that
a lawyer can appear if the other side gives consent, is in my opinion, wholly
arbitrary. As a matter of fact, it is well-known that this arbitrary provision
in the two Industrial Disputes Act., viz. Se.36(4) in the Industrial Disputes
Act and S.6-I(2) of the Uttar Pradesh Industrial Disputes Act, has led to all
sorts of subterfuges. Lawyers have had to resort to creation of artificial
employer’s or employees’ organisations of which they claim to be
representatives, or appear as officers of the concern. This invites all sorts of
objections and much time of the Labour Court has to be wasted and devoted to
first deciding this matter before proceeding to dispose of the dispute on
merits. the provision, to my mind, is clearly arbitrary, and hence violative of
Art.14 of the Constitution of India.
5.The procedure in the Labour Courts, though slightly different from those
of the civil court, is still similar to it,and hence this requires study of the
procedure also,which an untrained person does not known. For example, certain
provisions of the Civil Procedure Code apply to the Labour Courts also, vide
S.11(3) of the Central Act. Similarly many other provisions in the Industrial
disputes Act are similar to the provisions in the Civil Procedure Code. It is,
therefore, wholly unreasonable to expect a layman to present his case properly
before the Labour Court without assistance of a specialised lawyer.
6.In my opinion,, the aforesaid provisions in both the Central and Uttar
Pradesh Acts are also violative of Art.19(1)(g) of the Constitution of India
since they amount to unreasonable restriction on a lawyer’s right to practise
his profession. A whole class of labour lawyers has sprung up after enforcement
of the Industrial disputes Act, and the aforesaid provisions amount to
unreasonable restriction on their right to practise. To say that lawyers raise
all sorts of technical objections to delay the disposal of the case, is to my
kind, a wholly frivolous objection. the Presiding Officer of the Labour
Court/Tribunal can always conduct the proceedings firmly and in such a manner
that no delay is caused, and he can always reject any objection which he finds
to be frivolous or hyper-technical and which comes in the way of speedy disposal
of the dispute.”
14.In the judgment rendered by our High Court in 2007(1) L.L.N 449, in the
case of Management, Hindustan Motors Earth Moving Equipment Division Ltd.,
Chennai Car Plant, Thiruvalloore vs. Presiding Officer, Principal Labour Court,
Chennai and others, this Court has held that when a worker is represented by a
well trained office-bearer of trade union, the management is also entitled to
have assistance of the lawyer and objection must be raised by the workers at the
earliest point of time and they should not raise belatedly. In this case, it is
not disputed that immediately after the petitioner entered appearance before the
Labour Court, objection is raised by the respondent by filing application.
Therefore, it cannot be stated that the application is filed belatedly. Further,
the respondent is not represented by any trade union office-bearers or legally
trained persons and he appears in person before the Labour Court as well as
before this Court. Therefore, it cannot be stated that by refusing the
management to engage a lawyer, it violatives Article 42 of the Constitution of
India and the workers is represented by a legally trained person.
15.As observed by the Honourable Supreme Court that the reason for consent
of the opposite party is not an idle ruling factor and therefore, unless the
section is amended, the management cannot claim as of right to engage a lawyer,
when the worker is not represented by any qualified lawyer or legally trained
trade union office-bearers. Though, the Honourable Allahabad High Court has
declared the section 36(4) as unconstitutional and void, having regard to the
judgment of the Honourable Supreme Court rendered in Paradip Port Trust case
referred to above wherein the Honourable Supreme Court has upheld the provision
of the Act and only suggested the Government to amend the section, I am not
inclined to follow the Allahabad High Court judgment reported in (1992)I
L.L.N.972, in the case of I.C.I India Ltd., vs. Labour Court (IV) and another in
preference to the judgment of the Honourable Supreme Court in Paradip Port Trust
case referred to above.
16.In the result, the writ petition fails and the same is dismissed.
Consequently, connected Miscellaneous Petitions are closed. No costs.
er
To,
The Presiding Officer,
Labour Court,
Trichy.