IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED:- 20..01..2007
CORAM:
THE HONOURABLE MR. JUSTICE K.CHANDRU
W.P.Nos.20933 & 23606 of 2006
and
M.P.Nos.1 & 2 of 2006
and
W.P.Nos.22142 to 22145 of 2006,
M.P.Nos.1 & 2 of 2006 in W.P.No.22142 of 2006,
M.P.Nos.1 & 2 of 2006 in W.P.No.22143 of 2006,
M.P.Nos.1 & 2 of 2006 in W.P.No.22144 of 2006
and
M.P.Nos.1 & 2 of 2006 in W.P.No.22145 of 2006
W.P.No.20933/2006
The Management
M/s.Hindustan Motors Earth Moving
Equipment Division Limited,
Chennai Car Plant,
Adhigathur Village,
Kadambathur Post,
Thiruvalloore-631 203 ... Petitioner
.Vs.
1. The Presiding Officer,
Principal Labour Court,
Chennai.
2. Mr.T.Soundrarajan,
C/o Madras Chengalput General Workers Union,
No.3, Dr.Vasudevan Street,
Chennai - 600 010.
3. M/s. Catter Pillar India Private Ltd.,
(Erstwhile Hindustan Motors Limited
Earthmoving Equipment Division),
Thiruvallur - 602 004. . . Respondents This Petition is filed under Article 226 of the
Constitution of India to issue a writ of certiorarified
mandamus to call for records relating to I.A.No.117 of 2006
in I.D.No.514 of 2001 on the file of the first respondent
and quash the order dated 19.6.2006 made in I.A.No.117 of
2006 in I.D.No.514 of 2001 and consequently direct the first
respondent to permit the petitioner to be represented by its
counsel on record in I.D.No.514 of 2001 and quash the same
to call for the records of the respondent in connection
with the impugned show cause notice in PR.No.E2/CB/PR6/06
dated 22.5.2006.
For Petitioner : Mr.Sanjeev Mohan for
M/s. Ramasubramaniam & Associates
For Respondents: Mr.V.P.Rajendran, for R2
W.P.No.23606/2006
The Management
Caterpillar India Pvt Ltd.,
Melnallathur
Tiruvellore – 602 004 … Petitioner
.Vs.
1. The Presiding Officer,
Principal Labour Court,
Chennai.
2. Mr.T.Soundrarajan,
C/o Madras Chengalput General Workers Union,
No.3, Dr.Vasudevan Street,
Chennai – 600 010.
3. The Management,
Hindustan Motors Earthmoving Equipment Division,
Tiruvellore 602 004. … Respondents
This Petition is filed under Article 226 of the
Constitution of India to issue a writ of certiorari to
call for records of the first respondent and quash its
order dated 19.6.2006 in I.A.No.117 of 2006 in I.D.No.514 of
2001.
For Petitioner : Mr. John for
Mr.T.S.Gopalan
For Respondents : Mr.V.P.Rajendran, for R2
W.P.Nos.22142 to 22145 of 2006:
The Managing Director,
Tamil Nadu Cooperative
Milk Producers Federation Ltd.,
Chamiers Road,
Chennai-35. .. Petitioner in all the W.Ps.
Vs.
The Presiding Officer,
II Additional Labour Court,
Chennai. .. 1st respondent in all the
W.Ps.
M.Radhakrishnan .. R2 in Wps.22142/2006
& 22144/2006
P.Sundararaj .. R2 in WP.22143/2006
& 22145/2006
Writ Petitions filed under Article 226 of the
Constitution of India, all praying to issue Writs of
Certiorarified Mandamus to call for the records of the 1st
respondent respectively in I.A.No.68 of 2005 in C.P.No.209
of 2004; I.A.No.69 of 2005 in C.P.No.214 of 2004; I.A.No.70
of 2005 in C.P.No.455 of 2004 and I.A.No.71 of 2005 in
C.P.No.456 of 2004, all dated 3.3.2006, quash the same on
the ground that Section 36(4) of the Industrial Disputes Act
is ultra vires of Articles 14 and 19(1)(g) of the
Constitution of India and direct the 1st respondent to allow
the writ petitioner to engage an Advocate in the above said
C.Ps., without the consent of the 2nd respondent.
* * *
For petitioner in
all the W.Ps. : Mr.P.Gunaraj
For R.2 in
all the W.Ps. : Mr.G.Muthu
* * *
C O M M O N O R D E R
Writ Petition Nos.20933 & 23606 of 2006 have been
filed against the order of the Labour Court/first respondent
made in I.A.No.117/2006 in I.D.No.514/2001 dated 19.6.2006
and the other four writ petitions were filed against the
order in I.A.Nos. 68 to 71 of 2005 in C.P.Nos.209 of 2004,
214 of 2004, 455 of 2004 and 456 of 2004 respectively to
quash the identical order dated 03.3.2006 and also to
declare Section 36(4) of the Industrial Disputes Act, 1947
[for short, ‘I.D. Act’] as ultravires of Articles 14 and
19(1)(g) of the Constitution of India.
2. It is seen from the records that the second
respondent workman engaged an authorised representative to
defend him in I.D.No.514/2001, relating to his non-
employment. The writ petitioners were represented by a
counsel and they filed Vakalat as early as on 27.3.2002.
After 55 adjournments of the case, the workman filed an
application in I.A.No.117/2006 objecting to the writ
petitioner/management being represented by a legal
practitioner, taking advantage of section 36(4) of the
I.D.Act. This was resisted by a counter affidavit filed by
the writ petitioner/management stating that the fact
relating to the objection has been raised after five years
and after the pleadings were completed and when the
witnesses were about to be cross-examined and it was also
stated that once the workman did not object to the
appearance of the legal practitioner on the side of the
management, that would amount to implied consent and the
workmen has sprung a surprise after five years and has taken
a point that he is not granting consent for appearance of
the legal practitioner.
3. The Labour Court technically approached the
subject and sustained the objection raised by the workman by
its order dated 19.6.2006 solely on the ground that the
workman did not give consent. The Labour Court seems to have
relied on a catena of decisions of various Courts on the
question of consent. Even though the restriction under
section 36(4) has been upheld by the Supreme Court, in the
present case, we are only concerned with the application of
the said provision in a given situation. When once the
workman gives up his right to object to the appearance of
the counsel at the earliest stage and allowed the
proceedings to go on merrily for a period of five years
spanning over 55 adjournments as in the present case, there
is no reason as to why such an issue should be allowed to be
raised at the tail end of the proceedings. A speedy trial is
a must in any proceedings and the workmen has put spokes on
the proceedings by raising frivolous objection at the tail
end of the trial. Such an objection can never be allowed and
nowhere, Section 36 of the I.D. Act talks about any written
consent of a party to be obtained in the matter of another
party engaging a legal practitioner. In a given situation,
the hyper technical approach of the labour Court should be
avoided. Ultimately, the very creation of the Industrial
adjudication is for an early disposal of the claims of the
workman. But in the present case, unfortunately, the
matter relating to non-employment of the workman is pending
for more than five years at the hands of the Labour Court.
4. Without concerning about the same, learned counsel
for the workman states that the objection relating to the
consent for appearance can be raised at any time and he also
relied upon the decisions which were also cited before the
Labour Court. There is not a single decision of this court
has been cited holding the view that the objection relating
to the consent could be raised at any stage of the
proceedings. On the contrary, it must be held that if the
workman wants to exercise his right under section 36 of the
I.D. Act so as to prevent the employer from engaging a
lawyer, he should raise his objection at the earliest point
of time. In any event, this objection seems to be very
trivial considering the fact that often the workmen are
represented by a leader of a trade union who are well versed
in Labour Laws and many times they are also Advocates and if
such objections are raised at their behest, the managements
can also get a membership from some Chamber of Commerce and
can indirectly engage legal practitioners, who are otherwise
office bearers of such an organisation. The spirit of
Section 36 of the I.D. Act has been practically defeated by
the hide and seek game adopted by the parties before the
Labour Court over the years.
5. The second respondents in W.P.Nos.22142 to 22145
of 2006 are the workmen and they have filed Claim Petitions
under Section 33 C (2) of the I.D. Act before the Labour
Court, claiming certain amounts, which are due to them from
the writ petitioner/Management. These Claim Petitions were
resisted by the writ petitioner/Management which is a State
controlled Apex Milk Federation.
6. Pending Claim Petitions, the writ petitioner /
Management had filed I.A.Nos.68 to 71 of 2005 under Section
36(4) of the I.D. Act, stating that the second
respondents/workmen, though represented by a Trade Union
Leader, he is actually a legal practitioner, practicing in
High Court and other subordinate courts and since the writ
petitioner/Management is defended by an Officer of the
Federation, they are in a disadvantageous position and
therefore, they sought permission to be represented by their
Standing Counsel. This plea of the writ
petitioner/Management was resisted by the workmen on ground
that the Officers of the Federation themselves are the law
graduates and therefore, no such permission need be accorded
and that the Management need not be represented by a legal
practitioner and that the request itself has been made at
the time of examination of P.W.1 in the domestic enquiry.
Reliance was also placed to certain decisions of various
Courts to drive home the said point.
7. The Labour court, by identical orders dated
03.3.2006, sustained the objection raised on the part of the
workmen stating that unless there is a consent given by the
workmen, as a matter of right, the Management cannot have
the services of a trained lawyer. As the issue raised in
these two sets of writ petitions are the same, with the
consent of the parties, they were taken up together for
final disposal.
8. Article 22(1) of the Constitution of India deals
with protection against arrest and detention in certain
cases. The said article is extracted below:
“22. Protection against arrest and detention
in certain cases – (1) No person who is
arrested shall be detained in custody without
being informed, as soon as may be, of the
grounds for such arrest nor shall he be
denied the right to consult, and to be
defended by, a legal practitioner of his
choice.”However, there is a restriction on this right in cases of
persons who are arrested and detained under any law
providing for preventive detention and the Constitution
under Article 22(3)(b) makes it clear that this right is not
available to any detenu under preventive detention.
9. Section 11(4) of the National Security Act
specifically bars the representation of a detenu before the
Advisory board with the assistance of a legal practitioner.
But when this provision was challenged, a Constitution
Bench of the Supreme Court vide its decision reported in
1982 (1) SCC 271 [A.K.Roy vs. Union of India and
others] considered the same and upheld the said provision on
the ground that the said section is in conformity with
Article 22(3)(b) of the Constitution of India.
However, even while upholding the same, in paragraph 93, the
Supreme Court held as follows:
“93. We must therefore hold, regretfully
though, that the detenu has no right to
appear through a legal practitioner in the
proceedings before the Advisory Board. It
is, however, necessary to add an important
caveat. The reason behind the provisions
contained in Articl3 22(3)(b) of the
Constitution clearly is that a legal
practitioner should not be permitted to
appear before the Advisory Board for any
party. The Constitution does not contemplate
that the detaining authority or the
government should have the facility of
appearing before the Advisory Board with the
aid of a legal practitioner but that the said
facility should be denied to the detenu. In
any case, that is not what the Constitution
says and it would be wholly inappropriate to
read any such meaning into the provisions of
Article 22. Permitting the detaining
authority or the government to appear before
the Advisory Board with the aid of a legal
practitioner or a legal adviser would be in
breach of Article 14, if a similar facility
is denied to the detenu. We must therefore
make it clear that if the detaining authority
or the government takes the aid of a legal
practitioner or a legal adviser before the
Advisory Board, the detenu must be allowed
the facility of appearing before the Board
through a legal practitioner. We are
informed that officers of the government in
the concerned departments often appear before
the Board and assist it with a view to
justifying the detention orders. If that be
so, we must clarify that the Boards should
not permit the authorities to do indirectly
what they cannot do directly; and no one
should be enable to take shelter behind the
excuse that such officers are not “legal
practitioners” or legal advisers. Regard
must be had to the substance and not the
form since, especially, in matters like the
proceedings of Advisory Boards, whosoever
assistants or advises on facts or law must be
deemed to be in the position of a legal
adviser. We do hope that Advisory Boards
will take care to ensure that the provisions
of Article 14 are not violated in any manner
in the proceedings before them.”[Emphasis added]
10. When a matter relating to service regulation came
up before the Supreme Court, in its judgment reported in
(1983) 1 SCC 124 [Board of Trustees of the Port of Bombay
vs. Dilipkumar Raghavendranath, Nadkarni and others], the
Supreme Court had an occasion to consider the right of a
legal practitioner to defend an employee in a domestic
enquiry. In paragraphs 10 and 11, the Supreme court held
as follows:
“Para 10: … The situation is where the
employer has on his pay-rolls labour
officers, legal advisers – lawyers in the
garb of employees – and they are appointed
Presenting-cum-Prosecuting Officers and the
delinquent employee pitted against such
legally trained personnel has to defend
himself. Now if the rules prescribed for
such an enquiry did not place an embargo on
the right of the delinquent employee to be
represented by a legal practitioner, the
matter would be in the discretion of the
Enquiry Officer whether looking to the
nature of charges, the type of evidence and
complex or simple issues that may arise in
the course of enquiry, the delinquent
employee in order to afford a reasonable
opportunity to defend himself should be
permitted to appear through a legal
practitioner. Why do we say so ? Let us
recall the nature of enquiry, who held it,
where it is held and what is the atmosphere
? Domestic enquiry is claimed to be a
managerial function. A man of the
establishment dons the robe of a Judge. It
is held in the establishment office or a
part of it. Can it even be compared to the
adjudication by an impartial arbitrator or a
court presided over by an unbiased judge ?
The Enquiry Officer combines the judge and
prosecutor rolled into one. Witnesses are
generally employees of the employer who
directs an enquiry into misconduct. This is
sufficient to raise serious apprehensions.
Add to these uneven scales, the weight of
legally trained minds on behalf of employer
simultaneously denying that opportunity to
delinquent employee. The weighted scales
and tilted balance can only be partly
restored if the delinquent is given the same
legal assistance as the employer enjoys.
Justice must not only be done but must seem
to be done is not a euphemism for courts
alone, it applies with equal vigour an
rigour to all those who must be responsible
for fair play in action. And a quasi-
judicial tribunal cannot view the matter
with equanimity on inequality of
representation. …”Para 11: We are faced with the situation
where when the enquiry commenced, the rules
neither provided for permitting the
delinquent employee to be represented by an
advocate nor an embargo was placed on such
appearance. The rules were silent on this
point. But the Chairman of the appellant
while rejecting the request of the 1st
respondent seeking permission to appear
through a legal practitioner simultaneously
appointed M/s.R.K. Shetty and A.B.
Chaudhuary, Legal Adviser and Junior
Assistant Legal Adviser respectively, in the
employment of the appellant as Presenting-
cum-Prosecuting Officers. What does this
signify ? The normal inference is that
according to the Chairman of the appellant
the issues that would arise in the enquiry
were such complex issues involving intricate
legal propositions that the Enquiry Officer
would need the assistance of Presenting-cum-
Prosecuting Officers. And look at the array
of law officers of the appellant appointed
for this purpose. Now examine the approach
of the Chairman. While he directed two of
his law officers to conduct the enquiry as
prosecutor, he simultaneously proceeds to
deny such legal representation to the
delinquent employee, when he declined the
permission to the 1st respondent to appear
through a legal practitioner. Does this
disclose a fair attitude or fair play in
action ? Can one imagine how the scales were
weighted and thereby tilted in favour of the
prosecuting officer. In this enquiry the
employer would be represented by two legally
trained minds at the cost of the Port Trust
while the 1st respondent was asked either to
fend for himself in person or have the
assistance of another employee such as
Nadkarni who is not shown to be a legally
trained person, but the delinquent employee
cannot engage a legal practitioner at his
cost. Can this ensure a fair enquiry ? The
answer is not far to seek. Apart from any
legal proposition or formulation we would
consider this approach as utterly unfair and
unjust. More so in absence of rules, the
Chairman of the appellant was not precluded
from granting a request because the rules
did not enact an inhibition. Therefore,
apart from general propositions, in the
facts of this case, this enquiry would be a
one-sided enquiry weighted against the
delinquent officer and would result in
denial of reasonable opportunity to defend
himself. He was pitted against the two
legally trained minds and one has to just
view the situation where a person not
admitted to the benefits of niceties of law
is pitted against two legally trained minds
and then asked to fend for himself. In such
a situation, it does not require a long
argument to convince that the delinquent
employee was denied a reasonable opportunity
to defend himself and the conclusion arrived
at would be in violation of one of the
essential principles of natural justice,
namely, that a person against whom enquiry
is held must be afforded a reasonable
opportunity to defend himself.”[Emphasis added]
11. Further, in paragraph 13 of the very same
judgment, the Supreme Court held as follows:
“………. In fact one can go so as to say
that the Enquiry Officer in order to be fair
and just, whenever he finds the employer
appointing legally trained persons as
Presenting – cum Prosecuting officers must
enquire from the delinquent employee before
commencement of enquiry whether he would
like to take assistance of a legal
practitioner. The option then is with the
delinquent employee. In this connection,
we would like to refer to a weighty
observation on this point where dispute
constitutional inhibition this Court
conceded such a right. In A.K.Roy v.
Union of India at page 334 (Para 93) [1982
SCC (Cri) p.208], the learned chief Justice
while rejecting the contention that a detenu
should be entitled to appear through a legal
adviser before the Advisory Board observed
that Article 22(3)(b) makes it clear that
the legal practitioner should not be
permitted to appear before any Advisory
Board for any party. While noting this
constitutional mandate, the learned Chief
Justice proceeded to examine, what would be
the effect if the department is represented
before the Advisory Board by a legally
trained person. It was held that in such
a situation despite the inhibition of
Article 22(3)(b) the fair procedure as
contemplated by Article 21 requires that a
detenu be permitted to appear by a legal
practitioner.”
[Emphasis added]
12. Therefore, it is clear that the line of decisions
of the Apex court makes it clear that if there is an
imbalance in the matter of defending proceedings before a
quasi-judicial body, then it will result in violation of
Article 14 of the Constitution of India. Therefore, the
authorities must permit the defence by a legal practitioner
if one party has such a facility even if there was a
constitutional / legal bar under a statute. Section 36(4)
of the I.D. Act must therefore be interpreted only in this
context.
13. When a question came up before the Allahabad High
Court, the Honourable Markandey Katju, J. (as he then was),
vide his decision reported in 1992 – 1 L.L.N. 972 [I.C.I.
India Ltd. vs. Labour Court (IV) and another], held that
Section 36(4) of the I.D. Act and a similar provision i.e.,
6-I (2) of the U.P. Industrial Disputes Act are ultravires
of the Constitution. For holding Section 36(4) of the
I.D. Act as unconstitutional, the learned Judge held as
follows in paragraphs 3 to 6 of the said judgment, which are
usefully extracted below:
“…… In my opinion, S.6-1(2) of the Uttar
Pradesh Act as well as S.36(4) of the Central
Industrial Disputes Act are ultra vires
Arts. 14 and 19(1)(g) of the Constitution of
India, and are consequently illegal. It is
well known that industrial law is a
complicated branch of law, and only persons
who have knowledge of labour laws, and also
some practical experience, can properly
represent the parties before the Labour Court
/ Tribunal. The principles of labour laws
are quite different from the principles of
ordinary civil law, and what to say of a lay
man even an ordinary civil lawyer, unless he
has studied labour law, cannot properly
present the case before the Labour Court /
Tribunal. For example, it is an established
principle in labour law that the Labour Court
has got powers which no civil Court has got,
example to create contracts, and to enforce
contracts of personal service. Labour law
is largely Judge-made law, and hence only a
person who has studied this branch of law can
properly represent a party before the Labour
Court. It has become a highly technical
branch, and only trained persons can properly
assist the Labour Court / Tribunal in the
matter. Hence, to debar lawyers merely
because the opposite party objects is wholly
unreasonable and arbitrary.”
Para 4: 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, 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, 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., S.36(4) in the Industrial
Disputes 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 Article 14 of the
Constitution of India.
Para 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
know. For example, certain provisions of the
Civil Procedure Code apply to the Labour
Couts 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.
Para 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 mind, 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 find to be frivolous
or hypertechnical and which comes in the way
of speedy disposal of the dispute.”
[Emphasis added]
14. The learned Judge when confronted with the
judgment of the Supreme Court reported in (1976) 1
L.L.J.
409 [ Paradip Port Trust vs. Their Workmen] held that
the said judgment did not deal with the vires of Section
36(4) of the I.D. Act and hence, has no application in
deciding the vires of the provision. In the present case,
though in one set of writ petitions vires of Section 36(4)
of the I.D. Act has been raised but proper parties, i.e.,
the Union of India and State of Tamil Nadu, have not been
made as parties and hence, I am unable to take up the
Constitutionality of the said provision.
15. While striking down Section 20-A of the Haryana
Ceiling on Land Holdings Act which prohibited the lawyers
from appearing before any authority or officer functioning
under that Act and delivering the Judgment on behalf of the
Full Bench of the Punjab and Haryana High Court in AIR 1977
Punjab & Haryana 221 [Smt.Jaswant Kaur and another vs.
The State of Haryana and another], Justice O.Chinnappa
Reddy (as he then was) quoted a poem to highlight the
distrust shown on legal practitioners’ appearance by
enacting such legislative exclusions. In paragraph 18 of
the said judgment, the following passage is found:
“Para 18: ……. While it is not for us to
question the legislative wisdom in enacting
S.20-A, we are unable to discover any reason
for the provision. Perhaps it is founded on
the unfounded distrust expressed by a wit:
“In the heels of the higgling
lawyers,
Too many slippery ifs and buts and
howevers.
Too much hereinbefore provided whereas,
Too many doors to go in and out of,
When the lawyers are through
What is there left Bob ?
Can a mouse nibble at it
And find enough to fasten a tooth
in ?”
Thus, saying so, the Full Bench of the Punjab and Haryana
High Court removed the bar imposed on Advocates appearing
before an authority or Officer functioning under that Act.
16. This view of the Full Bench of the Punjab and
Haryana High Court was subsequently approved by the Supreme
Court vide its decision reported in (1987) 2 SCC 692
[H.S.Srinivasa Raghavachar vs. State of Karnataka and
others] in which it was held that Section 48-A of the
Karnataka Land Reforms Act, 1961 prohibiting legal
practitioners from appearing in a proceedings before the
Tribunal constituted under that Act as ultravires in the
following lines:
“Para 9: … We adopt the reasoning of the
High Court of Punjab and Haryana and direct
that Section 48(8) will not be enforced so as
to prevent advocates from appearing before
the Tribunals functioning under the Act.”
Though in the decision of the Full Bench of the Punjab and
Haryana High Court in the Haryana Land Ceiling case and the
Supreme Court judgment in the Karnataka Reforms Act, the
issue of bar on advocates was decided on the basis of the
legislative competence of the State, these two decisions are
only quoted to show the trend of judicial decision making in
the matter of prohibition of legal practitioners’ appearance
before quasi-judicial bodies.
17. Per contra, the learned counsel appearing for the
respondents workmen submitted that the Division Bench of the
Delhi High Court upheld the Constitution validity of Section
36 in its judgment reported in 1988 – 1 – L.L.J. 135 [The Co-
operative Store Ltd., New Delhi vs. O.P.Dwivedi P.O.
Industrial Tribunal II and others]. The learned counsel
for the workmen also drew the attention of this Court to the
two judgments of this court interpreting Section 36(2) of
the I.D. Act. The first judgment is the one reported in
1998 (1) L.L.N. 712 [R.M.Duraiswamy vs. Labour Court,
Salem and others] where the learned Judge of this Court
held as to the true scope and meaning of Section 36(1) and
36(2) of the I.D. Act. But, however did not decide the
issue which is nhow before this Court.
18. The same view was followed by another learned
Judge of this Court vide his judgment reported in 2001 (2)
L.L.N. 1111 [Tamil Nadu Industrial Co-operative bank Ltd.
vs. Presiding Officer, Labour Court, Coimbatore and
another]. Therefore, the issue raised in this writ
petition has not directly come up for consideration before
this Court. However, the learned counsel appearing for
the workmen submitted that several other High courts have
considered this point and this Court is bound to take note
of the same and adopt the reasoning which are in favour of
the workmen.
19. In this context, a reference was made to the
following judgments for the proposition that the consent of
the workman is essential for the Management to engage a
lawyer and that consent cannot taken to be implied and the
question of consent can be raised at any time of the
proceedings.
(i) 1998 (4) L.L.N. 908 [General Manager,
National Bank for Agricultural and
Rural Development vs.
Presiding Officer,
Industrial Tribunal – I, Hyderaband and
another] – Andhra Pradesh High Court.
(ii) 1999 (1) L.L.N. 983 [Prasar Bharathi
Broadcasting Corporation of India
vs. Suraj Pal Sharma and others] –
Delhi High Court.
(iii)1999 (2) L.LN. 1070 [ Bhavani Art
Handicrafts vs. Gulab Singh and
others – Rajasthan High Court
(iv) 1999 (4) L.L.N. 290 [J.B. Transport
Company and others vs. Shankarlal
@ Mavaram Nathuji Patel] – Gujarat High
Court.
(v) 2003 (2) L.L.N. 773 [Lakshmi
Engineering Industries vs. State
of Rajasthan and others] – Rajasthan
High Court.
(vi) 2004 Lab. I. C. 4035 [Management of
Muttapore Tea Estate, Assam vs.
Presiding Offcer, Labour Court,
Dibrugarh, Assam] – Gauhati High Court.
(vii)2004 (2) SLR 665 [Grapes Synthetics
Pvt. Ltd. vs. The Judge, Labour
Court, Bhilwara] – Rajasthan High
Court.
(viii) 2005 (105) FLR 300 [Chandrakanth
and others vs. All India Reporter
Ltd.] - Bombay High Court - Nagpur
Bench.
(ix) 2005 (105) FLR 256 [Brooke Bond Lipton
India Ltd. vs. Brooke Bond Sramik
Union] – Orissa High Court.
(x) 2004 – 1 CLR 163 [Hindustan Motor Ltd.
vs. Presiding Officer and others] –
Delhi High Court
20. However, in none of the above decisions, there is
any reference to the Constitution Bench judgment of the
Supreme Court in A.K.Roy’s case (cited supra) wherein even
against a constitutional and statutory bar, the Apex
Court observed that if one side is represented by a legal
practitioner, then the other side cannot be denied as it is
discriminatory and violative of Article 14 of the
Constitution of India. Even the effect of subsequent
decision of the Supreme Court in Bombay Port Trust case
(cited supra) was not considered in its real spirit.
21. Even though in the present petitions, the
aggrieved party is Management, we will have to consider the
case in all angles. In these days, most of the cases
before the Labour Court are all matters relating to non-
employment of individual workman filed under Section 2 A of
the I.D. Act or in the alternative, claim petitions filed
under Section 33 C (2) claiming certain amount as are due
to the workmen from their employer and it is a common
knowledge that most of these cases are filed by
individuals, who are having no affiliation to any trade
Union. In that context, if they are pitted against
officers of any Management trained in law representing the
Management, that will also result in a disadvantageous
position to the workmen.
22. Further, gone are the days, to presume that the
entry of the lawyers will bring in technicalities to
industrial adjudication, which will result in delay in
disposal. Today, notwithstanding that the finality is
attached to the Awards of the Labour Courts, large number of
matters are taken to High Court, first, by way of writ
proceedings and thereafter, by intra-Court appeals and
sometimes even to the Supreme Court. Also the field has
become highly technical as pointed by the Allahabad High
Court. Given a situation when many technicalities are
involved in getting the dispute adjudicated, we cannot
consider an individual workman or an untrained trade
representative defending their case without legal
assistance. Today, thanks to Article 39-A of the
Constitution of India providing for legal aid to poor and
the Parliament has
also enacted Legal Aid Services Authority Act and such
authorities having been created from Taluk level to the
level of Supreme Court, a workman can have the assistance of
a lawyer of his choice, if those names are in the panel of
the Legal Aid Services and such a legal assistance can be
obtained free of cost. We should have a new look on the
issue relating to Section 36(4) of the I.D. Act.
23. In the present sets of writ petitions, it is seen
that though the workmen were technically represented by a
leader of the Trade Union to which they belong, but,
however, the said representative (G.Muthu) is an Advocate
practising before the High Court and the other Subordinate
Courts and who has rich experience in dealing with labour
laws for over 30 years. If the same benefit is denied to
the Management on the basis of the workmen not giving
consent in terms of Section 36(4) of the I.D. Act, certainly
it will result in an imbalance being created in defending
the case before a quasi-judicial body and it will violate
Article 14 of the Constitution of India. This type of
withholding of consent by the workmen was never contemplated
in a case where workmen have a trained lawyer whereas the
Management (in the second set of cases, a Public Sector
Management) is not being allowed to defend its case by a
legal practitioner. This had resulted in an anamolous
situation. In fact, in the garb of exercising their right
of withholding consent in the first set of cases, the
workman and his representative waited for 55 adjournments
and had allowed the Management to be represented by a lawyer
including filing vakalat at an earlier point of time and
have raised this issue after a period of five years.
24. In the second set of cases involving the Milk
Federation, which is an Apex Co-operative Society, they
themselves were forced to file an application seeking for
permission of the Court to engage a lawyer and the same was
resisted by the workmen and their representative especially
while deciding a claim petition filed under Section 33 C (2)
of the I.D. Act which is only in the nature of an execution
petition.
25. Therefore, for the aforesaid reasons, I hold that
in the case of the respondents / workmen engaging a trained
reasoned lawyer in the garb of a trade union leader, the
writ petitioner Managements should not be denied the very
same right by relying upon Section 36(4) of the I.D. Act.
This will result in grave injustice and will be in
violative of Article 14 of the Constitution of India in the
light of A.K.Roy’s case and Bombay Port Trust case (cited
supra). Therefore, the impugned orders passed by the
first respondent Labour Courts dated 03.3.2006 and 19.6.2006
are hereby set aside and it is directed that the respondent
Managements are entitled to engage a legal practitioner of
their own choice in the peculiar facts and circumstances of
the cases.
26. Since the first set of cases relate to non-
employment and the matter is held up for five years, the
Presiding Officer, Labour Court, Chennai, is directed to
dispose of the same within a period of three months from
today, which is the period contemplated under the provisions
of the I.D. Act. In the second set of cases, as it is only a
claim petition, which is in the nature of an execution
petition and it is also of the year 2004, the II Additional
Labour Court, Chennai, is directed to dispose of the same
in accordance with law within a period of three months from
today. Both the workmen and Management in all the writ
petitions are directed to co-operate in getting on with the
trial without putting any further spokes on the smooth
progress of the trial.
27. The writ petitions are allowed with the above
directions. Consequently, connected Miscellaneous
Petitions will stand dismissed as unnecessary. However,
there will be no order as to costs.
vsi/rao/gri
To
1. The Presiding Officer,
Principal Labour Court, Chennai.
2. The Presiding Officer,
II Additional Labour Court,
Chennai.