{"id":222930,"date":"2007-11-16T00:00:00","date_gmt":"2007-11-15T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/indrasan-parsad-vs-presiding-officer-and-anr-on-16-november-2007"},"modified":"2018-05-08T00:21:48","modified_gmt":"2018-05-07T18:51:48","slug":"indrasan-parsad-vs-presiding-officer-and-anr-on-16-november-2007","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/indrasan-parsad-vs-presiding-officer-and-anr-on-16-november-2007","title":{"rendered":"Indrasan Parsad vs Presiding Officer And Anr. on 16 November, 2007"},"content":{"rendered":"
Punjab-Haryana High Court<\/div>\n
Indrasan Parsad vs Presiding Officer And Anr. on 16 November, 2007<\/div>\n
Author: K Garewal<\/div>\n
Bench: K Garewal, P Pal, R Madan<\/div>\n<\/p>\n
<\/pre>\n
JUDGMENT<\/p>\n
K.S. Garewal, J. <\/p>\n
1. Representation of parties before a Labour Court is what  concerns us. However, before entering the arena of controversy, it would be  necessary to revisit the adjudication process of industrial disputes by Labour  Courts.\n<\/p>\n
2. The Industrial Disputes Act, 1947 provides the machinery and  procedure for the investigation and settlement of industrial disputes, which  are disputes or differences between employers and employers, or between  employers and workmen, or between workmen and workmen, which is  connected with the employment or non-employment or the terms of  employment or with the conditions of labour.\n<\/p>\n
3. In terms of Section 10 of the Act, where the appropriate  Government is of the view that any industrial dispute exists or is  apprehended, it may at any time, by order in writing refer the dispute either  to the Board for promoting the settlement thereof or to a Court of Inquiry or  the Labour Court or to a Tribunal for adjudication.\n<\/p>\n
4. Now coming to the question of representation of parties before  Labour Courts we may go straight to the relevant provisions regarding  representation of the employer. Section 36(2)(a)(b)&(c) gives the categories  of persons who can represent the employer. Section 36(3) categorically lays  down that no party to a dispute shall be entitled to be represented by a legal  practitioner in any proceeding before a Court. Nevertheless, in proceedings  before a Labour Court, a party can still be represented by a legal practitioner  but always with the consent of the other party and with the leave of the  Court. These two conditions appear to be necessary pre-requisites.\n<\/p>\n
5. The present reference to the Full Bench was necessitated when  the Division Bench was faced with a conflict of opinion between two  different lines of judicial thought, described in detail in the reference  order.\n<\/p>\n
6. Some factual background would be necessary as a prologue to  our decision. According to Indrasan Parsad, the industrial dispute was  referred to the Labour Court and registered as reference No. 272 of 1998.The  dispute was against M\/s Skytone Electrical (India) Ltd. An application was  filed by Indrasan Parsad under Section 36 to debar S.S.Saini and N.S.Rajput  from appearing on behalf of the employer since they were advocates (legal  practitioners).\n<\/p>\n
7. The application was resisted by the employer who pleaded that  Saini and Rajput were office bearers of an Employers Association of which  Skytone was a member. It was further stated that Saini and Rajput were  representing the management right from the beginning, whereas the  objection had been raised at a belated stage.\n<\/p>\n
8. According to the workman, he came to know about Saini and  Rajput being office bearers of the Association only when the reply was  filed. This fact had not been disclosed by the management whose duty was  to disclose the identity of the representatives so that the question whether  they could or could not appear, was decided on the first day.\n<\/p>\n
9. Indrasan Parsad’s application was dismissed by the Labour  Court, Faridabad, on April 16, 2004 and that order has been impugned  through C.W.P. No. 15425 of 2004.\n<\/p>\n
10. Provisions of Section 36 with regard to representation by legal  practitioners are contained in Sub sections (3) and (4). The former sub  section lays down an absolute bar but the latter permits representation by  legal practitioners with the consent of the other party and leave of the Court.  Before going to the stage of deciding this reference, it would be useful to  record some of the first principles of representation of a party before a  Labour Court or for that matter any Court.\n<\/p>\n
11. Every suit, complaint or dispute commences with the filing of a  complaint, an application or a petition pleading the essential facts and  raising the claim or dispute under the relevant provision of law. When the  dispute goes for adjudication before a Labour Court, on a reference under  Section 10, as in the present case, and the workman who has raised the  dispute is present and represented by any of the persons mentioned in  Section 36(1) of the Act, the representation of the workman before the  Labour Court would be complete.\n<\/p>\n
12. Thereafter, notice for appearance would be issued to the  opposite party, if that party is yet to appear. However, it is possible that the  employer may also be present before the Labour Court. Anyhow the  representation of the respondent\/employer would have to be in the manner  provided under Section 36(2), before the parties can be said to be properly  represented. The reference can then proceed to stage of exchange of  pleadings and adjudication or trial where necessary.\n<\/p>\n
13. Section 36(3) provides that no party shall be represented by a  legal practitioner but Section 36(4) lays down that a party to the dispute  may be represented by a legal practitioner with consent and leave.  Therefore, if a party before the Labour Court opts to appear through a legal  practitioner and no objection is taken by the opposite party, can it be said  that the representation of the party by a legal practitioner is complete  because consent has been given by implication.\n<\/p>\n
14. In the present case the management was always represented by  Saini and Rajput. The question is whether the workman can object to their  representation after the adjudication process had commenced.\n<\/p>\n
15. In every dispute there are or ought to be set procedures for  appearance of the parties, and for representation of the parties before the  concerned court. After the preliminaries are over, the stage is set for  proceeding further to the settlement of issues, recording of evidence and  pronouncement of judgment. It is a step by step approach and not an open- ended one. Once one stage is crossed, the next stage arrives. It is almost  akien to travelling to a given destination.\n<\/p>\n
16. In the present case Saini and Rajput appeared for the  management on the first date of hearing, July 31, 1998. Thereafter various  steps in the proceedings took place like filing of written statement, rejoinder  etc. Issues were framed on October 13, 1998. The case then moved to the  stage of recording evidence. An application was filed for interim relief on  October 13, 1998 to which a reply was filed, the application was dismissed.  On March 12, 1999 an application was filed for striking out the defence of  the management, reply thereto was filed. Case was fixed for evidence of the  management and witnesses were summoned. During all these proceedings  Saini and Rajput had been appearing but no objection was raised by the  workman. It was for the first time on September 2, 1999 that an application  was moved to object against the appearance of Saini and Rajput on the  ground that they were legal practitioners. This was the first objection  against the appearance of Saini and Rajput, but this is not the application  on which the impugned order was passed. A second was application filed on  August 2, 2001. This application was rather cryptic and stated that a legal  practitioner cannot appear under Section 36, because for this purpose it was  necessary to obtain the consent of the opposite party. If the opposite party  did not consent, legal practitioner cannot appear. Saini and Rajput were  practising advocates and the applicant had objected to their appearance.  Therefore, practising advocates should be prohibited from putting their  appearance.\n<\/p>\n
17. The management replied pleading that various proceedings had  taken place, Saini and Rajput had been representing the management from  the very beginning. They were office bearers of M\/s Progressive Employers  & Traders Association, Faridabad of which the respondent-management had  been a member since 1991. Saini and Rajput had the legal right to represent  its members. In the impugned order, reference was made to an earlier order  of the Labour Court dated May 16, 2001 to see if Saini and Rajput had been  debarred from representing the respondent. According to the learned Labour  Court there was no reference in this order barring Saini and Rajput because  reference was only to one P.P.Chhabra.\n<\/p>\n
18. The learned Labour Court referred to case law on both sides  and after discussing the pros and cons of the case, came to the conclusion  that the workman was fully acquainted with the proceedings and must be  imputed knowledge that Saini and Rajput were legal practitioners. Various  acts were performed by them, like accepting a copy of the claim petition,  filing written statement without any objection or prohibition. Therefore,  leave of the court having been impliedly granted coupled with implied  consent of the workman, could not be subsequently withdrawn.\n<\/p>\n
19. In industrial disputes before Labour Courts the general rule  appears to be that legal practitioners cannot represent the parties. Parties are  represented by certain categories of persons described in Section 36(1) and  (2). Nevertheless, a provision has been made for representation by legal  practitioners but only with consent and leave of the opposite party and  the Presiding Officer, respectively.\n<\/p>\n
20. At this point we may consider the judicial opinion in favour of  consent of party and leave of court and whether consent and leave must be  explicit or may be implicit or implied by circumstances.\n<\/p>\n
21. The foremost judgment on the subject is Paradip Port Trust v. Their Workmen<\/a> 1976 (II) Labour Law Journal page 52 (equivalent to ). In this case the dispute was raised by the workers Union with  regard to termination of the services of Nityananda Behera, a temporary  teacher in the Paradip Port Trust High School. The dispute was referred to  the Industrial Tribunal under Section 10(1)(d) of the Industrial Disputes  Act, 1947.\n<\/p>\n
22. The Union appeared before the Tribunal through its Adviser  and General Secretary while the Port Trust appeared through an Advocate,  who was a legal consultant of the Port Trust. The Trust filed the authority  in favour of the consultant and subsequently also filed a power of attorney  in his favour, executed by the Chairman of the Board Trust. The legal  consultant was a practicing Advocate of the High Court. An objection was  taken by the Union to the representation of the Advocate, the union also  refused to give consent to his representation. The Union’s objection was  upheld by the Tribunal by holding that the relationship between the Trust  and the lawyer was one of a client and his lawyer. The lawyer could not be  said to be an officer of the Trust. The execution of power of attorney could  not circumvent the restriction attached to legal practitioners under Sub  section 4 of the Act. The Trust filed an appeal before the Supreme Court to  challenge the decision of the Tribunal. After hearing weighty arguments on  both sides, Honble Mr. Justice P.K. Goswami in an erudite judgment  decided against the Trust and in favour of the Union. The most material  observation of the Supreme Court which is germane to the issue before us is  reproduced as under:\n<\/p>\n
Consent of the opposite party is not an idle alternative but a ruling  factor in Section 36(4). A lawyer, simpliciter, cannot appear  before an industrial Tribunal without the consent of the opposite party  and leave of the Tribunal.\n<\/p>\n
23. Our understanding of the opinion expressed in Paradip Port Trust’s  case is that where the employer relies upon implied consent or implied  leave, it necessarily means that he is referring to the provisions of consent  and leave in Section 36(4) of the Act. Therefore, consent of the party is the  ruling factor and without consent (and leave) a lawyer cannot appear before  a Labour Court. Both consent and leave must be explicit and cannot be  taken for granted by implication.\n<\/p>\n
24. The other ruling against implied consent and implied leave is  A.P.Power Diploma Engineers Association v. A.P.State Electricity Board  and Anr.<\/a> 1996(73) F.L.R. 997 (Full Bench of A.P.High Court). There  was an industrial dispute between the Engineers Association and Andhra  Pradesh State Electricity Board relating to the rate of allowance payable to  workmen for shift duty. The dispute was referred to the Industrial Tribunal.  An Advocate filed vakalatnama alongwith an application for being  permitted to appear on behalf of the Board. The application was rejected as  the Union did not consent to his appearance. Thereafter the same Advocate  filed an appearance for the Board styling himself as Joint Honorary Secretary of the Federation of the Andhra Pradesh Chambers of Commerce  and Industry. This was also objected by the Union and the Advocate was not  permitted to appear. The Union challenged this order through a writ petition  which was disposed of by remanding the matter to the Tribunal with a  direction to ascertain the status of the Association of Employers and the  nature of the office held by the Advocate. After remand the Tribunal come  to the conclusion that the Association was not the Association of Employers  and the Advocate was not its office bearer.\n<\/p>\n
25. The Full Bench held as follows:\n<\/p>\n
 Drawing up of such a panel of advocates and designating  them as Honorary Secretaries is nothing but an attempt to  overcome the provisions of Section 36(4) of the Act and the  relationship simpliciter of a lawyer and a client, otherwise  barred from being taken advantage of unless consented to by  the workmen, is sought to be white-washed to make it appear as  one authorized under another provision of the statute. The  attempt is directly over-reaching the dictum of the apex court  which in Paradip Port Trusts case laid down, while explaining  the concept of officer, that so far as lawyers are concerned their  representation must be made only in the manner contemplated  under Section 36(4) though, however, they can appear for  workmen as office-bearer of registered trade union.\n<\/p>\n
26. A Single Bench of the Rajasthan High Court in Bhawani Art  Handicrafts v. Gulab Singh and Ors. 1999 (82) F.L.R. 781 also relied  upon Paradip Port Trusts case to hold that an Advocate is not entitled to  appear before the Industrial Tribunal as an officer bearer of the employer. In  Bhawani Art Handicrafts case services of 10 workmen had been  terminated and reference was made to the Labour Court whether the  appearance of an Advocate as representative of the employer was objected  to by the workman on the ground that he was a practicing Advocate who  was not entitled to appear on behalf of the employer. The Court held that  merely branding an advocate as a member of an Executive Committee of an  Employers Association would not entitle him to appear before the Labour  Court to represent the employer.\n<\/p>\n
27. Similarly a Single Bench of the Gujarat High Court in  J.B.Transport and Ors. v. Shankarlal @ Mavaram Mathuji Patel 2000   (84) F.L.R. 353 held that representation of a legal practitioner as an office  bearer of the employers association would defeat the object of Section 36(2) of the Act. In J.B.Transport case the workman was a driver with the  Transport Company whose services were terminated. High Court also felt  that the Court rightly refused permission to appear on behalf of the  employers association.\n<\/p>\n
28. Reference was also made to judgment of the Delhi High Court  in Hindustan Motors Limited v. Presiding Officer 2004(1) Recent Services  Judgment 712. This was the judgment on the basis of which the present  reference was made to larger Bench. In this case the workman had appeared  through an Advocate but he had later objected to the appearance of an  Advocate on behalf of the management. At the time when he raised this  objection, the workman was not represented by any lawyer. The Court held  that the mere fact that the workman had not objected earlier to the  representation by the company through an advocate cannot be a ground to  deny him the benefit under Section 36 to raise the objection at a later stage.\n<\/p>\n
29. In Parsar Bharathi Broadcasting Corporation of India v. Suraj Pal  Sharma and Anr. 1999 ILLJ 1306 Delhi High Court made some  pertinent observations as follows:\n<\/p>\n
Sub-Section (4) of Section 36 enables a legal practitioner to  represent a party to a dispute in a proceeding before the Labour  Court or Tribunal with the consent of other parties to the  proceeding and with the leave of the Court or Tribunal which is  mandatory prerequisite. In this case the workman has not given  his consent for the representation of the management by a legal  practitioner. To consider the failure or inaction of a party in  raising the objection at an early stage of the proceeding as  implied consent and to deny him the right to object to the  representation of the other party by a legal practitioner, will be  against the spirit and content of the provisions of Section 36 of  the Act. The concept of implied consent cannot be imported  to the provision in Section 36(4) of the Act.\n<\/p>\n
30. We may refer to the contrary view which is that once an  Advocate had put in appearance on behalf of a party and no objection is  taken, it must be taken as implied consent of the opposite party and that  leave of the court was given by implication. Therefore, there was consent of  the opposite party and leave of the court.\n<\/p>\n
31. The first judgment is Calicut Co-operative Milk Supply Union  v. Calicut Co-operative Milk Supply Workers Union<\/a> 1986(II) L.L.J. 422.  In this case the Co-operative Society appeared through an Advocate and the  Workers Union also appeared through an Advocate. After a few years the  Union prayed that it be allowed to conduct the case without the consent of a  lawyer and simultaneously objected to the Co-operative Society from being  represented by its lawyer. This request was not allowed. The Kerala High  Court came to the following conclusion:\n<\/p>\n
This Section does not prescribe that the consent must be given  in a particular manner or in a particular form. If that be so, the  consent of a party which is the basis for the grant of leave to the  other party for being represented by a lawyer in a proceeding  under the I.D. Act, can be inferred from the surrounding  circumstances as also the conduct of the consenting party.\n<\/p>\n
32. Consent can be implied. The Section does not insist upon a  written consent. Consent once given cannot be revoked at a  later stage because there is no provision in the I.D. Act  enabling such withdrawal or revocation. To put it pithily the  consent once given by a party, entitling the other party to be  representing in the proceeding, by a lawyer would ensure to his  benefit till the proceeding is finally disposed of. I am fortified  in this view by a decision of the Calcutta High Court in Reckit  and Colman v. Jitendra Nath .  The High Court went on to hold that once consent had been  granted to allow an Advocate to appear for a party, that consent cannot be  subsequently revoked.\n<\/p>\n
33. A Division Bench of the Bombay High Court in A.D. Shastri v. S.D. Patil and Anr. 1975(I) I.L.J. 458 had held that an office bearer of  a trade union who happens to be an Advocate had an absolute right to  represent the union, clearly making no distinction between a legal  practitioner simpliciter and legal practitioner who was an office bearer of  the Union. A legal practitioner who was an office bearer would not be  subject to restrictions imposed under Section 36(4) of the Act.\n<\/p>\n
34. A Division Bench of Calcutta High Court in Infar India Ltd.Vs.  Madan Mohan Ghosh and others 2001(88) FLR 1019 held as follows: It is evident that any office-bearer of a trade union though he  is a legal practitioner can represent workmen likewise a legal  practitioner if he is an officer of an association of the employers  can also appear before the Tribunal. The Apex Court has  interpreted the provisions of Section 36(1) and 36(2) and has  taken the view that irrespective of fact that incumbent is a legal  practitioner will not affect his position if the qualifications  specified in Sections 36(1) and 36(2) are fulfilled.\n<\/p>\n
35. Likewise a Single Bench of the Bombay High Court in  Associated Cement Companies Ltd. v. Associated Cement Staff Union and Anr.<\/a> 2002 (92) FLR 148 also took a similar view. In this case the  company was represented by the workmens Union. One of those persons  was not even a legal practitioner, therefore, he was permitted to appear but  the other legal practitioner also claimed to be a member of the Employer  Federation of which the company was member. His representation was not  permitted.\n<\/p>\n
36. Interestingly Division Bench of this Court in Radhey Sham v. Presiding Officer, Labour Court (2003-3) Punjab Law Reporter Volume  CXXXV Page 827 held that there was no scope for conducting an enquiry  into motive for appointment of legal practitioners as office bearers of the  employers’ assoication. In Radhey Sharm’s case the workman had attacked  the appointment of very same Saini and Rajput as officers of M\/s  Progressive Employers & Traders Association and pleaded that the two of  them were Advocates and were precluded from representing the  management without the consent and leave.\n<\/p>\n
37. In the present case the impugned order was passed on the basis  of workman’s application dated August 2, 2001 Annexure P-1 wherein he  had not stated that Saini and Rajput were office bearers of any employer’s  assoication but he has attacked the representation of the management by  Saini and Rajput on the ground that they are practising Advocates.  Therefore, objection taken by the workman was on the basis of Section 36(3) and (4) and not Section 36(2). Consequently there is a distinctive feature  in this case which distinguishes it from Radhey Sham’s case. The impugned  order dated April 16, 2004 also proceeded on the basis that the workman  had given implied consent and the court had given implied leave since Saini  and Rajput had appeared on several dates and had performed several acts in  the proceedings. Radhey Sham’s case is clearly distinguishable from the  controversy before us. Therefore, the dictum of Paradip Port Trust’s case  in respect of matters covered by Section 36(2) would not apply to a case  such as the present case where the matter is under Section 36(3) and (4) and  depends upon whether implied leave and implied leave is valid or not.  We had in the earlier part of the judgment noted that legal  proceedings proceed along a set path. The Presiding Officer adopts a step  by step approach and no legal proceeding is an open ended afffair.  Embarking on a suit is like starting on a long journey. We feel that  controversy regarding the representation of a party through a legal  practitioner, be he simply a lawyer or an office bearer of the employers  association, should be decided and concluded at the very earliest. The large  body of judicial opinion of Section 36 of the Industrial Disputes Act  indicates that employer’s and workmen concentrate too much over whether a  lawyer can represent one or the other rather than the real industrial dispute  which is before the Labour Court for adjudication. This is indeed scathing  indictment of a system which seeks to promote speedy industrial justice.  Therefore, disputes over representation should be decided right at the outset  if the parties are to prevent long litigation over the interpretation of Section 36 and applicability of these provisions to a given case.\n<\/p>\n
38. We are therefore, of the considered opinion that there is no  scope for holding that a representation by a legal practitioner, concealing his  persona by adopting the status of office bearer of an association, can be  deemed to be granted consent of the workman by implication or implied  leave of the Court. To hold otherwise would permit legal practitioners to  masquerade as office bearers to circumvent the provisions of Section 36(4) of the  Act.\n<\/p>\n
39. We, therefore, hold that consent of the party must be specific  and after consent had been granted leave by the court must also be  specifically given under Section 36(4) if a legal practitioner is to appear for  any of the parties. Furthermore, such grant of specific consent and specific  leave should be at the beginning of the proceedings so that there remains no  ambiguity in the status of the legal practitioner who appears after due  consent and leave. Implied consent of the party or implied leave of the  court are alien to the provisions of Section 36(4) of the Act.\n<\/p>\n
40. This reference is answered in the above terms.<\/p>\n","protected":false},"excerpt":{"rendered":"
Punjab-Haryana High Court Indrasan Parsad vs Presiding Officer And Anr. on 16 November, 2007 Author: K Garewal Bench: K Garewal, P Pal, R Madan JUDGMENT K.S. Garewal, J. 1. Representation of parties before a Labour Court is what concerns us. However, before entering the arena of controversy, it would be necessary to revisit the adjudication […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,28],"tags":[],"class_list":["post-222930","post","type-post","status-publish","format-standard","hentry","category-high-court","category-punjab-haryana-high-court"],"yoast_head":"\nIndrasan Parsad vs Presiding Officer And Anr. on 16 November, 2007 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/indrasan-parsad-vs-presiding-officer-and-anr-on-16-november-2007\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Indrasan Parsad vs Presiding Officer And Anr. on 16 November, 2007 - 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