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Maharashtra Employees Union v/s M.K. Metal Industries & Others

    WRIT PETITION NO.324 OF 2010

    Decided On, 23 April 2010

    At, High Court of Judicature at Bombay

    By, THE HONOURABLE MR. JUSTICE S.J. KATHAWALLA

    Mr. Ashok D. Shetty a/w Ms. Rita K. Joshi, for the petitioner. Mr. Rahul Nerlekar for the Respondent.



Judgment Text

P.C.


Heard counsel for the parties.


2. Rule.


3. The learned Advocate for the Respondents waives service.


4. By consent, Rule made returnable forthwith and the matter is heard finally.


5. By the present writ petition, the Petitioner union is seeking to challenge the orders dated 5.12.2009 passed by the Industrial Tribunal, Mumbai in Reference (IT) No.24/2007, Reference (IT) No.35/2007 and Reference (IT) No.36 of 2007, allowing Mr. Nitin Thakur and Mr. Satyanarayan Hegde Advocate to represent the Respondent Nos.1 to 4-employers in the said three References.


6. According to the Petitioner, initially one Mr. Nitin Thakur vide Application dated 11.7.2008 sought permission of the Industrial Tribunal to allow him to appear on behalf of the respondent Nos.1 to 4 (employers) in the pending References. The Petitioner Union filed its reply and alleged that the said Mr. Nitin Thakur has no locus standi to represent the Respondents as per Section 36 sub-sections 2(a), (b) and (c) of the Industrial Disputes Act, 1947. The Industrial Tribunal, after hearing both the sides, rejected the application filed by Mr. Nitin Thakur on behalf of the Respondent Nos.1 to 4.


7. According to the Petitioner, thereafter, the Respondent Nos.1 to 4 through Mr. Satyanarayan Hegde Advocate filed an application dated 17th April, 2009 seeking permission to allow Mr. Hegde and Mr. Thakur to represent the Respondent Nos.1 to 4 on the basis of a Power of Attorney. After hearing both the sides, the Industrial Tribunal rejected the application by an order dated 29.4.2009, by only stating that it is not just, legal and proper to grant permission to Mr. Satyanarayan Hegde Advocate, to appear in the matter on the basis of the power of attorney attached to the application. The Industrial Tribunal did not mention in its order whether Mr. Nitin Thakur could be allowed to appear as representative of the Respondent Nos.1 to 4 or not. The Respondent Nos.1 to 4, therefore, filed Writ Petition No.6048 of 2009 before this Court and impugned the order passed by the Industrial Court, Mumbai dated 29.4.2009. This Court, vide order dated 24th August, 2009, set aside the order dated 29.4.2009 and directed the Tribunal to hear the parties and after considering the decisions in Management, Hindustan Motors Earth Moving Equipment Division Vs. Presiding Officer, Labour Court, Chennai & others, 2007 I CLR 976 and ICI India Ltd. Vs. Labour Court (IV) and another, 1992 I LLN 972, decide the matter afresh in accordance with law.


8. By an application dated 4th September, 2009 filed by the Petitioner before the Industrial Tribunal, Mumbai, it was alleged by the Petitioner that Mr. Nitin Thakur is a regular labour law practitioner and he has been appearing in various matters before the Labour Court, Industrial Court, Tribunal at Mumbai, Thane and Nashik, etc. It was also contended that Mr. Nitin Thakur is neither an employee of the Respondent Nos.1 to 4 nor he is an office bearer of any association etc. and hence his representation should not be allowed by the Industrial Tribunal. The Industrial Tribunal, after hearing both the parties, allowed the application filed by the Respondent Nos.1 to 4 vide order dated 5.12.2009 which is impugned in the present writ petition.


9. Learned Advocate appearing for the petitioner has relied on Section 36 of the Industrial Disputes Act which reads thus:


"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 other 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 workmen employed in, the industry in which the worker is employed and authorised in such a 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 authorised in such a 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 proceedings and with the leave of the Labour Court, Tribunal or National Tribunal as the case may be."


10. It is submitted by the learned Advocate appearing for the Petitioner that in the case of Paradip Port Trust Vs. Their workmen, (1977) 2 Supreme Court Cases 339, the Hon'ble Supreme Court has interpreted Section 36 of the Industrial Disputes Act threadbare. It is submitted that the Hon'ble Supreme Court in the said decision has categorically held that Section 36 is not exhaustive in the sense that besides the persons specified therein, there cannot be any other lawful mode of appearance of the parties as such and it is not intended that the Companies and Corporations are confined to representation of their cases only through the officers specified in Section 36(2) of the Act. It is clarified that this would not mean that the Companies and Corporations are free to engage legal practitioners by means of a special power of attorney to represent their interest before the Tribunal without consent of the opposite party and leave of the Tribunal. The learned Advocate for the petitioner has relied on paragraph 25 of the said judgment which reads thus :


"A lawyer, simpliciter, cannot appear before an Industrial Tribunal without the consent of the Opposite party and leave of the Tribunal merely by virtue of a Power of Attorney executed by a party. A lawyer can appear before the Tribunal in the capacity of an office bearer of a registered trade union or an officer of the Associations of employers and no consent of the other side and leave of the Tribunal will then be necessary"


It is therefore submitted that the Tribunal has wrongly allowed Mr. Satyanarayan Hegde Advocate to represent the Respondent Nos.1 to 4 on the basis of the power of attorney executed by the Respondent Nos.1 to 4 in the pending References before the Tribunal.


11. As far as allowing Mr. Hegde to represent Respondent Nos.1 to 4 on the basis of the power of attorney executed by the Respondent Nos.1 to 4 is concerned, the submissions made on behalf of the Petitioner are correct in its entirety. The learned Member of the Industrial Tribunal, in view of the decision in Paradip Port Trust (supra), could not have allowed Mr. Hegde Advocate to represent the Respondent Nos.1 to 4 on the ground that it can do so in view of the provisions of order 3 Rule 1 of the CPC. The decision of the Industrial Tribunal, to this extent, is not in consonance with the interpretation of Section 36(4) of the Industrial Disputes Act as set out by the Hon'ble Supreme Court in the case of Paradip Port Trust (supra). In view thereof, the decision of the Industrial Court allowing Mr. Hegde, Advocate to represent the Respondent Nos.1 to 4 in the pending References is hereby quashed and set aside.


12. As regards the permission granted by the Industrial Tribunal to Mr. Nitin Thakur to represent the respondents in the pending References, Mr. Shetty, the learned Advocate appearing for the Petitioner has submitted that in view of the decision in Paradip Port Trust (supra) and the decision of several High Courts including this Court, he concedes that an employer can, by way of a power of attorney, appoint an individual as his representative to represent him before the Tribunal in the pending proceedings. However, Mr. Shetty submits that Mr. Nitin Thakur, though not an Advocate, is a regular labour law practitioner and that he has been appearing in various matters before the Labour Court, Industrial Court/Tribunal at Mumbai, Thane, Nashik, etc. He has submitted that Mr. Nitin Thakur cannot be allowed to represent the Respondent Nos.1 to 4 before the Industrial Tribunal on this ground.


13. Admittedly, Mr. Nitin Thakur is not an Advocate. The impugned decision of the Industrial Court is on the application made on behalf of the Respondent Nos.1 to 4 and not by Mr. Nitin Thakur in his personal capacity. No document is produced by the petitioner to show that Mr. Nitin Thakur styles himself as a 'labour law practitioner'.


14. In the case of Perfect Paper and Steel Converters Pvt. Ltd. and another Vs. The Bombay National General Workers Union and others, reported in 1989 Mh.L.J. 518, it was inter alia contended before the Division Bench of this Court that the Appellant No.2, a person who is not an Advocate and called himself a Labour Officer, has no right to appear before the Industrial Tribunal. In its judgment the Division bench of this Court inter alia held that -


"The only question called upon to answer is whether the employer or the employee has a right to appoint a person of his choice to represent himself/itself before the Industrial Court. The question before the Court was not whether any person has a right to practice as a Labour Advisor or Labour Practitioner etc. The right to be represented by a person of one's choice is different from the right to practice as a Labour Adviser. The former is the right of the party and the latter is right of the practitioner. The Court is concerned only with the former and not latter."


In fact, in the said decision, the Hon'ble Division Bench of this Court gave a general direction to the Industrial Court that all cases where the parties make applications to the Industrial Court to be represented by a third person should be considered without taking into consideration the calling of the third person and the permission should be granted or refused in each case on its merits.


15. Similar issue arose before the Hon'ble Division Bench of the Orissa High Court in M/s Utkal Automobiles Limited Vs. Presiding Officer, Industrial Tribunal Orissa, reported in 1996 LAB.I.C. 815, wherein, after discussing the law laid down by the Hon'ble Supreme Court in Paradip Port Trust (supra) and the decision of this Court in K.K. Khadilkar Vs. Indian Hume Pipe Co. Ltd. Bombay and another, reported in AIR 1967 Bombay 521, the Hon'ble Division bench of the Orissa high Court held that:


"6. Coming to the facts of the case in hand, as noted earlier, Shri P.K. Mohanty is not a legal practitioner. The petitioner filed the application for representation in Form G stating that he is the Labour advisor of the Company. It is averred in the writ application that Shri P.K. Mohanty was a trade union leader who is now engaged in advising parties in labour matters and has considerable experience in dealing with the labour disputes in courts and tribunals. He has been duly authorized by a company to represent it in the case. Testing his eligibility to represent the company in the light of the principles enuncia

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ted in the aforementioned decided cases, the position is clear to us that the company is entitled to be represented by Shri P. K. Mohanty. The Tribunal was clearly in error in rejecting the application for representation on the ground that he was not an officer or an employee working under it, or in its pay roll." 16. In view of the admitted fact that Mr. Nitin Thakur is not an advocate and in view of the decision of the Hon'ble Supreme Court in Paradip Port Trust (supra), decisions of this court in K. K. Khadilkar (supra), Perfect Paper and Steel Converters Pvt. Ltd. (supra), decision of the Orissa High Court in M/s Utkal Automobiles Limited (supra) and in view of the petitioner having conceded, pursuant to the above stated rulings, that Mr. Nitin Thakur can be appointed by Respondent Nos.1 to 4 as representative under a power of attorney, the issue as to in how many matters Mr. Nitin Thakur has represented other parties as a representative is immaterial, irrelevant and need not be considered by the Industrial Tribunal. Under the circumstances, for the aforestated reasons, the order passed by the Tribunal allowing Mr. Nitin Thakur to represent the Respondent Nos.1 to 4 on the basis of a power of attorney would stand. 17. The Petition is accordingly allowed to the extent indicated above.
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