1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 4127 OF 2009 Sanjay Chandrakant Gaikwad ...Petitioner Vs. Vickers System International Ltd. and Anr. ... Respondents --- Ms. Gayatri Singh i/f Ms. Bhavana Mhatre for Petitioner Shri K.S. Bapat i/b. Shri Avinash H. Fatangne for Respondent No.1 ---- CORAM: V.M. KANADE J. DATED 18TH JULY, 2009. P.C. 1. By this petition, which is filed under Articles 226 and 227 of the Constitution of India, the Petitioner is challenging the order passed by the Presiding Officer, 3rd Labour Court, Pune dated 9.9.2008 directing Advocate Mr. A.D. Patwardhan to appear on behalf of the Respondent Company in the capacity of the Officer of the Association of the employer. 2. Rule. Respondents waive service. Rule is made returnable forthwith by consent of parties. 2 3. Brief facts are as under:- 4. The Petitioner joined the services of the Respondent Company as a Job Inspector III in Fourth grade in the Technical category of workman in Quality Control Department in August, 1982. In September, 2001, the Petitioner was elected as General Secretary in the Union Elections of 2001. On 5.8.2005, the Respondent Company suspended the Petitioner pending enquiry which was to be held against him. On 10.1.2006, the Respondent Company dismissed the Petitioner from service. The Petitioner raised a dispute before the Deputy Commissioner of Labour, Shivaji Nagar, Pune – 5 and upon failure of the conciliation proceedings, the dispute was referred to the Third Labour Court, Pune. The Petitioner filed his statement of claim on 30.3.2007. On 8.6.2007, the Petitioner submitted an application and raised an objection to the Respondent Company being represented by the Legal Practitioner. The Respondent Company filed an application on 4.2.2008 seeking permission to allow them to be represented through it's counsel Advocate Patwardhan. On 25.3.2008, the Labour 3 Court dismissed the application of the Company and disallowed the Respondent to be represented by a legal practitioner. Against this order, the Respondent Company filed Writ Petition No.3031 of 2008. However, the said petition was dismissed by order dated 5.5.2008. Thereafter, Advocate Patwardhan filed an application on behalf of the Respondent Company seeking permission of the Court to appear on behalf of it as an officer of an Employers Association. Along with the said application, a copy of the letter written by Harshad Gokhale Secretary of the Western Maharashtra Employers' Association, Pune dated 28th July, 2008 to Shri A.D. Patwardhan was annexed. In the said letter, it was stated that pursuant to the application filed by the Advocate Patwardhan dated 26th July, 2008, the managing committee passed a resolution in its meeting dated 11th July,2008. A copy of the resolution was annexed to the said letter. In the said resolution which was annexed, it was stated that Advocate Parwardhan was accepted as a member of Western Maharashtra Employers' Association, Pune and also co-opted as an Officer of the managing committee of Western Maharashtra Employers' Association 4 with effect from 11th July, 2008. The Petitioner herein filed his say in the said application. In the said application, it was contended by the Petitioner herein that the Labour Court had refused to grant permission to the Company to appoint Advocate A.D. Patwardhan. It was further stated that thereafter this second application has been filed on behalf of the Advocate Patwardhan who had no authority to file an application on behalf of the Company. It was further stated that no material documents had been produced by the said alleged association viz. The Western Maharashtra Employers' Association, Pune such as:- a) Certificate of Registration. b) Registered address and Registration Number of the said Association. c) Membership Register of the said Association. d) Constitution of the said Association. It was also stated that the Advocate Patwardhan had not filed (i) his status in the association and (ii) His appointment letter as an officer. (e) His post and designation in the Association. (f) His tenure of appointment in the Association 5 (g) Nature of duties. (h) Membership receipt (i) Wages / Salary. It was further contended that an officer must be one who is holding an office and taking part in the management of the employer- institution and as such, practicing lawyers could not become officers of the companies, associations of employers or federations of such associations of employers except by becoming their directors. 5. The Labour Court, however, held that after going through the documents filed on record by the Company showing that it was a member of Western Maharashtra Employers' Association which was found to be registered since registration no. had been filed in many other cases and taking into consideration the cash receipt of the membership letter dated 28.7.2007 written by the Association along with extract of resolution dated 11.7.2008, it was clear that the Advocate Patwardhan was a member / officer of the managing committee of the Western Maharashtra Employers' Association and, therefore, he was 6 permitted to appear in that capacity and the application filed by the Respondent Company was allowed. 6. Ms. Gayatri Singh, the learned Counsel appearing on behalf of the Petitioner made the following submission:- She submitted that since the earlier application filed by the Advocate Patwardhan has been rejected by the Court by order dated 25.3.2008 and since the said order was not challenged, she submitted that the said order had attained finality and the company could not be permitted to adopt a devious back door method to engage an advocate as an office-bearer of the employers’ association to appear on its behalf. It was submitted that advocate of the company was inducted into the association as an office-bearer and member only after 11.7.2008 i.e. after the order of the Court dated 25.3.2008. It was contended that the founding members of the employers' association were legal practitioners and none of the members were employers and, therefore, it was submitted that the said association is not the employers' association. It was further submitted that the Labour Court had failed to verify whether the advocate, in 7 fact, was an officer bearer of an employers' association. Lastly, it was contended that the provisions of section 36(4) would override the provisions of section 36(2) and, as such, no legal practitioners would be permitted to be the legal employer. In support of the said submission, the Learned Counsel for the Petitioners has relied on the following judgments:- (i) Paradip Port Trust, Paradip vs. Their Workmen reported in (1977) 2 Supreme Court Cases 339. (ii) Siemens Limited vs. K.K. Gupta & Anr. of Delhi High Court in Writ Petition (C), No.6220/2001 decided on 21st October, 2005. (iii) Judgment of the Gujarat High Court in the case of Association of Gujarat Employers vs. Industrial Tribunal & Anr. reported in 2009 LLR 411. (iv) Division Bench Judgment of Gujrat High Court in the case of Hosing Ardasar Ichhaporiya vs. Mahavir General Hospital, Surat and Anr.reported in 1994-II-LLJ-326. (v) Full Bench Judgment of Andhra Pradesh High Court in the case of The Andhra Pradesh Power Diploma Engineers 8 Association Generation Wing, Kothagudem Thermal Power Station Zone, Paloncha vs. Andhra Pradesh State Electricity Board, Hyderabad & Anr. reported in 1996 I LLJ, page 1082. (vi) Division Bench judgment of the Calcutta High Court in the case of Bharat Petroleum Corporation Ltd. vs. C.C. Industrial Tribunal & Ors. reported in 1993 II CLR 766. (vii) Division Bench Judgment of the Orissa High Court in the case of Kalinga Studios Ltd. Vs. Presiding Officer, Industrial Tribunal and Ors. reported in 1994 II LLJ page 108. 7. Shri Bapat, the learned Counsel appearing on behalf of the Respondents, on the other hand, submitted that it was for the Industrial Court to consider the motive behind the appointment of the Advocate by the employer as an office- bearer of the Employers' Association. He relied on the judgment of the Full Bench of this Court in the case of Paradip Port Trust vs. Their Workmen reported in (1977) 2 Supreme Court Cases 339. He further submitted that the judgment which was canvassed by the Petitioners in this 9 case was squarely covered by the ratio of the two judgments of this Court, one decided by the Division Bench of this Court and other decided by the Learned Single Judge of this Court. On confirming the view taken by the Learned Single Judge of this Court in the case of Associated Cement Companies Ltd. Vs. Associated Cement Staff Union and Anr. reported in 2001 III CLR 949. He relied on the judgment of the Division Bench reported in 2002 II LLJ page 768, which had confirmed the judgment of the Learned Single Judge of this Court in the case of Associated Cement Companies Ltd. Vs. Associated Cement Staff Union and Anr. reported in 2001 III CLR 949. 8. Heard the learned Counsel for the petitioner and the learned counsel for respondents at length. 9. The questions which fall for consideration before this Court and the findings thereon are as under:- 10 Questions Findings (i) Whether an advocate whose application to represent the employee is rejected under section 36(4) can apply under section 36(2) of the Industrial Disputes Act, 1947 as an officer of employers’ association etc. as laid down under section 36(2), (a),(b),(c)? Yes. (ii) Whether the Industrial Court can go into motive of an advocate becoming an officer of the employers’ association? No. (iii) Whether the Industrial Court can make enquiry into the following questions? (a) Whether the advocate is an Officer or office bearer of the employers’ association? (b) Whether the association is, in fact, an association of employers? Yes. (iv) What is the nature of enquiry that has to be made by the Industrial Court while deciding the aforesaid questions? This depends upon facts of each case on the basis of material produced before the Industrial Court. (v) Whether the impugned order is proper? No. 10. Before I take into consideration the rival contentions on 11 these issues, it would be profitable to first examine (a) what is the settled position in law on the said point, (b) what is the material produced by the Company to show that the advocate is an Officer of the employers’ association and (c) whether the material is sufficient. 11. The legal position is quite well settled in view of the judgment of the Apex Court in the case of Paradip Port Trust, Paradip vs. Their workmen, reported in (1997) 2 SCC 339. The said judgment has, in fact, been followed by various High Courts including the Bombay High Court. Before we take into consideration the ratio laid down by the Apex Court in the said case, it would be profitable to reproduce section 36 of the Act which may be quoted:- “[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 12 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 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. [Provided that, where there is a recognized union for any undertaking under any law for the time being in force, no workman in such undertaking shall be entitled to be represented as aforesaid in any such proceeding (not being a proceeding in which the legality or propriety of an order of dismissal, discharge, removal, retrenchment, termination of service, or suspension of an employee is under consideration) except by such recognised union.] 13 (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 manner as may be prescribed. (3) No party to a dispute shall be entitled to be represented by a legal practitioner in any conciliation proceeding 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 14 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.]]” Section 36(1)(a),(b) & (c) of the Industrial Act came to be amended by Act No.45 of 1971. By virtue of section 6 of the amended Act, the word “Officer” was substituted by the words “any member of the executive or other office bearer”. 12. Earlier definition under section 2(b) of the Trade Unions Act, 1926 came to be amended by Act No. 38 of 1964 dated 10th December, 1964. By the said amendment, the word “office-bearer” was substituted for the word “Officer” as was existed. The statement of objections and reasons to the Bill introduced at the time of amending Section 36 of the Industrial Disputes Act states as under: “3. Word, “Officer” is not considered appropriate in the case of trade unions and has therefore, sought to be substituted by the word “Office Bearer”.” 15 From the above definition, it can be seen that under section 36 as originally enacted, the expression used was “Officer”. However, subsequently, after amendment of Trade Unions Act which substituted the word “Officer” by word “office- bearers”, section 36 of the Industrial Disputes Act was also amended. Thus, this appears to have been done to avoid inconsistency as to who were office-bearers of the managing committee or executive committee of the Trade Union. It has also to be noted here that though section 36(1),(a),(b) & (c) was amended, no corresponding amendment was made in section 36(2),(a),(b) & (c) which was applicable to the association of employers and thus the word “Officer” was not changed to “office-bearers” of association of employers. A bare perusal of the said section clearly discloses that sub- section (3) of section 36 creates a bar for the appointment of legal practitioner in any conciliation proceeding under the Act or in any proceedings before a Court by either party. This bar, however, is subject to sub-section (4) which permits the appearance of a legal practitioner provided it is with the consent of other parties to the proceedings and with the 16 leave of the Court. Sub-sections (1) and (2), however, provide for person who may represent either parties i.e workman and the employer. In the case of workman the representing person is the “Officer” which word is now substituted by the word “office-bearers” of registered trade union or a federation of trade unions or where worker is not a member of any trade union by an Officer of any trade union connected with, or by any other workman employed in the industry in which the worker is employed. On the other hand, on behalf of employer the representing person is the Officer of an association of employers of which he is a member or federation of association of employers to which the association is affiliated, or in cases where employer is not a member of any association, an Officer connected with such associations can be appointed. 13. The question which fell for consideration before the Apex Court in the case of Paradep Port Trust (supra) was regarding interpretation of section 36(1), (2) and (4). The Apex Court while considering the said question has observed that if a legal practitioner is appointed as an officer of a 17 company or corporation or association of employers and is in their pay and under their control, he can appear and represent the company and in such cases, consent of other side as required under section 36(4) will not be necessary. In the said case before the Apex Court an industrial dispute was raised by Paradip Shramik Congress, representing workmen with regard to termination of a temporary teacher. The dispute was referred to the Industrial Tribunal. The Port trust was sought to be represented before the Tribunal through Shri T. Misra who was the legal consultant of the Trust. The Trust also filed power of attorney executed by its Chairman in favour of Shri T. Misra. The Union took an objection to the appearance of Shri T. Misra. The Tribunal held that Shri T. Misra was a legal practitioner and, therefore, could not represent the Port Trust before the Tribunal. The Apex Court, after tracing the history of industrial law in India and in England and relevant provisions and the Scheme of the Act observed in para 12 of its judgment as under:- “12. .................... But for a provision like Section 36(1) of the Act, there may have 18 been difficulty under the general law in the way of the office bearers of the union representing workmen before the adjudicating authorities under the Act unless perhaps, regulated by the procedure under section 11 of the Act. To put the matter beyond controversy an absolute right is created in favour of the workman under section 36(1) in the matter of representation. Having made such a provision for the workmen’s representation the employer is also placed at par with the workmen in similar terms under the Act and the employer may also be represented by an officer of the association of employers of which the employer is a member. The right is extended to representation by the office- bearers of the federation of the unions and by the officers of the federation of employers. The provisions of Section 19 36(1) and 36(2) confer on the respective parties absolute rights of representation by persons respectively specified therein. The rights of representation under Section 36(1) and section 36(2) are unconditional and are not subject to the conditions laid down under Section 36(4) of the Act. The said two sub-sections are independent and stand by themselves.” Thereafter, noting that companies and corporations are not confined to representation of their cases only through their Officers specified in section 36(2) of the Act, it has observed that they could be represented by their directors or their own officers authorized to act in that behalf and, thereafter, the Apex Court has observed as to what would be the position if a legal practitioner is appointed as an officer of a company or corporation. In this context, therefore, paragraphs 16 and 17 of the said judgment of the Apex Court are relevant and they read as under:- 20 “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 21 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.” “17. It must be made clear that there is no scope for enquiry by the tribunal into the motive for appointment of such legal practitioners as office- bearers of the trade unions or as officers of the employers’ associations. When law provides for a requisite qualification for exercising a 22 right, fulfilment of the qualification in a given case will entitle the party to be represented before the tribunal by such a person with that qualification. How and under what circumstances these qualifications have been obtained will not be relevant matters for consideration by the tribunal in considering an application for representation under section 36(1) and section 36(2) of the Act. Once the qualifications under Section 36(1) and Section 36(2) are fulfilled prior to appearance before tribunals, there is no need under the law to pursue the matter in order to find out whether the appointments are in circumvention of Section 36(4) of the Act. Motive of the appointment cannot be made an issue before the tribunal.” 23 From the observations made by the Apex Court in the aforesaid paragraphs, it is clear that if the legal practitioner appears in the capacity of an officer of the association in the case of employer and in the capacity of an office-bearer of the union in the case of workman, he would be entitled to appear as such and the fact that he is a legal practitioner will not affect the position if he qualifies various categories specified in section 36(1) and 36(2). In paragraph 16, the Apex Court has also observed that if a legal practitioner is appointed as an officer of the company or corporation and is in their pay or under their control that will not stand in the way of the company or corporation being represented by him and same would be the case in respect of a legal practitioner if he is an officer of an association of employers or of a federation of such association and the bar under section 36(4), therefore, would not come in his way. In para 17 of the said judgment the Apex Court also has made it very clear that the Tribunal while making enquiry would not be permitted to go into the motive of the employer while making appointment of such legal practitioner as an office- 24 bearers of the trade unions or as officers of the employers’ association and, as such, once the qualifications under section 36(1) and (2) are fulfilled, the Tribunal, thereafter, should not pursue the matter in order to find out whether the appointments are in circumvention of section 36(4) of the said Act. Thereafter, the Apex Court while considering the scope of enquiry has observed that no single test nor an exhaustive test could be laid down for determining as to who is an officer in absence of a definition in the Act. When such a question arises the Tribunal, in each individual case, will have to determine on the materials produced before it whether the claim is justified. The Apex Court in para 18 of the said judgment has observed as under:- “18. ...............No single test nor an exhaustive test can be laid down for determining as to who is an officer in absence of a definition in the Act. When such a question arises the tribunal, in each individual case, will have to determine on the materials produced before it whether the claim is justified. We should also observe that the officer under Section 36(2) is 25 of the association or of the federation of associations of