In the High Court of Punjab and Haryana, Chandigarh LPA No. 250 of 2009 in C.W.P. No. 4322 of 2007 Date of Decision: November 13 , 2009 M/s Hygienic Foods Malerkotla Road, Khanna, District Ludhiana. …Appellant through Mr. Mansur Ali, Advocate Versus Jasbir Singh and others …Respondent Nos. 1 to 10 through Mr. S.S. Chauhan, Advocate CORAM: HON’BLE MR. JUSTICE T.S. THAKUR, CHIEF JUSTICE HON’BLE MR. JUSTICE M.M. KUMAR HON’BLE MR. JUSTICE HEMANT GUPTA HON’BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA HON’BLE MR. JUSTICE JASWANT SINGH 1. Whether to be referred to the Reporters or not? Yes 2. Whether the judgment should be reported in the Digest? Yes LPA No. 250 of 2009 Per M.M. KUMAR, J. (for himself, T.S.Thakur, Chief Justice, Kanwaljit Singh Ahluwalia and Jaswant Singh, JJ.) The short issue raised in this reference is whether an employer can be validly represented by a practising advocate enrolled under the Advocates Act, 1961 (for brevity, ‘the Advocates Act’), in an industrial dispute by becoming an officer of an association of employers of which such an employer is a member, or a federation of such associations of employer under Section 36 (2) of the Industrial Disputes Act, 1947 (for brevity, ‘the ID Act’). 2. In order to put the controversy in its proper perspective, it would be appropriate to first notice a few facts. The services of workmen-respondents were terminated by their employer- Hygienic Foods who are the appellants in this letters patent appeal. The workmen-respondents raised industrial disputes regarding termination of their services. The dispute was referred to the Labour Court, Ludhiana, in the shape of various references. During the pendency of the proceedings when most of the references were fixed for arguments, an application was filed on 18.12.2006 on behalf of the workmen-respondents before the Labour Court raising objection to the appearance of Mr. B.P. Bansal and his associates for the Hygienic Foods (P-1). The principal plea raised by placing reliance on Section 36(4) of the ID Act was that the workmen- respondents did not consent to the appearance of Mr. B.P. Bansal and his associates for Hygienic Foods being advocates and that they could not be regarded as ‘officer’ of an association of employer or federation of such an association of employers within the meaning of Section 36(2)(a) and (b) of the ID Act. The application was contested by the employer Hygienic Foods by filing reply (P-2). The Labour Court held that Sarvshri B.P. Bansal, Manoj 2 LPA No. 250 of 2009 Bansal and their associates have been representing the Hygienic Foods in those industrial disputes since the year 2000/2001 and most of the references were then fixed for arguments, therefore, there was implied consent by the workmen- respondents for their appearance to represent Hygienic Foods and the same could not be withdrawn. The other ground was that the application was filed at a belated stage. Accordingly, the Labour Court dismissed the application vide its order dated 19.1.2007 (P-3). 3. Feeling aggrieved, the workman challenged the order of the Labour Court, Ludhiana before this Court in C.W.P. No. 4322 of 2007. A learned Single Judge following the Full Bench judgment of this Court rendered in the case of Indrasan Parsad v. Presiding Officer, 2008 (1) S.C.T. 522, held that the order dated 19.1.2007 (P-3), passed by the Labour Court was not sustainable because the requirement of Section 36(4) of the ID Act is that appearance of a practising advocate for the management could be possible only if (a) the workman has accorded express consent and (b) the leave of the Labour Court was granted. Learned Single Judge rejected the contention of the employer- Hygienic Foods that once the advocate is working as an ‘officer’ with his employer’s association within the meaning of Section 36(2) and no objection was raised over a long period of time then at the stage of argument, such a plea would amount to an implied consent. Accordingly the learned Single Judge quashed the order dated 19.1.2007 and allowed the writ petition vide his order dated 5.2.2009. 4. The employer-Hygienic Foods did not feel satisfied with the view taken by the learned Single Judge and preferred LPA No. 250 of 2009. The Letters Patent Bench, vide its order dated 24.4.2009, expressed the opinion that observations in para 38 made by the Full Bench of this Court in the case of 3 LPA No. 250 of 2009 Indrasan Parsad (supra) were in conflict with those of Hon’ble the Supreme Court in paras 16 and 17 of the judgment rendered in the case of Paradip Port Trust, Paradip v. Their Workmen, AIR 1977 SC 36. The relevant part of the reference order in extenso is extracted below, which reads thus:- “4. Learned counsel for the appellant submits that there is a conflict in the observations of the Full Bench of this Court in paras 38 and observations of the Hon’ble Supreme Court in paras 16 and 17 in Paradip Port Trust, Paradip v. Their Workmen, AIR 1977 SC 36 and the said observations have not been referred to in the judgment of the Full Bench. He further submits that High Courts of Karnataka, Andhra Pradesh and Calcutta in Steel Authority of India Limited, Bangalore vs. B.Yellappa, 2007(114) FLR 1022, Andhra Pradesh State Electricity Board v. AP Power Diploma Engineers Assn. Trade Union, Kothagudem Thermal Power Station and another, 1995(1) LLJ 448 and INFAR (India) Limited vs. Madan Mohan Ghosh and others, 2001(1) LLJ 453 respectively, held that even a legal practitioner could represent a party under section 36(2) if he was office bearer of association. 5. In view of above, we are of the view that observations of the Full Bench of this Court may require reconsideration. Thus, the matter may have to be decided by a larger bench on this aspect. 6. We, accordingly, direct that papers may be placed before Hon’ble the Chief Justice for appropriate orders. 7. In the meanwhile, the authorized representative of the appellant will be allowed to represent the appellant, if he is covered 4 LPA No. 250 of 2009 by Section 36(2) of the Act and observations of the Hon’ble Supreme Court in Paradip Port Trust (supra) (paras 16 and 17).” 5. It is in pursuance of the aforesaid order the matter has been placed before us. 6. At the outset it may be observed that learned counsel for the employer did not present the legal position correctly before the Letters Patent Bench. The reference order notices various judgments to take a prima facie view that a legal practitioner could represent a party under Section 36(2) of the ID Act if he was an office bearer of the association. The judgment of the learned Single Judge of the Andhra Pradesh High Court in the case of Andhra Pradesh State Electricity Board v. A.P. Power Diploma Engineers Association Trade Union, Kothagudem Thermal Power Station and another, 1995-I LLJ 448, has not been approved by the Full Bench of the Andhra Pradesh High Court in Andhra Pradesh Power Diploma Engineering v. Andhra Pradesh State Electricity Board, 1995 Lab IC 2654. Likewise, the Division Bench judgment of Calcutta High Court rendered in the case of M/s Infar (India) Ltd. v. Madan Mohan Ghosh, 2001(2) S.C.T. 305, on which reliance was placed, has been set aside by Hon’ble the Supreme Court on an appeal filed by the workman and is reported as Madan Mohan Ghosh v. Infar (India) Ltd., 2001-II-LLJ 1547. Therefore, even a reference to Full Bench may not have been necessary had the correct position been projected before the learned Letters Patent Bench. The option left with us is either to return the reference to the Letters Patent Bench or to opine on the issue which is of general public importance and is likely to arise in a large number of cases before the Industrial Tribunals and Labour Courts in the States of Punjab, 5 LPA No. 250 of 2009 Haryana and Union Territory of Chandigarh. Accordingly, we adopt the later course and proceed to answer the question. 7. Mr. Mansur Ali, learned counsel for the Hygienic Foods argued that under Section 36(2) of the ID Act, the management can be represented in any proceedings by an 'officer' of an association of employer of which he is a member or an officer of a federation of association of employers to which such an association of the employer is affiliated. According to the learned counsel the expression ‘an officer of an association of employer’ used in clause (a) of sub-section (2) of Section 36 of the ID Act must receive a liberal construction; and as long as a person is an ‘officer’ of an association of employers, his status of being an advocate would not create a bar. He maintained that all that clause (a) of sub-section (2) of Section 36 of the ID Act requires is that the person representing the employer is an officer of an association of employer. Similar argument has been advanced in respect of clause (b) of sub-section (2) of Section 36 of the ID Act. In nutshell the argument is that a practising advocate, as long as he is an officer of an association of employers, could legally represent the employer before an Industrial Tribunal or Labour Court etc. In support of his submission, learned counsel has heavily relied upon the observations made in paras 16 and 17 of the judgment of Hon’ble the Supreme court in the case of Paradip Port Trust (supra) and argued that in such a situation no consent of the workman and leave of the Court as contemplated by Section 36 (4) of the I.D Act would be necessary to permit a person to represent the employer. He has emphasised that under Section 36(1) of the ID Act, a legal practitioner can also appear for the workman as long as he is an ‘office bearer’ of a trade union or member of its executive. Accordingly, a corresponding right has also been given to the employer provided he fulfils the qualifications 6 LPA No. 250 of 2009 contemplated by Section 36(2) of the ID Act. He suggested that there is mutuality in the provisions. 8. Mr. Mansur Ali has then argued that the Labour Court or the Tribunal has no jurisdiction to make an inquiry into the motive for appointment of such a legal practitioner as an ‘office bearer’ either of the trade union or of the employer’s association and, therefore, it would be too late in the day to argue that an enrolled advocate cannot represent the employer. In support of his submissions learned counsel placed reliance on a Division Bench judgment of Calcutta High Court rendered in the case of M/s Infar (India) Ltd. (supra), and argued that Section 36(1) & (2) of the ID Act have given equal representation to the workman as well as the management. Once the aforesaid mutuality has been maintained then the question of prejudice to the interest of the workman would become irrelevant. Highlighting the difference between the expression ‘office bearer’ as used in Section 36(1) of the ID Act and the expression ‘officer’ as used in Section 36(2) of the ID Act, learned counsel submitted that the expression ‘office bearer’ in relation to a trade union would mean an office bearer of any trade union be it a President or Secretary whereas the expression ‘officer’ in the context of employer would mean a person who is an officer of the association of employer. In that regard, he has drawn our attention to para 15 of the Division Bench judgment of Calcutta High Court in the case of M/s Infar (India) Ltd. (supra). He also placed reliance on the view taken by the learned Single Judge of Karnataka High Court in the case of Steel Authority of India Ltd., Bangalore v. B. Yellappa, 2007 (114) FLR 1022, and argued that a specific question was framed as to whether legal practitioners who are office bearers of an association of employer or federation of such an association of employers could represent the management in pursuance of 7 LPA No. 250 of 2009 Section 36(2) of the ID Act. He placed reliance on another Single Bench judgment of Jharkhand High Court in the case of Nav Chandra Jha v. Presiding Officer, 2001 LLR 483 and a Division Bench judgment of Madras High Court in the case of Rajamani R. v. Presiding Officer, 2007-II-LLJ-704 (Mad). 9. Mr. S.S. Chauhan, learned counsel for the workmen-respondents however, submitted that the Full Bench in Indrasan Parsad (supra) has taken the correct view, inasmuch as, no consent of the workman, which is required by sub-section (4) of Section 36 of the ID Act, could be implied or inferred in favour of the management that it could be represented by a practising advocate. He submitted that expression ‘officer’ used in clause (a) of sub-section (2) of Section 36 of the ID Act cannot be construed to include an advocate enrolled under the Advocates Act. According to the learned counsel such an officer has to be on the pay rolls of his employer, which an advocate cannot be. He further submits that such an advocate should also be under his disciplinary control. He further contends that the Bar Council of India has framed Rules in pursuance of power under Section 49(1)(c) of the Advocates Act read with the proviso thereto. Under the heading ‘Standard of Professional Conduct and Etiquette’, there is an express prohibition for an advocate to be a full-time salaried employee of any person, government, firm, corporation or concern so long as he continues to practise. The Rule casts an obligation on an advocate that on taking up any employment he must intimate that fact to the Bar Council where he is enrolled. He has to cease his practise as an advocate during the course of his employment. The suggestion made by Mr. Chauhan is that either a person can continue to hold license to practise as an advocate or he can be a full-time 8 LPA No. 250 of 2009 officer in an association of employer. But he cannot continue to be a practising advocate and also an officer drawing full-time salary. 10. In order to appreciate the controversy raised, it would be useful to first read Section 36 of the ID Act, which is extracted below:- “36. Representation of parties. - (1) A workman who is a party to 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 workman employed in, the Industry in which the worker is employed and authorised in such 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- 9 LPA No. 250 of 2009 (a) an officer of an association of employers of which he is a member; (b) an officer of a federation of association 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 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 proceeding and with the 10 LPA No. 250 of 2009 leave of the Labour Court, Tribunal or National Tribunal, as the case may be.” 11. It is evident that Section 36 of the ID Act seeks to regulate representation of the parties to a dispute raised under this Act. Sub-section (1) of Section 36 entitles a workman to be represented by (i) 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 (i) is affiliated; and (c) where the workman is not a member of any trade union then a workman has been given a wholesome right of being represented by any member of the executive or office bearer of any trade union connected with the industry in which the worker is employed or by any other co-worker employed in such industry. 12. The language of sub-section (1) is quite different in its phraseology from the language used in sub-section (2) of Section 36 of the ID Act. There would be hardly any difficulty to discover a member of the executive or an office bearer of a trade union or a federation of trade unions to which the trade union referred to above is affiliated. As long as a representative answers the prescription of any of the provisions of sub-section (1) of Section 36 of the ID Act, it would not make any difference even if he is a legal practitioner. It follows that such a representative would not be required to satisfy the conditions envisaged by Section 36(4) of the ID Act, namely, to secure consent of the other party and leave of the Court because Section 36(4) would not simply apply because an office bearer or a member of the executive would cover even a legal practitioner or an advocate enrolled under the Advocates Act. It is significant to point out that there is no bar against a legal practitioner 11 LPA No. 250 of 2009 becoming a member of the executive or office bearer of a trade union or a federation of trade unions under the Advocates Act or any rules framed thereunder. By virtue of becoming member of the executive or an office bearer of trade union no relationship of employee and employer between the advocate or the trade union into being. 13. It is significant to notice that the earlier expression ‘an officer’ was substituted by Act No. 45 of 1971 with the words ‘any member of the executive or other office bearer’. There is no mention of any reason in the statement of objects and reasons why the expression ‘officer’ was substituted by the words ‘any member of the executive or other office bearer’ in sub-section (1) of Section 36 of the ID Act. 14. However, in sub-section (2) of Section 36 of the ID Act, the expression ‘Officer’ has been retained. A legal practitioner enrolled as an advocate under the Advocates Act would be covered by the expression ‘any member of the executive or other office bearer’ but he may not be able to answer all the attributes of an ‘Officer’ of an association of employer of which he is a member or an officer of federation of association of employers to which such an association is affiliated. A perusal of sub-section (2) of Section 36 of the ID Act would further reveal that the employer is entitled to be represented in any proceedings under the ID Act by an officer of an association of employer of which he is a member or an officer of a federation of association of employers to which the association of the employer is affiliated. Sub-section (3) of Section 36 of the ID Act in un-mistakable terms states that no party to a dispute is entitled to be represented by a legal practitioner either in any conciliation proceedings under the ID Act or in any other proceedings before a Court. There is, thus, a complete bar created by sub-section (3) of Section 36 of the ID Act to 12 LPA No. 250 of 2009 be represented by a legal practitioner in two types of proceedings, namely, any conciliation proceedings which are defined in clause (e) of Section 2 of the ID Act or in any proceedings before a Court which means a Court of Inquiry constituted under the ID Act as defined in sub-section (f) of Section 2. Thus, there is complete bar on the parties to be represented by a legal practitioner in the aforesaid two types of proceedings. However, a perusal of sub-section (4) of Section 36 of the ID Act on the other hand would show that a party to the dispute may be represented by a legal practitioner with the consent of the other parties to the proceeding and with the leave of the Labour Court, Tribunal or National Tribunal, as the case may be. 15. The issue raised before us whether 'employer can be validly represented by a legal practitioner enrolled as an Advocate and described as ‘Officer' by his employer has fallen for consideration of Hon'ble the Supreme Court in the leading case of Paradip Port Trust (supra). However, there are observations which would be directly relevant to resolve the issue raised before us. In that case, the provisions of Section 36 of the Act were also interpreted. Therefore, it would be imperative for us to closely analyze the aforesaid judgment so as to deduce the principles of law laid down by Hon'ble the Supreme Court. 16. Few skeletal facts may first be noticed. The employer Paradip Port Trust was represented by an Advocate Sh. T. Mishra in a reference made to the Industrial Tribunal at the instance of Paradip Shramik Congress representing the workmen with regard to termination of services of their workmen. The employer projected the Advocate 'as its Officer' on the premise that he was working with them as a ‘legal consultant’. The Advocate had filed an authority letter executed in his favour by the Paradeep Port Trust. An objection was 13 LPA No. 250 of 2009 raised by the workmen to the appearance of the Advocate. The Tribunal sustained the objection and refused to grant him leave to appear. The view of the Tribunal is quoted by Hon'ble the Supreme Court in para four of the judgment, which has been approved. According to the Tribunal, the terms and conditions of the appointment of Sh. T. Mishra as legal consultant of his employer showed that the relationship of the Paradeep Port Trust-employer and Shri T. Mishra was clearly that of a client and his lawyer and not that of employer and employee. The Tribunal had further held that in such a situation, it could not be said to be an officer of the employer-Port Trust. The Tribunal went on to observe that merely by execution of the power of attorney, the restrictions imposed on a legal practitioner by Sub Section (4) of Section 36 of the Act could not be circumvented. Accordingly, it was held that a legal practitioner cannot represent the employer Port Trust before the Tribunal. 17. Thus, the view taken by the Tribunal was upheld. The view of Hon’ble the Supreme Court is discernible from paras 15, 16, 25 and 26, which reads as under: “15 The parties, however, will have to conform to the conditions laid down in Section 36(4) in the matter of representation by legal practitioners. Both the consent of the opposite party and the leave of the Tribunal will have to be secured to enable a party to seek representation before the Tribunal through a legal practitioner qua legal practitioner. This is the clear significance of Section 36(4) of the Act. 16. If, however, a legal practitioner is appointed