Case: A.D. Shastri Vs. S.D. Patil and Another

(individual) to appear in person, that it did not include the case of a corporation party which is incapable of appearing in person because it has no visible personality and must, therefore, of necessity appear through some agency and that it was open to the tribunal to determine by way of procedure under S. 11 of the Act how a corporation should appear before it. He also observed that in exercise of that power the Tribunal and adopted the practice of allowing a corporation to be represented by a director or an officer being one of the modes in which a corporation could be represented. Then the learned Judge proceeded to consider whether the Tribunal should not allow a party to appear if the effect of allowing it to appear would be to defeat the provisions of S. 36 (4). The learned Judge observed that there were two extreme views of sub-ss. (1) and (4) regarding the right of representation and stated (p. 921): . . . . . Neither of these two views appears to be wholly right. . . it appears to me that if an officer of any trade union who is referred to in sub-s. 36 (1) as qualified to represent a workman or an officer of an association of employers who is qualified to represent an employer under sub-s. (2)or an officer or director of a corporation through whom a corporation is entitled to be represented by the procedure governing the Tribunal happens to be a legal practitioner, that fact by itself cannot disqualify him from appearing before the Tribunal. But this presupposes that such an officer is a regular officer either of the trade union or the association or in the case of an officer of a corporation, a regular officer of the Corporation, and in the case of a director that he is a bona fide director not elected a director merely for the purpose of enabling him to appear in a pending proceeding before a Tribunal. In other words, if a legal practitioner is transformed into an officer of a registered trade union or of an association of employers or of a corporation or is appointed a director of a corporation, in order to get over the disability imposed on a legal practitioner representing a party, then such a person shall not be allowed to appear and represent a party. But short of an intention to circumvent the provisions of S. 36 (4), if a legal practitioner is ordinarily a regular officer either of a trade union or an association of employers referred to in ss. 36 (1) and (2) or of a corporation or if he is a director bona fide appointed as a director, I see nothing in sub-s. (4) to prevent his appearing on behalf of the party merely by reason of the fact that he happens to be a legal practitioner. We are, with respect, unable to agree with the above view of the learned Judge. In that case Mr. Hathi was appearing as a director of the company and the question arose whether the companys right to be represented by such an agent, which was not covered by sub-s. (2) and was, therefore, outside S. 36, was subject to the provisions of S. 36 (4), though the said agent did not appear as a legal practitioner. It is clear from the passage above quoted that the learned Judge treated the right of a company to be represented by its officer or director at par with its right to be represented by the class of officers named in sub-s. (2). The learned Judge was with respect, right in treating them alike so far as their to represent the company was concerned. But in considering whether such right of companys representative was absolute or subject to any reservation under sub-s. (4), in case such a representative happened to be a legal practitioner, the learned Judge, with respect, does not seem to have attached sufficient importance to the distinction drawn in S. 36 regarding the capacity in which a person was seeking to appear on behalf of a party and to the language of S. 36 (1) and (2) which create an absolute right in the parties to be represented by the class of persons enumerated therein. (9) FURTHER, since such a right is absolute, in our opinion, the question of exercising such a right bona fide is not relevant. There is no duty owed by the party, i. e. , either workmen or employers, to anyone else in exercising its choice of its agent to represent it in any proceeding before a labour Court or Tribunal. There is no warrant either in the language of sub-ss. (1) and (2) or the context of S. 36 for spelling out such a duty or obligation on the part of a party. (10) IN the above view we are fortified by the decisions of the High Courts of Calcutta, Assam and Rajasthan. They have taken the view that sub-s. (1) or sub-s. (2) is not subject to the provisions of sub-s. (4) land a person qualified to represent a party under sub-s. (1) or sub-s. (2)is entitled to appear on its behalf before the Tribunal, irrespective of the fact that he happens to be a lawyer. See Hall and Anderson Ltd. v. S. K. Neogi, [1954-I L. L. J. 629]; Sarbeswar Bardoloi v. Industrial Tribunal, A. I. R. 1955 Assam 148 and Duduwala and Co. v. Industrial Tribunal, [1959-I L. L. J. 75]. (11) FROM the foregoing discussion, it follows that Mr. Shastry and Miss Indira Jaising in their capacity as the office-bearers of their trade unions were entitled to appear before the Labour court and the Tribunal and the fact that they were practising lawyers did not disqualify them from so appearing without the consent of the company and the question whether employees would secure an unfair advantage by their so appearing was irrelevant to their right to represent the workmen.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds](7) SECTION 36, as the marginal note says provides for representation of parties.n (1)confers upon employees the right to be represented by any person holding any of the capacities mentioned in cls. (a), (b) or (c) thereof and in view of the words shall be entitled therein such a right, apart from the provisions of. (4), is absolute as there are no qualifying words to restrict the same.n (2) similarly confers right upon an employer to be represented by persons holding any of the capacities mentioned in cls. (a), (b) or (c) thereof.. (4) restricts, a party from being represented by a legal practitioner in the proceeding therein mentioned. Now, an officer holding any of the capacities mentioned in. (1) may also be a practising lawyer. Similarly, a person seeking to represent employers as holding any capacity specified in cls. (a), (b) and (c) of. (2) may happen to be a legal practitioner. The question, therefore, arises whether an employees right to be represented by any officer holding any capacity mentioned in. (1) is qualified or restricted by. (4) merely on the ground that such an officer is a legal practitioner, In order to answer this question it is necessary to bear in mind that such an officer appears before the industrial forum for workmen in his capacity as such designated officer under. (a), (b) or (c) and not at all as a legal practitioner. It is, no doubt, true that if such designated officer appearing as a representative of workman happens to be a practising lawyer, he does not part with his knowledge and experience acquired by him as such lawyer. Still such a distinction between an agent appearing in his capacity as anr of workers trade union and his appearing in his capacity as a lawyer on behalf of such workers is crucial for our present purpose. Sod this appears to be plain grammatical meaning of the words represented bythere does not appear any inconsistency between the provisions of. (4). Further the legislative history and the object underlying S. 36 also support the above construction of. (1) and (4) thereof.n (3) of S. 36 as it originally stood permitted lawyers to appear either for party; it was substituted by present. (4) by S. 34 of the Industrial Disputes (Appellate Tribunal) Act (No. 48 of 1950). By the said amendment of 1950 the right of a party to be represented by a lawyer is made subject to the consent of the other party to the proceeding and to the leave of the Labour Court or tribunal. However, the right of persons designated in. (1) and (2) to represent workers or employers respectively was not made subject to such restriction in case such a person happened to be a practising lawyer. If the Legislature had intended so to restrict the right of parties to be represented by the officers named in. (1) and (2), it could have done it easily by adding after the persons specified therein the words provided he is not a legal practitioner.Thus the right of workmen and employers to be represented by persons designated in cls. (a), (b) and (c)of. (1) and (2) remained unimpaired even after the said amendment of 1950. Further the view that the right of workers and employer to be so represented is absolute, derives support from the following observations of Mr. Justice Chandrachud in a Division Bench case of this court in K. K. Khadilkar v. Hume Pipe Co. Ltd. ,I L. L. J. 139], (1966) 69 Bom. L. R. 273. Though the actual point before us did not arise in that case (p. 277) :. . . . . The reason why the three categories are specifically mentioned in. (2) is that the legislature wanted to confer an unqualified right on an employer to be represented by the class of persons mentioned in the three clauses of. (2). Under S. 11 of the Act. The Tribunal can follow such procedure as it thinks fit, which includes the right to determine the mode of representation which a party before it may adopt. The employer, however, is entitled to tell the tribunal that the wants to be represented by any of the persons mentioned in cls. (a) (b) and (c)of. (2) and the Tribunal would have no right to say that it will not recognise that form of representation. Thus, the object of. (2) is to create a right in an employer to be represented by a class of persons and not to restrict the right of representation to the classes enumerated. Since the words used in S. 36 (1), (2) are clear and unambiguous the meaning of the words used therein relating to parties right to be represented is not to be gathered by any notions of what is just and expedient. (See Maxwell on Interpretation of Statutes, 1969, 12th edn. , page 29). It is also material to notice that so far as the right of a party to be represented by certain class of agents is concerned,. (2) deal equally with employees and employers. We, therefore, hold as a matter of construction that. (1) is not subject to the provisions so. (1) creates an absolute right in the persons mentioned in its three clauses to represent the workmen and the fact that such a person representing workmen happens to be a legal practitioner is irrelevant and does not attract S. 36 (4)(8) THEREFORE, there was no scope in the present case for the Tribunal to consider whether unfair advantage was being secured by the employees by being represented by Mr. Shastry and Miss. Indira Jaising as thes of their union because both of them also happened to be legal practitioners. The Tribunal, however, has referred to and sought support from the ruling of this court in Alembic Chemical Works Ltd. v. Vyas,I L. L. J. 148]; (1953) 56 Bom. L. R. 917. In that case a couple of days before an industrial dispute between the Alembic Chemical Works ltd. (therein referred to as the company) and its workmen was to be heard by Industrial tribunal Mr. P. C. Hathi who was practising lawyer was appointed a director of the company. He appeared before the Tribunal on behalf of the company in his capacity as its director. An objection was raised on behalf of workmen to Mr. Hathis appearance on the ground that he was a legal practitioner, and, therefore, he could not represent the company without the consent of workmen having regard to the provisions of S. 36 (4). The Tribunal held that as Mr. Hathi was a legal Practitioner, the device of making him a director with a view to circumvent the provisions of S. 36 (4) should not be allowed to succeed, and therefore, disallowed his appearance. Both the company Mr. Hathi filed a writ petition for setting aside the said order. Mr. Justice Tendolkar held that S. 36 was an enabling section and did not exhaust all cases of representation other than the right of a party (individual) to appear in person, that it did not include the case of a corporation party which is incapable of appearing in person because it has no visible personality and must, therefore, of necessity appear through some agency and that it was open to the tribunal to determine by way of procedure under S. 11 of the Act how a corporation should appear before it. He also observed that in exercise of that power the Tribunal and adopted the practice of allowing a corporation to be represented by a director or an officer being one of the modes in which a corporation could be represented. Then the learned Judge proceeded to consider whether the Tribunal should not allow a party to appear if the effect of allowing it to appear would be to defeat the provisions of S. 36 (4). The learned Judge observed that there were two extreme views of. (1) and (4) regarding the right of representation and stated (p. 921):. . . . . Neither of these two views appears to be wholly right. . . it appears to me that if an officer of any trade union who is referred to in. 36 (1) as qualified to represent a workman or an officer of an association of employers who is qualified to represent an employer under. (2)or an officer or director of a corporation through whom a corporation is entitled to be represented by the procedure governing the Tribunal happens to be a legal practitioner, that fact by itself cannot disqualify him from appearing before the Tribunal. But this presupposes that such an officer is a regular officer either of the trade union or the association or in the case of an officer of a corporation, a regular officer of the Corporation, and in the case of a director that he is a bona fide director not elected a director merely for the purpose of enabling him to appear in a pending proceeding before a Tribunal. In other words, if a legal practitioner is transformed into an officer of a registered trade union or of an association of employers or of a corporation or is appointed a director of a corporation, in order to get over the disability imposed on a legal practitioner representing a party, then such a person shall not be allowed to appear and represent a party. But short of an intention to circumvent the provisions of S. 36 (4), if a legal practitioner is ordinarily a regular officer either of a trade union or an association of employers referred to in ss. 36 (1) and (2) or of a corporation or if he is a director bona fide appointed as a director, I see nothing in. (4) to prevent his appearing on behalf of the party merely by reason of the fact that he happens to be a legal practitioner.We are, with respect, unable to agree with the above view of the learned Judge. In that case Mr. Hathi was appearing as a director of the company and the question arose whether the companys right to be represented by such an agent, which was not covered by. (2) and was, therefore, outside S. 36, was subject to the provisions of S. 36 (4), though the said agent did not appear as a legal practitioner. It is clear from the passage above quoted that the learned Judge treated the right of a company to be represented by its officer or director at par with its right to be represented by the class of officers named in. (2). The learned Judge was with respect, right in treating them alike so far as their to represent the company was concerned. But in considering whether such right of companys representative was absolute or subject to any reservation under(9) FURTHER, since such a right is absolute, in our opinion, the question of exercising such a right bona fide is not relevant. There is no duty owed by the party, i. e. , either workmen or employers, to anyone else in exercising its choice of its agent to represent it in any proceeding before a labour Court or Tribunal. There is no warrant either in the language of. (1) and (2) or the context of S. 36 for spelling out such a duty or obligation on the part of a party(10) IN the above view we are fortified by the decisions of the High Courts of Calcutta, Assam and Rajasthan. They have taken the view that. (2) is not subject to the provisions of. (4) land a person qualified to represent a party under. (2)is entitled to appear on its behalf before the Tribunal, irrespective of the fact that he happens to be a lawyer. See Hall and Anderson Ltd. v. S. K. Neogi,I L. L. J. 629]; Sarbeswar Bardoloi v. Industrial Tribunal, A. I. R. 1955 Assam 148 and Duduwala and Co. v. Industrial Tribunal,I L. L. J. 75](11) FROM the foregoing discussion, it follows that Mr. Shastry and Miss Indira Jaising in their capacity as thes of their trade unions were entitled to appear before the Labour court and the Tribunal and the fact that they were practising lawyers did not disqualify them from so appearing without the consent of the company and the question whether employees would secure an unfair advantage by their so appearing was irrelevant to their right to represent the workmen.