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Judgment
Aggrieved against the order of the Labour Court, Salem first respondent herein, dated April 20, 1993 made in I.A No. 41 of 1993 in I.D. No.
311 of 1992, the petitioner has filed the present writ petition to quash the said order on various grounds.
The case of the petitioner is briefly stated hereunder :
In the proceedings i.e., I.D. No. 311 of 1992 before the first respondent, the petitioner herein has filed I.A. No. 41 of 1993 u/s 36(2)(a) (b) & (c)
of the Industrial Disputes Act, 1947 (hereinafter called as ''the Act'') praying to reject the authorisation of the representative of the Management
(Respondents 2 & 3) appearing in I.D. No. 311 of 1992. It is contended that when the matter was posted before the first respondent for
evidence, the second respondent management filed an authorisation stating that one B. Thangaswamy, an Executive Committee Member of Indian
Chamber of Commerce and Industry, Coimbatore has been authorised to appear for the management in the case. In the said application the
petitioner has contended that Mr. B. Thangaswamy authorised representative of the Respondents 2 and 3 is only an Executive Committee Member
of the Indian Chamber of Commerce and Industry, Coimbatore. The petitioner has also contended that his appearance is also contrary to Section
36(2)(a) (b) and (c) of the Act.
Labour Court, Salem by order dated April 20, 1993 after holding that the said representative viz., Mr. B. Thangaswamy can very well represent
in his capacity as an Executive Committee Member of the India Chamber of Commerce and Industry, Coimbatore, rejected the petitioner''s
objection by dismissing I.A. No. 41 of 1993.
The Respondents 2 and 3 have filed an affidavit in order to explain their defence. It is contended that the appearance of Mr. B. Thangaswamy
on behalf of the Respondents 2 and 3 is well within the provisions of Section 36(2)(a)(b) and (c) of the Act and the Labour Court has rightly held
that the said representative is appearing is his capacity as an Advocate. They also contended that looking at any angle, in view of the issue involved
before the first respondent the impugned order rejecting the objection raised by the petitioner is well founded and prayed for dismissal of the writ
petition.
In the light of the above pleadings, I have heard Mr. P. K. Rajagopal, learned counsel appearing for the petitioner and Mr. John for M/Sec.
See. Ramasubramaniam and Associates, learned counsel appearing for the Respondents 2 and 3.
Mr. P. K. Rajagopal, learned counsel appearing for the petitioner in the light of the factual position narrated above, after taking me through the
relevant portion viz., Section 36 of the Industrial Disputes Act submitted that the impugned order authorising Mr. B. Thangaswamy cannot be
sustained. He also submitted that the conclusion of the first respondent is contrary to Section 36(2)(a)(b) and (c) of the Act. In support of his
contention, he relied on (i) Paradip Port Trust, Paradip Vs. Their Workmen, , (ii) Bharat Petroleum Corporation Limited v. Presiding Officer and
Others. : (1992)ILLJ818Cal .
On the other hand Mr. John, learned counsel appearing for the Respondents 2 and 3 relying on the same provisions viz., Section 36(2)(a)(b)
and (c) of the Act, submitted that in as much as Mr. B. Thangaswamy who is an Officer of the Indian Chamber of Commerce and Industry,
Coimbatore is very well competent to represent the Respondents 2 and 3 before the first the decision of the Allahabad High Court reported in
I.C.I. India Ltd., v. Labour Court (IV) and another 1992 I.L.L.N. 972 submitted that the Impugned order of the first respondent is in accordance
with the provisions of the Act and absolutely there is no force in the contentions raised by the petitioner.
I have carefully considered the rival submission sec.
In order to appreciate the petitioner''s contentions, I shall first refer to Section 36 of the Industrial Disputes Act. Section 36 sub-clause (1)
relates to workman and sub-clause(2) relates to employer. Both the said provisions are hereby extracted.
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 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 -
(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.
As already stated sub-clause (1) refers to workman and (2) refers to employer. The reading of clause (a) (b) and (c) of sub-clause (1) of
Section 36 clearly shows that the legislature has permitted any member of the executive or other office bearer of a registered trade union or other
office bearer of federation of trade unions to which trade union referred to in clause (a) is affiliated or by any other workman employed in the
industry in which the worker is employed and authorised in such manner. In other words as far as workman is concerned any member of the
executive or office bearer of the trade union is permitted to represent. Now, let us see sub-clause (2) which is applicable to employer. In all
clauses viz., (a), (b) and (c) in sub-clause (2) an officer of an association of employers; an officer of a federation of associations of employers; if
the employer is not a member of any association, an officer of any associations, of employers connected with entitled to represent in any
proceedings under the said Act. To put it clear as far as employer is concerned the legislature specifically used the word officer of an association of
employer Sec. In those circumstances, let me see the conclusion reached by the first respondent. After analysing the case of the petitioner and
Respondents 2 and 3 the Labour Court has concluded thus :-
Even assuming that the lawyers are not entitled to appear, Thiru B. Thangaswamy seeks to appear in this case in his capacity as an Executive of
Chamber of Commerce. There may be a doubt regarding the appearance of legal practitioner. One thing is clear that Thiru B. Thangaswamy as an
Executive member is perfectly entitled to appear.
As pointed out earlier in the light of specific provision in sub-clauses (1) and (2) of Section 36, the conclusion of the Labour Court that Mr. B.
Thangaswamy who is an Executive of Chamber of Commerce is entitled to appear cannot be sustained. At this moment the learned counsel
appearing for the petitioner has brought to my notice, a decision of the Supreme Court reported in Paradip Port Trust v. Their Workmen (supra)
the following discussion and observation of their Lordships of the Supreme Court are very relevant for the disposal of our case. Hence, the same
are extracted hereunder at p 414 :
Again, although under Sec. 36(2)(c) there is provision for the contingency of an employer not being a member of an association of employers, the
device of representation provided therein would not fit in the case of the Government department or a Public Corporation as an employer. These
categories of employers, known to the Act, will be put to the most unnatural exercise of enlisting the aid of an outside association, albeit connected
with the same type of industry, to defend their cases before Tribunal Sec. Such an absurd intent cannot be attributed to the Legislature in enacting
Sec. 36 which will be, if that Section is the be all and end all of the types of representations envisaged under the Act. The impossibility of the
position indicated above is a crucial pointer to Sec. 36 being not exhaustive but only supplemental to any other lawful mode of representation of
parties Sec.
The parties, however, will have to conform to the conditions laid down in Sec. 36(4) in the matter of representation by legal practitioner Sec. Both
the consent of the opposite party and leave of the Tribunal will have to secured to enable a party to seek representation before the Tribunal
through a legal practitioner qua legal practitioner. This is the clear significance of Sec. 36(4) of the Act. 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 Sec. 36(4) to prevent him
from appearing before the Tribunal under the provisions of Sec. 36(2) of 3 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 Sec. 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 Sec. 36(1) and Sec. 36(2) are fulfilled by him.
Further with regard to ""Executive"" ""Officer"" their Lordships have also observed in the following manner at pp 414-415 :-
We may note here the difference in language adopted in Sec. 36(1) and Sec. 36(2). While Sec. 36(1) refers to ""any member of the executive ""or
other office-bearer"", Sec. 36(2) instead mentions only an ""officer"". Now ""executive"" in relation to a trade union means the body by whatever name
called to which the management of the affairs of the trade union is entrusted Sec. 2(gg). ""Office-bearer"" in relation to a trade union includes any
member of the executive thereof but does not include an auditor Sec. 2(111). So far as trade unions are concerned there is no difficulty in
ascertaining a member of the executive or other office-bearer and Sec. 36(1) will create no difficulty in practical application. But the word
Officer""in Sec. 36(2) is not defined in the Act and may well have been, as done under Sec. 2(30) of the Companies Act. This is bound to give rise
to controversy when a particular person claims to be an officer of the association of employer Sec. 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 claim is justified. We should also observe that the officer under Sec. 36(2) is of
the association or of the federation of association of employers and not of the company or corporation.
The discussion and conclusion of the very same Section particularly Section 36(1) and (2) by the Apex Court in the above referred decision is
direct answer to our case. I have already observed that the Labour Court has concluded that Thiru B. Thangaswamy who is authorised by the
Respondents 2 and 3 is an executive of Chamber of Commerce. No doubt, the said factual position has been disputed by the counsel appearing
for the Respondents 2 and 3 and brought to my notice that he is an officer of the Chamber of Commerce. However, the factual conclusion of the
first respondent with regard to representative is only an ""executive"" of Chamber of Commerce. Hence, in the light of the specific provision referred
above (Section 36 sub-clauses (a) (b) and (c)) and in the light of the decision of the Supreme Court referred above the first respondent has
committed an error in rejecting the objection raised by the petitioner. In a similar situation, Calcutta High Court in a decision reported in Bharat
Petroleum Corpn. Ltd. v. Presiding Officer and others (supra) has also taken the same view. The learned Judge of the Calcutta High Court has
followed Paradip Port Trust case (supra) of the Supreme Court (supra).
No doubt, the learned counsel for the Respondents 2 and 3 drew my attention to the decision of Allahabad High Court reported in I. C. I.
India Ltd., v. Labour Court (IV) and another (supra). A careful reading of the said judgment relates to Section 36(4) of the Act, with which we are
not concerned in the present case. As already stated, I have found that the impugned order is not in conformity with Section 36(1) and (2) of the
Act. In those circumstances, with great respect, I am not in a position to follow the said decision of the Allahabad High Court cited by the learned
counsel appearing for the Respondents 2 and 3.
When the statute prescribed certain persons to represent the workmen on the one hand and the employer on the other hand the parties to the
proceedings are expected to go by provisions strictly. It is not open to the first respondent to give different meaning when the statute is very clear.
As already stated the conclusion of the first respondent is that the authorised representative is only an ""executive"" of the Chamber of Commerce
and not an ""officer"" of an association of employer Sec. Further the Respondents 2 and 3 have admitted that the management viz., Anna Transport
Corporation is neither a member of a Chamber of Commerce nor employers federation. The contention that as per Section, 36(2)(c) the
authorised representative is an ""Officer"" of an association of employers connected with and they are entitled to utilise his service cannot be
accepted in the light of the factual conclusion reached by the first respondent. Looking at any angle, I am unable to accept the arguments of the
learned counsel appearing for the Respondents 2 and 3.
Before parting with this case, I want to make the following observation :
There is no dispute that Respondents 2 and 3 viz., Anna Transport Corporation is a State; owned undertaking. It is also not disputed that they are
having officers like Deputy Manager (Law), Assistant Manager (Law), Deputy Manager (Personal), Assistant Manager (Personal). All of them are
qualified law graduate Sec. In those circumstances, I am of the view that in any petition filed by a workman (I.D. No. 311 of 1992) regarding his
nonemployment, I do not find any justification in seeking assistance from an executive of an employers'' federation. Though the Respondents 2 and
3 are competent to engage any one in order to defend their case, in the light of the fact that they are dealing with public money when required
qualified persons are available in their Corporation itself they are not justified in approaching the employers'' federation or Chamber of Commerce
in order to contest a case of a workman of their own Corporation.
Under these circumstances, the impugned order of the first respondent dated April 20, 1993 made in I.A. No. 41 of 1993 in I.D. No. 311 of
1992 is quashed and the writ petition is allowed as prayed for No cost Sec. Since, Industrial Dispute of 1992 is still pending before the first
respondent in view of pendency of the present writ petition, I hereby direct the first respondent to dispose of the same within a period of 12 weeks
from the date of receipt of a copy of this order, in accordance with law.