Sarbeswar Bardoloi vs U.K. Gohain, Judge, Industrial Tribunal and Another

Ram Labhaya, J.—Sarbeswar Bardoloi, Secretary, Golaghat Jilla Chah Majdur Sangha has petitioned under Articles 226 and 227 as a representative of the workmen of the Kumaligarh and Barchapori Tea Estates for suitable reliefs against the order of Sri U.K. Gohain, Judge, Industrial Tribunal, Assam, dated 19-6-1954, by which the learned Judge held that Mr. Goswami could represent the Jorhat Tea Company, Ltd, the employers, by virtue of his position as legal adviser of the Indian Tea Association, Assam Branch.

The facts leading to the petition may be shortly stated. After the passing of the Minimum Wages Act (Act 11 of 1948) by the Central Government, the State of Assam framed rules for giving effect to the provisions of the Act within the State and laid down the principle for fixation of minimum wages for the workmen in the Tea Gardens of Assam. The provisions contained in the rules gave rise to a dispute between the Company and the workmen of the Company employed on its two estates over the interpretation and import of the rules governing the fixation of wages. The dispute was referred to respondent, No. 1, Shri U. K. Gohain, Judge, Industrial Tribunal for an adjudication by a notification dated 6-2-1954. The workmen were represented in the proceedings by the office bearers of their Union. On behalf of the employers (respondent 2), Mr. P.K. Goswami, Advocate appeared along with Mr. Gunjanan Barua. They filed a written authority from the Superintendent of the Jorhat Tea Company.

The representative of the Workmen''s Union objected to the representation of the employers (respondent 2) by Mr. P.K. Goswami on the ground that he was a legal practitioner and as such could not appear in the proceeding without their consent. The learned Judge after hearing the parties found that Shri P.K. Goswami was an officer of the I. T. A., Assam Branch, an association of the employers, of which the two estate of the Jorhat Tea Company were members. He had been duly authorised to appear and represent the tea estates by the Superintendent of the Jorhat Tea Company. He could therefore represent the employers. In a previous case also, objection had been raised to the appearance of Sri P. K. Goswami. The learned Judge, of the Industrial Tribunal had overruled the objection. He referred to his previous order in this case in support of the finding he arrived at. He observed that on that occasion he had looked into the matter and had felt satisfied that Mr. Goswami held the position of an officer of the Association of the Employers.

The finding arrived at by the learned Judge is assailed by this petition.

Objection against the representation of employers by Mr. P.K. Goswami was raised on the basis of provisions contained in Section 36(4) of the Industrial Disputes Act, 1947. Clause 4 of Section 36 provides that

in any proceeding before a 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 leave of the Tribunal.

Mr. P.K. Goswami is admittedly a legal practitioner and it he has no other qualification which entitles him to represent the employers, he would not be able to represent them without the consent of the petitioners. On behalf of the employers, it was contended presumably at the argument stage that Mr. Goswami was an officer of the Association of Employers of which the Jorhat Tea Company was a member, lie could therefore represent the employers u/s 36(2)(a). It follows from the stand taken up on behalf of the Jorhat Tea Company (respondent 2) that the additional qualification that Mr. P. K. Goswami is alleged to possess brings his case within the ambit of Section 36(2)(a). The necessary implication of the position is that as a mere legal practitioner he would not be entitled to appear without the consent of the other party to the dispute and also of the Tribunal. Clause 4 of Section 36 aims at excluding representation by mere legal practitioners unless the other party to the dispute agrees to it and the tribunal also permits it. This is clear and undisputed.

It is equally clear that no legal practitioner is disqualified from representing a party by reason of the fact alone that he happens to be a legal practitioner it his case is covered by Clause (a) or (b) of Section 36(2). It is conceivable that a legal practitioner may be an officer of an association of employers of which the employer who is a party to the dispute is a member. He may also be an officer of the Federation of Association of Employers to which the Association referred to in Clause (a) is affiliated. A legal practitioner can be both an officer of an association of employers under Clause (a) and also an officer of a Federation of Association of Employers. His being a legal practitioner would create no bar in the way of his representing the employers, if the case is covered by Clause (a) or Clause (b) of Section 36(2).

In -- ''Hall and Anderson Ltd v. S.K. Neogi (1954) 1 Lab LJ 629 (Cal) (A) it was held that if the director of a company or a corporate body happened to be a practising lawyer, his appearance would not involve any contravention of the provisions of Section 36(4). In that case, the Managing Director of a public limited company who also happened to be a practising lawyer was permitted to represent the company in a proceeding under the Industrial Disputes Act between the employer and its workmen. This case provides a very good illustration of the proposition stated above. A practising lawyer was found to be an officer of an association of employers and the objection to the representation of employers by him was overruled.

In -- ''Nehru Lunch Home v. Madras City Hotel Workers'' Association'' 1954 Lab AC 111 (Luck) (B) objection was raised to the representation of Shri Shetty for the workmen. He was the President of the registered Trade Union. The objection was that although he was an officer of the Union of which the respondents were members, he could not represent them as he was a legal practitioner. The objection was overruled as Shri Shetty was undoubtedly and admittedly an officer of the Union. He appeared more as a party than as a legal practitioner. The fact that he was a legal practitioner in that case could not be a bar to his representing the Union of which he was himself the President.

The proposition of law enunciated in the above two cases is also not disputed.

The real question therefore is whether Mr. Goswami is an officer of an association of employers of which the Jorhat Tea Company is a member. On the record of the case, we have got only a written authority from the Superintendent of the Jorhat Tea Company in favour of both Mr. Goswami and Mr. Gunjanan Barua. In this document, both have been described as legal advisers of the two estates controlled by the Jorhat Tea Company. The Superintendent of the Company purported to authorise both Shri P. K. Goswami & Mr. Barua to represent the tea estates. The document does not state that there is any association of employers and that the Jorhat Tea Company or the two estates belonging to it are the members of the association. There is also no statement that Mr. Goswami is a member or an officer of that association of employers. Apart from the written authority there is no other application or proceeding on the record embodying the allegation that Mr. Goswami was an officer of the I. T. A., Assam Branch, which is said to be the association of employers. The learned Judge however found that he was a member of the association of employers of which the two estates of respondent 2 are members.

The necessary allegation appears to have been made when the matter was argued. No evidence on the point was led by any party. The learned Judge however dealt with it and has found in favour of the respondents (the employers). There was no allegation before the arguments stage that Mr. Goswami''s case was covered by Clause 2(a) of Section 36, nor was-any material placed on the record to prove this fact. The learned Judge utilised his previous decision on the point. The workmen of the two estates have not been shown to be parties to that litigation. They would not be bound; by any decision arrived at in that case. Mr. Ahmed, the learned Counsel for respondent 2 Bias'' produced a copy of that decision and has referred, us to it. Even in that decision, the material on which the learned Judge decided that Mr. Goswami was a member of-the association is not disclosed. So far as the present record is concerned, there is neither allegation nor proof from the respondents showing that Mr. Goswami was an officer of an association of employers of which the Jorhat Tea Company was a member. During the course of argument before us even no facts bearing on the relation between Mr. Goswami and the Indian Tea Association, Assam Branch (the association of employers) were disclosed. All that the learned Judge could say was that Sri Goswami was a legal adviser of the Indian Tea Association. On what basis he stated that fact is not clear. Mr. Ahmed could not show from the record that there was any material in support of the statement. But even if he was described as a legal adviser of the association, it would not follow necessarily that he was an officer of the association of employers.

While a legal adviser of an association may possibly be an officer, it cannot be stated as a matter of law that every legal practitioner who is a legal adviser of an association, becomes an officer of the association the appointment of a legal adviser can be of a casual nature. Where such is the case, he would generally not be an officer of the association. On the other hand, duties may be assigned to a legal practitioner which may invest him with the status of the position of an officer of the company or association. The question no doubt is essentially or at least mainly, one of fact and its decision depends on the terms and the conditions of the employment of the legal practitioner whose status is in question. The answer to the question whether he is an officer of the association or not must depend on the conditions or terms of his employment. Without ascertaining these conditions and without any enquiry into the nature of duties, it is not possible to say that a legal practitioner is an officer of the association merely because he is described as a legal adviser. It is obvious that if the description as legal adviser were enough to convert every legal practitioner into an officer of an association of employers, the purpose of Clause 4 of Section 36 would easily be defeated. In this case, the written authority does not describe Mr. Goswami even as legal adviser of the association of employers. He is described as a legal adviser of the two estates. The expression ''legal adviser'' has not been defined and may be loosely applied to a varying set of conditions of service or employment. Its use therefore does not show conclusively that any one described as a ''legal adviser'' is necessarily an officer of an association by which he is employed.

As to what are the qualifications or distinguishing marks of an officer of an association of employers the matter is not free from difficulty. The word "officer" has not been defined in the Act. It does not admit of any easy definition. In the absence of any definition dictionaries may be of some assistance though the meaning assigned to the expression in dictionaries may not be binding on the Courts. The Courts have to ascertain the meanings of terms with reference to the context in which they occur. Even so, the meaning that an expression bears according to dictionaries may afford guidance and assistance in ascertaining the import and connotation of the expression, the meaning of which is in dispute. In this case, Mr. Chaudhuri has referred us to the meaning of the expression given in the Oxford Dictionary. The expression ''officer'' in the dictionary sense means one who holds an office. In relation to companies or societies, it is a person who holds'' and takes part in the management or direction of a society or institution, for instance, one who is holding the office of President, Treasurer or Secretary. Associations and corporate bodies have normally these officers. But the list is not exhaustive. A practising lawyer may conceivably be an officer, but the description as legal adviser without reference to the terms of his appointment and the duties of his office would not be enough for a finding that he is an officer of the company. The statement is no doubt negative in character. But a positive rule covering all cases is not at all easy to formulate and each case has to be decided on its own facts after examining the terms of the relationship between the legal practitioner concerned and the association or the company, of which he claims to be a member. What is necessary is that the legal practitioner concerned must be a regular officer of the employers'' association. If on facts, he can be found to be a regular officer, nothing short of an attempt to circumvent the provisions of Section 36(4) would disqualify him from representing a member of his association.

Mr. Choudhuri, the learned Counsel for the petitioner has referred us to the definition of the term ''officer'' in the Indian Trade Unions Act, 1926. The definition given in Section 2(b) is not exhaustive. The language used makes that clear. Besides, the definition is for purposes of Trade Unions Act only and the meaning assigned to it in that Act cannot be utilised for other enactments. He has also referred to Section 235, Compainies Act in which the expression ''officer'' occurs. This provision is of no assistance.

The conclusion that I reach is that a practising lawyer who is employed as a legal adviser, may be an officer of the association of which he is the legal adviser, though the use of the expression legal adviser'' for describing his status is by itself not enough for the decision of the question. The terms of his appointment and his duties have to be examined before a decision on the question can be given. The learned Judge of the Industrial Tribunal did not have this material before him. We have not got it either. Even the previous order which admittedly is not binding on the petitioner, gives no relevant material for the decision of the question. In these circumstances, the order of the learned Judge is easily assailable on the ground that it has got absolutely no foundation of facts.

Mr. Ahmed has, however, argued that it was claimed in the Court below that Mr. Goswami was a legal adviser of the association of the. I.T.A., Assam Branch. The fact that he was an adviser, he says, was not disputed. But on this point, he receives no support either from the record or the order of the learned Judge. The claim that he was an officer of the company certainly was disputed and material for its decision is completely lacking. I have also held above that the description of Mr. Goswami as legal adviser even of the association would not be enough for determining the question raised on behalf of the petitioner.

Mr. Ahmed has also urged that even if the decision is erroneous, it being on a question of fact, cannot be made the subject-matter of a petition for a high prerogative writ under Article 226. He argues that the extraordinary jurisdiction of the Court is not available to anyone who feels aggrieved by a finding of fact, however erroneous the finding may be. He has in support of his contention referred us to several authorities. There cannot be any quarrel with the proposition put forward by the learned Counsel. This Court will not concern itself under Article 226 with questions of fact decided by any tribunal subordinate to it. But in this case, there is an apparent error of law on the face of the record. The order of the learned Judge reveals the error. Objection was taken to the right of Mr. Goswami to represent respondent 2. The decision of the objection depended on facts which could be brought to light by the parties. No evidence was recorded and without any relevant material in the shape of allegation in any pleading or evidence a decision has been arrived at. Such a decision stands vitiated by reason of the utter disregard of the principles of natural justice that it involves. The error is clearly one of law and patent. Apart from this there is an underlying assumption in the judgment that merely because Mr. Goswami was described as a legal adviser of the two Estates, he became an officer of the association of employers. This assumption has no justification as shown above. It was not realised that without examining the conditions governing the relationship between Mr. Goswami and their association of employers, no decision could be given on the objection raised. Where the error of law is so patent, it can be corrected by a writ of certiorari according to the latest decision of the Supreme Court reported in -- T.C. Basappa Vs. T. Nagappa and Another, Mr. Ahmed himself has relied on this decision. This is the latest authoritative pronouncement from their Lordships of the Supreme Court. In view of this authority, it is not necessary to consider earlier cases referred to in the course of the argument. Mukherjea J. who delivered the judgment of the Supreme Court observed that

a tribunal may be competent to enter upon an enquiry but in making the enquiry it may act in flagrant disregard of the rules of procedure or where no particular procedure is prescribed, it may violate the principles of natural justice. A writ of certiorari may be available in such cases. An error in the decision or determination itself may also be amenable to a writ of certiorari but it must be a manifest error apparent on the face of the proceedings, e.g., when it is based on clear ignorance or disregard of the provisions of law. In other words, it is a patent error which can be corrected by certiorari but not a mere wrong decision.

The present case clearly falls within the rule so lucidly and comprehensively stated by the learned Judge. It involves a violation of the principles of natural justice. It also rests on a clearly erroneous view of the import of the expression ''legal adviser''. A writ of certiorari therefore may well issue. But I think it is not necessary to utilise any prerogative writ for the correction of the error. The Tribunal is amenable to the jurisdiction of the Court under Article 227. In the circumstances of the case, necessary relief to the petitioner can be given even under Article 227. The error in the judgment could attract the exercise of the supervisory jurisdiction of this Court under Article 227.

Mr. Ahmed has also tried to support the order on the ground that another remedy is available to the petitioner. He has pointed out that u/s 7 of the Industrial Disputes (Appellate Tribunal) Act, 1950, an appeal lies to the Appellate Tribunal from any award or decision of an Industrial Tribunal if it involves any substantial question of law, etc. He argues that even if a question of law is involved, the proper remedy would be an appeal u/s 7. This contention should not prevail. The section allows appeals from awards or decisions of the tribunal. The order does not amount to an award. The question is whether it can be regarded as a decision. It appears that the words "awards or decisions" have been used as interchangeable terms. By Clause (b) awards or decisions in respect of wages, bonus, travelling allowance and other similar matters have been made appealable. The conclusion is irresistible that award or the final decision may be appealed from in the circumstances specified in the section. An interlocutory order like the one before us was not meant to be covered even by the expression "decision" occurring in Section 7. This view receives support from- The Mewar Textile Mills Ltd. Vs. The Industrial Tribunal and Others, and -- ''Nagercoil Electric Supply Corpn. v. Industrial Tribunal, Trivandrum'' AIR 1953 Trav-C 167 (E). The right of appeal which the learned Counsel takes as the most suitable remedy, does not exist at all and therefore relief could not be refused on this ground.

The result of the above discussion is that this petition has to be allowed. The impugned order is set aside. The case is remanded to the learned Judge of the Industrial Tribunal. He shall first decide the question whether Shri Goswami is an officer of the employers'' Association, I. T. A., Assam Branch, in the light of the observations made above, after giving the parties an opportunity to produce evidence on the question in controversy. We make no order as to costs.

Deka, J.

I have had the advantage of reading the judgment of my learned brother and I agree that the learned Industrial Tribunal came to his views on the disputed point on his own authority and not on a consideration of surrounding facts and circumstances of the case. The legal advisers may not necessarily be officers of their clients. Holding of office would primarily indicate some sort of official responsibilities than that of a law adviser. Either he (the officer) must have some stake in the company or concern, some pay or remuneration attached to the office, terms of appointment or discharge, period or tenure of appointment, or some administrative responsibilities, or obligation to render some explanation for his conduct in discharge of his duties. The Vakalatnama filed before the Tribunal indicates that Shri P.K. Goswami enjoys the same status as does Shri G. N. Barua, -- both are Advocates and both described as legal advisers. When the statute prohibits engaging a lawyer without the consent of the other party,- the order should have been passed only after due consideration. On the face of it, we are not satisfied with the order and I agree that the order moved against should be vacated and the learned Industrial Tribunal will have the liberty to reconsider it, as proposed in the order of my learned brother, with whom I respectfully agree.