The Co-Operative Store Ltd., New ... vs O.P. Dwivedi P.O. Industrial ...
1987 Latest Caselaw 16 Del

JUDGMENT

R.N. Agarwal and Jagdish Chandra, JJ.

1. The challenge in this petition under Article 226 of the Constitution of India is to the vires of Section 36 of the Industrial Disputes Act, 1947. Section 36 of the Industrial Disputes Act reads as follows :-

"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 office-bearer of the 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 employees 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 proceedings 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 leave of the Labour Court, Tribunal or National Tribunal, as the case may be.

2. The relevant facts are that the respondent Mr. S. S. Dubey was in the employment of the petitioner M/s. The Co-Operative Store Ltd. The workman was charge sheeted for some misconduct. An inquiry was held and ultimately the workman was dismissed from the service. The workman filed a complaint under Section 33A of the Industrial Disputes Act before the Industrial Tribunal No. II. During the course of the proceedings Sri V. P. Malik, Advocate, appeared on behalf of the employer. The workman raised an objection under Section 36 to the competency of the Advocate to appear on behalf of the employer. The Industrial Tribunal by an order dated 29th July, 1986 upheld the objection and held that Section 36 bars a legal practitioner from appearing on behalf of the employer.

3. Against the above order the employer has come in this petition. Mr. Bagai, learned advocate for the petitioner, challenges the vires of Section 36 on the ground that it violates Article 14 of the Constitution. The learned advocate in support of his contention has relied upon K. K. Roy v. Union of India .

4. We have carefully perused the above cited authority and in our view it does not support the contention of Shri Bagai; rather it goes against his contention. The cited case deals with a case of detention under the National Security Ordinance 2 of 1980. Sub-section (4) of Section 11 of the National Security Act provides that a person against whom a detention order has been made shall not be entitled to be represented by a legal practitioner in any matter connected with the reference to the Advisor Board. The vires of the aforesaid provision was challenged before the Supreme Court. The contention raised was that the detenu has a right to be represented by a legal practitioner of his choice before the Advisory Board. Their Lordships repelled the said contention and held as under (paras 85-95) :

"According to the express intendment of the Constitution itself, no person who is detained under any law, which provides for preventive detention, can claim the right to consult a legal practitioner of his choice or to be defended by him. In view of this, it cannot be held by the application of abstract, general principles or on a priori considerations that the detenu has the right of being represented by a legal practitioner in the proceedings before the Advisory Board. Since the Constitution, as originally enacted, itself contemplates that such a right should not be made available to a detenu, it cannot be said that the denial of the said right is unfair, unjust or unreasonable.

To read the right of legal representation in Article 22(5) is straining the language of that Article. Clause (5) confers upon the detenu the right to be informed of the grounds of detention and the right to be afforded the earliest opportunity of making a representation against the order of detention. That right has undoubtedly to be effective, but it does not carry with it the right to be represented by a legal practitioner before the Advisory Board merely because, by Section 10 of the National Security Act, the representation made by the detenu is required to be forwarded to the Advisory Board for its consideration. If anything, effect of Section 11(4) of the Act, which conforms to Art. 22(3)(b), is that the detenu cannot appear before the Advisory Board through a legal practitioner.

If the detaining authority or the Government takes the aid of a legal advisor before the Advisory Board, the detenu must be allowed the facility of appearing before the Board through a legal practitioner.

The embargo on the appearance of legal practitioners should not be extended so as to prevent the detenu from being aided or assisted by a friend who, in truth and substance, is not a legal practitioner. Every person whose interest are adversely affected as a result of the proceedings which have a serious import, is entitled to be heard in those proceedings and be assisted by a friend."

5. Their Lordships in para 94 have specifically held that the detenu has no right to appear through a legal practitioner in the proceedings before the Advisory Board.

6. We are further of the view that the cited authority bears no analogy to the case in hand. The industrial laws have been enacted to maintain peace and harmonious relations between the workmen and the employer. The bar to be represented by a legal practitioner except with the consent of the opposite party and the leave of the court in Section 36 of the Industrial Disputes Act has been introduced with a view to preventing the parties from raising technical pleas which, naturally, impede the smooth and expeditious settlement. We see nothing unreasonable in the provisions of Section 36.

7. Mr. Aggarwal on behalf of the respondent has referred to us an another judgment of the Supreme Court in Paradip Port Trust v. Their Workmen, (1976-II-LLJ-409) in which Section 36 directly was the subject matter of consideration. Their Lordships held as under at pp. 416-417 :

"A lawyer, simpliciter, cannot appear before an Industrial Tribunal without the consent of the opposite party and leave of the Tribunal merely by virtue of a power of attorney executed by a party. A lawyer can appear before the Tribunal in the capacity of an office-bearer of a registered trade union or an officer of associations of employers and no consent of the other side and leave of the Tribunal will, then, be necessary."

8. We find that the above cited authority fully covers the case in hand. Mr. Bagai contends that the case Paradip Port Trust (supra) does not deal with the constitutionality of Section 36. This is so but it must not be ignored that in case there was any merit in the contention of Mr. Bagai, the advocates appearing in the aforesaid case for the petitioner would not have missed to attack the constitutionality of the Section on the ground now urged before us. We find no reason to hold that the provisions of Section 36 of the Industrial Disputes Act are violative of Article 14 of the Constitution or are violative of the principles of nature justice.

9. The petition is dismissed.