Hindustan Motors Limited vs The Presiding Officer And Ors.
2003 Latest Caselaw 924 Del

JUDGMENT

Mukul Mudgal, J.

1. Rule. With the consent of the counsel for the parties the matter is taken up for final hearing.

2. This writ petition challenges the order dated 5th April, 2002 passed by the Presiding Officer, Labour Court No. 8 passed under Section 36 of the Industrial Disputes Act (hereinafter referred to as the Act). For reference Section 36 is set out 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 officer 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 the 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 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 proceeding 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 leave of the Labour Court, Tribunal or National Tribunal, as the case may be]."

3. It is not in dispute that at some stage of the proceedings the workman was also appearing through a lawyer and at a later stage he objected to the appearance of a lawyer on behalf of the petitioner company i.e. management. It is also not in dispute that on the date when the respondent/workman objected to the appearance of the lawyer he was not being represented by a lawyer though earlier he was represented by a lawyer. In the impugned order passed under Section 36, the labour Court relied upon the judgment in Prasar Bharti Broadcasting Corporation of India vs. Suraj Sharma and another reported as 1998(81) FLR 953, where a learned Single Judge of this Court held that merely because the workman had not objected earlier to the representation of the employer he could not be precluded from taking such objection at a later date. The learned counsel for the petitioner sought to distinguish the aforesaid judgment by relying on three judgments of Kerala, Bombay and Calcutta High Courts which held the view that once consent is given implied or otherwise for engagement of a counsel by the management, the workman cannot object subsequently to the appearance of the lawyer. In my view in so far as the three judgments relied upon by the learned counsel for the petitioner are concerned they take a different view taken by a learned Single Judge of this Court and I am bound to follow with the view of the learned Single Judge of this Court in Prasar Bharti case (supra) which with I respectfully agree. I regret my inability to agree with the view of the Bombay, Calcutta and Kerala High Courts referred to above. The learned counsel for the petitioner Shri K.D. Prasad further submits that the fact that workman had been appearing through counsel till the date prior to the date on which he took objection does not entitle the respondent to rely on the judgment in Prasar Bharti (supra). In reply the learned counsel for the respondent Shri Pankul Nagpal relied upon paragraph 7 of the Prasar Bharti judgment which reads as under:

"7. Learned counsel for the petitioner contended that the workman had not objected to the representation of the management by the Additional Central Government Standing Counsel earlier in the very same proceeding and hence he could not be allowed to raise any objection at a later stage. Such a contention had been raised in the reply filed by the management to the workman's application under Section 36(4) of the ID Act. The impugned order does not say that the management was not earlier represented by the Central Government Counsel. But the Tribunal has specifically stated that the management representative was not able to show that he was appearing with the consent of the other party and with the leave of the tribunal. It would appear that earlier the Additional Central Government Counsel had been representing the management and that only when Mr. Anil Sehgal entered appearance the workman raised the objection filing a formal application. It is not clear why the workman did not raise any objection earlier. But merely because the workman did not object earlier, he cannot be precluded from objecting at a later stage. There could be several reasons for a workman for not raising the object at the early stage of the proceeding. One of them could be that he was not aware of the statutory provision and his right to raise such objection. Another reason could be that the workman realised only belatedly his handicap in not being able to engage a legal practitioner while the management was being represented by a legal practitioner. Only at a later stage, he must have started feeling the strain and stress caused by the unequal strength of the parties in the adjudication proceedings before the tribunal. In such circumstances it will not be just or proper to preclude a workman from objecting to the representation of the management by a legal practitioner only on the ground that such objection had not been taken earlier."

4. The learned counsel for the respondent/workman thus submitted that the reasons given in the aforesaid paragraph has given the rationale for the belated realisation of his handicap in facing an advocate as an adversary. The learned counsel for the respondent submits that the realisation of handicap of engaging a lawyer can also be when if a workman at a later stage is unable to afford the fee of a lawyer as was the factual situation in this case. In my view there is substance in the submission of the learned counsel for the respondent. The mere fact that the workman has not objected earlier cannot be a ground to deny him the benefit under Section 36 to object to the appearance of the petitioner company through a lawyer at a later stage and the subtle distinction pointed out by the learned counsel for the petitioner that once having appeared through a lawyer, the respondent/workman cannot object to the petitioner/managment appearing through a lawyer, cannot come to his aid in view of the position of law laid down in the Prasar Bharti Judgment (supra).

5. The writ petition stands dismissed accordingly.