Maheshwari Gas Services vs Bhure Lal
2012 Latest Caselaw 5407 Del

*        IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                             Decided on: September 11, 2012
+        W.P.(C) 2116/2010

         MAHESHWARI GAS SERVICES                              ..... Petitioner

                             Through:     Mr. H.C. Kharbanda and Mr. Jabar
                                          Singh, Advocates

                             versus

         BHURE LAL                                            ..... Respondent

                             Through:     Mr. S.S. Ali, Advocate

Coram:
HON'BLE MS. JUSTICE MUKTA GUPTA

MUKTA GUPTA, J. (ORAL)

1. By this petition, the Petitioner impugns the order dated 3rd February, 2010 whereby the application of the Petitioner under Section 36 of the Industrial Disputes Act, 1947 (in short, „ID Act‟) was dismissed and the application of the Respondent under Section 36 of the ID Act was allowed.

2. The brief facts giving rise to the filing of the present petition are that the Respondent filed its claim before the Industrial Tribunal alleging illegal termination by the Petitioner. The claim of the Respondent was filed through Universal Proutist Labour Federation (Registered) (in short, „UPLF‟). The Petitioner took the objection in the written statement that the Federation was not competent to espouse the cause of the Respondent and also filed an application under Section 36 of the ID Act claiming that the Federation was not registered with the Labour Department, it was not a

registered trade union and nothing has been placed on record regarding the subscription of the membership by the workman to the union and that the workman has not disclosed when he became the member of the said union. An application was also filed by the Respondent under Section 36 of the ID Act contending that the management could not be represented through an Advocate. The learned trial court held that in view of the bar under Section 36(3) of the ID Act, the Petitioner could not be represented by a legal practitioner or an Advocate and thus allowed the application of the Respondent and held that the Advocate was not entitled to appear for and on behalf of the management in the present case. As regards the application of the Respondent, it was held that it is not necessary that the workman should be a member of the union and any member of the executive or the office bearer of any trade union may be authorized under Section 36(1)(c) ID Act to represent the workman.

3. Learned counsel for the Petitioner has strenuously contended that in terms of Section 36(1), the workman can be represented either through a trade union or a federation of which he is a member in which case Section 36(1)(a) and (b) would apply. In the present case, the impugned order has been passed under Section 36 of the ID Act on the ground that the Respondent is a member of a registered trade union. However, there is no evidence on record that the Respondent is a member of UPLF. Further for an order under Section 36(1)(c) the trade union or the Federation representing the Respondent has to be the one connected with the industry in which the workman is employed.

4. Learned counsel for the Respondent, on the other hand, contends that there is no infirmity in the impugned order in view of the law laid down by

the Supreme Court in Pradip Port Trust vs. Their Workmen, AIR 1977 SC 36; and Siemens Limited vs. K.K. Gupta & Anr. 125 (2005) DLT 85 and in view of the bar under Section 36(3) of the ID Act, the Petitioner could not be represented through an Advocate. The contention of the Petitioner that the Respondent‟s claim is at best of being a member of the federation which does not fall within the ambit of Section 36(1)(c) of the ID Act is misconceived. Reliance is placed on the definition of trade union under Section 2(h) of the Trade Unions Act, 1926 where a trade union includes any federation of two or more trade unions. Reliance is also placed on Standard Coal Co. Ltd. Vs. Sri S.P. Verma & Ors. 1952 (1) LLJ 493 Patna; Prasar Bharati Broadcasting Corporation of India vs. Suraj Sharma and Anr. 1999 (81) FLR 952 (Delhi); Bharat Petroleum Corporation Ltd. vs. C.G. Industrial Tribunal and Ors. 1993 (2) LLJ 608 (Calcutta).

5. I have heard learned counsel for the parties and perused the record.

6. Section 36(1) of the ID Act reads as under:-

"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 office bearer] of any trade union connected with, or by any other workman employed in, the industry in which the worker is employed and authorized in such manner as may be prescribed."

7. A perusal of sub-clause (a) and (b) of sub-section (1) of Section 36 of the ID Act shows that if a workman is a member of a registered trade union or a federation of trade unions, he can be represented by any member of the executive or other office bearer of the said trade union or the federation. Though learned counsel for the Respondent has tried to make a case under Section 36(1)(a) and (b), however, since no document has been filed before the trial court, it cannot be held that the Respondent has been successful in making out a case under Section 36(1)(a) and (b) of the ID Act. Thus, prima facie, there was no evidence before the trial court to come to the conclusion that the Respondent was duly represented by UPLF under Section 36(1) (a) and (b) of ID Act.

8. As regards Section 36(1)(c) of the ID Act is concerned, it may be noted that one of the essential ingredient in case a workman is not a member of any trade union is that he can be represented by a trade union connected with or by any other workman employed in the industry in which the workman is employed. In the present case, no evidence has been taken on record by the trial court while passing an order under Section 36of the ID Act to come to the conclusion that UPLF was a federation/trade union connected with the industry in which the Respondent was employed.

9. Thus, the impugned order dated 3rd February, 2010 is set aside to the extent that it dismisses the application of the Petitioner. The learned Tribunal is directed to hear the matter afresh in view of the aforesaid discussion and pass a reasoned order on the application of the Petitioner.

16. So far as the order on the application of the Respondent disallowing the representation of the Petitioner through an Advocate is concerned, I find no infirmity in the impugned order on this count. Section 36(3) of the ID

Act clearly bars the representation by a legal practitioner. Further, vires of this provision has been upheld in a number of decisions and hence, there is no infirmity to this extent.

17. In view of the above observations, the petition is disposed of.

(MUKTA GUPTA) JUDGE

September 11, 2012 sd