Maheshwari Gas Service vs Ram Bachan Soni
2012 Latest Caselaw 5413 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                             Decided on: September 11, 2012
+     W.P.(C) 3107/2011
      MAHESHWARI GAS SERVICE                ..... Petitioner
                      Through: Mr. H.C. Kharbanda and Mr. Jabar
                               Singh, Advocates
                 Versus

      JAI PRAKASH DUBEY                           ..... Respondent
                    Through:               Mr. S.S. Ali, Advocate
AND
      W.P.(C) 3160/2011
      MAHESHWARI GAS SERVICE                 ..... Petitioner
                      Through: Mr. H.C. Kharbanda and Mr. Jabar
                               Singh, Advocates
                 Versus

      VED PRAKASH DUBEY                              ..... Respondent
                   Through:                Mr. S.S. Ali, Advocate
AND
      W.P.(C) 3161/2011
      MAHESHWARI GAS SERVICE                ..... Petitioner
                      Through: Mr. H.C. Kharbanda and Mr. Jabar
                               Singh, Advocates
                 Versus


      RAM BACHAN SONI                            ..... Respondent
                  Through:                 Mr. S.S. Ali, Advocate

Coram:
HON'BLE MS. JUSTICE MUKTA GUPTA




WP(C) No.3107/2011 & connected petitions                                Page 1 of 8
 MUKTA GUPTA, J. (ORAL)

1. By these petitions, the Petitioner impugns the identical orders dated

11th March, 2011 whereby the applications of the Petitioner under Section 36

of the Industrial Disputes Act, 1947 (in short, „ID Act‟) was dismissed

whereas the applications of the Respondents under Section 36 of the ID Act

were allowed.

2. The brief facts giving rise to the filing of the present petitions are that

the Respondents filed their claim before the Industrial Tribunal alleging

illegal termination by the Petitioner. The claims of the Respondents were

filed through Universal Proutist Labour Federation (Registered) (in short,

„UPLF‟). The Petitioner took the objection that the Federation was not

competent to espouse the cause of the Respondents in the written statement

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 workmen to the union and that the

workmen have not disclosed when they became members of the said

Federation. Applications were also filed by the Respondents 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 applications of the

Respondents and held that the Advocate was not entitled to appear for and

on behalf of the management in the present case. As regards the

applications of the Respondents, it was held that it was 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) of the 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(1)(c) of the ID Act, however, a major factor

which has been ignored by the learned trial court is that even in a case where

a worker is not a member of any trade union, then he can be represented by

any trade union which is connected with or by any other workman employed

in the industry in which the worker is employed and duly authorized. The

learned trial court did not consider this requirement. The Respondents have

not even placed on record any evidence that the UPLF was a trade union

connected with the industry in which the Respondents were working.

Further, even if it is assumed that the order was passed under Section

36(1)(a) and (b), the documents relied upon by the Respondents did not

show that they are the members of UPLF. The two documents relied upon

are the Registration Certificate of the Federation and the application dated

2nd December, 2008. It is the case of the Petitioner that the application

dated 2nd December, 2008 seeking subscription of UPLF by the workmen is

a fabricated document on the face of it, as the application is dated 2nd

December, 2008 whereas it mentions about the date of removal as 4 th April,

2009. Thus, on either count, the learned trial court erred in dismissing the

applications of the Petitioner and that the Respondents were duly represented

by UPLF.

4. Learned counsel for the Respondents, 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

Respondents‟ claim is at best of 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. It is further contended that the Respondents had placed on record

ample evidence in the form of subscription of membership of UPLF and

have also annexed the letters in favour of the Secretary General. 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 Respondents has tried to make a case under

Section 36(1)(a) and (b), however, on the basis of documents filed before the

trial court, it cannot be held that the Respondents have been successful in

making out a case under Section 36(1)(a) and (b) of the ID Act. The

documents filed by the Respondents are the Registration Certificate of UPLF

and the application for subscription. The applications in all the three

petitions are identical and on the face of it, a manipulated document.

Though the applications are dated 2nd December, 2008, however, they refer

to the date of 4th April, 2009 as the date of their removal. It is thus apparent

that antedated applications have been filed to obtain membership of UPLF.

Thus, prima facie, there is no evidence before the trial court to come to the

conclusion that the Respondents were 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 36(1)(c) of the

ID Act to come to the conclusion that UPLF was a federation/trade union

connected with the industry in which the Respondents were employed.

9. Thus, the impugned orders dated 11th March, 2011 in all the three

petitions are set aside to the extent that they dismiss 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 applications of

the Petitioner in all the three industrial disputes.

10. So far as the orders on the application of the Respondents disallowing

the representations of the Petitioner through an Advocate are concerned, I

find no infirmity in the impugned orders on this count. Section 36(3) of the

ID Act clearly bars the representations by a legal practitioner. Further, vires

of Section 36(3) ID Act have been upheld in a number of decisions and

hence, there is no infirmity to this extent.

17. In view of the above discussions, the petitions are disposed of.

(MUKTA GUPTA) JUDGE

September 11, 2012 sd