Delhi High Court
A And B Fashions Pvt. Ltd. vs Ramesh Kumar & Ors. on 24 August, 2021
Signature Not Verified
Digitally Signed By:DINESH
SINGH NAYAL
Signing Date:27.08.2021
21:56:58
$~13
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 24th August, 2021
+ W.P.(C) 8929/2021
A AND B FASHIONS PVT. LTD. ..... Petitioner
Through: Mr. Vinay Sabharwal, Advocate
versus
RAMESH KUMAR & ORS. ..... Respondents
Through: None for the Respondents.
Mr. Raj Birbal, Ms. Raavi Birbal and
Mr. Gunjan Singh, Advocates
assisting the Court.
CORAM:
JUSTICE PRATHIBA M. SINGH
Prathiba M. Singh, J.(Oral)
1. This hearing has been done through video conferencing.
CM APPL. 27780/2021 (for exemption)
2. Allowed, subject to all just exceptions. Application is disposed of.
WP(C) 8929/2021 & CM APPL. 27779/2021 (for interim stay)
3. The present petition challenges order dated 19th March, 2021 by
which Mr. Vinay Sabharwal, ld. counsel who was appearing for the
Petitioner-Management was not permitted to represent his client before the
Industrial Tribunal. His request for conducting the cross-examination of the
Respondents-Workmen's witness was also rejected. After recording the
statement of the witness, without affording the Petitioner-Management an
opportunity for cross-examination, the evidence of the Workmen was
closed. The impugned order reads as under:
W.P.(C) 8929/2021 Page 1 of 15
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Digitally Signed By:DINESH
SINGH NAYAL
Signing Date:27.08.2021
21:56:58
"19.3.2021
Present: Sh. Rajesh Khanna, AR for the
workmen alongwith workmen in
person.
Sh. Vinay Sabharwal, Advocate is
appearing for and on behalf of the
management.
However, AR of the workmen has pointed out
to the application filed by and one behalf of the
workmen under Section 36 ID Act which was
disposed of vide order dated 18.10.2018 in the
light of non appearance of the Advocate
representing the management earlier and also
noting the presence of the representative of the
management thereafter, as satisfied.
In the light of this order made on the
application under Section 36 ID Act legal
representation for the management is not
permissible. No one is present on behalf of the
management.
Affidavit of evidence of Sh. Tadkeshwar has
been tendered in evidence. His examination in
chief has been recorded as WW-23. Sh. Vinay
Sabharwal, Advocate appearing for and on
behalf of the management request for
conducting the cross examination of WW-23.
Request is declined. Witness is discharged after
giving opportunity nil.
WE is closed on statement of the AR for the
workman recorded separately.
One application has been filed by and on
behalf of the management for recalling of the
W.P.(C) 8929/2021 Page 2 of 15
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Digitally Signed By:DINESH
SINGH NAYAL
Signing Date:27.08.2021
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workmen whose statement has been recorded on
2.3.2021. In the light of the earlier order dated
18.10.2018, application is dismissed.
With regard to two deceased workmen namely
Sh. Vidhya Narain and Sh. Shahbuddin no one is
present today. Proceeding qua them is abated.
Put up for ME on 28.5.2021. Advance copy of
the affidavit of evidence be supplied to the
opposite party one week before the next date.
Management is directed to complete its entire
evidence within two effective dates."
4. Mr. Sabharwal, ld. counsel appearing for the Petitioner-Management
submits that this order is completely contrary to the prevailing law on the
issue inasmuch as Advocates are permitted to represent the management, so
long as there is no objection by the workman or the litigation expenses are
paid. He submits that in this case, the Management was being represented by
an Advocate on several hearings. The Advocates who had appeared earlier
for the Management, were Mr. Neeraj Kumar and Mr. Shashwat Singh Gaur.
However, on one occasion, when the authorized representative i.e., the
Accounts Manager was appearing on behalf of the Management, an order
was passed on 18th October, 2018 recording that the authorized
representative i.e., Mr. Sanjeev Jamwal and not Mr. Neeraj Kumar,
Advocate was appearing for the Management. The application filed by the
Workmen under Section 36 of the Industrial Disputes Act, 1947 was
disposed of on that ground.
5. Mr. Sabharwal, ld. counsel submits that the authorized representative
of the Management was appearing at the time when pleadings were being
exchanged and other procedural formalities were being completed.
However, when the matter reached the stage of trial, the Management
W.P.(C) 8929/2021 Page 3 of 15
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Digitally Signed By:DINESH
SINGH NAYAL
Signing Date:27.08.2021
21:56:58
thought it fit to engage the services of an Advocate for tendering evidence
and conducting cross-examinations. Accordingly, Mr. Sabharwal had been
engaged in the matter. However, for the reasons recorded in the impugned
order, he was not permitted to represent the Management or cross-examine
the witness of the Workmen.
6. Mr. Sabharwal, ld. counsel submits that it is the usual practice before
Labour Courts that Advocates appear and represent the management as well
as the workmen. Workmen are engaging experts, though they may not be
enrolled as Advocates. He points out that in the present case, Mr. Rajesh
Khanna, authorized representative for the Workmen is one such
representative of the trade union, regularly appearing for workmen before
the Labour Courts. He submits that the Management would be enormously
prejudiced if the Workmen are permitted to be represented by an expert and
the Management is not allowed to engage an Advocate. Reliance is placed
upon the judgment of the Supreme Court in Thyssen Krupp Industries
India Private Limited v. Suresh Maruti Chougule & Ors. [Civil Appeal No.
6586/2019, decided on 21st August, 2019], wherein the earlier judgment of
the Supreme Court in Paradip Port Trust, Paradip vs. Their Workmen
(1977) 2 SCC 339 has been referred to a larger Bench.
7. Considering the nature of the issue raised, some counsels who
regularly appear before the Labour Courts were called upon by this Court to
make submissions in this regard. Mr. Raj Birbal and Ms. Raavi Birbal, who
are present in the hearing, submit that the legal position is well-settled that
Advocates are allowed to appear before the Labour Courts, as decided by the
Division Bench of this Court in M/s Bhagat Brothers v. Paras Nath
W.P.(C) 8929/2021 Page 4 of 15
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Digitally Signed By:DINESH
SINGH NAYAL
Signing Date:27.08.2021
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Upadhyay, (2008) 149 DLT 381. The judgment in Thyssen Krupp
Industries India Private Limited (supra) is also reiterated.
8. Mr. Gunjan Singh, ld. counsel who regularly appears for workmen
before the Labour Courts and before this Court was also asked as to what the
position on ground is. He submits that the workmen do engage Advocates
regularly and, in any case, so long as litigation expenses are paid, both the
workmen and the management are permitted to be represented through
Advocates.
9. Considering the nature of the matter, Mr. Sabharwal, ld. counsel was
requested to telephonically inform Mr. Rajesh Khanna, the authorized
representative for the Workmen, to join the proceedings. Mr. Sabharwal, ld.
counsel submits that Mr. Khanna when contacted telephonically, has
declined to appear before this Court as he is not an Advocate. Advance copy
of the petition is already served. Intimation by counsel upon directions of the
Court was also given. However, the AR of the workmen has not appeared.
Considering the above, this Court proceeds further in the matter.
10. The only question that has arisen in the present matter is in respect of
the representation of Advocates before Labour Courts. Section 36 (4) of the
Industrial Disputes Act, 1947 reads as under:
"36. Representation of parties. -
...
(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
proceedings and [with the leave of the Labour
Court, Tribunal or National Tribunal, as the case
may be]."
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Digitally Signed By:DINESH
SINGH NAYAL
Signing Date:27.08.2021
21:56:58
11. A perusal of the above provision clearly shows that both parties i.e.,
the workmen and the management, are permitted to be represented by a legal
practitioner with the consent of the other party and with the leave of the
Court. This provision has been considered by the Supreme Court in Paradip
Port Trust (supra), wherein it has been held as under:
"16. If, however, a legal practitioner is appointed
as an officer of a company or corporation and is in
their pay and under their control and is not a
practising advocate the fact that he was earlier a
legal practitioner or has a legal degree will not
stand in the way of the company or the corporation
being represented by him. Similarly if a legal
practitioner is an officer of an association of
employers or of a federation of such associations,
there is nothing in Section 36(4) to prevent him
from appearing before the tribunal under the
provisions of Section 36(2) of the Act. Again, an
office-bearer of a trade union or a member of its
executive, even though he is a legal practitioner,
will be entitled to represent the workmen before
the tribunal under Section 36(1) in the former
capacity. The legal practitioner in the above two
cases will appear in the capacity of an officer of
the association in the case of an employer and in
the capacity of an office-bearer of the union in the
case of workmen and not in the capacity of a legal
practitioner. The fact that a person is a legal
practitioner will not affect the position if the
qualifications specified in Section 36(1) and
Section 36(2) are fulfilled by him.
17. It must be made clear that there is no scope for
enquiry by the tribunal into the motive for
appointment of such legal practitioners as office-
bearers of the trade unions or as officers of the
employers' associations. When law provides for a
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Digitally Signed By:DINESH
SINGH NAYAL
Signing Date:27.08.2021
21:56:58
requisite qualification for exercising a right,
fulfilment of the qualification in a given case will
entitle the party to be represented before the
tribunal by such a person with that qualification.
How and under what circumstances these
qualifications have been obtained will not be
relevant matters for consideration by the tribunal
in considering an application for representation
under Section 36(1) and Section 36(2) of the Act.
Once the qualifications under Section 36(1) and
Section 36(2) are fulfilled prior to appearance
before tribunals, there is no need under the law to
pursue the matter in order to find out whether the
appointments are in circumvention of Section
36(4) of the Act. Motive of the appointment cannot
be made an issue before the tribunal.
...
19. The matter of representation by a legal
practitioner holding a power of attorney came up
for consideration before the Full Bench of the
Appellate Tribunal of India in the year 1951
(see Kanpur Hosiery Workers' Union v. J.K.
Hosiery Factory, Kanpur [(1952) 1 LLJ 384] ).
The provision for representation which applied to
the Appellate Tribunal was Section 33 of the
repealed Industrial Disputes (Appellate Tribunal)
Act, 1950. This section corresponds to Section 36
of the Industrial Disputes Act with which we are
concerned. Although the Appellate Tribunal
rejected the claim of the party to be represented by
the legal practitioner on the basis of a power of
attorney, with which we agree, the reasons for its
conclusion based solely on the ground of Section
36 being exhaustive do not meet with our
approval. The Appellate Tribunal took the view
that the Act intended to restrict the representation
of parties to the three classes of persons
enumerated in sub-sections (1) and (2) of Section
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Digitally Signed By:DINESH
SINGH NAYAL
Signing Date:27.08.2021
21:56:58
33. The Appellate Tribunal was of the view that
sub-sections (1) and (2) of Section 33 were
intended to be exhaustive of the persons (other
than the party himself) who might represent either
of the party. Since holding of a power of attorney
is not one such mode the claim of the legal
practitioner failed, according to the Appellate
Tribunal. The Rajasthan High Court in Duduwala
& Co. v. Industrial Tribunal [AIR 1958 Raj 20 :
(1959) 1 LLJ 75] took the same view. Our
attention has been drawn to the decisions of the
Calcutta and Bombay High Courts wherein a
contrary view has been taken with regard to the
interpretation of Section 36 as being exhaustive
[see Hall & Anderson Ltd. v. S.K. Neogi [(1954) 1
LLJ 629 (Cal)] and Khadilkar (K.K.) General
Secretary, Engineering Staff Union,
Bombay v. Indian Hume Pipe Company Ltd.,
Bombay [(1967) 1 LLJ 139 (Bom)] ]. For the
reasons already given by us we are of opinion that
the views of the Labour Appellate Tribunal and
that of the Rajasthan High Court in this aspect of
the matter are not correct and the Calcutta and
Bombay High Courts are right in holding that
Section 36 is not exhaustive.
...
26. 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."
Signature Not Verified
Digitally Signed By:DINESH
SINGH NAYAL
Signing Date:27.08.2021
21:56:58
From the judgement in Paradip Port Trust (supra) it is clear that there is no
absolute bar and if consent is given by the workmen, a lawyer can appear
before the Labour Court.
12. The judgment in Paradip Port Trust (supra) has again been
considered in Thyssen Krupp Industries India Private Limited (supra),
wherein the Supreme Court has opined that the question as to whether the
provisions of the Industrial Disputes Act, 1947 or the Advocates Act, 1961
would prevail is required to be considered by a larger Bench. However, in
the said case, the Supreme Court clearly directed that the workman is at
liberty to engage an Advocate, so long as his fee is paid by the management,
and the management can also be represented by an Advocate. The relevant
portion of the judgment of the Supreme Court in Thyssen Krupp Industries
India Private Limited (supra) is set out hereinbelow:
"11. The learned senior counsel for the appellants
and the Bar Council of India submitted that the
Advocates Act is a special Act and that the ID Act
is a general Act. According to them, Section 30 of
the Advocates Act overrides Section 34 of the ID
Act. As stated earlier, this Court in Paradip Port
Trust, was of the opinion that the ID Act is a
special piece of legislation and the Advocates Act
is a general piece of legislation with regard to the
subject matter of appearance of lawyers before the
labour courts. In the context of matters pertaining
to industrial disputes and the mechanism provided
for resolution of the disputes, we have no doubt
that the ID Act is a special piece of legislation.
However, whether the Advocates Act is a general
piece of legislation with respect to the subject
matter of appearance of lawyers in labour courts,
needs a detailed consideration. Section 30 of the
Advocates Act confers a right on an advocate to
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Digitally Signed By:DINESH
SINGH NAYAL
Signing Date:27.08.2021
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practice before any Tribunal. Applying the test laid
down by this court in Ashoka Marketing, it is
doubtful whether the Advocates Act can be termed
a general piece of legislation in respect of the
subject matter in dispute. As the judgement
in Paradip Port Trust is by a Bench of 3 judges,
and taking into account the importance of the
issues raised in these cases, we are of the
considered opinion that these matters be referred
to a larger Bench.
...
13. The workman is at liberty to engage an
advocate, and the fee of the said advocate shall be
paid by the Management. The appellant shall be
permitted to be represented by an Advocate. As
this direction is being given in view of the
complaint of the workman that he is suffering due
to the delay it is deemed that the workman has no
objection to the appellant engaging an advocate.
The Labour Court is directed to proceed with
Reference IDA No. 121 of 2016 expeditiously and
decide the matter within a period of six months
from today."
13. The judgment of the ld. Division Bench of this Court, quoted by Ms.
Birbal, is also apt in this context. The ld. Division Bench in Bhagat
Brothers (supra) considered the other case law and decisions dealing with
the constitutional validity of Section 36 (4) to finally observe as under:
"10. While interpreting Section 36(4) we must
remember a crucial fact that when the Industrial
Disputes Act was enacted in the year 1947 the
trade union movement in this country was in its
infancy and was absolutely a novice before the
adjudication machinery. The Legislature had
visualized a legal battle between two unequals
before the Industrial Adjudicators. In order to
bring about and maintain fairness and equality,
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SINGH NAYAL
Signing Date:27.08.2021
21:56:58
the Legislature provided under Section 36 of the
Act how the parties would be represented in the
proceedings under this Act. However, there has
been sea change in the circumstances. A large
number of small employers have also come up in
the industrial scene. They cannot be denied the
service of a legal practitioner when they are
dragged into industrial litigations. Trade unions
have also become financially well off to engage
services of legal practitioners. Many a times union
representatives appearing for the workmen are
extremely knowledgeable and possess vast
experience in the field. Constitutional validity of
Section 36(4) has been upheld by this Court in The
Cooperative Store Limited, New Delhi v. O.P.
Dwivedi, P.O. Industrial Tribunal -II & Others
1988 1 LLJ 135. However, thereafter when the
same issue came up before the Allahabad High
Court, Markandeya Katju, J (as he then was) vide
his decision reported in 1992-1- LLN 972 (ICI
India Ltd. v. Labour Court (IV) & Another) has
held that Section 36(4) of the Industrial Disputes
Act and a similar provision i.e. Section 6-I(2) of
the UP
Industrial Disputes Act are ultra vires of the
Constitution. In view of our finding that there was
implied consent it is not for us to re-examine the
constitutional validity of Section 36(4) but we feel
that in the changed circumstances a fresh look is
necessary at Section 36(4). With these
observations, we allow the appeal and set aside
the order of the Labour Court as also of the
learned single Judge and hold that the
management is entitled to be represented by a
legal practitioner before the Labour Court."
14. Apart from the above decisions, there have been divergent views
expressed by various High Courts on the question of whether there was
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Digitally Signed By:DINESH
SINGH NAYAL
Signing Date:27.08.2021
21:56:58
consent - implied or expressed, and whether leave ought to be granted by
the Adjudicator concerned. Judicial decisions on the question of consent,
including implied consent, have primarily turned on the facts of each case.
Courts have noted factors such as whether the advocates were appearing in
robes (Samarendra Das v. M/s Win Medicare Pvt. Ltd. [W.P.(C)
5159/2013, decided on 11th February, 2014]), whether the appearance was
given as an advocate (Ved Prakash Dubey, Jai Prakash Dubey & Ram
Bachan Soni v. M/s Maheshwari Gas Service [LPA 162/2016, decided on
24th November, 2016]), etc. However, with the recent decision of the
Supreme Court in Thyssen Krupp Industries India Private Limited (supra),
the clear conclusion would be that a legal practitioner can represent the
management before the Labour Court, if the litigation expenses for the
workman to engage the advocate are paid by the management. Moreover, in
Bhagat Brothers (supra) the ld. Division Bench has also noted factors that
would tilt towards allowing Advocates to appear before the labour courts
including the fact that it would prejudice small employers etc.,
15. The facts of the present case show that the Management was earlier
being represented by Mr. Neeraj Kumar, an Advocate, which is recorded in
order dated 18th October, 2018, which reads as under:
"18.10.2018
Present: Some of workmen alongwith A.R.
Sh.Rajesh Khanna.
Sh. Sanjeev Jamwal, A.R. for the management.
From perusal of file, it is clear that an application
u/ s 36 of J.D. Act was filed on behalf of the
workmen by Sh. Rajesh Kumar, Ld. A.R. for the
workmen. But on the very first date of appearance,
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Digitally Signed By:DINESH
SINGH NAYAL
Signing Date:27.08.2021
21:56:58
Memo of Appearance was filed on behalf of Sh.
Neeraj Kumar, Advocate. Admittedly Sh. Neeraj
Kumar is not appearing in the present matter after
15/12/15. It has been submitted by Sh. Sanjeev
Jamwal, Ld. A.R. for the management that he is
only person, who will be representing the
management in the present matter. On this, Ld.
A.R. for the workmen has no objection if the
application u/ s 36 ID Act is disposed off as
satisfied. In view of this the application u/ s 36 of
ID Act is therefore disposed off.
Heard. It is submitted by both the parties that
there is no document for admission/ denial. Out of
the pleadings of the parties, following issues are
framed:
1. As per the terms of reference.
2. Relief
No other issue arises or is pressed. PF/DM and
list of witnesses be filed within 15 days from today.
Ld. AR for workman is directed to supply advance
copy of affidavit to Ld. AR for the management one
week prior to the next date of hearing.
Put up on 07/02/2019 for WE."
16. Mr. Sabharwal, ld. Counsel submits that one Mr. Shashwat Singh
Gaur was also appearing as an Advocate in this matter for the Management.
A perusal of the impugned order also shows that the Labour Court records
that the Advocate who was earlier appearing for the Management was
thereafter replaced by the authorized representative. Thus, initially, there
appears to have been consent for the Management to be represented by an
Advocate.
17. Be that as it may, any litigation before the Labour Court has various
stages. Initially, the pleadings and other procedural formalities are
completed between the parties. At that stage, the management and the
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SINGH NAYAL
Signing Date:27.08.2021
21:56:58
workmen may choose not to expend their resources by engaging Advocates.
However, as the matter reaches trial, it would be inapt to say that the
management or the workmen would not be entitled to engage Advocates or
legal practitioners to represent them, in accordance with law. If the
Management wishes to be represented by a legal practitioner, the Court can
consider the question of whether the workman has given consent or not,
whether impliedly or otherwise. The Court, upon finding consent, may also
award litigation expenses to permit the legal practitioner to appear for the
Management. This is clearly the spirit of the judgment in Thyssen Krupp
Industries India Private Limited (supra).
18. The impugned order shows that though the advocate Mr. Sabharwal,
for the Management was present on the date of hearing i.e., 19th March,
2021, the Labour Court has observed that no one is present on behalf of the
Management. Such kind of treatment cannot be meted out to an Advocate
who was present in court on a particular date. The Court has justified the
same by recording that an earlier application under Section 36(4) has been
disposed of at a time when the Authorized Representative of the
Management was appearing. This approach is fallacious. The Labour Court
could have adjourned the matter to enable the Management to put forward
its case as to why it requires the services of an advocate at the stage of cross-
examination. Thereafter, the Labour Court, after perusing the record ought
to have given a finding as to whether there was implied consent at any stage
of the proceedings for the Management to be represented by an advocate.
The Court could have also considered whether litigation expenses could be
paid to the workman. To completely oust the opportunity for cross-
examination, even while the advocate for the Management was present,
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would be contrary to the spirit of Thyssen Krupp Industries India Private
Limited (supra). Such an approach would cause irreparable prejudice to the
Management.
19. In view of the above legal position and the facts of this case, the
impugned order is clearly not sustainable. The same is accordingly set aside.
20. Under these circumstances, it is directed that the parties shall appear
before the Labour Court on 20th September, 2021. On the said date, the
Labour Court would firstly, after hearing the submissions on behalf of the
parties, decide the question as to whether the Management can be
represented by an advocate and on what terms and conditions. Thereafter,
the Management would be given an opportunity to cross-examine the
witness whose statement was recorded on 19th March, 2021. If the
Management prays for an opportunity to cross-examine other witnesses of
the Workman whose cross-examination was earlier not permitted, an
application may be moved before the Labour Court, which shall be
considered in accordance with law. After the cross-examination of the
workman's evidence, the Management's evidence shall be recorded.
21. The writ petition is allowed in the above terms. All pending
applications are also disposed of.
22. This Court appreciates the assistance rendered by the ld. counsels Mr.
Raj Birbal, Ms. Raavi Birbal and Mr. Gunjan Singh, who were present in
Court today.
PRATHIBA M. SINGH
JUDGE
AUGUST 24, 2021/mw/T
(corrected and released on 26th August, 2021)
