Jharkhand High Court

Engineering Mazdoor Sabha vs The State Of Jharkhand on 11 January, 2024

Author: Anil Kumar Choudhary

Bench: Anil Kumar Choudhary

                                                                         W.P.(L) No.2537 of 2018




           IN THE HIGH COURT OF JHARKHAND AT RANCHI
                            W.P.(L) No.2537 of 2018
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Engineering Mazdoor Sabha, Tati Silwai, Ranchi, through its Workmen represented by Sri Anjani Kumar Pandey, Aged about 55 Years Son of Late Kripa Nadhan Pandey, at Resident at Gunga Toli P.O. and P.S. Chutia District Ranchi (Jharkhand) ... Petitioner Versus

1. The State of Jharkhand

2. The Management of M/s Usha Martin Ltd, Tati Silwai, P.O. and P.S. Namkom, District Ranchi, through its General Manager of M/s Usha Martin Ltd, Tati Silwai, Ranchi, P.O. and P.S. Namkom, District Ranchi (Jharkhand) ... Respondents

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             For the Petitioner           : Mr. Anjani Kumar Pandey, In Person
             For the Resp.- State         : Ms. Ruby Yadav, AC to SC- VI
             For the Resp. No.2           : Mr. Nipun Bakshi, Advocate
                                            Mr. Shubham Sinha, Advocate
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                                       PRESENT
                 HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY


By the Court:-    Heard the parties.

2. This Writ Petition has been filed under Article 226 of the Constitution of

India with a prayer for issuance of appropriate writ/writs, order/orders,

direction/directions in the nature of certiorari for quashing the order dated

15.03.2018 (Annexure-2) of this Writ Petition in Reference Case No.01 of 2017

passed by the learned Presiding Officer, Industrial Tribunal Ranchi by which

the officers of the Association of employers of which the management is a

member and such officers are also legal practitioners have been permitted to

represent the case of the management of respondent No.-2; which, according to

the writ petitioner-workers Union, is against the settled law under Section 36

(3) (4) of the Industrial Disputes Act, 1947 and order dated 19.04.2018 passed by

the said industrial tribunal, which has been annexed as Annexure-3 of this Writ

Petition by which review has been rejected and further a writ of mandamus for

not implementing the order dated 15.03.2018 which prejudiced the case of the

workmen.

3. The brief facts of the case is that the respondent No.2- Management

before the Reference Case No.01 of 2017 was allowed to be represented by Mr.

Satish Bakshi and Mr. Anil Kumar Verma; who though are the legal

practitioners but at the same time Mr. Satish Bakshi is the Honorary Chairman

and Mr. Anil Kumar Verma is the Honorary Secretary of the registered

association of employers i.e, Jharkhand Industries Development Association.

The workmen's representative on 10.01.2018 filed an application with a prayer

that the management may not be allowed to be represented by any legal

practitioner. The same was objected to by the management. The management

also filed a separate petition on 07.02.2018 making a prayer for allowing Mr.

Satish Bakshi and Mr. Anil Kumar Verma to represent the management in the

said Reference Case No.01 of 2017. The Industrial Tribunal, Ranchi considered

that under Section 36 (2) of the Industrial Disputes Act, 1947 an employer who

is a party to the dispute shall be entitled to be represented in any proceeding

under the said act inter alia by an officer an association of employers of which

the employer is a member and also relied upon the judgment of the Hon'ble

Supreme Court of India in the case of Paradip Port Trust, Paradip vs.

Workmen reported in (1977) 2 SCC 339 wherein it was observed as under:-

" ..... Similarly, if a legal practitioner is an officer of an association of employers or a federation of such associations, there is nothing in Section 36 (4) to prevent him from appearing before the Tribunal under the provisions of 36 (2) of the Act..."

4. The learned tribunal also relied upon the judgment of a co-ordinate

Bench of this Court in the case of Nav Chandra Jha vs. The Presiding Officer

& Another reported in 2001 (1) Jh. Cr. 164 (Jhr) wherein the co-ordinate Bench

has held as under:-

"..... A legal practitioner by himself cannot represent either the workman or the employer in any conciliation proceeding or any proceeding before the Court under the said Act. But, he could do so with the consent of other party and with the leave of the Court. But, if he represents the workman as office bearer of a registered trade union or an officer of the association of employer, he is neither debarred nor required to obtain consent of the other side or leave of the court or the Tribunal. Merely because a person is a legal practitioner cannot be debarred from representing the employer, if that person is an officer of the Association of employers or of a federation of such Association..."

and rejected the objection raised by the workmen and allowed the

petition dated 07.02.2018 filed by the management to be represented by Mr.

Satish Bakshi and Mr. Anil Kumar Verma.

5. The representative of the writ petitioner- workmen relies upon the

judgment of a co-ordinate Bench of this Court in the case of M/s. HINDALCO

Industries Ltd. vs. Their Workmen, represented by Sri Anjani Kumar

Pandey, Mahamantri, Jharkhand General Kamgar Union passed in W.P. (L)

No.7458 of 2012 dated 01.04.2014 wherein the co-ordinate Bench of this Court

concurred with the order of the Labour Court by which the Labour Court did

not grant leave to the management of that case to be represented by a legal

practitioner as the consent for such appearance was not given by the workmen.

The representative of the writ petitioner- workmen also relies upon the

judgment of the Hon'ble Supreme Court of India in the case of Paradip Port

Trust, Paradip vs. Workmen (supra) paragraphs-21 to 24 of which reads as

under:-

"21. We have given anxious consideration to the above submission. It is true that "and" in a particular context and in view of the object and purpose of a particular legislation may be read as "or" to give effect to the intent of the legislature. However, having regard to the history of the present legislation, recognition by law of the unequal strength of the parties in adjudication proceedings before a Tribunal, intention of the law being to discourage representation by legal practitioners as such, and the need for expeditious disposal of cases, we are unable to hold that "and" in Section 36 (4) can be read as "or".

22. Consent of the opposite party is not an idle alternative but a ruling factor in Section 36 (4). The question of hardship, pointed out by the Solicitor General, is a matter for the legislature to deal with and it is not for the courts to invoke the theory of injustice and other consequences to choose a rather strained interpretation when the language of Section 36 is clear and unambiguous.

23. Besides, it is also urged by the appellant that under Sec. 30 of the Advocates Act, 1961, every advocate shall be entitled "as of right" to practice in all courts and before any tribunal (Section 30 (i) and (ii)). This right conferred upon the advocate by a later law will be properly safeguarded by regarding the word "and" as "or" in Sec. 36 (4), says counsel. We do not fail to see some difference in language in Section 30 (ii) from the provision in Section 14 (1) (b) of the Indian Bar Councils Act, 1926, relating to the right of advocates to appear before courts and tribunals. For example, under Section 14 (1) (b) of the Bar Councils Act, an advocate shall be entitled as of right to practise save as otherwise provided by or under any other law in any courts (other than High Court) and tribunal. There is, however, no reference to "any other law" in Section 30 (ii) of the Advocates Act. This need not detain us. We are informed that Section 30 has not yet come into force. Even otherwise, we are not to be trammelled by Section 30 of the Advocates Act for more than one reason. First, the Industrial Disputes Act is a special piece of legislation with the avowed aim of labour welfare and representation before adjudicatory authorities therein has been specifically provided for with a clear object in view. This special Act will prevail over the Advocates Act which is a general piece of legislation with regard to the subject-matter of appearance of lawyers before all courts tribunals and other authorities. The Industrial Disputes Act is concerned with representation by legal practitioners under certain conditions only before the authorities mentioned under the Act. Generalia Specialibus non Derogant. As Maxwell puts it.

"Having already given its attention to the particular subject and provided for it the legislature is reasonably presumed not to intend to alter that special provision by a subsequent general enactment unless that intention be manifested in explicit language ..... or there be something in the nature of the general one making it unlikely that an exception was intended as regards the special Act. In the absence of these conditions, the general statute is read as silently excluding from its operation the cases which have been provided for by the special one."

Maxwell on Interpretation of Statutes, 11th Edition, page 169.

24. Second, the matter is not to be viewed from the point of view of legal practitioners but from that of the employer and workmen who are the

principal contestants in an industrial dispute. It is only when a party engages a legal practitioner as such that the latter is enabled to enter appearance before courts or tribunals. Here, under the Act, the restriction is upon a party as such and the occasion to consider the right of the legal practitioner may not arise."

and submits that the learned tribunal failed to consider the fact that Mr.

Satish Bakshi and Mr. Anil Kumar Verma are the regular legal practitioners.

Hence, it is submitted that the orders dated 15.03.2018 and 19.04.2018 be

quashed and set aside.

6. Learned counsel for the respondent No.2 on the other hand submits that

the facts of the case of M/s. HINDALCO Industries Ltd. vs. Their Workmen,

represented by Sri Anjani Kumar Pandey, Mahamantri, Jharkhand General

Kamgar Union (supra) are entirely different from the facts of this case as in that

case the lawyer who was sought to be represented by the management was not

an officer of the association employers. Hence, the facts of that case being

entirely different from the facts of this case where in this case only the two

office bearers of the association of the employers are incidentally lawyers also

but they being lawyers also will not deprive them from representing the

management in capacity of officer of association of the employers of which the

employer management is a member. In support of his contention, learned

counsel for the respondent No.2 relies upon the judgment of a co-ordinate

Bench of this Court in the case of Engineering Mazdoor Sabha, Tati Silwai,

Ranchi vs. The State of Jharkhand & Another passed in L.P.A. No.499 of 2019

dated 10th of January, 2023 in which the parties were also the same parties and

the officers of the employer association were also the same persons being Mr.

Satish Bakshi and Mr. Anil Kumar Verma and the co-ordinate Bench of this

Court taking into consideration the settled principle of law that merely because

of the officers of an association of employers of which the employer

management is a member, are also lawyers that will not debar them in enacting

and representing the management in capacity of an officer of the association of

the employers. It is further submitted that the workmen challenged the order of

the co-ordinate Bench before a Division Bench of this Court in L.P.A. No.499 of

2019 and the Division Bench, considering the facts of the case, dismissed the

same and further took note of the conduct of Mr. Anjani Kumar Pandey against

whom a criminal case has been lodged for projecting himself as the legal

representative of the Engineering Mazdoor Sabha and directed Mr. Anjani

Kumar Pandey; who is representing the writ petitioner-workmen in this writ

petition also, to make a special reference about the dispute of him representing

Engineering Mazdoor Sabha wherever he intends to represent himself as the

authorized representative of Engineering Mazdoor Sabha. Hence, it is

submitted that there is no illegality in the orders dated 15.03.2018 and

19.04.2018. Hence, it is submitted that this Writ Petition, being without any

merit, be dismissed.

7. Having heard the rival submissions made at the Bar and after carefully

going through the materials available in the record, this Court finds that in

para-21 and 22 of the case of Paradip Port Trust, Paradip vs. Workmen

(supra), the Hon'ble Supreme Court of India has taken note of the conjunction

"and" appearing in Section 36 (4) of the Industrial Disputes Act, 1947 and has

held that in case a legal practitioner intends to represent the management, the

same can be done only with the consent of the other party as well as the leave

of the Labour Court, Tribunal or National Tribunal as the case may be. But

such observation has been made when the legal practitioner concerned, was

not the officer of the Association of the employers of which the management

employer, is a member. In the said judgment; as already indicated above in this

judgment itself the Hon'ble Supreme Court of India, has in no uncertain

manner, held that in case such legal petitioner is an officer of the Association of

employers, such officer of the Association of employer will not be debarred

from representing the management-employer who is a member of such

association of employers; only because such officer is also a visual petitioner

under Section 36 (2) of the Industrial Disputes Act, 1947.

8. In para-23 of the case of Paradip Port Trust, Paradip vs. Workmen

(supra), the Hon'ble Supreme Court of India has taken note of the fact that

Section 30 of the Advocate's Act has not yet come to force. Hence, that will be

of no use for a legal practitioner to override his bar under Section 36 (4) of the

Industrial Disputes Act, 1947.

9. This Court, having heard the rival submissions made at the Bar and after

going through materials available in the record, has no hesitation in holding

that there are two different aspects of representation of a

management/employer by a legal practitioner.

Case:-I- Where an officer of an association of the employers is also a

legal practitioner and the employer/management is a member of such

association of employers.

Case:-II- Where a legal practitioner is not an officer of association of

employers of which the employers/management is a member and in capacity

of legal practitioner only he intends to represent any party to a dispute either

for the workmen or for the management.

10. In Case:-I, from the discussions made above, it is crystal clear that the

law is well settled that in case in Case:-I merely because an officer of an

association of employers of which the employer/management is a member or

an officer of a federation of association of employers to which the association

referred to is in Section 36 (2) (a) of the Industrial Disputes Act is affiliated; then

merely because such an officer is also a legal practitioner, will not be an

impediment for such officer to represent the employer/management but in

case in Case:-II, a legal practitioner who is not an officer of association of

employers or who is not the member of the Executive or other officer bearer of

a registered Trade Union, can only represent a party before Labour Court or

Tribunal or National Tribunal if and only if:-

(I) The other party consents to such appearance and in addition to that

the Labour Court or Tribunal or National Tribunal, as case may be,

accords the leave to such legal practitioner to represent a party.

11. Now, coming to the facts of the case, the undisputed fact remains that

Mr. Satish Bakshi and Mr. Anil Kumar Verma are the officers of the association

of employers of which the respondent No.2 is a member. Therefore, merely

because they are also the legal practitioner, the same will not be an impediment

for them to represent the respondent No.2- management; in capacity of the

officer of the registered association of the employers, of which the employer-

management, in this case is a member. Accordingly, this Court do not find any

illegality in the order dated 15.03.2018 (Annexure-2) of this Writ Petition in

Reference Case No.01 of 2017 passed by the learned Industrial Tribunal Ranchi

by which the officers of the Association of employers, of which the

management-employer is a member but who are also legal practitioners have

been permitted to represent the case of the management of respondent No.-2