Galpha Laboratories Limited vs Workman And Sales Promotion ...
2023 Latest Caselaw 7095 MP

                                                         1
                          IN    THE      HIGH COURT OF MADHYA PRADESH
                                              AT JABALPUR
                                                   BEFORE
                                   HON'BLE SHRI JUSTICE MANINDER S. BHATTI
                                               ON THE 2 nd OF MAY, 2023
                                           MISC. PETITION No. 3049 of 2022

                         BETWEEN:-
                         1.    GALPHA LABORATORIES LIMITED THROUGH
                               GRUOP PRESIDENT E-221, KANAKIA ZILLION
                               BANDRA KURLA COMPLEX ANNEX, L.B.S. MARG
                               AND C.S.T. ROAD JUNCTION KURLA WEST
                               MUMBAI (MAHARASHTRA)

                         2.    GALPHA LABORATORIES LIMITED THROUGH
                               GROUP   PRESIDENT E-221 KANAKIA ZILLION
                               BANDRA KURLA COMPLEX ANNEXE L.B.S. MARG
                               AND C.S.T. ROAD JUNCTION KURLA WEST
                               MUMBAI (MAHARASHTRA)

                         3.    GALPHA LABORATORIES LIMITED THROUGH
                               GROUP PRESIDENT E-221 ANNEXE L.B.S. MARG
                               AND C.S.T. ROAD JUNCTION KURLA WEST
                               MUMBAI (MAHARASHTRA)

                                                                                   .....PETITIONERS
                         (BY SHRI ANOOP KUMAR SHRIVASTAVA - ADVOCATE)

                         AND
                         1.    WORKMAN         AND    SALES    PROMOTION
                               EMPLOYEES UNION THROUGH SECRETARY
                               M.I.G.-12, SHRIRAM KUNJ, BHARAT NAGAR MAIN
                               ROAD BHOPAL, M.P. (MADHYA PRADESH)

                         2.    PRADEEP KUMAR JAIN S/O SHRI SHYAMLAL
                               JAIN, AGED ABOUT 45 YEARS, C-19 VARDHMAN
                               GREEN PARK COLONY BEHIND POLICE STATION
                               ASHOKA GARDEN BHOPAL (M.P.) (MADHYA
                               PRADESH)

                                                                                 .....RESPONDENTS
                         (BY SHRI H.K. PARDASANI)

                               This petition coming on for admission this day, th e court passed the
Signature Not Verified
Signed by: VIVEK KUMAR
TRIPATHI
Signing time: 5/8/2023
1:11:01 PM
                                                              2
                         following:
                                                              ORDER

This is a petition by the Management of Galpha Laboratories Ltd. assailing the interim order dated 30.4.2022 passed by the Labour Court, Bhopal.

2. Counsel for the petitioner contends that the respondent Union as well as workman has filed a Statement of Claim before the Labour Court questioning the termination of the workman. The present petitioner entered appearance before the Labour Court and filed a Written Statement, which is contained in Annexure P-2. Counsel contends that appearance was made by the petitioner before the Labour Court on 25.2.2021. On 13.3.2021 a Vakalatnama by the

counsel for petitioner was filed before the Labour Court. On 27.3.2021, an application was moved by the workman/Union under Section 36 (2) (3) and (4) of the Industrial Disputes Act, 1947 (Act of 1947 for short). The said application was disputed by the petitioner by filing a reply.

3. The Labour Court, however, by impugned order dated 30.4.2022 has allowed the said application and has restrained the petitioner to appear through Legal Practitioner in view of bar contained in Section 36 (3) of Act of 1947. Counsel for the petitioner contends that two more questions which arise for consideration are to the effect; (i) as to whether respondent workman is a workman within the definition as provided under the Act of 1947, in view of the

judgment dated 11 th October, 2018 of Division Bench of this Court in Novartis India Ltd. v. Vipin Shrivastava and others (Writ Appeal No. 75/2017) ? and, (ii) the workman/Union once having given implied consent as regards appearance of the Legal Practitioner could have raised any objection regarding appearance by the Legal Practitioner? Signature Not Verified Signed by: VIVEK KUMAR TRIPATHI Signing time: 5/8/2023 1:11:01 PM

4. The counsel contends that the aforesaid two issues go to the root of the matter, inasmuch as, undisputedly in view of the averments made in paragraph 1 of the statement of claim, the workman does not fall within the definition of workman as provided in the Act of 1947. Therefore, the very dispute which is raised before the Labour Court is untenable and, on this count alone the proceedings deserve to be quashed. The counsel further contends that once the workman having given the implied consent as regards appearance through Legal Practitioner, subsequently, he is estopped from raising any objection in view of Section 36 (3) of the Act of 1947. It is contended by the counsel that the effect of implied consent has been taken note of by the High Court of Bombay in T.K. Verghese v. Nichimen Corporation [(2001) 90 FLR 91]. The counsel while taking this Court to various paragraphs of the judgment submits that the Bombay High Court, took into consideration the factum as regards the appearance by Legal Practitioner on various dates and, also the failure on the part of the opposite party to raise objection as regards the appearance. The Bombay High Court also considered the fact that at the time of enactment of Industrial disputes Act, 1947 there was dearth so far as the lawyers were concerned and accordingly, the Legislature with an intention to protect the interest of workman stipulated provisions in Sections 36 (3) and (4) of the Act, 1947. However, by efflux of time, the affordable and free legal

services are now available to the litigant and, therefore, this fact was taken note by the Bombay High Court. Accordingly, as for proper adjudication of the matter, the legal acumen is required and, therefore, no party should be deprived of their statutory right to put-forth his or her defence effectively. Thus submits that in view of the aforesaid the order impugned deserves quashment.

Signature Not Verified 5 . Per contra counsel for the respondents submits that in the present Signed by: VIVEK KUMAR TRIPATHI Signing time: 5/8/2023 1:11:01 PM

case no application was moved by the petitioner seeking consent of the opposite party in terms of Section 36 (4) of the 1947 Act. It is contended by the counsel that in absence of a consent and leave by the concerned Labour Court, there cannot be any appearance through Legal Practitioner under the provisions of the Act of 1947. The counsel further contends that the issue is no more res integra, inasmuch as, the Apex Court in the case of Paradip Port Trust v. Their Workmen (AIR `1977 SC 36) has already conclusively decided that in absence of consent as well as leave of the Court concerned, the parties cannot be permitted to enter appearance through Legal Practitioner and, therefore, the consent by the party and leave of the Court are two conditions precedent before permitting the Legal Practitioner to appear on behalf of the Management. It is further contended by the Counsel that the decision in Paradip Port Trust (supra) has also been relied upon by the Coordinate Bench of this Court at Indore in order dated 30.7.2018 in Abbott Healthcare Pvt. Ltd v. Vimal Raghuvanshi (M.P. No. 3054/2018) and decision of Division Bench of this Court dated 28.8.2018 in Abbott Health care Pvt. Ltd v. Vimal Raghuvanshi (W.A No. 1048/2018) . Accordingly, the counsel submits that Labour Court has not committed any error, inasmuch as, the Labour Court came to the conclusion that there was no consent by the workman in terms of Section 36 (4) of the Act of 1947 and hence, the Labour Court did not commit any error while passing the impugned order. It is thus, submitted that the petition deserves to be dismissed.

6. Heard rival submissions and perused the record.

7. To deal with the rival contentions, it is first apposite to reproduce Section 36 of the Act of 1947, which reads as follows: Signature Not Verified Signed by: VIVEK KUMAR TRIPATHI Signing time: 5/8/2023 1:11:01 PM

"36. Representation of parties.- (1) A workman who is a party to a 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.

(2) An employer who is a party to a 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 associations 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 proceeding 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 Signature Not Verified Signed by: VIVEK KUMAR TRIPATHI Signing time: 5/8/2023 1:11:01 PM

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."

8. A perusal of Section 36 (4) of the Act of 1947 reflects that a party cannot be permitted through Legal Practitioner unless there is a consent by the opposite party and also leave by the Court concerned. Therefore, the consent of the party as well as the leave of the Court are two conditions precedent which are required to be satisfied when a party wishes to engage a legal practitioner.

9. In the present case, the order-sheet produced on record reflects that upon filing of statement of claim the notices were issued to the Management and the Management entered appearance before the Labour Court on 25.2.2021. A perusal of order-sheet dated 25.2.2021 reflects that one Basant Kumar appeared on behalf of petitioner herein and he produced some authority letter and also produced a reply. Thereafter the matter was posted on 13.3.2021. On 20.3.2021, one Shri Vijay Kumar, Advocate appeared on behalf of the petitioner

and also filed his Vakalatnama and also submitted reply to the claim petition and

some application. Thereafter the matter was posted on 27th March, 2021. On

27th March, 2021, the respondents moved an application under Section 36 (2) (3) and (4) of the Act of 1947 and it was prayed that the present petitioner be restrained from entering appearance through Legal Practitioner. The said application was decided by the impugned order dated 30.4.2022 and the Labour Court allowed the said application and restrained the present petitioner to appear through Legal Practitioner. The Labour Court has passed the order impugned in view of the provisions contained in Section 36 (3) and (4) of the Act of 1947. The Labour Court while passing the impugned order, observed Signature Not Verified Signed by: VIVEK KUMAR TRIPATHI Signing time: 5/8/2023 1:11:01 PM

that, as the workman has moved an application under Section 36 (4) of the 1947 Act, therefore, there is no question of implied consent. Accordingly, has allowed the application filed by the Union/workman while referring to the decision of the Apex Court in Paradip Port Trust (supra) as well as order dated 14.1.2020 of Indore Bench of this Court in the case of Himalaya Drug Company Makali and others v. M.P. Medical and Sales Representative Association and others. The Apex Court, in Paradip Port Trust (supra) held in paragraph 26 as under:

"26. A lawyer, simpliciter, cannot appear before an Industrial Tribunal without the consent of the opposite party a n d 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"

10. A perusal of the aforesaid law laid down by the Apex Court reflects that the Apex Court concluded that lawyer cannot appear before the Industrial Tribunal without consent of the opposite party and leave of the Tribunal.

11. In the present case, there is no consent either expressed or implied by Union/workman in favour of the petitioner to engage a legal practitioner to defend it. In absence of any consent by the Union/workman, the petitioner could not have been permitted to enter appearance through Legal Practitioner. The law laid down by the Apex Court in the case of Paradip Trust (supra) has been further relied upon by the Division Bench of Indore Bench of this Court in Abbott Healthcare Pvt. Ltd. v. Vimal and others (W.A. No. 1048/2018) and Single Bench of Indore Bench in Abbott Healthcare Pvt. Ltd v. Vimal

Signature Not Verified Signed by: VIVEK KUMAR TRIPATHI Signing time: 5/8/2023 1:11:01 PM

Raghuvanshi (W.P. No. 3054/2018).

12. Therefore, in view of the aforesaid, as there was no consent by the workman/Union, in favour of the petitioner in terms of Section 36 (4) of the Act of 1947, the petitioner could not have been represented through Legal Practitioner and accordingly the impugned order does not require any interference having been passed in consonance with the statutory provision.

13. In view of the aforesaid petition stands dismissed.

(MANINDER S. BHATTI) JUDGE vivek

Signature Not Verified Signed by: VIVEK KUMAR TRIPATHI Signing time: 5/8/2023 1:11:01 PM