Rajasthan High Court - Jodhpur
Ambuja Cements Limited vs Bhawru Ram on 19 December, 2023
Author: Rekha Borana
Bench: Rekha Borana
[2023:RJ-JD:44499]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Writ Petition No. 13161/2022
Ambuja Cements Limited, Unit Rabriyawas, Post D.L.F.,
Rabriyawas Tehsil Jaitaran District Pali Rajasthan Through Its
Senior Manager (Legal) And Power Of Attorney Holder Mr.
Rajvijay Singh Rathore S/o Shri Chhaviraj Singh, Aged 44 Years,
R/o C-43 Ambuja Township, Village Rabriyawas, Tehsil Jaitaran,
District Pali, Rajasthan.
----Petitioner
Versus
1. Hema Ram S/o Shri Rupa Ram, Village - Bhalot Ki Dani,
Kesarpura, Post - Rass, Dist. - Pali (Raj.).
2. M/s Shiv Narayan Singh Rathore, Contractor, Village And
Post - Rass, Tehsil - Jaitaran, Dist. - Pali (Raj.).
----Respondents
Connected With
S.B. Civil Writ Petition No. 13175/2022
Ambuja Cements Limited, Unit Rabriyawas, Post D.l.f.,
Rabraiyawas Tehsil Jaitaran District Pali Rajasthan Through Its
Senior Manager (Legal) And Power Of Attorney Holder Mr.
Rajvijay Singh Rathore S/o Shri Chhaviraj Singh, Aged 44 Years,
R/o C-43, Ambuja Township, Village Rabriyawas, Tehsil Jaitaran,
District Pali, Rajasthan.
----Petitioner
Versus
1. Jodha Ram S/o Shri Bhera Ram, Village Kesarpura, Post
Rass, Tehsil Jaitaran, Dist. Pali (Raj.).
2. M/s Dayal Ram Gurjar, Contractor, Village Kesarpura, Post
Rass, Tehsil Jaitaran, Dist. Pali (Raj.).
----Respondents
S.B. Civil Writ Petition No. 13180/2022
Ambuja Cements Limited, Unit Rabriyawas, Post D.l.f.,
Rabraiyawas Tehsil Jaitaran District Pali Rajasthan Through Its
Senior Manager (Legal) And Power Of Attorney Holder Mr.
Rajvijay Singh Rathore S/o Shri Chhaviraj Singh, Aged 44 Years,
R/o C-43, Ambuja Township, Village Rabriyawas, Tehsil Jaitaran,
District Pali, Rajasthan.
----Petitioner
Versus
1. Bhawru Ram S/o Shri Amra Ram, Village Kesarpura, Post
Rass, Tehsil Jaitaran, Dist. Pali (Raj.).
2. M/s Dayal Ram Gurjar, Contractor, Village Kesarpura, Post
Rass, Tehsil Jaitaran, Dist. Pali (Raj.).
----Respondents
S.B. Civil Writ Petition No. 13280/2022
Ambuja Cements Limited, Unit Rabriyawas, Post D.l.f.,
Rabriyawas Tehsil Jaitaran District Pali Rajasthan Through Its
Senior Manager (Legal) And Post Of Attorney Holder Mr. Rajvijay
Singh Rathore S/o Shri Chhaviraj Singh, Aged 44 Years, R/o C-
43, Ambuja Township, Village Rabriyawas, Tehsil Jaitaran,
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District Pali, Rajasthan.
----Petitioner
Versus
1. Asuram S/o Shri Laduram, Village- Balada, Tehsil -
Jaitaran, Dist. - Pali.
2. M/s Jain Carrying Corporation, Jain House, Rain Bazar,
Bikaner (Raj.) Pin- 334001.
----Respondents
S.B. Civil Writ Petition No. 13314/2022
Ambuja Cement Limited, Unit Rabriyawas, Post D.l.f., Rabriyawas
Tehsil Jaitaran District Pali Rajasthan Through Its Senior Manager
(Legal) And Power Of Attorney Holder Mr. Rajvijay Singh Rathore
S/o Shri Chhaviraj Singh, Aged 44 Years, R/o Ambuja Township,
Village Rabriyawas, Tehsil Jaitaran, District Pali, Rajasthan.
----Petitioner
Versus
1. Kailash Kumar Pandey S/o Shri Shankar Pandey, Village
Tarhesha, Post Pandu, Dist. Hazaribag (Jharkhand)
825311.
2. M/s Shree Logistic Pvt. Ltd., Shree Niketan, 380, Ashok
Nagar, Udaipur (Raj.).
----Respondents
S.B. Civil Writ Petition No. 13682/2022
M/s Shree Cement Limited, Bangur City Ras District Pali,
Rajasthan Through Its Deputy General Manager (Legal
Department), Signatory Authority And Power Of Attorney Holder
Kamal Kishore Sharma S/o Shri Jai Sita Ram Sharma Age 53
Years Residing At Shree Cement Ltd Andheri Dewari District
Ajmer Rajasthan 305901.
----Petitioner
Versus
1. Chhotu Lal S/o Shri Dhanna Ram, Through Shri Ashok
Trivedi, House No. 97 Purusharthi Nagar, Sindhi Colony,
Dist. Pali (Raj.) 306401.
2. M/s Vaibham Laxmi Contractor, Village Bhimgargh Via
Ras, Tehsil Jaitaran, Dist. Pali (Raj.)
----Respondents
S.B. Civil Writ Petition No. 13692/2022
M/s Shree Cement Limited, Bangur City Ras District Pali,
Rajasthan Through Its Deputy General Manager (Legal
Department), Signatory Authority And Power Of Attorney Holder
Kamal Kishore Sharma S/o Shri Jai Sita Ram Sharma Age 53
Years Residing At Shree Cement Ltd Andheri Dewari Beawar
District Ajmer Rajasthan 305901.
----Petitioner
Versus
1. Ghewar Ram S/o Shri Magna, Through Shri Ashok Trivedi,
House No. 97 Purusharthi Nagar, Sindhi Colony, Dist. Pali
(Raj.) 306401.
2. M/s Krishna Shakti Engineering, Village Andheri Devari
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Via Masuda, Tehsil Beawar, Dist. Ajmer (Raj.)
----Respondents
S.B. Civil Writ Petition No. 15640/2022
Ambuja Cements Limited, Unit Rabriyawas, Post D.l.f.,
Rabriyawas Tehsil Jaitaran District Pali Rajasthan Through Its
Senior Manager (Legal) And Power Of Attorney Holder Mr.
Rajvijay Singh Rathore S/o Shri Chhaviraj Singh, Aged About 44
Years, R/o Ambuja Township Village Rabriyawas, Tehsil Jaitaran,
District Pali, Rajasthan.
----Petitioner
Versus
1. Sampat Raj Prajapat S/o Shri Mangilal Prajapat, Through
Ashok Trivedi, House No. 97, Law Minister, Bhartia
Cement Mazdoor Sangh, Jodhpur Sambhag, Purusharthi
Nagar, Sindhi Colony, Pali (Raj.).
2. M/s Shri Jitendra Singh Jodha S/o Shri Takhat Singh
Jodha, Village Rabariyawas, Post - Dlf, Tehsil - Jaitaran,
Dist. - Pali (Raj.).
----Respondents
S.B. Civil Writ Petition No. 15986/2022
Ambuja Cements Limited, Unit Rabriyawas, Post D.l.f.,
Rabriyawas Tehsil Jaitaran District Pali Rajasthan Through Its
Senior Manager (Legal) And Power Of Attorney Holder Mr.
Rajvijay Singh Rathore S/o Shri Chhaviraj Singh, Aged 44 Years,
R/o Ambuja Township, Village Rabriyawas, Tehsil Jaitaran,
District Pali, Rajasthan.
----Petitioner
Versus
1. Chittar Das S/o Shri Jasu Das, Village Balada, Tehsil
Jaitaran, Dist. Pali.
2. M/s Jain Carrying Corporation, Jain House, Rani Bazar,
Bikaner (Raj.) Pin 334001.
----Respondents
S.B. Civil Writ Petition No. 16006/2022
Ambuja Cements Ltd., Unit Rabriyawas, Post D.l.f., Rabriyawas
Tehsi Jaitaran, District Pali Rajasthan Through Its Senior
Manager (Legal) And Power Of Attorney Holder Mr. Rajvijay
Singh Rathore S/o Shri Chhaviraj Singh, Aged 44 Years, R/o
Ambuja Township, Village Rabriyawas, Tehsil Jaitaran, District
Pali, Rajasthan.
----Petitioner
Versus
1. Chhoturam Kumavat S/o Shri Manguram Kumavat, Village
Jasnagar, Post Jasnagar, Tehsil Riyavari, Dist. Nagour
(Raj.).
2. M/s Shree Logistic Pvt. Ltd., Shree Niketan, 380, Ashok
Nagar, Udaipur (Raj.).
----Respondents
S.B. Civil Writ Petition No. 16283/2022
Ambuja Cements Limited, Unit Rabriyawas, Post D.l.f.,
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Rabriyawas Tehsil Jaitaran District Pali Rajasthan Through Its
Senior Manager (Legal) And Power Of Attorney Holder Mr.
Rajvijay Singh Rathore S/o Shri Chhaviraj Singh, Aged 44 Years,
R/o Ambuja Township, Village Rabriyawas, Tehsil Jaitaran,
District Pali, Rajasthan.
----Petitioner
Versus
1. Champalal S/o Shri Bhanwar Lal, Village Balada, Tehsil
Jaitaran, Dist. Pali (Raj.).
2. M/s Shree Logistic Pvt. Ltd., Shree Niketan, 380, Ashok
Nagar, Udaipur (Raj.).
----Respondents
S.B. Civil Writ Petition No. 16337/2022
Ambuja Cements Limited, Unit Rabriyawas, Post D.l.f.,
Rabriyawas Tehsil Jaitaran District Pali Rajasthan Through Its
Senior Manager (Legal) And Power Of Attorney Holder Mr.
Rajvijay Singh Rathore S/o Shri Chhaviraj Singh, Aged 44 Years,
R/o Ambuja Township, Village Rabriyawas, Tehsil Jaitaran,
District Pali, Rajasthan.
----Petitioner
Versus
1. Bankat Das S/o Shri Sohan Das, Village Balada, Tehsil
Jaitaran, Dist. Pali.
2. M/s Jain Carrying Corporation, Jain House, Rani Bazar,
Bikaner (Raj.) Pin 334001.
----Respondents
S.B. Civil Writ Petition No. 18850/2022
Ambuja Cements Limited, Unit Rabriyawas, Post D.l.f.,
Rabriyawas Tehsil Jaitaran District Pali Rajasthan Through Its
Senior Manager (Legal) And Power Of Attorney Holder Mr.
Rajvijay Singh Rathore S/o Shri Chhaviraj Singh, Aged 44 Years,
R/o Ambuja Township, Village Rabriyawas, Tehsil Jaitaran,
District Pali, Rajasthan.
----Petitioner
Versus
1. Mohan Lal S/o Shri Hanuman Singh, Village Jigasari Badi,
Post Mundariya Bada, Tehsil Bhadra, Dist. Hanumangarh,
Pin 335 502.
2. M/s Jain Carrying Corporation, Jain House, Rani Bazar,
Bikaner (Raj.) Pin 334 001.
----Respondents
S.B. Civil Writ Petition No. 18851/2022
Ambuja Cements Limited, Unit Rabriyawas, Post D.l..,
Rabriyawas Tehsil Jaitaran District Pali Rajasthan Through Its
Senior Manager (Legal) And Post Of Attorney Holder Mr. Rajvijay
Singh Rathore S/o Shri Chhaviraj Singh, Aged 44 Years, R/o
Ambuja Township, Village Rabriyawas, Tehsil Jaitaran, District
Pali, Rajasthan.
----Petitioner
Versus
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1. Dinesh Prajapat S/o Shri Dharma Prajapat, Through
Ashok Trivedi, Law Minister, Bhartia Cement Mazdoor
Sang, Jodhpur Shambhag, 97, Purusharthi Nagar, Sindhi
Colony, Pali - 306401 (Raj.).
2. M/s Shri Jitendra Singh Jodha S/o Shri Takhat Singh
Jodha, Village Rabariyawas, Post - Dlf, Tehsil - Jaitaran,
Dist. - Pali (Raj.).
----Respondents
S.B. Civil Writ Petition No. 18852/2022
Ambuja Cements Limited, Unit Rabriyawas, Post D.l.f.,
Rabriyawas Tehsil Jaitaran District Pali Rajasthan Through Its
Senior Manager (Legal) And Power Of Attorney Holder Mr.
Rajvijay Singh Rathore S/o Shri Chhaviraj Singh, Aged 44 Years,
R/o Ambuja Township, Village Rabriyawas, Tehsil Jaitaran,
District Pali, Rajasthan.
----Petitioner
Versus
Bhagirath Ram Manda S/o Shri Hanuman Ram, Through
Organization Minister, Bhartia Cement Mazdoor Sangh, Jodhpur
Shambhag, 97, Purusharti Nagar, Pali (Raj.) 306401.
----Respondent
S.B. Civil Writ Petition No. 18892/2022
Ambuja Cements Limited, Unit Rabriyawas, Post D.l.f.,
Rabriyawas Tehsil Jaitaran District Pali Rajasthan Through Its
Senior Manager (Legal) And Power Of Attorney Holder Mr.
Rajvijay Singh Rathore S/o Shri Chhaviraj Singh, Aged 44 Years,
R/o Ambuja Township, Village Rabriyawas, Tehsil Jaitaran,
District Pali, Rajasthan.
----Petitioner
Versus
1. Lal Singh S/o Shri Sujan Singh, Village - Rabariyavas,
Tehsil - Jaitaran, Dist. - Pali (Raj.).
2. M/s Shree Logistic Pvt. Ltd., Shree Niketan, 380, Ashok
Nagar, Udaipur (Raj.).
----Respondents
S.B. Civil Writ Petition No. 18894/2022
Ambuja Cements Limited, Unit Rabriyawas, Post D.l.f.,
Rabriyawas Tehsil Jaitaran District Pali Rajasthan Through Its
Senior Manager (Legal) And Power Of Attorney Holder Mr.
Rajvijay Singh Rathore S/o Shri Chhaviraj Singh, Aged 44 Years,
R/o Ambuja Township, Village Rabriyawas, Tehsil Jaitaran,
District Pali, Rajasthan.
----Petitioner
Versus
1. Sunder Lal S/o Shri Likhma Ram, Achariya Colony, Near
Rcp Colony, Taranagar, Dist. Churu (Raj.) Pin 331304
2. M/s Jain Carrying Corporation, Jain House, Rani Bazar,
Bikaner (Raj.) Pin 334001
----Respondents
S.B. Civil Writ Petition No. 18896/2022
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Ambuja Cements Limited, Unit Rabriyawas, Post D.l.f.,
Rabriyawas Tehsil Jaitaran District Pali Rajasthan Through Its
Senior Manager (Legal) And Power Of Attorney Holder Mr.
Rajvijay Singh Rathore S/o Shri Chhaviraj Singh, Aged 44 Years,
R/o Ambuja Township, Village Rabriyawas, Tehsil Jaitaran,
District Pali, Rajasthan.
----Petitioner
Versus
1. Rajesh Kumar S/o Shri Shankar Singh, Village Jigasari
Badi, Post Mundariya Bada, Tehsil Bhadra, Dist.
Hanumangarh Pin 335502
2. M/s Jain Carrying Corporation, Jain House, Rani Bazar,
Bikaner (Raj.) Pin 334001
----Respondents
S.B. Civil Writ Petition No. 18903/2022
Ambuja Cements Limited, Unit Rabriyawas, Post D.l.f.,
Rabriyawas Tehsil Jaitaran District Pali Rajasthan Through Its
Senior Manager (Legal) And Power Of Attorney Holder Mr.
Rajvijay Singh Rathore S/o Shri Chhaviraj Singh, Aged 44 Years,
R/o Ambuja Township, Village Rabriyawas, Tehsil Jaitaran,
District Pali, Rajasthan.
----Petitioner
Versus
1. Sher Singh S/o Shri Ghisa Singh, Village - Degana, Tehsil
- Degana, Dist. - Nagour (Raj.) Pin - 341503.
2. M/s Jain Carrying Corporation, Jain House, Rani Bazar,
Bikaner (Raj.) Pin - 334001.
----Respondents
S.B. Civil Writ Petition No. 18909/2022
Ambuja Cements Limited, Unit Rabriyawas, Post D.l.f.,
Rabriyawas Tehsil Jaitaran District Pali Rajasthan Through Its
Senior Manager (Legal) And Power Of Attorney Holder Mr.
Rajvijay Singh Rathore S/o Shri Chhaviraj Singh, Aged 44 Years,
R/o Ambuja Township, Village Rabriyawas, Tehsil Jaitaran,
District Pali, Rajasthan.
----Petitioner
Versus
1. Gajendra Singh Shekhawat S/o Shri Durga Singh, Village
Bavdi Via Ringas, Tehsil Khandela, Dist. Sikar (Raj.) Pin
332 411.
2. M/s Jain Carrying Corporation, Jain House, Rani Bazar,
Bikaner (Raj.) Pin 334 001.
----Respondents
S.B. Civil Writ Petition No. 18910/2022
Ambuja Cements Limited, Unit Rabriyawas, Post D.l., Rabriyawas
Tehsil Jaitaran District Pali Rajasthan Through Its Senior Manager
(Legal) And Post Of Attorney Holder Mr. Rajvijay Singh Rathore
S/o Shri Chhaviraj Singh, Aged 44 Years, R/o Ambuja Township,
Village Rabriyawas, Tehsil Jaitaran, District Pali, Rajasthan.
----Petitioner
Versus
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1. Suresh S/o Shri Jodha Ram, Village - Rabriyawas, Tehsil -
Jaitaran, Dist. - Pali.
2. M/ Jain Carrying Corporation, Jain House, Rani Bazar,
Bikaner (Raj.) Pin - 334001.
----Respondents
S.B. Civil Writ Petition No. 18956/2022
Ambuja Cements Limited, Unit Rabriyawas, Post D.l., Rabriyawas
Tehsil Jaitaran District Pali Rajasthan Through Its Senior Manager
(Legal) And Power Of Attorney Holder Mr. Rajvijay Singh Rathore
S/o Shri Chhaviraj Singh, Aged 44 Years, R/o Ambuja Township,
Village Rabriyawas, Tehsil Jaitaran, District Pali, Rajasthan.
----Petitioner
Versus
1. Girdhari S/o Shri Bhanwar Lal, Village - Lambiya, Tehsil -
Jaitaran, Dist. - Pali (Raj.).
2. M/s Shree Logistic Pvt. Ltd., Shree Niketan, 380, Ashok
Nagar, Udaipur (Raj.).
----Respondents
S.B. Civil Writ Petition No. 18960/2022
Ambuja Cements Limited, Unit Rabriyawas, Post D.l., Rabriyawas
Tehsil Jaitaran District Pali Rajasthan Through Its Senior Manager
(Legal) And Post Of Attorney Holder Mr. Rajvijay Singh Rathore
S/o Shri Chhaviraj Singh, Aged 44 Years, R/o Ambuja Township,
Village Rabriyawas, Tehsil Jaitaran, District Pali, Rajasthan.
----Petitioner
Versus
1. Mantu Kavadia S/o Shri Moti Lal Kavadia, Shiva Basti,
Next Street Of Nanesh Marbal, Nokha Road, Gangashar,
Bikaner Pin - 334401.
2. M/ Jain Carrying Corporation, Jain House, Rani Bazar,
Bikaner (Raj.) Pin - 334001.
----Respondents
S.B. Civil Writ Petition No. 18963/2022
Ambuja Cements Limited, Unit Rabriyawas, Post D.l., Rabriyawas
Tehsil Jaitaran District Pali Rajasthan Through Its Senior Manager
(Legal) And Post Of Attorney Holder Mr. Rajvijay Singh Rathore
S/o Shri Chhaviraj Singh, Aged 44 Years, R/o Ambuja Township,
Village Rabriyawas, Tehsil Jaitaran, District Pali, Rajasthan.
----Petitioner
Versus
1. Uttam Mandal S/o Shri Banmali Mandal, Village -
Banagram, Post And Tehsil - Beliya Tod, Dist. - Bokunda,
West Bangal, Pin - 722203.
2. M/ Jain Carrying Corporation, Jain House, Rani Bazar,
Bikaner (Raj.) Pin - 334001.
----Respondents
S.B. Civil Writ Petition No. 3023/2023
M/s Shree Cement Limited, Unit Bangur City, Post Rass, District
Pali, Rajasthan Through Its Deputy General Manager (Legal
Department) Signatory Authority And Power Of Attorney Holder
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Kamal Kishore Sharma S/o Shri Jai Sita Ram Sharma, Age 53
Years Resident Of Shree Cement Ltd., Andheri Dewari, Beawar,
District Ajmer, Rajasthan 305901.
----Petitioner
Versus
Sonu Mulchandani S/o Shri Vishnu Ji Mulchandani, R/o House
No. 3/104, Third Ward, Housing Board, Pali (Raj.).
----Respondent
For Petitioner(s) : Mr. Nitin Ojha
For Respondent(s) : Mr. Vikram Singh Bhati
Mr. Manvendra Singh
HON'BLE MS. JUSTICE REKHA BORANA
Judgment
Reportable
19/12/2023
1. The issue involved in the present petitions being common,
they are decided vide this common judgment. The facts of S.B.
Civil Writ Petition No.13161/2022 are being taken into
consideration for the purpose of adjudication.
2. The present writ petition has been preferred against the
order dated 29.07.2022 (Annex. 8) passed by learned Industrial
Disputes Tribunal cum Labour Court (hereinafter referred as 'the
Labour Court') whereby application filed on behalf of the
respondent workman under Section 36(3) of the Industrial
Disputes Act, 1947 (hereinafter referred to as 'the Act of 1947')
has been allowed and that under Section 36(1) filed on behalf of
the petitioner Company has been rejected.
3. The brief facts of the case are that respondent-workman
raised an industrial dispute on 02.01.2018 and when no
settlement was arrived at, the Conciliation Officer issued a
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certificate under section 2-A of Industrial Dispute Act, 1947
(hereinafter referred as 'The Act of 1947') to approach the Labour
Court for adjudication of the said dispute. The statement of claim
was filed by one Mr. Himmat Singh, representative of the workman
and after service of notices, vakaltnama (P/A) dated 21.01.2019
by Advocate Mr. Nitin Ojha was filed on behalf of the employer-
company.
The matter then proceeded on for the reply. On 23.02.2020,
the authority letter was filed by one Mr. Ashok Trivedi to represent
the workman.
4. Application under Section 36(1) of the Act was then filed by
the counsel appearing on behalf of the employer-company with
the submission that Mr. Ashok Trivedi has no locus to represent
the workman, he not being the person related to cement industry
and he being a banker. Secondly, Bhartiya Cement Majdoor Sangh
of which Mr. Ashok Trivedi represented to be a Member of
Executive/Officer Bearer was not a registered trade union and
hence, he would not fall in the category of the persons entitled to
represent the workman in terms of Section 36(1) of the Act.
5. A reply to the said application was filed and it was submitted
that Bhartiya Cement Majdoor Sangh had applied for registration
in terms of the Trade Unions Act, 1926 on 10.07.2018 which
application was rejected vide order dated 06.09.2018 but the
appeal against the said order was allowed on 31.10.2019 and the
union was directed to be registered. However, the said order
when not complied with, a writ petition was filed before the High
Court and ultimately, on 13.12.2021, the registration certificate of
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the union was issued by the Registrar of Trade Union, Jaipur.
Meaning thereby, the union was registered and hence, Mr. Ashok
Trivedi who was appointed as Law Minister/Legal Advisor of the
said union, was entitled to represent the workman.
6. Consecutively, while filing reply to the above application, an
application under Section 36(3) of the Act of 1947 was also filed
on behalf of respondent-workman with the submission that
counsel Mr. Nitin Ojha cannot be held entitled to represent the
employer-company in terms of Section 36(2) and hence, in terms
of Section 36(3), he cannot represent the employer-company. It
was further submitted that there being no consent by the
workman or leave of the Court, the exception as provided under
Section 36(4) of the Act shall also not apply. A reply to the said
application was preferred on behalf of the employer-company with
the submission that there is no absolute bar for a legal practitioner
to appear before the Labour Court/Tribunal and no party can
withhold the appearance by denying consent without any reason.
Further, it was submitted that the consent as provided under
Section 36(4) can even be implied as no objection was raised on
behalf of the opposite party at the time of filing of vakalatnama
(P/A) and further, as the Court also did not restrain the counsel
from appearing, it would be implied to be a deemed
consent/leave.
7. After hearing the parties on both the applications, the Labour
Court vide impugned order dated 29.07.2022, allowed the
application under Section 36(3) as preferred on behalf of the
respondent-workman and rejected the application under Section
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36(1) as preferred on behalf of the employer. Aggrieved against
the said order, the present writ petition has been preferred on
behalf of the employer-company.
8. Reiterating the grounds as raised before the learned Labour
Court, counsel for the petitioner relied upon the following
judgments:
i. Bank of India Staff Association & Anr. vs. State Bank
of India, (1996) 4 SCC 378
ii. T.K. Varghese vs. Nichimen Corporation (2002) IV LLJ
(SUP) BOM 1018, (2001) 4 LLN 187--- Writ Petition
No. 2500 of 2000 Decided On: 26.02.2001
iii. Britannia Engg. Product & Services Limited vs. II
Labour Court; (2003) II LLJ 1024 (CAL)
iv. B. Srinivasa Reddy vs. Karnataka Urban Water Supply
and Drainage Board Employee's Association and Ors.;
AIR 2006 SC 3106
9. Learned counsel for the respondent, while supporting the
order/judgment passed by the learned Labour Court, relied upon
the following judgments:
i. Paradip Port Trust, Paradip vs Their Workmen; AIR
1977 SC 36.
ii. The Pali Central Cooperative Bank Ltd vs Judge,
Industrial Tribunal cum Labour Court, Jodhpur; 2000
(4) WLC 244
iii. Newspapers Ltd. Allahabad vs. UP State Industrial
Tribunal and others; AIR 1960 SC 1328
iv. The Management of Gammon (India) vs. State of
Orissa & Ors.; (1974) II LLJ 34 Orissa.
10. Heard learned counsel for the parties and perused the
material available on record.
11. The first issue in the matter is-Whether after the issuance of
notification dated 09.06.2011 vide which Section 30 of the
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Advocates Act, 1961 has been notified to come into force with
effect from 15.06.2011, the said provision would prevail over the
specific provision of 36(4) of the Industrial Disputes Act, 1947?
Meaning thereby, whether Section 30 of the Advocates Act would
prevail over Section 36(4) of the Industrial Disputes Act, 1947 and
whether the bar provided under Section 36(4) of the Industrial
Disputes Act would become redundant by virtue of Section 30 of
the Advocates Act?
12. The above issue no more remains res integra as the
judgment in Paradip Port Trust (supra) had been referred to a
larger Bench of the Hon'ble Apex Court and the reference has now
been answered vide order dated 04.10.2023 passed in Thyssen
Krupp Industries India Private Limited & Ors. vs. Suresh
Maruti Chougule & Ors. (Writ Petition (Civil)
No.1169/2018). The Hon'ble Apex Court while answering the
reference held as under :-
"We are in agreement with the view
adopted in Paradip Port Trust, Paradip's case
(supra). As emphasized, the matter is not to be
reviewed from the point of view of the legal
practitioner but from the aspect of the employer
and workmen who are the principal contestants
in an industrial dispute as observed in the
aforesaid judgment.
We really find no ground to revisit the well
settled position of law which has prevailed for
almost half a century.
We answer the reference accordingly."
13. In the case of Paradip Port Trust (supra), it was held as
under :-
"23. Besides, it is also urged by the
appellant that under Section 30 of the Advocates
Act, 1961, every advocate shall be entitled "as of
right" to practise in all courts and before any
[2023:RJ-JD:44499] (13 of 23) [CW-13161/2022]
tribunal [Section 30(i) and (ii)]. This right
conferred upon the advocates by a later law will
be properly safeguarded by reading the word
"and" as "or" in Section 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.
[2023:RJ-JD:44499] (14 of 23) [CW-13161/2022]
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."
14. Meaning thereby, the view as taken in the case of Paradip
Port Trust (supra) has been affirmed by the Hon'ble Apex Court
wherein it was held that the Industrial Disputes Act, 1947 being a
special Act will prevail over the Advocates Act, 1961 which is a
general piece of legislation with regard to subject matter of
appearance of lawyers before all Courts, Tribunals and other
authorities. So far as the representation of legal practitioners in
terms of the Act of 1947 is concerned, the same would be only in
certain specified conditions and before the authorities as
mentioned under the Act itself. The exceptions/conditions
wherein/whereby a legal practitioner could appear were specified
in the case of Paradip Port Trust (supra) 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.
[2023:RJ-JD:44499] (15 of 23) [CW-13161/2022]
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."
15. Thus, what can be concluded from the ratio as laid down in
Paradip Port Trust (supra) and affirmed in Thyssen Krupp
Industries (supra) is that the Advocates Act is a general
legislation and would not override the special piece of legislation
i.e. Industrial Disputes Act. Hence, inspite of the Advocates Act
having been enacted, the provisions of the Act of 1947 would
prevail. Section 36(3) of the Act of 1947 specifically bars a
lawyer/legal practitioner to represent any party to a dispute and
hence, the said bar would prevail subject of course, to the
exceptions as provided in Section 36 itself.
16. The next issue now would be whether the present case falls
under the purview of Section 36(4) of the Act of 1947 which
provides an exception to Section 36(3) wherein it has been
provided that a party may be represented by legal practitioner
with the consent of other parties to the proceedings and with the
leave of the Court or the Tribunal, as the case may be.
17. Arguing on the said issue, learned counsel for the petitioner
submitted that this was a clear case of implied consent of the
other party as no objection was raised by the respondent
workman before the Labour Court when the vakalatnama was filed
and hence, the consent once given, cannot be withdrawn or
revoked. He further submitted that even the power to give
consent in terms of Section 36(4) of the Act of 1947 is to the
parties and not to the representative of the parties. In the present
[2023:RJ-JD:44499] (16 of 23) [CW-13161/2022]
case, the application has been filed by Mr. Ashok Trivedi,
representative of the respondent-workman and not by the
workman himself. Therefore, the application as filed under Section
36(3) of the Act of 1947 by the representative is not maintainable.
18. Responding to the above argument, learned counsel for the
respondent submitted that both the mandatory requirements as
provided under Section 36(4) of the Act of 1947 have not been
complied with as neither the respondent gave any consent for
representation of the petitioner through a legal practitioner nor did
the Court give any such permission. Further, no implied consent
can be inferred from the surrounding circumstances as Section
36(4) mandates for a consent, only in writing. So far as the non-
filing of any objection against vakalatnama is concerned, he
submitted that the same could not be filed at that point of time
due to Covid pandemic as at that point of time, only urgent
matters were heard online by the Court.
19. Section 36 of the Act of 1947 reads as under :-
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 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.
[2023:RJ-JD:44499] (17 of 23) [CW-13161/2022]
(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 authorized 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 proceedings under this Act or in any
proceedings 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 consent of the other parties
to the proceeding and with the leave of the
Labour Court, Tribunal or National Tribunal, as
the case may be."
20. A perusal of Section 36(4) of the Act of 1947 makes it clear
that it provides both for the consent of the other party as well as
the leave of the Court/Tribunal. Even if it is assumed that there
was an implied consent of the other party there being no objection
available on record, admittedly, there is no order of granting leave
by the Tribunal. This Court, in the case of Pali Central Co-
operative Bank (supra), has held:
"......... That apart, even assuming for the sake
of arguments that when vakalatnama was filed
by the lawyer for the Bank and the
representative of the workman not objected to
that, that itself was not sufficient because
Section 36(4) of the Act clearly provides that it
should be with the leave of the Tribunal.
Unless and until the tribunal grants leave or
permission to the Bank to appear through the
lawyer, it cannot be presumed that there was
a consent. In any case, one can never
presume that allowing the advocate to file his
vakalatnama for the Bank before it, the
[2023:RJ-JD:44499] (18 of 23) [CW-13161/2022]
Tribunal deemed to have granted that leave or
permission. There should be such order in
writing."
The Division Bench of the Calcutta High Court, in the case of
Air India Limited vs. Presiding Officer & Ors, FMAT No.1 of
2015 [2015 LAB I.C. 3071] decided on 09.06.2015, has held as
under:
"58. There could be a case where a party may
have consented to the other party being
represented by a legal practitioner, yet, may
not be permitted such representation since the
adjudicator has the final say. If he does not
grant leave in the exercise of his discretion, it
would be the end of the matter. Conversely,
even though the adjudicator may consider the
desirability of allowing a legal practitioner to
represent a party who is willing to engage him
in course of deciding the industrial dispute
referred to him, leave granted by the
adjudicator to the parties to engage legal
practitioners in the absence of even implied
consent would be contrary to the provisions of
section 36(4) of the ID Act. We are thus not
persuaded to agree with the view that grant of
leave is more decisive than consent, as held in
T.K. Varghese (supra), because one condition
is not to be read in derogation of the other.
That the view expressed in T.K. Varghese
(supra) is not good law has been laid down by
another Division Bench of the Bombay High
Court in the decision reported in 2005 (1) Mh
LJ 1027 (Chandrakant Ganpatrao Deshkar v.
All India Reporter). In view of Paradip Port
Trust (supra), it is settled law that both the
conditions have to be fulfilled if a legal
practitioner is to represent a party before the
adjudicator."
The Court further held:
"66. We, therefore, answer the first two
questions by holding that there could be
circumstances wherefrom inference of consent
by conduct or implied consent may be drawn
but leave granted by the adjudicator has to be
express or specific on exercise of judicial
[2023:RJ-JD:44499] (19 of 23) [CW-13161/2022]
discretion and that such exercise must find
reflection in the order-sheet maintained by the
adjudicatory authority referred to in sub-
section (4) of section 36 of the ID Act. The
concept of deemed leave is alien to the aim
that the relevant provision seeks to achieve
and to this extent the decision in Dipak Puri
(1986 Lab IC 132 (Cal)) (supra) lays down the
law correctly."
21. Meaning thereby, even if a consent of the opposite party can
be inferred, the leave granted by the Court has to be express and
specific so as to be mentioned in the order sheet of the
proceedings. Admittedly, there is no such order of grant of leave
available on record.
Further, an application under Section 36(3) of the Act of
1947 by the other party is itself sufficient to show that the other
party has not consented to the fact of representation of the
employer by a legal practitioner.
22. In view of the above facts and the ratio as laid down, the
finding as reached by the learned Tribunal being totally in
consonance with the provisions of Section 36 of the Act of 1947
does not deserve any interference. The order whereby the
application under Section 36(3) of the Act of 1947 as preferred on
behalf of the workman has been allowed, is hereby affirmed.
23. Coming on to the application under Section 36(1) of the Act
of 1947 as preferred on behalf of the petitioner Company, the
issue is-Whether the workman could be represented by
representative Mr. Ashok Trivedi?
24. Section 36(1) prescribes the persons through whom a
workman can be represented in any proceeding under the Act of
[2023:RJ-JD:44499] (20 of 23) [CW-13161/2022]
1947. The first and essential condition prescribed is that the
person representing the workman has to be a member of the
executive or the office bearer of a registered trade union of which
the workman is a member. The second category is of any member
of the executive or the office bearer of a federation of trade unions
to which the trade union of which the workman is a member, is
affiliated. The third category applies when the workman is not a
member of any trade union. In that case, he can be represented
by any member of the executive/office bearer of any trade union
connected with the industry in which the workman is employed or
by any other workman employed in the said industry.
25. In the present matter, the authority letter had been filed by
Mr. Ashok Trivedi stating himself to be the office bearer of
Bhartiya Cement Mazdoor Sangh. It is admitted on record that on
the date of reference and on the date of filing of said authority
letter, the said cement trade union was not registered. The
registration certificate, whatsoever, has been issued on
13.12.2021 in pursuance to the order passed by the Labour Court
on 31.10.2019 in favour of the said union. The learned Tribunal
while relying upon the Orrisa High Court judgment in The
Management of Gammon (India) (supra), held that in matters
of industrial disputes, the workman could be represented/assisted
by the office bearers of the unregistered trade union too.
26. In the specific opinion of this Court, the said finding of the
learned Tribunal being totally contrary to Section 2 of the Act of
1947 as well as the settled proposition of law, deserves to be and
is hereby set aside.
[2023:RJ-JD:44499] (21 of 23) [CW-13161/2022]
27. Section 2(qq) of the Act of 1947 defines trade union as
under :
" "trade union" means a trade union
registered under the Trade Unions Act,
1926 (16 of 1926)"
In B. Srinivasa Reddy (supra), the Hon'ble Apex Court
specifically held that under the Act of 1926, unregistered trade
union has no manner of right whatsoever, even the rights available
under the Act of 1947 have been limited only to those trade
unions which are registered under the Act of 1926 by insertion of
Clause 2(qq) in the Act of 1947 w.e.f. 21.08.1984 defining a trade
union to mean a trade union registered under the Act of 1926.
As held in Calcutta High Court in Calcutta Port Trust
Union Vs. Haldia Shore Ship & Transport; (2013) 3 CHN 253
(cal) the trade union which does not register under the Trade
Union Act, cannot be treated as the trade union under the
Industrial Disputes Act, 1947. Section 36, which deals with the
representation of parties, in clear terms, stipulates that a
workman is entitled to be represented in any proceeding under the
Industrial Disputes Act by any member of the executive or other
office bearer of a registered trade union.
The Court in the said matter observed as under :
"The word 'Registered Trade Union' is of great
significance and can imbibe within it's contour
the Trade Union Register under the Trade
Union Act and not otherwise. The said section
further takes care of the interest of the
workman who is not a member of a Trade
Union to be represented by any member of
the executive or other office bearer of any
Trade Union connected with or by other
workmen employed in the industry in which
the worker is employed. In any of such
[2023:RJ-JD:44499] (22 of 23) [CW-13161/2022]
eventualities, the representation is to be
made through a Trade Union Registered
under the Trade Union Act and not
through any Association or Union which is
not recognized under the said Act."
28. Meaning thereby, the Industrial Disputes Act does not
recognise a trade union other than which has been registered
under the Trade Union Act. Admittedly, the date on which the
authority letter in the present matter was filed by Mr. Ashok
Trivedi, the union of which he claimed/represented himself to be
the member/office bearer, was not registered. Hence, he did not
fall in any of the three categories as specified under Section 36(1)
of the Act of 1947. So far as the consequence of the said union
being registered subsequently is concerned, in the opinion of this
Court, the same can be of no consequence as the subsequent
registration of the union cannot have a retrospective effect. On
the date when Mr. Ashok Trivedi was authorised to represent the
workman, the union was not registered and hence the objection as
raised on behalf of the petitioner Company was very much tenable
on the said date. It is nowhere the case of the workman that
subsequent to the union being registered, a fresh
power/authorisation letter was submitted by Mr. Ashok Trivedi or it
was prayed that he is the member of the executive/office bearer
of a trade union which is connected with the industry/union of
which the workman is an employee/member.
29. The union being not registered on the date when the power/
authority letter was filed by Mr. Ashok Trivedi, in the specific
opinion of this Court, he could not have represented the workman
and hence the order whereby the application under Section 36(1)
[2023:RJ-JD:44499] (23 of 23) [CW-13161/2022]
as preferred by the petitioner Company has been rejected by the
learned Tribunal, is hereby set aside.
The application as filed by the employer is allowed and it is
held that Mr. Ashok Trivedi was not entitled to represent the
workman on the date when the power/authority letter was
submitted/filed by him.
30. In view of the above analysis and observations, the present
writ petitions are disposed of.
However, it would be open for the workman as well as the
employer to file fresh applications for being represented by a
representative in terms of Section 36 of the Act of 1947 and the
learned Tribunal would be under an obligation to decide the same
strictly in accordance with law.
31. The stay petitions and the pending applications, if any, also
stand disposed of.
REKHA BORANA),J
sanjay/vij/-
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