Back
2000 Supreme(Cal) 138
High Court Of Calcutta
S. B. SINHA, M. H. S. ANSARI
SHIRAZ GOLDEN RESTAURANT - Appellant
Versus
STATE OF WEST BENGAL - Respondent
W. P. 2626 Of 1998
Decided On : 03/16/2000
ASHISH KUMAR DAS, S.N.SANNYAL, SURAJIT DEY
Consent of the workmen to the appellant being represented by a legal practitioner could be implied from the facts and circumstances of the case, and that such consent could not be revoked at a later stage.
Headnote:
INDUSTRIAL DISPUTES ACT, 1947 - SECTION 36(4) - CONSENT OF THE OTHER PARTY AND LEAVE OF THE COURT - REPRESENTATION BY LEGAL PRACTITIONER - CONSENT OF THE WORKMEN - IMPLIED CONSENT - REVOCATION OF CONSENT - JURISDICTION OF THE INDUSTRIAL TRIBUNAL - SUMMARY
Fact of the Case:
The appellant, a company, and the workmen were involved in an industrial dispute. The dispute was referred to the Tribunal for adjudication. The workmen were represented by a union, Madhya Kalikata Hotels, Bars and Restaurant Employees Union. The appellant filed an application for being represented by a legal practitioner, but the same was rejected. The union then filed an application that they be permitted to be represented through another union, Commercial Shops and Factory Establishments Staff Union. The appellant also filed an application for being permitted to be represented through a legal practitioner, which was allowed by the Tribunal. The workmen then filed an application praying that the company should not be allowed to be represented by a legal practitioner. The said application was allowed, despite the fact that the appellant had been represented by their learned advocate before the Tribunal on several occasions.
Finding of the Court:
The High Court held that the Tribunal had no jurisdiction to recall its own order granting leave to the appellant to be represented by a legal practitioner. The Court further held that the consent of the workmen to the appellant being represented by a legal practitioner could be implied from the facts and circumstances of the case, and that such consent could not be revoked at a later stage.
Issues: 1. Whether the Tribunal had jurisdiction to recall its own order granting leave to the appellant to be represented by a legal practitioner? 2. Whether the consent of the workmen to the appellant being represented by a legal practitioner could be implied from the facts and circumstances of the case? 3. Whether such consent could be revoked at a later stage?
Ratio Decidendi: 1. Section 36(4) of the Industrial Disputes Act, 1947 lays down two conditions for a party to be represented by a legal practitioner: (i) consent of the other party to the proceedings and (ii) leave of the adjudicator. 2. Consent of the party to the disputes is one of the necessary ingredients for the said purpose but it is well settled that such consent need not be in a particular form. 3. Once a leave had been granted, there is no provision in the said Act to review the same. 4. The Tribunal has no substantive power of review, it could not have revoked the leave granted to a party.
Final Decision: The judgment of the learned Trial Judge as also the Tribunal cannot be sustained which are set aside accordingly and the writ petition filed by, the appellant is allowed.
( 1 ) THIS appeal is directed against a judgment and Order dated October 14, 1999 passed by a learned single Judge of this Court whereby and whereunder the writ application filed by the appellant herein questioning the Order dated September 15, 1998 passed by the learned VIII Industrial Tribunal, West Bengal in Case No. VIII-203/95 was dismissed.
( 2 ) THE fact of the matter, shorn of all details, is as follows: an Industrial Dispute in relation to order of dismissal passed against the workmen was raised by the workmen against the appellant in relation whereto the State of West Bengal being the appropriate Government, referred the said dispute for adjudication before the Tribunal below for adjudication of the following: "1. Is the management of Shiraz Golden Restaurant justified in dismissing the services of Md. Iqbal, Md. Islam, Md. Serif, Md. Yusuf, Md. Shamsul, Md. N. Nayeen, Md. Shabuddin Md. Kauser and Aszerw. e. f. June 30, 1993 ? To what relief, if any, are they entitled to ?
( 3 ) ADMITTEDLY, one Madhya Kalikata Hotels, Bars and Restaurant Employees Union (hereinafter referred to as 'madhya Kalikata') had espoused the cause of the workmen and it was representing the concerned workmen before the Tribunal. An application was filed by the appellant herein for being represented by a legal practitioner, but the same was rejected. One Shri A. D. Singh, an Office Bearer of the said Union, was then representing the workmen.
( 4 ) ALLEGEDLY, an election of the Office bearers (sic) of Madhya Kalikata was held wherein Sri Prosad Mukherjee was elected as Working President. A Title Suit was filed in relation to the said election matter in the City Civil Court, Second Bench, Calcutta by Sri Prosad Mukherjee against Shri A. D. Singh and Others. In the said suit an interim order of injunction was granted whereafter an application was filed by the appellant herein praying that Mr. A. D. Singh may not be allowed to represent the case of the workmen which was allowed by an order dated July 26, 1997. At that stage of the proceeding Mr. H. Quader, advocate was representing the case of the Union before the learned Tribunal.
( 5 ) IN view the aforementioned changed situation another application was filed by the workmen that they be permitted to be represented through Shri Satin Roy
Chowdhury, the President and Shri A. D. Singh, an Executive Committee Member of Commercial Shops and Factory Establishments Staff Union.
( 6 ) THE appellant herein also filed an application for being permitted to be represented through Legal Practitioner as the Union was being represented by their learned advocate. The learned VIII Industrial Tribunal by its order dated November 24, 1997 allowed the said application. The petition filed by workmen on August 5, 1997 for being represented through Commercial Shops and Factory Establishments Staff Union, was also allowed. Thereafter, an application was filed by the workmen praying therein that the company should not be allowed to be represented by a legal practitioner. The said application was allowed, despite the fact that the appellant herein had been represented by their learned advocate before the learned Tribunal on November 24, 1997, December 17, 1997, January9, 1998, January 21, 1998, February 18, 1998, March 10, 1998, March 18, 1998, and June 23, 1998.
( 7 ) QUESTIONING the said order dated September 15, 1998, the said writ application was filed in this Court. The writ petition of the appellant was dismissed by the learned Trial Judge, inter alia, holding that as Shri A. D. Singh was representing workmen as Office bearer of either Madhya Kalikata or Commercial Shops and Factory Establishments Staff Union, who had all along been objecting to the prayer of the company for being represented through lawyer, the appellant could not have been directed to be represented through its legal practitioner. According to the learned single Judge as the workmen had in their application stated that their
