The requirement under Section 36(2)(a) of the Industrial Disputes Act, 1947, that an employer be represented by an officer of an association of employers, is a basic question that requires adjudication by the Tribunal.

1. IN this writ petition, DVC Staff Association represented through its Kolkata Committee, the petitioner No.1 a registered Union under the Trade Unions Act, 1926 and the petitioner No.2, the Secretary of the Kolkata Committee of the petitioner No.1 have challenged the order dated 3rd March, 2008 passed by the learned 1st Industrial Tribunal in Case No. VIII-18/06 G.O. 254 IR dated 24th/27th February, 2006 and the letter of authority filed by the Damodar Valley Corporation (for short DVC), the respondent No.1 authorising two persons, who are learned Advocates, to represent the said respondent. The main ground of challenge is that though Section 36(2) (a) of the Industrial Disputes Act, 1947 (for short the 'Act') postulates that the status of the officers of such association must be qua employers and not otherwise, however, as it is evident from the documents that the membership of Assam, West Bengal, Orissa and Bihar Employers' Association (for short the 'association') consists not only of employers but also non-employers including practicing Advocates, the association cannot be said to be an association of employers. Moreover, as the two learned Advocates have been engaged as Secretary and the Assistant Secretary of the association, such engagement is against the provisions of the Bar Council Act, 1961 and the Rules framed there under. Since no documents have been furnished showing that the authorized representative take part in making policy decision, they cannot be considered as officers of the association. Submission is the Tribunal too did not seek documents regarding their membership of the association. Hence, as the two representatives did not fulfill the conditions laid down in Section 36(2)(a) of the Act, they were not entitled to represent the association. However, ignoring the same and without directing production of articles of association of DVC, order impugned was passed rejecting the objection raised by the petitioner No.1 allowing the two representatives to represent as officers of employers' association. Moreover, before the Tribunal the membership of DVC was not proved. Submission is since it applied for membership on 19th January, 2007, that is after reference was filed, mere application for membership does not ipso facto mean that DVC became a member. Thus, the finding on issue No.8 is not based on records. Besides, no document regarding authorization was filed. Therefore, whether association is an association of employers under Section 36(2)(a) is a question of law and a basic question, which was not raised by the petitioner before the Tribunal, order may be passed directing the Tribunal to decide the issue which would lead to complete adjudication of all issues. However, it was conceded that the motive behind authorizing the representatives to represent the association cannot be questioned.

2. LEARNED Advocate appearing on behalf of the respondent No.1 relying on the affidavit-in-opposition submitted that since the issue whether the petitioner No.1 is an association of employers' or not was not raised before the learned Tribunal, it cannot be raised at this stage. Besides, from a perusal of the documents filed before the Tribunal it is evident that it is an association of employers. Had it been raised before the Tribunal it could have been proved that it is an association of employers. Moreover, that the representatives are the officers of the employers' association is evident from the documents filed by the DVC which have been appended to the writ petition, the veracity of which have not been challenged. That apart, being officers of the employers' association, the two authorised representatives appeared not as legal practitioners but as officers of the said association. Referring to the annexures it is submitted that Rule permits for an individual to become a member of the association. So far as the question regarding the fact whether DVC is a member or not, it is submitted that evidently DVC ap