The court emphasized the mandatory nature of Section 36(1)(c) of the I.D. Act, 1947, and the requirement for a concrete finding regarding the status of the representative.

JUDGMENT :

S.N. Prasad, J.

This writ petition is under Articles 226 and 227 of the Constitution of India wherein the order dtd.31.3.1998 passed in I.D. case No.170 of 1997 is under challenge whereby and where under the Tribunal has rejected the petition dtd.21.4.1998 filed by the management wherein prayer has been made not to allow the workman to be represented through one Mr. B. S. Pati who claims to be the General Secretary of North Orissa Workers Union.

2. The grievance of the petitioner – management is that the workman is being represented by one Sri B.S. Pati who happens to be the General Secretary, North Orissa Workers Union being an outsider, hence he may not be allowed to represent the second party – workman.

3. The second party – workman refuting the submission of the management by putting reliance upon the provision of Section 36 of the I.D. Act, 1947, objected the said petition by submitting therein that in view of provision of Sec.36 Mr. Pati who happens to be the General Secretary of North Orissa Workers Union is competent enough to represent him.

4. The tribunal, after taking into consideration the rival submissions of the parties, has rejected the petition dtd.21.4.1998 vide order dtd.31.3.1998 directing the parties to appear on the next date for hearing, which is under challenge in this writ petition.

5. We have heard the learned counsels for the parties and perused the documents available on record.

Before examining the legality and propriety of the order, it is necessary to look into the provision of Sec.36 of the I.D. Act, 1947 which speaks as follows:-

“36. Representation of parties.- 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.

(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 association 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 1 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 2 with the leave of the Labour Court, Tribunal or National Tribunal, as the case may be.”

It is evident from the provision of Sec.36 that a workman who is a party to a dispute, shall be entitled to be represented in any proceeding under the 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; and (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 prescribe