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1995 Supreme(Ori) 276
IN THE HIGH COURT OF ORISSA
D.P. Mohapatra, R.K. Dash, JJ.
UTKAL AUTOMOBILES LTD. - APPELLANT
Versus
PRESIDING OFFICER, INDUSTRIAL TRIBUNAL AND ANOTHER - RESPONDENT
O.C.J. No. 7583 of 1994
Decided On : 19-09-1995
D.P. Mohanty and P.K. Mohanty, for the Appellant; S.D. Mishra, for the Respondent
An employer company can be represented in a proceeding under the Industrial Disputes Act by a duly authorized agent, subject to the discretion of the Authority concerned.
Headnote:
INDUSTRIAL DISPUTES ACT - SECTION 36 - REPRESENTATION OF PARTIES - COMPANY ENTITLED TO BE REPRESENTED BY LABOUR ADVISOR - TRIBUNAL'S REJECTION OF AUTHORISATION QUASHED.
Fact of the Case:
The petitioner-company challenged the Industrial Tribunal's order rejecting the authorization of Shri P.K. Mohanty, the company's Labour Advisor, to represent the company in a dispute. The Tribunal held that Shri Mohanty did not fall within the category of 'Officer' described in Section 36(2) of the Industrial Disputes Act, 1947 (the 'Act') and was not an employee of the company.
Finding of the Court:
The court held that Section 36 of the Act is not exhaustive of all persons by whom an employer or an employee may be represented in a proceeding before the Labour Court/Tribunal. The court relied on the Supreme Court's decision in Paradip Port Trust, Paradip Vs. Their Workmen, which held that a lawyer can appear before the Tribunal in the capacity of an officer-bearer of a registered trade union or an officer of association of employers, and no consent of the other side and leave of the Tribunal will, then be necessary.
Issues: Whether the Industrial Tribunal was right in rejecting permission sought by the petitioner-company to be represented through Shri Prafulla Kumar Mohanty.
Ratio Decidendi: The court held that the Tribunal erred in rejecting the application for representation on the ground that Shri Mohanty was not an officer or an employee working under the company or in its pay roll. The court held that the company was entitled to be represented by Shri Mohanty, who was a Labour Advisor with considerable experience in dealing with Labour disputes in Courts and Tribunals.
Final Decision: The court allowed the writ application, quashed the Tribunal's order rejecting the authorization of Shri Mohanty, and held that the petitioner-company was entitled to be represented by Shri Mohanty in the case.
JUDGMENT :
D.P Mohapatra, A.C.J.
1. The controversy raised in this case turns on the interpretation of Section 36 of the Industrial Disputes Act, 1947 (hereinafter referred to as the 'Act'). The moot question for consideration is whether the Industrial Tribunal was right in rejecting permission sought by the petitioner-company to be represented through Shri Prafulla Kumar Mohanty.
2, In the writ application the petitioner-company has prayed for quashing the order of the Tribunal dated September 26, 1994 (Annexure 1) rejecting the authorisation in Form 'C' executed in favour of Shri P.K. Mohanty. The reason for rejection is stated in the following terms:
"Admittedly, Shri Mohanty is not falling within the category 'Officer' described in Section 36(2) of the I.D. Act. According to the ratio, as aforesaid, the management is legally competent to appear and participate in the proceeding through an authorised representative who may be an officer or employee working under it. In this case there is no evidence worth the name to show or suggest that Shri Mohanty is an officer/employee in the pay roll of the management. Giving of some legal advice does not make him an employee under the management. Under such circumstances the authorisation in 'G' form executed in favour or Shri P.K. Mohanty is not accepted.
The Tribunal referred to the decision of the Supreme Court in Paradip Port Trust, Paradip Vs. Their Workmen, .
3. The relevant facts necessary for consideration of the point may be stated thus :
In the 'G' form submitted by the petitioner it was stated that Shri P.K. Mohanty is the Labour Advisor of the Company and, therefore, is entitled to represent the management in the case. The Tribunal initiallv did not accept the authorisation in favour of Shri P.K. Mohanty in the order dated July 15, 1994 holding that he is a legal practitioner and the workers Association opposes his representation. Subsequently, the workers' Association Having conceded that Shri P.K. Mohanty is neither a lawyer nor a registered legal practitioner the Tribunal reconsidered the matter and passed the order as per Annexure-1 refusing representation for the reasons stated earlier. Therefore, the question is whether the petitioner-company is entitled to be represented by Shri P.K. Mohanty u/s 36(2) of the Act.
4. Since the case turns on interpretation of the provisions in Section 36 it will be convenient to. quote the Section :
"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 officer 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 authorised in such manner as may be prescribed.
(2) An employee who is a party to the dispute shall be entitled to be represented in any proceeding under Act by -
(a) an officer of an association of which he is a member;
(c) 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 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 proceedings under this Act or in any proceedings before a Court.
(4) In any proceeding before a Labour Court, the Tribunal or National Tribunal, a party to a dispute may be represented by a legal practitioner with the c
