# 5 37 PARADIP PORT TRUST, PARADIP v. THEIR WORKMEN

- **Citation:** [1977] 1 S.C.R. 537
- **Court:** Supreme Court of India
- **Decided:** 1976-09-09
- **Case number:** Civil Appeal No. 766 of 1976
- **Bench:** Y. V. Chandrachud, P. K. Goswami, A. C. Gupta
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/5-37-paradip-port-trust-paradip-v-their-workmen-6947
- **Pages:** 12

## Headnote

Industrial Disputes Act 1947-Sec. 36-When legal practitioners can appear
before the Tribunal-Whether Secs. 36(1) and 36(2) is controlled bys. 36(4).
The appellant is a major port. An Industrial Dispute was raised by the respondent workmen with regard to the termination of the services of one of the
employees.
The dispute was referred to the Industrial Tribunal under section
10(1) (d) of the Industrial Disputes Act, 1947.
The appellant sought to be
represented through Shri T. Mishra, Advocate, who was described as "Legal
Consultant" of the appellant. Mr. Misra atlmittedly is a practising advocate of
the Orissa High Court. An objection was taken by the respondent to the representation of the appellant by Mr. Misra. The respondents refused to give their
consent as required by section 36( 4) of the Act.
The Tribunal came to the conclusion that the relationship between the appellant and Mr. Misra is that of a client and his lawyer and not that of an employer
and employee. The Tribunal also held that merely by execution of a power
A
B
c
of attorney the restrictions attached to a legal practitioner contained in subD
section ( 4) by Section 36 cannot be circumvented.
Dismissing the appeal,
HELD : 1. The Industrial Law in India did not commence with a show of cold
shoulder to lawyers. For the first time restriction was imposed in the year 19 50
on the engagement of legal practitioners before the Appellate Tribunal without
consent of the parties and leave of the Tribunal.
The restrictions on legal
representations before the Industrial Courts existed in England also.
The act
E
envisages investigation and settlement of industrial disputes and with that end
in view has created various authorities at different levels all independent of one
another. It is reasonable to suppose that the presence of legal .practitioners in
conciliation may divert attention to technical pleas and will detract from the
informality of proceedings impeding smooth and expeditious settlement. Legal
practitioners entrusted with their briefs cannot be blamed if they bring forth their
legal training and experience to the aid ;md benefit of their clients. But Labour
Law operation operates in a field where there are two unequal contestants. The Act,
therefore, appears to bi; taking care of the challenge of the situation in which a
F
weaker party is pitted against the stronger before adjudicating authorities. Under
section 36(1) a workman who is a party to a dispute is entitled to be represented
in any proceeding under the Act by 3 classes of officers mentioned in sub-clauses
(a), (b) and (c) of that sub-section. By sub-section (3) a total ban is imposed
on representation of a party to a dispute by legal practitioners in any conciliation proceedings under the Act or in any proceedings before a Court of enquiry.
Under section 36(4) a parfy who desired to be represented by a legal practitioner has to take prior consent of the opposite party and leave of the Tribunal.
G
[539G, H, 540A, E-F, 541H, & 542A]
2. The rules of representation under section 36(1) and (2) are unconditional and are not subject to the conditions: laid down in section 36( 4).
[543A]
3. Section 36 deals with the representation of the parties. Neither the Act
nor section 36 provides for appearance of the parties themselves when they are
individuals or Companies or. Corporations.
The Tribunals and Labour Courts
being quasi-judicial authorities dealing with the rights affecting the parties cannot adjudicate their disputes in the absence of the parties. It is therefore, incumH
bent on the Tribunals and Labour Courts to afford reasonable opportunity to the
parties to appear before them and hear them while adjudicating the industrial
disputes. [543B-C]
538
SUPREME COURT REPORTS
[1977] 1 S.C.R.
A
~ection 36 is no~ exhaustive. It is not intended under the Act that Compames and Corporat10ns are confined to representation of their cases only
through the offic.ers specified in section 36 (2) of the Act. They can be

## Text

5 37
PARADIP PORT TRUST, PARADIP
v.
THEIR WORKMEN
September 9, 1976
[Y. V. CHANDRACHUD, P. K. GOSWAMI AND A. C. GUPTA, JJ.]
Industrial Disputes Act 1947-Sec. 36-When legal practitioners can appear
before the Tribunal-Whether Secs. 36(1) and 36(2) is controlled bys. 36(4).
The appellant is a major port. An Industrial Dispute was raised by the respondent workmen with regard to the termination of the services of one of the
employees.
The dispute was referred to the Industrial Tribunal under section
10(1) (d) of the Industrial Disputes Act, 1947.
The appellant sought to be
represented through Shri T. Mishra, Advocate, who was described as "Legal
Consultant" of the appellant. Mr. Misra atlmittedly is a practising advocate of
the Orissa High Court. An objection was taken by the respondent to the representation of the appellant by Mr. Misra. The respondents refused to give their
consent as required by section 36( 4) of the Act.
The Tribunal came to the conclusion that the relationship between the appellant and Mr. Misra is that of a client and his lawyer and not that of an employer
and employee. The Tribunal also held that merely by execution of a power
A
B
c
of attorney the restrictions attached to a legal practitioner contained in subD
section ( 4) by Section 36 cannot be circumvented.
Dismissing the appeal,
HELD : 1. The Industrial Law in India did not commence with a show of cold
shoulder to lawyers. For the first time restriction was imposed in the year 19 50
on the engagement of legal practitioners before the Appellate Tribunal without
consent of the parties and leave of the Tribunal.
The restrictions on legal
representations before the Industrial Courts existed in England also.
The act
E
envisages investigation and settlement of industrial disputes and with that end
in view has created various authorities at different levels all independent of one
another. It is reasonable to suppose that the presence of legal .practitioners in
conciliation may divert attention to technical pleas and will detract from the
informality of proceedings impeding smooth and expeditious settlement. Legal
practitioners entrusted with their briefs cannot be blamed if they bring forth their
legal training and experience to the aid ;md benefit of their clients. But Labour
Law operation operates in a field where there are two unequal contestants. The Act,
therefore, appears to bi; taking care of the challenge of the situation in which a
F
weaker party is pitted against the stronger before adjudicating authorities. Under
section 36(1) a workman who is a party to a dispute is entitled to be represented
in any proceeding under the Act by 3 classes of officers mentioned in sub-clauses
(a), (b) and (c) of that sub-section. By sub-section (3) a total ban is imposed
on representation of a party to a dispute by legal practitioners in any conciliation proceedings under the Act or in any proceedings before a Court of enquiry.
Under section 36(4) a parfy who desired to be represented by a legal practitioner has to take prior consent of the opposite party and leave of the Tribunal.
G
[539G, H, 540A, E-F, 541H, & 542A]
2. The rules of representation under section 36(1) and (2) are unconditional and are not subject to the conditions: laid down in section 36( 4).
[543A]
3. Section 36 deals with the representation of the parties. Neither the Act
nor section 36 provides for appearance of the parties themselves when they are
individuals or Companies or. Corporations.
The Tribunals and Labour Courts
being quasi-judicial authorities dealing with the rights affecting the parties cannot adjudicate their disputes in the absence of the parties. It is therefore, incumH
bent on the Tribunals and Labour Courts to afford reasonable opportunity to the
parties to appear before them and hear them while adjudicating the industrial
disputes. [543B-C]
538
SUPREME COURT REPORTS
[1977] 1 S.C.R.
A
~ection 36 is no~ exhaustive. It is not intended under the Act that Compames and Corporat10ns are confined to representation of their cases only
through the offic.ers specified in section 36 (2) of the Act. They can be represente~. by the Dtrector, their own officers. However, they cannot engage legal
practtt10ners by means of special power of attorney. [543C, F]
B ...
c
D
E
F
G
B
. 4. If a }e¥al pr!lctitioner is appointed as an officer of a Company or Corporat10n and is. m their pay and under their control and is not a practising advocate
the f~t that he was earlier a legal practitioner or has a legal degree will not
st.an~ m t11;e way of the C:o.mpan~ or the Corporation being represented by him .
Similarly, 1f a legal pracht10ner 1s an officer of an association of employers or
a!1 office bearer c:>f a Trad.e Union, there is nothing in section 36(4) to prevent
him from appearmg before the Tribunal. [544 C-D]
There is no scope for the enquiry by the Tribunal into the motive for the
appointment of such legal practitioner as _office bearer of the Trade Union or the
Employers' Association. [544-F]
5. The contention that 'and' should be read as 'or' in section 36( 4) is neoatived. Consent of the opposite party is not an idle alternative but a ruling factor
in Section 36(4). (546 E-F]
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 766 of 1976.
Appeal by Special Leave from the Order dated 29-11-7 5 of the
Industrial Tribunal, Orissa in Industrial Dispute Case No. 5 /75 and
Special Leave Petitions (Civil) Nos. 1844A and 1845/76
L. N. Sinha, Sol. Gen, Govind Das, (Mrs.) S. Bhandare, M.
S.
Narasimhan, A. K. Mathur and A. K. Sharma, for the Appellant.
.J:
J. P. Goyal and Shree Pal Singh; for the Respondent.
Gobind Das, P. H. Parekh and (Miss)
Manju Jatley; for the
petitioner [In S.L.P. (Civil) Nos. 18441\. and 1845/76].
The Judgment of the Court was delivered by
GOSWAMI, J. The Appellant, the Paradip Port Trust, is a major port
governed by the provisions of the Major Port Trusts Act, 1963 and is
managed by Board of Trustees constituted under the provisions of the
said Act.
Under section 5 of the said Act the Board of Trustees is a
body corporate having perpetual succession and a common seal with
power, subject to the provisions of the Act, to acquire, hold or dispose
of property and may sue or be sued in the name of the Board.
An
industrial dispute was raised by the Paradip Shramik Congress representing the workmen with regard to the termination of the service of
one Nityananda Behera, a temporary teacher in the Paritdip Port Trust
High School.
The dispute was referred to the Industrial Tribunal
(Central) Bhubaneswar, Orissa, under section 10(1) (cl) of the Industrial Disputes Act, 1947 (briefly the Act).
The respondents (hereinafter to be referred to as the Union)
appeared before the Tribunal through the Adviser and General Secretary
of Paradip Shramik Congress.
The appellant sought to be represented
before the Tribunal through Shri T. Misra, Advocate, who was a "Legal
. \
PARADIP PORT TRUST v. WORKMEN (Goswami, J.)
539
Consultant" of the Trust.
The appellant filed their authority in Form
'F' under rule 36 of the Orissa Industrial Dispute Rules in his favour.
The appellant subsequently filed also a Power of Attorney executed by
the Chairman of the Board of Trustees in favour of Shri T. Misra who
was admittedly a practising Advocate of the Orissa High Court.
An objection was taken by the Union to the representation of the
Paradip Port Trust (hereinafter to be described as the employer)
by
Shri T. Misra, Advocate, and the Unio.!l refused to give their consent
to his representation as required under section 36( 4) of the Act.
The Tribunal after hearing the parties upheld the objection of the
Union.
The Tribunal examined the terms and conditions of
the
appointment of Shri T. Misra as Legal Consultant of the employer and
held as follows -
"His duties and the restrictions on his practice which have
been extracted above and the terms as to ·his professional fees,
etc.
indicate that the relationship of the first party and Shri
Misra; is clearly that of a client and his lawyer and not ·that
of employer and employee.
Hence, Shri Misra cannot be
said to be Officer of the first party."
The Tribunal further held
"Merely by execution of a power-of-attorney, the restrictions attached to a legal practitioner contained in sub-section
( 4) of the Act cannot be circumvented.
I would accordingly
hold that Shrri Misra who is a legal practitioner cannot represent the first party before this Tribunal even if he holds
a power-of-attorney executed in his favour by the first party."
The appellant has obtained speCial leave of this Court agaimt the
above order of the Tribunal.
We- have- heard the Solicitor-General
on behalf o~ the. appell~nt and Shri Goyal for the respondents.
Aloni:; with the above appeal two Special Leave petitions Nos. 1844
A
B
c
D
E
A an:d 1·845 of-19-76 11re also·posted for hearing for admission and we
F
have heard Mr. Gebind Das at great length.
. The two Special Leave
Petitions are by the-management of Keonjbar Central Cooperative Bank
Ltd.
One application is relating 'to rejection by the Tribunal of the
Bank's prayer for representation before the Tribunal through its Advocate, Shri B. B. Rath, on the ground of objection by the Union under
section 36( 4) of tbe Act.
The second application relat_es. to
the
order of the Tribunal allowing Shri A. C. Mohanty, Advocate and Vice
G
Presidef)t o_f the Keonjhar Central Cooperative Bank Employees Union
urider · seetion 36(1) ·of the Act notwithstanding the objeciion of the
management.
· ·
·
Industrial law in I~dia did not commence with a· show of cold shoulder to lawyers as such.
There was an unimpeded entrance of legal
practitioners to adjudication halls before tribunals when the Act first
came into force on April 1, 1947. · Three years later when the Labour
Appellate Tribunals were constituted under the Industrial Disputes
(Appellate Tribunal) Act 1950, a restriction was imposed on the parties
3 -1234SCI/76
H
540
SUPREME COURT REPORTS
[1977) 1 S.C.R.
A
in engagement of legal practitioners before the Appellate Tribunal without consent of the parties and leave of the Tribunal.
When this was
introduced in the appellate forum, the same restriction was in1posed for
the first time upon representation of parties by legal practitioners before the Industrial Tribunals as well [see section 34 of the Industrial
Disputes (Appellate Tribunal) Act, 1950].
In view of the recent
thinking in the matter of preferring legal aid to the poor and weaker
B
sections of the people it may even be possible that the conditional
embargo under section 36( 4) may be lifted or its rigour considerably
reduced by leaving the matter to the Tribunals' permission as has been
the case under the English law.
· Restriction on parties in respect· of legal representation before
Industrial Courts is not a new phenomenon.
It was there in England
C
in the Industrial Courts Act, 1919 (9 & 10 Geo 5 c 69) and does not
appear to be altered even by the Industrial Relations Act, 1971. · Section 9 of the English Act provides that except as provided by rules,
"no person shall be entitled to appear on any such proceedings by
counsel or solicitor." However, rule 8 of the Industrial Court (Procedure) Rules 1920 allows persons to appear by counsel or solicitor with
D
E
F
G
H
permission of the court.
The Act envisages Investigation and settlement of industrial dis.
putes and with that end in view has created various authorities at different levels all independent of one another.
The word adjudication
occurs only with reference to labour courts, industrial tribunals and
national tribunals.
These bodies are manned by Judges of High
Courts or by officers with appropriate fodicial and labour law experience.
The conciliation proceedings held by a Board or a Conciliation Officer are mainly concerned with mediation for promoting settlement of industrial disputes.
It is reasonable to suppose that the
presence of legal practitioners in conciliation may divert attention to
technical pleas and will detract from the informality of the proceedings
impeding smooth and expeditious settlement.
Legal practitioners
entrusted with their briefs cannot be blamed if they bring-forth their
legal training and experience to the aid and benefit of their clients.
But labour law operates in a field where there are two unequal contestants.
The Act, therefore, takes care of the challenge of the situation
in which the weaker party is pitted against the stronger before adjudicating authorities.
That appears to be one of the reasons for introducing
consent of the parties for representation by legal practitioners. Employers, with their purse, naturally, can always secure the services of eminent counsel.
The question that arises for consideration will turn on the interpretation of section 36 of the Act which may be quoted :
36(1) A workman who is a party to a dispute shall be
entitled to be represented in an 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;
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PARADIP PORT TRUST v. WORKMAN (Goswami, J.)
541
(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 authorised 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 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 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, 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."
Section 36 provides for representation of parties before the Tribunals and the Labour Court.
Under section 36(1) a workman who
is a party to a dispute shall be entitled to be represented in any proceeding under the Act by three classes of officers mentioned in (a), (b)
and ( c) of that sub-section.
Similarly under section 36(2) an employer wl10 is a party to a dispute shall be entitled to be represented in
any proceeding under the Act by three classes of officers mentioned in
(a), (b) and (c) of that sub-section.
By sub-section (3) a total ban
is imposed on representation of a party to a dispute by a legal practitioner in any conciliation proceedings under this Act or in any proceedings before a Court of enauiry.
Then comes section 36(4) which
introduces the requirement of prior consent of the opposite party and
A
B
c
D
E
F
G
H
542
SUPREME COURT REPORTS
[1977] 1 S.C.R.
A
leave of the Tribunals and of the Labour Court, as the case may be,
for enabling a party to be represented by a legal practitioner.
B
c
D
E
F
G
H
Under the scheme of. the Act the parties to an industrial dispute are
employers and employers; employers and workmen; and workmen and
workmen [section 2(K)l. The definition of "appropriate Government"
under section 2(a) of the Act lays bare the coverage of industrial disputes which may be raised concerning, amongst others, several types
of corporations, mentioned therein, companies, mine, oil field, cantonment board and major port.
The definition of employer under section
2(g), which is a purposive but not an exhaustive definition,
shows
that an industrial dispute can be raised in relation to an industry carried
on even by the Government and by local authorities. It need not be
added that industry is also carried on by private owners, private companies and partnerships.
Employers and workmen will, therefore, be
drawn from numerous sources.
Leaving aside for the present industrial disputes between employers and employers and workmen
and
workmen, such disputes, almost, always are between employers and
workmen.
Prior to the insertion of section 2A in the Act by the
Amendment Act 35 of 1965 a dispute raised only by a single individual
workman did not come under the category of an indusrtial dispute within the meaning of section 2(k).
Left to himself, no remedy was available to such an aggrieved individual workman by means of the machinery provided under the Act for adjudication of his dispute.
Such
an individual dispute, for example, relating to the discharge or dismissal of a single workman, however, became an industrial dispute only
if a substantial body of workmen or a union of workmen espoused his
cause.
The trade union of workmen, therefore, comes to be recognised as a live instrument under the Act and has an active role to play in
collective bargaining.
Thus, so far as workmen are concerned, union
is, alsmost, always involved in the dispute from the inception. Since
the dispute, itself, in a large number of cases takes the character of
industrial dispute from participatory i_nvolvement of the trade union,
tbe Act confers an unbartered right upon the workmen to be represented
by a member of the executive or by an office bearer of a registered trade
union. It is, therefore, in the very scheme of things that a workman's
absolute right to be represented by an office bearer of the union is recognised under the Act. Indeed it would have been odd in the entire
perspective of an industrial dispute and the objects and purposes of
the Act not to give due recognition to the union.
But for a provision
like section 36( 1) of the Act, there may have been difficulty under the
general law in the way of the office bearers of the union representing
workmen before the adjudicating authorities under the Act unless, perhaps, regulated by the procedure under section 11 of the Act. To put
the matter beyond controversy an absolute right is created in favour of
the workmen under section 36(1) in the matter of representation.
Having made such a provision for the workmen's representation the
employer is also placed at par with the workmen in similar tenns under
the Act and the employer may also be represented by an officer of the
association of employers of which the employer is a member.
The
j.
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PARADIP PORT TRUST v. WORKMEN (Goswami, J.)
543
right is extended to representation by the office ~earers of the federation
of the unions and by the officers of the federat10n of employers. 1:he
provisions of section 36(1) and 36(2) confer on t!1e respective parties
absolute rights of representation by persons respectively specified th~re
in.
The rights of representation under section 36(1) ai:~
secti~n
36(2) are unconditional and are not subject t? the condtt101:s
lmd
down under section 36( 4) of the Act.
The said two sub-sect10ns are
independent and stand by themselves.
As stated earlier, section 36 deals with representation of t~e parti~s.
Neither the Act nor section 36 provides for appearance of tne parties
themselves when they are individuals or companies or corporations. The
Tribunals and the Labour Courts being quasi-judicial authorities dealing with rights affecting the parties cannot adjudicate their disputes
in absence of the parties.
It is, therefore, incumbent upon the Tribunals and Labour Courts to afford reasonable opportunity to the parties
to appear before them and hear them while adjudicating industrial disputes.
This position is indisputable.
Section 36, therefore, is not
exhaustive in the sense that besides the persons specified therein there
cannot be any other lawful mode of appearance of the parties as such.
As indicated ·earlier section 36 does not appear to take count of companies and corporations as employers.
It is, however, common knowledge that industrial disputes are raised in a predominantly large number of cases where companies or corporations are involl'l:d.
Since
companies and corporations have necessarily to_ appear through some
human agency there is nothing in law to prevent them from being represented in any lawful manner.
As Salmond says :,
"Every legal person, therefore, has corresponding to it in the
world of natural persons certain agents or representatives by
whom it acts .................... " (Salmond on Jurispudence, 12th Edition, page 312.)
A
B
c
D
E
It is not intended under the Act that companies and corporations
F
are confined to representation of their cases only through the officers
specified in sectio11 36(2) of the Act.
They can be represented by
tbeir directors or their own officers authorised to act in that behalf in
a lawful manner provideq it is not contrary to any provision of the Act.
This would not, however, mean that the companies and corporations,
a_nd for the matter of that any party, are free to engage legal practitioners by means of a 'special power of attorney to represent their
G
interests before the Tribunals without consent of the opposite party
and leave of the Tribunal.
Again, although under section 36(2) (c) there is ptovision for the
contingency of an employer not being a member of an association of
employers, the device of representation provided therein would
not
fit in the case of a Qovernment Department or a public corporation as
an employer.
These categories of employers, known to the Act, will
be put to the most unnatural exercise of enlisting the aid of an outside
H
A
B
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544
SUPREME COURT REPORTS
(1977] .1 s.c.R.
association, albeit connected with the same type of industry, to defond
their cases before Tribunals.
Such an absurd intent cannot be attributed to the legislature in enacting section 36, which will be, Wthat
section is the be all and end all of the types of representations envisaged
under the Act.
The impossibility of the position indicated above is.
a crucial pointer to section 36 being not exhaustive but' only supplemental to any other lawful mode of representation of parties.
The parties, however, will have to conform to the conditions laid
down in section 36( 4) in the matter of representation by legal practitioners.
Both the consent of the opposite party and the leave of tl~e
Tribunal will have to be secured to enable a party to seek representation before the tribunal through a legal practitioner qua legal practitioner.
This is a clear1 significance of section 36 ( 4) of the Act.
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 abov1~
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 ofi the
union in the case of workmen and not in the, capacity of a legal practi--
tioner.
The fact that a person is a legal practitioner will not affec~ the
position if the qualifications specified in section 36 (1) and section
36(2) are fulfilled by him.
It must be made clear that there is no :;;cope for enquiry by the Tribunal into the motive for appointment of such legal practitioners as
office bearers of the trade unions or as officers of the employers' associations.
When law provides for a requisite qualification for exercising a
right, fulfilment of the qualification in a given case will entitle the
party to be represented before the Tribunal by such a person
witl1
that qualification.
How and under what circumstances these quahfications have .been obtained will not be relevant matters for consideration
by the Tribun!ll in considering an application for representation under
section 36(1) and section 36(2) of the Act.
Once the qualifications
under section 36(1) and section 36(2) are fulfilled prior to app..:arancc
before Tribunals, there is no need under the law "to pursue the matter
in order to find out whether the appointments are in circumvention of
section 36(4) of the Act.
Motive of the appointment cannot be
made an issue before the Tribunal.
·
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PARADIP PORT TRUST v. WORKMEN (Goswami, J.)
545
We may note here the difference in language adopted in section
36(1) and section 36(2).
While section 36(1) refers to "any member of the executive" or "other office bearer," section 36(2), mstead,
mentions onlv "an officer."
Now "executive" in relation to trade
union means 'the body by whatever name called to whic? the management of the affairs of the trade union is entrusted section
2(gg).
"Office bearer" in relation to a trade union includes any member of
the executive thereof but does not include an auditor section 2 (III).
So far as trade unions are concerned there is no difficulty in ascertaining
a member of the executive or other office-bearer and section 36( 1) will
create no difficulty in practical application.
But the word "officer" in
section 36(2) is not defined in the Act and may well have been, as
done under section 2(30) of the Companies Act.
This is bound to
give rise to controversy when a particular person claims to be an. officer
of the association of employers.
No single test nor an exhaustive test
can be laid down for determining as to who is an officer in absence of
a definition in the Act.
When such a question arises the Tribunal, in
each individual case, will have to determine on the materials produced
before it whether the claim is justified.
we. should also observe that
the officer under section 3 6 ( 2) is of the association or of the federation
of associations of employers and not of the company or corporation.
The matter of representation by a legal practitioner holding a power
of attorney came up for consideration before the Full Bench of the
Appellate Tribunal of India in the year 1951 (see Ka11pur
Hoiscry
Workers' Union v. J. K. Hosiery Factory, Kanpur) (1). The provision
for representation which applied to the Appellate Tribunal was section
33 of the repealed Industrial Disputes Appeallate Tribunal) Act, 1950.
This section corresponds to section 36 of the Industrial Disputes Act
with which are concerned.
Although the Appellate Tribunal rejected
the.claim of the party to be represented by the legal practitioner on the
basis of a power of attorney, with which we agree, the reasons for its
conclusion based solely on the ground of section 36 being exhaustive
do not meet with our approval.
The Appellate Tribunal took the view
that the Act intended to restrict the representation of parties to the
three clases of persons enumerated in sub-sections (1) and (2) of section 33.
The Appellate Tribunal was of the view that sub-sections
(1) and (2) of section 33 were intended to be exhaustive of the persons
(other than the party himself) who might represent either of the partv.
Since holding of a power of attorney is not one such mode the claim of
the legal practitioner failed, according to the Appellate Tribunal. The
Raja'sthan High Court in Duduwala & Co. and others v. Industrial
Tribunal and another(2) took the same view.
Our attention has been
drawn to the decisions of the Calcutta and Bombay Hi!!h Courts wherein a contrary view has been taken with regard to the interpretation of
section 36 as bein!! exhaustive rsee Hall & Andersan, Ltd. v. S. K.
Neogi and another( 3 ) and Khadilkar (K. K.) General Secretary, Engineering Staff Union Bomoav v. Indian Hume Pipe Companv, Ltd.,
Bombay, and another](4 ). For the reasi;ins already given by us we are
(!) [1952] I L.L.J. 384.
(2) A.LR. 1958 Raj. 20 .
(3) [1954] I.L.L.J. 629.
(4) [1967] I.L.L.J: ] '1)
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SUPREME COURT REPORTS
[1977] 1 S.C.R.
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o( opinon that the views of the Labour Appellate Tribunal and that
of the Rajasthan High Court in this aspect of the matter are not
correct and the Calcutta and Bombay High Courts are right in holding
that section 36 is not exhaustive.
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The Solicitor General contends that "and" in sectio1i 36( 4) should
be read as "or" in which case refusal to consent by a party would not
be decisive in the matter.
The Tribunal will then be able to decide
in each case by exercising its judicial discretion whether leave, in a
given cas~, should be given to a party to be represented by a lawyer
notwithstanding the objection of the other party. It is pointed out by
the Solicitor General that great hardship will be caused to public corporations if the union is given a carte blanche to finally decide about
that matter of representation by refusing to accorJ its consent to representation of the employer through a legal practitioner.
It is pointed
out that public corporations, and even Government running a transport
organisation like the State transport, cannot be expected to be members
of any employers' association.
In their case section 36(2) will be of
no avail.
To deny them legal representation would be tantamount to
denial of reasonable opportunity to represent their cases before the
Tribunal.
It is submitted that since such injustice or hardship cannot
be intended by law the final word with regard to representation by
legal practitioners before the Tribunal should rest with the Tribunal and
this will be effectively implemented if the word "and" in section 36( 4)
is read as "or".
This, it is said, will also achieve the object of the
Act in having a [air adjudication of disputes. ·
·
·
We have given anxious consideration to the above submission. It
is true that "and" in a particular context and in view of the object and
purpose of a particular legislation may be read as "or" to give effect
to the intent of the legislature.
However, having regard to the history
of the present legis,lation, recognition by law of the unequal strength of
the parties in adjudication proceedings before a Tribunal, intention of
the law being to discourage representation by legal practitioners
as
such, and the need for expeditious disposal of cases, we arc unable to
hold that "and" in section 36( 4) can be read as "or".
Consent of the opposite part is not an idle alternative but a ruling
factor in secfon 36( 4). The question of hardship, pointed out by
.the Solicitor General, is a matter for the legi:slatun: to deal with and
i't is not for the courts to invoke the theory of injustice and other conse-
.quences to choose a rather strained interpretation when the Jangu.age
of s.ection 36 is clear and unambiguous.
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 only tribunal section 30(i) and (ii).
This right conferred upon the advocates by a later law will be pr0perly
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
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PARADIP PORT TRUST v. WORKMEN (Goswami, J.)
547
Bar Councils Act an advocate shall be entitled as of right to practise
save as ot11erwis~ provided by or under any other law in any courts
(other than High Court) and tribunal.
There is, however, no refe~
cnce 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 Indus·
trial Disputes Act is a special piece of legislation .wi~h the avowed .a~m
. of labour welfare and representation before ad1ud1catory authont1es
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 subjeet and provided for it, the legislature is reasonably presumed not to intend to alter that speeial provision by a subsequent
general enactment unless that intention be mainfesled
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." (1)
Second, the matter is not to be viewed from the point of view of
legal practitioner but from that of the employer and workmen who are
the principal contestants in an industrial dispute.
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,
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the restriction is upon a party as such and the occasion to consider
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the right of the legal practitioner may not arise.
In the appeal before us we find that the Tribunal, after considering
the materials produced before it, held that Shri T. Misra could not
claim to be an officer of the corporation simply because he was
a
legal consultant of the Trust.
The Tribunal came to this conclusion
after examining the terms and conditions governing the relationship of
Shri Misra with the Trust.
He was neither in pay of the company
nor under its control and enjoyed freedom as any other legal practitioner to accept cases from other parties.
It is significant to note
that one of the conclitions of Shri Misra{s retainer is that "he will not
appear in any suit or appeal against the Port until he has ascertained
from the Chairman that his services on behalf of the Port will not be
required."
That is to say, although on a retainer and with fixed fees
for appearance i.n cases there is no absolute ban to
appear
even
(!) M1xwo\l on Interpretation of Statutes 11th Ed. p. 169.
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548
SUPREME COURT REPORTS
(1977] 1 S.C.R.
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against the Port.
This condition is not at all consistent with the position of an officer of the Trust.
We agree with the opinion of the
Tribunal that Shri Misra cannot be held to be an officer of the Trust.
B
A lawyer, simpliciter, cannot appear before an Industrial Tribunal
without the consent of the opposite party and leave of the Tribunal
merely by virtue of a power of attorney executed by a party. A lawyer
can appear before the Tribunal in the capacity of an office bearer of
a registered trade union or an officer of associations of employers and
no consent of the other side and leave of the Tribunal will, then, be
necessary.
In the result the appeal is dismissed with costs.
Necessarily the
Special Leave Petitions also fail and stand dismissed.
P.H.P.
Appeal and petitions dismissed'
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