TMI Blog1976 (9) TMI 174X X X X Extracts X X X X X X X X Extracts X X X X ..... Central) Bhubaneswar, Orissa, under section 10( 1 ) (d) 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 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 Union 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ractitioners 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 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 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 permission of the court. The Act envisages Investigation and settlement of industrial disputes and with that end in view has created various authorities at different levels all independent o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 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 m (a), (b) and (c) of that sub-section. Similarly under section 36(2) an employer 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. By ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cter of industrial dispute from participatory involvement of the trade union, the 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 terms under the Act and the employer may also be represented by an officer o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not, however, mean that the companies and corporations, and for the matter of that any party, are free to engage legal practitioners by means of a special power of attorney to represent their interests before the Tribunals without consent of the opposite party and leave of the Tribunal. Again, although under section 36(2)(c) there is provision 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 Government 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 association, albeit connected with the same type of industry, to defend their cases before Tribunals. Such an absurd intent cannot be attributed to the legislature in enacting section 36, which will be, if that section is the be all and end all of the types of representations envisaged under the Act. The impossibility of the position indicated above a crucial pointer to section 36 being not exhaustive but only supplemental to any other lawful mode of representation of parties. The parties, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ibunals, 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. 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), instead, mentiones only an officer. Now executive in relation to trade union means the body by whatever name called to which 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 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 associ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en by us we are of 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. The Solicitor General contends that and in section 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 case, 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 accord 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 r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Industrial Disputes Act is a special piece of legislation with the avowed aim of labour welfare and representation before adjudicatory authorities 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 subject and provided for it, the legislature is reasonably presumed not to intend to alter that special provision by a subsequent general enactment unless that intention be mainfested in explicit language ...... or there be something in the nature of the general one making i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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