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Msco (P) Limited Vs. S.D. Rane and Others - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtMumbai High Court
Decided On
Case NumberMisc. Petn. No. 1360 of 1978
Judge
Reported in(1982)ILLJ434Bom
ActsIndustrial Disputes Act - Sections 36 and 36(4)
AppellantMsco (P) Limited
RespondentS.D. Rane and Others
Excerpt:
.....right possessed by tribunal - industrial disputes act, 1947 does not confer such right upon labour court - held, labour court had no jurisdiction to review order passed by it. - [couto; m.l. pendse, jj.] in the first instance the order passed under s. 132(5) is an order of a summary nature and does not conclude the rights of the petitioners, because while passing the assessment order, it is always open to the petitioners to point out that the assets recovered in the search were not undisclosed to point out that the assetsrecovered in the search were not undisclosed income. secondly, the order passed under s. 132(5) is appealable under the provisions of the act and if there is any violation in the exercise of the power, then the proper remedy is to lodge an appeal before the..........the petitioners and that the very fact that the secretary of respondents no. 2 had made the said review application dated february 13, 1978, showed that the 2nd respondents were not prepared to give their consent to the appearance of mr. pai. the respondent no. 1 accordingly allowed the said review application and passed and order that mr. pai be not allowed to appear on behalf of the petitioners in the matter of the reference before him. it is this order which is being impugned by this writ petition. by an application dated april 6, 1978, made by the petitioners, the petitioners sought a review of the said order dated march 27, 1978, on the ground that the labour court had not jurisdiction to review an order previously passed by it. the respondents no. 2 filed their reply to the said.....
Judgment:

1. This Writ Petition under Art. 226 of the Constitution of India is directed against an order passed on March 27, 1978, by the 1st respondent who is the Presiding Officer of the 5th Labour Court. The petitioner, a private limited company, are carrying on the business of manufacture of hospital, pharmaceutical and laboratory equipments. On September 17, 1968, the petitioners appointed the 3rd respondent as a clerk. By a letter dated April 29, 1977, the petitioners terminated the services of the 3rd respondent with effect from May 3, 1977. The 2nd respondent-union took up the cause of the 3rd respondent and demanded that he should be reinstated in service. Ultimately, on August 19, 1977, the Deputy Commissioner of Labour (Admn), Bombay, by his order of the same date referred the dispute - with respect to the reinstatement of the 3rd respondent for adjudication to respondent for adjudication to respondent No. 1. After receipt of the order of reference, notices were issued by the office of the Respondent No. 1, both to the petitioners and the respondents No. 2. By the said notice, respondents No. 2 were called upon to file their statement of claim and the petitioners to file their written statement thereto. By this notice, October 11, 1977, was fixed as the date of hearing of the said reference. It appears that on that day, advocate Mr. U. B. Pai filed his Vakalatnama on behalf of the petitioners. Mr. Pai was present in Court. The respondent No. 2 union had not prepared any statement of claim by that date, and accordingly, an application in writing was made stating that the respondents No. 2 could not file their statement of claim as the respondent No. 3 was not available. By the said application a prayer was made to the Labour Court to grant three weeks' time to file the statement of claim. In the petition, it is averred, 'On the said application for adjournment, the respondent No. 2 obtained 'No objection' of Mr. U. B. Pai, advocate, of the petitioners and thereafter the said reference was adjourned to 4-11-1977'. When we turn to the said application, we find that the consent obtained from Mr. Pai endorsed at the foot of the said application is in the following terms : 'No objection. Pai. 11-10-1977. Advocate for the Co.' This shows that the union representative who obtained the consent of Mr. Pai on the said application knew that Mr. Pai was the advocate for the petitioners and obtained this consent on the said application as an advocate for the petitioners. In view of the aforesaid consent by the advocate for the petitioners, the respondent No. 1 granted two weeks' time to the respondent No. 2 to file their statement of claim.

2. What happened thereafter does not reflect much credit upon respondents No. 2, but is an example of unfair practice in which at times some litigants indulge. By a letter dated November 1, 1977, signed by one P. R. Krishnan as the Secretary of the respondents No. 2 union, the statement of claim was forwarded to the Secretary of the Labour Court. In the said letter it was stated that a copy of the said statement of claim was sent to the petitioners by registered post. The said letter further stated as follows : 'We hereby state that we are objecting appearance in this case of any advocate of the company under S. 36 of the Industrial Dispute Act'. It might be mentioned that the next date of hearing which had been fixed by the Labour Court was on October 11, 1977 was November 4, 1977. On receipt of the said covering letter and the statement of claim, respondent No. 1 issued notice to the petitioners to file their reply. Accordingly, on November 4, 1977 Mr. Pai set out his objection to what had been stated in the said letter. It was stated in the said reply that an October 11, 1977, the respondent No. 2 had sought three weeks' adjournment to file their statement of claim, and they had sought his consent and he had given his no objection on the said application which meant that the respondent No. 2 had on October 11, 1977, consented to his appearance and that after serving their purpose by obtaining time to file the statement of claim, the 2nd respondents should not subsequently be allowed to object to Mr. Pai's appearance, Thereupon, after hearing both parties, the respondent No. 1 by his order dated November 9, 1977, held that the respondents No. 2 Union must be held to have given their consent impliedly by not open to the union to object to the appearance of Mr. Pai on October 11, 1977, and it was, therefore, not open to the union to object to the appearance of Mr. Pai subsequently. By the said order, the respondent No. 1 overruled the objection to the appearance of Mr. Pai raised by respondents No. 2 By and application dated February 13, 1978 signed by the said Krishnan on behalf of the respondent No. 2, the respondent No. 2 applied for a review of the said order dated November 9, 1977. In the said application the 2nd respondents referred to and relied upon a decision of the Supreme Court in Paradip Port Trust v. Their Workmen : (1976)IILLJ409SC . In the reply filed to the said application, the petitioners relied upon a decision of Division Bench of this High Court reported as Engineering Mazdoor Sabha, Bombay v. Meher and Others : (1966)ILLJ580Bom . By his order dated March 27, 1978, the respondent No. 1 held that Mr. Pai being a practicing advocate, could not represent the petitioners and that the very fact that the Secretary of respondents No. 2 had made the said review application dated February 13, 1978, showed that the 2nd respondents were not prepared to give their consent to the appearance of Mr. Pai. The respondent No. 1 accordingly allowed the said Review application and passed and order that Mr. Pai be not allowed to appear on behalf of the petitioners in the matter of the reference before him. It is this order which is being impugned by this writ petition. By an application dated April 6, 1978, made by the petitioners, the petitioners sought a review of the said order dated March 27, 1978, on the ground that the Labour Court had not jurisdiction to review an order previously passed by it. The respondents No. 2 filed their reply to the said petition and after hearing both parties, the respondent No. 1 held that the Labour Court had no jurisdiction to review an order, and for the said reason, it could not entertain the petition for review made by the petitioners, and accordingly, it dismissed the said application for review made by the petitioners. This order led to the situation that as held by respondent No. 1, as the Labour Court had no jurisdiction to review an order passed by it, the said order dated March 27, 1978, which also was an order made on a review petition, would be without jurisdiction. Nonetheless, respondent No. 1 allowed that order to stand instead of proceeding upon the basis that that order was without jurisdiction, and therefore the order dated November 9, 1977, which was the earlier order permitting Mr. Pai to appear prevailed.

3. At the hearing of this writ petition. Mr. Sawant, learned advocate for the petitioners submitted that the consent of the other party being represented in an industrial dispute by a legal practitioner as also the leave of the Labour Court thereto need not be express, but may be implied from the facts and circumstances of a particular case. Mr. Sawant further submitted that the right of review is a statutory right, and is not one of the inherent rights possessed by a Tribunal; the Industrial Disputes Act, 1947, does not confer any such right upon a Labour Court, and, therefore, respondent No. 1 had no jurisdiction to review his earlier order dated November 9, 1977 by its order dated March 27, 1978. Mr. Shetye, learned advocate for respondents Nos. 2 and 3, on the other hand contended that the facts and circumstances of this case clearly showed that respondents No. 2 had not given their consent to the petitioners being represented by a legal practitioner. Mr. Shetye submitted that under the relevant provisions of the Industrial Disputes Act, there cannot be ny implied consent to the other side being represented by a legal practitioner. In the alternative, Mr. Shetye submitted that the facts and circumstances of this case did not show that respondents No. 2 had impliedly consented to the petitioners being represented by an advocate. Mr. Shetye further submitted that though, unless statutorily empowered, a Tribunal has no jurisdiction to review an order on merits it has inherent or implied power to set aside a palpably erroneous order passed by it under a misapprehension. In Mr. Shetye's submission the order of November 9, 1977 was palpably erroneous and passed by respondent No. 1 under a misapprehension as to what the correct law was.

4. Before I deal with the arguments advanced at the Bar, it will be convenient to refer to the relevant statutory provisions. Section 36 of the Industrial Disputes Act deals with the topic of representation of parties. Sub-s. (1) provides for those persons who can represent a workman who is a party to a dispute while sub-s. (2) sets out the persons by whom an employer may be represented. Neither sub-s. (1) nor sub-s. (2) make any mention of a legal practitioner legal practitioners are the subject matter of sub-s. (3) and (4) of section 36, which sub-s. provides as follows :

'36. Representation of parties. -

* * *(3) No party to 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 party to a dispute may be represented by a legal practitioner with the consent of the other parties to the proceedings and with the leave of the Labour Court. Tribunal or National Tribunal, as the case may be'

It will be thus seen that legal practitioners have no right to appear in any conciliation proceedings under the said Act or in any proceeding before a Court, which expressions is defined by cl. (f) of S. 2 as a Court of Enquiry constituted under the said Act. Further in any proceeding before a Labour Court or a Tribunal or a National Tribunal, a party to a dispute can be represented by a legal practitioner provided two conditions are fulfilled, namely, the consent of the other party to such proceeding is given thereto and the leave of the Labour Court or the Tribunal or the National Court. As the case may be, is granted to such appearance. Neither the said Act not any of the rules made thereunder provide for the form or the manner in which the consent of the other party is to be given. Normally, any leave granted by a Court or a Tribunal would be in writing. Similarly, in ordinary cases, the consent of the other party would also be given in writing. But the question is whether from this does it follow that the consent of the other side or the leave of the Court must always be in writing. Sub-section (4) of S. 36 does not contain any such requirement, and, therefore, it cannot be held that implied consent is negatived by the statue. The case of Engineering Mazdoor Sabha, Bombay v. Meher and others (supra) is a direct authority for the proposition that the consent of the other side can be implied from the facts and circumstances of the case. This was a decision of a Division Bench of this High Court, and therefore, binding upon me. While we turn to the facts of that case, we find that the facts of the present case are much stronger than the facts before the Division Bench. In that case, an application for interim bonus had been made by the Union. On September 12, 1963, advocate Mr. Phadke appeared for the employers and one Joshi. General Secretary of the Engineering Mazdoor Sabha, Bombay. Appeared for the union and prayered for an adjournment since one Mr. Mehta who appeared for the union was out of Bombay. Mr. Phadke had no objection to the adjournment being granted, and the matter was thereupon adjourned to September 21, 1963. On that day, an objection was raised to the appearance of Mr. Phadke. The Tribunal held that the objection ought to have been taken at the first hearing of the matter, and it was too late to take such an objection subsequently. The union filed a writ petition quash that order. The writ petition was dismissed, the High Court holding that even though the union had not given its express consent to the appearance of Mr. Phadke, the union must be held to have given its consent by not objecting to the appearance of Mr. Phadke on September 2, 1963, and that thereafter it was not open to the union to object to his appearance. Turning not to that of our own case, here we have not merely an application for an adjournment made by the representative of the union which was not objected to by the other side, but here we have a case where the union representative approaches the advocate for the petitioner company and obtains his consent to the adjournment in writing at the foot of the application for adjournment. The consent was given by Mr. Pai in express terms as advocate for the petitioner company. It is obvious that no advocate can give his consent to the adjournment of a matter unless he is representing in Court the party on whose behalf he is consenting. Such representation for party can only by a Vakalatnama on behalf of that party filed by that advocate in Court. Strangely enough, when we turn to the affidavit in reply filed by the said Krishnan, we find in paragraph 6 of that affidavit that he has gone to the length of averring that in October 11, 1977, Pai was present in Court on behalf of the Petitioners, but had not disclosed that he was an advocate and that he had not filed on that day is Vakalatnama in the Labour Court, and that without filing his Vakalatnama on behalf of the petitioners, the said Pai was present in Court and had made an endorsement to the effect that there was no objection to the adjournment being granted to the respondent No. 2, and has signed the said endorsement. In making this statements on oath, what the said Krishnan has overlooked is that the consent which was endorsed by Mr. Pai at the foot of the said application is as the advocate for the petitioner company and which anybody could plainly read. He has also not denied in the said paragraph that it was the 2nd respondent union which approached Mr. Pai to obtain this consent for the adjournment. The said Krishnan could not be unaware of the position that no advocate would have authority to consent to an adjournment in a Court or a Tribunal unless he had field in that Court or Tribunal his authority to represent his client which could only be by filing his Vakalatnama. The proceedings that have taken place subsequent to October 11, 1977, clearly show that after obtaining the consent of Mr. Pai as an advocate for the petitioners, and thereby obtaining from the Labour Court an adjournment of the hearing and time to file the statement of claim, the 2nd respondent union has turned round and his dishonestly sought to object to Mr. Pai's appearance. These are tactics which no Court or Tribunal should ever countenance. By approaching Mr. Pai and obtaining his consent as the advocate for the petitioner company, the 2nd respondent union and the 3rd respondent who is represented by it have both obtained the benefit of an adjournment and time for filing the statement of claim. They have led and induced the petitioners and Mr. Pai to believe that the 2nd respondent union had consented to the petitioners being represented by a legal practioner. They have equally induced such a belief in the Labour Court, which in view of this consent on the part of 2nd respondent permitting Mr. Pai to appear. Having done so, the respondents Nos. 2 and 3 only must be held to have given their consent to the appearance of Mr. Pai, but must be held estopped from contending that they had not given their consent or from objecting to the appearance of Mr. Pai on behalf of the petitioners. I, may point out that in the affidavit in rejoinder made by Sudhir Shah, a Director of the petitioner company it is stated that the said Shah had personally taken inspection of the records of the Labour Court on December 2, 1981, and had himself seen that the Vakalatnama was filed on October 11, 1977, by Mr. Pai. Mr. Sawant, learned Advocate, for the petitioners had accompanied the said Shah and has made a statement at the Bar that he himself had personally seen verified that the Vakalatnama of Mr. Pai was filed before the Labour Court on October 11, 1977. So much for the veracity of the said Krishnan when he says that when Mr. Pai gave his consent, he had not filed his Vakalatnama. Mr. Shetye, learned advocate, for respondents Nos. 2 and 3 strongly relied upon a decision of the Supreme Court in the case of Paradip Port Trust v. Their workmen (supra). I fail to see what relevance that decision has to the point which has arisen for the determination before me. The question in that case was whether a practicing lawyer who was also in the employ of a company as a legal consultant could appear for the company under S. 36(2) of the Industrial Disputes Act. It was also sought to be argued before the Supreme Court that under S. 30 of the Advocates Act, 1961, every advocate was 'as of right' entitled to practice before all Courts and before any Tribunal. The Supreme Court held that if a party desires to be represented by a legal practitioner in any proceeding under the Industrial Disputes Act, such party will have to obtain both the consent of the opposite party and the leave of the Tribunal. The Supreme Court has nowhere observed in that judgment how such a consent is to be obtained or given. The question of consent being implied from the facts and circumstances of the case, was never before the Supreme Court. This decision, therefore, cannot in any way help respondents Nos. 2 and 3. Mr. Shetye next relied upon an unreported decision of my brother Shah in Miscellaneous Petition No. 2419 of 1979 M/s. KIV Group Industries v. H. H. Kantharia and another, decided on 14th/15th February 1980. This decision, to my mind, does not also in any way help Respondents Nos. 2 and 3. It does not lay down that there cannot be an implied consent to the opposite side being represented by a legal practitioner. What was held in that case was that on the fact and circumstances of that case, implied consent could not inferred. The facts in that case where at the very outset when the statement of claim was lodged by the union, it had set out in writing in its covering letter its objection to the employer being represented by a legal practitioner. When the statement of claim was filed along with this covering letter, the employer had not even filed its appearance. The employer did not remain present in Court for several hearings until April 7, 1978. On that day, for the first time, an advocate appear on behalf of the employer and filed his authority and the appearance was promptly objected to by one Krishnan who is the same Krishnan as in the present case. This objection was not decided by the Industrial Tribunal, but was allowed to remain pending, and accordingly when the matter appeared form time to time it was adjourned and the advocate in question continued to represent the employer. On the basis of this, it was sought to be argued that the Union has given its implied consent to the appearance of the said advocate. The learned Judge pointed out that on the contrary the Union had right from the very beginning before even the employer had appeared set out in writing its objection to the employer being represented by a legal practitioner, and that on the very first day that the employer sought to be represented by a legal practitioner, the Secretary of the Union had not promptly objected, and that his objection had remained undecided. The said advocate was permitted to appear when the matter was being adjourned from time to time. Unlike the promptitude shown by it in the case before my brother Shah, here the 2nd respondent union on the very first occasion when the petitioners were represented by a legal practitioner as an advocate for the petitioner, obtained his consent, to an adjournment as an advocate for the petitioner and secured time for themselves to file the statement of claim, and it was only when that statement of claim was ready and being sent for being filed that for the first time they recorded their objection any advocate appearing for the petitioners.

5. In the view I take of the matter, it would be unnecessary for me to express any opinion on whether in a case such as this the Labour Court would have power to review is order. Since, however, the point has been argued before me, I propose to deal with it briefly. Mr. Sawant on behalf of the Petitioners relied upon a decision of a learned single Judge of the Madras High Court in the case of Management Kammavar Achukudam Ltd and others v. The Industrial Tribunal, Madras and another : (1959)ILLJ395Mad . In that case, it was held that an Industrial Tribunal is creature of statute and it has no powers except those which can be traced to the statute. It was further held that in this respect it differs from Courts for in the case of Civil Courts their inherent powers are expressly saved by S. 151 of the Code of Civil Procedure, but as no such a provision exists in the statute setting up Industrial Tribunals, these Tribunals have no such a inherent powers. It is true that the Industrial Disputes Act does not contain any provision conferring power upon a Labour Court to review an order passed by it earlier. From this does it follow that in no circumstances can the Labour Court review its own order The correct position would be as laid down by the Supreme Court in the case of Grindlays Bank Ltd. v. Central Government Industrial Tribunal and other 1981 I L.L.J. 32. In that case the Supreme Court held that the expression 'review' is used in two distinct senses namely, (1) a procedural review which is either inherent or implied in Court or Tribunal to set aside a palpably erroneous order passed under misapprehension by it, and (2) a review on merits when the error sought to be corrected to be is one of law and is apparent on the face of the record and that it is in the second case that no review lies on merits unless a statute specifically provides for it. The Supreme Court further held that when a review is sought due to a procedural defect, the inadvertent error committed by the Tribunal must be corrected ex debito Justitiae in order to prevent abuse of process and such a power inheres in every Court or Tribunal. In my opinion, had the order passed by the Tribunal on November, 9, 1977, were a wrong order and such an order was sought to be reviewed, the case would fall under the first category and the review application would be competent. The said order, however, being one rightly passed, and in my opinion, the only one which the respondent No. 1 could have passed in the facts and circumstances of the case, the question of reviewing it did not arise and the impugned order of the respondent No. 1 on the said review application is contrary to law and not sustainable on the facts of the case, and must, therefore, be set aside.

6. In the result, I allow the Petition and make the Rule absolute. Respondent No. 2 will pay to the petitioners the costs of the petition. There will be no order as the costs of respondents No. 1 and 3.


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