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The Management of Khanna Industrialtrading Corporation, Delhi-51 Vs. Its Workmen and ors. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtDelhi High Court
Decided On
Case NumberCivil Writ Petition No. 1323 of 1971
Judge
Reported in8(1972)DLT446; (1972)IILLJ429Del
ActsConstitution of India - Article 226
AppellantThe Management of Khanna Industrialtrading Corporation, Delhi-51
Respondentits Workmen and ors.
Advocates: L.K. Gaur and; D.K. Aggarwal, Advs
Excerpt:
- .....practicing advocate. the tribunal by the impugned order dated 21st august, 1971 has held that mr. rastogi appeared only once i. e. on 25th junuary, 1971 and that as there was no letter of authority it was possible that the workmen did not know that mr. rastogi was an advocate and as such no consent implied or otherwise can be presumed and' thereforee mr. rastogi was not allowed to appear. it is against this order that the present writ petition has been filed. (2) section 36 of the act provides for the representation of the parties. sub-section (4) of section 36 of the act provides that in any proceedings before the tribunal a 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. mr......
Judgment:

Sachar, J.

(1) An industrial dispute between the management and the workmen being reference No. 67 of 1969 was referred to and is pending since 1969 before the Additional Industrial Tribunal, respondent No. 2. up to the month of January, 1971 the management was represented by Mr. R.K. Bhaskar. On 25th January, 1971 Mr. K.B. Rastogi, Advocate appeared on behalf of the management when some evidence was taken. On the next dates which were 8th February, 1971, 17th February, 1972 and 2nd March, 1971. Mr. Rastogi was ill and applied for adjournment signing himself as representative for the management. After further hearings the matter again came up for hearing on 6th April, 1971. On that day adjournment was sought from respondent No. 2 on the ground that Mr. Rastogi was engaged in the High Court. The adjournment was opposed by the Union but the Tribunal adjourned the matter to 7th June, 1971 on payment of costs. Mr. Rastogi however, did not appear on 7th June, 1971. On the next hearing i.e. 31st July, 1971 when Mr. Rastogi is reported to have appsared, an objection was taken by the workmen that as Mr. Rastogi is an Advocate and he had not filed any letter of authorisation, thereforee, the workman did not know that he was an advocate and could not object earlier to his appearance. A written application was also filed as directed by the Tribunal on 7th August, 1971 in which the workmen objected to the appsarance of Mr. Rastogi under section 36 of the Industrial Disputes Act (hereinafter called the Act, and requested that he should not be allowed to appear as he is a practicing advocate. The Tribunal by the impugned order dated 21st August, 1971 has held that Mr. Rastogi appeared only once i. e. on 25th Junuary, 1971 and that as there was no letter of authority it was possible that the workmen did not know that Mr. Rastogi was an advocate and as such no consent implied or otherwise can be presumed and' thereforee Mr. Rastogi was not allowed to appear. It is against this order that the present writ petition has been filed.

(2) Section 36 of the Act provides for the representation of the parties. Sub-Section (4) of section 36 of the Act provides that in any proceedings before the Tribunal a 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. Mr. Rastogi is undoubtedly a practicing lawyer and thereforee he could only appear if the consent of the workmen was given to his appearance. It Is not disputed that there is no specific consent given by the workmen to the appearance of Mr. Rastogi. It is however pleaded that the consent of the workmen was implied as Mr. Rastogi undoubtedly appeared on 25th January, 1971 and no objection was taken by the workmen on that date. I do not find any merit in this contention. A copy of the relevant proceedings before the Tribunal has been filed as annexure 'A' to the petition. A referance to it shows that Mr. Rastogi appeared on 25th January, 1971. It is accepted that no letter of authority was filed on behalf of the management by Mr. Rastogi and this is also clear from the letter of authorisation which was filed as late as 18th August, 1971 and has been filed as annexure 'F' to the petition by which the petitioner management authorised Mr. Rastogi to represent the management. It is true that en 26th April, 1971 when a request was made to the Tribunal thet the matter be adjourned as Mr. Rastogi was engaged in the High Court the workmen must be said to have become aware that Mr. Rastogi was an advocate. The implied consent thereforee of the workmen lo Mr. Rastogi's appearance could only be established if it can be shown 'hat after that Mr. Rastogi appeared for the management without objection having been taken by the workmen. On next date after April i. e. 7th June, 1971, Mr. Rastogi was not shown to have appeared and thereforee no objection could have been taken by the workmen. On 31st July, 1971 when Mr Rastogi appeared for the management the proceedings shows that the workmen raised an objection to the appearance of Mr. Rastogi there and then. In that view it cannot be said that the workmen gave their implied consent to the appearance of Mr. Rastogi. Mr. Gaur, learned counsel for the petitioner contended that the workmen must be presumed to know that Mr. Rastogi was an advocate from 5th January, 1971 and they must be deemed to have given their consent. I am afraid it is not possible to accent this contention which is not supported by record. The presence of Mr. Rastogi does not show him to have been marked as an Advocate. On the contrary the application filed by Mr. Rustogi before the Tribunal does show that he had not signed it as an Advocate. No letter of authority has been filed on behalf of the management which would show that he was an advocate and from which the workmen could have known that Mr. Rastogi was appearing as an advocate on behalf of the management on 25th January 1971. It is only in April, 1971 that the workmen came to know that Mr. Rastogi was an advocate and objection was taken to Mr. Rastogi's appearance when he appeared on 31st July, 1971. I was referred to Reckitt and Colman of India Ltd. and others v. Jitendra Nath Mitra and others'. In that case, however, the management had informed the Tribunal at the out set of its Intention to be represented by a lawyer. There was no objection at the commencement of the hearing when the lawyer appeared and the case opened without objection. It was only at a subsequent stage that the Union objected to the appearance of a lawyer. It was in these circumstances that it was held that the workmen must he deemed to have given their consent and could not be allowed to revoke it at a subsequent stage.

(3) Reference was also made to Engineering Mazdoor Sadha, Bombay v.Meher (M.R) industrial Tribunal. Bombay and others'. In that case an advocate appeared before the Tribunal and an adjournment was sought on behalf of the union. No objection was raised at that time. It was on the subsequent date that an objection to the advocate's appearance was raised, it was in these circumstances that it was held that as no objection was railed, the Union must be held to have given consent impliedly by not objecting to the appearance of the advocate. That case proceeded on the footing that the union knew that the representative appearing on behalf of the management was an advocate and there does not seem to have been any dispute that the workmen did not know that an advocate was appearing. In the present writ petition the case of the workmen is that there was no letter of authority and Mr. Rastogi had no where indicated that he was an advocate and as such the workmen did not know that an advocate was apnearing for the management and there was thereforee no question of their objecting to his appearance earlier than when they did which was immediately after they came to know that Mr. Rastogi was an advodate. It was in these circumstance that the Labour Court has held that no consent can be implied or presumed. This is a finding of fact given after consideration of the relevant circumstances. This court under Article 226 of the Constitution is not sitting as a court of appeal over the interim order passed by the Tribunal. If the Labour Court has on consideration of various circumstances come to conclusion of fact that no consent can be implied or presumed, it is not for this court to interfere under its extraordinary power of Article 226 of the Constitution. I do not find that any patent illegality has occurred in the passing of the order by the Labour Court dated 21st August, 1971 which calls for interference. There is thus no merit in the writ petition and the same idismissed with costs. Counsel fee Rs. 150.00.


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