Abbott Healthcare Pvt. Ltd. vs Vimal Raghuvanshi

The petitioner before this Court, Abbott Healthcare Pvt. Ltd. is a Company registered under the Companies Act, has filed present petition being

aggrieved by order dated 05/05/2018 passed in Case No.149/IDR/17 by the Presiding Officer, Labour Court, Indore by which the application

submitted by the petitioner under Section 36(2) of the Industrial Disputes Act, 1947 has been disallowed, meaning thereby, the representation of the

petitioner through Officer Bearer of Employers' Federation of India has been disallowed.

02- The petitioner has stated that in light of the provision as contained under Section 36(2), an Officer of an Association of Employers or an Officer of

a Federation or Association of Employer can be permitted to appear on behalf of the employer and therefore, the Labour Court has erred in law and

facts in rejecting the application filed by the present petitioner.

03- Heavy reliance has been placed upon a judgment delivered in the case of Paradip Port Trust Vs. Their Workmen reported in (1977) 2 SCC 339 by

the petitioner.

04- On the other hand the respondent, who is appearing himself has argued before this Court that the judgment delivered in the case of Paradip Port

Trust (Supra) in fact helps him and a legal practitioner, who is not an officer of the Company or is not on the payroll of the Company and who is a

practicing advocate cannot be permitted to appear on behalf of the employer.

05- Heard both the parties and perused the record.

06- Section 36 of the Industrial Disputes Act, 1947 reads as under:-

“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 office bearer] of a registered trade union of which he is a member:

(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 authorized in such manner as may be prescribed.

(2) An employer who is a party to a dispute shall be entitledto 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 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 authorized in such manner as may be prescribed.

(3) No party to a dispute shall be entitled to be representedby 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 orNational 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].]

07- Section 36 of the Industrial Disputes Act, 1947 has been considered by the Hon'ble Supreme Court in the case of Paradip Port Trust (supra) and

paragraph No.15 of the aforesaid judgment reads as under:-

“15.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 above 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 of the union in the case of workmen and not in the capacity of a legal practitioner. The

fact that a person is a legal practitioner will not affect the position if the qualifications specified in section 36(1)and section 36(2)are fulfilled by him.â€​

08- In the present case, the person whose engagement was sought is undisputedly an advocate. He is not an employee of the Company nor in the

payroll of the Company and merely because Shri Bharat Goyal is an Honorary Executive Member of the Employer Federation of India, cannot be

permitted to appear on behalf of the employer. The Labour Court has taken into account the judgment delivered by the apex Court and has rightly

arrived at a conclusion that the person who has been named by the petitioner is an advocate and he cannot be allowed to appear on behalf of the

petitioner in light of the aforesaid Supreme Court's judgment. 09- The another important aspect of the case is that the workman himself has appeared

before the Labour Court and therefore, in the considered opinion of this Court, no case for interference is made out in the matter, especially in a

petition under Article 227 of the Constitution of India. The order passed by the Labour Court can never said to be a perverse order not it has been

passed without jurisdiction.

10- This Court is of the considered opinion that in case the plea canvased by the learned counsel for the petitioner is accepted, than all Companies /

employers shall be appointing the legal practitioners on honorary basis to circumvent the statutory provision as contained under Section 36 of the

Industrial Disputes Act, 1947 and therefore, this Court does not find any reason to interfere with the order passed by respondents.

11- The apex court in the case of Shalini Shyam Shetty Vs. Rajendra Shankar Patilreported in 2010 (8) SCC 329in paragraph 49 held as under:-

49.  On an analysis of the aforesaid decisions of this Court, the following principles on the exercise of High Court's jurisdiction under Article 227

of the Constitution may be formulated:

(a) A petition under Article 226 of the Constitution is different from a petition under Article 227. The mode of exercise of power by High Court under

these two Articles is also different.

(b) In any event, a petition under Article 227 cannot be called a writ petition. The history of the conferment of writ jurisdiction on High Courts is

substantially different from the history of conferment of the power of Superintendence on the High Courts under Article 227 and have been discussed

above.

(c) High Courts cannot, on the drop of a hat, in exercise of its power of superintendence under Article 227 of the Constitution, interfere with the

orders of tribunals or Courts inferior to it. Nor can it, in exercise of this power, act as a Court of appeal over the orders of Court or tribunal

subordinate to it. In cases where an alternative statutory mode of redressal has been provided, that would also operate as a restrain on the exercise of

this power by the High Court.

(d) The parameters of interference by High Courts in exercise ofits power of superintendence have been repeatedly laid down by this Court. In this

regard the High Court must be guided by the principles laid down by the Constitution Bench of this Court in Waryam Singh (supra) and the principles

in Waryam Singh (supra) have been repeatedly followed by subsequent Constitution Benches and various other decisions of this Court.

(e) According to the ratio in Waryam Singh (supra), followed insubsequent cases, the High Court in exercise of its jurisdiction of superintendence can

interfere in order only to keep the tribunals and Courts subordinate to it, 'within the bounds of their authority'.

(f) In order to ensure that law is followed by such tribunals and Courts by exercising jurisdiction which is vested in them and by not declining to

exercise the jurisdiction which is vested in them.

(g) Apart from the situations pointed in (e) and (f), High Court can interfere in exercise of its power of superintendence when there has been a patent

perversity in the orders of tribunals and Courts subordinate to it or where there has been a gross and manifest failure of justice or the basic principles

of natural justice have been flouted.

(h) In exercise of its power of superintendence High Court cannot interfere to correct mere errors of law or fact or just because another view than

the one taken by the tribunals or Courts subordinate to it, is a possible view. In other words the jurisdiction has to be very sparingly exercised.

(i) High Court's power of superintendence under Article 227 cannotbe curtailed by any statute. It has been declared a part of the basic structure of

the Constitution by the Constitution Bench of this Court in the case of L. Chandra Kumar vs. Union of India & others, reported in (1997) 3 SCC 261

and therefore abridgement by a Constitutional amendment is also very doubtful.

(j) It may be true that a statutory amendment of a rather cognate provision, like Section 115 of the Civil Procedure Code by the Civil Procedure Code

(Amendment) Act, 1999 does not and cannot cut down the ambit of High Court's power under Article 227. At the same time, it must be remembered

that such statutory amendment does not correspondingly expand the High Court's jurisdiction of superintendence under Article 227.

(k) The power is discretionary and has to be exercised onequitable principle. In an appropriate case, the power can be exercised suo motu.

(l) On a proper appreciation of the wide and unfettered power ofthe High Court under Article 227, it transpires that the main object of this Article is to

keep strict administrative and judicial control by the High Court on the administration of justice within its territory.

(m) The object of superintendence, both administrative and judicial, is to maintain efficiency, smooth and orderly functioning of the entire machinery of

justice in such a way as it does not bring it into any disrepute. The power of interference under this Article is to be kept to the minimum to ensure that

the wheel of justice does not come to a halt and the fountain of justice remains pure and unpolluted in order to maintain public confidence in the

functioning of the tribunals and Courts subordinate to High Court.

(n) This reserve and exceptional power of judicial intervention is not to be exercised just for grant of relief in individual cases but should be directed

for promotion of public confidence in the administration of justice in the larger public interest whereas Article 226 is meant for protection of individual

grievance. Therefore, the power under Article 227 may be unfettered but its exercise is subject to high degree of judicial discipline pointed out above.

(o) An improper and a frequent exercise of this power will be counter-productive and will divest this extraordinary power of its strength and vitality.

12- In light of the aforesaid judgment as no patent illegality has been committed by the Labour Court and the order passed by the Labour Court does

not suffer from any jurisdictional error, this court does not find any reason to interfere with the order dated 05/05/2018.

 No order as to costs. Certified copy as per rules.