P. Adinarayan Reddy Vs. Presiding Officer, Industrial Tribunal and ors. - Court Judgment

Excerpt:
- motor vehicles act, 1988 [c.a. no. 59/1988]section 173(1) proviso; [d. biswas, amitava roy & i.a.ansari, jj] appeal without statutory deposit but within limitation/or extended period of limitation maintainability - held, if the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. the provision of sub-section (1) of section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. the period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. it, therefore, appears that an appeal filed under section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the court has the discretion either to grant time to make the deposit or not. no formal order condoning the delay is necessary, an order of adjournment would suffice. the provisions of limitation embodied in the substantive provision of the sub-section (1) of section 173 of the act does not extend to the provision relating to the deposit of statutory amount as embodies in the first proviso. therefore an appeal filed within the period of limitation or within the extended period of limitation, cannot be admitted for hearing on merit unless the statutory deposit is made either with the memo of appeal or on such date as may be permitted by the court. no specific order condoning any delay for the purpose of deposit under first proviso to sub-section (1) of section 173 is necessary. [new india assurance co. ltd. v md. makubur rahman, 1993 (2) glr 430 and new india assurance co. ltd. v smt rita devi, 1997(2) glt 406, approved. new india assurance co. ltd. v birendra mohan de, 1995 (2) gau lt 218 (db) and union of india v smt gita banik, 1996 (2) glt 246, are not good law]. - the petitioner pleaded that his cause was not espoused by the union and hence he was not able to properly conduct his case and thus needed the assistance of shri padhi badly and also pleaded that shri padhi, who is not a legal practitioner, had earlier represented workmen before the tribunal in i. (e) to read an intention of the legislature to make the provision of sub-section (2) exhaustive would mean that the intention 20 of the legislature was capable of being easily defeated in a large variety of cases since construing the provision to be so, an employer who is a company would have no right to be represented by one of its officers or directors in their capacity as such, but if such officer or director is an officer of an association of employers of which the company as a member is affiliated, it can be represented by them. 5. the decision of the bombay high court was expressly approved by the supreme court in 1976 (2) llj 409 ;1976 lic 1770 (supra) laying down that the provision of section 36(2) of the act are not exhaustive though legal practitioners have no unrestricted right to appear in proceedings under the act in view of the provisions of sections 36 (3) and 36(4) and that they may appear only if two conditions are satisfied; it would be perfectly possible for such persons to decline to appear on behalf of the workman and since the appearance of a legal practitioner is not a matter of right being subject to the provisions of sub-sections (3) and (4), a workman, if he is otherwise illiterate or unacquainted in the matter of conducting of proceedings, would be faced with real difficulty and would be in a position of utter disadvantage to participate in the proceeding. even while the workman may be a member of any trade union, yet for some reason it may be his apprehension that the office bearers or the members of the executive of the union or the office bearers of the federation of trade unions to which his own union is affiliated would not pursue his cause with verve and requisite zeal because of various reasons like conflicting claims of workmen, the stand taken by the union vis-a-vis such conflicting claims, or for any other reason and in such cases if the right of the workman is taken to be confined to be represented only by the persons named in the different clauses of section 36(1), there would be in effect denial of natural justice to the workman. 8. this is however not to say that tribunal would have unrestricted power of allowing representation of parties by legal practitioners unless the requirements of sub-sections (3) and (4) of section 36 are satisfied.l. rath, j.1. the sole question arising for consideration in this case is regarding the scope of section 36(1) of the industrial disputes act, 1947 (referred to hereinafter as the act') as regards the right of a workman to be represented by person not covered by the different clauses of the section. the facts in brief are that the petitioner was a conductor under the orissa road transport company, berhampur. it is his case that his services were terminated by the traffic manager by an oral order on account of allegations against him of having carried passengers beyond the capacity of the bus. an industrial dispute having been raised, it was referred to the industrial tribunal for adjudication where the case was registered made an application to be represented by an assistant engineer, one u.c. pandhi of berhampur, he being illiterate and unable to conduct his case and having executed a power of attorney in favour of shri padhi. the petitioner pleaded that his cause was not espoused by the union and hence he was not able to properly conduct his case and thus needed the assistance of shri padhi badly and also pleaded that shri padhi, who is not a legal practitioner, had earlier represented workmen before the tribunal in i.d. misc. case no. 5177. the petition of the petitioner was rejected by the tribunal holding that no person who is not covered under clauses (a), (b) and (c) of section 36(1) can represent a workman in a proceeding before the tribunal since the provisions of the section are exhaustive in character.2. shri p. v. ramdas, learned counsel for the petitioner, has urged in assailing the order of the tribunal that the provisions of section 36(1) are not exhaustive and that while it is the right of a workman to be represented by a person named in different clauses of sub-section (1), it is within the discretion of the tribunal to allow other categories of persons to represent the workman considering the circumstances of each case. in support of such submission, he has placed reliance on k.k. khadilkar v. indian hume pipe & co. ltd. bombay air 1967 bombay 521, paradip port trust v. their workmen 1976 (2) llj 409.3. while air 1977 sc 36: is a decision mainly dealing with the right of advocates to appear before the industrial tribunals in the proceedings under the act, the bombay decision, which has also been approved by the same decision of the supreme court, is rather more apt to the question falling for decision in this case. the decision deals exhaustively with interpretation of the provisions of section 36(2) of the act which deals with the right of the employers to be represented in the proceedings under the act. the case noticed similarity between the provisions of sections 36 (1) and 36(2) as also their differences and on a detailed analysis reached the conclusion of clauses (a), (b) and (c) of section 36(2) being not exhaustive in character, i.e. the modes of representation of the employers before the tribunal being not absolutely limited to the persons enumerated in these clauses but as extending to other persons also. in considering the question that arises for consideration in the present case, it is worth-while to notice, so far as relevant to the present case, the different conclusions reached by justice chandrachud, as he then was, delivering the decision in the case. they are:-(a)the language used in section 36 is not the language which is ordinarily used in expressing a restriction on a right, but the language is one by which a right is extended or a particular person is enabled to act in a particular manner. thus the opening words of the two sub-sections of section 36 being that either the workmen or an employer being 'entitled to be represented', the words do not convey a restriction on the right of representation as confined to the circumstances enumerated in the provision. the words do not indicate an exclusion of all other modes of representation and if such was the legislative intention, it could have been expressed more suitably by expressly providing that a workman or an employer would be entitled to be represented in the proceedings by the persons mentioned in the respective clauses (a), (b) and (c) and by no one else or by deleting the words 'to be entitled to' in the opening words of section 36(1) and section 36(2). it is however possible for the legislature or the rules dealing with the proceedings to provide complete exclusion of a particular method of representation before a court or tribunal in which event the right of representation in that particular manner shall be taken to have been taken away, but where there is no such exclusion, the employer would have the right to be represented in a manner other than those specified in clauses (a), (b) and (c) of section 36(2). (b) quite obviously section 36(2) does not exhaust all the categories of representation since an employer is unquestionably entitled to appear in person in a proceeding if he has a physical personality. yet such an inalienable right of the employer is not include in either of the clause (a), (b)) or (c) of sub-section (2) and because of that such classes must be held to be not exhaustive as regards the manner in which the employer can be represented in the proceeding under the act. to hold otherwise would mean on the one hand that while the legislature intended clauses (a), (b) and (c) of sub-section (2) to be exhaustive yet it did not consider inclusion of the important right of a litigant to appear in person in the provisions, and on the other hand an in- variable inference must be made that when the legislature provides that a person shall he entitled to be represented in a particular manner, the court must assume that the intention of the legislature was to exhaust all categories of representation. such considerations which apply to section 36(2) equally apply to section 36(1) since the words of the two sub-sections are identical. it would be wrong to construe the sub-sections so as to lead to the result that a valuable right of a workman or the employer to be represented is excluded and therefore it would not be proper to hold that the provisions of sub-section (2) are restrictive. (c) the different clauses of sub-section (2) do not create any obligation on the persons mentioned therein to appear for a particular employer. the officer of an association of employers of which the employer is a member or an officer of a federation of associations of employers to which the association of employers is affiliated may decline to appear for a particular employer. (d) it is difficult to appreciate any logic as to why the intention of the legislature would be taken to make the provision of sub-section (2) to be exhaustive. the sub-section undoubtedly confers a right on the employer to be represented in a proceeding by an agent. if representation through an agent is permissible, there would he no reason for restricting the employer's choice of an agent. the real reason why the three categories are specifically mentioned in sub-section (2) is that the legislature wanted to confer an unqualified right on an employer to be represented by a class of persons mentioned in the three sub-clauses. section 11 of the act authorises the tribunal to follow such procedure as it thinks fit and such power includes the right to determine the mode of representation which a party before it may adopt. thus, while undoubtedly the tribunal has a right to regulate its procedure including the mode of representation before it, yet the employer has an unrestricted right under the sub-section to be represented by a person mentioned in those clauses and where the employer desires to be represented by any one belonging to such categories, the tribunal would have no right to refuse such request. thus, the different sub-clauses only confer a right on the employer to be represented by person of those categories but do not restrict his right of representation only to the classes enumerated. (e) to read an intention of the legislature to make the provision of sub-section (2) exhaustive would mean that the intention 20 of the legislature was capable of being easily defeated in a large variety of cases since construing the provision to be so, an employer who is a company would have no right to be represented by one of its officers or directors in their capacity as such, but if such officer or director is an officer of an association of employers of which the company as a member is affiliated, it can be represented by them. 4. for such reasons conclusion was reached that the only reasonable construction of section 36(2) is that the clauses (a), (b) and (c) are not exhaustive of the right of an employer to be represented in a proceeding but are devised merely to create an unqualified right in an employer to be represented by some classes of person but they do not take away his right to be represented in any other lawful manner.5. the decision of the bombay high court was expressly approved by the supreme court in 1976 (2) llj 409 ; 1976 lic 1770 (supra) laying down that the provision of section 36(2) of the act are not exhaustive though legal practitioners have no unrestricted right to appear in proceedings under the act in view of the provisions of sections 36 (3) and 36(4) and that they may appear only if two conditions are satisfied; firstly that the consent of the other party to the proceeding is obtained and secondly, the labour court, the tribunal or the national tribunal, as the case may be, grant leave for such appearance.6. the analysis made by justice chandrachud with reference to section 36(2) of the act, so far as relevant and extracted above, would substantially apply to interpretation of section 36(1), a fact which was also noticed in the decision itself. the opening words of section 36(1) are identical to section 36(2) and hence the interpretation of the provision as conferring only uninhibited right of representation by particular modes, but not as sealing the right of representations by other manners to be considered by the tribunal, is more acceptable as logical. if on the contrary, the provisions of the different clauses of section 36(1) are taken as exhaustive, it would obviously exclude the right of the workmen, where the dispute is individual to him, to appear to the proceeding himself, a situation which could not have been intended by the legislature for both the reasons as are noticed in para 3(b) above. again section 36(1) while providing that a workman is entitled to be represented by persons falling in any of the clauses (a), (b) and (c) of sub-section (1), yet does not cast any obligation on such persons to defend the cause of the workmen in the proceeding. it would be perfectly possible for such persons to decline to appear on behalf of the workman and since the appearance of a legal practitioner is not a matter of right being subject to the provisions of sub-sections (3) and (4), a workman, if he is otherwise illiterate or unacquainted in the matter of conducting of proceedings, would be faced with real difficulty and would be in a position of utter disadvantage to participate in the proceeding.7. the choice of representation in a proceeding regarding one's own cause is largely a matter of confidence and trust upon the person chosen. there cannot be any presumption that in an - industry there would be a suitable number of workmen who would have the competence to conduct proceedings before the authorities under the act. it is common knowledge that conduct of proceeding would require intimate knowledge of the rules of procedure, more often than not an intimate knowledge of the law involved, the marshalling of facts, the presentation of the case and examination of witnesses. where the workman is not a member of any trade union it may so happen that the office bearers of the union connected with the industry in which he is employed may refuse to espouse his cause and there may not also be any suitable workman otherwise to suit his purpose. even while the workman may be a member of any trade union, yet for some reason it may be his apprehension that the office bearers or the members of the executive of the union or the office bearers of the federation of trade unions to which his own union is affiliated would not pursue his cause with verve and requisite zeal because of various reasons like conflicting claims of workmen, the stand taken by the union vis-a-vis such conflicting claims, or for any other reason and in such cases if the right of the workman is taken to be confined to be represented only by the persons named in the different clauses of section 36(1), there would be in effect denial of natural justice to the workman. this could never be the intention of the legislature since it could not be its intention to in effect seal the right of representation of a party in a judicial proceeding and not to provide for a workable outlet through which genuine grievances may be redressed. as was rightly concluded by justice chandrachud, section 11 vests the functionaries named therein with power to regulate their own procedure including the mode of representation of a party before them. the only restriction upon their power under the act in that regard is as provided in clauses (a), (b) and (c) of either section 36(1) of section 36(2) so that if either the workman or the employer desires to be represented by any of those modes, the authorities would have no right to refuse such representation, but if however a party would require to be represented in some other manner, they are not deprived of their jurisdiction to deal with the question, consider the same and grant permission in accordance with exigencies of the situation. doubtless such exercise of power by the authorities would be justifiable and can be examined by superior courts in appropriate cases.8. this is however not to say that tribunal would have unrestricted power of allowing representation of parties by legal practitioners unless the requirements of sub-sections (3) and (4) of section 36 are satisfied. the provisions being specific regarding the legal practitioners, they would undoubtedly restrict the power of the tribunal under section 11 to the extent covered by them.9. since the learned tribunal has not approached the question in the light of the discussions as above and has rejected the application of the petitioner merely because shri padhi did not fit in to the provisions of clauses (a), (b) and (c) of section 36(1), i am of the view that the order was not justified.10. in the result, the writ petition is allowed with costs. the order of the tribunal vide annexure-3 is quashed and the matter is remitted to the tribunal for disposal of the application of the petitioner regarding his representation through shri u.c. padhi afresh. hearing fee is assessed at rs. 300/-.ak padhi, j.11. i agree.