Full Judgment Text
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ WP(C) No.9299/2006
% Date of decision : 12.03.2008
M/s.Bhagat Brothers ….… Petitioner
Through: Mr.Apurb Lal, Advocate.
Versus
Paras Nath Upadhyay ......... Respondent
Through : Mr.Rakesh Mehta, Advocate.
CORAM :-
HON’BLE MR. JUSTICE ANIL KUMAR
1. Whether reporters of Local papers may YES
be allowed to see the judgment?
2. To be referred to the reporter or not? YES
3. Whether the judgment should be reported YES
in the Digest?
ANIL KUMAR, J.
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1. The petitioner has impugned the order dated 30 November,
2005 of the Labor Court by which the application of the workman
under Section 36 of the Industrial Disputes Act, 1947 was allowed
holding that the petitioner management is not entitled to be
represented by a legal practioner without the consent of the workman
and without the permission of the Court and in the circumstances the
advocate appearing on behalf of petitioner was barred from
WP (C) 9299 of 2006 Page 1 of 11
representing the petitioner and the matter was adjourned to facilitate
the petitioner to appoint a new authorized representative.
2. The petitioner contended that it is a partnership firm dealing in
sale and purchase of yarns which was dissolved in 2000. The
respondent was allegedly working with M/s.Suman Agencies for 16
years and he left the service after getting his dues after full and final
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settlement of his claims. However, on 18 September, 2003 a claim
was filed through the trade union claiming that he was employed with
the petitioner for a monthly salary of Rs.5000/- for 20 years and on
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7 August, 2001 when he demanded arrears of salary, the
management/petitioner got angry and he was compelled to give his
resignation and respondent was thrown out of service.
3. The reply to the claim filed by the petitioner was filed through
Sh.J.K.Singhal, Advocate. Replication to the reply filed by the
petitioner was filed and thereafter workman filed his evidence by way
of affidavit. After filing the evidence on affidavit, the respondent
workman filed an application under Section 36 seeking that the
petitioner/management be not allowed to be represented by a counsel.
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On 30 November, 2005 by the impugned order the application was
WP (C) 9299 of 2006 Page 2 of 11
allowed and the petitioner was directed to appoint a new authorized
representative, as an advocate could not be allowed to appear on
behalf of petitioner/management.
4. The petitioner has impugned the order allowing the application
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dated 3 July, 2005 disallowing petitioner’s advocate to appear on his
behalf and directing the petitioner to engage a new authorized
representative, on the ground that the consent of the respondent for
appearance of the counsel on behalf of the petitioner could be inferred
on account of various facts including that the respondent did not
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object to appearance of petitioner’s advocate till 5 July, 2005 when
an application was filed on behalf of the respondent workman. The
order has been impugned by the petitioner on the ground that the
petition under Section 36 of the Industrial Disputes Act, 1947 could
not be made by the respondent at any time. It is asserted that on
account of the conduct of the respondent, implied consent can be
inferred in allowing the petitioner to be represented through an
advocate. For implied consent it is contended on behalf of petitioner
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that before the application was filed on 5 July, 2005 the petitioner
was represented by the counsel and no objection was taken by the
respondent. The learned counsel for the petitioner has relied on
Britannia Engineering Products and Services Ltd Vs. Second Labour
WP (C) 9299 of 2006 Page 3 of 11
Court and Ors, 2003-II-LLJ 200 and T.K.Varghese Vs. Nichimen
Corporation, 2002-IV-LLJ in support of the contention that there was
implied consent on the part of the respondent and consequently the
Labour Court could not allow the application of the petitioner and
could not bar the advocate to appear on behalf of the petitioner. The
petitioner has also contended relying on 2002 IV LLJ (Suppl.) 1018,
T.K. Verghese v. Nichmen Corporation and 2003 II LLJ 1024, Britania
Engineering Products and Services Limited v. Second Labour Court
that implied consent given by the workman could not be allowed to be
withdrawn and there was no need for fresh consent on the part of the
workman.
5. Perusal of the judgments relied on by the petitioner reflect that
they are apparently distinguishable. In T.K. Verghese ( supra ), on
February 28, 2000, the appearance was put on behalf of the
management through the General Manager who had filed an
application for adjournment and on the same date statement of
claimant was filed by the workman. The workman was present and
by consent the matter was adjourned. It appears from the facts of the
case that till June 16, 2000, Shri Gole, the representative of the
workman, who had a large experience of 40 to 50 years in the field
had not made any objection to the appearance of the advocate of the
WP (C) 9299 of 2006 Page 4 of 11
management company. The management company was a foreign
company and all the executives and management were not at all
conversant with the labour laws of India and in the background of
these circumstances, the objection taken on behalf of the workman
later on regarding appearance of an advocate on behalf of the
respondent company was not entertained and the foreign company
was allowed to continue to be represented by an advocate.
Apparently, in the case of the respondent/workman on framing of
issues, evidence was ordered to be filed on affidavits and the objection
was taken on behalf of respondent/workman about the petitioner
company being represented by an advocate.
6. The case of Britania Engineers Products and Services Ltd.
( supra ) is also clearly distinguishable. The workman in this case was
represented by an advocate and the management was also
represented by an advocate and no objections were taken. The
objection was taken by the workman only when the respondent
company decided to change their erstwhile advocate and filed a new
authorization in favor of another advocate and in these circumstances
the objections of the workman under Section 36(4) was not
entertained.
WP (C) 9299 of 2006 Page 5 of 11
7. The ratio of any decision must be understood in the background
of the facts of that case. It has been said long time ago that a case is
only an authority for what it actually decides, and not what logically
follows from it. It is well settled that a little difference in facts or
additional facts may make a lot of difference in the precedential value
of a decision. Considering the present facts and circumstances the
decisions relied on by the petitioner are clearly distinguishable. The
Supreme Court in Bharat Petroleum Corporation Ltd and Anr. v.
N.R.Vairamani and Anr., AIR 2004 SC 778 had observed:-
" Court should not place reliance on decisions without
discussing as to how the factual situation fits in with the
fact situation of the decision on which reliance is placed.
Observations of Courts are neither to be read as Euclid's
theorems nor as provisions of the statute and that too
taken out of their context. These observations must be read
in the context in which they appear to have been stated.
Judgments of Courts are not to be construed as statutes. To
interpret words, phrases and provisions of a statute, it may
become necessary for judges to embark into lengthy
discussions but the discussion is meant to explain and not
to define. Judges interpret statutes, they do not interpret
judgments. They interpret words of statutes; their words
are not to be interpreted as statutes.
In Ambica Quarry Works v. State of Gujarat and Ors.
MANU/SC/0049/1986 the Supreme Court had also observed:-
WP (C) 9299 of 2006 Page 6 of 11
"The ratio of any decision must be understood in the
background of the facts of that case. It has been said
long time ago that a case is only an authority for
what it actually decides, and not what logically
follows from it."
8. Circumstantial flexibility, one additional or different fact may
make a world of difference between conclusions in two cases and
disposing of a case by blindly placing reliance on a decision is not
proper. Apparently, these judgments relied on by the petitioner are
distinguishable and on the basis of the ratio of these judgments, it
cannot be held there can be implied consent and that in the case of
the respondent, there was implied consent by him regarding
appearance of the lawyer on behalf of the petitioner management.
9. The counsel for the respondent has contended that in the case
of the respondent no implied consent can be inferred as after framing
of issues the matter was listed for evidence and the evidence was filed
by the respondent on affidavit and before his cross examination, the
objection regarding the appearance of the advocate on behalf of the
petitioner was taken. Learned counsel for the respondent/workman
has also relied on 107 (2003) DLT 667, Hindustan Motors Limited v.
The Presiding Officer and others to contend that mere fact that the
workman has not objected earlier cannot be a ground to deny the
WP (C) 9299 of 2006 Page 7 of 11
workman benefit under Section 36 to object to appearance of the
management company through lawyer at a later stage. The learned
single Judge of this Court had relied on another judgment of a single
Judge, 1998 (81) FLR 953, Prasar Bharti Broadcasting Corporation of
India v. Suraj Sharma and Others. In Prasar Bharti Broadcasting
Corporation of India ( supra ), the objections taken by the workman was
that an additional standing government counsel is a legal practitioner
and is not entitled to appear on behalf of the management under
Section 36 of the Industrial Disputes Act, 1947. The objection that a
standing counsel cannot appear was, however, taken after many
hearings and, in the circumstances, the plea on behalf of the
management was that appearance of the counsel on earlier dated of
the proceedings without any objection by the workman, amounted to
implied consent and there was no provisions for revoking the consent
once it was already given. The Court in Prasar Bharti ( supra ) had held
that the law recognizes unequal strength of the parties in adjudication
before a Tribunal and Section 36 (4) permits representation of a party
by a legal practitioner only with the consent of the other party to the
proceedings and with the leave of the Tribunal. According to the
learned single Judge, consent, in such circumstances, has to be clear
and positive. It was held that there should be some positive act or
conduct on the part of the party indicating his consent and to
WP (C) 9299 of 2006 Page 8 of 11
consider the failure or inaction of a party in raising the objection at
the early stages of the proceedings as `implied consent’ and to deny
him the right to object to the representation of the other party by a
legal practitioner, will be against the spirit and content of the
provision of Section 36 of the ID Act, 1947. In this case it was held
that the consent of the other parties to the proceedings and the leave
of the Tribunal are mandatory pre conditions for the representation of
a party by a legal practitioner. In the circumstances, it was held that
if a party to the proceedings intends to engage a legal practitioner it
should specifically seek leave of the Tribunal and Tribunal after
ascertaining and considering the stand of the other party, should
render the decision.
10. Admittedly in the case of the petitioner, there was no application
filed by the petitioner company to be represented by a counsel nor any
leave was granted by the Tribunal to allow the counsel for the
petitioner/management to appear and defend him. In any case, after
the statement of the claim and reply to the claim were filed and issues
were framed, after the first date of framing of issues, after filing the
statement of respondent/workman on affidavit, the objection was
taken about the appearance of an advocate on behalf of the petitioner
company. From the record of the Labor Court, it does not appear that
WP (C) 9299 of 2006 Page 9 of 11
any consent was given by the respondent for the appearance of an
advocate on behalf of petitioner company. As already held after filing
the deposition by the respondent workman on affidavit before the
workman could be cross examined, the objection was taken about the
representation of the petitioner company by an advocate. In
Hindustan Motors Limited ( supra ) also, it was held that there may not
be an implied consent in the facts and circumstances of that case
relying on Prasar Bharati ( supra) .
11. Therefore, in the facts and circumstances, it cannot be inferred
that there had been consent on the part of the workman for the
petitioner company to be represented by an advocate and
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consequently the order of the Tribunal dated 30 November, 2005
sustaining the objection of the respondent workman against the
appearance of an advocate on behalf of the management cannot be
faulted. In the circumstances, it cannot be held that the petitioner
company is entitled to be represented by an advocate. There is no
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manifest error or illegality in the order dated 30 November, 2005 so
as to exercise jurisdiction by this Court under Article 226 of the
Constitution of India.
WP (C) 9299 of 2006 Page 10 of 11
12. The writ petition, therefore, is without any merit and it is
dismissed. Parties are however, left to bear their own costs.
March 12, 2008 ANIL KUMAR J.
`Dev’
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