MSCO P LIMITED Vs. S D RANE

JUDGEMENT

(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, pharmacutical 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-II L.L.J. 409]. 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-I L.L.J. 580]. 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 palapably erroneous and passed by respondent No. 1 under a misapprehension as to what the correct law was.