P ADINARAYAN REDDY Vs. PRESIDING OFFICER INDUSTRIAL TRIBUNAL

JUDGEMENT

(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 and 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 Subsection (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 Subsection (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 subsection 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.