India Yamaha Motor Pvt. Ltd. Vs. Dharam Singh & Anr.
EmailAppeal: Civil Appeal Nos. 2393-2394 of 2008
[From the Judgement and Order dated 30.04.2007 in Civil Miscellaneous Writ Petition No. 58121 of 2006 and Order dated 25.05.2007 in CMRA no. 133281 of 2007 passed by the High Court of Judicature at Allahabad]
[From the Judgement and Order dated 30.04.2007 in Civil Miscellaneous Writ Petition No. 58121 of 2006 and Order dated 25.05.2007 in CMRA no. 133281 of 2007 passed by the High Court of Judicature at Allahabad]
Petitioner: India Yamaha Motor Pvt. Ltd.
Respondent: Dharam Singh & Anr.
Judges: Jagdish Singh Khehar & Arun Mishra, JJ.
Date of Judgment: Aug 20, 2014
Appearances:
Mr. Rakesh Dwivedi, Senior Advocate, Mr. Subramonium Prasad, Advocate, with him for the appellant.
Mr. Colin Gonsalves, Senior Advocate, Ms. Jyoti Mendiratta, Advocate, with him for the respondents.
Mr. Colin Gonsalves, Senior Advocate, Ms. Jyoti Mendiratta, Advocate, with him for the respondents.
Head Note:
SERVICE AND LABOUR LAWS
Uttar Pradesh Industrial Disputes Act, 1947
Sections 6-(1), 5-C – Uttar Pradesh Industrial Disputes Rules, 1957, Rule 40 – Notification No. 7248 dated 31.12.1958 – Representation of parties before Board, Labour Court or Tribunal – 113 employees not declared as permanent from date of employment nor equal salary paid – Failure of conciliation proceedings before Board – Dispute referred by State Government on 28.05.1998 – On request of workmen, dispute transferred from Labour Court to Tribunal – The Union which represented the workmen came to be de-recognised – Management applied for stopping proceedings as office bearer of Union could no longer represent employees – Workers resolved to be represented by 5 workmen selected among those 113 workers – Such representation not accepted by Tribunal – High Court set-aside said Orders – If justified – If provisions of Section 6-I were inapplicable in this case alongwith Rule 40(1) as workers were not members of any Union. Held that Section 6-I would apply in a situation, where workmen seek to be represented by others. Workmen cannot be represented even by legal practitioner without consent of opposite party. Where workmen have chosen to be represented before Tribunal through concerned authority, the choice must be in conformity with provision and Rules. However, when more than one workers are involved, it is open to them to choose one or more among themselves to represent all of them as per Section 5-C. Hence, no infirmity in High Court orders. M/s Mahabir Sizing and Processing Co. case not applicable. R.K. Chawla’s [JT 2011 (7) SC 559] case referred.
Uttar Pradesh Industrial Disputes Act, 1947
Sections 6-(1), 5-C – Uttar Pradesh Industrial Disputes Rules, 1957, Rule 40 – Notification No. 7248 dated 31.12.1958 – Representation of parties before Board, Labour Court or Tribunal – 113 employees not declared as permanent from date of employment nor equal salary paid – Failure of conciliation proceedings before Board – Dispute referred by State Government on 28.05.1998 – On request of workmen, dispute transferred from Labour Court to Tribunal – The Union which represented the workmen came to be de-recognised – Management applied for stopping proceedings as office bearer of Union could no longer represent employees – Workers resolved to be represented by 5 workmen selected among those 113 workers – Such representation not accepted by Tribunal – High Court set-aside said Orders – If justified – If provisions of Section 6-I were inapplicable in this case alongwith Rule 40(1) as workers were not members of any Union. Held that Section 6-I would apply in a situation, where workmen seek to be represented by others. Workmen cannot be represented even by legal practitioner without consent of opposite party. Where workmen have chosen to be represented before Tribunal through concerned authority, the choice must be in conformity with provision and Rules. However, when more than one workers are involved, it is open to them to choose one or more among themselves to represent all of them as per Section 5-C. Hence, no infirmity in High Court orders. M/s Mahabir Sizing and Processing Co. case not applicable. R.K. Chawla’s [JT 2011 (7) SC 559] case referred.
Held:
Section 6(1) would be applicable only in a situation where, the workmen seek to be represented by others, and choose not to represent themselves in the proceedings. In such an exigency, it is imperative to make a choice in terms of the mandate contained in Section 6-I of the U.P.Industrial Disputes Act. It is not open for the workmen to be represented even through a legal practitioner, without the consent of the opposite party. Representation through a legal practitioner other than by consent of the opposite party, is precluded by Section 6-I(2). In case the workmen desire to be represented by an officer of the Union, the choice can only be of such officer who has held the position in the Union, which had subsisted for a period of more than two years. (Para 9)
It is only the privilege of being represented through someone else, that needs the sanction of law. Section 6-I, as also, Rule 40 de-alienate the extent to which the above privilege can extend. In case, workmen before an Industrial Tribunal choose to be represented through a concerned authority, that choice must be in conformity with Section 6-I, as also, Rule 40 aforementioned. (Para 10)
It is the contention of the learned counsel for the appellant, that in case the respondents-workmen choose to appear by themselves, all 113 of them had to participate in the proceedings before the Industrial Tribunal. It was therefore his submission, that it was not open for 5 of them to represent all the 113. (Para 12)
Section 5-C leaves no room of any doubt, that in the absence of any particular rule, it is open to an Industrial Tribunal, to follow such procedure as it may think fit. We are of the view, that it is well recognised in law, that in case where more than one persons are involved collectively on the same side, it is open to them to choose one of more amongst themselves, to represent all of them. (Para 13.1.)
We are satisfied, that it was open to the respondents-workmen to choose one or more amongst themselves, to represent all of them before the Industrial Tribunal. In view of the aforesaid finding, we find no infirmity in the impugned order passed by the High Court. (Para 13.2.)
Cases Reffered:
1.Goa Antibiotics and Pharmaceuticals Ltd. v. R.K. Chawla and another [JT 2011 (7) SC 559] (Para 11)
2.M/s Mahabir Sizing and Processing Co. and others v. The Industrial Tribunal, Allahabad [1979 LAB I.C.674] (Para 8.1.)
JUDGEMENT:
Jagdish Singh Khehar, J.
1. The appellant before this Court is the management/industry. It has approached this Court, to assail the competence of the respondents (who are the workmen) to be represented before the Industrial Tribunal, Meerut (hereafter referred to as `the Tribunal’), through five of the respondents/workmen (Dharam Singh, Sanjay Nagar, Ranveer Nagar, Pratap Singh and Dhanpat Singh) out of the 113 workmen who were agitating the industrial dispute before the said Tribunal.
2. Originally, the cause of the respondents-workmen was espoused by the Noida Engineering Mazdoor Sangh. However, consequent upon the de-recognition of the aforesaid Union in 2003, the Management i.e. the appellant before us, raised an objection that the cause of respondent-workmen could no longer be presented through the Noida Engineering Mazdoor Sangh. The appellant management accordingly prayed that the Industrial Tribunal, should not proceed with the adjudication of the matter. On account of the submission, that the representation of the respondents-workmen before the Industrial Tribunal, could only be in consonance with Section 6-I of the Uttar Pradesh Industrial Disputes Act, 1947 (hereinafter referred to as the `Industrial Disputes Act’) read with Rule 40 of the Uttar Pradesh Industrial Disputes Rules, 1957 (hereinafter referred to as the `Industrial Disputes Rules’), it was suggested that the respondent-workmen should be permitted to make their choice in consonance therewith. This is the crux of the dispute that has been projected before us for our consideration.
3. Despite, the limited scope of the dispute which arises for our consideration, it is essential for us, to notice the factual background to the controversy. In the first instance, prolonged conciliation proceedings were conducted before the Conciliation Board. Consequent upon the failure of the conciliation proceedings, the State Government on 28.05.1998 referred the following disputes for adjudication to the Labour Court, Ghaziabad:
Whether non-declaration of the 113 workmen, mentioned in the schedule enclosed, as permanent from the date of their employment and not paying them equal salary and other benefits by the Management is illegal and unjustified? If yes, to what relief and other consequential benefits the workmen are entitled to and from which date?
4. At the instant juncture, the respondents-workmen made a representation to the State Government requiring it to transfer the matter for adjudication from the Labour Court, Ghaziabad to the Industrial Tribunal, Meerut. The request of the respondents-workmen was acceded to, whereupon, the State Government passed an order dated 06.03.1999. The Management i.e. the appellant before this Court, assailed the above order dated 06.03.1999 by filing Civil Miscellaneous Writ Petition No.16666 of 1999. The aforesaid Writ Petition was allowed by a learned Single Judge of the High Court of Judicature at Allahabad (hereinafter referred to as `the High Court’) by an order dated 26.09.2002. The order dated 06.03.1999 by which the State Government had transferred the referred disputes from the Labour Court, Ghaziabad, to the Industrial Tribunal, Meerut, was set aside, on the ground that the appellant-management had not been afforded an opportunity of hearing. The State Government was accordingly directed to pass an appropriate order, in accordance with law, within a period of six months.
5. In compliance of the directions issued by the High Court (in Civil Miscellaneous Writ Petition No.16666 of 1999), the State Government by its order dated 11.02.2003, re-transferred the dispute from the Industrial Tribunal, Meerut, to the Labour Court, Ghaziabad. The instant order was sought to be assailed by the Union representing the respondents-workmen, through Civil Miscellaneous Writ Petition No.13986 of 2003, before the High Court. The above writ petition came to be dismissed by a learned Single Judge on 02.04.2003. It would however be relevant to mention that the following observations were recorded by the High Court in its order dated 02.04.2003 while dismissing the writ petition:
I am not able to share the apprehension. The employers had challenged the transfer of reference to Industrial Tribunal, Meerut and now after the matter has been decided by State Government, maintaining the reference to Labour Court (II) at Ghaziabad, the employers cannot be permitted to challenge the same on the ground that the matter should have been referred to Industrial Tribunal, Meerut. The reference, does not fall in either First or Second Schedules and can be taken to fall in residuary item No.6 of First Schedule, and thus the Labour Court, is competent to adjudicate the matter.
5.1. It seems that the above observations were not palatable to the appellant-management. It is therefore that the appellant-management preferred Special Appeal No.410 of 2003 before a Division Bench of the High Court. Before the Division Bench, the submission of the appellant-management was, that the order dated 02.04.2003 had been passed by the learned Single Judge, without giving an opportunity to the appellant to project its case. The High Court did not entertain the above submission and disposed of the Special Appeal by an order dated 13.08.2003. Liberty was however granted to the appellant-management, to apply for recall of the order passed by the learned Single Judge. It is in the aforesaid circumstances, that the appellant-management filed a recall application, before the learned Single Judge. The above application came to be dismissed on 04.09.2003. Yet again, the appellant-management preferred Special Appeal No.1027 of 2003, to assail order dated 04.09.2003, whereby, the recall application preferred by the appellant-management was dismissed. On this occasion with the consent of the rival parties, the Special Appeal came to be disposed of, by recording the following observations:
Considering the facts and circumstances of the present case and considering the case of both the parties to the extent that the reference case should be decided by the Industrial Tribunal, we transfer the reference case from the Labour Court-II, Ghaziabad to the concerned Industrial Tribunal for its decision and direct the proceedings of the reference case shall commence from the stage it was before the Labour Court, as we find from the records that the written statement and other paraphernalia have already been completed before the Labour Court. The Industrial Tribunal shall, therefore, dispose of the reference case in accordance with law, within a period of three months from the date of production of a certified copy of this order without granting any unnecessary adjournment to either of the parties.
5.2. The dispute between the rival parties therefore came to be settled by consent inasmuch as, the matter came to be finally transferred to the Industrial Tribunal, Meerut i.e. the place suggested by the workmen.
5.3. It is thereafter that the matter was taken up for consideration on merits, by the Industrial Tribunal, Meerut. Before the Industrial Tribunal, the appellant-management filed an application dated 08.02.2006, asserting that the case could not be proceeded further, because the Noida Engineering Mazdoor Sangh, had ceased to be a recognised Union. It was pointed out, that the above Union came to be de-recognised on 11.03.2003, and as such, the officers of the Union could no longer represent the respondents-workmen.
6. On 01.05.2006, a meeting of the workmen (involved in the present controversy) was convened. 71 of the 113 workmen participated in the same. They resolved that, they would henceforth be represented by 5 of the workmen. It needs to be expressly noticed that these 5 workmen selected vide Resolution dated 01.05.2006 were amongst the 113 respondents-workmen involved in the controversy. Representation on behalf of the respondents-workmen in terms of the Resolution dated 01.05.2006 was not accepted by the Industrial Tribunal. Accordingly, vide its order dated 07.08.2006, the Industrial Tribunal directed the respondents-workmen to adopt the procedure laid down in Rule 40 (1)(i)(c) of the Industrial Disputes Rules, for finalising their representation before the Industrial Tribunal. The instant order passed by the Industrial Tribunal on 07.08.2006 came to be assailed by one of the respondents-workmen by filing Writ Petition No.58121 of 2006. The High Court accepted the claim of the respondent-workmen vide its order dated 30.04.2007 by holding as under:
9. The writ petition is allowed. The order of the Industrial Tribunal dated 7.8.2006 in Adjudication Case No.157 of 2003 is quashed. It will be open to the remaining workmen, who are interested in the case to be represented by their authorized representatives to pursue the reference to its logical conclusion. The Industrial Tribunal will do well to decide the old matter of the year 1989 on priority as expeditiously as possible.
6.1. The order passed by the High Court on 30.04.2007 is the subject matter of challenge at the hands of the appellant-management through the instant civil appeals.
7. During the course of hearing, the solitary contention advanced at the hands of the learned counsel for the appellant-management, was premised on Section 6-I of the U.P. Industrial Disputes Act. The same is being extracted hereunder:
6-I. Representation of the parties.- (1) Subject to the provisions of sub-sections (2) and
(3), the parties to an industrial dispute may be represented before a Board, Labour Court, or Tribunal in the manner prescribed.
(2) No party to any proceeding before a Board shall be represented by a legal practitioner, and no party to any proceeding before a Labour Court or Tribunal shall be represented by a legal practitioner, unless the consent of the other party or parties to the proceeding and the leave of the Presiding Officer of the Labour Court or Tribunal, as the case may be, has been obtained.
(3) No officer of a Union shall be entitled to represent any party unless a period of two years has elapsed since its registration under the Indian Trade Unions Act, 1926, and the Union has been registered for the one trade only:
Provided that an officer of a federation of unions may subject to such conditions as may be prescribed represent any party.
7.1. It was the submission of the learned counsel for the appellant, that Sub-sections (2) and (3) of Section 6-I of the U.P.Industrial Disputes Act were inapplicable to the present controversy, because the respondents-workmen had not sought representation through a legal practitioner, and also because, they had not filed a representation through an officer of the Union in terms of Sub-section (3) thereof. It was accordingly the submission of the learned counsel for the appellant, that the representation on behalf of the respondents-workmen before the Industrial Tribunal, Meerut, could have only been in terms of the mandate contained in Sub-section (1) of Section 6-I of the U.P.Industrial Disputes Act, which postulates, that representation on behalf of the respondents-workmen before the Industrial Tribunal could have only been in the manner prescribed. Insofar as the instant aspect of the matter is concerned, learned counsel for the appellant invited our attention to Rule 40 of the U.P.Industrial Disputes Rules, which prescribes the representation of parties. Rule 40 is being extracted hereunder:
40. Representation of parties. – (1) The parties may, in their discretion, be represented before a Board, Labour Court or Tribunal,-
(i) in the case of a workman subject to the provision of sub-section (3) of Section 6-I, by-
(a) an officer of a Union of which he is member, or
(b) an officer of a Federation of Unions to which the union referred to in clause (a) above, is affiliated, and
(c) where there is no union of workmen, any representative, duly nominated by the workman who are entitled to make an application before a Conciliation Board under any orders issued by Government, or any members of the executive, or other officer;
(ii) in the case of an employer, by
(a) an officer of a union or Association of employers of which the employer is a member, or
(b) an officer of a federation of unions or associations of employers to which the union or association referred to in clause (a) above, is affiliated, or
(c) by an officer of the concern, if so authorized in writing by the employer:
Provided that no officer of a federation of unions shall be entitled to represent the parties unless the federation has been approved by the Labour Commissioner for this purpose.
(2) A party appearing through a representative shall be bound by the acts of that representative.
(3) An application for approval of a federation of unions for representing the parties before a Board, Labour Court and Tribunal shall be made in Form XX to the Labour Commissioner:
Provided that no federation of unions shall be entitled to apply for approval unless a period of two years has elapsed since its formation.
(4) On receipt of an application under sub-rule (3) above, the Labour Commissioner may, after making such enquiries, as he deems fit, approve the federation or reject the application. In case a federation is approved its name shall be notified in the Official Gazette otherwise the applicant shall be informed of the position in writing by the Labour Commissioner.
(5) The Labour Commissioner or the Registrar of the Trade Unions, Uttar Pradesh, may, at any time before or after a federation has been approved, call for such information from the federation as he considers necessary and the federations shall furnish the information so called for.
(6) Every approved federation shall,-
(a) intimate to the Labour Commissioner and to the registrar of Trade Unions, Uttar Pradesh, in Form XXI every change in the address of its head office and in the members of the executive (including its office bearers) within seven days thereof; and
(b) submit to the Labour Commissioner and to the Registrar of Trade Unions, Uttar Pradesh by December 31 every year a list of unions affiliated to its in Form XXII.
(7) The Labour Commissioner may, at any time and for reasons to be recorded in writing, withdraw the approval granted to a federation under sub-rule (4) above.
(8) A party aggrieved by the order of the Labour Commissioner under sub-rule (4) or (7) may within one month from the date of the receipt of such order prefer an appeal before the State Government, whose decision in the matter shall be final and binding.
8. It is the submission of the learned counsel for the appellant, that in the absence of any Union, of which the respondents-workmen were members, Sub-clause (a) and (b) of Rule 40(1)(i) of the U.P.Industrial Disputes Rules, would be inapplicable. It was his submission, that the representation on behalf of the respondents-workmen could have been only in terms of Rule 40(1)(i)(c). This, according to the learned counsel for the appellant, was because of the admitted position between the rival parties, that the respondents-workmen were not members of any Union of workmen. In the above view of the matter, placing reliance on Rule 40(1)(i)(c), it was the submission of the learned counsel for the appellant, that the representation on behalf of the respondents-workmen could have been, only out of those workmen who were entitled to make an application before a Conciliation Board, under the orders issued by the Government. In this behalf, reliance was placed on Notification No.7248 dated 31.12.1958 (published in U.P.Gazette Extraordinary of 31.12.1958). A relevant extract of the aforesaid Notification dated 31.12.1958 is being reproduced hereunder:
Reference of disputes to Conciliation Board (1) An application for the settlement of an industrial dispute may be made before the Conciliation Officer of the area concerned in Form I with five spare copies thereof-
(i) in the case of a workman
(a) subject to the provisions of sub-section (3) of S.6-1, by an officer of a union of which he is a member, or by an officer of a Federation of Unions to which such union is affiliated; or
(b) where no union of workmen exists by five representatives of the workmen employed in a concern or industry, duly elected in this behalf by a majority of the workmen employed in that concern or industry at a meeting held for the purpose, or by all workmen, employed in the concern if their number is not more than five;
Provided that where no union of workmen exists and the application is made by representatives of the workmen duly elected as aforesaid, a copy of the resolution adopted at a meeting held for the purpose shall be attached to the application in form I, and
(ii)……. … …
8.1. Having placed reliance on the Notification dated 31.12.1958, learned counsel for the appellant placed reliance on a judgment rendered by the Allahabad High Court in M/s Mahabir Sizing and Processing Co. and others v. The Industrial Tribunal, Allahabad [1979 LAB I.C.674].
9. We have given our thoughtful consideration to the submissions advanced at the hands of the learned counsel for the appellant-management. Section 6-I of the U.P.Industrial Disputes Act has already been extracted hereinabove. Having examined the same minutely, we are of the considered view that Section 6(1) would be applicable only in a situation where, the workmen seek to be represented by others, and choose not to represent themselves in the proceedings. In such an exigency, it is imperative to make a choice in terms of the mandate contained in Section 6-I of the U.P.Industrial Disputes Act. It is not open for the workmen to be represented even through a legal practitioner, without the consent of the opposite party. Representation through a legal practitioner other than by consent of the opposite party, is precluded by Section 6-I(2). In case the workmen desire to be represented by an officer of the Union, the choice can only be of such officer who has held the position in the Union, which had subsisted for a period of more than two years. We have already extracted hereinabove Rule 40 of the U.P.Industrial Disputes Rules. Under the above rule also, representation is contemplated through an officer of the Union, through an officer of the Federation of Unions, and in case of the absence of any Union, in the manner stipulated under Rule 40(1)(i)(c). We find no difficulty whatsoever in concurring with the learned counsel for the appellant-management insofar as his submissions, on the issue of representation are concerned.
10. In the adjudication of the present controversy, the primary issue to be determined is, whether Section 6-I of the U.P.Industrial Disputes Act, and Rule 40 of the U.P.Industrial Disputes Rules, would be applicable in a situation where the workmen choose to present their case before the Industrial Tribunal, by themselves or by choosing a few amongst themselves on behalf of themselves. In our considered view, the choice of an individual to represent himself in a dispute before a Court or a Tribunal, is a vested inherent right. It is only the privilege of being represented through someone else, that needs the sanction of law. Section 6-I, as also, Rule 40 de-alienate the extent to which the above privilege can extend. In case, workmen before an Industrial Tribunal choose to be represented through a concerned authority, that choice must be in conformity with Section 6-I, as also, Rule 40 aforementioned.
11. During the course of hearing, learned counsel for the appellant very fairly acceded to the inherent right of an individual to represent himself before a Tribunal or a Court. Insofar as the instant aspect of the matter is concerned, reference may be made to the observations of this Court in Goa Antibiotics and Pharmaceuticals Ltd. v. R.K. Chawla and another [JT 2011 (7) SC 559 : 2011 (15) SCC 449], wherein it was held as under:
1. Mr. Vishnu Kerikar, Deputy Manager, Finance & MS claims to be the power-of-attorney holder of the petitioner, Goa Antibiotics & Pharmaceuticals Ltd. in this case. He wishes to argue the case personally on behalf of the petitioner.
2. Section 33 of the Advocates Act, 1961 (hereinafter referred to as the Act) states as follows:
33. Advocates alone entitled to practise.Except as otherwise provided in this Act or in any other law for the time being in force, no person shall, on or after the appointed day, be entitled to practise in any court or before any authority or person unless he is enrolled as an advocate under this Act.
3. A perusal of the above provision shows that only a person who is enrolled as an advocate can practise in a court, except where otherwise provided by law. This is also evident from Section 29 of the Act. A natural person can, of course, appear in person and argue his own case personally but he cannot give a power of attorney to anyone other than a person who is enrolled as an advocate to appear on his behalf. To hold otherwise would be to defeat the provisions of the Advocates Act.
4. Section 32 of the Act, however, vests discretion in the court, authority or person to permit any person who is not enrolled as an advocate to appear before the court and argue a particular case. Section 32 of the Act is not the right of a person (other than an enrolled advocate) to appear and argue before the court but it is the discretion conferred by the Act on the court to permit anyone to appear in a particular case even though he is not enrolled as an advocate.
12. It is however the pointed contention of the learned counsel for the appellant-management, that in case the respondents-workmen had made a choice to project their case by themselves, it was imperative for all of them, to participate in the proceedings being conducted by the Industrial Tribunal. In sum and substance, it is the contention of the learned counsel for the appellant, that in case the respondents-workmen choose to appear by themselves, all 113 of them had to participate in the proceedings before the Industrial Tribunal. It was therefore his submission, that it was not open for 5 of them to represent all the 113.
13. Insofar as the above contention is concerned, learned counsel for the respondents has invited our attention to Section 5-C of the Industrial Disputes Act which is reproduced hereunder:
5-C. Procedure and powers of Boards, Labour Courts and Tribunals.- (1) Subject to any rules that may be made in this behalf, an arbitrator, a Labour Court or a Tribunal shall follow such procedure as the arbitrator, the Labour Court or the Tribunal concerned may think fit.
(2) A Presiding Officer of a Labour Court or a Tribunal may for the purpose of enquiry into any existing or apprehended industrial disputes, after giving reasonable notice, enter the premises occupied by any establishment to which the disputes relates.
(3) Every Board, Labour Court and Tribunal shall have the same powers as are vested in a Civil Court under the Code of Civil Procedure, 1908, when trying a suit in respect of the following matters, namely,-
(a) enforcing the attendance of any person and examining him on oath or affirmation or otherwise;
(b) requiring the discovery and production of documents and material objects;
(c) issuing commissions for the examination of witnesses;
(d) inspection of any property or thing including machinery concerning any such dispute; and
(e) in respect of such other matters as may be prescribed;
and every enquiry or investigation by a Labour Court or Tribunal shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code.
13.1. A perusal of Section 5-C leaves no room of any doubt, that in the absence of any particular rule, it is open to an Industrial Tribunal, to follow such procedure as it may think fit. We are of the view, that it is well recognised in law, that in case where more than one persons are involved collectively on the same side, it is open to them to choose one of more amongst themselves, to represent all of them. Such provision is also found incorporated under Order 1 Rule VIII of the Code of Civil Procedure which is being extracted hereunder:
8. One person may sue or defend on behalf of all in same interest.- (1) Where there are numerous persons having the same interest in one suit,
(a) one or more of such persons may, with the permission of the court, sue or be sued, or may defend such suit, on behalf of, or for the benefit of, all persons so interested;
(b) the Court may direct that one or more of such persons may sue or be sued, or may defend such suit, on behalf of, or for the benefit of, all persons so interested.
(2) The court shall, in every case where a permission or direction is given under sub-rule (1), at the plaintiffs expense, give notice of the institution of the suit to all persons so interested, either by personal service, or, where, by reason of the number of persons or any other cause, such service is not reasonably practicable, by public advertisement, as the court in each case may direct.
(3) Any person on whose behalf, or for whose benefit, a suit is instituted, or defended, under sub-rule (1), may apply to the court to be made a party to such suit.
(4) No part of the claim in any such suit shall be abandoned under sub-rule (1), and no such suit shall be withdrawn under sub-rule (3), of rule 1 of Order XXIII, and no agreement, compromise or satisfaction shall be recorded in any such suit under rule 3 of that Order, unless the court has given, at the plaintiffs expense, notice to all persons so interested in the manner specified in sub-rule (2).
(5) Where any person suing or defending in any such suit does not proceed with due diligence in the suit or defence, the court may substitute in his place any other person having the same interest in the suit.
(6) A decree passed in a suit under this rule shall be binding on all persons on whose behalf, or for whose benefit, the suit is instituted, or defended, as the case may be.
13.2. In such view of the matter, we are satisfied, that it was open to the respondents-workmen to choose one or more amongst themselves, to represent all of them before the Industrial Tribunal. In view of the aforesaid finding, we find no infirmity in the impugned order passed by the High Court.
14. While disposing of the present controversy, it is necessary for us to clarify that the instant conclusion has been drawn by categorically arriving at the conclusion that Section 6-I of the U.P.Industrial Disputes Act and Rule 40 of the U.P.Industrial Disputes Rules, would be applicable, only in a situation where the workmen choose to be represented through a third party before the Industrial Tribunal. The above provisions would be inapplicable, when the workmen choose to present their own case by themselves. In the instant situation, none of the above provisions would be invoked. Accordingly, it is also imperative for us to hold, that the judgment relied upon by the learned counsel for the appellant, would not be applicable to the facts and circumstances of the present case, since the aforesaid judgment was on the interpretation and the applicability of Rule 40(1)(i)(c) of the U.P.Industrial Disputes Rules.
15. The narration of above-mentioned facts reveals, that the respondents-workmen were inducted into the employment of the appellant-management before 1989. Conciliation proceedings were initiated on their behalf by the employees Union in 1989. The workmen were seeking regularisation from the date of their employment, and wages (and other allied benefits connected to the wages) being paid to permanent employees. The process of conciliation continued for about a decade, whereupon, the State Government made a reference of the industrial dispute raised by the respondents-workmen on 28.05.1998. Eversince the above reference, the appellant-management has initiated one or the other proceedings before the High Court, which has stalled the very initiation of consideration, of the claim of the respondents-workmen. The appellant-management was also dissatisfied with the determination of the State Government in transferring the adjudication of the dispute from the Labour Court, Ghaziabad to the Industrial Tribunal, Meerut vide its order dated 06.03.1999. A challenge to the same was raised before the High Court repeatedly. Eventually, by an order dated 28.10.2003, the appellant-management by consent accepted the adjudication of the dispute by the Industrial Tribunal, Meerut. This was where the matter was ordered to be determined by the State Government vide its order dated 06.03.1999, at the asking of the workmen. What is important is, that large number of years came to be wasted in something which was eventually acceded to voluntarily by the appellant-management. Even in so far as the present controversy is concerned, it is not understandable why the appellant-management was dissatisfied with the representation of 5 of the workmen before the Industrial Tribunal. It is not possible for us to understand what prejudice could have been caused to the appellant-management if 5 workmen had represented the respondents-workmen before the Industrial Tribunal, Meerut. All the same, the matter was brought to this Court in 2008 and is now being adjudicated finally after a lapse of 6 years. The sequence of facts noted hereinabove reveals that the claim which commenced in 1989 and was referred for adjudication by the State Government in 1998, has still not been taken up for consideration. During the course of hearing, learned counsel for the appellant-management invited our attention to the fact, that out of 113 original workmen, on whose behalf the Union had initiated proceedings under the Industrial Disputes Act, 1947, 89 had entered into an out of Court settlement with the appellant-management and 24 of them have remained. Insofar as the remaining 24 are concerned, their services have been terminated during the pendency of the adjudicatory process. While the services of Hari Niwas, one of the respondents-workmen, were terminated in the year 2000, the services of all the remaining workmen were terminated in the year 2005. We are of the view, that the appellant-management has abused the judicial process, and thereby, tired out the workmen, in the legitimate pursuit of their alleged rights. This is not the purpose for which these adjudicatory processes have been awarded for. It is for expeditious relief to workmen employed in industries, that these beneficial legislations have been enacted. We are of the view that some compensation should be awarded to the respondents-workmen for having remained involved in this assiduously long process of litigation. We therefore while dismissing the instant appeals, direct the appellant-management to pay as cost a sum of Rs.1 lakh to each of the remaining contesting workmen.
16. In view of the inordinate delay in the adjudicatory process, on account of litigation at the higher levels, we would direct the Industrial Tribunal, Meerut to make all efforts to dispose of the controversy within nine months from the date the parties appear before the Industrial Tribunal.
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1. The appellant before this Court is the management/industry. It has approached this Court, to assail the competence of the respondents (who are the workmen) to be represented before the Industrial Tribunal, Meerut (hereafter referred to as `the Tribunal’), through five of the respondents/workmen (Dharam Singh, Sanjay Nagar, Ranveer Nagar, Pratap Singh and Dhanpat Singh) out of the 113 workmen who were agitating the industrial dispute before the said Tribunal.
2. Originally, the cause of the respondents-workmen was espoused by the Noida Engineering Mazdoor Sangh. However, consequent upon the de-recognition of the aforesaid Union in 2003, the Management i.e. the appellant before us, raised an objection that the cause of respondent-workmen could no longer be presented through the Noida Engineering Mazdoor Sangh. The appellant management accordingly prayed that the Industrial Tribunal, should not proceed with the adjudication of the matter. On account of the submission, that the representation of the respondents-workmen before the Industrial Tribunal, could only be in consonance with Section 6-I of the Uttar Pradesh Industrial Disputes Act, 1947 (hereinafter referred to as the `Industrial Disputes Act’) read with Rule 40 of the Uttar Pradesh Industrial Disputes Rules, 1957 (hereinafter referred to as the `Industrial Disputes Rules’), it was suggested that the respondent-workmen should be permitted to make their choice in consonance therewith. This is the crux of the dispute that has been projected before us for our consideration.
3. Despite, the limited scope of the dispute which arises for our consideration, it is essential for us, to notice the factual background to the controversy. In the first instance, prolonged conciliation proceedings were conducted before the Conciliation Board. Consequent upon the failure of the conciliation proceedings, the State Government on 28.05.1998 referred the following disputes for adjudication to the Labour Court, Ghaziabad:
Whether non-declaration of the 113 workmen, mentioned in the schedule enclosed, as permanent from the date of their employment and not paying them equal salary and other benefits by the Management is illegal and unjustified? If yes, to what relief and other consequential benefits the workmen are entitled to and from which date?
4. At the instant juncture, the respondents-workmen made a representation to the State Government requiring it to transfer the matter for adjudication from the Labour Court, Ghaziabad to the Industrial Tribunal, Meerut. The request of the respondents-workmen was acceded to, whereupon, the State Government passed an order dated 06.03.1999. The Management i.e. the appellant before this Court, assailed the above order dated 06.03.1999 by filing Civil Miscellaneous Writ Petition No.16666 of 1999. The aforesaid Writ Petition was allowed by a learned Single Judge of the High Court of Judicature at Allahabad (hereinafter referred to as `the High Court’) by an order dated 26.09.2002. The order dated 06.03.1999 by which the State Government had transferred the referred disputes from the Labour Court, Ghaziabad, to the Industrial Tribunal, Meerut, was set aside, on the ground that the appellant-management had not been afforded an opportunity of hearing. The State Government was accordingly directed to pass an appropriate order, in accordance with law, within a period of six months.
5. In compliance of the directions issued by the High Court (in Civil Miscellaneous Writ Petition No.16666 of 1999), the State Government by its order dated 11.02.2003, re-transferred the dispute from the Industrial Tribunal, Meerut, to the Labour Court, Ghaziabad. The instant order was sought to be assailed by the Union representing the respondents-workmen, through Civil Miscellaneous Writ Petition No.13986 of 2003, before the High Court. The above writ petition came to be dismissed by a learned Single Judge on 02.04.2003. It would however be relevant to mention that the following observations were recorded by the High Court in its order dated 02.04.2003 while dismissing the writ petition:
I am not able to share the apprehension. The employers had challenged the transfer of reference to Industrial Tribunal, Meerut and now after the matter has been decided by State Government, maintaining the reference to Labour Court (II) at Ghaziabad, the employers cannot be permitted to challenge the same on the ground that the matter should have been referred to Industrial Tribunal, Meerut. The reference, does not fall in either First or Second Schedules and can be taken to fall in residuary item No.6 of First Schedule, and thus the Labour Court, is competent to adjudicate the matter.
5.1. It seems that the above observations were not palatable to the appellant-management. It is therefore that the appellant-management preferred Special Appeal No.410 of 2003 before a Division Bench of the High Court. Before the Division Bench, the submission of the appellant-management was, that the order dated 02.04.2003 had been passed by the learned Single Judge, without giving an opportunity to the appellant to project its case. The High Court did not entertain the above submission and disposed of the Special Appeal by an order dated 13.08.2003. Liberty was however granted to the appellant-management, to apply for recall of the order passed by the learned Single Judge. It is in the aforesaid circumstances, that the appellant-management filed a recall application, before the learned Single Judge. The above application came to be dismissed on 04.09.2003. Yet again, the appellant-management preferred Special Appeal No.1027 of 2003, to assail order dated 04.09.2003, whereby, the recall application preferred by the appellant-management was dismissed. On this occasion with the consent of the rival parties, the Special Appeal came to be disposed of, by recording the following observations:
Considering the facts and circumstances of the present case and considering the case of both the parties to the extent that the reference case should be decided by the Industrial Tribunal, we transfer the reference case from the Labour Court-II, Ghaziabad to the concerned Industrial Tribunal for its decision and direct the proceedings of the reference case shall commence from the stage it was before the Labour Court, as we find from the records that the written statement and other paraphernalia have already been completed before the Labour Court. The Industrial Tribunal shall, therefore, dispose of the reference case in accordance with law, within a period of three months from the date of production of a certified copy of this order without granting any unnecessary adjournment to either of the parties.
5.2. The dispute between the rival parties therefore came to be settled by consent inasmuch as, the matter came to be finally transferred to the Industrial Tribunal, Meerut i.e. the place suggested by the workmen.
5.3. It is thereafter that the matter was taken up for consideration on merits, by the Industrial Tribunal, Meerut. Before the Industrial Tribunal, the appellant-management filed an application dated 08.02.2006, asserting that the case could not be proceeded further, because the Noida Engineering Mazdoor Sangh, had ceased to be a recognised Union. It was pointed out, that the above Union came to be de-recognised on 11.03.2003, and as such, the officers of the Union could no longer represent the respondents-workmen.
6. On 01.05.2006, a meeting of the workmen (involved in the present controversy) was convened. 71 of the 113 workmen participated in the same. They resolved that, they would henceforth be represented by 5 of the workmen. It needs to be expressly noticed that these 5 workmen selected vide Resolution dated 01.05.2006 were amongst the 113 respondents-workmen involved in the controversy. Representation on behalf of the respondents-workmen in terms of the Resolution dated 01.05.2006 was not accepted by the Industrial Tribunal. Accordingly, vide its order dated 07.08.2006, the Industrial Tribunal directed the respondents-workmen to adopt the procedure laid down in Rule 40 (1)(i)(c) of the Industrial Disputes Rules, for finalising their representation before the Industrial Tribunal. The instant order passed by the Industrial Tribunal on 07.08.2006 came to be assailed by one of the respondents-workmen by filing Writ Petition No.58121 of 2006. The High Court accepted the claim of the respondent-workmen vide its order dated 30.04.2007 by holding as under:
9. The writ petition is allowed. The order of the Industrial Tribunal dated 7.8.2006 in Adjudication Case No.157 of 2003 is quashed. It will be open to the remaining workmen, who are interested in the case to be represented by their authorized representatives to pursue the reference to its logical conclusion. The Industrial Tribunal will do well to decide the old matter of the year 1989 on priority as expeditiously as possible.
6.1. The order passed by the High Court on 30.04.2007 is the subject matter of challenge at the hands of the appellant-management through the instant civil appeals.
7. During the course of hearing, the solitary contention advanced at the hands of the learned counsel for the appellant-management, was premised on Section 6-I of the U.P. Industrial Disputes Act. The same is being extracted hereunder:
6-I. Representation of the parties.- (1) Subject to the provisions of sub-sections (2) and
(3), the parties to an industrial dispute may be represented before a Board, Labour Court, or Tribunal in the manner prescribed.
(2) No party to any proceeding before a Board shall be represented by a legal practitioner, and no party to any proceeding before a Labour Court or Tribunal shall be represented by a legal practitioner, unless the consent of the other party or parties to the proceeding and the leave of the Presiding Officer of the Labour Court or Tribunal, as the case may be, has been obtained.
(3) No officer of a Union shall be entitled to represent any party unless a period of two years has elapsed since its registration under the Indian Trade Unions Act, 1926, and the Union has been registered for the one trade only:
Provided that an officer of a federation of unions may subject to such conditions as may be prescribed represent any party.
7.1. It was the submission of the learned counsel for the appellant, that Sub-sections (2) and (3) of Section 6-I of the U.P.Industrial Disputes Act were inapplicable to the present controversy, because the respondents-workmen had not sought representation through a legal practitioner, and also because, they had not filed a representation through an officer of the Union in terms of Sub-section (3) thereof. It was accordingly the submission of the learned counsel for the appellant, that the representation on behalf of the respondents-workmen before the Industrial Tribunal, Meerut, could have only been in terms of the mandate contained in Sub-section (1) of Section 6-I of the U.P.Industrial Disputes Act, which postulates, that representation on behalf of the respondents-workmen before the Industrial Tribunal could have only been in the manner prescribed. Insofar as the instant aspect of the matter is concerned, learned counsel for the appellant invited our attention to Rule 40 of the U.P.Industrial Disputes Rules, which prescribes the representation of parties. Rule 40 is being extracted hereunder:
40. Representation of parties. – (1) The parties may, in their discretion, be represented before a Board, Labour Court or Tribunal,-
(i) in the case of a workman subject to the provision of sub-section (3) of Section 6-I, by-
(a) an officer of a Union of which he is member, or
(b) an officer of a Federation of Unions to which the union referred to in clause (a) above, is affiliated, and
(c) where there is no union of workmen, any representative, duly nominated by the workman who are entitled to make an application before a Conciliation Board under any orders issued by Government, or any members of the executive, or other officer;
(ii) in the case of an employer, by
(a) an officer of a union or Association of employers of which the employer is a member, or
(b) an officer of a federation of unions or associations of employers to which the union or association referred to in clause (a) above, is affiliated, or
(c) by an officer of the concern, if so authorized in writing by the employer:
Provided that no officer of a federation of unions shall be entitled to represent the parties unless the federation has been approved by the Labour Commissioner for this purpose.
(2) A party appearing through a representative shall be bound by the acts of that representative.
(3) An application for approval of a federation of unions for representing the parties before a Board, Labour Court and Tribunal shall be made in Form XX to the Labour Commissioner:
Provided that no federation of unions shall be entitled to apply for approval unless a period of two years has elapsed since its formation.
(4) On receipt of an application under sub-rule (3) above, the Labour Commissioner may, after making such enquiries, as he deems fit, approve the federation or reject the application. In case a federation is approved its name shall be notified in the Official Gazette otherwise the applicant shall be informed of the position in writing by the Labour Commissioner.
(5) The Labour Commissioner or the Registrar of the Trade Unions, Uttar Pradesh, may, at any time before or after a federation has been approved, call for such information from the federation as he considers necessary and the federations shall furnish the information so called for.
(6) Every approved federation shall,-
(a) intimate to the Labour Commissioner and to the registrar of Trade Unions, Uttar Pradesh, in Form XXI every change in the address of its head office and in the members of the executive (including its office bearers) within seven days thereof; and
(b) submit to the Labour Commissioner and to the Registrar of Trade Unions, Uttar Pradesh by December 31 every year a list of unions affiliated to its in Form XXII.
(7) The Labour Commissioner may, at any time and for reasons to be recorded in writing, withdraw the approval granted to a federation under sub-rule (4) above.
(8) A party aggrieved by the order of the Labour Commissioner under sub-rule (4) or (7) may within one month from the date of the receipt of such order prefer an appeal before the State Government, whose decision in the matter shall be final and binding.
8. It is the submission of the learned counsel for the appellant, that in the absence of any Union, of which the respondents-workmen were members, Sub-clause (a) and (b) of Rule 40(1)(i) of the U.P.Industrial Disputes Rules, would be inapplicable. It was his submission, that the representation on behalf of the respondents-workmen could have been only in terms of Rule 40(1)(i)(c). This, according to the learned counsel for the appellant, was because of the admitted position between the rival parties, that the respondents-workmen were not members of any Union of workmen. In the above view of the matter, placing reliance on Rule 40(1)(i)(c), it was the submission of the learned counsel for the appellant, that the representation on behalf of the respondents-workmen could have been, only out of those workmen who were entitled to make an application before a Conciliation Board, under the orders issued by the Government. In this behalf, reliance was placed on Notification No.7248 dated 31.12.1958 (published in U.P.Gazette Extraordinary of 31.12.1958). A relevant extract of the aforesaid Notification dated 31.12.1958 is being reproduced hereunder:
Reference of disputes to Conciliation Board (1) An application for the settlement of an industrial dispute may be made before the Conciliation Officer of the area concerned in Form I with five spare copies thereof-
(i) in the case of a workman
(a) subject to the provisions of sub-section (3) of S.6-1, by an officer of a union of which he is a member, or by an officer of a Federation of Unions to which such union is affiliated; or
(b) where no union of workmen exists by five representatives of the workmen employed in a concern or industry, duly elected in this behalf by a majority of the workmen employed in that concern or industry at a meeting held for the purpose, or by all workmen, employed in the concern if their number is not more than five;
Provided that where no union of workmen exists and the application is made by representatives of the workmen duly elected as aforesaid, a copy of the resolution adopted at a meeting held for the purpose shall be attached to the application in form I, and
(ii)……. … …
8.1. Having placed reliance on the Notification dated 31.12.1958, learned counsel for the appellant placed reliance on a judgment rendered by the Allahabad High Court in M/s Mahabir Sizing and Processing Co. and others v. The Industrial Tribunal, Allahabad [1979 LAB I.C.674].
9. We have given our thoughtful consideration to the submissions advanced at the hands of the learned counsel for the appellant-management. Section 6-I of the U.P.Industrial Disputes Act has already been extracted hereinabove. Having examined the same minutely, we are of the considered view that Section 6(1) would be applicable only in a situation where, the workmen seek to be represented by others, and choose not to represent themselves in the proceedings. In such an exigency, it is imperative to make a choice in terms of the mandate contained in Section 6-I of the U.P.Industrial Disputes Act. It is not open for the workmen to be represented even through a legal practitioner, without the consent of the opposite party. Representation through a legal practitioner other than by consent of the opposite party, is precluded by Section 6-I(2). In case the workmen desire to be represented by an officer of the Union, the choice can only be of such officer who has held the position in the Union, which had subsisted for a period of more than two years. We have already extracted hereinabove Rule 40 of the U.P.Industrial Disputes Rules. Under the above rule also, representation is contemplated through an officer of the Union, through an officer of the Federation of Unions, and in case of the absence of any Union, in the manner stipulated under Rule 40(1)(i)(c). We find no difficulty whatsoever in concurring with the learned counsel for the appellant-management insofar as his submissions, on the issue of representation are concerned.
10. In the adjudication of the present controversy, the primary issue to be determined is, whether Section 6-I of the U.P.Industrial Disputes Act, and Rule 40 of the U.P.Industrial Disputes Rules, would be applicable in a situation where the workmen choose to present their case before the Industrial Tribunal, by themselves or by choosing a few amongst themselves on behalf of themselves. In our considered view, the choice of an individual to represent himself in a dispute before a Court or a Tribunal, is a vested inherent right. It is only the privilege of being represented through someone else, that needs the sanction of law. Section 6-I, as also, Rule 40 de-alienate the extent to which the above privilege can extend. In case, workmen before an Industrial Tribunal choose to be represented through a concerned authority, that choice must be in conformity with Section 6-I, as also, Rule 40 aforementioned.
11. During the course of hearing, learned counsel for the appellant very fairly acceded to the inherent right of an individual to represent himself before a Tribunal or a Court. Insofar as the instant aspect of the matter is concerned, reference may be made to the observations of this Court in Goa Antibiotics and Pharmaceuticals Ltd. v. R.K. Chawla and another [JT 2011 (7) SC 559 : 2011 (15) SCC 449], wherein it was held as under:
1. Mr. Vishnu Kerikar, Deputy Manager, Finance & MS claims to be the power-of-attorney holder of the petitioner, Goa Antibiotics & Pharmaceuticals Ltd. in this case. He wishes to argue the case personally on behalf of the petitioner.
2. Section 33 of the Advocates Act, 1961 (hereinafter referred to as the Act) states as follows:
33. Advocates alone entitled to practise.Except as otherwise provided in this Act or in any other law for the time being in force, no person shall, on or after the appointed day, be entitled to practise in any court or before any authority or person unless he is enrolled as an advocate under this Act.
3. A perusal of the above provision shows that only a person who is enrolled as an advocate can practise in a court, except where otherwise provided by law. This is also evident from Section 29 of the Act. A natural person can, of course, appear in person and argue his own case personally but he cannot give a power of attorney to anyone other than a person who is enrolled as an advocate to appear on his behalf. To hold otherwise would be to defeat the provisions of the Advocates Act.
4. Section 32 of the Act, however, vests discretion in the court, authority or person to permit any person who is not enrolled as an advocate to appear before the court and argue a particular case. Section 32 of the Act is not the right of a person (other than an enrolled advocate) to appear and argue before the court but it is the discretion conferred by the Act on the court to permit anyone to appear in a particular case even though he is not enrolled as an advocate.
12. It is however the pointed contention of the learned counsel for the appellant-management, that in case the respondents-workmen had made a choice to project their case by themselves, it was imperative for all of them, to participate in the proceedings being conducted by the Industrial Tribunal. In sum and substance, it is the contention of the learned counsel for the appellant, that in case the respondents-workmen choose to appear by themselves, all 113 of them had to participate in the proceedings before the Industrial Tribunal. It was therefore his submission, that it was not open for 5 of them to represent all the 113.
13. Insofar as the above contention is concerned, learned counsel for the respondents has invited our attention to Section 5-C of the Industrial Disputes Act which is reproduced hereunder:
5-C. Procedure and powers of Boards, Labour Courts and Tribunals.- (1) Subject to any rules that may be made in this behalf, an arbitrator, a Labour Court or a Tribunal shall follow such procedure as the arbitrator, the Labour Court or the Tribunal concerned may think fit.
(2) A Presiding Officer of a Labour Court or a Tribunal may for the purpose of enquiry into any existing or apprehended industrial disputes, after giving reasonable notice, enter the premises occupied by any establishment to which the disputes relates.
(3) Every Board, Labour Court and Tribunal shall have the same powers as are vested in a Civil Court under the Code of Civil Procedure, 1908, when trying a suit in respect of the following matters, namely,-
(a) enforcing the attendance of any person and examining him on oath or affirmation or otherwise;
(b) requiring the discovery and production of documents and material objects;
(c) issuing commissions for the examination of witnesses;
(d) inspection of any property or thing including machinery concerning any such dispute; and
(e) in respect of such other matters as may be prescribed;
and every enquiry or investigation by a Labour Court or Tribunal shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code.
13.1. A perusal of Section 5-C leaves no room of any doubt, that in the absence of any particular rule, it is open to an Industrial Tribunal, to follow such procedure as it may think fit. We are of the view, that it is well recognised in law, that in case where more than one persons are involved collectively on the same side, it is open to them to choose one of more amongst themselves, to represent all of them. Such provision is also found incorporated under Order 1 Rule VIII of the Code of Civil Procedure which is being extracted hereunder:
8. One person may sue or defend on behalf of all in same interest.- (1) Where there are numerous persons having the same interest in one suit,
(a) one or more of such persons may, with the permission of the court, sue or be sued, or may defend such suit, on behalf of, or for the benefit of, all persons so interested;
(b) the Court may direct that one or more of such persons may sue or be sued, or may defend such suit, on behalf of, or for the benefit of, all persons so interested.
(2) The court shall, in every case where a permission or direction is given under sub-rule (1), at the plaintiffs expense, give notice of the institution of the suit to all persons so interested, either by personal service, or, where, by reason of the number of persons or any other cause, such service is not reasonably practicable, by public advertisement, as the court in each case may direct.
(3) Any person on whose behalf, or for whose benefit, a suit is instituted, or defended, under sub-rule (1), may apply to the court to be made a party to such suit.
(4) No part of the claim in any such suit shall be abandoned under sub-rule (1), and no such suit shall be withdrawn under sub-rule (3), of rule 1 of Order XXIII, and no agreement, compromise or satisfaction shall be recorded in any such suit under rule 3 of that Order, unless the court has given, at the plaintiffs expense, notice to all persons so interested in the manner specified in sub-rule (2).
(5) Where any person suing or defending in any such suit does not proceed with due diligence in the suit or defence, the court may substitute in his place any other person having the same interest in the suit.
(6) A decree passed in a suit under this rule shall be binding on all persons on whose behalf, or for whose benefit, the suit is instituted, or defended, as the case may be.
13.2. In such view of the matter, we are satisfied, that it was open to the respondents-workmen to choose one or more amongst themselves, to represent all of them before the Industrial Tribunal. In view of the aforesaid finding, we find no infirmity in the impugned order passed by the High Court.
14. While disposing of the present controversy, it is necessary for us to clarify that the instant conclusion has been drawn by categorically arriving at the conclusion that Section 6-I of the U.P.Industrial Disputes Act and Rule 40 of the U.P.Industrial Disputes Rules, would be applicable, only in a situation where the workmen choose to be represented through a third party before the Industrial Tribunal. The above provisions would be inapplicable, when the workmen choose to present their own case by themselves. In the instant situation, none of the above provisions would be invoked. Accordingly, it is also imperative for us to hold, that the judgment relied upon by the learned counsel for the appellant, would not be applicable to the facts and circumstances of the present case, since the aforesaid judgment was on the interpretation and the applicability of Rule 40(1)(i)(c) of the U.P.Industrial Disputes Rules.
15. The narration of above-mentioned facts reveals, that the respondents-workmen were inducted into the employment of the appellant-management before 1989. Conciliation proceedings were initiated on their behalf by the employees Union in 1989. The workmen were seeking regularisation from the date of their employment, and wages (and other allied benefits connected to the wages) being paid to permanent employees. The process of conciliation continued for about a decade, whereupon, the State Government made a reference of the industrial dispute raised by the respondents-workmen on 28.05.1998. Eversince the above reference, the appellant-management has initiated one or the other proceedings before the High Court, which has stalled the very initiation of consideration, of the claim of the respondents-workmen. The appellant-management was also dissatisfied with the determination of the State Government in transferring the adjudication of the dispute from the Labour Court, Ghaziabad to the Industrial Tribunal, Meerut vide its order dated 06.03.1999. A challenge to the same was raised before the High Court repeatedly. Eventually, by an order dated 28.10.2003, the appellant-management by consent accepted the adjudication of the dispute by the Industrial Tribunal, Meerut. This was where the matter was ordered to be determined by the State Government vide its order dated 06.03.1999, at the asking of the workmen. What is important is, that large number of years came to be wasted in something which was eventually acceded to voluntarily by the appellant-management. Even in so far as the present controversy is concerned, it is not understandable why the appellant-management was dissatisfied with the representation of 5 of the workmen before the Industrial Tribunal. It is not possible for us to understand what prejudice could have been caused to the appellant-management if 5 workmen had represented the respondents-workmen before the Industrial Tribunal, Meerut. All the same, the matter was brought to this Court in 2008 and is now being adjudicated finally after a lapse of 6 years. The sequence of facts noted hereinabove reveals that the claim which commenced in 1989 and was referred for adjudication by the State Government in 1998, has still not been taken up for consideration. During the course of hearing, learned counsel for the appellant-management invited our attention to the fact, that out of 113 original workmen, on whose behalf the Union had initiated proceedings under the Industrial Disputes Act, 1947, 89 had entered into an out of Court settlement with the appellant-management and 24 of them have remained. Insofar as the remaining 24 are concerned, their services have been terminated during the pendency of the adjudicatory process. While the services of Hari Niwas, one of the respondents-workmen, were terminated in the year 2000, the services of all the remaining workmen were terminated in the year 2005. We are of the view, that the appellant-management has abused the judicial process, and thereby, tired out the workmen, in the legitimate pursuit of their alleged rights. This is not the purpose for which these adjudicatory processes have been awarded for. It is for expeditious relief to workmen employed in industries, that these beneficial legislations have been enacted. We are of the view that some compensation should be awarded to the respondents-workmen for having remained involved in this assiduously long process of litigation. We therefore while dismissing the instant appeals, direct the appellant-management to pay as cost a sum of Rs.1 lakh to each of the remaining contesting workmen.
16. In view of the inordinate delay in the adjudicatory process, on account of litigation at the higher levels, we would direct the Industrial Tribunal, Meerut to make all efforts to dispose of the controversy within nine months from the date the parties appear before the Industrial Tribunal.
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