Full Text
HIGH COURT OF DELHI
Date of Decision: 24th August, 2021
A AND B FASHIONS PVT. LTD. ..... Petitioner
Through: Mr. Vinay Sabharwal, Advocate
Through: None for the Respondents.
Mr. Raj Birbal, Ms. Raavi Birbal and Mr. Gunjan Singh, Advocates assisting the Court.
JUDGMENT
1. This hearing has been done through video conferencing. CM APPL. 27780/2021 (for exemption)
2. Allowed, subject to all just exceptions. Application is disposed of. WP(C) 8929/2021 & CM APPL. 27779/2021 (for interim stay)
3. The present petition challenges order dated 19th March, 2021 by which Mr. Vinay Sabharwal, ld. counsel who was appearing for the Petitioner-Management was not permitted to represent his client before the Industrial Tribunal. His request for conducting the cross-examination of the Respondents-Workmen’s witness was also rejected. After recording the statement of the witness, without affording the Petitioner-Management an opportunity for cross-examination, the evidence of the Workmen was closed. The impugned order reads as under: 2021:DHC:2598 “19.3.2021 Present: Sh. Rajesh Khanna, AR for the workmen alongwith workmen in person. Sh. Vinay Sabharwal, Advocate is appearing for and on behalf of the management. However, AR of the workmen has pointed out to the application filed by and one behalf of the workmen under Section 36 ID Act which was disposed of vide order dated 18.10.2018 in the light of non appearance of the Advocate representing the management earlier and also noting the presence of the representative of the management thereafter, as satisfied. In the light of this order made on the application under Section 36 ID Act legal representation for the management is not permissible. No one is present on behalf of the management. Affidavit of evidence of Sh. Tadkeshwar has been tendered in evidence. His examination in chief has been recorded as WW-23. Sh. Vinay Sabharwal, Advocate appearing for and on behalf of the management request for conducting the cross examination of WW-23. Request is declined. Witness is discharged after giving opportunity nil. WE is closed on statement of the AR for the workman recorded separately. One application has been filed by and on behalf of the management for recalling of the workmen whose statement has been recorded on 2.3.2021. In the light of the earlier order dated 18.10.2018, application is dismissed. With regard to two deceased workmen namely Sh. Vidhya Narain and Sh. Shahbuddin no one is present today. Proceeding qua them is abated. Put up for ME on 28.5.2021. Advance copy of the affidavit of evidence be supplied to the opposite party one week before the next date. Management is directed to complete its entire evidence within two effective dates.”
4. Mr. Sabharwal, ld. counsel appearing for the Petitioner-Management submits that this order is completely contrary to the prevailing law on the issue inasmuch as Advocates are permitted to represent the management, so long as there is no objection by the workman or the litigation expenses are paid. He submits that in this case, the Management was being represented by an Advocate on several hearings. The Advocates who had appeared earlier for the Management, were Mr. Neeraj Kumar and Mr. Shashwat Singh Gaur. However, on one occasion, when the authorized representative i.e., the Accounts Manager was appearing on behalf of the Management, an order was passed on 18th October, 2018 recording that the authorized representative i.e., Mr. Sanjeev Jamwal and not Mr. Neeraj Kumar, Advocate was appearing for the Management. The application filed by the Workmen under Section 36 of the Industrial Disputes Act, 1947 was disposed of on that ground.
5. Mr. Sabharwal, ld. counsel submits that the authorized representative of the Management was appearing at the time when pleadings were being exchanged and other procedural formalities were being completed. However, when the matter reached the stage of trial, the Management thought it fit to engage the services of an Advocate for tendering evidence and conducting cross-examinations. Accordingly, Mr. Sabharwal had been engaged in the matter. However, for the reasons recorded in the impugned order, he was not permitted to represent the Management or cross-examine the witness of the Workmen.
6. Mr. Sabharwal, ld. counsel submits that it is the usual practice before Labour Courts that Advocates appear and represent the management as well as the workmen. Workmen are engaging experts, though they may not be enrolled as Advocates. He points out that in the present case, Mr. Rajesh Khanna, authorized representative for the Workmen is one such representative of the trade union, regularly appearing for workmen before the Labour Courts. He submits that the Management would be enormously prejudiced if the Workmen are permitted to be represented by an expert and the Management is not allowed to engage an Advocate. Reliance is placed upon the judgment of the Supreme Court in Thyssen Krupp Industries India Private Limited v. Suresh Maruti Chougule & Ors. [Civil Appeal NO. 6586/2019, decided on 21st August, 2019], wherein the earlier judgment of the Supreme Court in Paradip Port Trust, Paradip vs. Their Workmen (1977) 2 SCC 339 has been referred to a larger Bench.
7. Considering the nature of the issue raised, some counsels who regularly appear before the Labour Courts were called upon by this Court to make submissions in this regard. Mr. Raj Birbal and Ms. Raavi Birbal, who are present in the hearing, submit that the legal position is well-settled that Advocates are allowed to appear before the Labour Courts, as decided by the Division Bench of this Court in M/s Bhagat Brothers v. Paras Nath Upadhyay, (2008) 149 DLT 381. The judgment in Thyssen Krupp Industries India Private Limited (supra) is also reiterated.
8. Mr. Gunjan Singh, ld. counsel who regularly appears for workmen before the Labour Courts and before this Court was also asked as to what the position on ground is. He submits that the workmen do engage Advocates regularly and, in any case, so long as litigation expenses are paid, both the workmen and the management are permitted to be represented through Advocates.
9. Considering the nature of the matter, Mr. Sabharwal, ld. counsel was requested to telephonically inform Mr. Rajesh Khanna, the authorized representative for the Workmen, to join the proceedings. Mr. Sabharwal, ld. counsel submits that Mr. Khanna when contacted telephonically, has declined to appear before this Court as he is not an Advocate. Advance copy of the petition is already served. Intimation by counsel upon directions of the Court was also given. However, the AR of the workmen has not appeared. Considering the above, this Court proceeds further in the matter.
10. The only question that has arisen in the present matter is in respect of the representation of Advocates before Labour Courts. Section 36 (4) of the Industrial Disputes Act, 1947 reads as under:
12. The judgment in Paradip Port Trust (supra) has again been considered in Thyssen Krupp Industries India Private Limited (supra), wherein the Supreme Court has opined that the question as to whether the provisions of the Industrial Disputes Act, 1947 or the Advocates Act, 1961 would prevail is required to be considered by a larger Bench. However, in the said case, the Supreme Court clearly directed that the workman is at liberty to engage an Advocate, so long as his fee is paid by the management, and the management can also be represented by an Advocate. The relevant portion of the judgment of the Supreme Court in Thyssen Krupp Industries India Private Limited (supra) is set out hereinbelow:
13. The judgment of the ld. Division Bench of this Court, quoted by Ms. Birbal, is also apt in this context. The ld. Division Bench in Bhagat Brothers (supra) considered the other case law and decisions dealing with the constitutional validity of Section 36 (4) to finally observe as under:
14. Apart from the above decisions, there have been divergent views expressed by various High Courts on the question of whether there was consent – implied or expressed, and whether leave ought to be granted by the Adjudicator concerned. Judicial decisions on the question of consent, including implied consent, have primarily turned on the facts of each case. Courts have noted factors such as whether the advocates were appearing in robes (Samarendra Das v. M/s Win Medicare Pvt. Ltd. [W.P.(C) 5159/2013, decided on 11th February, 2014]), whether the appearance was given as an advocate (Ved Prakash Dubey, Jai Prakash Dubey & Ram Bachan Soni v. M/s Maheshwari Gas Service [LPA 162/2016, decided on 24th November, 2016]), etc. However, with the recent decision of the Supreme Court in Thyssen Krupp Industries India Private Limited (supra), the clear conclusion would be that a legal practitioner can represent the management before the Labour Court, if the litigation expenses for the workman to engage the advocate are paid by the management. Moreover, in Bhagat Brothers (supra) the ld. Division Bench has also noted factors that would tilt towards allowing Advocates to appear before the labour courts including the fact that it would prejudice small employers etc.,
15. The facts of the present case show that the Management was earlier being represented by Mr. Neeraj Kumar, an Advocate, which is recorded in order dated 18th October, 2018, which reads as under: “18.10.2018 Present: Some of workmen alongwith A.R. Sh.Rajesh Khanna. Sh. Sanjeev Jamwal, A.R. for the management. From perusal of file, it is clear that an application u/ s 36 of J.D. Act was filed on behalf of the workmen by Sh. Rajesh Kumar, Ld. A.R. for the workmen. But on the very first date of appearance, Memo of Appearance was filed on behalf of Sh. Neeraj Kumar, Advocate. Admittedly Sh. Neeraj Kumar is not appearing in the present matter after 15/12/15. It has been submitted by Sh. Sanjeev Jamwal, Ld. A.R. for the management that he is only person, who will be representing the management in the present matter. On this, Ld. A.R. for the workmen has no objection if the application u/ s 36 ID Act is disposed off as satisfied. In view of this the application u/ s 36 of ID Act is therefore disposed off. Heard. It is submitted by both the parties that there is no document for admission/ denial. Out of the pleadings of the parties, following issues are framed:
1. As per the terms of reference.
2. Relief No other issue arises or is pressed. PF/DM and list of witnesses be filed within 15 days from today. Ld. AR for workman is directed to supply advance copy of affidavit to Ld. AR for the management one week prior to the next date of hearing. Put up on 07/02/2019 for WE.”
16. Mr. Sabharwal, ld. Counsel submits that one Mr. Shashwat Singh Gaur was also appearing as an Advocate in this matter for the Management. A perusal of the impugned order also shows that the Labour Court records that the Advocate who was earlier appearing for the Management was thereafter replaced by the authorized representative. Thus, initially, there appears to have been consent for the Management to be represented by an Advocate.
17. Be that as it may, any litigation before the Labour Court has various stages. Initially, the pleadings and other procedural formalities are completed between the parties. At that stage, the management and the workmen may choose not to expend their resources by engaging Advocates. However, as the matter reaches trial, it would be inapt to say that the management or the workmen would not be entitled to engage Advocates or legal practitioners to represent them, in accordance with law. If the Management wishes to be represented by a legal practitioner, the Court can consider the question of whether the workman has given consent or not, whether impliedly or otherwise. The Court, upon finding consent, may also award litigation expenses to permit the legal practitioner to appear for the Management. This is clearly the spirit of the judgment in Thyssen Krupp Industries India Private Limited (supra).
18. The impugned order shows that though the advocate Mr. Sabharwal, for the Management was present on the date of hearing i.e., 19th March, 2021, the Labour Court has observed that no one is present on behalf of the Management. Such kind of treatment cannot be meted out to an Advocate who was present in court on a particular date. The Court has justified the same by recording that an earlier application under Section 36(4) has been disposed of at a time when the Authorized Representative of the Management was appearing. This approach is fallacious. The Labour Court could have adjourned the matter to enable the Management to put forward its case as to why it requires the services of an advocate at the stage of crossexamination. Thereafter, the Labour Court, after perusing the record ought to have given a finding as to whether there was implied consent at any stage of the proceedings for the Management to be represented by an advocate. The Court could have also considered whether litigation expenses could be paid to the workman. To completely oust the opportunity for crossexamination, even while the advocate for the Management was present, would be contrary to the spirit of Thyssen Krupp Industries India Private Limited (supra). Such an approach would cause irreparable prejudice to the Management.
19. In view of the above legal position and the facts of this case, the impugned order is clearly not sustainable. The same is accordingly set aside.
20. Under these circumstances, it is directed that the parties shall appear before the Labour Court on 20th September, 2021. On the said date, the Labour Court would firstly, after hearing the submissions on behalf of the parties, decide the question as to whether the Management can be represented by an advocate and on what terms and conditions. Thereafter, the Management would be given an opportunity to cross-examine the witness whose statement was recorded on 19th March, 2021. If the Management prays for an opportunity to cross-examine other witnesses of the Workman whose cross-examination was earlier not permitted, an application may be moved before the Labour Court, which shall be considered in accordance with law. After the cross-examination of the workman’s evidence, the Management’s evidence shall be recorded.
21. The writ petition is allowed in the above terms. All pending applications are also disposed of.
22. This Court appreciates the assistance rendered by the ld. counsels Mr. Raj Birbal, Ms. Raavi Birbal and Mr. Gunjan Singh, who were present in Court today.
PRATHIBA M. SINGH JUDGE AUGUST 24, 2021/mw/T (corrected and released on 26th August, 2021)