R. Sudhakaran v Labour Court, Kozhikode & Grasim Industries Limited

# IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: ## THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE MONDAY, THE 19TH DAY OF FEBRUARY 2018 / 30TH MAGHA, 1939 WP(C).No. 20562 of 2009 ## PETITIONER(S) ------------ R.SUDHAKARAN, AMMAVEEDU, SURYA NAGAR, MEKKINKARA,, KAVALOTTUKONAM, PERUKAVE P.O., TRIVANDRUM-695 573. BY ADVS.SRI.A.JAYASANKAR SRI.MANU GOVIND SMT.B.MEERA SMT.P.R.RAKHI RESPONDENT(S): -------------- ## 1. LABOUR COURT,KOZHIKODE. ## 2. GRASIM INDUSTRIES LIMITED, MAVVOR, CALICUT, REPRESENTED BY ITS CHIEF, EXECUTIVE OFFICER. R1 BY SENIOR GOVERNMENT PLEADER SRI.B.VINOD R2 BY ADV. SRI.P.GOPINATH THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19-02-2018 ALONG WITH WP(C).No.34101/2007, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: TS ## **A.MUHAMED MUSTAQUE, J.** ========================= **W.P.(C).Nos.34101/2007 & 20562/2009** ~~~~~~~~~~~~~~~~~~~~~~~~~ Dated this the 19[th] day of February, 2018 ## **J U D G M E N T** 1. Both these writ petitions are filed by one and the same petitioner, a workman. It concern an order passed by the Labour Court, Kozhikode permitting the management to be represented by a legal practitioner. W.P.(C).No.34101/2007 is filed challenging the above order. When the challenge was pending before this Court and a stay was granted against the order permitting the management to represent through the legal practitioner, (produced as Ext.P3), the management sought permission before the Labour Court to represent through an officer of the Employers' Federation. That request was allowed. In fact, the Officer of the Federation of Association of ## **`WPC 34101/2007 & 20562/2009`** ## **-:2:-** Employers, who was permitted to appear is the same lawyer, who was permitted to represent as the legal practitioner as per the order which is the subject matter of challenge in W.P.(C).No.34101/2007. The workman challenged the order of the Labour Court permitting the management to appear through the officer of the Employers' Federation in W.P.(C).No.20562/2009 (produced as Ext.P5). - 2.In view of the common issues involved in both these writ petitions, it is appropriate to dispose these writ petitions by a common judgment. 3. In so far as the issue in W.P. (C).No.34101/2007 is concerned, I shall - deal with the facts leading to the order The dispute that was referred for adjudication is, in fact, in regard to the issue which led to the termination of the workman. The Labour Court issued summons ## **`WPC 34101/2007 & 20562/2009`** ## **-:3:-** to the management. The first hearing was on 26/3/2007. On that day, the workman appeared in person. The management was represented by Advocate Abdussalam. The Advocate representing the management submitted before the Labour Court that, Sri E.K.Nandakumar from Menon & Pai proposes to appear for the management. On that day, a claim statement was filed on behalf the workman. He also gave a copy of the claim statement to Advocate Abdussalam during the roll call in the Labour Court. The case was then adjourned to 3/5/2007. Immediately after the case was adjourned, the workman stood up and submitted before that court that he had objection in the matter of the management engaging a lawyer. It was specifically noted by the Labour Court that the workman went to the back side of the benches during court hours and thereafter, came back making a ## **`WPC 34101/2007 & 20562/2009`** ## **-:4:-** submission as above. Thereafter, the objection was considered. Taking note of the fact that the workman had already given a copy of the claim statement to Advocate Abdussalam and the workman had not objected the proposal of Advocate Abdussalam that Advocate Nandakumar was proposing to appear on behalf of the management, the Court found that the Workman cannot retract from his consent already given in the matter. Accordingly, the objections were overruled and the management was permitted to appear through Advocate Nandakumar. 4. The fate of W.P.(C).No.20562/2009 would depend upon the outcome of W.P.(C). No.34101 of 2007. If W.P.(C).No. 34101 of 2007 is dismissed, the question that is mooted in W.P.(C). No.20562/2009 as to whether a member of an association of employers can represent an employer will ## **`WPC 34101/2007 & 20562/2009`** ## **-:5:-** become more academic question rather than a legal issue to be thrashed out in the said writ petition. The case of the Workman is that an 'officer' of an association of employers alone can represent an employer in terms of Section 36(2) of the Industrial Disputes Act, 1947. Section 36(2) speaks about representation of employers. Section 36(4) states that in any proceedings before the Labour Court, the parties in dispute may be represented by the legal practitioner with the consent of other parties to the legal proceedings and with the leave of the court. Notwithstanding the notification of Section 30 of the Advocates Act, 1960 to the effect that an Advocate is entitled as a right of practice before all the courts and the Tribunal, if special legislation envisages such consent, the Advocate as a matter of ## **`WPC 34101/2007 & 20562/2009`** ## **-:6:-** right cannot claim such right of practice, except with the consent, as contemplated under the statutory provision. (See the judgment of the Hon'ble Supreme Court in Paradip Port Trust v. Workmen [(1977) 2 SCC 339]. The question is whether the workman had given consent or not. The fact finding authority, the labour court found that the workman had given consent. The consent in this case has been inferred from the conduct of the workman. 5. The learned counsel for the petitioner relying upon the judgment of the Delhi High Court in Prasar Bharti, BCI v. SP Sharma [(1999) 1 LLJ 1306 (Del)] submitted that the workman is not precluded from making such representation against the employer merely because he did not make objection at the earlier stage. 6. It may be true, merely, because the workman had not raised any objection ## **`WPC 34101/2007 & 20562/2009`** ## **-:7:-** earlier, it does not mean that the Workman had given consent to the parties for appearing through legal practitioner in the absence of any positive conduct on the part of the workman to infer that such consent has been issued. The consent can be either in writing or implied. In this case, no consent was issued in writing. Therefore, only possible inference is whether conduct itself constitute a implied consent. When a Workman offered a claim statement to the management through the representing counsel, that itself proves that the workman had not placed any objection, the management being represented through the lawyer. If the workman had, in fact, entertained any intention to object such conduct, certainly, he would have raised his objection when the matter was taken up during roll call, by objecting to the ## **`WPC 34101/2007 & 20562/2009`** ## **-:8:-** representation made by Advocate Abdussalam. This also would show that the workman had at the time of roll call as well as giving copy of the claim statement to the Advocate had no intention to object appearance of the legal practitioner for management. Merely because immediately after a few minutes he raised an objection, it cannot indicate that he had objection at the time of allowing the representation. The facts clearly would show that such objection was only an after thought. Anyhow, the jurisdiction of this Court under Article 226 of the Constitution is not sitting upon the decision of the Labour Court but to correct any errors committed in the decision making process. There are materials before the Labour Court to hold that consent was given by the Workman and he retracted by an after thought. In such ## **`WPC 34101/2007 & 20562/2009`** ## **-:9:-** circumstances, this Court cannot find that the decision suffered from jurisdictional infirmity. In such circumstances, this Court is of the view that W.P. (C).No.34101/2007 only has to be dismissed. It is accordingly, dismissed. 7. Further, in the light of the above observation, the question raised in W.P. (C). No.20562/2009 has become academic and leaving open the question whether a member of an Association of employers can represent employer or not, that writ petition is only to be dismissed as infructuous. 8. Though, the learned counsel for the petitioner persuaded this Court to decide the issue on merits, considering the fact that the issue has become more academic and it will not sub serve any purpose, this Court is not inclined to take a ``` WPC 34101/2007 & 20562/2009 ``` ## **-:10:-** decision on merits. Hence, W.P.(C). No.20562/2009 is dismissed as infructuous. ## **A.MUHAMED MUSTAQUE, JUDGE** ms