05.03.2010. W.P. 22405 (W) of 2008 DVC Staff Association & Another
Damodar Valley Corporation & Another
Ms. Chaitali Bhattacharya,
Ms. Lipi Majumder.
... For Petitioners
Mr. Dipak Kr. Ghosh,
Mr. Ranjay De.
... For Respondent No. 1
Mr. B. R. Patranabish,
Ms. Mousumi Mitra.
... For State
In this writ petition, DVC Staff Association represented through its Kolkata Committee, the petitioner no. 1 a registered Union under the Trade Unions Act, 1926 and the petitioner no. 2, the Secretary of the Kolkata Committee of the petitioner no. 1-have challenged the order dated 3rd March, 2008 passed by the learned 1st Industrial Tribunal in Case No. VIII-18/06 G.O. 254 IR dated 24th /27th February, 2
2006 and the letter of authority filed by the Damodar Valley Corporation (for short 'DVC), the respondent no. 1 authorising two persons, who are learned advocates, to represent the said respondent. The main ground of challenge is that though section 36(2)(a) of the Industrial Disputes Act, 1947 (for short the 'Act') postulates that the status of the officers of such association must be qua employers and not otherwise, however, as it is evident from the documents that the membership of Assam, West Bengal, Orissa and Bihar Employers' Association (for short the 'association') consists not only of employers but also non employers including practising advocates, the association cannot be said to be an association of employers. Moreover, as the two learned advocates have been engaged as Secretary and the Assistant Secretary of the association, such engagement is against the provisions of the Bar Council Act, 1961 and the Rules framed thereunder. Since no documents have been furnished showing that the authorized representative take part in making policy decision, they cannot be considered as officers of the association. Submission is the Tribunal 3
too did not seek documents regarding their membership of the association. Hence, as the two representatives did not fulfil the conditions laid down in Section 36(2)(a) of the Act, they were not entitled to represent the association. However, ignoring the same and without directing production of articles of association of DVC, order impugned was passed rejecting the objection raised by the petitioner no. 1 allowing the two representatives to represent as officers of employers' association. Moreover, before the Tribunal the membership of DVC was not proved. Submission is since it applied for membership on 19th January, 2007, that is after reference was filed, mere application for membership does not ipso facto mean that DVC became a member. Thus, the finding on issue no. 8 is not based on records. Besides, no document regarding authorization was filed. Therefore, whether association is an association of employers under section 36(2)(a) is a question of law and a basic question, which was not raised by the petitioner before the Tribunal, order may be passed directing the Tribunal to decide the issue which would lead to complete adjudication of all issues. 4
However, it was conceded that the motive behind authorizing the representatives to represent the association cannot be questioned.
Learned advocate appearing on behalf of the respondent no. 1 relying on the affidavit-in-opposition submitted that since the issue whether the petitioner no. 1 is an association of employers' or not was not raised before the learned Tribunal, it cannot be raised at this stage. Besides, from a perusal of the documents filed before the Tribunal it is evident that it is an association of employers. Had it been raised before the Tribunal it could have been proved that it is an association of employers. Moreover, that the representatives are the officers of the employers' association is evident from the documents filed by the DVC which have been appended to the writ petition, the veracity of which have not been challenged. That apart, being officers of the employers' association, the two authorised representatives appeared not as legal practitioners but as officers of the said association. Referring to the annexures it is submitted that Rule permits for an individual to become a member of the 5
association. So far as the question regarding the fact whether DVC is a member or not, it is submitted that evidently DVC applied for membership on 19th January, 2007. Therefore, there is no perversity in the order under challenge.
Learned advocates for the parties have relied on several judgments in support of their respective submissions.
The question which falls for consideration is whether Assam, West Bengal, Orissa and Bihar Employers' Association is an association of employers as postulated under Section 36(2)(a) of the Act. In order to answer the question it is necessary to refer to Section 36(2)(a) of the Act which is as under : "36. Representation of parties.-
(2) An employer who is a party to a dispute shall be entitled to be represented in any proceeding under this Act by-
(a) an officer of an association of employers of which he is a member;"
The law is that in any proceeding an employer shall be entitled to be represented by an officer of an 6
association of employers. It is the statutory mandate. Therefore, under Section 36(2)(a) of the Act before a person is authorized to appear as an officer it is to be ensured that he is the officer of an association of employers. Hence, adjudication of the said issue is essential. However, in the instant case the petitioner admittedly did not plead the said issue before the Tribunal. The question is can the issue still be raised? Since the question is primarily a question of law, the answer has to be in the affirmative as any other interpretation would defeat the very purpose for which enactment was made. It is to be kept in mind that mandate of law has to be given primacy. Unlike a question of fact, a statutory requirement cannot be ignored and legislative purpose cannot be given a go-by. In the instant case, the petitioners have pleaded in paragraph 15 of the writ petition that the association cannot be said to be an association of employers which has been countered in paragraph 19 of the affidavit in opposition filed by the respondent no.1. The said paragraph of the opposition is as under :- "19. The contentions and allegations put forward in paragraph 15 of the said Application are denied and disputed. If Clause (a) of Sub-Sec.2 of 7
Sec.36 of the Industrial Disputes Act, 1947 provides for Association of Employers and if admittedly Assam, West Bengal, Orissa and Bihar Employers' Association is an Association of Employers, the contention regarding status of the members of such Association is totally misconceived and misleading. The Association is functioning since 1960 and said Association and Constitution thereof has not been struck down by any Court of law. The contention that the Employers Association must be quo- employers, not otherwise is beyond the scope and ambit of the jurisdiction of the Petitioners to make any comment thereupon. The membership of the Association is governed by the Constitution of the Association and it is beyond the jurisdiction of the Petitioners to give wishful interpretation of the Constitution of the Association.
The interpretation sought to be given to Sec.2(g) of the Industrial Disputes Act, 1947 is totally misconceived and misleading. The Petitioners cannot give their wishful interpretation to the definition of a Statute as has been sought to be done.
The contention to the effect that the Association cannot be an Association of Employers since the same consist of Employers as well as Professionals has no basis whatsoever. In any event, the Association is a registered one since 1960 and the same has not been held to be invalid by any Court of Law."
As seen, the defence of the DVC is a) that the employers' association must be qua employers, not otherwise, is not for the petitioners to comment, b) the petitioners cannot give their wishful interpretation of the constitution of the association and c) the association has not been held to be invalid by any 8
Court of law. Therefore, it is clear from a reading of the petition and the affidavit in opposition that there has been no adjudication whether the association is an association of employers. Since it has an impact on all other issues, such adjudication is essential to satisfy the requirements under Section 36(2)(a) of the Act. Moreover, whether the Association is an association of employers or not is a question which goes to the root of the matter. In this context, it is appropriate to refer to law laid down by the Supreme Court in Ratan LaL Sharma vs. Managing Committee, Dr. Hariram (Co- Education) Higher Secondary School & Others reported in 1993(4) SCC 10 wherein it has been held that if "the plea goes to the root of the question"...." it is only desirable that a litigant should not be shut out from raising such plea which goes to the root of the lis involved." In my view, as adjudication of the issue whether the association is an association of employers under Section 36(2)(a) of the Act is a basic question, it requires adjudication by the Tribunal. Therefore, for the reasons as aforesaid, the order impugned cannot be sustained and is, thus, set aside and quashed. The writ 9
petition is allowed. The learned Tribunal is directed to consider the issue whether the Assam, West Bengal, Orissa and Bihar Employers' Association is an association of employers under section 36(2)(a) of the Act after giving the parties an opportunity to present their case in accordance with law. I make it clear since this question is a core issue, at this stage other issues have not been gone into.
There will be no order as to costs.
Urgent photostat certified copy of this order, if applied for, be supplied to the parties on priority basis.
(SOUMITRA PAL, J.)