Analysis of Section 36 of the Industrial Disputes Act, 1947

Representation of Parties in Industrial Adjudication: An Analysis of Section 36 of the Industrial Disputes Act, 1947

Introduction

The Industrial Disputes Act, 1947 (hereinafter "IDA" or "the Act") is a cornerstone of labour legislation in India, enacted to provide for the investigation and settlement of industrial disputes, and for certain other purposes.[10] A critical procedural aspect of dispute resolution under the Act is the representation of parties before various adjudicatory bodies. Section 36 of the IDA meticulously outlines the framework for such representation, balancing the need for specialized assistance with the legislative intent to maintain simplicity and expedition in industrial adjudication. This article undertakes a comprehensive analysis of Section 36, examining its statutory provisions, judicial interpretations, and the evolving jurisprudence surrounding the rights and restrictions on party representation, particularly concerning legal practitioners.

The Statutory Framework of Section 36

Section 36 of the Industrial Disputes Act, 1947, delineates who may represent workmen and employers in proceedings under the Act, and under what conditions legal practitioners may appear. The section, as quoted in Cooperative Stores Ltd., New Delhi v. O.P Dwivedi, P.O, I.T (Ii), Delhi And Others[19], reads as follows:

“36. Representation of parties:—

(1) A workman who is a party to a dispute shall be entitled to be represented in any proceeding under this Act by—

(a) any member of the executive or other office bearer of a registered trade union of which he is a member;

(b) any member of the executive or other office-bearer of a federation of trade unions to which the trade union referred to in clause (a) is affiliated;

(c) where the worker is not a member of any trade union, by any member of the executive or other office-bearer of any trade union connected with, or by any other workman employed in the industry in which the worker is employed and authorised in such manner as may be prescribed.

(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;

(b) an officer of a federation of associations of employers to which the association referred to in clause (a) is affiliated;

(c) where the employer is not a member of any association of employers, by an officer of any association of employers connected with, or by any other employer engaged in the industry in which the employer is engaged and authorised in such manner as may be prescribed.

(3) No party to a dispute shall be entitled to be represented by a legal practitioner in any conciliation proceedings under this Act or in any proceedings before a Court.

(4) In any proceeding before a Labour Court, Tribunal or National Tribunal, a party to a dispute may be represented by a legal practitioner with the consent of the other parties to the proceeding and with the leave of the Labour Court, Tribunal or National Tribunal, as the case may be.”[19]

Representation of Workmen (Section 36(1))

Section 36(1) entitles a workman to be represented by specific categories of persons. Clauses (a) and (b) permit representation by an office-bearer of a registered trade union of which the workman is a member, or an office-bearer of an affiliated federation.[8], [9] This aligns with the provisions of the Trade Unions Act, 1926, which under Sections 6(e) and 22, allows for persons not actually employed in the industry (outsiders) to be office-bearers of a trade union.[22] The Supreme Court in State Bank Of India Staff Association And Another v. State Bank Of India And Others affirmed this, clarifying that such office-bearers, even if retired employees or outsiders, can represent the union.[22] This interpretation has been followed by High Courts, for instance, in Brooke Bond Lipton India Ltd.… v. The Oberoi Palm Beach Hotel, which relied on the Supreme Court's decision in Paradip Port Trust, Paradip v. Workmen ((1977) 2 SCC 339)[24], [25] (a different case from Ref 1). Clause (c) caters to workmen who are not members of any trade union, allowing them to be represented by an officer of any trade union connected with the industry or by another workman from the same industry, duly authorised.[8], [12] This provision underscores the legislative intent to ensure representation for all workmen, irrespective of union membership.

The question of an individual workman's right to representation, especially when their cause is espoused by a union, was considered in Ram Prasad Vishwakarma v. Chairman, Industrial Tribunal,Patna, & Others.[20] While the union generally represents the workman, the Madras High Court in The Tamilnad Electricity Workers Federation emphasized that the individual workman's right to judge beneficial offers concerning service conditions cannot be overridden by a union, particularly one to which they may not belong, cautioning against a "new despotism" of labour organisations.[12]

Representation of Employers (Section 36(2))

Symmetrically, Section 36(2) provides for the representation of employers. An employer can be represented by an officer of an association of employers of which they are a member, an officer of an affiliated federation, or, if not a member of any association, by an officer of any employers' association connected with the industry or by another employer in the same industry, duly authorised.[8] The Orissa High Court in P. Adinarayana Reddy v. Industrial Tribunal And Others, referencing a Bombay High Court decision approved by the Supreme Court in Paradip Port Trust (1977), noted that clauses (a), (b), and (c) of Section 36(2) are not exhaustive, suggesting a broader scope for employer representation than strictly enumerated.[13]

Restrictions on Legal Practitioners (Section 36(3) and 36(4))

A significant aspect of Section 36 is its regulation of representation by legal practitioners. Section 36(3) imposes an absolute bar on legal practitioners representing parties in conciliation proceedings under the Act or in any proceedings before a Court of Inquiry.[19]

Section 36(4) provides a conditional gateway for legal practitioners to appear before a Labour Court, Industrial Tribunal, or National Tribunal. Such representation is permissible only with the consent of all other parties to the proceeding AND with the leave of the adjudicatory body.[19] This dual condition underscores the legislative intent to restrict, though not entirely prohibit, the involvement of legal practitioners in formal adjudication.

Judicial Interpretation and Key Issues

The Rationale and Object of Section 36

The judiciary has often deliberated on the object behind Section 36, particularly its restrictive clauses concerning legal practitioners. It is generally understood that the legislative intent is to discourage representation by legal practitioners to ensure expeditious resolution of disputes, prevent proceedings from becoming overly technical or formal, and to some extent, balance the unequal strength of the parties.[14], [15], [16] The Supreme Court's observations in N.K Bajpai v. Union Of India And Another, while dealing with the Customs Act, on upholding the integrity and impartiality of tribunals through reasonable restrictions on practitioners, offer an analogous rationale.[7]

Right to Representation: Nature and Scope

Courts have consistently held that the right to representation in industrial adjudication, as well as in domestic enquiries, is not an inherent or common law right but is governed by the specific statute or rules applicable.[2], [5], [6] In the context of domestic enquiries, which are distinct from proceedings under the IDA, representation is typically governed by the certified Standing Orders of the establishment.[2], [5], [23] Section 36, therefore, exclusively governs representation in proceedings under the Industrial Disputes Act itself.[23]

"Officer of a Trade Union/Association" and Legal Practitioners

A crucial issue has been whether a legal practitioner, who is also an office-bearer of a trade union or an employers' association, can represent a party under Section 36(1) or 36(2), thereby bypassing the restrictions of Section 36(4). The Supreme Court in Paradip Port Trust, Paradip v. Their Workmen ((1977) 2 SCC 339)[24], [25] (as cited in Ref 13, 24, 25) settled this, holding that if a legal practitioner is genuinely an officer of a registered trade union or an association of employers (e.g., President, Vice-President, Secretary), they are entitled to represent the workman or employer, as the case may be, under Section 36(1) or 36(2). In such cases, the conditions of Section 36(4) (consent of other party and leave of court) do not apply. The Himachal Pradesh High Court in the MS HIM CYLINDER PVT. LTD. cases reiterated that once the qualifications under Section 36(1) or 36(2) are fulfilled, the motive of appointment of such legal practitioners as office-bearers is generally not a relevant consideration for the Tribunal.[14], [15], [16], [27] This position is supported by the structure of the Trade Unions Act, 1926, which allows non-employees to be office-bearers.[22]

However, the Kerala High Court in K.K. Rajan v. Kerala State Electricity Board cited State Bank of India Staff Association (1996) to suggest that representatives of workmen must be chosen only from amongst current employees.[26] This interpretation appears to be at odds with the explicit provisions of Section 22 of the Trade Unions Act, 1926, and the Supreme Court's own elucidation in SBI Staff Association and Paradip Port Trust (1977), which affirm the role of non-employee office-bearers. The dominant judicial view supports the representation by office-bearers who may be legal practitioners or outsiders, provided they hold a legitimate office in the union/association.

Legal Practitioners and Section 36(4)

The "Consent and Leave" Proviso

The conditions of "consent of the other parties" and "leave of the Labour Court, Tribunal or National Tribunal" under Section 36(4) are cumulative and mandatory for a legal practitioner to appear *qua* legal practitioner. The absence of either consent or leave disentitles the legal practitioner.[19] Courts have examined what constitutes consent, including implied consent, with decisions often turning on the specific facts of each case, such as whether advocates appeared in robes or gave appearances as advocates without immediate objection.[17]

Constitutional Validity of Section 36(4)

The constitutional validity of Section 36(4) has been a subject of judicial scrutiny with divergent views. The Delhi High Court in The Cooperative Store Limited, New Delhi v. O.P. Dwivedi upheld its validity.[17], [19] Conversely, Justice Markandeya Katju (as he then was) in the Allahabad High Court in ICI India Ltd. v. Labour Court (IV) held Section 36(4) of the IDA and a similar provision in the U.P. Industrial Disputes Act to be ultra vires Articles 14 and 19(1)(g) of the Constitution.[17], [21] The reasoning was that industrial law is complex, requiring trained legal minds, and the argument that lawyers cause delay was deemed frivolous.[21] The Supreme Court in A And B Fashions Pvt. Ltd. v. Ramesh Kumar And Others noted these divergent views and observed that a fresh look at Section 36(4) might be necessary in changed circumstances, though it did not decide the constitutional question itself.[17] Challenges to its constitutionality have continued, as seen in The National Horticultural v. The Government Of India.[18] The principles laid down in N.K Bajpai v. Union Of India And Another concerning reasonable restrictions on professional rights in the public interest and for maintaining the integrity of judicial processes might offer a framework for evaluating such challenges.[7]

Individual Workman's Right to Representation

The Supreme Court in Ram Prasad Vishwakarma v. Chairman, Industrial Tribunal,Patna, & Others dealt with the representation of an individual workman whose dispute was espoused by a union.[20] Generally, the union that espouses the cause represents the workman. However, Section 36(1) provides avenues for representation. The emphasis in The Tamilnad Electricity Workers Federation on the individual workman's autonomy, particularly when not a member of a dominant union or when a settlement is proposed, highlights the balance between collective representation and individual rights.[12]

Comparative Analysis with Representation in Domestic Enquiries

It is pertinent to distinguish representation under Section 36 IDA from representation in domestic (internal) enquiries conducted by employers. As established in cases like Bharat Petroleum Corporation Ltd. v. Maharashtra General Kamgar Union And Others[2], Crescent Dyes And Chemicals Ltd. v. Ram Naresh Tripathi[5], and Indian Overseas Bank v. Indian Overseas Bank Officers' Association And Another[6], the right to representation in domestic enquiries is primarily governed by the certified Standing Orders of the establishment or specific service regulations. These often restrict representation to a co-worker and may not permit legal practitioners or external trade unionists, unless the rules provide otherwise. Section 36 of the IDA, on the other hand, applies specifically to proceedings *under the Act* before conciliation officers, Courts of Inquiry, Labour Courts, Industrial Tribunals, and National Tribunals.[23]

Conclusion

Section 36 of the Industrial Disputes Act, 1947, provides a detailed and nuanced code for the representation of parties in industrial adjudication. It seeks to facilitate representation through trade unions and employer associations, reflecting the collective nature of many industrial disputes, while also providing for individual representation. The restrictions on legal practitioners, particularly under Section 36(4), have been a focal point of extensive judicial discourse, including debates on its constitutional validity and practical application. The Supreme Court's clarification in Paradip Port Trust (1977) regarding legal practitioners as office-bearers under Sections 36(1) and 36(2) has provided significant clarity, though the debate around Section 36(4) itself continues to evolve. Ultimately, Section 36 embodies a legislative effort to balance expertise, expedition, fairness, and the unique dynamics of industrial relations in the pursuit of industrial peace and justice in India.

References