1984 PLP 771 (PLC)

(2) No party to an Industrial Dispute shall be entitled to be represented by a legal practitioner in any conciliation proceedings under this Ordinance. (3) A party to an Industrial Dispute may be represented by a legal practitioner in any proceeding before the Labour Court or before an Arbitrator, with the permission of the Court or the Arbitrator as the case may be." Since some of the learned counsel appearing in this matter have referred to the previous law on the subject, it would be appropriate to compare the wording of section 49, I. R O., with the language of section 36 of the Industrial Disputes Act, 1947 and section 34 of the Industrial Disputes Ordinance, 1959. Section 36 of the former Act reads as follows : ‑ "

36. Representation of parties.‑(1) A workman who is a party to an Industrial Dispute shall be entitled to be represented in any proceedings under this Ordinance by an officer of a registered trade union, and any employer who is a party to an industrial dispute shall be represented in any such proceeding by an officer of an association of employers. (2) No party to Industrial Dispute shall be entitled to be represented by a legal practitioner in any conciliation proceedings under this Act. (3) A party to an Industrial Dispute may be represented by a legal practitioner in any proceeding before a Court or Tribunal. The entitlement of a party to an Industrial Dispute to be represented by a legal practitioner in any proceeding before an Industrial Court or Tribunal was severely restricted and made subject to the consent of all the parties to the dispute by section 34 of the Industrial Disputes Ordi nance, 1959, which read as follows :‑ "

34. Representation of parties.‑(1) A workman who is a party to an industrial dispute shall be entitled to be represented in any proceedings under this Ordinance by an officer of a registered trade union, and any employer who is a party to an industrial dispute shall be entitled to be represented in any such proceeding by an officer of an association of employers. (2) No party to an industrial dispute shall be entitled to be repre sented by a legal practitioner in any conciliation proceedings, or, except with the consent of all the parties to the dispute, in any proceedings before a Court adjudicating such dispute," Realising the difficulty of obtaining the consent of all parties to the dispute the Legislature though that the grant of such permission should vest in the Labour Courts and, accordingly, this modification was made in section 49, I. R. O. Dealing with the history of the legislation on the subject and comparing the provisions in this behalf in various countries, including England, India and Pakistan, the learned Authors of the "Law of Industrial Disputes" by Malhotra, Third Edition; Volume I, page 1547, write as follows :‑ "Restriction on parties in respect of representation through legal .practitioners before industrial tribunals is not a new phenomenon in England. Section 9 of the Industrial Courts Act, 1919 (9 & 10 Gen S C 69) provided that except as provided by rules, "no person shall be encitled to appear in any such proceedings by counsel or solicitor". However, rule 8 of the Industrial Courts (Procedure) Rules, 1930, permits persons to appear by counsel or solicitor with the permission of the Court. Even the Industrial Relations Act, 1971 (1971, C‑72) did not make any alteration in this Law. In the language of Goswami, J., "Industrial law in India did not commence with a show of cold shoulder to lawyers as such. There was an un impeded entrance of legal practitioners to adjudication halls before Tribunals when the Act first came into force on April 1, 1947". The provisions relating to representation of employers and workmen before the authorities under the Act were contained in the original section 36 of the Act, which provided that in any proceeding under the Act, the workman would be represented by an officer of a registered trade union and the employer would be represented by an officer of an association of employers. Though the representa tion of the parties to an Industrial Dispute by a legal practitioner in any conciliation proceeding was completely banned the parties were given the right of being represented by a legal practitioner in any proceeding before a Labour Court or an Industrial Tribunal. Three years later, a restriction was imposed on the .representation of the parties, by Industrial Disputes (Appellate Tribunal) Act, 1950, by legal practitioners before the Labour Appellate Tribunal without the consent of the parties and the leave of the tribunal. In view of the restriction introduced in the appellate forum, the same was imposed, for the first time, upon representation of the parties by legal practitioners before the Labour Court and Industrial Tribunals as well as by substituting the present section for the original one. The original Bill No. 61 of 1949 which was introduced to provide for the establishment of the Appellate Tribunal proposed the provisions by clause 34 of the Bill, to give absolute right to a party to an appeal to be represented by a legal practitioner in any proceeding before the Appellate Tribunal. The clause was substantially similar to the provisions of the original section ‑36 of the Industrial Disputes Act. Thus, the Bill intended to continue the provisions of the original section 36 enabling a party to the dispute to be .represented by a legal practitioner before the adjudicatory authorities as well as the Labour . Appellate Tribunal. This provision was not, however, accepted by the Parliament. On the contrary, the provisions relating to the rights of a legal practitioner to represent the parties to an "Industrial Dispute" were incorporated in the Act of 1950 as well as in the Schedule which amended section 36 of the Industrial Disputes Act. The Act of 1950 was repealed by the Industrial Disputes (Amendments and Miscellaneous Provisions) Act, 1956 (Act 36 of 1956). But even after the repeal, section 36 of the Act continues to be in force in spite of repeal of that Act. There have been two minor changes made by the amending Acts of 1971 and 1972, which have been noted in the body of the section. In view of the recent thinking on the matter of providing legal aid to the poor and weaker sections of the people, the Supreme Court in Paradip Port Trust v. Their Workmen has suggested that it may even be possible that the conditional embargo under section 36 (4) may be lifted or its rigours considerably reduced by leaving the matter "to the tribunal's permission as has been the case under the English Law".

8. Reverting back to section 49,

1. R. O., a bare perusal of the said section makes it clear‑ (a) that it is restricted in its application to parties to an industrial dispute, including a workman (b) that the section refers to the entitlement of the parties to representation and does not deal with the rights of a person either to practice before Labour Courts or to appear in proceedings before Labour Courts ; and (c) that the restriction is limited to entitlement to be represented by a legal practitioner, but such restriction may be overcome by obtaining permission in this behalf from the Labour Court. As already indicated. the proceedings in which Syed Zamirul Hassan was appearing and in which he has now been prohibited from appearing by the order in question of the learned Labour Court are in respect of a grievance application under section 25‑A, I. R. O. It has, therefore, to be seen whether those proceedings can be deemed to be an Industrial Dispute and the parties in such application can be deemed to be parties to an Industrial Dispute. Section 2(xiii), I. R. O. defines "Industrial Dispute" as follows :‑ "(xiii) "industrial dispute" mean any dispute or difference between employers and employers or between employers and workmen or between workmen and workmen, which is concerned with the employment or non‑employment or the terms of employment or the condition of work of any person ; and is not in respect of the enforcement of any right guaranteed or secured to him by or under any law, other than this Ordinance, or any award or settlement for the time being in force." It will be seen that the above definition of "Industrial Dispute" expressly excludes from its purview individual grievance's under section 25‑A,

1. R. O., which are limited to enforcement of rights of individual workmen guaranteed or secured by any law, an award or settlement. Furthermore, section 43, I. R. O., expressly provides that no industrial dispute shall be deemed to exist unless it has been raised in prescribed manner by a collective bargaining agent or an employer. The manner in which an industrial dispute can be raised is prescribed in sections 26, 30 and 31, I. R. O. Admittedly the grievance petition before the learned Labour Court was neither by the C. B. A. nor by the employer. More over, the proceedings were not taken in the manner provided in sections 26, 30 and 31, I. R. O. Finally, the grievance petition was by a single workman. The question whether an individual workman could raise or be a party to an industrial dispute was examined by a Division Bench of the erstwhile High Court of West Pakistan in the case Jalal Din v. Orient Match Company. Repelled the contention that an individual workman could raise or be a party to an industrial dispute it was held by the Division Bench as follows :‑ "It is now well‑settled that a dispute between an individual workman and an employer cannot be an Industrial Dispute as defined in section 2 (k) of the Industrial Disputes Act unless it is taken by a union of the workmen or by a considerable number of workmen. In their view the individual workman is at no stage a party to the industrial dispute independently of the union. The union or those workmen who have by their sponsoring turned the individual dispute into an industrial dispute, can, therefore, claim to have a say in the conduct of the proceedings before the Tribunal. The same view was taken in Murtaza Ali Khan v. Pakistan Pharmaceutical Industry Ltd. where it was observed by the Chairman of the Industrial Court of East Pakistan after referring to the definition of industrial dispute: "From the above definition itself it is clear that an industrial dispute connoted a general dispute and not an individual dispute. It is now well‑established from a series of decisions of the superior Courts that an individual dispute does not come under the purview of the Industrial Disputes Ordinance and that an industrial dispute can be converted into an industrial dispute only if the case of the individual workman or workmen is taken up by other employees as their own cause. Thus the dispute regarding the discharge or dismissal of individual workman is an individual dispute. Such a dispute can become the subject‑matter of an industrial dispute only if the body of the workmen in general represented through Union or by a considerable number of them take up his case, who should in virtue of rule 58 of the Industrial Disputes (Central) Rules, 1960, authorise in this behalf five of its representatives at a meeting held for the purpose."

9. It is true that subsection (4) of section 25‑A,

1. R. O., provides that where a grievance petition is preferred before the Labour Court it is to give a decision on the grievance petition within seven days as if such matter were in an industrial dispute, but this does not make a grievance B petition or the proceedings relating thereto an industrial dispute as explained by this Tribunal in the cases as Johnson and Johnson (Pakistan) Ltd. v. Zubair Ahmed and Karachi Development Authority v. Abdul Rehman. In the latter case this Tribunal observed as follows "A bare perusal of the above subsection shows that where a matter falling under section 25‑A, I. R. O., is taken to the Labour Court, it shall give a decision as if such matter were in an industrial dispute. In other words, only after the matter is properly brought before a Labour Court in accordance with the provisions of section 25‑A, I. R. O., is the Labour Court required to give a decision in the matter as if the matter were in an industrial dispute. It will be seen that the Legislature has not laid down that the matter is deemed to be an industrial but it is to be dealt with as if it were in an industrial dispute. In other words the Legislature was referring to the procedure of the Labour Court in dealing with such grievance petitions. It may be pointed out that subsection (2) of section 36, I. R. O., confers power of a Civil Court upon a Labour Court only for the purposes of adjudicating and determining an industrial dispute. Apparently it was considered appropriate to confer such power upon the Labour Court while dealing with grievance petitions under section 25‑A, I. R. O., as no other procedure has been prescribed for the disposal by the Labour Court of such applications."

10. It will further be seen that section '49,

1. R. O., deals with entitlement of a party to be represented in proceedings before a Labour, Court and not to the right of a person to appear or practice before al Labour Court. The word "entitled" appearing in the said section came up for interpretation before a learned Single Judge of the Karachi High Court in the reported as case Afzal Stores v. Sind Labour Court No.

3. It was held in that case as follows :‑ "In simple dictionary meaning the word "entitled" as defined in Shorter Oxford English Dictionary, 1952 Edition, means "as having a title to something." The word "title" itself has been defined in the same Dictionary as "that which justifies or substantiates a claim ; a ground of right ; hence, as alleged or recognized right". Accordingly, it is apparent that what the section confers upon a workman in regard to representation in any proceedings under the Ordinance is a right to be represented through an officer of Collective Bargaining Agent but does not exclude representation through any other person duly authorized by him. There is thus a statutory sanction in favour of any officer of a Collective Bargaining Agent to represent a workman in any proceedings under the Ordinance and the words "shall be entitled" cannot be read to mean that a workman is not entitled to be represented otherwise than by an officer of a Collective Bargaining Agent. The right to be represented solely and exclusively by an officer of a Collective Bargaining Agent only, if it was so desired, should have been pro vided specifically as it is provided in sub‑clause (2) of section 49 barring representation through a legal practitioner in any concilia tion proceedings. This interpretation further finds support from the consideration that there may be cases where an officer of a Collective Bargaining Agent may not at all be available the absence of the existence of a Collective Bargaining Agent in an establishment, who is to be appointed on compliance and fulfilment of the conditions prescribed under section 22 of the Ordinance. Such a workman, thus, having howsoever a pressing grievance, would be left without a remedy even though it may be for a short while. Such absurdity and hardship is to be avoided in interpret ing a statute. Further on a still narrower interpretation of section 49 it may also be possible to contend that a worker is not even entitled to represent his case personally because he "shall be entitled to be represented" only by an officer of a Collective Bargaining Agent.

11. In an earlier decision, as Employees' Union v. Khewra Soda Company Ltd., Khewra (1962 P L C 731), the Industrial Court of West Pakistan had held that section 34 of the Industrial Disputes Ordinance, 1959, was neither restrictive nor exhaustive but premissive and appropriate mode of representation by authorised agent was not ruled out. A somewhat similar view was taken by a Division Bench of the erstwhile High Court of West Pakistan in the case Sher Muhammad v. Chairman, Industrial Court of West Pakistan (1967 P L C 147). In that case it was observed by the Division Bench as follows :‑ ‑'It appears to us that section 34 of the Ordinance does not operate as a complete bar against all the known forms of representations in Court. In subsection (2) of this section it is expressly laid down that no party to an industrial dispute shall be entitled to be represented by a legal practitioner in any conciliation proceedings, or except with the consent of all the parties to the dispute, in any proceedings before the Industrial Court. This is the only prohibi tion introduced by section 34 of Ordinance. In it there is no bar against the other well‑accepted modes of representation in Courts by an agent or specially authorised attorney. In our opinion, subsection (1) of section 34 is an enabling provision of law. It is permissive in its extent and its scope is by no means restrictive. It provides that a workman or an employer who is a party to any industrial dispute shall be "entitled" to be represented in such proceedings by an officer of the registered Trade Union or an association of employers, respectively. It does not expressly rule out any other mode of representation for a party in the proceedings under the Ordinance. The subsection is not exhaustive in its implications. Its purpose is to grant a statutory recognition to an additional mode of representation by the workmen and the employer in the proceedings under the Ordinance to which they are party. So that in any proceedings under the Ordinance the workmen can also be represented by an officer of the registered Trade Union and an employer by an officer of an association of employers under the force of this statute."

12. The view taken by the Indian Courts is similar to the view taken by our Courts. The Bombay High Court case of Khadilkar v. Indian Hume Pipe Company Ltd. (3), held that the Personnel Officer of the Company, a lawyer by qualifications, being a graduate in law but not enrolled as an Advocate who held a Power of Attorney executed by the company, was entitled to appear and represent the company in an industrial dispute before the Industrial Tribunal and the objection raised to his: appearance by the Workers' Union was overruled.

13. The Indian Supreme Court has also dealt with the issue of representation of parties in industrial adjudication, including the issue, of when legal practitioners can appear in such proceedings. In the case reported as Paradip Port Trust v. Their Workmen (4), it has held that section 36 of the Industrial Disputes Act, 1947 is not exhaustive in the sense that besides the persons specified therein there cannot be any other lawful mode of appearance of the parties as such and has taken the view that in the case of companies and corporations they can be represented by their Directors or their own officers authorised to act in this behalf. It has further held that if a legal practitioner is appointed as an officer by a company or a corporation and is in their pay and under their control and is not a practising Advocate the fact that be was earlier a legal practitioner or has a law degree will not stand in the way of the company being represented by him.

14. Finally I would refer to two decisions of their Lordships of the Supreme Court on the subject of prohibition on the appearance of legal practitioners in proceedings before a Labour Court. On the basis of these two decisions a Circular on the above subject was also issued by this Tribunal. In the case of Syed Muhammad Hussain v. Pakistan Tobacco Company it was held that the provisions of section 49,

1. R. O., which prohibit a party to an industrial dispute from being represented by a legal practitioner in any proceeding before a Labour Court save with the permis sion of the Court override the general provisions enacted in the Legal Practitioners and Bar Councils Act, 1973. In the earlier case of the Karachi Union of Employees and others v. Industrial Court, Karachi it was held that legal practitioners are not entitled in the guise of office‑bearers of Unions to appear in proceedings before the Industrial Court as the Legislature regards their appearance before such Court as undesirable. It will, thus, appear from the above two decisions by their Lordships of the Supreme Court that the provisions of section 49, I. R. O., is special provision relating to D proceedings before the Labour Court override the general provisions contained in the Legal Practitioners and Bar Councils Act, 1973.

15. It was also sought to be argued by Mr. Mahmood Abdul Ghani that appearance before the Labour Courts cannot be equated with practice of law in the ordinary sense as a basic rule of ordinary courts is not to be capitalist or humanitarian or socilalist but to dispense justice according to law while the purpose of industrial law and the object of industrial justice can be taken to establish a balance between the interests of workers and owners of industries so that harmonious relations are achieved and in support of his contention he relied upon a decision of a Division Bench of the erstwhile High Court of West Pakistan reported as Flour Mills Employees' Union v. Karachi Steam Roller Flour Mills but it is not necessary for me to deal with this contention in the present proceed ings.

16. The view that I have taken is that the proceedings under section 25 A, I. R. O., pending before the learned Labour Court are not proceed ings relating to a n industrial dispute and that further since Syed Zamirul Hassan is not an Advocate enrolled under the Legal Practitioners and Bar E Councils Act, the restrictions contained in section 49,

1. R. O., upon representation of legal practitioners do not apply to him or the cases in which he appears.

17. For the reasons discussed by me above, I wondd set aside the order, dated 7th April, 1983, passed by the learned Labour Court dis‑allowing Syed Zamirul Hassan to appear in the proceedings before it under section 25‑A,

1. R. O. and bold that the employer therein is entitled to' be represented through Syed Za mi rul Hassan. A. B. Appeal dismissed,