DECISION ' This is an application for Review/Restoration of Appeal which was dismissed by this Tribunal by order, dated 17-9-1990, which may be reproduced as under:- "17-9-1990.
' None present for the parties.
' The matter is about four years old. Mr. Raees M. Mushtaq, Advocate for the appellants has filed power. Mr. Bashir Awan, Advocate has filed power on behalf of the respondent but none of them has taken permission from the Tribunal under section 49(2) of I.R.O., 1969 to represent the parties in the Tribunal. As such parties would be deemed to be unrepresented. Appeal is therefore dismissed for non-prosecution.
(Sd.)
Appellate Tribunal."
2. I have heard Mr. Raees M. Mushtaq, for the applicant/appellant and Mr. Bashir Awan, for the respondent.
3. Mr. Raees M. Mushtaq has raised following points for consideration:-
(i) That no application under section 49(3) of IRO, 1969, was necessary in the Tribunal;
(ii) That as the application under section 49(3) of IRO had been moved and granted in the Labour Court it was not necessary to move fresh application in appeal which was a continuity of the proceedings in the Labour Court:;
(iii) That in fact no application under section 49(3) was necessary as the grievance application which was subject-matter of the case before the Labour Court and of appeal in this Tribunal was not an industrial dispute as defined in the IRO;
(iv) That he could not appear on the date of hearing because of his illness.
4. To appreciate the arguments of Mr Raees M. Mushtaq, Advocate for the appellants, it will be necessary to reproduce section 49, which reads as under:- "49. Representation of parties.--(1) A workman who is a party to an industrial dispute shall be entitled to be represented in any ' proceedings under Ordinance by an officer of a collective bargaining agent and subject to the provisions of subsection (2) and subsection (3) any employer who is a party to an industrial dispute shall be entitled to be represented in any such proceeding by a person duly authorised by him.
(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 proceedings before Labour Court, or before an Arbitrator, with the permission of the Court or the Arbitrator as the case may be."
5. It is not disputed that grievance petition moved under section 25-A of I.R.O., 1969, does not strictly fall within the definition of industrial dispute as defined under section 2(xiii). It is also settled law that industrial dispute can be raised either by Trade Union or by the employer and not by an individual workman therefore I need not go into discussion on these issues.
6. However under section 25-A(4) the grievance of individual worker when taken before the Labour Court such matter has to be decided by the Labour Court as if such matter were in an industrial dispute.
7. The question that requires consideration is whether section 49 was enacted only for such proceedings which are industrial disputes as defined under the Ordinance or whether it will be applicable even to matters which are to be decided as if such matter were in an industrial dispute.
' In this context would by pertinent to look to the language of subsection (1) of section 49. In that subsection the words used are 'a workman who is a party to an industrial dispute'. The industrial disputes are raised in-the manner prescribed under section 26 which only speaks of industrial disputes between employer and the collective bargaining agent. If, however, no settlement is reached between the employer and the collective bargaining agent in bilateral negotiations the matter is taken to the Conciliator under section 30 or to the Arbitrator under section 31 and finally to the Court under section 32(1-A). The industrial disputes referred to in these sections as pointed out above are industrial disputes between the employer and the collective bargaining agent and not between employer and the individual worker or between individual worker or employer. If the intention of the legislature was to restrict the application of section 49 only to industrial disputes as mentioned under sections 26 to 34 then the words 'a workman' would not have been used in the subsection (1).
9. Section 49 is a sort of procedural provision. Word 'procedure' has been defined in the Chambers (20th Century) Dictionary as: "mode of proceedings; method of conducting business specially in law eases."
' Section 49 lays down procedure as to how the cases are to be conducted in the Labour Court either by the party himself or through representative or through the Advocate. The I.R.O. Does not provide for separate procedure in cases pertaining to industrial disputes and in cases pertaining to individual grievance of a workman. As pointed out above under subsection (4) of section 25-A the matter of grievance when taken to the Labour Court is to be decided as if such matter was in an industrial dispute. Law, thus, contemplates that the procedure to be adopted by the Labour Court would be same both in industrial dispute and in the grievance petition. It will, therefore, not be in accordance with the scheme of the I.R.O. To hold that section 49 is applicable to industrial disputes and not to matter which is to be decided as if the same was an Industrial Dispute.
10. In support of my view I would like to refer to the decision of their Lordships of the Supreme Court in the case of Syed Muhammad Hussain v. M/s. Pakistan Tobacco Co. Ltd. PLD 1980 Supreme Court
80. In that case their Lordships considered the import of word 'himself' used under section 25-A.
Their Lordships were of the opinion that 'if the concept of agency is to be regarded as inherent in the word "himself' then plainly it would be against its real meaning and this could not be the intention of the Legislature which has purposely used this word to avoid legal quibbles. The legislative intent seems to be to avoid interference by any other outside agency. It would appear from the scheme of the legislation that the appearance through legal practitioners is restricted and wherever he is eligible to appear it has been so enacted. Section 49 of the Ordinance makes this intent obvious and in this view of the matter it would be anomalous to introduce the concept of agency in word himself for in that eventuality the object of the law can easily be defeated.' It will be clear from the above observations of their Lordships that section 49 was applicable even to the proceedings under section 25-A otherwise their Lordships would not have referred to the intention of the legislature under section 49 in order to interpret the word "himself' used under section 25-A of I.R.O., 1969.
11. This question was also considered at length by this Tribunal in Appeat No, HYD-338 of 1989-- General Secretary, Ramzan Ali & Co Cotton- Ginning Factory Employees' Union, Mirpurkhas v. M/s. Ramzan Ali & Co Cotton Ginning Factory, Mirpurkhas, decided on 21-11-1989, wherein this Tribunal came to the conclusion that the word 'industrial dispute' used under section 49 was used in its broader sense and disputes have been termed as "industrial disputes" because they are to be resolved under the provisions of Industrial Relations Ordinance. In this context it may also be relevant to reproduce a quotation from the Law of Industrial Disputes by Malhotra, Third Edition Volume I, page 1547, which is as under:- "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 Geo SC 69) provided that except as provided by rules, "no person shall be entitled to appear in any such proceedings by counsel or soliciter". However rule 8 of the Industrial Courts (Procedure) Rules, 1930, permits persons to appear by counsel or soliciter 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 lenguage of Goswa mi, J., "lndustrial Law in India did not commence with a show of cold shoulder to lawyers as such. There was an unimpended 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 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 representation 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 inposed, for the first time, upon representation of the parties by legal practitioners before the Labour Court and Industrial Tribunal 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 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 prople, 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".
12. It will be pertinent to reproduce the corresponding provision to section 49 in the Industrial Disputes Act, 1947 referred to in the aforementioned quotation from the Law of Industrial Disputes by Malhotra. Section 36 of Industrial Disputes Act, 1947 reads as under:- " 6 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."
' It will be seen that the party had unrestricted right to be represented by a legal practitioner in any proceeding before Court or Tribual. This Act was replaced by Industrial Disputes Ordinance, 1959.
Section 34 may be reproduced as under:- "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 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 a Court adjudicating such dispute."
It would be seen under subsection (2) of section 34 a restriction was placed on the party as it could be represented by legal practitioner only by consent of the parties. In the Industrial Relations Ordinance under subsection (3) of section 49 this restriction is modified and the representation by a legal practitioner is made subject to permission of the Court.
13. Considering all these facts and law discussed above I am of the opinion that the provisions of section 49 are applicable to the proceedings in the Labour Court even in matters under section 25- A of I.R.O., 1969.
14. It is next contended by Mr. Raees M. Mushtaq that under subsection (3) the permission is required only for appearance before the Labour Court and Arbitrator as is clear from the wording used in subsection and not before the Appellate Tribunal. I am afraid I am unable to agree with this contention that a party cannot be represented by legal practitioner before a Labour Court except by permission of the Court, but it could be represented by legal practitioner before Appellate Tribubal without the permission of the Appellate Tribunal. This could not be the intention of the legislature in view of the intent of the legislature as spelt out by their Lordships in the aforementioned case of Syed Muhammad Hussain v. Pakistan Tobacco Co. Ltd. The power of Labour Court to grant permission to the party to be represented through a legal practitioner impliedly includes power to refuse such permission. Under section 38(3) of I.R.O., 1969 the Tribunal shall exercise all the powers conferred by this Ordinance on the Labour Court, which will also include the power to permit or refuse to permit appearance of legal representative.
15. The contention of Mr. Races M. Mushtaq that appeal, was continuity of proceedings in the Labour Court and therefore no fresh permission under section 49(3) was required from the Appellate Tribunal when the permission had already been grented by the Labour Court has also no force. The permission is granted to the party to be represented through a particular Advocate. Mr. Races M.
Mushtaq conceded that even when Advocate engaged by the party in the Appellate Court is same, as in the lower Court, still an Advocate has to file fresh power in the Appellate Court. On the same analogy he would require fresh permission for his appearance before, the Tribunal under subsection (3) of section 49 of I.R.O. If it is held that Advocate representing the party in the lower Court continues to represent the party in the Appellate Court then it will create anomalous situation. It is settled law, that service on an advocate of party is sufficient service on the party.
Therefore in appeal the Appellate Court need not serve the party in person but it would be sufficient service if notice is served on Advocate of the party appearing in the lower Court even when that party had taken away the papers from the Advocate as the Advocate would continue to represent the party, unless his power is terminated by the Court after adopting the procedure laid down under the Civil Procedure Code.
16. With regard to his personal ground of illness it will be noted that as the learned Advocate was not permitted by this Tribunal to appear for the party under section 49(3) his presence or absence was not material. The party viz. Appellant admittedly was absent on the date of hearing and even in this application no reason is shown for the absence of party. As such the application is dismissed.