U.C.SRIVASTAVA,J. - (1.) The question raised in this writ petition is the permissibility of representation by a lawyer of the employer in proceedings under the industrial Disputes Act pending before the Presiding Officer, Industrial Tribunal (II), Lucknow. The Industrial Tribunal rejected the objection on this behalf raised by the representatives of the employees and the said order is subject matter of challenge in this petition. A show cause notice was issued by this Court on the writ petition tiled by the employees to the employer to show cause why petition should not be admitted and it was also provided in the order of this Court that the petition may be heard and disposed of finally on that date and that is why the petition is being disposed of finally. It is also admitted.
(2.) THE dispute raised by the Fertilizer Karkhana Mazdoor Union against the employers regarding helpers allowance to its employees was referred to the Labour Court. Gorakhpur. On 17th November 1982, the first date fixed in the case, no one from the side of the employees was present and the case was adjourned to 22nd December 1982. The employers representative. Sri O.N. Mehta, Advocate was present and signed the order sheet, as an Advocate. Thereafter, he never added the word Advocate while signing order sheet. Sri O.N. Mehta who is practicing lawyer at Gorakhpur, as has been disclosed in the writ petitions was Legal Adviser of the employer and was getting retainer from it. In the authority letter which was placed on the record he was not mentioned as an Advocate or practicing lawyer. He was mentioned therein as Legal Adviser. On 22nd December 1982 no one was present on behalf of employees and 13th January 1983 was fixed for filing of written statement. The employer was represented by the said Sri Mehta. Same was the position on 13th January 1983. The employer filed its written statement and order for sending a copy to the employees was passed and 8th February 1983 was fixed for R.D. On 8th February 1983 the General Secretary of Employees Union appeared and filed written statement and Huh March 1983 was fixed for R.D.I. The order sheet was signed by Sri Mehta and Sri Pandey. On 16th March 1983, it appears that employees' representative was not present and an application for adjournment was moved on behalf of the employees. The case was adjourned to 13th April 1983 for filing of written statement by employees. The order sheet was signed by Sri Mehta only. On 13th April 1983 the aforementioned representatives of employer and employees were present. No further written statement or rejoinder was filed on behalf of the employees and the case was fixed for framing of issues on 30th July 1983. At the instance of representatives of both the parties, the case was adjourned to I6th July 19S3. Under the orders of State Government dated 29th October 1983, the case was transferred to Industrial Tribunal II, Lucknow. On 21st January 1984, that is the first date before the Tribunal, it directed notice to be sent to Mazdoor Union and fixed 5th March 1984 for filing of written statement. Thereafter the case came up before the Tribunal on 5th March 1984. 5th April 1984, 6th April 1984, 23rd July 1984 and 31st August 1984. On these dates, both the aforementioned representatives of parties were present and signed the order -sheet. On 31st August 1984 issues were framed by the Industrial Tribunal The next date in the case viz., 9th October 1984 was fixed for workmen's evidence. The case was listed thereafter on 11 dates. It was on the 12th date in the case after 9th October 1984 viz., on 3rd January 1985 an application was moved on behalf of workmen for redacting the representation of employers by Sri O.N. Mehta and written statement and rejoinder affidavit filed on behalf of employer by Sri I.K. Nagpaul. The Industrial Tribunal took the view that as Sri Mehta was being paid a monthly remuneration by the employer he came within the category of officers of Company and was entitled to represent it by virtue of payment of monthly remuneration Section 6I of the U.P. Industrial Disputes Act which is analogous to Section 36 of the Central Industrial Disputes Act provides for representation of parties. It reads as under: Section 6I. Representation of the parties: (1) Subject to the provisions of Sub -sections (2) and (3), the parties to an industrial dispute may be represented before the Board, Labour Court, or Tribunal in the manner prescribed. (2) No party to any proceeding before a Board shall be represented by a legal practitioner, and no party to any proceeding before a Labour Court or Tribunal shall be represented by a legal practitioner, unless the consent of the other party or parties to the proceeding and the leave of the Presiding Officer of the Labour Court or Tribunal, as the case may, has been obtained. (3) No officer of a Union shall be entitled to represent any party unless a period of two years has elapsed since its registration under the Indian Trade Unions Act, 1926 and the Union has been registered for one trade only: - - - - Provided that an officer of a federation of 5 unions may, subject to such conditions as may be prescribed, represent any party. Rule 40 of U.P. Industrial Disputes Rules so far as it is relevant reads as under: Rule 40. Representation of parties. -(1) 3 The parties may, in their discretion, be represented before a Board, Labour Court to Tribunal (i).... (ii) in the case of an employer, by (a) an officer of a Union or association of employers of which the employer is a member, or, (b) an officer of a federation of unions or associations of employers to which the Union or association referred to in Clause (a) above, is affiliated, or (c) by an officer of the concern, if so authorized in writing by the employer. Section 6I of the Industrial Disputes Act thus prohibits the representation before Conciliation Boards, Labour Court and Industrial Tribunal by legal practitioner unless consented to by the other party and permitted by the authority or court before which appearance is to be made. Not only because the parties are unequal but the dispute between employer and employees is not that of ordinary litigation and the law is directed for resolving it so as to maintain homogeneous relationship between the parties. Rule 40 of the Rules framed under the Act which is similar in language to the Central Act allows appearance by officer of the Employers Union or Federation of such unions and officer of employer concern if he is so authorized. In this case, there is no dispute that officer concerned is an officer of the Association or Federation. The Tribunal has taken the view that he is an officer of the employer concern. The question is whether a practicing lawyer who is legal adviser of the concern and gets retainer from it could be an officer within the meaning of Rule 40 or he is only a legal practitioner who comes within the prohibition of Section 6I being a legal practitioner for whom there is no specific consent nor any order of the Labour Court or Industrial Tribunal granting permission to him to appear on an application or otherwise. The word officer' has not been defined either under the Act or Rules framed thereunder. The word 'officer has been defined under the Indian Companies Act. Indian Fertilizer Corporation is a Company within the meaning of Companies Act. The definition of word 'officer' in Section 2(3) of the Companies Act reads as under: Section 2(3). 'Officer' includes any director, managing agent, secretaries and treasurers, manager or secretary (or any person in accordance with whose directions or instructions the Board of Directors or any one or more of the directors is/are accustomed to act) and also includes - (a) where the managing agent, the secretaries and treasurers or the secretary is or are a firm, any partner in the firm. (b) where the managing agent, the secretaries and treasurer is or are a body corporate, any director or manager of the body corporate. (c) where the secretary is a body corporate, any director, managing agent, secretaries and treasurer or the manager of the body corporate. The said definition is not exhaustive, but it postulates relationship of employer and employee and in accordance with whose direction the Board of Directors or any one or more Directors are accustomed to act. A lawyer gets retainer obviously for appearing and giving advice and to watch its interest and not to appear against it. It does not confer any power upon him to issue directions and instructions to any director and he is to act upon it.
(3.) THE relationship between lawyers and client is contractual. The position of a lawyer practicing profession of law and getting retainer from some client, in this case a Company, and appearing for it and tendering advice to it and not appearing against it does not in any manner establish the relationship of employee and employer. This relationship is terminable at the will of either party at any time and either party cannot claim a right to it or for it. By accepting monthly retainer a lawyer does not hold any office in the Company or Corporation and does not become its officer. There are certain rights and limitations of a lawyer also in view of the Bar Council Act. The unreported decision in Writ Petition No. 1014 of 1969 decided on 29th January, 1976 Workmen of M/s Prakash Talkies, Lucknow v. Presiding Officer Labour Court and Ors. 1977 (34) F.L.R. 105 in which case the person concerned was not legal practitioner has no applicability to the facts of this case. In the said case reliance was placed on the case of Sarabeshwar Bardoloi v. U.K. Gohain and Ors. (AIR) 1955 Assam 148 in which it was observed that the learned Judges have not laid down any exhaustive role as to when a lawyer can be deemed to be an officer of a concern. In Assam's case (Sarbeshwar Bardoloi's case (supra) legal practitioner, the representation by whom was questioned, was said to be legal adviser and an officer of the Association of Employers. The question that was covered was whether representation was covered by Section 36(2)(a) that is U.P. Rule 40(ii) which permits officer of association of employers to represent the employer before Labour Court or Tribunal etc. Thus Assam's case (supra) has no applicability to the instant case as there was or is no such averment and the representation involved in this case is different and not by an officer of association of employees. The cases relied upon by the Tribunal have no applicability to the instant case. The Industrial Tribunal was swayed by the fact that the lawyer concerned was getting remuneration every month. The lawyer concerned thus not being an officer of the employer concerned it committed an apparent error of law in holding the said legal practitioner to be an officer of the employer corporation.;