Nittoor Srinivasa Rau, J.
1. This writ petition arises from an Industrial dispute referred by the Government of Mysore to the Labour Court, Bangalore. The dispute purported to to be between a limited liability company known as the printers (Mysore) (Private), Ltd., and the workmen employed by that company. It related to the claims of respondent 2, Pothan Joseph, whose services as the editor of a newspaper run by the company, viz., Deccan Herald, were alleged to have been illegally terminated.
2. The Court posted the case to 4 November, 1958 on which date the secretary of the company, K. A. Nettakallappa, appeared. After two more dates of hearing when the statement of claim and the counter to it were filed, the case was adjourned to 20 December, 1958 for the filing of a rejoinder by the I party. On that day, i.e., 20 December, 1958, the II party, i.e., the management (company) sent an assistant accountant in their employment to represent the company. The I party objected to such representation. The Court observed that the assistant accountant had not filed any letter of authorization and that one opportunity would be given to that II party (management) to be present in person or through a competent representative and adjourned the case to 30 December, 1958. On that day issues were framed. The question of II party's representation does not appear to have come up for consideration. On the next date of hearing, i.e., 19 January, 1959, both the parties were granted an adjournment to 27 January, 1959 for filing documents and for arguments regarding the question of representation. On the latter date, arguments were heard and orders were passed by the Court holding that the assistant accountant G. S. Rama Rao could not be allowed to represent the management and calling upon the management to engage some other person to represent it. This order is challenged on various grounds in this petition under Arts. 226 and 227 of the Constitution.
3. In this Court, the presiding officer, labour court, and Pothan Joseph were originally impleaded as respondents 1 and 2. After respondent 2 appeared, him counsel represented that the opposite party before the labour court was the Mysore State Journalists' Association representing the workmen of Printers (Mysore) (Private), Ltd., and that the writ was defective as the association had not been impleaded. The petitioner's counsel stated that he would file an application for impleading the association. Such an application was filed on the next day. In the affidavit in support of the application it was stated as follows :-
'The management have contended, inter alia, that the reference by the Government is invalid and is without jurisdiction because the claim in question is a personal and individual claim of the respondent 2 and that the same has not been sponsored by the employees' association. According to the management, it is not an industrial dispute in law which could be referred for adjudication under the provisions of the Industrial Disputes Act.
The said question forms the subject-matter of one of the issues in the case. However, without prejudice to the contention of the management in regard to the validity and competence of their reference for the reasons mentioned above, in view of the objection raised by the respondent 2 herein regarding the parties to be impleaded in these proceedings, the petitioner herein begs leave of this Court to implead workmen of the Printers (Mysore) (Private), Ltd., represented by the Mysore State Journalists' Association as a party to these proceedings.'
4. The supplemental party was notified and on 16 April, 1959 Sri K. Subba Rao appearing for the Mysore State Journalists' Association stated that his client had no objection to be impleaded as a respondent. Accordingly, the petitioner's application to implead the association was allowed. The reference by the Government to the labour court was in respect of an industrial dispute purporting to be between the workmen and the management of Printers (Mysore) (Private), Ltd. It does not appear from the copy of the order sheet pertaining to the case before the labour court or the copy of the order which is the subject-matter of this writ petition in what manner the I party described in the order sheet as 'Workmen of the Printers (Mysore) (Private), Ltd., Bangalore, represented by the Mysore State Journalists' Association, District Officer Road, Bangalore-2' was represented before that Court. In the order sheet in question, Pothan Joseph is described as to applicant I party. In his affidavit, a reference is made to his holding the office of President of the Mysore Journalists' Association. It is not clear why if he represented before the labour court the association which was a representative of the employees, he could not fulfil the same rule in this Court and why it was necessary to implead the Mysore State Journalists' Association also. It is not, however, necessary to go further into the matter since we are not concerned with the respective contentions of the parties on the question at issue between them as to whether the reference by Government was competent. The impleading of the association as a supplemental defendant will not prejudice the contentions of either party on the question. We have heard the advocates for respondent 2 as also the advocate for the supplemental respondent. Both of them have opposed the writ petition.
5. It is urged by the petitioner (management) that the Court has misconstrued and misinterpreted the scope and effect of S. 36 of the Industrial Disputes Act, that the order denied to the petitioner its fundamental right of carrying on its business in the manner it is entitled to do according to law inasmuch as it is deprived of the right of appointing an agent and to carry on its business with the help of such an agent and thus offends Art. 19 of the Constitution, that the order is opposed to the principles of natural justice, that the order represents and illegal or an improper exercise of the Court's jurisdiction resulting in grave prejudice to the petitioner and that it offends Art. 14 of the Constitution as it places the parties in a position of inequality.
6. Section 36 of the Industrial Disputes Act, 1947, reads as follows :-
'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) an officer of a registered trade union of which he is a member;
(b) an officer 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 an officer of any trade union, connected with, or by any other workman employed in, the industry in which the worker is employed and authorized in such manner as may be prescribed.'
7. It is seen that similarly Sub-section (2) enables an employer to be represented by an officer of an association of employers of which the employer is a member, by an officer of a federation or an association of employers to which the association of which the employer is a member is affiliated or, 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. The argument on behalf of the management appears to have proceeded in the Court below on the footing that G. S. Rama Rao was entitled to represent the management as he was an officer of the company and also that the matter came under S. 36(2)(c). The labour (sic) is an association of directors, that G. S. Rama Rao was not an officer holding any responsible post in the company, and that, therefore, he was incapable of representing the employer company.
8. It is difficult to see how the matter could come under S. 36(2)(c) as urged for the petitioner before the labour court. It contemplates representation by an officer of an association of employers or of a federation of such associations or by any other employer engaged in or connected with the industry. Rama Rao is not an officer of any association of employers or of a federation of such associations. Nor is he 'any other employer.' The learned presiding officer of the labour court seems to have been under a misapprehension in regard to the constitution of a company. It is hardly necessary to say that a company is not an association of its directors. Nor does Sub-section (2) of S. 36 refer to an officer of the employer-concern, if the employer does not happen to be an individual, and does not refer to the representation of such a concern by an officer of the concern. The context in which the word 'officer' occurs in S. 36(2) is only in relation to the association of employers or a federation of associations of employers. It would, therefore, appear that the discussion before the labour court proceeded on lines not really germane to the question.
9. It is urged in this Court for the petitioner that S. 36 of the Industrial Disputes Act is not restrictive or exhaustive, but only permissive and does not rule out other appropriate modes of representation. Reliance is placed upon certain observations in the decision in Alembic Chemical Works Co., Ltd. v. P. D. Vyas [1954 - I L.L.J. 148]. That was a case in which the right of a legal practitioner to represent one of the parties arose. He had been appointed as an additional director at about the time the dispute under consideration was referred to the industrial tribunal. The tribunal held that the appointment was a colourable one and as under S. 36(4) of the Industrial Disputes Act, no legal practitioner could represent a party except with the consent of the other parties and with the leave of the tribunal and as such consent was not forthcoming, the legal practitioner could not be permitted to represent the management. The matter was taken up before the Bombay High Court by the management by means of a writ petition. Tendolkar, J., in dealing with the scope of S. 36 of the Act, disagreed with the view taken by a Full Bench of the Labour Appellate Tribunal of India in the case in 1952 - I L.L.J. 384 to the effect that Sub-secs. (1) and (2) S. 33 of the Industrial Disputes (Appellate Tribunal) Act, 1950, which correspond to Sub-secs. (1) and (2) of S. 36 of the Industrial Disputes Act, 1947, are intended to be exhaustive of the persons (other than the party himself) who may represent a workmen or an employer in a proceeding before the Appellant Tribunal. The learned Judge remarked that the tribunal appeared to have overlooked that there are cases of representation other than the right of a party to appear himself which were not included in the section and also not to have attached sufficient importance to the operative words of those two sub-sections which are that a workman or an employer as the case may be 'shall be entitled to be represented.' To his mind, the words clearly indicated conferment of a right upon a party and therefore S. 36 was an enabling provision and not a restrictive one and it was not exhaustive of the right of representation of parties. He added that the tribunal appeared to have overlooked the case of a corporation, which is incapable of appearing in person because it has no visible personality, being a party. The right to be heard was a substantive right and its denial would be a denial of justice. There being no specific provision in S. 36 for the representation of a corporation, it became a matter of procedure to be determined by the tribunal. Reliance was also placed for the petitioner on the decision in 1958 - II L.L.J. 121, in which it was held that a corporation can appear through an agent or by any other authorized person, the only limitation being that when that person is a lawyer he can appear only if the conditions necessary for his representation are allowed or fulfilled. One other decision referred to for the petitioner is the case in Calico Printer's Association v. Rahim & Bros. [A.I.R. 1930 Bom. 566], in which it was held that by virtue of order VI, rule 14, of the Code of Civil Procedure, it was open to a company to authorize some person to sign the pleadings of the company, and that it was not always necessary for the pleadings to be signed by any director or other principal officer of the company who is able to depose to the facts of the case as provided in order XXIX, rule 1, of the Code. It will be seen that the case related only to the question of signing and verifying a pleading and has no direct bearing on the matter. But it is to be noted that the Court took the view that order XXIX, rule 1, is in terms a permissive provision and not a restrictive one. It is urged for the petitioner that the language of S. 36(1) & (2) of the Industrial Disputes Act, 1947, is also permissive. The main argument advanced on behalf of the respondents on this point is that S. 36 is exhaustive on the question of representation and no other modes of representation than those indicated in that section are permissible. It is urged that since admittedly G. S. Rama Rao does not come under any of the categories under S. 36(2) he cannot be allowed to represent the management. Reliance is placed upon the decision in Duduwala & Co., v. Industrial Tribunal [1959 - I L.L.J. 75]. In that case, the employers sought for permission to be represented through a practising lawyer who also happened to be the joint secretary of an association of employers of which the management was a member. The management also wanted to be represented by two other persons in whose favour the management had executed special powers of attorney. The industrial tribunal did not permit representation by any of the three persons above. The High Court of Rajasthan before which the matter was taken by a writ petition held in favour of the management in regard to its representation by the legal practitioner who also happened to be an officer of the association of employers. Dealing with the second point, viz., representation by the holders of special powers at attorney, the Court observed as follows :
'So far as the first point is concerned, the answer to our mind is quite clear. The Industrial Disputes Act is a special law providing for certain special contingencies. It must therefore be treated as a complete code in itself and when it provides for representation of employees and employers before industrial courts or tribunals, that must be held to be exhaustive. There is no reason why we should import the provisions of the general law regarding representation before Courts and tribunals appointed under the Industrial Disputes Act. We have, therefore, no hesitation in coming to the conclusion that S. 36 does not contemplated anyone representing employers or employees on the basis of a special power at attorney and, therefore, Sri Baldwa and Sri Suran's right to represent Duduwala & Co. was rightly rejected.
It is enough to say that there is no question of circumvention through this method of appointment by special power of attorney. Section 36 mentions certain specific ways of representation, and appointment through a special power of attorney is not one of them. A person, therefore, be he a lawyer or any other person, cannot claim to represent the employers or employees before an industrial court or tribunal on the basis of special power of attorney.'
10. It will be noticed that in the discussion to be found in the decisions referred to above, the main question considered is whether the provisions of S. 36 of the Industrial Dispute Act are exhaustive in the matter of representation or only permissive. We are inclined to the view that the provision is not exhaustive and is only permissive, considering that Sub-secs. (1) and (2) of that section speak respectively of a workman and an employer being 'entitled to be represented.' We may also add that Sub-secs. (3) and (4) which relate to representation by a legal practitioner seem to imply that, but for the restriction placed by those sub-sections, it would be open to a party to be represented by a legal practitioner. This could not be so if Sub-secs. (1) and (2) were restrictive and exhaustive. But, in the view we are taking, it does not appear to us to be necessary to go further into that question. Section 36 deals only with representation of a party, that is to say, someone else acting for a party. It does not deal with the question of a party for himself. In the case of an individual or group of individuals, no difficulty arises in regard to such an individual or individuals acting or appearing in person. But there are cases where such a physical appearance has to be ruled out either on account of impossibility or legal incompetence. A juridical entity which has no physical or bodily existence like a limited liability company, a Government or a municipal council, would belong to the former category. A minor or a lunatic would belong to the latter category. In both the cases the law has to provide, and it has provided, the requisite machinery which would put such parties in the same position as individuals who are capable of personal appearance and of acting for themselves. In the context of industrial disputes it can easily be seen that there are many enterprises owned by the State and by limited liability companies and the local bodies may be in charge of enterprises which are industries in terms of the Industrial Disputes Act. Similarly, a minor or a lunatic may also legally be the owner of an industry, and therefore, an employer. The appropriate provisions of law relating to the functioning of a government, a local body or a limited liability company have to be looked into to see how authority is conferred upon some person to act or appear on behalf such a body. In the case of a minor, the natural or legal guardian appointed by Court acts for him. In the case of a lunatic his committee acts for him. In all these cases, the person so acting under appropriate authority brings about the same result as if the institution or the disabled individual was itself or himself acting. A person invested with such authority is no doubt described as 'representing' the institution or the disabled individual. But that representation is clearly different from the representation resulting from authority conferred upon someone outside, for example, in the case of a State Government a Secretary to Government may be under the relevant provisions authorized to act for the State in a legal proceeding. When he acts, it is the State Government that is acting. But when he engages a counsel, the counsel represents the State Government for that specific purpose. In the case of a minor, he cannot empower anyone at all to act for him. His guardian acting in his interest is legally equivalent to the minor himself acting. But when the guardian appoints someone to act in some matter relating to the minor, that person represents the minor. Though the word 'representation' appears to be appropriate in each of the separate contexts, the character of representation in the context is essentially different from that in the other. The representation in the first context establishes equivalence of the incorporeal entity or the disabled person itself or himself acting. The representation in the other context indicates the authorization of one person by another to act for him. The representation dealt with in S. 36 is of the latter character. In the case in 1954 - II L.L.J. 148 referred to above, reference has no doubt been made to the incapacity of a corporation to appear in person. It has been regarded as illustrative of cases of representation not covered by S. 36. If we may say so with respect, it seems to us that the basic difference between the two kinds of representation referred to above was not noticed. The case reported in 1959 - I L.L.J. 75 dealt with the case of the representation of a company by person who held special powers of attorney, in other words, persons outside the company who were authorized by someone acting on behalf of the company. That was a case clearly coming within the purview of S. 36. Hence, quite apart from the question whether the view taken by the Court that S. 36 is exhaustive and restrictive is the correct view or not, that decision has no direct bearing on the question arising in the present case.
11. In this connexion, the decision in Hall and Anderson, Ltd. [1954 - I L.L.J. 620], may be referred to. That was a case in which the right of the chairman of the board of directors of an employer-company was challenged on the ground that he was a legal practitioner. In dealing with this question, Sinha, J., of the Calcutta High Court observed :
'In the case of a company or a corporate body, there can be no question of its appearing by itself. Since it is not human, it must be represented by someone, and a director would be a proper person to represent it. This right of representation is quite distinct from the right conferred by Sub-secs. (1) and (2) of S. 33 of the Industrial Disputes (Appellate Tribunal) Act, 1950 [corresponding to Sub-secs. (1) and (2) of S. 36 of the Industrial Disputes Act, 1947].'
12. A party has always a right to represent himself. That right is undoubtedly a substantive right and, as remarked in the case in 1954 - II L.L.J. 148 a denial of that right is a denial of justice.
13. It appears to us, therefore, that the real question for consideration in this case is how the employer who happens to be a limited liability company is to be enabled to appear or act on its own behalf. The law governing the constitution and functioning as provided in the memorandum of association and articles of association of the employer-company have to be looked into for determining how it can make its appearance or act for itself.
14. Section 291(1) of the Companies Act provides :
'General powers of board. - (1) Subject to the provisions of this Act, the board of directors of a company shall be entitled to exercise all such powers, and to deal such acts and things, as the company is authorized to exercise and do :
Provided that the board shall not exercise any power or do any act or thing which is directed or required, whether by this or any other Act or by the memorandum or articles of the company or otherwise, to be exercised or done by the company in general meeting.
Provided further that in exercising any such power or doing any such act or thing, the board shall be subject to the provision contained in that behalf in this or any other Act, or in the memorandum or articles of the company, or in any regulations not inconsistent therewith and duly made thereunder, including regulations made by the company in general meeting.'
15. Articles 21 and 22 of the articles of association of the petitioner-company authorize the governing director to do all acts, matters and things necessary, proper or expedient, for carrying on business and concerns of the company and to delegate all or any of this powers of such other directors, managers, agents or other persons as he may think fit and to grant any such person power-of-attorney as he may deem expedient. Under these powers, it would be open to him to assign to any director, manager, agent or other person the power and duty of acting on behalf of the company in an industrial dispute. The appearance of a person so authorized before the tribunal is, as discussed above, legally equivalent to the appearance of the company. In the case on hand, G. S. Rama Rao is an employee of the company and the question of conferring authority on anyone outside the framework of the company does not arise in this case.
16. It may also be noticed that when it is conceded by the respondents that the secretary of the company or a director can 'represent' it, it is implicit that the company is entitled to have its case placed before the Court by someone authorized according to the law governing companies. The director of a company or the secretary of a company as such has no authority to act for a company under the Companies Act. Any such power has to be ascertained in any particular case with reference to the memorandum of association, the articles of association and other provisions regulating the constitution and functioning of the company. In the case on hand also, neither a director nor the secretary is found to have any such power. If he has to function before a tribunal on behalf of a company, he has to do so by the authorization of the governing director. If it is open to a director or the secretary to do so, there is no reason why another functionary of the company like G. S. Rama Rao cannot do so, if he is duly authorized. It is not disputed that he has such authority. The contention of the respondents appears to have been based upon the erroneous footing that the person acting on behalf of the company should be an 'officer.' As stated above, the reference to an 'officer' representing the employer in S. 36 has no bearing on the case of a company not seeking representation outside itself. It is thus clear that in refusing the company's application to allow G. S. Rama Rao to function on its behalf, the labour court has acted without jurisdiction. We, therefore, allow this petition and quash the order of the labour Court refusing to allow G. S. Rama Rao to act for the petitioner in the proceedings before the Court and direct the Court to allow him to act on behalf of the company in the proceedings before the Court.
17. An ancillary matter remains to be dealt with. The writ petition was supported by an affidavit sworn to by the secretary of the company. The petitioner also filed an application for stay of proceedings before the labour court supported by an affidavit. On 17 February, 1959, the petitioner filed a supplementary affidavit mentioning a few more facts. This was accompanied by a copy of the memorandum and articles of association of the petitioner's company. The petition was admitted on that day and an interim stay order was issued. On 17 March, 1959, a counter-affidavit sworn to by respondent 2 was filed. On the next day, i.e., 18 March, 1959, an application under S. 151 and order VI, rule 16, of the Code of Civil Procedure was filed by the petitioner for striking out the portions from respondent 2's affidavit indicated in the application as they were unnecessary, scandalous, defamatory and indecorous. Both the counsel were heard on this matter also at the time of the hearing of the petition. In Para. 4 of the counter-affidavit the deponent refers to his being summarily ordered by the governing director to quit without any show-cause procedure or compliance with the standing orders. Then he proceeds to refer to his sympathizing with the workers for an increment in view of high prices and also the fabulous profits really being made behind the facade of deficit accounting and fictitious losses which are stated to be under investigation by the incometax authorities, the administration of company law at the Central and special branch officers on the track of evasion and fraudulent returns. He says that possibly under the erroneous impression that he was encouraging a strike his employers felt that they could terrorize him by making an example of him. He adds that the moment of terminating his service had been chosen under the advice of a Malabar astrologer which went off the mark by some error in zodiacal calculation that did not take account of its being the international geophysical year. This is one of the positions of the affidavit sought by the petitioner to be struck off.
18. The other portions are Paras. 5, 9, 11, 12, 13, and 15. Paragraph 5 refers to the deponent's election as President of the Mysore State Journalists' Association and the decision of the general body to support him in the fight against injustice maliciously inflicted by his employers. Paragraph 9 states that the employers had not taken his grievances seriously in the belief that he could be made to sign on the dotted line by dilatory tactics. It proceeds to say that the general practice of the management has been to tire out aggrieved workers until they are starved into submission. He says he refrains from dwelling on their unfair labour practices, but nevertheless gives the instance of the union of press workers at that moment agitating for their rights against the non-production of accounts and against the impounding of their provident fund pass books as a stranglehold. He adds that the policy of refusal allows the management to apply trust moneys to extraneous trade. In Para. 11 he asserts that the idea behind the secretary, who was representing the management in the proceedings, seeking to be replaced by an officer, clerk, viz., G. S. Rama Rao, is prompted by the purse-proud notion that all aggrieved parties would give in through pressure tactics and the processing methods of the employer. He refers to the employer's making a large contribution of money to fight the claim of working journalists and says that they are now fighting press workers. In Para. 12 he says that the federation of Working Journalists in India are sensitive and that he, as President of the Mysore Working Journalists' Association, had been instructed from the Centre to oppose tactics for boring loopholes into the provisions of S. 36 of the Industrial Disputes Act. In Para. 13 he suggests that it is derogatory to the Mysore State Journalists' Association that in the proceedings the management should be represented by a young clerk who is paid Rs. 108 per month inclusive of cycle allowance. He then proceeds to complain against the secretary on his position in the company, in the athletic field and in the newspaper industry. He says that with this background it is unbecoming of the 'learned secretary' to 'put on a funk act.' Finally, in Para. 15, continued to draw the same comparison between the secretary and G. S. Rama Rao to the latter's disadvantage and suggests that the reason for the secretary or four of the directors who are highly successful businessmen not representing the company in the labour court is because it was beneath their dignity to do so and such work is more appropriately assigned to the junior employees.
19. The point involved in the writ petition related purely to a question of law, viz., whether the company could claim that one of its employees could act on its behalf in the proceedings. This depended entirely upon the construction of the provisions of the Companies Act and the Industrial Disputes Act. The allegations regarding the circumstances under which respondent 2's services were terminated, the management's unfair labour practices, the deficit accounting and fictitious losses of the company being investigated by the incometax authorities, the administration of company law and the special branch officers, the application of trust moneys by the management to extraneous purposes and the secretary and the directors looking down upon the labour court as a forum before which it was beneath their dignity to appear, were all totally irrelevant for a consideration of the writ petition, irrespective of the truth or otherwise of the allegations.
20. It is urged by the learned advocate for respondent 2 that in Para. 10 of the affidavit in support of the writ petition, it is alleged that the contention of respondent 2, in regard to the company's right to nominate G. S. Rama Rao, to act on its behalf in the proceedings, apart from being groundless in law, also entirely lacked good faith and that this statement necessitated and warranted respondent 2 making the abovementioned allegations attacking the employer's good faith. It appears to us that the allegation of lack of good faith made in the affidavit in support of the writ petition, was also irrelevant. If Rama Rao could not, under the provisions of law, act for the company, in the proceedings, the fact that in pointing it out respondent 2 was motivated by lack of good faith, would not alter the legal position. Nor could it deprive respondent 2 of his right to raise the contention. But that allegation and the other circumstances urged in support of it hardly justified respondent 2 in his counter-attack consisting of equally irrelevant allegations and in making use of the opportunity of filling a counter-affidavit as a platform for making allegations calculated to hurt the reputation of the management. Much less was there any excuse for bringing in the labour court itself into the arena of the irrelevant controversy by suggesting that the management considered it beneath their dignity to act for the company before that Court. It is difficult to believe that respondent 2 who is qualified in law and who, according to his own statement, has very long experience in the journalists' field, was not aware of the important of the allegation in his counter-affidavit. But even if some latitude has to be allowed to his in consideration of his interestedness as a party, it is beyond our comprehension how his advocate, after going through the contents of the counter-affidavit, endorsed those contents and allowed himself to file the affidavit if he bore in mind the duty he owed to the profession and to the Court.
21. With these observations, we wish to drop the matter observing at the same time that any similar instances in the future will have to be severely dealt with.
22. Respondent 2 shall pay the petitioner's costs. Advocate's fee, Rs. 100.
K.S. Hegde, J.
23. I agree.