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The Printers (Mysore) Private Ltd. Vs. the Presiding Officer, Labour Court and ors. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtKarnataka High Court
Decided On
Case NumberWrit Petn. No. 122 of 1959
Judge
Reported inAIR1960Kant44; AIR1960Mys44; ILR1959KAR557
ActsConstitution of India - Articles 19, 226 and 227; Industrial Disputes Act, 1947 - Sections 36, 36(1), 36(2) and 36(4); Code of Civil Procedure (CPC), 1908 - Order 29, Rule 1
AppellantThe Printers (Mysore) Private Ltd.
RespondentThe Presiding Officer, Labour Court and ors.
Excerpt:
.....clearly indicated conferment of a right upon a party and therefore section 36 was an enabling provision and not a restrictive one and it was not exhaustive of the right of representation of parties. a judicial 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. 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 authorised to act for the state in a legal proceeding. that was a case clearly coming within the purview s. if it is open to a director or the secretary to do so, there is no reason why another..........and adjourned the case to 30-12-1958.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., 19-1-59 both the parties were granted an adjournment to 27-1-59 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 persons to represent it. the order is challenged on various grounds in this petition under articles 226 and 227 of the constitution.(3) in this court, the presiding officer, labour court, and pothan joseph were.....
Judgment:

N. Sreenivasa 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 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 4-11-58 on which date the Secretary of the Company, K. N. 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 20-12-58 for the filing of a rejoinder by the.I party. On that day, i.e., 20-12-58 the II Party, i. E., the Management (Company) sent an Assistant Accountant in that 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 authorisation and that one opportunity would be given to II Party (Management) to be present in person or through a competent representative and adjourned the case to 30-12-1958.

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., 19-1-59 both the parties were granted an adjournment to 27-1-59 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 persons to represent it. The order is challenged on various grounds in this petition under Articles 226 and 227 of the Constitution.

(3) In this Court, the Presiding Officer, Labour Court, and Pothan Joseph were originally implemented as Respondents 1 and 2. After respondent 2 appeared his counsel represented that the opposite party before the Labour Court was the Mysore State Journalists' Association representing the work men of Printers (Mysore) Private, Ltd., and that the writ petition 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 second Respondent 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 second Respondent herein regarding the parties to be impleaded in these proceedings, the Petitioner herein begs leave of this Hon'ble Court to implead workmen of the Printers (Mysore) Private Ltd., represented by the Mysore State Journalists' Association as a party to these proceedings.' The supplemental party was notified and on 16-4-59 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 Office Road, Bangalore-2' was represented before that Court. In the order sheet in question, Pothan Joseph is described as the appellant I party. In this affidavit a reference is made to his holding the office of President of the Mysore State 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 role 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 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 Advocate for the supplemental Respondent. Both of them have opposed the writ petition.

(4) 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 it 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 an 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 place the parties in a position of inequality.'

(5) 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 authorised in such manner as may be prescribed.'

It is seen that similarly sub-S. (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 of associations 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 Court took the view that the Petitioner Company 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.

(6) 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-s. (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 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.

(7) 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 reported in Alembic Chemical Works Co., Ltd. v. P. D. Vyas, 56 Bombay Law Reporter 917. 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 represent a party except with the consent of the could 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 reported in Kanpur Hosiery Workers' Union v. J. K. Hosiery Factory, Kanpur, (1952) 1 Lab LJ 384, to the effect that sub-sS. (1) and (2) of S. 33 of the Industrial Disputes (Appellate Tribunal) Act, 1950, which correspond to sub-sS. (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 workman or an employer in a proceeding before the Appellate 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 section 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 reported in Dadajee Dadajee and Co. (Private) Ltd. v. Their Workmen, (1958) 2 Lab LJ 121 in which it was held that a corporation can appear through an agent or by any other authorised person, the only limitation being that when that 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 reported in Calico Printers Association v. A. Karim and Bros., AIR 1930 Bom 566, in which it was held that by virtue of O. VI, R. 14 of the Code of Civil Procedure, it was open to a company to authorise some person to sign the pleadings on behalf of the company, and that it was not always necessary for the pleadings to be signed by any director or other 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 O. 29 R. 1 of the Code. It will be seen that the case related only to the question of signing and verifying a pleading and has to direct bearing on the matter. But it is to be noted that the Court took the view that O. 29, R. 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) and (2) of the Industrial Dispute Act, 1947, is also permissive.

(8) 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 that 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 reported in Duduwala and Co. v. Industrial Tribunal, .

In that case, the employees sought for permission to be represented through a practising lawyer who also happened to be the joint secretary of an association of employees 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 power of attorney. The Industrial Tribunal did not permit representation by any of the three persons mentioned 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 of attorney the Court observed as follows:

'So far as the first point is concerned, the answer to out 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 tribunals appointed under the Industrial Disputes Act. We have, therefore, no hesitation in coming to the conclusive that S. 36 does not contemplate any one representing employers or employees on the basic of a special power of attorney and, therefore, Shri Baldwa and Shri Surana's right to represent M/s. Duduwala and Company 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 representations 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 a special power of attorney.'

(9) 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 Disputes 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-sS. (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-ss (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 could not be so if sub-sS. (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 the representation of a party, that is to say, someone else acting for a party.

It does not deal with the question of a party acting 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 judicial 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 dispute it can easily be seen that there are trial disputes it can easily be seen that there are many enterprises owned by the State and by limited liability companies and that 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 of such a body. In the case of a minor, the natural or legal guardian appointed by Court acts for him. In the case of 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 authorised 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 any one 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 one 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 authorisation of one person by another to act for him. The representation dealt with in S. 36 is not the latter character. In the case reported in 56 Bom LR 917 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.

It 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 dealt with the case of the representation of a company by persons who held special powers of attorney; in other words, persons outside the company who were authorised by someone acting on behalf of the company. That was a case clearly coming within the purview S. 36. Hence quite apart from the question whether the view taken by the Court that Section 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.

(10) In this connection the decision reported in Hall and Anderson, Ltd. v. S. K. Neogi, (1954) Lab LJ 629 (Cal) 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 alleged on the ground that he was a legal practitioner. In dealing with this question, Sinha J. of the Calcutta High Court.

'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-sS. (1) and (2) of S. 33 of the Industrial disputes (Appellate Tribunal) Act, 1950 (Corresponding to sub-sS. (1) and (2) of S. 36 of the Industrial Disputes Act, 1947)'.

A party has always a right to represent himself. That right is undoubtedly a substantive right and, as remarked in the case reported in 56 Bom LR 917, a denial of that right is a denial of justice.

(11) 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 limited liability companies and the provisions 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.

(12) 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 do all such acts and things, as the company is authorised 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.'

Articles 21 and 22 of the Articles of Association of the Petitioner Company authorities 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 his powers to 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 authorised 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 any one outside the framework of the company does not arise in this case.

(13) 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 authorised 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 the company he has to do so by the authorisation 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 authorised. 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'. 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.

(14) We, therefore, allow this petition and quash the order of the Labour Court refusing to show 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.

x x x x X

(15) Respondent 2 shall pay the petitioner's costs, Advocate's fee. Rs. 100/-.

K.S. Hegde, J.

(16) I agree.

(17) Petition allowed.


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