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Shri Bijai Cotton Mills Ltd. Vs. the Inspector of Payment of Wages Act and ors. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtRajasthan High Court
Decided On
Case NumberCivil Writ No. 512 of 1961 and Civil Misc. Case No. 128 of 1961
Judge
Reported inAIR1963Raj147; (1963)IILLJ51Raj
ActsPayment of Wages Act, 1936 - Sections 15 and 17; Code of Civil Procedure (CPC) - Order 3, Rule 4
AppellantShri Bijai Cotton Mills Ltd.
RespondentThe Inspector of Payment of Wages Act and ors.
Appellant Advocate V.P. Tyagi and; S.M. Mehta, Advs.
Respondent Advocate S.K. Jindal, Adv.
DispositionPetition allowed
Cases ReferredKodi Lal v. Ch. Ahmad Hasan
Excerpt:
.....proof of the authority that had been earlier given to him to file the appeal in the court of the district judge. this vakalatnama was apparently obtained by shri bhargava as the preliminary point seems to have been raised at some intermediate date of hearing before the 21st of august, 1961, the position at the worst against the petitioner then would be that the appeal had been filed by his counsel without a proper vakalatnama having been filed in the court of the district judge, in the belief that the learned counsel filing the appeal had been authorised to do so at a very early stage of the case which was pending before the primary authority under the act and that obtaining of a fresh vakalatnama was not necessary to enable him to file the appeal. to our mind, a defect like this even..........judge, a preliminary objection was raised on behalf of the contesting respondents that the appeal filed by the mills was not properly presented by shri debi dayal bhargava and so deserved to be dismissed. this contention prevailed before the learned district judge and, consequently, he dismissed the appeal on that preliminary point the petitioner has filed the present writ application against that order under article 226 of the constitution, it has also filed a revision against the order of the learned district judge. we propose to decide the writ application before us.4. the principal question for determination is, whether the learned district judge was justified in law in throwing out the appeal of the petitioner on the ground that the appeal had not been properly presented by.....
Judgment:

Modi, J.

1. Both, Civil Writ No. 512 of 1961 and Civil Miscellaneous Case No. 128 of 1961, arise out of the judgment of the learned District Judge, Ajmer, dated the 21st of August, 1961, in a matter under the Payment of Wages Act (Act No. IV of 1936 -- hereinafter to be called the 'Act').

2. The facts, in so far as they are relevant, may be stated very briefly;

3. The petitioner before us is a limited company Shri Bijay Cotton Mills Ltd., Bijaynagar, with its head office at Bijeynagar, and it is incorporated under the Indian Companies Act, and is acting through its Managing Director Raghunath Singh Man Singhka. Certain disputes arose between the Rashtriya Mill Mazdoor Union, Bijaynagar, constituted by the employees of the Mill, and the petitioner, and in consequence thereof, the Inspector of Payment of Wages Act made an application to the Sub-Divisional Magistrate, Beawar, as the authority under the Act, under Section 15 of the Act. The authority decided this application in favour of the Inspector on the 27th March, 1961, vide its judgment Ex. P-1. Aggrieved by this decision, the petitioner preferred an appeal to the District Judge, Ajmer, under Section 17 of the Act, on the 1st of May, 1961.

The memorandum of appeal was signed and presented by Shri Debi Dayal Bhargava, a learned Advocate of this Court, who filed along with it a memo of appearance. This was to the following effect:

'I appeared for the opposite party appellant in the Court below and my power is on the record of this Court. 'I have instructions' from appellant to appear and conduct the said case.'

When the appeal came up for hearing before the learned District Judge, a preliminary objection was raised on behalf of the contesting respondents that the appeal filed by the mills was not properly presented by Shri Debi Dayal Bhargava and so deserved to be dismissed. This contention prevailed before the learned District Judge and, consequently, he dismissed the appeal on that preliminary point The petitioner has filed the present writ application against that order under Article 226 of the Constitution, It has also filed a revision against the order of the learned District Judge. We propose to decide the writ application before us.

4. The principal question for determination is, whether the learned District Judge was justified in law in throwing out the appeal of the petitioner on the ground that the appeal had not been properly presented by Shri Debi Dayal Bhargava, who appeared for the petitioner in that Court. It seems to have been argued before the learned District Judge that the memo of appearance filed by Shri Bhargava did not confer a valid authority on him to file an appeal on behalf of the petitioner inasmuch as the authority under the Act was not a Court and the filing of the vakalatnama by Shri Bhargava for his client could not have been done under Order 3, Rule 4 of the Code of Civil Procedure. It further seems to us that when in reply to the aforesaid contention it was submitted by Shri Bhargava that he held a vakalatnama signed by bis client at the time of the hearing of the appeal and that he was prepared to produced the same, the view which was then contended for on behalf of the contesting respondent and which provailed with the Court was that the appeal in that case would be considered to have been presented on the day on which the vakalatnama would be filed and, therefore, would be barred by time, which was 30 days as provided by Section 17 of the Act.

5. It is strenuously contended before us by learned counsel for the petitioner that, firstly, the provisions of Order 3, Rule 4, Civil Procedure Code, should be held to apply to this case and that in the vakalatnama which had been filed by Shri Bhargava before the authority, it had been specifically mentioned that Shri Bhargava would have the authority to file an appeal, if necessary, among other things and, therefore, this authorisation enured for the purposes of the appeal also and consequently, the appeal was tiled with authority and not without it as held by the learned District Judge. In the second place, the submission was that in any view of the matter as the appeal was stated to have been filed by Shri Bhargava with the authority of the petitioner and Shri Bhargava was prepared to file the vakalatnama which he held with him at the time, the Court should have held that if there was any defect In the initial presentation of the appeal the same was properly cured and the view of the court that if the vakalatnama was allowed to ba produced at that stage it would only serve to validate the appeal from the date of the filing of the vakalatnama, was quite wrong, and the proper view to take was that the presentation of the appeal would be validated from the very date it was filed in the Court of the District Judge.

6. We have heard learned counsel for the parties and we are definitely of opinion that this writ application should succeed. We may state at the out-set that it is well settled in this Court that an authority under the Act is not a Civil Court and is properly speaking a quasi-judicial tribunal: see Mewar Textile Mills Ltd., Bhilwara v. Girdharisingh, (S) AIR 1957 Raj 115. The next question that arises is: what is the precise position of the District Court which is the Court appointed to hear appeals against certain orders passed under Section 15 of the Act. It is contended before us on behalf of the petitioner that there is authority for holding that the District Judge would be a a civil court for the purposes of the appeal and in support of this submission reliance !s placed on Rajkumar Mills Ltd., Indore v. Inspector, Payment of Wages, Madhya Bharat, AIR 1955 Madh. B. 60.

This submission is, however, strongly countered by learned counsel for the contesting respondent. Having given our careful consideration to the arguments pro and con we, think, it is unnecessary for us to make a definite pronouncement on this point so far as the purposes of this case are concerned. Even if that be so, accepting that the authorities under the Act are quasi judicial tribunal and in view of the fact that no specific rules have been brought to our notice governing the matter, which has been raised for decision, we are disposed to think that we should decide a matter like this on the analogy of Order 3 Rule 4, Code of Civil Procedure, Order 3 Rule 4, Code of Civil Procedure, lays down :-

'No pleader shall act for any person in any Court, unless he has been appointed for the purpose by such person by a document in writing signed by such person or by his recognized agent or by some other person duly authorized by or under a power-of-attorney to make such appointment.'

Sub-rule (2) then lays down :-

'Every such appointment shall be filed in Court andshall be deemed to be in force until determined with theleave of the Court by a writing signed by the client or thepleader, as the case may be, and filed In Court, or until theclient or the pleader dies, or until all proceedings In thesuit are ended so far as regards the client.'

There is no doubt that Shri Bhargava had filed a power of attorney on behalf of his client before the primary authority under the Act. This was duly signed by the Managing Director of the Mills. By this power of attorney, Shri Bhargava was inter alia authorised to file an appeal also under his own signature. By Sub-rule (2) of Rule 4 of Order 3, Code of Civil Procedure, every such appointment, which has been-filed in Court, shall be deemed to be in force unless determined with the leave of the Court by a proper writing signed by the client or the pleader, or until the client or the pleader dies, or until all proceedings in the suit are ended as regards the client. There is authority for the view that a power so given and filed shall enure for the purposes of the appeal also. We may refer in this connection to a Single Judge decision of this Court in Laxmichand v. Harakchand, 1956 Raj LW 219 at p. 226, to which one cf us was a party. The position, therefore, to which we come is that the appeal in this case was filed by Shri Bhargava in the Court of the District Judge under an authority which had been duly given to him by his client in writing and which had been produced before the authority under the Act when the matter was pending there.

That being so, the view of the learned Judge that the appeal had been filed without authority by Shri Bhargava is unnecessarily harsh and over-technical and does not commend itself to us as correct. In this view of the matter, we are disposed to hold that the memo of appearance filed by Shri Bhargava before the learned District Judge to indicate the authority that he had from his client was enough to entitle him to file the appeal before him.

7. This brings us to the second ground which was raised before the learned District Judge against the petitioner (who was the appellant before) and which also found favour with him. This ground was that a defect like this was not curable even if Shri Bhargava were allowed to file a fresh vakalatnama as proof of the authority that had been earlier given to him to file the appeal in the Court of the District Judge. We may mention here that the vakalatnama is dated the 19th August, 1961, while the learned District Judge passed the order which is challenged before us on the 21st August, 1961, having heard the arguments on that very date. This vakalatnama was apparently obtained by Shri Bhargava as the preliminary point seems to have been raised at some intermediate date of hearing before the 21st of August, 1961, The position at the worst against the petitioner then would be that the appeal had been filed by his counsel without a proper vakalatnama having been filed in the Court of the District Judge, in the belief that the learned counsel filing the appeal had been authorised to do so at a very early stage of the case which was pending before the primary authority under the Act and that obtaining of a fresh vakalatnama was not necessary to enable him to file the appeal. And, then this defect was sought to be rectified by filing a fresh vakalatnama on 21st August, 1961, to show that the counsel had filed the appeal under the authority and instructions of his client, a fact which was also mentioned in the memorandum of appearance filed by him along with appeal.

To our mind, a defect like this even if it arises under a mistaken notion, that memorandum of appearance was enough, which albeit was bona fide, should be held to be curable by the filing of a fresh vakalatnama in the Appellate Court duly obtained by the counsel from his client, for the defect is only of a formal or technical character. It is not that the appeal was filed without authority or without instructions. And what remained to be done was the filing of a fresh vakalatnama in the Appellate Court which was not done under a mistaken, though bona fide belief that the vakalatnama filed before the authority below would be sufficient for the purpose. We may in this connection refer to Kodi Lal v. Ch. Ahmad Hasan, AIR 1945 Oudh 200. The analogous question arose in that case as to whether absence of authority was curable by a duly executed power filed after the expiry of limitation in the Court. After an elaborate examination of the relevant authorities, to which we may not specifically refer, it was laid down that a procedural irregularity of this character arising from a bona fide mistake on the part of the pleader was not so vital as to render the appeal incompetent and, therefore, the memorandum of appeal presented by him should not be dismissed on a technical ground of this character.

It was further held that such a mistake could be cured even after the expiration of the period of appeal prescribed therefor. We respectfully agree with the law laid down in this case; and it must, therefore, follow that the view taken by the learned District Judge that the defect of improper presentation was not curable even if the fresh vakalatnama was allowed to be filed because the appeal in that case would be deemed to have been filed only from the date the vakalatnama was filed and that would be beyond the expiry of limitation, was incorrect. !n the view, which we have felt persuaded to take having regard to all the circumstances of the case, we are, therefore, of the opinion that the order of the learned District Judge dismissing the appeal on the preliminary ground cannot be sustained and we, therefore, set it aside.

8. The result is that we would allow this writ application, set aside the order of the learned District Judge and send the case back to him with a direction that he will dispose of it on the merits. As the writ application has succeeded, we pass no order on the revision application. Having regard to all the circumstances of the case, we would leave the parties to bear their own costs in this Court.

9. Learned counsel for the petitioner makes a further request to us, and that is, that the property of his client is going to be auctioned in execution of the order of the authority tomorrow the 15th February, 1962, and as this writ application has succeeded and the appeal will have to be decided by the learned District Judge on merits and the decision of the appeal will become more or less infructuous if its property is allowed to be auctioned, in the meanwhile we should be pleased to stay the execution of the order of the authority until a proper application accompanied by a certified copy of this Court's judgment for the said purpose can be made to the District Judge. We think that this request in all the circumstances of the case is perfectly reasonable and, therefore, we hereby direct that the auction shall stay for three weeks from today.


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