Prasanta Bihari Mukerji, J.
1. This is an application by P.M. Bagchi & Co. (Private), Ltd., challenging the legality and validity of an industrial award made by the Second Industrial Tribunal of West Bengal on 24 April 1956, directing six employees of the petitioner company to be reinstated in service with back pay and allowances for the entire period from the date of their dismissal to the date of their reinstatement.
2. Mr. De, learned Counsel for the petitioner, challenges this award on three basic grounds. His first ground is that the award is bad on the face of it. It is erroneous on the face of the record. In support of his argument, he points to the findings of the tribunal that the enquiry made by the company's enquiring officer was wrongly held by the tribunal to be against the rules of natural justice. Now, in this case, the fact is that the enquiry was held by the management. Notices were Issued on these six employees requesting them to be present at the enquiry. In spite of service of notices upon them, the employees refused to come. The proceedings of the enquiry held on 13 September 1955, are annexed to the petition. They show first that the secretary of the union refused to participate in the enquiry. Opportunity was, therefore, given to these employees to appear on 21 September 1955. They again failed to appear and the proceedings were postponed till 26 September 1955. Fresh notices were served on those employees and it was stated that in case of their failure to attend on that date, the enquiry would be conducted in their absence. On 26 September 1955, when after repeated notices to appear the workmen failed to appear, the enquiry was conducted ex parte in their absence. The tribunal came to hold that this was against the principles of natural justice. If persons notified to appear fail to appear after repeated opportunities are given then the proceeding has to be conducted in their absence and in such a cage it is not a violation of the principles of natural justice at all. The Supreme Court points out in the Lakshmi Devi Sugar Mills, Ltd. v. Pt. Ram Swarup and Ors.1957-I L.L.J. 17 at 24.
If full and free opportunity was given to the respondents to present themselves at the enquiry and defend themselves, it could not be said that the enquiry was anything but fair.
3. The result of this wrong and erroneous decision in law by holding the enquiry to be against the principles of natural justice was serious. The tribunal rejected the entire proceedings before the enquiring officer, the charge-sheet and the evidence given before the enquiring officer. I may say that the enquiring officer was the general manager of the company. Undoubtedly, this vitiates the whole award. It is not only an error on the face of the award but it goes to the very root of the substance of the decision.
4. The award was also challenged on the ground that there were other errors on the face of the record. One is that the tribunal makes the mistake of considering N. Das Gupta, the factory superintendent, as a witness on behalf of the management. The tribunal's own record shows that this N. Das Gupta was called as the union's witness. In fact, he was P. W. 1 for the union. The summons calling him as a witness is also annexed to the petition and shows that he was only appearing as a witness for the union. But the tribunal says:
It is interesting to note that in this case save and except Sri N. Das Gupta, factory superintendent, no other witness was examined on behalf of the management.
5. It is plain from this finding that the tribunal forgot that N. Das Gupta was not a witness who was examined on behalf of the management at all. He was being examined as a witness for the union and called as such before the tribunal by summons. The record on this point is plain and clear. N. Das Gupta is mentioned as P. W. 1 in order No. 7, dated 19 April 1956. In that particular order it is said that this N. Das Gupta was examined and cross-examined. A certified copy of the deposition of N. Das Gupta was filed before me. It does not show who examined him and who cross-examined him. In fact, the petitioner's whole case in Para. 12 (a) of the petition is that the tribunal heard the case 'without giving the petitioner company any opportunity to be represented at the hearing or being heard atall.
6. This leads to the third ground of challenge of the award that there was refusal by the tribunal to permit Nalini Kanta Mukherji to represent the petitioner company before the tribunal on the ground that he was a lawyer. The union filed a petition objecting to representation by a lawyer. Apparently, on that petition, no specific order was passed as will be seen from order No. 2, dated 19 January 1956, in the order sheet. Nalini Kanta Muk-herji's name, however, does not appear in any part of the order sheet under any date. It is however, the case of the petitioner in Para. 12(a) of the petition that he was refused permission on the ground that he was a lawyer. In Para. 11 of the counter-affidavit of Sailen-dra Narayan Roy Choudhury, the secretary of the union, this fact that Nalini Kanta Mukherji was refused and was not allowed to appear on the ground that he was a lawyer is not controverted or denied. What is argued on behalf of the union is that this witness N. Das Gupta, who was a witness on behalf of the union, himself represented the company and the management. In support of that, the union relied on order No. 7, dated 19 April 1956, where it is recorded that N. Das Gupta, printing superintendent, appears for the company. Neither the certified copy of the order sheet nor that of the depositions, which are filed before me and which are hereby ordered to be kept on the record, show any authority on behalf of the company filed by Nirmalendu Das Gupta showing that he had the authority to represent the company. If N. Das Gupta., the printing superintendent was representing the company on the ground that Nalini Kanta Mukherji being a lawyer could not represent the company, even then it seems strange, when N. Das Gupta was in the witness-box, who, in fact was examining and cross-examining him and who, in fact, was representing the company when this witness was in the witness box.
7. As there is no denial of the statement that Nalini Kanta Mukherji was refused permission to represent the company on the ground that he was a lawyer by the affidavit of the secretary of the union, the fact cannot be questioned.
8. The reason for refusing Nalini Kanta Mukherji cannot also be sustained. A reference to some law on the point will be necessary.
9. Before I discuss the law, the relevant facts on this point may be summarized:
10. On 19 January 1956, the union filed a petition before the tribunal objecting to representation of the company through a lawyer. The order, dated 19 January 1956, numbered 2 of the tribunal does not record any order of refusal or any order on that petition of objection. Under Section 36 of the Industrial Disputes Act, it is provided by Sub-section (3) thereof that:
No party to a dispute shall be entitled to be represented by a legal practitioner in any conciliation proceedings under this Act or in any proceedings before a Court.
By Sub-section (4) of Section 36 of the Act, it is provided that:
In any proceeding before a labour Court, tribunal or national tribunal, a party to a dispute may be represented by a legal practitioner with the consent of the other parties to the proceeding and with the leave of the labour Court, tribunal or national tribunal as the case may be.
Without consent of parties or without the leave of the labour court, representation through lawyer is, therefore, barred. But the point is whether Nalini Kanta Mukherji was a lawyer or whether he was appearing on behalf of the company as its representative. The fact is that this gentleman Nalini Kanta Mukherji is an honerary member of the Calcutta Printing Press Owners' Association and is a law officer of that association. The fact that he is also an advocate does not disqualify him from representingthe company or the petitioner in his capacity as an officer of the Calcutta Printing Press Owners' Association. This is permitted by the express language of Section 36(2)(a) of the Industrial Disputes Act which provides that an employer who is a party to a dispute shall be entitled to be represented in any proceeding under this Act by an officer of an association of employers of which he is a member. Now, this Mr. Mukherji is an officer of the Calcutta Printing Press Owners' Association of which he is a member and an officer. The Calcutta Printing Press Owners ' Association is an association of employers of which the applicant company is a member. He, therefore, answers the description of Section 36(2)(a) of the Industrial Disputes Act and in that capacity he is qualified to represent the petitioner company. The fact that he happens to be an advocate does not disqualify him or take away his character of an officer under Section 36(2)(a) of the Industrial Disputes Act. This point is concluded by authorities such as the decision in Hall and Anderson, Ltd. v. S.K. Neogi andAnr. 1954-I L.L.J. 629 and Indian Press Mazdoor Union v. Indian Press, Ltd.1956-I L.L.J. 739. It is unnecessary for me to adduce any further reasons than those appearing in such authorities. Therefore, the refusal to allow Mr. Mukherji to represent the company under Section 36(2)(a) of the Industrial, Disputes Act, 1947 on the ground that he was also a lawyer cannot be justified.
11. The position then is that if the tribunal refused Mr. Mukherji to appear on the ground that he was a lawyer, then the tribunal was wrong and If there was no such refusal and even if there was no demand by Mr. Mukherji to represent the company, then in that case the tribunal proceeded to hear without any representation from the petitioner company at all because N. Das Gupta, the factory superintendent, could not be said to represent the company on the ground first that he filed no authority to represent the company; the records of the tribunal were produced and they do not show any such authority; and secondly because the records show that this factory superintendent was summoned only as a witness for the union. In either case, the proceeding of tribunal are vitiated by error apparent on the proceedings and on the records.
12. For these reasons, I set aside and quash the award of the tribunal and make the rule for certiorari absolute. I also make the rule for mandamus upon the Government absolute. There will be no order as to costs.