Calcutta High Court
I.C.I. And Associated Companies' ... vs State Of West Bengal And Ors. on 18 May, 2004
Equivalent citations: 2004(4)CHN639
Author: Amitava Lala
Bench: Amitava Lala
JUDGMENT Amitava Lala, J.
1. This writ petition is made by the employees' union for the purpose of getting an appropriate writ of Mandamus to restrain the right of appearance of the representatives of the Company before the learned First Industrial Tribunal, West Bengal. The moot point of the petitioner in this application is that under Section 36(4) of the Industrial Disputes Act in any proceedings before the Labour Court, Tribunal or National Tribunal, a party to a dispute may be represented by a legal practitioner with the consent of the parties to the proceedings and with the leave of the Labour Court, Tribunal or National Tribunal, as the case may be. There was no consent on the part of the Union in respect of the appearances of the two representatives who was authorised by one Mr. A. M. Nautiyal being the representative of the Management/Company. In further, Rule 78A(2) of the West Bengal Industrial Disputes Rules, 1958 has to be strictly followed.
2. Factually one Mr. S. K. Kapoor, General Manager and duly authorised Attorney of the Company authorised Mr. A. M. Nautiyal Personnel and Administration Manager of the Company to appear and act for the Company. In the instant case and to perform such other representatives' act as may be necessary such power of delegation to Mr. A. M. Nautiyal cannot be re-delegated to the Secretary and Assistant Secretary of the employer's association. Technically they are also the legal practitioner in effect. The learned Counsel appearing for the petitioner has taken a point of power of re-delegation as, available under Sections 191 and 192 of the Contract Act. Under Section 191, the definition of sub-agent is given and in Section 192 last part in respect of sub-agent's responsibility. It appears that he is responsible for his act to be agents, but not to the principal, except in the case of fraud or wilful wrong. This argument as advanced by the learned Counsel appearing for the petitioner has strongly objected by the learned Counsel appearing for the management of the Company. A three Judge Bench decision of the Supreme Court cited before this Court which is reported in 1976(2) LLJ 409 (Paradip Port Trust and Their Workmen v. Management of Keonjhar Central Co-operative Bank Ltd and Their Workmen). Paragraph 16 of such judgment is quoted hereunder :
"It must be made clear that there is no scope for enquiry by the Tribunal into the motive for appointment of such legal practitioners as office-bearers of the trade unions or as officers of the employers' associations. When law provides for a requisite qualification for exercising a right, fulfilment of the qualification in a given case will entitle the party to be represented before the Tribunal by such a person with that qualification. How and under what circumstances these qualifications have been obtained will not be relevant matters for consideration by the Tribunal in considering an application for representation under Section 36(1) and Section 36(2) of the Act. Once the qualifications under Section 36(1) and Section 36(2) are fulfilled prior to appearance before Tribunals, there is no need under the law to pursue the matter in order to find out whether the appointments are in circumvention of Section 36(4) of the Act. Motive of the appointment cannot be made an issue before the Tribunal."
3. He further submitted that before going to Section 36(4) a scope and ambit of Section 36(2) is to be taken into account wherefrom it appears that an employer who is a party to a dispute shall be entitled to be represented in a proceedings under this Act by an officer of an association of employers of which he is a member. That apart the Rule 78A(2) speaks that such authority shall be signed by the employer or when the employer is incorporated Company by the agent, Manager or any other Principal Officer of such Company or body corporate. Therefore, no such plea can be taken before this Court in respect of the authorisation. I have gone through the judgment delivered by the learned Judge of the Court of First Industrial Tribunal and I find that an observation is made in respect of representative capacity of Mr. Nautiyal. It was held that Mr. Nautiyal was an officer of the Company and he held the office of Personnel and Administration Manager of I.C.I. India Ltd. The learned Counsel appearing for the petitioners contended that it is an issue which is to be taken by the Tribunal very carefully. But in respect of doing so an inference in respect of the representative capacity of the Secretary and Assistant Secretary of the association is drawn. They have no capacity of representation.
4. Having heard the submissions as made by the parties at first I take the opportunity of saying that in these days such type of plea is not more than hypertechnical in nature. Yet, when a special statute has given certain direction in respect of the representative capacity of the member of the Company and a judgment has been delivered on that score by the Tribunal, the Writ Court has no other alternative but to make an observation and pass an appropriate order thereto.
5. Firstly the representative capacity is a matter between a principal and agent and its sub-agent a third party cannot challenge the same unless there is an internal dispute of representation amongst themselves. Here there is no such case. Had there be a case that Mr. Nautiyal and Secretary and Assistant Secretary both appeared independently sought for permission for representation it would have been altogether itself scenario, but here the very representation has been challenged by a third party. Therefore, the Court should consider the issue more rigidly. Factually it appears that Mr. Nautiyal was authorised by the Company to represent the case by the General Manager or Constituted Attorney that does not necessarily mean the authority of Mr. Nautiyal being Personnel and Administration Manager of the Company will automatically evaporated and he will be called merely as an agent not the representative of the Company. It can be seen from annexure "P-3" that the signatures was put by Mr. Nautiyal on behalf of the Company itself not on the basis of his individual capacity as an agent so that the same can be challenged.
6. That apart, first part of Section 192 of the Contract Act itself says that even if one is sub-agent, as regards representative of the third person it bound the agent originally appointed by the principal. In any event, since a special statute made such a representative capacity for the purpose of representation of the case before the Tribunal or the Court etc. the general law contract cannot be made to be applicable therein. From Section 36(2), it appears that Officer of the association of the employers are entitled to appear. Therefore, there is no question of applicability of Sub-section (4) therein. Even when the question of Sub-section (4) arises whether the consent and leave of the Court both are conjunctive or disjunctive is a direct question before the Court as it was not pressed hard and I am not giving my opinion on that score. But from the plain reading of Rule 78A(2), it appears that authority can be signed by the employer, manager, principal officer and also the agent. Therefore, even assuming for the moment Mr. Nautiyal is said to be an agent by virtue of such Rule he has an authority of redelegation. However, factually I do not find that Mr. Nautiyal is merely an agent, but not a representative of the company otherwise, it should not have been said that the authority is given by the company.
7. Under such circumstances, I do not feel like to interfere with the judgment and order passed by this Court in the writ proceedings. Therefore, taking into totality of the matter and treating the same as 'for orders' in the day's list I dismiss this writ petition without imposition of any order as to costs.
8. Let xerox certified copy of this judgment be delivered to the parties within a period of seven days from the date of putting requisites for drawing up and completion of order and certified copy thereof.
9. All parties concerned are to act on a signed copy of the operative part of this judgment on the usual undertaking as per satisfaction of the officer of this Court.