Bombay High Court
Madura Coats Ltd. & Anr. vs S.L. Mehendle, Member, Industrial ... on 13 August, 1997
Author: F.I. Rebello
Bench: F.I. Rebello
JUDGMENT F.I. Rebello, J.
1. The petitioner company has approached this Court to quash and set aside the order dated 30th June, 1995 passed by the Industrial Court in Complaint (ULP) No. 1044 of 1988. The complaint was preferred by Respondent No. 2 - Trade Union alleging that the petitioner had engaged in unfair labour practice under Item 9 of Schedule IV of the M.R.T.U. & P.U.L.P. Act. In short the contention of the Respondent No. 2 was that the wages of the office bearers of the Union, who had gone to attend the proceedings before the Courts had been deducted contrary to the provisions of Section 23 of the M.R.T.U. and P.U.L.P. Act and even otherwise it is contended that the deduction was made without giving an opportunity to the office bearers of Respondent No. 2 and it was, therefore, clearly in breach of the principles of natural justice and fair play and even otherwise it was not as contemplated by the provisions of the Payment of Wages Act.
2. The Industrial Court by the impugned order was pleased to deal with various contentions of the petitioner and was pleased to hold that the petitioner herein had violated the provisions of Section 23 of the M.R.T.U. and P.U.L.P. Act and that the deduction of wages by the Petitioners was illegal. It also held that the petitioner had committed unfair labour practice under Item No. 9 of Schedule IV of the Act and that the Respondent No. 2 was entitled to the relief prayed for. The order of the Industrial Court shows that there was a long standing practice by which the petitioners would permit the office bearers of the Respondent No. 2 to attend the proceedings filed by or against Respondent No. 2 or its members and for that purpose would not deduct wages. It also shows that the office bearers of the Respondent No. 2 after doing their work used to report back for duty if time permitted. It has also dealt with the argument that for the purpose of giving effect to section 23 of the M.R.T.U. and P.U.L.P. Act it must be shown that the office bearers appeared or acted. It also dealt with the argument that the Certificate produced by the office bearers did not show that they appeared or acted and consequently no unfair labour practice had been committed by the petitioners. The Industrial Court has rejected the contentions of the petitioners and held that in terms of Section 23 the office bearers are entitled to be paid wages for the entire day and there is no question of the office bearers reporting back to duty and hence the petition.
3. Shri Naik on behalf of the Petitioners has submitted as under :-
"The word "appear" or "act" appearing in section 23 of the M.R.T.U. and P.U.L.P. Act must mean to represent or put in an appearance on behalf of the party and not mere assistance to lawyers. For that purpose he has relied on a Division Bench Judgment of the Gujarat High Court in the case of Girish Kanjibhai Patel & Ors. v. State of Gujarat & Ors. reported in 1995 II C.L.R. 964.
The second submission is that the certificate produced by the office bearers of the Respondent No. 2 did not show that they have appeared or acted, to avail of the benefits of Section 23 and consequently if the petitioners had made deduction in the wages it could not be said that the petitioners had committed an act of unfair labour practice as it is normally understood. The third submission is that the permission to the office bearers to represent the Union is based on a long standing practice and not based on Section 23 of the M.R.T.U. and P.U.L.P. Act. It is contended that the practice as understood was that the office bearers would represent the petitioners in proceedings before various forums and after the proceedings stood adjourned or disposed of for the day would report back to the establishment if time was still available. In the instant case the deduction had to be made, as even though, the proceedings had been adjourned in the morning itself the office bearers had failed to report back for duty and consequently the deduction of wages. This, it is pointed out, would not amount to an act of unfair labour practice. Counsel has also relied on the judgment in the case of Blue Star Ltd. v. Blue Star Workers' Union & Ors. reported in 1996 I C.L.R. 673.
4. On behalf of the Respondent Union it was contended that the deduction of pay without notice was arbitrary and this by itself amounts to an act of unfair labour practice. For that purpose reliance has been placed on the judgment in the case of Bhagwan Shukla v. Union of India & Ors. reported in 1994 II CLR 645. At the outset it may be pointed out that this judgment would be of no relevance as it is in respect of a Government Employee covered by Article 14 of the Constitution of India. Reduction of basic pay has been held to visit a person with civil consequences which cannot be resorted to without following the procedure prescribed by law. The other judgment is a judgment of a single Judge of the Madras High Court in the case of D. Jayabalakrishnan v. Managing Director, Tamil Nadu Water Supply and Drainage Board, Madras, reported in 1996 II CLR 674. There also the matter proceeded based on Article 14 namely that deducting wages would result in visiting the petitioner with civil consequences and in that context a hearing had to be given before making any deductions. This Judgment would also be of no assistance to decide the controversy in issue in this case.
5. Considering the submissions of the parties, the main question to be decided is, what is the meaning of expression "appear" and "act" as contained in Section 23 of the M.R.T.U. and P.U.L.P. Act. Counsel has placed reliance on a Division Bench Judgment of the Gujarat High Court in support of his contention. The Division Bench of the Gujarat High Court in the judgment referred to earlier was considering whether a person appointed as a Labour Court Judge who was assisting lawyers engaged by the Union before the Industrial Court could be said to have 'regularly appeared' for the purpose of fulfilling the requirements of appointment to the post of Judge of the Labour Court. On consideration of the evidence which was recorded through a Commissioner, the Division Bench held that such assistance to lawyers could not be said to be appearing in a Court. The Division Bench also referred to some judgments to hold that such assistance to Lawyers who represented the Union in proceedings before the Labour Court could not mean that the person assisting appeared. Furthermore, it may be noted that the said judgments was based on the interpretation of Section 9(2) of the Bombay Industrial Relations Act, 1946 wherein it is provided that a person shall not be qualified for appointment as the Presiding Officer of a Labour Court unless he has practised as an Advocate or Pleader for not less than 3 years or has regularly appeared as a member of a Trade Union for not less than 7 years in proceedings before the Labour Court, Industrial Court or Tribunal. Therefore, what is material to be seen is that the Division Bench of the Gujarat High Court was faced only with the issue of to 'appear'. The question of 'act' did not at all arise for consideration though in the body of the judgment there is also a reference to acting. Several judgments of some other High Courts were referred to hold that mere assistance would not amount to putting in appearance and as such the Respondent therein whose appointment as Labour Court Judge was challenged by various organisations and Lawyers could not have been appointed as Judge of the Labour Court. In so far as the word 'act' is concerned, in paragraph 45 of the said judgment it is observed that to appear before the Court would meant to appear or act and plead.
6. Section 23 of the M.R.T.U. and P.U.L.P. Act reads as under :-
"Employees authorised by recognised union to appear or act in certain proceedings to be considered as on duty.- Not more than two members of a recognised union duly authorised by it in writing who appear or act on its behalf in any proceeding under the Central Act or the Bombay Act or under this Act shall be deemed to be on duty on the days on which such proceedings actually take place, and accordingly, such member or members shall, on production of a certificate from the authority of the Court before which he or they appeared or acted to the effect that he or they so appeared or acted on the days specified in the certificate, be entitled to be paid by his or their employer his or their salary and allowances which would have been payable for those days as if he or they had attended duty on those days.
Explanation :- For the purpose of this section "recognised union" includes a representative union under the Bombay Act".
The word "act" or "appear" also appears in the Code of Civil Procedure under Order Ill. Order Ill, Rule 2 while speaking of recognised agents, speaks of recognised agents of parties by whom such appearances, applications and acts may be made or done. This order came up for consideration before this Court in the case of Aswin Shambhuprasad Patel & Ors. v. National Rayon Corporation Ltd., , which judgment was delivered by Chief Justice Chagla, and the expression "appearance, application or act" has been considered. The learned Chief Justice observed as under :-
"In my, opinion it is clear that "pleading" would not be included in any of these expressions. The right of audience in Court, the right to address the Court, the right to examine and cross examine witnesses, are all parts of pleaing with which O. Ill does not deal at all. It deals with restricted class of acts in connection with the litigation in Court and it is with regard to that restricted class of act that O. Ill permits recognised agents to be appointed. If authority was needed for this proposition, there is ample authority. There is the decision of the full bench of the Madras High Court in Krishnammal v. Balasubramania Pillai , and there is also two decisions of the Calcutta High Court in Harchand Ray Gobordhon Das v. B. N. Rly. Co. AIR 1916 Cal. 181 (1)(B) and In re : Eastern Ravoy Minerals Corporation Ltd. . Both the Madras High Court and the Calcutta High Court held that an agent with a power of attorney has no right of audience in Court".
Thereafter in paragraph 8 the learned Chief Justice proceeded to observe as under :-
"Therefore the proviso makes a distinction between appearing, pleading or acting and appearing or acting. Whereas a party may not only appear or act but he may also plead, a recognised agent as defined in R.2, O. Ill can only appear or act and not plead".
This judgment was considered by another Single Judge of this Court in the case of The Anglo French Drug Co. (Eastern) Pvt. Ltd. v. R. D. Tinaikar, . What was under consideration, there was the word "act" under the Trade Marks Act. The learned Single Judge considering the meaning of word "act" in the Trade Marks Act held as under :-
"A narrow meaning need not be given to the word "act" in S. 80. There is nothing to control the meaning of the word "act" as used in that section. It is referable to all kinds of acts which any person is required to do by or under the Trade Marks Act. It may be the act of making an application; it may be the act of filing an affidavit; it may be the act of leading evidence; it may be the act of pleading before the Registrar in support of the application. As the word used there is wide enough to cover all these activities and it is intended to exclude the act of making an affidavit, the words "other than the making of an affidavit" have been inserted in that section".
Thus the word "act" as used in Section 80 is wide enough to cover pleadings. Referring to the judgment of Chief Justice Chagla the same has been dealt with in para 4 of the Judgment. In paragraph 5 the learned Judge on a perusal of Order Ill and provisions of other legislation observed thus :-
"the word 'act' appearing there was not such as would include the act of pleading, and was intended to cover only such acts as are capable of being done in the act of acting for a litigant. The word 'act' in Order Ill, R. 1 is preceded by the words "appearance and application". The term 'act' there appears to have been used in the technical sense and not in the ordinary sense as being referable to any action by any party".
The learned single Judge thereafter has proceeded to observe that interpretation of the expression in some other enactment would not be relied upon to construe that the word 'act' must have a similar meaning in the Act under consideration.
7. The objects and reasons clause of the M.R.T.U. and P.U.L.P. Act does not also throw any light on the expression to 'appear' and 'act'. It may be noted that the word 'appear' and 'act' is also used under the Bombay Industrial Relations Act, an Act which came into force much before the enactment of the M.R.T.U. and P.U.L.P. Act. Earlier the expression used was to appear. Thereafter by amendment the word 'act' has also been included. The only question is whether the expression 'appear' or 'act' in section 23 of the Act must be so read so as to mean to plead, argue and/or conduct the proceedings and excludes assistance by office bearers of a Trade Union to Legal Practitioners. Section 23 of the M.R.T.U. and P.U.L.P. Act is nothing but a recognition of the long standing practice whereby the employers and Unions either as a matter of practice or by settlement have been permitting office bearers to represent the union in various proceedings wherein disputes of collective nature and/or disputes connected with the rights of the members or Unions. Such practice has been existing for a long time and has been understood as a necessary part of collective bargaining in as much as it would be the office bearers of the Union who would be best equipped to represent the interests of the members of the Union by themselves or instruct pleaders and Advocates to appear on their behalf. Section 23 of the Act, therefore, is a statutory recognition of this prevailing practice whereby the office bearers used to act for the Union in the proceedings.
8. Thus on the one hand in the case of Aswin Shambhuprasad Patel, (supra) it has been held that the act of pleading would include the right of audience, the right to address the Court, the right to examine and cross examine the witnesses. Further it has been noticed in the same judgment that there is a distinction between appearing, pleading or acting and appearing or acting. In the case of Anglo French Drug Co. (Eastern) Pvt. Ltd. (supra) the word "act" has been construed as including an act of making an application, the act of leading evidence or an act of pleading before the Registrar. At the same time it has been pointed out in the said judgment that merely because the expression "act" is construed in a particular manner in one legislation does not mean that the same meaning should be assigned while construing another legislation. In the case of the judgment of the Division Bench of the Gujarat High Court the word "appearance" has been construed as to mean to appear or act and plead. Considering the above judgments what is the meaning that can be assigned to the word "act" under the Act for the purpose of construing section 23 of the M.R.T.U. and P.U.L.P. Act. Two different expressions had been used namely to appear or act. If the words had the same meaning there would have been no need to use the words in the alternative. Therefore, the word "act" would have to be considered bearing in mind that Section 23 of the Act also uses the expression to appear and further that there is no provision in the M.R.T.U. and P.U.L.P. Act barring the appearance of Lawyers before the Courts constituted under the Act. If the word appear is to be construed in the manner as construed by the Division Bench of the Gujarat High Court then the word "appear" has to be read into the word "act". However, section 23 uses both expressions "appear" and "act" the word appear should necessarily exclude the word 'act'. If the word 'appear' includes to plead as construed in the case of Aswin Shambhuprasad Patel, (supra) that would include all acts including the act of audience, the right to address the Court and the right to examine and cross examine witnesses. In that event the word 'act' would mean to construe acts which do not form part of pleading. However, in the case of Aswin Shambhuprasad Patel, (supra) the word act has also been construed to mean the act of making an application, the act of leading evidence and the act of pleadings, in which event the same meaning as assigned to the word 'appearing' would have to be assigned to the word 'act'. When a Legislature uses two different expressions the legislative intent must be given effect to and the two expressions will have to be so considered. The terminology in section 23 is 'appear' or 'act'. In this context the word 'act' will have to be given its general meaning of acting for and/or on behalf of. Acting on behalf of, would mean doing such acts on behalf of a party, in the instant case a Trade Union. The word 'act' in section 23 of the Act would, therefore, contemplate that the office bearers of the Union can do such acts in pursuance of complaints filed before the Industrial Court and/or before the other authorities. This necessarily need not include addressing the Court, examining, cross examining the witnesses, etc., which would be covered by the expression 'appear'. Therefore, all such other acts which are not contemplated by the expression 'appear' would form part of the word 'act'. In these circumstances 'act' would include briefing Lawyers, appearing in the Court like any other litigant when the matter is placed for hearing. It need not mean arguing the matter, examining or cross examining the witnesses. It can include verification of pleadings, filling of affidavits, presenting of applications and all such acts that a party does in proceeding with a suit including remaining present in a Court when the matter is fixed before the Court so that the matter is not dismissed for non-appearance or proceeded with ex parte.
Thus considering the expression. "act" and the object for which the section has been enacted it must be necessarily held that the expression "act" would include the act of representing, act of instructing and such other acts as are required for the purpose of presenting the case of the Trade Union or members of the Trade Union before the relevant authorities. It has to be borne in mind that the M.R.T.U. and P.U.L.P. Act has given recognition to what is called "Recognised Union". The Legislature cannot be said to be unaware of the fact that most Union office bearers themselves are not well versed in laws and further unlike the provisions of the Industrial Disputes Act, 1947 wherein representation by legal practitioners is excluded except with the permission of the other party, there is no such provision in M.R.T.U. and P.U.L.P. Act. In the light of this the word 'act' must mean the ordinary expression of acting on behalf of the party. Once the word 'act' is so considered then under Section, 23 of the Act the office bearers who represent the Union in such proceedings are entitled for the salary for the entire day. In these circumstances the action of the petitioners was clearly in contravention of Item No. 9 of Schedule IV of the M.R.T.U. and P.U.L.P. Act.
9. Further contention is that the deductions made though the certificate produced did not show that the office bearers had acted or appeared. There is no form provided for by the Act or the Rules to indicate in what manner under Section 23 of the Act a certificate has to be issued. In the absence of that, all that is required is proof of the fact that the office bearers were present on the day when the proceedings were pending before the Court. The certificate produced by the office bearers of the Respondent No. 2 in these circumstances was sufficient to hold that on the particular day for which the deduction has been made they had in fact acted on behalf of the Union.
10. In the light of the above the other arguments pertaining to previous practice, etc. need not be considered. Once it is held that the Respondent No. 2 is a recognised Union, the office bearers in terms of section 23 were entitled to act and appear on behalf of the Union. Therefore, the case clearly fails under Section 23 of the M.R.T.U. and P.U.L.P. Act.
11. For all the aforesaid reasons there is no merit in the Writ Petition. Rule discharged. There shall be no order as to costs.
Certified Copy expedited.
12. Petition dismissed