TMI Blog1966 (8) TMI 72X X X X Extracts X X X X X X X X Extracts X X X X ..... ndian Hume Pipe Company before the tribunals constituted under the Act, in pursuance of what is clearly a long and uniform practice. He holds a contract with the company under which he receives a monthly payment of ₹ 1,000 in consideration of the legal advice he tenders to it. In addition, the company pays him fixed fees for appearance in legal proceedings. In this reference, he claims the right to represent the company under a power of attorney executed by it in his favour authorizing him, amongst other things, to conduct and defend legal proceedings and to represent the company before judicial or quasi-judicial authorities. 3. The power off attorney executed by the company in favour of Sri Mehta clearly constitutes him its agent to represent it in the dispute before the industrial tribunal. The question therefore is not of the construction of that power. The question is whether, despite the power, Sri Mehta has no right to represent the company in view of the provisions contained in S. 36(2) of the Act. Section 36 of the Act which, as its marginal note suggests, deals with the representation of parties reads thus : 36. Representation of parties. - (1) A workman who ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... section similarly refer to a workman being entitled to be represented in a proceeding under this Act. When law says that a workman or an employer would be entitled to be represented in a particular manner, it is difficult to hold that the right or the workman or the employer to be represented in a proceeding must be restricted to the circumstances enumerated in the provision. If the provisions as regards the right of representation were intended to be exhaustive, it would have been easy enough to express such an intention by appropriate language. For example, such an intention could have been adequately expressed by providing that a workman or an employer shall be entitled to be represented in a proceeding under the Act by the persons mentioned in Cls. (a), (b) and (c) and by no one else. This intention could have also been expressed by deleting the works be entitled to in the opening part of Sub-secs. (1) and (2) of S. 36. If these words are deleted, Sub-section (2) of S. for example, will had to say that an employer who is a party to dispute shall be represented in any proceeding under the Act by the persons mentioned in Cls. (a), (b) and (c). On a plain reading of the sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it necessary to include such a right in any of the categories of representation which are said to exhaust the right of an employer to be represented in a proceeding under the Act. In our opinion, the exclusion from Sub-section (2) of the right of an employer to appear in person in cases in which he can so appear shows that Sub-section (2) is not exhaustive of the right of an employer to be represented in a proceeding under the Act. 7. If the construction suggested by Sri Chitale is put on Sub-section (2), one would be compelled to hold that Sub-section (2) takes away, by implication, the right of an employer to appear in person. In fact, a similar construction shall also have to be placed on Sub-section (1), the words of the two sections being identical. It would, in our opinion, be wholly wrong to construe these sub-sections so as to lead to the result that a valuable right of a workman or an employer to appear in person is excluded by implication. Normally rights are not permitted to be excluded by implication and therefore, it would not be proper to hold that the provisions of sub-section (2) are restrictive. 8. Strange results would follow if the construction canvassed by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se (c) and nowhere else. Under that clause, the company would be entitled to be represented by an officer of any association of employers connected with the industry in which the company is engaged or by any other employer engaged in the particular industry. Now to compel a company to be represented in a dispute with its workers by an employer engaged in a similar industry would often mean the compulsion to engage a rival in business. 10. It must also be borne in mind that law does not create any obligation on the persons mentioned in Cls. (a), (b) and (c) of Sub-section (2) to appear for a particular employer. The officer of an association of employers of which the employer is a member or an officer of a federation of associations of employers to which the association of employers is affiliated may decline to appear for a particular employer for reasons of convenience, exigencies or the like. To accept the construction for which Sri Chitale contends is to hold that the legislature has compelled an employer to be represented through certain persons who may or may not agree to appear on behalf of the employer, If a company cannot appear in person, if it has no unqualified right t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y could be represented by its own officer or director. In accepting the construction canvassed by Sri Chitale one shall be driven to hold that the intention of the legislature is capable of being easily defeated in a large variety of cases. 13. On the question of absurd consequences flowing from the construction canvassed on behalf of the workers, we might draw attention to a real difficulty which one may have to countenance in that construction. If a company is not a member of any association of employers, its right of representation shall have to be sought in Clause (c). That clause recognizes two modes of representation, namely, through an officer of the association of employers connected with the industry or through any other employer engaged in the industry. The right conferred by Clause (c) that an employer can be represented by another employer engaged in a similar industry would be incapable of being exercised if such an employer is also an incorporated company. Therefore, in certain cases, the ultimate right of an incorporated company to be represented in a dispute under the Act would have to be restricted to its being represented by an officer of an association of empl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in person. It must of necessity be represented by some other person. 17. It is then contended by Sri Chitale that if S. 36(2) was not intended to be exhaustive and if the right of an employer to be represented by an agent of his choice was intended to be saved, nothing would have been easier for the legislature than to provide that an employer would be entitled to be represented in a proceeding under the Act by an agent duly authorized by him in that behalf. Now this argument overlooked that one of the object of Sub-section (2) is to create an absolute right in an employer to be represented by the class of persons mentioned in its three clauses. It was not intended that an unfettered right should be conferred upon an employer to engage an agent of his choice. We might, in this behalf, draw attention to S. 11 of the Act which says that subject to any rules that may be made, a tribunal, amongst other authorities, shall follow such procedure as it may think fit. This right of the tribunal to regulate its own procedure is important, because in the exercise of that right, the tribunal can refuse the right of audience to a particular agent. In re : Philip V. Godinho [36 Bom. L.R. 1], ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed unless an opportunity is afforded to him to show cause why such an order should not be passed. As observed by Stirling, J., in Jackson Co. v. Napper [35 Ch. D. 162 at 172] the true position is that subject to certain well-known exceptions, every person who is sui-juris has a right to appoint an agent for any purpose whatever, and he can do so when he is exercising a statutory right no less than when he is exercising any other right. The delegation of one's right to an agent is not required to be sanctioned or authorized by law, for, as observed by the learned judge in order to make out that a right can only be exercised personally, and not through an agent, you must find something in the Act which limits the right of a person to appoint an agent to act on his behalf. A similar view has been expressed by Lord Esher, M.R., in The Queen v. Assessment Committee of Saint Mery Abbotis Kensington [(1891) 1 Q.B. 378 at 382]. 21. We may mention on this point that there is nothing in Chap. X of the Indian Contract Act to justify the submission that the right of audience cannot be delegated to an agent. Under the Contract Act, an agency can be created for every lawful purpose and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ar from rule 32 of the Industrial Disputes (Bombay Rules), 1956, which says that the representatives of parties shall have the right of examining, cross examining and re-examining witnesses and of addressing the authority on completion of the evidence. If the basic policy of the two statues is so strikingly different, it would be wrong, in our opinion, to construe the provisions of S. 36 of the Act by reference to the decisions turning on the peculiar language of Order III, rule 1, of the Code of Civil Procedure. 24. On the construction of the words used in S. 36 of the Act we are, therefore, of the opinion, that Cls. (a), (b) and (c) of Sub-section (2) are not exhaustive of the right of an employer to be represented in a proceeding under the Act. Those clauses are devised merely to create an unqualified right in an employer to be represented by a class of persons. They do not take away his right to be represented in any other lawful manner. 25. Sri Chitale has cited a large number of decisions some of which have a direct bearing on the question which arises before us. It would now be necessary to consider the more important of these decisions. 26. In Duduwala Co. and ot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hus represented has to be determined on the basis whether the right is excluded by S. 36. 29. A view, similar to that of the High Court of Mysore, has been taken by a Division Bench of the High Court of Patna in Bihar Journals, Ltd., Patna v. H. K. Chaudhuri and another [1966 - I L.L.J. 789]. In that case, the board of directors of a limited company had passed a resolution authorizing a shareholder of the company who was also its employee to appear on behalf of the company in a proceeding before the industrial tribunal. It was held that as the company could not appear in person, it was entitled to act through an agent under a proper resolution. According to the learned Judges, the shareholder was authorized in a proper manner to act for the company and that being a permissible way for a company to act itself it was difficult to find why the shareholder could not represent the company. Such a representation is really not the representation as envisaged in Sub-section (2) of S. 36 High Court of Patna also has not considered the question whether the provisions of S. 36 are exhaustive, but we might, with respect, observe that for reasons for which we are unable to agree with the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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