P L D 1966 (W (PLP)

3. The petitioner is dissatisfied with the order passed by respondent No.

1. According to him the Industrial Disputes Ordinance, 1959 is a self‑contained Code and in proceedings under the Ordinance the parties to it may be represented by persons expressly recognized by section 34 of the Ordinance and in no other manner. Respondents Nos. 2 and 3 have controverted all the material allegations of the petitioner in their joint written statement filed before us. They have averred that section 34 of the Ordinance was not exhaustive. It does not debar an employer to nominate and appoint his attorney to participate on his behalf in the proceedings before the Industrial Court. The respondents have also raised some preliminary objections before us to contend that this writ petition is not competent. Accord ing to them the Labour Union of the petitioner was not validly constituted and had no locus standi to take the dispute to the Industrial Court. Although this objection was raised by the Management before the Industrial Court, but respondent No. 1 did not go into that question. It is denied that the petitioner was a duly elected General Secretary of the Labour Union and was competent to file this writ petition. At any rate Sher Muhammad himself was not an aggrieved party to the dispute and this petition by him personally was not maintainable. Moreover, no preju dice was caused to the petitioner or the Labour Union by the impugned order passed by respondent No. 1 permitting respon dent No. 3 to represent the Management in the proceedings before 6 the Industrial Court. This was a purely procedural matter and no legal right vesting in petitioner or the Union was infringed and as such their writ petition was not at all competent.

4. On the merits of the controversy before us both the parties have relied on the provisions of section 34 of the Ordinance in support of their points of view. This section is reproduced below:‑ "Representation of parties.‑(I) a workman who is a party to an industrial dispute shall be entitled to be represented in any proceedings under this Ordinance by an Officer of a register Trade Union, and any employer who is a party to an 'industrial dispute shall be entitled to be represented in any such proceed ings by an officer of an association of employers. (2) No party to an industrial dispute shall be entitled to be represented by a legal practitioner in any conciliation proceed ings, or, except with the consent of all the parties to the dispute, in any proceedings before a Court adjudicating such dispute." The learned counsel for the petitioner has argued that the section was an absolute bar in the way of the Management to appoint an attorney to appear, plead and act for and on behalf of the employer in the dispute under the Ordinance before the Industrial Court. The employer, who is a party to an industrial dispute, can be represented by an officer of an association of employers alone and by none else under the section. According to the learned counsel this provision was introduced with a useful purpose behind it. It debars strangers from inter‑meddling in the dispute peculiar to the workers and the Management and permits the specified persons only to participate in the dispute, as they are better qualified to bring to bear their own experience in such problems to resolve them and promote conciliation between the parties or to settle their disputes expeditiously.

5. The general law for appearance, application or act .in or to any Court, is contained in rule 1 of Order III of the Code of Civil Procedure. In contrast with the provisions of section 34 of the Ordinance, it is as under:‑ "Any appearance, application or act in or to 'any Court, required or authorized by law to be made or done by a party in such Court, may, except where otherwise expressly provided by any law for the time being in force, be made or done by the party in person or by his recognized agent, or by a pleader appearing, applying or acting, as the case may be; on his behalf; provided that any such appearance shall, if the Court so directs, be made by the party in person." So that under this law the party can be represented in person or by his recognized agent or pleader duly appointed in that behalf. At the time section 34 of the Ordinance was enacted the drafts man had before him all the three recognized modes of repre sentation in an ordinary Court of the country. If indeed sub section (I) of section 34 of the Ordinance was exhaustive and intended so as to operate as a complete bar against all forms of representation, other than those expressly recognised by it, then subsection (2) of this section would become redundant and there was no necessity for this separate provision expressly debarring the legal practitioners to appear, plead or act for and on behalf of a party in or before the Industrial Court. It appears to us that section 34 of the Ordinance does not operate as a complete bar against all the known forms of representations in Court. In subsection (2) of this section it is expressly laid down that no party to an industrial dispute shall be entitled to be represented by a legal practitioner in any conciliation proceedings, or except with the consent of all the parties to the dispute, in any proceed ings before the Industrial Court. This is the only prohibition introduced by section 34 of the Ordinance. In it there is no bar against the other well, accepted mode of representation in Courts by an agent or specially authorized attorney. In our opinion, subsection (1) of section 34 is an enabling provision of law. It is permissive in its extent and its scope is by no means restric tive. It provides that a workman or an employer who is a party to any industrial dispute shall be "entitled" to be represented in such proceedings by an officer of the registered Trade Union or an officer of an association of employers respectively. It does not expressly rule out any other mode of representation for a party in the proceedings under the Ordinance. The subsection is not exhaustive in its implications. Its purpose is to grant a statutory recognition to an additional mode of representation by the workmen and the employer in the proceedings under the Ordi nance to which they are parties. So that in any proceedings C under the Ordinance the workmen can also be represented by an officer of the registered Trade Union and an employer by an officer of an association of employers under the force of this statute.

6. Section 11 of the Ordinance provides that the Industrial Court for the purpose of adjudicating and determining any industrial dispute be deemed to be a Civil Court and shall have the powers as are vested in such a Court under the Code of Civil Procedure, 1908. In the absence of anything to the contrary in the Ordinance the provisions of rule I of Order III of the Code are also applicable to the proceedings in the Industrial Court. So that any appearance, application or act in or to any Court required or authorised by law to be made or done by a party in such Court, may except where otherwise expressly provided by any law for the time being in force, be made or done by a party in person or by his recognized agent appearing, applying or acting, as the case may be, on his behalf. This provisions will mutatis mutandis apply to the proceedings before an Industrial Court. However, on account of the express prohibition contained in subsection (2) of section 34 of the Ordinance, a legal practtioner is debarred from participating, on behalf of any party, in the proceedings under the Ordinance.

7. In an unreported case, Jalal Din v. Orient Match Company Limited (F. A. O. 166 of 1964), a learned single Judge of this Court has held that section 34 is neither exhaustive nor restrictive but only permissive to the extent that a departure has been made from the provisions of Order 111, rule 1, C. P. C. in that an Officer of the employer's association can appear before the Indus trial Court without an express authority from the employer concerned and that did not rule out the representation of the employer by an authorised agent other than the officer of an employers association. Mr. Muhammad Shafi, a retired Judge of this Court, as the Chairman of the Industrial Court of West Pakistan has examined at length the provisions of section 34 of the Ordinance in Silver Cotton Textile Workers Union, Hyderabad v. The Silver Cotton Mills Limited, Hyderabad (1961 P L C 622), on which respondent No. 1 has relied in his impugned order. He was of the opinion that this section was neither restrictive nor exhaus tive. At the most it was permissive. It cannot be said to have ruled out other appropriate modes of representation. The words used in section 34 are that any employer who is a party to an industrial dispute shall be entitled to be represented in any such proceedings by an officer of an association of employers and not that he shall not be entitled .to be represented by anybody else. The words "shall be entitled to be represented", clearly connote the conferment of an additional right on a party and they are not restrictive in their sense. A corporation or a limited concern has no visible personality and is, therefore, incapable of appearing in person. Same is the case with the Government. If in an indus trial dispute one of the parties is the corporation, Government or a limited concern and they do not wish to be represented by an officer of the association of employers, then if the argument of the Union is accepted, they shall have no right to be represented; or it, may happen that there is no employers' association and, there fore, no officer of such an association to represent them. In their case then a corporation, a limited concern or the Govern ment shall have no right to be represented in the Court. The right to be heard is a substantive right and its denial of justice. It will, therefore, be a complete denial of justice if an industrial dispute in the cases mentioned above was heard in their absence. Subsection (2) of section 34 lays down that no party to an industrial dispute shall be entitled to be represented by a. legal practitioner, in any conciliation proceedings or except with the consent of all the parties to the dispute in any proceed ings before a Court, adjudicating such dispute. This provision seems to imply that but for the restrictions placed by this sub section, it would be open to a party to be represented by a legal practitioner even though he is not an officer of the association of employees. Take for example the question of a minor or a lunatic who owns an industrial concern. If a dispute is brought to an industrial Court with regard to that concern, then the minor or lunatic is legally incompetent to appear before it and for that reason he must be represented by his legal guardian. No provi sion is made in section 34 as to how are these categories of people to. be represented before, the Court. To hold that their legal guardian cannot represent them and that they must be represented by an officer of the association of the employers would be on the face of it ridiculous. Under Order III, rule 1 of the Code of Civil Procedure any appearance, application or act in or to any Court required or authorised bylaw to be made or done by a party to such Court may except where otherwise expressly provided by any law for the time being in force, be made or done by the party in person, or by his recognised agent, or by a pleader appearing, applying or acting, as the case may be on his behalf. So far as the appearance by a legal practitioner is concerned, he has been expressly debarred from it except under certain circumstances. But in spite of section 34, the parties shall still be entitled to be represented by authorised agents. Under section 11 of the Ordinance an Industrial Court for the purpose of adjudicating and determining any dispute shall be deemed to be a Civil Court and shall have the same powers as are vested in such Court under the Code of Civil Procedure. Looking at the question objectively, the inevitable conclusion is that section 34 of the Industrial Disputes Ordinance is neither exhaustive nor restrictive but only permissive by which a departure from Order III, rule 1, C. P. C. has been made only to this extent that an officer of an employers' association can appear without any express authority from the employers concerned. We l have every reason to endorse this opinion elaborately expressed by Mr. Muhammad Shafi in the case just mentioned. 8. "Qui facit per alium facit per se," he who acts through another is deemed to act in person, is an accepted maxim at common law. It is the common law right of any person to be represented by a duly authorised agent in any proceedings unless there is any express or implied bar against it in the statute. This right is inherent in a party to appear, plead and act through his authorised agent. In re Whitley Partners Limited ((1886) 32 Ch. D 337), the memorandum of association of the company was signed by an agent on behalf of his principal. The relevant provisions of Companies Act, 1862 provided that any seven or more persons associated for any lawful purpose may by subscribing their names to a memorandum of association and otherwise complying with the requirements of that Act in respect of the registration, form an incorporate company and that the memorandum of association "shall be signed by each subscriber in the presence of, and attested by one witness at the least". The question arose as to whether in the light of those provisions, the signature by the agent was sufficient compliance of the law or not? The learned Judges on an interpretation of the relevant law were of the opinion that there was no bar in the way of the agent signing for and on behalf of his principal. Bowen, L. J., while concurring with his two brothers, observed as under:

"The law on the subject is thus summed up by Black Burn, J., in Reg. v. Justices of Kent L R 3 .Q B 305 no doubt at common law, where a person authorises another to sign for him, the signature of the person so signing is the signature of the person authorising it; nevertheless there may be a case in which a statute may require personal signature. Quain, J., then says, we ought riot to restrict the common law rule, qui focit per alium facit per se, unless the statute makes a parsonal signa ture indispensable Archibald, J., says I think this case comes within the common law rule, qui facit per alium facil per se, and there is nothing in the statute to qualify the operation of that maxim. It is easy to understand that there may, be cases in which a different construction must be put on peculiar statute. Hyde v. Johnson 2 Bing. N C 776 was decided on the ground that Lord Tenderdan's Act was to be read along with the Statute of Fraud, which expressly refers to signatures by an agent and that a clause which contains no reference to an agent was, therefore, to be held to require personal signa ture." In Queen v. Assessment Committee of Saint Marry Abbott Kensing ton ((1891) 1 Q B D 378) it was held by Lord Esher, M. R. that the Assessment Committee was not a Court or tribunal exercising judicial func tions in the legal acceptation of the term. The relevant statute gave the objector a right to appear and be heard in support of his objections before the Assessment Committee. The Act contained no provision prohibiting the objector from appearing by an agent. The question arose whether being such as the' Committee was, have its members a right to say that a person may not appoint an agent he pleases to appear in support of an objection made by him to the assessment list. Lord Esher M. R: was of the opinion that there was nothing in law which authorises them to limit as they had done, the right given to a person by the Legislature of making objections to the list. The persons concerned have a right to appear themselves or by an agent authorised by them. Bowen, L. J. concurred with this view and Fry, L. J. while subscribing to it further remarked that "it does not appear to me that the Assessment Committee have any power to limit the common law right of a person whom the statute entitles to appear in support of his objection to the list, to appear by agent". It is obvious that this inherent right of a person to appear and represent through his duly authorised agent in any proceedings cannot be taken away except by a clear provision in the Ordinance to the contrary.

9. Duduwala & Company v. Industrial Tribunal and others (A I R 1958 Raj. 20), cited by the learned counsel for the petitioner is based on the provisions of the Indian Industrial Disputes Act, 1947. It lays down that the Industrial Disputes Act was a special law providing for special contingencies. It must, therefore, be treated as a complete code in itself and when it provides for representation of employers and employees before Industrial Courts and Tribu nals, that must be held to be exhaustive. There was no reason why the Court should import the provisions of the general law regarding representations before Courts and Tribunals under the Industrial Disputes Act. On the interpretation placed on section 36 of the Indian Act, the Rajasthan High Court held that a legal practitioner who was also an officer of the registered trade union or an officer of the Association of employers can repre sent the employees or the employer as the case may be in his capacity as such Officer. The corresponding provisions in section 36 of the Indian Act are substantially the same as in section 34 of the Ordinance in our country. But the provisions in section 1‑1 of the Indian Act dealing with the procedure arid powers of the Conciliation Officers and Industrial Courts, are materially different from the corresponding provisions of section 11 of our Act. Under section 11 of the Indian Act contrary to the law prevailing in our country, the provisions of the Code of Civil Procedure are not generally applicable to the Industrial Court and these can be invoked in certain specified matters only for enforcing the attendance of persons, compelling the production of documents, issuing commissions and in respect of such other matters as may be prescribed. Moreover, the ratio in the reported case from Rajasthan (India) cannot be considered to be good law in our country. The Supreme Court of Pakistan in Karachi Union of Employers and others v. The Industrial Court of Karachi (PLD 1961 S C 57), took an altogether different view on the interpretation of subsection (2) of section 34 of the Ordinance and held that the Legislature has regarded the appearance of legal practitioners (except in cases where all' parties concur) in proceedings before Industrial Courts undesirable and, therefore, if legal practitioners who are office‑bearers of the association of employers or union of employees are allowed to represent parties before the Industrial Court, the very object of the law could be easily defeated for there is no bar to the legal practitioner being appointed honorary office bearers of Unions or associations and in all cases legal practi tioners could without any difficulty, be thus introduced in proceed ings before the Industrial Courts in the guise of office‑bearers. The legal practitioners who are office‑bearers of associations or Unions are, therefore, not entitled to appear before the Indus trial Court. For the reasons discussed above we are not prepared to accept the reasoning advanced in the reported case from India cited before us by the learned counsel for the petitioner.

10. This writ petition has no force: It is bound to fail on its merits and it is hardly necessary for us to go into the prelimi nary objection raised before us on behalf of the respondent against its maintainability. This writ petition is, therefore, dismissed with costs. K. M. A. Petition dismissed.