1991 PLP 556 (PLC)

The facts as alleged by the petitioner-company are that on the expiry of previous settlement of 30-6-1990, the respondent-Union served a notice of demands on 17-7-1990, which inter alia contained a demand for grant of Provident Fund facilities to all categories of workers. Parties concluded a settlement on 26-9.1990 in full and final settlement of all demands raised in the said demand notice dated 17-7-1989. But the General Secretary of the respondent-Union in violation of settlement is encroaching upon the guaranteed and secured right of the petitioner, company by raising demand of Provident Fund which was incorporated in the demand notice dated 17-7-1989 and subsequently dropped in settlement. He wrote letters dated 1-4-1990, 2-4-1990 and finally served the grievance notice on 24-6-1990 on behalf of 304 workers of the company. It is prayed that the Commission pass an appropriate order for enforcement of rights guaranteed and secured to the petitioner under the settlement dated 26-9-1989 and the Standing Orders Ordinance, 1968, declare the respondent-Union', communication regarding grant of provident fund facility as illegal, hold grievance notice dated 24-6-1990 containing demand for provident fund to be illegal, and pending disposal of this application, the grievance notice dated 24-6-1990 served by the General Secretary on the respondent may be suspended being in contravention of the settlement and the I.R.O., 1969.

2. Learned Member Lahore before whom this case was riled, passed the order suspending the operation of grievance notice dated 24-6-1991) and prohibited the union not to proceed against the provisions of existing settlement on 15-7-1990. I have had both the parties present their written arguments, inter alia on the question of maintainability. .

3. The respondent assails the petition, firstly, on the ground that Turab Hussain, Administrative Officer who is stated to have been duly authorised by the competent Authority to rile this petition is not competent to represent on behalf of the company which is a public limited company and cannot sue without proper authority from its Board of Directors. In this respect respondent relied upon the judgment reported as P L D 1971 S C 550 which, statedly, holds that for the purpose of filing a suit on behalf of a company, its attorney or agent must file alongwith the suit, a proper resolution of Board of Directors in which that agent or attorney was authorised to file such case. In the present case the attorney/agent Turab Hussain did not file proper resolution as observed in the above referred authority.

4. The petitioner stated that the Code of Civil Procedure had limited applicability in the case, and that Turab Hussain had not been authorised to file the instant petition by the company. He cited the case of Khyam Pictures and another v. Bank of Bahawalpur 1982 C L C 1275. That was a revision petition under section 115, C.P.C. against the order of Civil Judge-III Class, Lahore who had dismissed the preliminary objections taken by the defendant to the maintainability of the suit. The point urged by the counsel in that revision petition in the High Court was that "even though there was a power of attorney produced in the case it had not been proved that those who had executed the power of attorney, had the power to do so under the Articles of the Company and the Memorandum of Association. The power of attorney, according to the learned counsel must have been signed by some of the Directors." The learned Judge came to the conclusion "that the question whether the person did or did not have authority to file the suit can effectively be challenged by the principal.

5. In this case the principal is the Board of Directors, and not the delegatee of the Board of Directors i.e. the Company Secretary. It is possible that the principal i.e. the Board of Directors may not even be in the know of the factum of this further delegation by its delegatee. This is apart from the fact that the Company Secretary being himself a delegatee by the Board of Directors could not further delegate the powers available to him.

6. Further Order III, Rule 2, C.P.C. requires that a power of attorney must be strictly construed. A reference in this connection could be made to the cases cited as P L D 1969 Kar. 123, and P L D 1978 S C: A J&K

143. In this view of the matter Mr. Hussain had only been authorised to institute the petition and not to sign it. It is true that he was also authorised to sign documents but a petition cannot be called document in this context. Word `documents' used in his authority letter is in contra-distinction to word `petition' otherwise the separate word of `documents' would not have been used.

7. Apart from that on merits also the petition is not maintainable. The demand of Provident Fund in the Charter of Demands, 1989 was as follows:-- The admitted position, as the settlement shows, is that this demand does not rind any mention in the Memo of Settlement which was concluded in full and final settlement of all demands. Now certain relevant parts of the grievance notice which is alleged to be in violation of this settlement are produced below. It states: "We the following confirmed Monthly Paid Productive Workers of the Company are entitled to become Members of Staff Provident Fund. We also entirely fulfil the requisite conditions in Rules Nos. 15 and 16 for the eligibility and Membership of the said Fund."

8. Its para. 3 states: "We, therefore, give grievance notice under section 25-A of I.R.O., 1969 demanding approval of our Membership towards Staff Provident Fund in Terms of Law ..

9. If there is a law in the field, it is elementary that a settlement which is at best in the nature of a contract between employer and workers shall not override or limit the same. The right of workers under section 25-A cannot therefore be limited by a settlement.

10. In this view of the matter, I find this main petition to be not maintainable under Order 7, Rule 11, C.P.C. which is accordingly rejected. Stay Order is recalled. M.Y.H./165/N.I.R.C. Petition rejected.