1988 PLP 825 (PLC(CS))

Laws Cited

Representation

• Riaz Anwar for Appellants.
• Ch. Muhammad 1kram for Respondent.
• Date of hearing: 14th March, 1988.
• ‑‑‑Ss.37 & 49‑‑Appeal, presentation of‑‑Memo. of appeal signed by Law Officer of Appellant Bank who was not party to grievance petition‑‑Advocate signing and presenting appeal authorised by Law Officer‑‑Objection as to maintainability of such appeal raised by,;,, opposite party‑‑Application made thereafter by Advocate making! appearance alongwith certificates from Chairman and concerned Directors of Bank that they had instructed such Advocate to file appeal, praying for permission to sign‑‑Memo of appeal by such Chairman and Directors‑‑Application opposed by opposite party on plea that since limitation for appeal had expired Chairman and Directors could not be allowed to sign appeal so as to deny right accrued to opposite party by lapse of time‑‑Plea accepted‑‑Appeal rejected being not competent‑‑Held: In circumstances, there was no scope either to treat appeal as having been duly brought and presented or to permit appellants to sign memo. of appeal at such stage.
• 3. Learned counsel for the respondent has raised an objection about the competency of the present appeal. The objection is that the appeal is not competent since it is not signed by the appellants but is signed by the Law Officer. It is also contended by the learned counsel for the respondent that Mr. Riaz Anwar, Advocate, who has signed the memo. of appeal too has not been authorised by the appellants but has been authorised by the Law Officer. Learned counsel for the appellants has brought on the record three certificates, one issued by Rana Shabbir Ahmad Khan, Chairman, the others by Mr S. Iqbal Ahmad, Executive Director (Former Director General Personnel) and Mr. Mukhtar Ahmad, Director Personnel bearing no date on which they were issued. The certificates are to the effect that the undersigned had instructed Mr. Riaz Anwar, Advocate, to file the appeal before this Tribunal. It is also mentioned in all the certificates, "I own the appeal filed by him on my behalf and novel pending before the Punjab Labour .appellate Tribunal, Lahore." .After these certificates were produced, arguments were invited and the learned counsel for the respondent argued that the certificates were only to the effect that Mr. Riaz Anwar, Advocate, had been instructed to file the appeal but it is not stated in the certificates that the learned lawyer had been authorised to sign the memo. of appeal. After the conclusion of the arguments the learned counsel for the appellants sought adjournment so that the officers who had issued the certificates may apply for permission to sign the memo. of appeal. The learned lawyer has with his own signatures made an application to that effect. This application has also been opposed by the learned counsel for the respondent who has argued that since the period of limitation for bringing the appeal has expired, now the three officers cannot be allowed to sign the memo. of appeal to deny the right accrued to the respondent by lapse of time. Both the learned counsel have led arguments. Learned counsel for the appellants has cited 1981 S C M R 687, P L U 1978 Quetta 45, P L D 1973 Note 33 at p.41, P L D 1969 Kar. 210 and P L D 1967 Lah.807. None of the rulings cited by the learned counsel for the appellants is helpful, inasmuch as they are based upon the provisions of Code of Civil Procedure which is not applicable to labour cases. In 1981 S C M R 687 it has been observed that non‑.signing of the plaint at the proper stage was a mere irregularity and consequently the learned District Judge was entirely justified to direct that the said irregularity may, be rectified. In that case the plaintiffs had been personally pursuing the case and even had appeared as their own witnesses. It is thus clear that they were quite diligent in prosecuting their suit and non?signing of the plaint, therefore. was not a serious defect but in the present case after an objection was raised by the learned counsel for the respondent, the three certificates were brought and an application was given by the learned counsel for permission to get the memo of appeal signed by the appellants. The objection was raised on behalf of the respondent not to allow the appellants to remove the defect but to take benefit of their blunder. If within limitation such a prayer had been made, of course, there could have been no serious objection to it. A valuable right has accrued to the respondent by lapse of time which cannot be denied to him peicularly when the defect has been pointed out by the learned counsel for the respondent B and not by the learned counsel for the appellants. In P L D 1978 Quetta 45 also it was held that absence of signatures of the plaintiff on the plaint was a mere irregularity and could be cured at any' subsequent stage. Same kind of view has been taken in P L D 1973 Note 33 at p.41, but in this case the mistake was corrected without any objection from the opposite side. It has been observed in P L D 1969 Karachi 210:
• Since rule 15 of Sind Chief Court Rules was also examined, according to which, a pleader appearing on behalf of the Government had not necessarily to get a power of attorney. It has lien held in P L D 1967 Lahore 807 that the appeal filed by an Advocate on verbal instructions of the counsel duly authorised to file it was competent. The said ruling is distinguishable because in that case the counsel was duly authorised to sign the appeal and to present it and he had authorised his junior only to present the appeal but in the present case the appellants did not authorise the learned counsel either to sign or bring the appeal.
• In the Industrial Relations Ordinance, 1969 there i: no provision how an appeal shall be preferred but at the same time it is not provided that the memo. of appeal need not be signed either by the appellant or by his agent. Section 49 of the Industrial Reations Ordinance, 1969 bars the legal practitioners to represent the parties. According to subsection (1) of section 49 of the Industrial Relations Ordinance, 1969, even a workman who is a party to an industrial dispute is entitled to be represented in any proceedings by an Officer of Collective Bargaining Agent and there is no provision that he pan be represented by a legal practitioner. An employer who is a party to an industrial dispute can be represented in any such proceeding: by persons duly authorised by him Even if the word "person" appearing in subsection (1) is interpreted to include a lawyer also, then since it is provided that such a person should be duly authorised, it is necessary that there should be on the record a power of attorrney signed by the appellant in favour of the legal practitioner o" the person so authorised. The word "duly" is very significant and shows that the authority should be in writing signed by the employer. According to subsection (3), a party can be represented by a legal practitioner only with the permission of the Court. So, even if it be said that an employer can engage a legal practitioner as provided by subsection (1) of Section 49, even then the said legal practitioner cannot appear unless he is expressly permitted by the Court to appear. Since Mr. Riaz Anwar, Advocate has no power of attorney from the appellants, no question arises that he sought or can seek permission from this Tribunal to appear. Only that legal practitioner can seek permission who has firstly been duly engaged and authorised by the employer. In the present case, as mentioned above, Mr. Riaz Anwar was not appointed and authorised by any of the three appellants but by a stranger i.e. a Law Officer who has not been shown to have any connection with the order which the respondent challenged before the learned lower Court and who admittedly was not party to the grievance petition. No procedure of hearing of appeals is given in the Industrial Relations Ordinance, 1969 but rule 78 of Punjab Industrial Relations Rules, 1973 provides that in hearing an appeal against an award the Labour Appellate Tribunal shall follow the same procedure as is followed by an appellate Court in hearing the first appeals under the C.P.C. Nothing is given in rule 78 about the filing or signing of the appeals but it deals with the procedure for hearing appeals. Needless to say that question of 'hearing an appeal' arises only after an appeal has been lodged. Even in Order XLI the procedure of hearing appeals starts from rule 16 and rule 1 deals with the signing of the appeal. In cases where a defect comes to light before the expiry of the period for filing the appeal, the said defect can be got removed but, as observed above, where the period of limitation has expired, a memo. of appeal cannot be allowed to be signed by the appellant. So far as the three certificates issued by the appellants are concerned, they only say that the learned counsel was authorised to file the appeal. They do not say that the learned counsel was authorised to sign the memo. of appeal on their behalf. So far as the application for allowing the appellants to themselves sign the memo. of appeal at this stage is concerned, even the said application has not been given by the appellants with their own signatures. The said miscellaneous application is signed by Mr. Riaz Anwar, Advocate, in whose favour no power of attorney stands. The petition, therefore, cannot be said to have been given either by the appellants or under their authority. Even no grounds are given why the appellants did not sign the memo. of appeal at the time it was lodged and on what grounds now they should be allowed to sign it. At no stage the appellants appear to have been associated with the dispute. The perusal of the written statement filed before the learned Lower Court shows that it does not bear the signatures of any of the appellants. It bears the signatures of Sh. Abdul Aziz, Advocate, who was authorised by one Muhammad Sarwar, Law Officer. The signatures of the said Law officer do not tally with even the signatures appearing on the memo. of appeal which shows that different persons had signed the power of attorney in the learned Lower Court and the power of attorney brought on the record of this appeal. The name of the person who signed the memo. of appeal is given as Rana M. Zafar lqbal, Law Officer, whereas the power of attorney attached to the learned Lower Court's file bears the signatures of one Muhammad Sarwar, Law Officer and the word "for" is given. There is no letter of authority executed by the appellants who were respondents before the learned Lower Court in favour of Mr. Muhammad Sarwar authorising him to engage a counsel, to file written statement and to contest the grievance petition. Likewise there is no letter of authority by the appellants in favour of Mr. Rana M. Zafar lqbal, Law Officer, who signed the memo. of appeal. With his signatures even the word "for" is not written, which means that riot on behalf of the appellants but Rana M. Zafar Iqbal signed the memo. of appeal as an appellant. Since neither Rana M.Zafar lqbal nor Mr. Muhammad Sarwar were party either to the grievance petition or to the appeal, they are quite strangers to the dispute and the powers of attorney signed by them do not authorise the learned counsel either before the learned Lower Court or before this Tribunal to fight the case against the respondent. Even this is doubtful in view of the discussions made above that in reality the appellants namely the Chairman, Director General Personnel and Director Personnel want to sign the memo. of appeal and to challenge the order of the learned Lower Court in the present appeal. If they had been intending to do so, they would have at least authorised Mr. Riaz Anwar, Advocate, to make an application for permission to sign the memo. of appeal but, as mentioned above, the application has been given by the learned counsel with his own signatures without any power of attorney from the appellants. I do not think there is any scope either to treat the appeal as having been duly brought and presented or to permit the appellants to sign the memo. of appeal at this stage. The appeal, therefore, is not competent and for this reason it is rejected.

Headnotes / Summary

Judgment & Decree