ANIL KUMAR UPADHAYA Vs. P K SARKAR

JUDGEMENT

(1.) The facts in this case are shortly as follows : The respondent No. 2, Messrs. Backwood Hodge (India) Private Limited is a company incorporated under the Indian Companies Act. The petitioner and the respondents Nos. 5 and 6 are the Trustees appointed under an Indenture of Trust relating to the start provident fund of the company. By an order dated 3rd August, 1959 made under Section 10 of the Industrial Disputes Act, 1947 the Government referred an industrial dispute existing between the company and their workmen represented by Blackwood Hodge Employees' Welfare Union, being the respondent No. 2 herein, to the adjudication of the Second Industrial Tribunal, Calcutta. The dispute, as set out in the schedule of the order (annexure "A" to the petition) relates to the amendment of the Provident Fund Rules. The Provident Fund Rules are contained in an Indenture dated 23rd May, 1953 being the Trust Deed, containing also rules and regulations relating to the provident fund. Under clause 4 of the said Indenture, the Trustees may, with the consent in writing of the employer and shall, it so desired by the employer, alter, vary, modify, remake, rescind, add to, or cancel any of the provisions of the Indenture or the rules, provided however that so long as the Provident Fund shall be a recognised Provident Fund under the provisions of the Indian Income Tax Act, 1922 or any modification thereof, the power contained in the said clause shall not be exercised without the previous consent of the Commissioner of Income-tax having jurisdiction over the Fund. The company filed its written statement on or about the 11th July, 1959 taking the point that the order of reference was bad in law as the Trustees were not made parties and as such the Tribunal had no jurisdiction to adjudicate upon the alleged order of reference. Subsequently, an additional written statement was filed by the company disclosing the names of the Trustees and stating that there was no relationship of employer and employee between the Trustees and the workmen and also reiterating the objection that the Trustees were not parties to the alleged order of reference. On the 22nd September, 1959 an application was filed on behalf of the Union stating that the Board of Trustees should be made necessary and proper parties inasmuch as the members of the Board were interested in the result of the adjudication and that unless they were added as parties to the dispute the effectual administration of the Provident Fund Institution will not be possible and practicable and the results of the adjudication will be inoperative and infructuous. It was, therefore, prayed that the members of the Board of Trustees should be "summoned to appear in the proceedings as parties to the dispute under Section 18(2) of the Industrial Disputes Act, 1947". On the very same day, the company appeared and stated that it had objection to this prayer and a written objection would be filed. The company thereafter filed its objection and the Tribunal made an order on the 24th December 1959. A copy of the said order is annexure "B" to the petition. The Tribunal in its judgment states that two questions arise in the application, the first being as to whether the Tribunal had power under the Industrial Disputes Act, 1947 to add new parties to the proceedings and the second point is whether the Trustees should be added as parties to the proceeding. The Tribunal considered Sub-section (3) of Section 18 of the Industrial Disputes Act and came to the conclusion, following two Madras Cases which I shall presently notice, that apart from the parties to the industrial dispute as mentioned in the order of reference, the Tribunal could summon other parties to appear in the proceedings as parties to the dispute and that this, by necessary implication, confers power upon the Tribunal to add new parties to the dispute. It was further held that new parties so added need not include only employers and employees. A party can be added if it is a necessary or proper party, i.e., a party affected by or interested in the dispute or whose presence is necessary for complete and final decision of the questions involved in the proceedings. The order was that the Trustees should be added as parties to the dispute under Section 18(3)(b) of the Industrial Disputes Act, and summons was issued to them to appear in the proceedings on 11-1-60. The summons that was issued upon the members of the Board of Trustees is in form D-1. The summons in form D-1 is the appropriate summons to require any person to produce before the Tribunal any books, papers or other documents and things in the possession of the party summoned, and/or to answer all material questions relating to the dispute. This form, which appears in the schedule to the Rules framed under the Act, refers to Rule 17 which is in the following term :

(2.) On the 11th January, 1960 the Board of Trustees appeared with their representative before the Tribunal and was granted time for filing written statement. On the 29th January, 1960 a represents alive on behalf of the Trustees asked for one month's time to move the High Court against the order dated 24-12-59. Time was granted and thereafter this Rule was issued on the 3rd March 1960 calling upon the respondents to show cause why the said order should not be quashed and/or set aside etc. There has been a stay of further proceedings pending the disposal of this Rule. Mr. Meyer appearing on behalf of the petitioner has taken three points. The first point taken is that the Tribunal had no jurisdiction to add parties to an order of reference or the proceedings. Reference is made to Section 11 of the Industrial Disputes Act the relevant part whereof is as follows :

(3.) What is argued is that the power to add parties, which is conferred by the Code of Civil Procedure (Order I Rule 10) is not one of the powers conferred upon a Tribunal. The power of enforcing attendance of any person for his examination on oath or compelling the production of documents and material objects is a power which has been granted. The power to add parties has not been granted, nor has it been prescribed under Clause (d) of Sub-section (3). Neither is there anything in the rules prescribed which grants any such power. This brings me to the second point that has been raised, namely that without proper rules being prescribed for the purpose, there is no jurisdiction to add parties. The third point that has been taken is that the dispute that has been referred is an industrial dispute which can only exist between the employer and the employee that is to say, the employer and its workmen. It is argued that the workmen of the company are not employees or workmen of the Trustees, who are not the employers in any sense of the word. I shall now deal with the first two points.