Narayan Prasad Pathak v. M. P. S. R. T. C. — 1994 DIGILAW 805 (MP)

ORDER 1. This order shall dispose of writ petitions Nos. 827 of 1991 (Narayan Prasad Pathak v. Madhya Pradesh State Road Transport Corporation and ors.), (2) 856 of 1993 (MPSRTC and another v. Shyam Babu Tiwari and others) (3) 858 of 1993 (MPSRTC v. Hanumant Prasad Sharma), (4) 978 of 1993 (MPSRTC v. Har Sewak Dube and ors.), (5) 1022 of 1993 (MPSRTC v. Ramhct Singh and others), ,(6) 1024 of 1993 (MPSRTC v. Ramnarain Shrivastava and others) and (7) 1398 of 1993 (MPSRTC v. Ram Singh Kushwah and ors.). Civil writ petition No. 827 of 1991 has been filed by the' unsuccessful employee who was unable to obtain an order of classification as ticket examiner whereas the other petitions have been filed by the employer against the orders passed by the authorities constituted under the Madhya Pradesh Industrial Relations Act. 1960 whereby the employees have been classified against various posts. 2. The contention of the Madhya Pradesh State Road Transport Corporation (hereinafter referred to as the 'Employer') is that the matter is fully covered by the decision given by a Full Bench of this Court in MPSRTC v. Narayan Singh Rathore, M.P. No. 527 of 1990 decided on 17th August, 1994 ( 1994 JLJ 648 ). This contention is sought to be controverted by the learned counsel appearing for the employees on the ground that the decision given in the above Full Bench is not the last word on the subject and there is still room for upholding the contention of the employees. Before noticing these contentions the brief facts which are common in all the cases may be noticed. The status of various employees when they joined the Corporation and the post to which they are seeking c1assil1cation is indicated in the table given below :-- W.P. No. Status at the Post to which time of initial Classification is appointment sought (1) 827/91 Driver Ticket Examiner (2) 856/93 Conductor Booking Agent (3) 858/93 Conductor Ticket Examiner (4) 978/93 Conductor Booking Agent (5) 1022/93 Security Guard Booking Agent (6) 1024/93 Conductor Booking Agent (7) 1398/93 Conductor Booking Agent 3. The learned counsel appearing for the employees has stated that notwithstanding the judgment given by the Full Bench, earlier Division Bench judgment reported as V.K. Jain and another v. Kamal Singh Thausingh and another, 1978 MPLJ 664 continues to hold the field as it has not been expressly overruled. The learned counsel appearing for the employees has stated that notwithstanding the judgment given by the Full Bench, earlier Division Bench judgment reported as V.K. Jain and another v. Kamal Singh Thausingh and another, 1978 MPLJ 664 continues to hold the field as it has not been expressly overruled. He has sought to sustain his argument by placing reliance on a decision given by Hon'ble Single Judge of this Court in the case of Rajendersingh v. MPSRTC. M.P. No. 3973 of 1993 decided on 8th of September, 1994. It has also been argued on behalf of the employees that the judgment given by the Full Bench should have prospective effect and it cannot take away the rights which have come to vest in the employees. In this regard, the counsel has placed reliance on a decision given by the Supreme Court in the case of Managing Director, ECIL, Hyderabad v. B. Kanmakar. 1994 Lab. IC 762. 4. The learned counsel appearing for the employees has also raised an objection with regard to the maintainability of the petition. It is contended that the General Manager of the Corporation had taken a decision not to file any petition against the order passed by the labour Court. For this reliance is being placed on a letter No. 291 dated 1st February, 1992. A reading of this letter makes it apparent that the General Manager of the Corporation did take a decision not to pursue the present litigation. An argument raised on behalf of the employer that later on the Managing Director of the Corporation has taken a decision to file the present petition is sought to be countered by contending that unless and until there is a valid resolution passed by the Corporation or a conscious decision is taken by the Corporation itself to file the writ petition, the managing director of his own was not competent to take a decision to tile the present writ petition. It is on the basis of this preliminary objection outright dismissal of the petitions preferred by the employer is sought. 5. The facts with regard to the preliminary objection and other fads are being taken from the writ petition No. 856 of 1993. The letter of the General Manager not to pursue the matter in the High Court is also on this file. 5. The facts with regard to the preliminary objection and other fads are being taken from the writ petition No. 856 of 1993. The letter of the General Manager not to pursue the matter in the High Court is also on this file. Other documents which came to be placed on the file during the course of hearing have also been placed on the record of this case. 6. So far as the preliminary objection raised by the employees is concerned there is no doubt that the General Manager of the Corporation did take a decision not to pursue the matter in the High Court. It was further decided to implement the order passed by the labour Court. As noticed above, the employer has placed reliance on the decision taken by the Managing Director to file the present petition in this Court. This decision has been placed on the record. The entire matter was considered by the Managing Director and a conscious decision was taken to pursue the matter in this regard. Therefore, the decision taken by the General Manager cannot be said to be the final word on this aspect. The decision taken by the Managing Director would obviously prevail. As noticed above, faced with this situation, an argument raised is that the Managing Director of his own is not competent to take a decision in this regard. It is contended that the Corporation is a body corporate and it can express its will only through the medium of a resolution. It is contended that the resolution is not on the file. 7. So far as the legal position is concerned, there is no doubt that the will of a corporate body has to be expressed through the medium of a resolution passed and adopted by the Corporate Body. Thus, in Vice Chancellor, Utkal University and others v. S.K. Ghosh and others, AIR 1954 SC 217 , the Supreme Court observed that an incorporated body is a legal entity. Though an incorporate body has neither a living mind nor voice. It can express its will in a formal way by a formal resolution and so can only act in its corporate capacity by resolution properly considered, carried and duly recorded in the manner laid down by its constitution. 8. The same principle of law would be discernable from various decisions. It can express its will in a formal way by a formal resolution and so can only act in its corporate capacity by resolution properly considered, carried and duly recorded in the manner laid down by its constitution. 8. The same principle of law would be discernable from various decisions. Some of these were noticed by a Division Bench of the Punjab and Haryana High Court in Municipal Committee, Bhatinda v. Sadhu Singh. AIR 1986 P & H 294. The decision of the Labour High Court in the case of Bawa Bhagwan Dass v. Municipal Committee, Rupar. AIR 1943 Lab. 318, Punjab Agricultural University v. Walia Brothers (1969)71 Pun. LR 257 and Municipal Committee, Ludhiana v. Surinder Kumar, ILR (1974) 1 Punj & Har. 420 are other decisions on the subject. 9. Before going further into the matter, the legal and factual position in this case is relevant and may be noticed. The Corporation has been constituted under the Road Transport Corporations Act, 1950. This Act is applicable to the Stale of Madhya Pradesh. The Act has further been amended by the State of Madhya Pradesh as well. The existence of the Corporation is recognised by Section 4 which provides that the Corporation shall be a body corporate and the management of the Corporation is governed by Section 5 as amended by the M.P. Act No. 63 of 1982. This Section reads as under:-- 5. Management of Corporation and Board of Directors -- (1) The general superintendence, direction and management of the affairs and business of a Corporation shall vest in a Board of Directors which, the assistance of its committees and Managing Director, may exercise all such powers and do all such acts and things as may be exercised or done by the Corporation. (2) The Board shall consist of a Chairman and such other Directors, being not less than five and not more than seventeen as the State Government may think fit to appoint. (3) The State Government may, if it so thinks fit, appoint one of the other Directors as the Vice-Chairman of the Board. (2) The Board shall consist of a Chairman and such other Directors, being not less than five and not more than seventeen as the State Government may think fit to appoint. (3) The State Government may, if it so thinks fit, appoint one of the other Directors as the Vice-Chairman of the Board. (4) Rules made under this Act shall provide for the representation, both of the Central Government and of the State Government concerned, on the Board in such proportion as may he agreed to by both the Government and of appointment by each Government of its own representatives thereto and where the capital of a Corporation is raised by the issue of shares to other parties under sub-Sec. (3) of Section 23, provision shall also he made for the representation of such shareholders on the Board and the manner in which the representatives shall he elected by such shareholders. (5) The term of office of and the matter of filling casual vacancies among the Directors shall he such as may he prescribed." Section 15 of the Act provides that the Managing Director would be the executive head of the Corporation and all other officers and employees of the Corporation shall be subordinate to him. This Section was also amended by Act 63 of 1982 and is relevant and may be noticed as under :- "15. Managing Director, Chief Accounts Officer and Financial Adviser - (1) The Managing Director shall be the executive head of the Corporation and all other officers and employees of the Corporation shall he subordinate to him. (2) The Managing Director shall obtain the views of the Chief Accounts Officer and the Financial Adviser or, as the case may be, the Chief Account" Officer-cum-Financial Adviser, on every proposal involving revenues, or expenditure from the fund of the Corporation and shall cause such views to be placed before the Board prior to the consideration of such proposal by the Board." 10. The Corporation can frame rules and regulations for carrying out its day to day affairs. The power to frame rules is conferred under Section 44 of the Act. The power to make regulations is conferred under Section 45 of the Act 11. The learned counsel appearing for the Corporation has placed reliance on resolution/order No. 1352. The Corporation can frame rules and regulations for carrying out its day to day affairs. The power to frame rules is conferred under Section 44 of the Act. The power to make regulations is conferred under Section 45 of the Act 11. The learned counsel appearing for the Corporation has placed reliance on resolution/order No. 1352. By this all General Manager, Additional General Managers, Deputy General Managers, All Heads of the Departments & Secretary of the Corporation were authorised to take certain steps. For facility of reference, this resolution may be noticed. This reads as under:-- "Vide Item No. 4(94), a proposal as under was put up before the Board in its meeting dated 30th July, 1977 for authorisation and delegation of powers for institution and defence of suits or any other legal proceedings before the various Law, Courts or authorities or Tribunals etc. and all such matters connected therewith including actions under Chapter IV & IV-A of the Motor Vehicles Act. Proposal : "The Board he pleased to make the following resolution: THE CORPORATION (MADHYA PRADESH STATE ROAD TRANSPORT CORPORATION) resolves that: 1(A) In supersession of Board Resolution No. 940 dated 9.4.70, the General Manager, Additional General Managers. Deputy General Managers. All Heads of the Departments & Secretary to the Corporation be and arc hereby authorised and delegated all the powers of the Board -- M.P. State Road Transport Corporation -- to do all or any of the following acts for and on behalf of the M.P. State Road Transport Corporation :- (i) to accept summons/notice/intimation etc. in suits, case, appeals, revisions, writ petitions, applications and such other proceedings: (ii) to take decision to and institute any suit or any legal proceedings in any Court or before any Authority or Trihuna1 etc. either in or outside the State of Madhya Pradesh for and on behalf of the CORPORATION; (iii) to defend all or any legal proceedings which are pending in various Courts of Law or before various Authorities or Tribunals etc. in or out side the Corporation or any Authority, on its behalf and which may be instituted, filed or proceeded against the Corporation, in the name and on behalf of the said CORPORATION; (iv) to verify and sign plaint, written statement, applications including applications for execution of decrees. in or out side the Corporation or any Authority, on its behalf and which may be instituted, filed or proceeded against the Corporation, in the name and on behalf of the said CORPORATION; (iv) to verify and sign plaint, written statement, applications including applications for execution of decrees. petition, memorandum of appeal/revision and all other pleadings including amended plaint for and on behalf of the CORPORATION to do all other acts necessary and appropriate for the proper conduct or prosecution and defence of the Case/Suit and/or any other legal proceedings in the name and on behalf of the CORPORATION; (vi) to receive any money or moneys from the Court Authority or Tribunal etc. on behalf of the CORPORATION necessary in the name and on behalf of the CORPORATION; (vii) to obtain copies of orders etc. and got roturn of documents from the Court/Authority/Tribunal etc. and to make applications in that behalf on behalf of the CORPORATION; (viii) to sign, verify and file affidavits in the name and on behalf of the CORPORATION as and when lawfully required to be filed or sworn; (ix) to sign any notice statutory or otherwise in the name of and for and on behalf of the CORPORATION: 12. Later on by an amendment wherever the word 'General Manager' occurred, the word "Managing Director" was substituted. One such notification is dated 26th December, 1993. 13. Thus, under the order No. 1352, the power to take decision whether litigation is to be initiated or not was given to the general manager. 'This was substituted by the "Managing Director". Even if this is otherwise al1heads of the departments were authorised to take a decision as to whether a litigation is to be initiated or not. The Managing Director being the head of the Corporation would certainly be a person who is competent to take a decision. Therefore, any decision taken by the General Manager not to initiate the legal proceedings would be of no consequence. The decision taken by the Managing Director would prevail. The decision taken by the Managing Director has been placed on the record of writ petition No. 858 of 1993. 14. In the face of the above office order/resolutions there is no scope for contending that the Managing Director at his own level was not competent to take a decision to initiate legal proceedings. 15. The decision taken by the Managing Director has been placed on the record of writ petition No. 858 of 1993. 14. In the face of the above office order/resolutions there is no scope for contending that the Managing Director at his own level was not competent to take a decision to initiate legal proceedings. 15. Reference may be made to a decision given by the Punjab and Haryana High Court in the case of State Bank of India v. M/s. Kashmir Art Printing Press, Sirsa and others, AIR 1981 P & H 188. Similar arguments were raised in the aforementioned case. It was contended that the branch manager of the State Bank of India is not competent to initiate legal proceedings. It was also contended that the authority to sign the pleadings and to verify them would not include power to engage an advocate. This contention was overruled. The observations made by G.C. Mital, J. as his Lordship then was, now Chief Justice of Rajasthan High Court may be noticed. It was observed: "After hearing the parties at a considerable length, I am of the view that a Branch Manager had the authority not only to sign the pleadings and verify them, but had the authority to sign a wakalatnama to authorise an Advocate to file suit or to file the same himself. This is amply borne out by looking at the entire scheme of the Act and particularly Section 50(2) (m) and (n), coupled with Regulations 76 and 77, According to the counsel for the respondents-defendant.&, regulations could be framed on three matters as enumerated in clause (m), that is, to make a provision for conduct of legal proceedings, for defence of legal proceedings and the manner of signing pleadings. But, in the present case, regulation has been made only for the third purpose i.e. for signing the pleadings, and not for other two purposes, on the other hand, the stand of the counsel for the State Bank of India is that the first authority to act on behalf of the State Bank of India vests in the Central Board and in the case of local head offices, in the Local Boards. In order to carry out the purposes of the Act, Section 50(1) provides for making of regulations under the Act and under clauses (m) and (n) specific powers have been given for making regulations in regard to the conduct of the legal proceedings and about other details and conduct of the officers of the State Bank. In furtherance of the aforesaid power, Regulations 76 and 77 were framed and according to the learned counsel, these regulations have to be liberally construed so as to convey that whatever was provided in clauses (m) and (n) was to be regulated by Regulations 76 and 77, and Regulation 77, could not be construed in a limited manner as was sought by the counsel for the defendants-respondents. I find merit in the contention of the learned counsel for the State Bank of India, Regulation 77 is quite comprehensive, If the words generally all other documents connected with legal proceedings whether contentious or non-contentious may be made and completed on behalf of the State Bank had not been mentioned in Regulation 77, something might have been said for the defendants. but the use of the aforesaid words clearly go to show that the authorised officer has been given power to sign all documents connected with the legal proceedings and one of the documents would he a Wakalatnama which the concerned officer could sign in favour of an Advocate. It cannot be disputed that a Wakalatnama is a document connected with the legal proceedings and when. admittedly, in the present cases the concerned Branch Managers had executed Wakalatnamas in favour of the counsel who presented the plaints it cannot he said that the presentation of plaints in Courts by the Advocates was not a proper presentation. Reliance was placed on several decisions and these are noted in para 7 of the judgment. These are : "The aforesaid view of mine finds full support from a Privy Council decision in Delhi and London Bank Limited v. A. Oldham, (1894) ILR Cal 60 (PC) Chandra Sekhar Zamindari Co. Ltd. v. Ram Kumar Haldar, AIR 1914 Cal. 782 : M.C.S. Rajan and Co., Madras v. National Nail Industries Trichy, ILR (1975)2 Mad. 486, United Bank of India v. Prabhas Ch. Deh., AIR 1977 Cal. 55 , and a decision of the Delhi High Court in suit No. 653 of 1974. Ltd. v. Ram Kumar Haldar, AIR 1914 Cal. 782 : M.C.S. Rajan and Co., Madras v. National Nail Industries Trichy, ILR (1975)2 Mad. 486, United Bank of India v. Prabhas Ch. Deh., AIR 1977 Cal. 55 , and a decision of the Delhi High Court in suit No. 653 of 1974. State Bank of India v. Swahney Finance Company decided on 25th Oct. 1978." Ultimately it was observed as under: "I am of the view that the larger authority granted to the Branch Manager to sign the plaints, written statements petitions and applications and all other documents connected with the legal proceedings should include the power to file suit, written statements and other documents in Court." 16. Apart from this the proceedings in this case were taken in the Court below by the Divisional Manager and the Depot. Manager who defended the Corporation. Thus, all officers who have defended the Corporation would he presumed to be duly authorised to defend the Corporation. When such is the situation, the defending process would not end with the initial trial. It would last till a final step is taken in this regard. From any point of view, there is no merit in the contention of the learned counsel for the employees. This petition is thus properly filed by the employer. 17. The argument of the learned counsel for the employees on merits may now be seen, 18. The argument of the learned counsel for the employees is that the decision given by the earlier Division Bench in the case of V.K. Jain (supra) still hold the field. This argument cannot he accepted. On account of the conflict of decisions, the matter was referred to the Full Bench and the Full Bench has categorically stated that every judgment laying contrary view is to be treated as not laying good law. In this view of the matter the contention of the learned counsel for the employees that the judgment given by the Division Bench in V.K. Jain's case (supra) still operates cannot be accepted. 19. As noticed, the learned counsel appearing for the employees has placed reliance on the judgment given in the case of Rajendra Singh v. Member Judge, Industrial Court & MPSRTC, M.P. No. 3979 of 1993 decided on 8th September. 1994. It may however be seen that the Hon'ble single Judge has followed the ratio of decision given by the Full Bench. As noticed, the learned counsel appearing for the employees has placed reliance on the judgment given in the case of Rajendra Singh v. Member Judge, Industrial Court & MPSRTC, M.P. No. 3979 of 1993 decided on 8th September. 1994. It may however be seen that the Hon'ble single Judge has followed the ratio of decision given by the Full Bench. The observations made are as under : "All the above petitions filed by the employer are partly succeed. The impugned orders of the Industrial Court to the extent they grant relief of Classification to the respondents/employees, who were originally employed as Conductors, are hereby set aside. The award of the Industrial Court to extent it grants monetary relief of payment of salary of the higher post or difference of pay, I hereby maintain. It is further directed that the petitioner as employer shall not disturb the existing service condition of the respondents/employees until their cases are considered for appointment or promotion to the higher post." Thus, the argument of that the Hon'ble Single Judge has taken a contrary view cannot be sustained. 20. Thus, all these cases are fully covered by the ratio of the judgment given by the Full Bench. The Full Bench decision lays down that classification can be done against the post to which an employee was initially employed. In this case, the concerned employees were appointed against the post indicated in para No.2 above. Later on they sought classification against a higher post. It is not permissible in view of the law laid down by this Court i.e. the Full Bench decision referred to above. 21. In this view of the matter, there is no merit in the contention of the learned counsel for the employees and it cannot be accepted. 22. The last argument of the learned counsel tar the employees is that the judgment of the Full Bench should have been prospective effect. This cannot be accepted. As a matter of fact, the Full Bench has protected the monetary benefit given to the employees. 23. The operative portion of the above order passed by the Full Bench lays down that no classification can be done on a promotional post and it has further been observed that the period during which the workmen discharged the duties of the higher post he should be paid emoluments attached to the higher post. 23. The operative portion of the above order passed by the Full Bench lays down that no classification can be done on a promotional post and it has further been observed that the period during which the workmen discharged the duties of the higher post he should be paid emoluments attached to the higher post. In fact, if he continues to discharge the duties attached to the higher post then he shall be paid emoluments attached to the higher post. The proposition No. (ii) arrived at by the Full Bench is as under: "(ii) However, for the period during which first respondent discharged and discharges the duties attached to the higher post he shall he paid emoluments attached to the higher post. (Emphasis supplied.) 24. This is precisely how the judgment has been interpreted by the Hon'ble Single Judge of this Court in M.P. No. 3979 of 1993 (Rajendra Singh v. Member Judge, Industrial Court & MPSRTC) decided on 8th of September, 1994. 25. It is, therefore, made clear that in case during the pendency of this litigation, some other juniors have been promoted then the case of the present employees would also be considered and they would be granted promotion in accordance with law. 26. As such, writ petition No. 827 of 1991 preferred by the Workman is dismissed whereas writ petitions Nos. 856 of 1993, 858 of 1993, 978 of 1993, 1022 of 1993, 1024 of 1993 and 1398 of 1993 preferred by the MPSRTC, are allowed in the manner indicated above. There would be no order as to the costs.