Ganendra Narayan Ray, J. - (1.) In this Rule the decision of the learned Fifth Industrial Tribunal, West Bengal, in disposing of the preliminary objections raised by the petitioner company regarding the maintainability of the order of reference and also the jurisdiction of the said learned Tribunal to adjudicate upon the disputes referred to before it is under challenge. It appears that the State Government had referred five disputes before the learned Fifth Industrial Tribunal, West Bengal, for adjudication. The petitioner company contended that the Union, namely, "The West Bengal Engineering Workers Union" was an omnibus Union and was not a primary Union. As such, the said Union had no authority to espouse the cause of the workmen concerned. It was also contended by way of preliminary objection that without taking recourse to the conciliation proceeding under section 12 of the Industrial Disputes Act, the reference under section 10 of the said Act was also incompetent. The learned Tribunal came to the finding that the said Union had as its members a substantial number of workmen belonging to the petitioner company and by a resolution the said Union was authorised to espouse the cause of the workmen. Accordingly, the Union was competent to take up the cause of the workmen and at the instance of the Union, the Industrial disputes had been validly raised. The learned Tribunal also rejected the contention of the petitioner that the said reference under section 10 was not competent for want of proper conciliation proceeding before reference under section 10 of the Industrial Disputes Act. The learned Tribunal thereafter directed that the reference should be decided on merits. Against the said adjudication of the learned Tribunal rejecting the preliminary objections raised by the company, the instant writ petition has been moved.
(2.) Dr. Mukherjee, the learned Counsel appearing for the petitioner company, contends that the said West Bengal Engineering Workers Union is not a primary Union representing the workmen of the establishment of the petitioner company and as such the said omnibus Union had no authority to espouse the cause. He contends that the said point was required to be decided by the Industrial Tribunal by way of preliminary objection raised by the company but in deciding the said objection the learned Tribunal took into consideration of two documents of the Union, being Exts. 5 and 6, although the said documents were inadmissible in evidence. Dr. Mukherjee contends that under Rule 20C of the Industrial Dispute Rules, 1958 the parties are under an obligation to disclose the documents to be relied on by the parties and copies of the said documents are also required to be served on each other. He contends that although a number of documents were disclosed by the Union in support of its contention the said documents marked Exts. 5 and 6 were not disclosed at any point of time and the copies of the documents were also not served on the petitioner company. It may be noted that the said documents are the certificate of registration of the said West Bengal Engineering Workers Union and also the constitution of the said Union. It appears that the witness on behalf of the Union proved the said two documents at the time of examination and the said documents were exhibited despite the objections raised by the petitioner company about their admissibility. Dr. Mukherjee, therefore, contends that the learned Tribunal, in clear violation of Rule 20C of the West Bengal Industrial Dispute Rules, allowed the said two documents to be exhibited and based its finding about the locus standi of the said Union to espouse the cause of the workmen concerned. In support of his contention, Dr. Mukherjee refers to a decision of this Court made in the case of M/s. Mitsubishi Soji Kaisa Ltd. v. Fourth Industrial Tribunal, reported in 1973 (1) Labour Law Journal at page 146 . Dr. Mukherjee also refers to another decision of this Court made in the case of Deepak Industries v. State of West Bengal, reported in 79 CWN at page 410 . It has been held in the said decision that if a dispute is raised as to the locus standi of the Union to espouse the cause of the concerned workmen the Union is to prove by cogent evidence as to its authority to represent the concerned workmen. Accordingly, Dr. Mukherjee contends that the Tribunal's decision as to the maintainability of the said reference and the authority of the said Union to espouse the cause of the concerned workmen is erroneous and the said order should be set aside.
(3.) Mr. Sengupta, the learned Counsel appearing for the respondent No- 3, namely, the West Bengal Engineering Workers Union, however, contends that although the petitioner company contended before the learned Industrial Tribunal that in the absence of taking recourse to the conciliation proceedings under section 12 of the Industrial Disputes Act, the reference under section 10 was not competent, the petitioner company has not challenged the decision of the Tribunal on the said points in this proceeding and Dr. Mukherjee has also not addressed this Court on the said issue. He, however, submits that the power to make reference under section 10 is not dependant on the conciliation proceeding under section 12 and the reference under section 10 cannot be challenged simply on the ground that before making the reference, proper conciliation proceeding was not made. Mr. Sengupta, further contends that the impugned documents, being Exts. 5 and 6, namely, the Certificate of Registration of the said West Bengal Engineering Workers Union and the constitution of the said Union had no bearing whatsoever in deciding the contentions raised before the learned Industrial Tribunal as preliminary objections. He contends that, in any event, the Tribunal had the authority to admit the said documents and refer to the same and the power of the Tribunal under Rule 15 of the West Bengal Industrial Dispute Rules is not affected by the provisions of Rule 20C of the said Rules. He contends that Rule 15 consists of two parts and the first part refers to the power of the Tribunal or the Labour Court or the Arbitrator as the case may be to accept any document and the second part of the said Rule refers to the power of such Tribunal or Court to get such document or evidence being proved in any manner as decided by the Tribunal. He contends that once the Tribunal has allowed the said documents to be proved at the time of deposition, despite objections being raised by the Company, it must be held that the Tribunal considered that for the purpose of adjudication of the dispute the said documents were necessary and under Rule 15 read with Rule 20C, the Tribunal had the authority to allow the said documents to be proved although the contents of the said documents were not disclosed earlier. He further submits that in the instant case the decision of the Tribunal has been based even in the absence of consideration of the said two documents and as such the question of admissibility of the said two documents is only academic for the purpose of disposal of the present Rule. Mr. Sengupta contends that the learned Tribunal has clearly come to the finding on the basis of other documents against which no objection has been raised by the petitioner company that the said Union represented more than 70 per cent, of the workers of petitioner company and the said Union espoused the cause of the workmen in the dispute in question on the basis of a resolution adopted in the meeting of the Union at the instance of the Members workers of the petitioner company. Mr. Sengupta contends that it is not at all necessary that the said Union must be a primary Union consisting of the workers of the concerned establishment of the petitioner company and an omnibus Union representing the cause of the workmen of the industry in general can also take up the cause of the concerned workmen and espouse such cause in an industrial dispute. Mr. Sengupta submits that in the decision of this Court made in the case of M/s. Mitsubhishi Soji Kaisa Ltd., this Court has also held that such cause can be espoused by workmen individually or by a Union having authority to espouse the cause of the workmen. Mr. Sengupta also submits that the decision made in the Deepak Industry's case as a referred to by Dr. Mukherjee also supports the contention of the Union and it has been specifically held in the said decision that it is immaterial whether the Union is an omnibus or the General Union of the workmen of a particular industry or a Union of the establishment in respect of which dispute was raised. Mr. Sengupta also draws the attention of this Court to the observation of Supreme Court made in the case of Workmen of M/s. Dharam Pal Prem Chand v. M/s. Dharam Pal Pream Chand, reported in AIR 1966 Supreme Court at page 382 which was referred to in the said decision in Deepak Industry's case. The Supreme Court has specifically held in the said decision that it is not necessary that the Union must be a primary Union consisting of the workers of a particular establishment. Mr. Sengupta also refers to another decision of the Supreme Court made in the case of Newspapers Limited v. U. P. State Industrial Tribunal, reported in AIR 1960 SC at page 1328 . It has been held by the Supreme Court that it is not necessary that a registered body should sponser the workmen's Union to make an industrial dispute. Once it is shown that a body of workmen either acting through the Union or otherwise had sponsored the Workmen's case it become an industrial dispute. Mr. Sengupta further submits that for espousing the case of the workmen it is not at all necessary whether the Union itself is a registered one or not and as such the Certificate of Registration of the Union has no bearing whatsoever in deciding the preliminary objection of the company that the said Union not being a primary Union, could not espouse the cause of the concerned workmen. He also submits that the constitution of the Union which is the other impugned document is also not material for deciding the dispute or the preliminary objection raised by the company. He submits that the Union has proved that the workmen of the said establishment of the petitioner company were desirous of raising the industrial dispute and at the instance of such workmen, a resolution was taken by the Union that the Union should espouse the cause of the workmen in the industrial dispute. Mr. Sengupta contends that even assuming for argument's sake, that the Union within the frame work of its constitution had no authority to espouse the cause of the workmen concerned, the petitioner company has no authority to challenge the action of the Union taking up such cause contrary to its own constitution. It is only the members of the Union who can challenge the activities of the Union taken in contravention of its constitution. For this contention, Mr. Sengupta refers to a decision of the Allahabad High Court made in the case of Trilok Nath Tripathi v. Allahabad District Pranchak-of India Postal Workers Union, Class III, reported in AIR 1957 Allahabad at page 234 . Mr. Sengupta therefore contends that the Tribunal having come to a specific finding on the basis of evidence and materials on record that about 70 per cent, of the employees of the establishment were the members of the Union, the consequential finding of the Tribunal that the said Union had the authority to espouse the cause of the concerned workmen, cannot be assailed. He contends that the impugned documents, namely Exts. 5 and 6, had. no bearing whatsoever for deciding the preliminary objections raised by the petitioner company and the decision of the Tribunal makes it abundantly clear that the Tribunal had decided the said preliminary objections on independent consideration of other documents, the validity of which had not been challenged at all by the petitioner company.;