N.M.KASLIWAL, J. - (1.) THE petitioner is a company registered under the Indian Companies Act and is a undertaking if the Government of India and carries on business of mining of copper ore and its processing far production of copper metal. It has employed a large number of labourers The Labourers have formed a union known as Rashtriya Khetri Tamba Mazdur Sangh. The respondent No 2 was working as a helper (Mechnical) in one of the establishment of the petitioner. As the respondent No. 2 absented from his duties without obtaining prior permission for leave he was warned on several occasions and entries to this effect were also entered in service roll It is further alleged in the writ petition that the respondent No. 2 not only remain -id absent from his duties without leave on various dates between 30th March, 1974, to 5th April, 1975 but on 5th April, 1975, he entered the office room of the Personnel Officer at the Central Office arid mis -behaved with him and also threatened him with dire consequences. This constituted a serious misconduct and serious dereliction of duties under the Certified Standing Orders of the petitioner company. There upon the respondent No. 2 was served with a show cause notice vide Annexure 1 dated 5 -4 -1975. The respondent No. 2 failed to submit any explanation, consequently an inquiry was initiated. The respondent No. 2 participated in the inquiry, cross -examined the witnesses produced on behalf of the petitioner but as a latter stage absented himself. The inquiry officer found the respondent No. 2 guilty of misconduct and consequently the petitioner company dismissed the respondent No. 2 by order Annexure 2 dated 5th July, 1976.
(2.) THE respondent filed a complaint under Section 33A of the Industrial Disputes Act 1974,(hereinafter referred to as the Act') before the Central Industrial Tribunal, Jaipur, on 14th October, 1976. The case as put forth by the respondent in his complaint was that he was a workman concerned in cast No CIT/12/75 within the meaning of Section 33(2)(b) of the Act which was pending before the Tribunal and as such he could not be dismissed unless the petitioner had obtained approval for the same from the Tribunal. The petitioner submitted a detailed reply to the complaint filed by the respondent and also took a preliminary objection about the maintainability of the complaint on the ground that the dispute of the petitioner with the respondent was in no way connected either directly on indirectly with the dispute under case No. CIT/12/75 As the dispute in case No CIT/12/75 was in connection with four of its employees in their individual capacity, the respondent was not a workman concerted and the mere fact of his being a member of the Union which had sponsored and conducted the dispute before the Tribunal on behalf of the four member employees did not give a ay right to the respondent to file a complaint under Section 33A of the Act The learned Tribunal, respondent No. 1, rejected the Preliminary objection raised by the petitioner placing reliance on New India Motors (P) Ltd. New Delhi v. K.T. Morris : (1960)ILLJ551SC vide its order dated 15th March, 1978 Annexure 7. The petitioner has filed this writ petition challenging the above order of the Tribunal dated 15th March, 1978. Learned Counsel for the petitioner has vehemently contended that the Tribunal has committed a serious error of law in holding the respondent to be a 'workman concerned' in the facts and circumstance of this case. According' to the learned Counsel the Supreme Court itself in a latter decision reported in Digwadih Colliery and Ramji Singh 1964(2) LLJ 143, have watered down the earlier case. He has further placed reliance on The Pali Electricity Co. Ltd. v Industrial Tribunal 1959 RLW 143, Cement Cos. Ltd. Lakheri v. A.N. Koul Industrial Tribunal Rajasthan Jaipur 1959 RLW 650 Bhagendra Prasad Patra v. DCMSMS Koraput and Anr. 1976 Lab. IC 1260, Visalakhi Mills Ltd v. Labour Court Madurai and Anr. 1962(2) LLJ 93, Chodevaram Cooperative Agricultural and Industrial Society Ltd. v. R.V.S.N. Jagepathi Raju and Anr. 1977 Lab. I.C. 1943, Songareni Collieries Co. Ltd. Kothagudem by Meaaging Director v. The Industrial Tribunal Andhra Pradesh Hyderabad and Anr. : AIR1965AP405 , and Andhra Pradesh State Road Transport Corporation Hyderabad v. N.R.R. Varma and Anr. 1975 Lab IC 1057. On the basis of the above rulings the learned Counsel few the petitioner contends that the burden to prove that the respondent was a 'workman concerned' lay on him and as the respondent has miserably failed to prove that he was in any manner what soever connected or interested or involved in the case No. CIT/12/75 he cannot be treated as a 'workman concerned,' and therefore, he has no right to file any complaint under Section 33A of the Act He has further contended that only allegation in this regard made by the respondent is contained in para D of his complaint filed before the Tribunal vide Annex 3 dated 14th October, 1976. The language used by the respondent in this complaint is reproduced as under: Those employees numbering 4, concerned with that industrial dispute were also victimised by the opposite parties and in the same manner out of personal vindicta The complainant is also interested in the out come of that reference case as common points are involved as well as the cases of those employees have also been sponsored by the Rashtrya Khetri Tamba Mazdoor Sangh of which the applicant is also an active member. The petitioner had filed a reply to the above complaint before the Tribunal vide Annexure 4 dated 20th December, 1976. In para 8 of this reply the petitioner had taken the following stand: That, it is reiterated that the complainant is not a concerned workman in the reference case pending before this Hon'ble Tribunal in case No. CIT/12/75. The said reference was in relation to the dismissal of four workmen of the opposite party for their notorious activities and the complainant is not in any way concerned with the said dispute. Further, his other statements in para 1 -D are strongly objected. The learned Counsel for the petitioner further submit that the incident of the basis of which action has been taken against the for other employees was dated 29th May, 1975, for which they were dismissed vide Annexure 5 dated 31st May, 1975 It has no where been mentioned in the complaint filed by the respondent on 14th October, 1975 that the respondent was also one of the persons, who had joined the crowd collected by the four workman on 29th May, 1975 or made any inflamatory speeches against the officers of the company or joined the other workers beating the officers of the company. Thus the respondent has neither alleged nor proved that he was in any manner connected or interested with the dispute raised in case No. CIT/12/75 The respondent has only made a vague and bald allegation in para D of his complaint that he was also victimised by the opposite parties and in the manner out of personal vindicate Learned Counsel has contended that the respondent has miserably failed to prove as to what common points are involved in his case with those of the four other employee? The learned Tribunal also has not arrived at the conclusion that the case of the respondent was of victimization by the opposite parties and in the manner out of personal vindicta as that of the four employees concerned in the case No. CIT/12/75. According to the learned Counsel, the learned Tribunal has only held the respondent to be workman concerned in the dispute on the ground that the respondent being a member of the union which had sponsored and spooned the cage of the four other employees, all the members of that union became the workmen concerned in that dispute. This view, according to the learned Counsel, is not at all supported by the latter decisions of the' Hon'ble Supreme Court and other High Courts.
(3.) ON the other hand, the learned Counsel appearing, on behalf of the respondent No. 2 has supported the judgment of the learned Tribunal Annexure 7 dated 15th March, 1978. He has placed strong reliance on Shalimar Paints Ltd. v. Third Industrial Tribunal 1974 Lab. IC 213, between Ehaskaran Nair v. Management, Premir Tyres Ltd. and Anr. 1976 (32) FLR 329, and New India Sugar MilLs Ltd. Darbhanga v. Krishna Ballabh. Jha and Ors. 1967 (2) LLJ 210. Learned counsel, vehemently contended that the observations of their Lordship of the Supreme Court in New India Motors (P) Ltd.'s case (supra) still applied with full force and the case of the respondent is fully covered in the dictum laid down by their Lordships in the said case. A' cording to the learned Counsel there is no subsequent decision of Hun'ble Supreme Court changing its view taken in New India Motors (P) Ltd.'s case (supra). The workman concerned has been given a wider expression and should not be limited to the workman directly and actually concerned in such dispute. The learned Tribunal has not recorded any evidence so far and has decided the preliminary objection as a mere question of law. It is only after the recording of evidence that the question about the victimisation by the opposite pat lies but of personal vindicta can be decided -The learned Counsel for the respondent, therefore, submits that there was an averment in the complaint filed by the respondent that he was interested in the out come of the result of the case No. CIT/12/75 and he would prove the sole allegation by leading evidence. The petitioner Company is not put to any loss or disadvantage even if the complaint filed by the respondent is entertained by the Tribunal, in as much as the petitioner would be entitled to satisfy the Tribunal on merits that the order of dismissal passed by it against the respondent was proper on merits.;