- (1.) THE petitioner is a company registered under the Indian Companies Act and is a undertaking of the Government of India and carries on business of mining of copper ore and its processing for production of copper metal. It has employed a large number of labourers. THE labourers have formed a union known as Rashtriya Khetari Tamba Mazdur Sangh.
(2.) THE respondent No. 2 was working as a helper (Mechenical) 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 remained 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 roam of the Personnel Officer at the Central Office and mis-behaved with him and also threatened him with dire consequences. This constituted a serious mis-conduct and serious dereliction of the duties under the Certified Standing Orders of the petitioner company. THEreupon the respondent No 2 was served with a show cause notice vide Annexure 1 dated 5th April, 1975. THE respondent No. 2 filed 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 at a latter stage absented himself. THE inquiry officer found the respondent No. 2 guilty of mis-conduct and consequently the petitioner company dismissed the respondent No. 2 by order Annexure 2 dated 5th July, 1976. The respondent filed a complaint under section 33 A of the Industrial Disputes Act, 1947, (hereinafter referred to as 'the Act') before the Central Ind-ustrial 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 case 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 or indirectly with the dispute under case No. CIT/12/75. As the dispute in case No. GIT/12/75 was in connection with four of its employees in their individual capacity the respondent was not a workman concerned 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 employee did not give any 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 M/s. New India Motors (P) Ltd. , New Delhi vs. K. T. Morris (1) vide its order dated 15th March, 1978 Annexure 7. The petitioner has filed this writ petition challthe above order of the Tribunal dated 15th March, 1978. Learned counsel for the petition has vehemently canted that the Tribunal has committed a serious error of law in holding the respondent to be a "workman concerned" in the facts and circumstances of this case. According to the learned counsel the Supreme Court itself in a latter decision reported in between Digwadih Colliery and Ramji Singh, (2) have watered down the earlier case. He has further placed reliance on The Pali Electricity Go. Ltd. v. Industrial Tribunal (3); Associated Cement Companies Limited Lakheri vs. A. N. Kaul Industrial Tribunal Rajasthan Jaipur (4); Khagendra Prasad Patra v. D. T. M. S. T. S. Koraput (5); Visalakshi Mills Ltd, v. Labour Court Madurai (6); Chodavaram Co-op. Agricultural and Industrial Society Ltd. , v. R. V. S. N. Jaganati Raju (7); M/s. Singareni Colliaries Co. Ltd. , Kothagudem by Managing Director v. The Industrial Tribunal, Andhra Pradesh Hyderabad (8) and Andhra Pradesh State Road Transport Corporation Hyderabad v. N. R. B. Varma (9 ). On the basis of the above rulings the learned counsel for 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 whatsoever 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 33 A 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 vindicts. The complainant is also interested in the outcome of that reference case as common points are involved as well as the case of those employees have also been sponsored by the Rashtriya 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 workman of four workman of the opposite party for their notoriuos 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 farther submits that the incident on the basis of which action has been taken against the four 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, 1976 that the respondent was also one of the persons, who had joined the crowd collected by the four workmen on 29th May, 1975 or made any inflammatory speeches against the officers of the Company or joined the other workers in 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 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 employees. The learned Tribunal also has not arrived at the conclusion that the case of the respondent was of victimisation by the opposite parties and in the manner out of personal vindicate 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 spound the case of the four other employees, all the members of that union became the workman 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. 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 (10); Bhaskaran Nair v. Management, Premier Tyres Ltd. (11); New India Sugar Mills Ltd. , Darbhanga v. Krishana Ballabh Jha (12 ). Learned counsel vehemently contended that the observation of their Lordships of the Supreme Court in M/s. 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 According to the learned counsel there is no subsequent decision of Hon'ble Supreme Court in changing its view taken in M/s New India Mators (P) Ltd ,' case, (supra ). The workman concerned has been given a wider expression and should not be limited to 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 parties out of personal vindicate 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 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, inasmuch 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. I have given my careful consideration to the arguments advanced by the learned counsel for both the parties. In M/s. New India Motors (P) Ltd ,'s case their Lordships had dearly come to the conclusion on the basis of material placed on record that K. T. Morris respondent had supported the case of the 7 apprent-ices and that provoked the employer M/s. New India Motors (P) Ltd. to take the step of terminating his services The following observations in the above case clearly fortify the above result: "on the other hand, the evidence of the respondent clearly shows that he supported the case of the 7 apprentices and that provoked the appellant to take the step of terminating his services. The process of finding fault with his work appears to have commenced after the appellant disapproved of the respondents conduct in that behalf. We are, therefore, satisfied that the tribunal ws right in coming to the conclusion that the dismissal of the respondent is not supoported on any reasonable ground, and in fact is due to the appellant's indignation at the conduct of the respondent in the main industrial disute between the appellant and its 7 employees. If that be the true position the industrial tribunal was justified in treating the dismissal of the respondent as mala fide. " No doubt their Lordships observed as under: "even as a matter of construction pure and simple there is no justification for assuming that the workman concerned in such disputes must be workmen directly or immediately concerned in the said disputes. We do not see any justification for adding the further qualification of direct or immediate concern which the narrow construction necessarily assumes. In dealing with the question as to which workman can be said to be concerned in an industrial dispute we have to bear in mind the essential condition for the raising of an industrial dispute itself, and if an industrial dispute can be raised only by a group of workmen acting on their own or through their union then it would be difficult to resist the conclusion that all those who sponsored the dispute are concerned in it. As we have already pointed out his construction is harmonious with the defination prescribed by S. 2 (s) and with the provisions contained in S. 18 of the Act. Therefore we are not prepard to hold that the expression "work man concerned in such dispute" can be limited only to such of the workmen who are directly concerned with the dispute in question. In our opinion, that expression includes all workmen on whose behalf the dispute has been raised as well as those who would be found by the award which may be found by the award which may be made in the said dispute. " But that does not mean that raising or sponsoring a dispute by the Union will be sine-out-non for holding that every member of such union will be workman concerned for any matter whatsoever even if it had no s?mblance of any connection or interest with the dispute raised by the Union. It would be necessary for the workman to show as to how he is concerned with the earlier dispute raised by the Union and pending before the Labour Court or Tribunal for determination. If the connection raised by the learned counsel for the respondent is to be accepted, the result would be that in any and every kind of dispute raised by the Union of any worker, every member of such union will become a workman concerned in the dispute and the employer will not be able to take any action without the prior permission or approval of the court or tribunal concerned. It is necessary for the workman who wants to come within the category of workman concerned in such dispute to prove that he is interested or has connection with the dispute already pending for determination. If the dispute raised or sponsored by the union may be of the kind like a demand of bonus, or salary which might be affecting the, members of the union as a whole, it can be said that every member of the union is a workman concerned in a dispute but where the dispute raised or sponsored by the union on behalf of the individual workman relating to an incident concerning the act of that workman individually it cannot be said that every member of such union will be a workman concerned in the dispute. To illustrate an individual workman is found guilty of committing theft and is dismissed by the employer and such dispute may be sponsored by the union by raising an industrial dispute and the same may be pending before the court or tribunal for determination, another workman though being a member of the same union may be found guilty of committing embezzlement or mis behaving with an officer of the employer and which obviously has no connection with the earlier dispute cannot, in my humble opinion, bring such person within the meaning of 'a workman concerned in a dispute' in relation to the dispute raised/sponsored by the Union. Their Lordships of the Supreme Court in Digwadih Colliery's case (supra) have clearly observed: "even if the broader construction of 33 (2) the subject matter of reference No. 60/1959. " is adopted it is necessary to inquire what was In the above case in the application the respondent had made no averment about the nature of the said dispute and as such their Lordships had held that the Tribunal was clearly in error in holding that the broad construction of section 33 (2) automatically led to the conclusion that the respondent was the workman concerned and could therefore claim the protection of section 33 (2 ).
(3.) I am fortified in my above opinion by the cases relied upon by the learned counsel for the petitioner. Coming to the facts of the present case the dispute raised in case No. CIT/12/75 related to an incident dated 29th May, 1975, concerning the four workmen and the order of dismissal passed on 31st May, 1975, by the employer. The respondent has no where in the complaint filed by him under section 33a, averred that he was also present on the incident which occurred on 29th May, 1975 or that he had appeared in evidence in the case concerning the four workmen. The proceedings against him had been initiated much earlier that is on 5th April 1975 and relates to the charge of remaining absent without leave and for misbehaving with an officer of the employer. Thus there are no common points involved in the two cases and the respondent cannot be said to be interested at all in the out-come of the result of the case No. CIT/12/75. There is only a bald allegation that the employees number in four concerned with that industrial dispute were also victimised by the opposite party and in such a manner out of personal vindicate, has dismissed the four employees and the respondent. The learned tribunal has also not given this finding in favour of the respondent. The only ground on which the learned tribunal has hold the respondent to be a workman concerned in dispute, is on the basis that he is a member of the same union. Under the circumstances in my view, the order of the learned Central Industrial Tribunal, Jaipur dated 15ih March, 1978, is not correct. In the result, this writ petition is allowed, the order of the Central Industrial Tribunal, Jaipure, in complaint case No. GET 12/75 dated 15th March 1978, is quashed. In the circumstances of the case the parties shall bear their own costs. . ;