List has been revised.
Heard Sri Chatterji, learned counsel for the petitioner. No one has appeared for respondent no.2 despite service of notice being sufficient in view of office report dated 29.1.2010.
An industrial dispute was raised by respondent no.2 on behalf of the workers. It was referred to Industrial Tribunal and registered as Adjudication Case No.232 of 1982. In the said Adjudication Case, petitioner raised a preliminary objection that respondent no.2 is not competent to raise the aforesaid dispute on behalf of the workmen as they are not members of the said Union and substantial number of workmen of the company, not being members of the said Union, are not interested in raising the dispute through the aforesaid Union. An application 22-D was also moved by the petitioner for summoning certain documents from respondent no.2. On said application, on 7.12.1983 an order was passed directing respondent no.2 to produce three documents, namely, (1) Constitution of the Union; (2) Membership register of the Union for the year 1982; and (3) The resolution, if any, of the Union for raising the dispute. Despite sufficient time being granted, none of the above documents were produced by the respondent no.2 for about ten years, whereupon impugned order dated 31.10.1994 was passed by the Tribunal permitting respondent no.2 to continue representing the case of the workers, and absolving it from the liability to produce the aforesaid documents, as the documents summoned were not available.
Learned counsel for the petitioner has argued that the documents directed to be summoned from respondent no.2 are material and relevant for deciding the competence of respondent no.2 to raise the present industrial dispute and that the said documents are supposed to be in possession of respondent no.2 and, as such, it cannot be absolved of the liability to produce the same merely for the reason that it states that they are not available.
The argument is not without substance. The documents which have been directed to be produced are all documents which relate to the constitution of the Union, its membership and the resolution passed by it. Therefore, they ought to be in possession of respondent no.2 as part of its record. The order for summoning the said documents was passed as far back as on 7.12.1983 and respondent no.2 for over ten years never took any objection that the said documents are not in its possession or are not available and that the same cannot be produced. The Tribunal without considering the fact that the documents directed to be summoned were all documents which were supposed to be in possession of respondent no.2, being integral part of its record, merely on the basis of statement that the documents are not available with it, without directing respondent no.2 to trace out or obtain it from the office of the Registrar, where these documents would have been available, has passed the impugned order. After over ten years of silence, respondent no.2 cannot be absolved from the liability to comply the order dated 7.12.1983. Respondent no.2 is under an obligation to produce said documents either from its own record or after obtaining its copies from the Registrar, as the case may be.
The next submission of learned counsel is that no reasons have been recorded by the Tribunal in permitting respondent no.2 to continue representing the case of the workers. The petitioner has categorically raised a preliminary objection to the effect that the respondent no.2 is not competent to espouse the cause of the workers but the Tribunal without recording any finding on this crucial aspect has passed the impugned order. The order is totally uninformed of reasons and cannot be sustained in law, specially in view of Apex Court decision in the case of Workmen of M/s. Dharam Pal Prem Chandra Vs. M/s Dharam Pal Prem Chandra AIR (53) 1966 SC 182 wherein it has been laid down that an individual dispute become industrial dispute only if it is sponsored by the Union of workmen and such Union fairly claims to be working in representative capacity on behalf of such workers. Therefore, unless the workers are shown to be members of Union, the Union cannot be competent to espouse the their case.
In Mitra Prakashan Pvt. Limited Vs. State of U.P. and others 1986 (53) FLR 669, this Court laid down that the question whether or not the Union is competent to raise the dispute referred to has to be decided first as a preliminary issue. The permission granted to respondent no.2 to continue representing the case of the workers, without deciding the preliminary issue raised on behalf of the petitioner, cannot, in any way, be justified.
In view of aforesaid facts and circumstances and the legal position, order impugned dated 31.10.1994 passed by the Industrial Tribunal (III), Kanpur, respondent no.1 in Adjudication Case No.84 of 1988 Fertilizer Workers Union and M/s Indian Explosives Limited is unsustainable in law and is hereby quashed. A writ of certiorari is issued accordingly.
The writ petition succeeds and is allowed.
Order Date :- 1.2.2010 BK