GIREESH U G MENON Vs. MUMBAI MAZDOOR SABHA

JUDGEMENT

(1.) Rule. Heard forthwith.

(2.) The learned tribunal heard the parties and by an order dated 17.2.2005 dismissed the application. The learned Industrial Court held that the application is not verified by any of the workman and has been signed by the Advocate. It also held that it was possible for the individual workmen to implead their present union as non applicant No. 2 in this case but that had not been done. The 64 workmen had switched over to the membership of another Union recently. The essential prerequisites for making an application for recognition, prescribed under the Act had not been completed by the new Union, whose membership has been accepted by the present workman. The court while considering the grant of recognition is required to examine whether the applicant Union has proved its majority of membership for the relevant period. During the verification of the membership of the applicant Union, individual employees can raise their grievance, if any, before the investigating officer. The tribunal also held that considering the scheme of the Act and the Rules, the workman had not fulfilled the criteria for being impleaded in the complaint and accordingly rejected the application. It is this order which is the subject matter of the present petition.

(3.) At the hearing of the Petition, on behalf of the Petitioner, their learned counsel submits, that the Industrial Court has completely misread the provisions of the Act and the rules while rejecting the application. Section 12 of the Act itself, contemplates that the Industrial Court is duty bound to give notice to employees likely to be affected, Employers and the Unions in the undertaking before the grant of recognition to an applicant Union. Under Section 12, it was the bounden duty of the Industrial Court to consider the objections raised by the employees to the recognition sought for by the Respondent No. 1. The observation of the Industrial Court that individual employees can give their say before the Investigation Officer during the verification of the membership disclose an error of law apparent on the face of the record. It is the court under Section 12 which has to consider the objections and not the Investigating Officer. It was the duty of the court to consider whether the Union seeking recognition and which does not have even a single member at the time of considering an application, can act in the interest of the workers and therefore, the Industrial court should not have rejected the application for joinder. The Industrial Court it is submitted has overlooked the provisions of Section 11 and 12 of the Act under which, hearing to affected employees has to be given and as such the court was bound to allow the application and to implead the workers as party respondents to the proceedings.