MANSUR ALI Vs. STATE

JUDGEMENT

(1.) THIS application being moved upon notice to all the respondents, as found from the affidavit of service filed today, respondents nos. 2 and 3 appear through their respective learned lawyers and with the consent of the learned lawyers, this application is taken up for final disposal. The petitioner in this application challenges the orders of the First Labour court dated 19. 7. 1984, 23. 8. 1984 and 13. 11. 1984. By the first order, the court below cancelled the permission given in favour of the petitioner for being represented by one Phani Mukherjee, an office bearer of Bharat Machinery Workers' Union, and by the second order, the prayer for review of the said order was rejected by the said court. The third order is substantially a rejection of the prayer for adjournment made on behalf of the present petitioner, the workman concerned. It appears that order no. 54 dated 19. 7. 84 allows the application made on or about 26. 1. 1984 of the company, respondent no. 2 to the present writ petition, for cancellation of the petitioner's representation by the said Sri Phani Mukherjee, on the ground of non-compliance with section 36, clause 1 (c) of the Industrial Disputes act, who had been representating the petitioner since about 27. 1. 1981.

(2.) IN my view, the said order cannot be sustained inasmuch as the representation as permitted under section 36 (1)in terms of' the different sub-causes thereof are in the alternative. From the application for cancellation made on behalf of the company it appears that the company's stand was that since the workman, the petitioner in the present case, was a member of Metallising Corporation (Private) Limited the recognised union of the company, representation of the petitioner by the secretary, of another alien union was not permitted. By way of objection to the said application definite stand taken on behalf of the present petitioner was that the representative was a member of a union connected with the engineering industry. The court below has cancelled the representation on the ground of failure on the part of the workman to prove the existence of the elements in terms of clause (c) of Section 36 (1) of the industrial Disputes Act. According to me, the finding of fact is vitiated by a completely wrong approach on the part of the court deviating from the case pleaded by the company in its application for cancellation and secondly by absence of necessary materials in support of its finding that Bharat Machinery Workers' Union was not a union connected with the same industry. A reference in this connection to the definition of the term "industry" in section 2 (j) of the industrial Disputes Act will confirm the above position and it cannot be said that any reasonable mind would not hold that the industry to which the respondent company belonged was the part of the same industry to which Bharat Machinery Workers' Union was connected. There is no finding that the petitioner is a member of any trade union. The question of onus also has been misplaced as it has been the definite case of the petitioner workman, that both the petitioner's company and the company with which Shri Phani Mukherjee's union was connected were engineering concerns and as such engaged in engineering industry. The allegation of the Workman being a member of the trade union recognized by the Company needed stricter proof by the company particularly after its participation inspite of such representation being allowed for about 3 years. The onus to prove the bars to the application of section 36 (1) (c)in allowing representation as above should have been placed on the applicant company.

(3.) IN view of the aforesaid errors of law in the basic order no. 54 dated 19. 7. 84, the impugned orders are quashed. Let appropriate writ in terms of prayer (b) of the writ petition be issued. In the special facts and circumstances of the present case each party will bear its own Costs.