RATHIN MUKHERJEE AND OTHERS Vs. DURGAPUR CINEMA

JUDGEMENT

(1.) It is an application under Art. 227 of the Indian Constitution directed against the order No, 26 passed on 9.9.1991 by the Judge, 9lh Industrial Tribunal at Durgapur in Case No, X 25 of 1990.

(2.) The petitioners are the ex employees of the Durgapur cinema hall. In March 1985 there was clash between the local police and some students of the Regional Engineering College near the cinema hall and as a result two students were killed by firing and the exhibition of the Cinema shows were suspended for some time. Thereafter, when the Cinema show was resumed, these petitioners, who were attached to that Cinema hail as employees, since its inception were dismissed from service without assigning any reason by the employer. Naturally they approached the Labour Commissioner and there was an attempt for reconciliation between the employer and the workmen which ultimately failed and the Labour Department referred the matter to the Industrial Tribunal. Before the Industrial Tribunal the Company was represented by one Advocate, namely, Sri S. C. Bose on behalf of the workmen and executive of the Bengal Motion Pictures Association, namely, Sri R. C. Bhattacharjee appeared an raised objection that the company cannot be allowed to be represented through an Advocate without the consent of the workers i. e. other party and without leave of the Tribunal in terms of the provision of Sec. 36 sub-section (4) of the Industrial Disputes Act. At the time of hearing of that objection the Advocate appearing for the company raised the plea that R.C. Bhattacharjee was not the authorised representative of the workmen and as such he had no locus-standi to raise such objection. The learned Tribunal by its order dated 27.11.1960 accepted the contention as raised by the representative of the workers and rejected the plea of the employer to be represented by a legal practitioner as the conditions laid down in sub section (4) of Sec. 36 of the I. D. Act were not complied with. Against that order the company moved this Honourable Court under Art. 226 and the matter was disposed of by the then Honourable Justice Mr Paritosh Kumar Mukherjee and the matter was remanded to the learned Tribunal for fresh adjudication on the preliminary objection raised by either party and with this direction also that in case the Tribunal would allowed representation of the workmen by their union representative the Tribunal also should take into consideration the question of allowing the legal practitioner on behalf of the company. The Honourable Judge also relied upon a decision of the Supreme Court reported in (1) AIR 1983 SC at page 109.

(3.) The learned Tribunal after remand asked the representative of the workmen to satisfy the Tribunal that the condition as mentioned under Sec. 36 (1) (a) of the I.D. Act have been fulfilled. At the time of hearing the employer produced two letters written by one Shibnath Chatterjee, alleged to be the Joint Secretary of the Bengal Motion Pictures Employees' Association in support of their care that the workmen of the Durgapur cinema hall were not members of the Bengal Motion Pictures Employees' Association and as such their Executive R. C. Bhattacharjee could not represent them and the other letter mentioned that the BMPE Union did not authorise Sri Bliatta charjee to represent the workmen. Out of fairness the learned Tribunal gave an opportunity to the workmen and their representative Sri Bhattacharjee to produce necessary documents for the satisfaction of the Tribunal and it appears from the order that a letter subsequently written by that Shibnath Chatterjee correcting his earlier stand was also produced along with membership cards of the petitioner-workmen, but the learned Tribunal could not rest his faith on the genuineness of those documents and by his impugned order i. e. dated 9th Sept., 1991 accepted the contention as raised by the learned Advocate Sri S.C Bose appearing for the employer that R. C. Bhattacharjee who represented the workmen had no authority to do so and as such he had no locus standi to raise such objection under Sec. - 36 sub section (4) of the I.D. Act and thus the plea of the workmen virtually has been thrown out of the Tribunal and the prayer of the company to be represented through an Advocate was allowed. On being aggrieved by such order the present application under Art. 227 of the Constitution has been filed by the workmen on the ground that the learned Tribunal acted without jurisdiction and under misconception of the actual position of law. The learned Advocate for the petitioners made his submissions also on the other day, but unfortunately the opposite party inspite of service did not appear and to ensure fair-play of Justice, the learned Advocate appearing for the petitioner, namely Mr. Santanu Mukherjee was directed to send an intimation of the next date of hearing to the part) concerned i.e. employer by registered post with A. D. It is submitted by Mr. Mukherjee that it was duly served but the postal receipt and the acknowledgement card both are lying with his client who has not yet been turned up. Mr. Mukherjee has filed a copy of the letter which was sent to the opposite party employer i e. respondent No. 1. Let this copy be kept with the record with this direction to the petitioner that the acknowledgement card and the postal receipt be filed as soon as available.