The main legal point established in the judgment is the right of an individual member to file a complaint for unfair labor practices and the applicability of procedural rules in allowing the amendment and addition of parties to the complaint.

JUDGMENT :

F.I. REBELLO, J.:

1. Petitioner No. 1 is a Trade Union which has filed a complaint before the Industrial Court, which complaint was numbered as Complaint No. 1384 of 1988. The petitioner Nos. 2 and 3 are two of the workers who were sought to be impleaded/added as complainants in the complaint. The application for addition of parties was by petitioner No. 1.

2. The Industrial Court by judgment dated 18th April, 1995 dismissed the application for amendment below Exhibit U-27. The Complaint filed by the petitioner was also dismissed by judgment dated 18th April, 1995 below Exh. C-43. Aggrieved by the said order the petitioners have approached this Court impugning the judgment dated 18th April, 1995 passed in complaint No. 915 of 1988 as also in complaint No. 1384 of 1988. In so far as complaint No. 915 of 1988 is concerned the prayers sought were to hold and declare that the respondent No. 1 herein had engaged in unfair labour practice under Items 9 and 10 of Sch. IV of the M.R.T.U. & P.U.L.P. Act, 1971. The said complaint was based on certain events that took place between 21st July, 1988 and 1st August, 1988. The complainant alleged that they apprehended that the respondent No. 1 would close down their business without following the procedure prescribed under Section 25(o) of the I.D. Act, 1947.

3. Complaint No. 1384 of 1988 is also filed by the petitioners herein. In the said complaint it is alleged by the petitioners that the respondent No. 1 has engaged in unfair labour practice under Item 9 of Sch. IV of the M.R.T.U. & P.U.L.P. Act, 1971 as also some other relief. This complaint is based on the fact that the wages of the workmen employed with the respondent No. 1 company represented by the petitioners were not paid on specified dates and that there was unreasonable and unjustified delay in payment of wages. With the above back-ground the reliefs sought for in the petition may be considered.

4. In so far as order below Exh. C-43 is concerned, the Industrial Tribunal has held that the complaint as filed was not maintainable and consequently was liable to be dismissed. I do not propose to discuss the impugned order at length as to my mind the order passed thereon would be covered by the judgment of the Apex Court in the case of Shramik Utkarsha Sabha v. Raymond Woollen Mills Ltd.., 1992 (I) CLR 273 : 1992 (2) LLN 881 In the instant case the establishment is covered by the provisions of the Bombay Industrial Relations Act. The petitioner No. 1 herein is admittedly not a recognised union. The very issue which has arisen here was also in issue before the Apex Court as set out in para 3 of that judgment. That being the case in my opinion the issue is no longer res integra. However, learned Counsel for the petitioners contends that the judgment in the case of Shramik Utkarsha Sabha (supra) is per incuriam. For that purpose the learned counsel contends that the Apex Court did not take into consideration its earlier judgment in Crescent Dyes & Chemicals Ltd. v. Ram Naresh Tripathi., 1993 (66) FLR 537 (SC) My attention is invited to the observation of the Apex Court in para 6 of the judgment where the Apex Court has observed that in the absence of recognised Union a member could not maintain a complaint. The said observation need not detain us for long. In so far as Section 21(1) is concerned there is a proviso which permits a member to maintain a complaint in the absence of a recognised Union. That is not the case in so far as Section 21(2) is concerned to which there is no proviso what was in issue before the Apex Court in the case of Crescent Dyes and Chemicals Ltd. (supra) was the right of representation. It is in that context that the Apex Court was considering the matter before it.

5. The next contention in support of the submission is placing reliance in para 14 of the judgment in Shramik Utkarsha Sabha (supra). It is contended that the Apex Court did not take note of Section 21(2) of the M.R.T.U. & P.U.L.P. Act. Even her