Bombay High Court
Arun vs Member on 21 December, 2010
Bench: B. P. Dharmadhikari
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
WRIT PETITION No. 435 OF 1995.
Arun s/o Sheshrao Asatkar,
Aged about 38 years, Occupation
Service, resident of patrakar Sahaniwas,
Civil Lines, Nagpur. ....PETITIONER.
ig VERSUS
1. Member, Industrial Court,
Maharashtra, Nagpur Bench,
Nagpur.
2. Shri Jayant Murlidhar Harkare,
aged about 50 years, Occupation
Journalist, resident of Pathkar
Galli, Mahal, Nagpur.
3. Shri Ganesh Krishnarao Shirole,
Aged about 39 years, Occupation
working Journalist, resident of
B/1/8, Partakar Sahaniwas Colony,
Amravati Road, Nagpur.
4. Nagpur Union of Working Journalists
(Nagpur Shramik Patrakar Sangh)
Tilak Patrakar Bhavan, Panchsheel
Square, Nagpur through its Secretary.
5. Shri Snyam Lohabare,
4th Floor, vijayanand Housing Co.op.
Society Ltd., Wardha Road, Nagpur.
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6. Shri Manoharrao Andhare,
resident of Patrakar Sahaniwas Building No.3,
Amravati Road, Nagpur.
7. Shri Prakash Deshpande,
resident of Patrakar Sahaniwas, Building No.1,
Amravati Road, Nagpur.
8. Shri Siddhartha Mohan Sontakke
(dead)(deleted)
9. Shri Inderkumar Jain,
Resident of Jagat Apartment, Ravi Nagar
Square, Nagpur. ....RESPONDENTS
.
ig ------------------------
Mr. Uday Dastane, Advocate for Petitioner.
Mr. Kankale, learned A.G.P. for Respondent No.1.
Mr. S.G. Jagtap, Advocate for Respondent No.3.
Mr. P.C. Marpakwar, Advocate for Respondent No.4.
-------------------------
CORAM : B.P. DHARMADHIKARI, J.
DATED : DECEMBER 21, 2010.
ORAL JUDGEMENT.
By this petition filed under Articles 226 and 227 of the
Constitution of India, the petitioner is challenging orders dated
12.10.1994 delivered by the learned Industrial Court, Nagpur in
Reference Application (TU) No.4/1994. The said Application was filed
as Reference under Section 28-1[A] of the Trade Union Act, 1926
(hereinafter referred to as "the 1926 Act" for short), by the present
respondent nos. 2 and 3. The reference, as apparent from the consent
certificate issued under the said provision was "Shri Arun Asatkar,
Shyam Lokhare, Manohar Andhare, Prakash Deshpande, Sidhartha
Sontakke and Indrakumar Jain, are the members and relate to the
property of "Nagpur Union of Working Journalists (Registered No.
2723), Tilak Patrakar Bhavan, Nagpur". The learned Member of the
Industrial Court has answered the reference partly in negative by
holding that the non-applicant nos. 3 to 7 before it had not been
rendered disqualified or incurred disqualification to continue as
members of said Union. In so far as the present petitioner is
concerned, the reference was answered in affirmative by holding that
he is not entitled to continue as member and his name required removal
from the membership register. The Union was also directed to
withdraw all concessions, advances and benefits conferred upon him.
This Court has issued Rule in the matter and prayer for interim relief
was not pressed, as that application remained pending for quite long
time.
2. In this background Shri Dastane, learned Counsel appearing
on behalf of petitioner has contended that the scope of powers available
to Industrial Court under Section 28-1[A] of the 1926 Act is very
limited and question - whether petitioner was enrolled validly as a
member initially way back in the year 1978, could not have been gone
into. He places reliance upon the judgment of Hon'ble Apex Court
reported at 2001 [1] SCC 350 (Borosil Glass Works Ltd. Employees'
Union .vrs. D.D. Bambode and others) for said purpose. He has further
urged that the reference is entertained because of consent given by the
Deputy Commissioner of Labour and that consent certificate has been
filed as a document along with the proceedings by respondent nos. 2
and 3. That certificate has not been exhibited and duly proved.
Because of this basic lacuna, the learned Member of the Industrial Court
ought to have rejected the reference in its entirety. Attention is invited
to the reasons given by the learned Member of the Industrial Court in
this respect to urge that the said Court noticed objection that certificate
is not proved, but then proceeds to read that document in evidence
because it's issuance is not disputed. According to the learned Counsel
there is apparent anomaly in this appreciation. Attention is also invited
to language employed in consent certificate to urge that question about
validity of enrollment of petitioner was not referred and could not have
been gone into. The only question was - whether petitioner is or is not
a member. Once, respondent no.4 Trade Union entered witness box
and stated that it had enrolled petitioner as member, the reference
needed to be answered in favour of petitioner. Lastly, attention is
invited to evidence on record to show that though designated as junior
clerk, petitioner was all the while working as Librarian and hence he
was a working journalist. Attention has been invited to Section 3,
Group 4 (3) of Bachawat Award to urge that post Librarian is
recognized as of working journalist. The learned Counsel also states
that the categories of employees working in newspapers establishment,
are defined in Section 2[dd] of the Working Journalist and other
Newspapers Employees (Conditions of Service and Misc. Provision) Act,
1955 ( hereinafter referred to as "the 1955 Act" for short), but then post
of Librarian does not figure in the category of non journalist newspaper
employee any where. The employer supported the case of petitioner by
pointing out that he was working as Librarian and that evidence could
not have been discarded, only because there was no appointment order
on record for that purpose. He has also relied upon the judgment of
Hon'ble Apex Court reported at (1994) 3 SCC 510 (S.K. Maini .vrs.
M/s. Carona Sahu Company Ltd. And others) to urge that it is nature of
duties which assumes importance while deciding the status of the
employee like petitioner. The burden to show that petitioner is not a
working journalist was upon respondent nos. 2 and 3 and they have
failed to discharge it.
3. Shri Jagtap, learned Counsel appearing for respondent no.3
has supported the impugned order. He invites attention to points for
determination as framed by the Industrial Court and states that the
entire material on record has been properly appreciated and there is no
perversity or jurisdictional error. According to him there was no
dispute about issuance of consent letter and hence, the consent letter
has been rightly read into evidence. The appreciation, particularly in
paragraph no.23 and paragraph no.28 by the Industrial Court is pressed
into service to show that there is no jurisdictional error and hence no
interference is warranted in writ jurisdiction. Reliance is being placed
on language of Section 28-1[A] of the 1926 Act itself to urge that, that
language also supports the reference of question as to whether
petitioner has been properly enrolled as member or not. The material
on record demonstrates that the petitioner was working as clerk and
therefore was not a working journalist and hence, was not qualified to
become member of respondent no.4 Trade Union.
4. Shri Marpakwar, learned Counsel appearing for respondent
no.4 Trade Union has invited attention to the evidence as adduced
before the Industrial Court and has stated that, that evidence has been
appreciated by the Industrial Court. According to him, the consent
letter has been correctly read into evidence and the reference is within
the forecorners of Section 28[1-A] of the 1926 Act, as there is no
jurisdictional error, the learned Counsel states that the impugned order
calls for non interference.
5. Shri Kankale, learned A.G.P. appears for respondent no.1
Tribunal and supports the impugned order.
6. It is not in dispute that the petitioner became member of
respondent no.4 Trade Union some time in 1978. He joined service of
a daily newspaper by name 'Lokmat' as peon in 1974. Government
allotted some land at concessional rate to respondent no.4 Trade Union
and that Union then allotted flats in the scheme to its members. The
dispute cropped up because of the claim to such flat by the present
petitioner. Respondent nos. 2 and 3 then contended that only working
journalist can become members of respondent no.4 Union and as
petitioner is not such a working journalist, he cannot become a
member, and therefore, is not entitled to allotment of a flat. The
consent letter in dispute shows that the matter then was submitted to
the Industrial Court as required by Section 28-1[A] of the 1926 Act.
7. The parties are not at issue about the membership of
respondent no.4 being open to only working journalists. The Phrase
'working journalist' is defined in Constitution of Trade Union and that
definition is identical with the definition of that phrase in Section 2[f]
of 1955 Act. The said definition includes in its later part various
designations and some of it are Feature writer, Copy-tester, Reporter or
Free Lancer. Definition employees word "means" initially giving it
exhaustive meaning, but thereafter it also uses the word "includes' and
that indicates various types of posts covered therein. After this
illustrative part, there is also an rider and it stipulates that a Proprietor,
Director or any such Journalist who has proprietary interest in the
concern and journalist who has power of appointment and dismissal is
not included within the definition of working journalist.
8. Provisions of Section 28-1[A] of 1926 Act, stipulate that
when there is a dispute whether or not any person is an office bearer or
member of the registered Trade Union and includes any dispute
relating to wrongful expulsion of any office barer or member and /or
when there is any dispute relating to property including accounts books
of registered Trade Union, any member or such registered Trade Union
may with the consent of the Registrar and in such manner as may be
prescribed refer the dispute to the Industrial Court. The status of
respondent nos. 2 and 3 as members of respondent no.4 Trade Union
and hence, their entitlement to raise dispute and competency of
respondent no.1 Tribunal to entertain it, is not in dispute before this
Court. The arguments advanced show dispute about the consent of
Registrar. The scheme of Section 28-1[A], clearly demonstrate that
reference can be made only with the consent of the Registrar.
9. The Industrial Court has appreciated this controversy while
deciding the point no.1 as framed by it. It's discussion in paragraph
no.23 shows a finding that during evidence this consent letter
[document before it], was not duly proved and it was not exhibited. It
also shows that there is no official seal of Deputy Registrar of Trade
Union on it. The learned Counsel representing petitioner before the
Industrial Court therefore, had argued that the certificate cannot be
accepted as valid certificate and reference was liable to be rejected.
The learned Counsel representing present respondent nos. 2 and 3
there, argued that necessary certificate was issued by the competent
Authority as per the requirement of Section 28[1A] of the 1926 Act and
certificate was not denied by the petitioner and other non applicants
before the Industrial Court. He did allege the issuance of certificate by
the said Authority was not denied and urged that only objection was
that reference could not have been filed jointly and the certificate was
not duly proved. The learned Member of Industrial Court found that
the petitioner and other non-applicants did not dispute this consent
letter in favour of the applicants before it and therefore, after noticing
that certificate has not been duly proved and exhibited, it has
proceeded to read it in evidence. This reasoning therefore, only shows
that as issuance of consent certificate was not in dispute, the certificate
has been read in evidence. The contradiction inter-se in paragraph 23
is apparent. The Industrial Court records objection to the use of said
document, to its validity with request to it to reject the reference and
on the other hand it observed that there is no objection to issuance of
certificate by the competent Authority and therefore, proceeds to read
in evidence. The apparent incongruity in thought process shows total
non application of mind.
10. Section 28-1[A] confers jurisdiction on Court because of that
consent certificate. The consent letter therefore, permits holder thereof
to refer a dispute as specified therein before the Industrial Court. Even
if it is presumed that the fact of issuance of consent certificate is not
disputed, because of scheme of Section 28-1[A], language thereof, is
important. The jurisdiction becomes available in the light of said
language, hence the contents of certificate issued by the competent
Authority must be established. Unless and until the document produced
before the Industrial Court was identified as a consent certificate issued
by the competent authority for the purpose of reference which
Industrial Court was adjudicating, the Industrial Court could not have
proceeded further with adjudication of the controversy. The
observations in paragraph no.23 itself show that the said identity of
document filed before the Industrial Court with consent letter issued by
the Competent Authority has not been established. It is, therefore,
apparent that a vital ingredient of Section 28-1[A] is not fulfilled in the
matter. The learned Member of the Industrial Court has therefore,
erroneously recorded a finding that consent certificate can be read into
evidence and because of that finding answered the point no.1 framed
by it in affirmative. That answer cannot be accepted as valid.
11. The scope of Section 28-1[A] as already noted above, is to
resolve the dispute whether or not, any person is a office bearer or
member of Registered Trade union. Though the consent certificate
looked into by the Industrial Court makes a reference to the property of
respondent no.4 Trust, it is an admitted position before this Court that
there was no dispute between the parties about any such property. The
only dispute was about status of petitioner and on determination of that
status, depended on his entitlement to claim allotment of flat. The
claim for such allotment and its adjudication is not within the
forecorners of Section 28-1[A] and the Industrial Court has also not
decided it. The Industrial Court therefore, was required to find out
whether, non-applicant no.2 before it [present petitioner] was or was
not member of respondent no.4 Trade Union. The Industrial Court has
in the process found that enrollment of petitioner itself is not justified,
because he is not a working journalist. Because of that, it has found his
further continuation as member of respondent no.4 Trade Union,
illegal. It has, thereafter proceeded to issue consequential directions.
The judgment of Hon'ble Apex Court in the matter of Borosil Glass
Works vrs. D.D. Bambode and others(supra) considers the provisions of
Section 28-1[A] of the 1926 Act and in paragraph 8 the Hon'ble Apex
Court has observed that jurisdiction of Civil Court is barred only in
respect of matters which can be referred to Industrial Court under
Section 28-1[A]. If such dispute does not fall under that Section it can
always be taken to Civil Court. Thereafter the Hon'ble Apex Court has
observed "as a dispute whether a person should or should not be
admitted as a member, is not a dispute falling within Section 28-1A, it
would always be open to such persons to approach a civil court for
resolution of their dispute." These observations un-equivocally show
that question about validity or otherwise of enrollment of petitioner as a
member of respondent no.4 Trade Union could not have been subjected
to adjudication of Industrial Court. Respondent nos. 2 and 3 therefore,
could not have approached Industrial Court, even if, it is presumed that
they had a valid consent certificate. The Industrial Court therefore, has
exercised jurisdiction not available to it under said provision while
holding that as petitioner is not a working journalist, he could not have
been enrolled as member of respondent no.4 Trade Union.
12. The language of alleged consent letter also becomes
important at this stage. The said certificate reads as under :
"I, S.A. Kumbhare, Deputy Registrar of Trade
Unions, Nagpur am satisfied that a dispute of nature
referred to in sub-section [1] of section 28-1[A] of
the Trade Unions Act, 1926 in its application of the
State of Maharashtra exists as to -
"Shri Arun Asatkar, Shyam Lohakare, Manohar
Andhare, Prakash Deshpande, Siddartha Sontakke
and Indrakumar Jain are the members and relating
to the property of the Nagpur of Working
Journalists, (Regd No. 2723), Tilak Patrakar
Bhavan, Nagpur"
and consent certificate is hereby given that Shri
Jayant Harkare and Ganesh Shirole may refer the
dispute under the said sub-section [1-A] of the
Industrial Court, Nagpur."
Thus, the dispute referred to is, whether petitioner and 5 other persons
are members; the words "whether" or then any question mark is not
employed anywhere in this certificate, but then it is not in dispute
between the parties that questions referred to was about the status of
the petitioner. The language used and also mention of property
therein, therefore, shows non-application of mind by the referring
authority.
13. The Industrial Court has considered the evidence adduced
before it to find out status of petitioner in paragraph no.28. Said
consideration reveals a finding that in definition of working journalist,
post of clerk is not shown. Industrial Court thereafter has proceeded to
examine the actual nature of duties done by the petitioner, because of
his contention that he was working as Librarian. This consideration
shows a finding that there was no order issued by his employer
appointing him to the post of Librarian and in absence of that order he
cannot be conferred with that powers of Librarian legally. As already
pointed out by learned Counsel for petitioner, even the post of Librarian
finds mention in Bachawat Award and that Award was in operation
from 1.1.1988 till 31.03.1998. The learned Counsel has also urged that
position in Palekar Award which was in force prior thereto from
01.10.1979 or then position in Manesana Award in force from
01.04.1998 is identical. Before the Industrial Court the petitioner
asserted that he was working as Librarian. He produced witness to
show that he was working as Librarian and this evidence has been
overlooked because of absence of appointment order. Shri Jagtap,
learned Counsel has invited attention to the fact that a photostat copy
of the payslip for the month of August, 1993 was produced on record
and the certificate at Article 10 was also produced, which reveal that he
was working as junior clerk. Industrial Court has noted that when both
these documents were put to petitioner he declined to comment on
them, in absence of the originals. He accepted that Article 4 carried his
name. Because of this approach, the learned Member of the Industrial
Court has drawn inference that petitioner has been designated as junior
clerk. The dispute was not in-relation to designation at all. The
dispute was about the status of petitioner as working journalists.
Perusal of the judgment of Hon'ble Apex Court in case of S.K. Maini
.vrs. M/s. Carona Sahu Company Ltd. And others (supra) clearly
reveals that the determinative factor in such circumstances is duties of
the employee concerned and not some work incidentally done. Here
the learned Member of the Industrial Court has not narrated the duties
being performed by the petitioner. When he was asserting that he was
working as a Librarian though designated as junior clerk and his
employer supported him, only because of absence of appointment order
designating him as Librarian, the inference that he was not working as
Librarian could not have been drawn. The petitioner claimed that he
was working as Librarian from beginning and he filed several
documents i.e. Exh. 66 to 89, which were received from time to time by
his employer from outside and from various persons including the office
of Lokmat at Aurangabad which addressed him as either Librarian or In-
charge Librarian. Why these documents could not be believed and why
the appointment order itself was necessary, therefore cannot be
understood. The Union also entered the witness box and supports its
action of enrolling the petitioner as member. The Executive Committee
passed appropriate resolution of conferring membership upon him.
Nature of his working was then considered and therefore, he was
enrolled. This evidence therefore again show that the Executive
Committee was satisfied about the status of petitioner as working
journalist and hence it proceeded to enroll him as its member. All this
material has been discarded only because there was no order issued by
the employer appointing petitioner as Librarian. The absence of formal
appointment order in this situation cannot be treated as fatal to his
claim that he was always working as librarian. The Industrial Court has
recorded a perverse finding by giving undue importance to this
formality and failed to apply the decisive test of nature of work
performed by the petitioner. In any case the burden was upon
respondent nos. 2 and 3 to show that the petitioner was not working as
working journalist. The respondent nos. 2 and 3 have failed to
discharge that burden.
14. In view of this position, I find that the order dated
12.10.1994 delivered by the respondent no.1 Tribunal unsustainable.
The same is accordingly quashed and set aside. Reference Application
(TU) No.4/1994 is found not maintainable and it is also held that the
Industrial Court had no jurisdiction to find out whether petitioner was
legally and validly enrolled as member of respondent no.4 Trade Union.
The evidence on record sufficiently show that he was legally and validly
enrolled as a Member.
15. Writ Petition is thus allowed. Rule is made absolute in the
aforesaid terms. However, in the facts and circumstances of the case,
there shall be no order as to costs.
ig JUDGE
Rgd.
