Bombay High Court
Michael David And Others vs All India Reporter Pvt. Ltd. Thr. ... on 12 April, 2016
Bench: Prasanna B. Varale
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
: NAGPUR BENCH : NAGPUR.
WRIT PETITION NO. 5814 OF 2015
PETITIONERS : 1] Michael David, aged Major, Occu. Nil.
2] Cyril Fransis, aged Major, Occu. Nil.
3] D. G. Deauskar, aged Major, Occu. Nil.
4] Y. K. Khandare, aged Major, Occu. Nil.
ig 5] B. P. Surjuse, aged Major, Occu. Nil.
6] V. G. Shukla, aged Major, Occu. Nil.
7] A. S. Naidu, aged Major, Occu. Nil.
8] Desmond Grand, aged Major, Occu. Nil.
9] V. P. Badokar, aged Major, Occu. Nil.
10] T. A. Nagrikar, aged Major, Occu. Nil.
11] B. S. Naidu, aged Major, Occu. Nil.
12] G. S. Dekate, aged Major, Occu. Nil.
13] R. S. Meshram, aged Major, Occu. Nil.
14] Panjabrao Dhangre, (dead)
15] L. R. Shelokar, aged Major, Occu. Nil.
16] K. P. Khandare, aged Major, Occu. Nil.
17] A. E. Gangane, aged Major, Occu. Nil.
18] Y. P. Tembhekar, aged Major, Occu. Nil.
19] N. A. Walde, aged Major, Occu. Nil.
20] S. M. Kadu, aged Major, Occu. Nil.
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21] D. Z. Dandre, aged Major, Occu. Nil.
22] B. S. Wankhede (Dead),
23] R. D. Shende, aged Major, Occu. Nil.
24] S. M. Kawadkar, aged Major, Occu. Nil.
25] B. P. Bhagat, aged Major, Occu. Nil.
26] Ashok Kirat, aged Major, Occu. Nil.
27] Raju Pandurang Thomas (Dead)
28] Kiran Walde, aged Major, Occu. Nil.
29] Raju Jayatgude, aged Major, Occu. Nil.
All C/o Ishwardas Chintaman Tembhurne,
R/o Plot NO. 571, Model Town, Indora,
P.O. Jaripatka, Nagpur - 24.
- VERSUS -
RESPONDENTS : 1] All India Reporter Pvt. Ltd.,
Congress Nagar, Dhantoli, Nagpur,
through its Director
2] A.I.R. Engineering Co. Pvt. Ltd.,
Regd. Office at AIR Building,
Congress Nagar, Dhantoli, Nagpur
through its Managing Director.
3] Papyrus Printing and Packaging Products
(PPPP), C-46, MIDC, Hingna Road,
Nagpur
-------------------------------------------------------------
Mr. N. S. Warulkar, Advocate for the petitioner.
Mr. H. V. Thakur and N.H. Joshi, Advocates for the respondent nos.1 and 3
Mr. V. R. Thakur and Y. V. Dharashivkar, Advocates for respondent no.2
------------------------------------------------------------
CORAM : PRASANNA B. VARALE, J.
DATE : APRIL 12, 2016.
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ORAL JUDGMENT
Rule. Rule made returnable forthwith. The petition is
taken up for final disposal at the stage of admission with the consent of
the learned counsel for the parties.
2] By the present petition, the petitioners challenge the order
passed by the learned Member, Industrial Court, Nagpur, dated
19.09.2015 in Reference IDA No. 09/2004, thereby rejecting the
application (Exh.95) filed by the petitioners seeking amendment.
3] The petitioners claim to be the workmen engaged by the
respondent no.2, who is alleged to be the unit of the respondent no.1.
Before the Conciliation Officer under Industrial Disputes Act, 1947,
Nagpur, a dispute was submitted by the petitioners i.e. party no.2,
alleging that the respondent nos.1 and 2 i.e. party no.1, without there
being any cause and reason, suddenly closed down the unit situated at
C-46, MIDC, Hingna Road, Nagpur. While effecting closure, the
mandatory provisions of Sections 25-FFA and 25-FFF of the Industrial
Disputes Act, 1947 (hereinafter referred to as "the Act of 1947" for the
sake of brevity) were not followed. The respondents resisted the
submissions, stating that the respondent nos.1 and 2 are two different
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and distinct companies and they are separately registered under the
Companies Act, 1956. The Board of Directors are also different. It was
submitted that the respondent no.3 - M/s Papyrus Printing and
Packaging Products is a separate factory registered under the Factories
Act, having no concern with the respondent no.2. The Conciliation
Officer, with failure report, submitted the matter to the Additional
Labour Commissioner. By the order, dated 21.10.2004, the Additional
Commissioner of Labour framed the Schedule, which reads that "All the
40 workers should be reinstated w.e.f. 28.06.2004 with backwages for the
days of closing down.". Immediately on 25.10.2004, by the
Corrigendum, the Schedule dated 21.10.2004 was re-framed. The
petitioners herein by submitting Statement of Claim, approached the
Industrial Court by filing Reference IDA No. 09/2004. The respondent
nos.1 and 2 herein submitted their written statement. It seems that
there was earlier round of litigation before this Court at the instance of
the respondent no.2. In challenge to the orders in reference, dated
21.10.2004 and 25.10.2004, the petitioners, by presenting an
application for amendment, submitted that the party no.1 and 1-A
company are one and the same , though under different identity. It was
the submission in the amendment application that the party no.1
Company is the holding company of party no.1-A company as the party
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no.1 company has total control over the affairs of party No.1-A
company. In short, the submission was in the nature of functional
integrity between the respondent respondent nos.1 and 2 companies.
The application was opposed by the petitioners/party no.2. In addition
to the denial of claim of functional integrity between the companies, it
was submitted that the reference is now at the stage of recording the
evidence and the petitioners are trying to enlarge the scope of reference
and protracting the proceedings. The learned Member, Industrial Court,
in its detailed order by referring to the submissions advanced by the
parties and the judgments relied on by them in support of their
submissions, held that the issue raised by the petitioners is beyond the
scope of reference. The Industrial Court further observed that the
petitioners i.e. party no.2 have adduced the evidence by filing affidavits.
The witnesses were examined and cross-examined by the party no.1-A.
The Industrial Court, thus, finding no favour, rejected the application
for amendment by observing that the matter is pending since last more
than 11 years and as such called the parties to proceed with the matter
on day to day basis.
4] The learned counsel for the petitioners vehemently
submitted that the Industrial Court has erroneously observed that the
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issue of the functional integrity is raised at a later stage and the same is
beyond the scope of reference. The learned counsel further submitted
that in the statement of claim itself it was submitted that the party no.1
company had engaged 20 workmen and 8 workmen were engaged in
M/s Papyrus Printing and Packaging Products, which is a unit of party
no.1. The learned counsel further submitted that it was a specific claim
of the petitioners that party no.1-A is a unit of party no.1 and party
nos.1 and 1-A i.e. respondent nos.1 and 2 before this Court, have
effected closure of the unit without following the mandatory provisions
of Sections 25FFA and 25FFF of the Act of 1947. The respondents
denied the claim of the petitioners and as such, the Industrial Court
ought to have granted an opportunity to the petitioners to lead evidence
in support of the ground raised in respect of functional integrity.
Instead of granting opportunity to the petitioners to lead evidence by
allowing the amendment application, the Industrial Court, rejected the
application by adopting the mechanical approach. The learned counsel
submitted that the delay in proceedings is not caused due to the act of
the petitioners, but as because there were round of litigation which
reached to this Court as well as the Apex Court. In support of his
submission that the Industrial Court ought to have permitted the
petitioners to lead evidence and ought to have decided the issue even
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though it was not pleaded by the petitioners, the learned counsel for the
petitioners placed reliance on the judgments of this Court reported in
1991 LAB. I.C. 1653 in the case of Bombay Mothers & Children's
Society .vs. General Labour Union (Red Flag) and another and
1999(2) Mh.L.J. 106 in the case of Modern Foundry and Machine
Works Ltd. .vs. State of Maharashtra and others.
5]
Per contra, Mr. Thakur, the learned counsel for the
respondent nos.1 and 3 supports the order passed by the Industrial
Court. It is the submission of the learned counsel for the respondent
no.1 that the respondent no.1 - All India Reporters Pvt. Ltd. has been
declared as newspaper establishment by the result of a proceeding
decided by the Hon'ble Supreme Court. He submitted that for the
employees of the respondent no.1, the provisions of Working Journalists
and Other Newspaper Employees (Conditions of Service) and
Miscellaneous Provisions Act, 1955 are applicable. He further
submitted that in view of the judgment of the Hon'ble Apex Court, the
Wage Boards were constituted and in view of various Awards such as
Bachhawat Award and Palekar Award, the benefits of wage fixation or
wage revision are being granted to the journalists and they are
applicable to the employees of the respondent no.1. He further
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submitted that the respondent no.2 has a different and distinct entity.
He further submitted that a specific stand was taken before the
Conciliation Officer that the respondent nos.1 and 2 are two different
and distinct companies operating in different fields and provisions of
different Acts are applicable to them. The learned counsel further
submitted that the conditions of services of the respondent no.2
company are governed by the Bombay Industrial Relations Act, 1946.
He further submitted that an attempt was made by the petitioner-
employees to club the employees of the respondent no.1 and 2, though
these companies are different and distinct. He submitted that a specific
stand was taken and it was submitted that there is no functional
integrity between two establishments i.e. respondent nos.1 and 2. He
further submitted that the respondent no.3 - M/s Papyrus Printing and
packaging Products is a factory under the Factories Act having no
concern with either respondent no.1 or respondent no.2. The learned
counsel submitted that a complaint was also filed before the Labour
Court and the simultaneous proceeding before the Labour Court are
pending. It is the submission of the learned counsel that due to loss
caused to the respondent no.2, the respondent no.2 decided to close
down the industry w.e.f. 28.06.2004 and accordingly, an intimation was
served to various authorities. The learned counsel submitted that the
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Conciliation Officer submitted failure report and by order dated
21.10.2004, the Schedule was framed and on finding that the Schedule
was ambiguous and erroneous, a corrigendum was issued.
6] Mr.Thakur, the learned counsel further submitted that by
the amendment application, the petitioners intend to enlarge the scope
of the reference and the same being not permissible, the application is
rightly rejected. The learned counsel submitted that while it was for the
Labour Commissioner to frame reference, the petitioners themselves
have settled and framed the issues in the statement of claim. The
learned counsel then invited my attention to the provisions of Sections
25FFA and 25FFF as well Section 33 of the Act of 1947. It is submitted
that on the backdrop of the grounds raised by the petitioners in the
amendment application and by giving valid reasons, the application is
rejected and now the matter is at the stage of examination of the
witnesses. The proceedings are pending before the Industrial Court for
a considerable long period and any interference in the order passed by
the Industrial Court would lead to protracting the proceedings and the
same being unwarranted, the learned counsel submits that the petition
be dismissed.
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7] Mr. Thakur, the learned counsel placed reliance on the
following judgments :
1] (2015) 1 SCC 71
Oshiar Prasad .vs. Employees in relation to Management of
Sudamdih Coal Washery
2] AIR 1968 SC 585
Management of Bangalore Woollen, Cotton & Silk Mills Co.
Ltd. .vs. Workmen and another.
3] AIR 1959 SC 1191
Calcutta Electric Supply Corporation Ltd. .vs. Calcutta
Electric Supply Workers Union and others.
4] (1961) 2 LLJ 660
Gujrat Engineering Co. .vs. Ahmedabad Misc. Indistrial
Workers' Union.
5] (1965) 2 LLJ 433
Workmen of M/s British India Corporation Ltd. .vs. British
India Corporation Ltd.
6] AIR 1960 SC 818
U.P. Eletric Supply Co.Ltd. .vs. Workmen of M/s S.M.
Choudhary
7] 2009 I LLJ 558 (SC)
Regional Provident Fund Commissioner and others .vs.
ABS Spinning Orissa Ltd and another.
8] 2013 (6) Mh.L.J. 460
Voltas Ltd. .vs. State of Maharashtra and others.
8] Heard the learned counsel for the parties at length. On a
perusal of the material, I find considerable merit in the submissions of
Mr. Thakur, the learned counsel for the respondents. Perusal of the
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reference framed in the corrigendum, issued on 25.10.2004 and perusal
of the application seeking amendment, show that the petitioners are in
an attempt to enlarge the scope of reference. It was the submission of
the learned counsel that the Tribunal cannot expand the scope of
reference and it must confine its adjudication to the points of dispute
referred and matters incidental thereto. It will be useful to refer to the
observation of the Hon'ble Apex Court in the case of Oshiar Prasad .vs.
Employees in relation to Management of Sudamdih Coal Washery (supra),
which reads thus -
"19. ...........
9. From the above it therefore appears that while it is
open to the appropriate Government to refer the dispute
or any matter appearing to be connected therewith for
adjudication, the Tribunal must confine its adjudication
to those points of dispute referred and matters
incidental thereto. In other words, the Tribunal is not
free to enlarge the scope of the dispute referred to it but
must confine its attention to the points specifically
mentioned and anything which is incidental thereto.
The word 'incidental' means according to Webster's New
Word Dictionary :
'happening or likely to happen as a result of or in
connection with something more important; being
an incident; casual; hence, secondary or minor,
but usually associated;'
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'Something incidental to a dispute' must therefore mean
something happening as a result of or in connection
with the dispute or associated with the dispute. The
dispute is the fundamental thing while something
incidental thereto is an adjunct to it. Something
incidental, therefore, cannot cut at the root of the main
thing to which it is an adjunct [to it]."
22. It is thus clear that the appropriate Government
is empowered to make a reference under Section 10 of
the Act only when "industrial dispute exists" or "is
apprehended between the parties". Similarly, it is also
clear that the Tribunal while answering the reference
has to confine its inquiry to the question(s) referred and
has no jurisdiction to travel beyond the question(s)
or/and the terms of the reference while answering the
reference. A fortiori, no inquiry can be made on those
questions, which are not specifically referred to the
Tribunal while answering the reference."
9] It will also be useful to refer to the observations of the
Hon'ble Apex Court in the case of Workmen of M/s British India
Corpn. .vs. British India Corpn. (supra) at paragraph 2, which reads
thus :
"2. Taking first the question of amalgamation of
dearness allowance with wages, the tribunal held that this
question had not been referred to it. We have already set
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out the term of reference, and it is obvious that there is no
express reference in that term to the amalgamation of
dearness allowance with wages. It is, however, urged on
behalf of the appellants that this question arises
incidentally out of the matter under reference and should
have been dealt with by the tribunal, particularly as
dearness allowance is part of wages, though the two have
been treated separately for various reasons. It is true in a
sense dearness allowance is a part of wages; but we are of
opinion that the question of amalgamation of dearness
allowance with basic wages raises specific and distinct
issues some of which may be of far-reaching effect in the
region to which this industry belongs and such a question
cannot be considered as a mere incidental matter arising
out of the reference as to increase in wages. Increase in
wages is a very different matter and such an increase
would not necessarily comprise even incidentally the
question of amalgamation of dearness allowance with
basic wages. We agree with the tribunal that if it was the
intention of Government that the matter of amalgamation
of dearness allowance and basic wages should be
considered by the tribunal, there should have been a
specific term in the reference to that effect. In the absence
of such a term, it was not possible for the tribunal to
consider this question and thus make a radical change in
the pattern of wages prevalent in the region as if by a side-
wind. We therefore reject the contention of the appellants
in this behalf."
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10] It will be useful to refer to the observations of this Court in
the case of Voltas Ltd. .vs. State of Maharashtra and others (supra) at
paragraph 11, which reads thus :
"11. It is settled position in law that the terms of reference
are never to be construed pedantically. The order making
a reference has to be read along with pleadings of the
parties and other circumstances with a view to cull out
therefrom, the various points about which the parties are
at variance leading to the dispute and to determine the real
nature of the dispute. The parties are to be offered an
opportunity before the Industrial Tribunal to file their
statements of claim and response. As long as the parties do
not travel way beyond the terms of the reference, the
Tribunal would be well within its jurisdiction in
adjudicating the dispute between the parties."
11] There is merit in the submission of Mr. Thakur, the learned
counsel for the respondent no.2 that the petitioners cannot establish the
aspect of functional integrity between the respondent nos.1 and 2 only
on a reference made to Sections 25FFA and 25FFF. He submitted that
as the important words of the provisions are "an undertaking", it would
necessary to read the provisions along with Section 2(ka) of the Act of
1947. The said provision read thus :
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"2ka. Industrial establishment or undertaking" means an
establishment or undertaking in which any industry is
carried on :
(a) .........
(b) If the predominant activity or each of the
predominant activities carried on in such establishment
or undertaking or any unit thereof is an industry and
the other activity or each of the other activities carried
on in such establishment or undertaking or unit thereof
is not severable from and is for the purpose of carrying
on, or aiding the carrying on of, such predominant
activity or activities, the entire establishment or
undertaking or, as the case may be unit thereof shall be
deemed to be an industrial establishment or
undertaking ;"
It was the submitted by the learned counsel for the respondent no.2 that
nothing is placed on record to comply the requirement of Section
2ka(b). The learned counsel submitted that on the contrary, it is the
case of the respondents that the respondent nos.1 and 2 are two
different and distinct companies registered under the Companies Act.
The activities of these two companies are severable from each other.
12] Though, it was the submission of the learned counsel for
the petitioners that the issue raised by the petitioners about the
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functional integrity was left open by the judgment and order of this
Court in Writ Petition No. 1972/2005 and the Industrial Court ought to
have allowed the application and permitted the petitioners to lead the
evidence so as to decide the issue of functional integrity, I am unable to
accept the submission of the learned counsel for the petitioners, for the
reason that by way of amendment application, the petitioners are trying
to enlarge the scope of reference and the same cannot be permitted in
the facts and circumstances referred to above.
13] Considering the above referred facts, in my opinion, the
order passed by the learned Member, Industrial Court, Nagpur
impugned in this petition need no interference. The petition thus being
meritless deserves to be dismissed and the same is accordingly
dismissed.
Rule is discharged. No costs.
JUDGE
Diwale
