Nava Bharat Press Thr Its Partner ... vs Presiding Officer, Industrial ...
2017 Latest Caselaw 5927 Bom

Judgment                                                                  lpa458.10


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               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                         NAGPUR BENCH, NAGPUR.



                      LETTERS PATENT APPEAL NO. 458/2010
                        IN WRIT PETITION No. 3853/2000.


      Nava Bharat Press (Nagpur)
      A registered partnership firm having
      it's office at Chhatrapari Square,
      Wardha Road, Nagpur
      through it's partner Shri Vinodkumar
      s/o Ramgopal Maheshwari.                           ....APPELLANT.


                                   VERSUS

  1. Presiding Officer,
     Industrial Tribunal, (Maharashtra)
     Nagpur Bench, Civil Lines,
     Nagpur 440 001.

  2. Workmen of Nava Bharat Press (Nagpur)
     represented by Navbharat Shramik Sangh
     c/o Dashrath Singh Bhikusingh Dodhe,
     Vasant Nagar (Bhagwan Nagar Road)
     Nagpur.                             ....             RESPONDENTS . 


                          ----------------------------------- 
                 Mr. P. Salunke, Advocate for the Appellant.
   Mr. A.M. Balpande, Assistant Government Pleader for Respondent No.1.
             Shri S.D. Thakuar, Advocate for Respondent No.2.
                          ------------------------------------




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 Judgment                                                                              lpa458.10


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                                       CORAM  :  B. P.  DHARMADHIKARI
                                                       &   ARUN D.UPADHYE, JJ. 

DATE : AUGUST 14, 2017.

ORAL JUDGMENT. (Per B.P. Dharmadhikari, J)

Judgment delivered by learned Single Judge on 08.06.2009

dismissing Writ Petition No. 3853/2000 filed by the present appellant/

Newspaper Establishment only, has been questioned in this appeal.

2. The Writ Petition arises out of an award dated 24.12.1999,

delivered by the Presiding Officer, Industrial Tribunal, Nagpur in Reference

I.T.No. 5/1983.

3. The demand which was made by respondent no.2 - Trade Union

and which formed subject matter of the reference reads as under :

"SCHEDULE This Working Committee of Nav Bharat Shramik Sangh, Nagpur, in its meeting held on Saturday, the 1st January, 1983 unanimously demands that the "Nav Bharat", Nagpur be reclassified as a Newspaper

Judgment lpa458.10

establishment falling in Class-II as the average gross revenue of the said newspaper establishment of the immediately proceeding accounting years is Rs. 2 Crores and above and less than Rs. 4 Crores, as provided in the Palekar Award."

4. Shri Salunke, learned Counsel appearing on behalf of the

appellant/Newspaper Establishment has after narrating previous history

pointed out that the employer has every right to reorganize and rationalize its

business/establishment. Partnership concern, managing Newspaper by name

"Nav Bharat" till then, was dissolved on 31.12.1982 w.e.f. 01.01.1983 and 4

separate Partnership Firms were formed. Nav Bharat at Nagpur came to

partnership formed by name "Navbharat (Nagpur)". Nav Bharat, being

published from Raipur, went to the Firm "Navbharat (Raipur)". Similarly,

Newspaper establishment at Jabalpur, Indore and Bhopal went to "Navbharat

(Jabalpur)", "Navbharat (Indore)" and "Navbharat (Bhopal)". He points out

that in proceedings filed before the Industrial Court, effort of respondent no.1

was to club all these distinct establishments together, and the establishment at

Raipur, Jabalpur or Bhopal were not party respondent.

5. During arguments, he also produced before the Court registration

Judgment lpa458.10

details of each newspapers with a view to demonstrate separate registration

numbers thereof. He fairly stated that these details and certificates are not

part of record and were not produced before the Industrial Court or before the

learned Single Judge.

6. Because the same are produced, without prejudice and objection

of Shri Thakur, learned counsel appearing for respondent no.2, only to keep

the records correct we mention them as "Produce 1 to Produce 5". It is

obvious that documents cannot be looked into by this Court at this stage.

7. Shri Salunke, learned Counsel appearing for the appellant

however, submits that the grievance in relation to right of employer to

organize and rationalize his business and absence of statutory need to issue

notice under Section 9A of the Industrial Disputes Act, 1947 therefor, is again

overlooked by the Industrial Court, as also by the learned Single Judge. He

submits that Schedule appended to Working Journalists Act has been brought

into force for the first time on 28.08.1989 and, hence, reliance upon it is

erroneous.

Judgment lpa458.10

8. With the assistance of learned counsel, we have perused both the

judgments.

9. Shri S.D. Thakur, learned counsel for the respondent no.2 at the

threshold pointed out that Palekar Award of which respondent no.2 Trade

Union sought benefit has come into force on 15.10.1979. Relevant years for

which benefit was sought were 1980, 1981 and 1982. Gross average revenue

of newspaper establishment as on 31.12.1982 had already exceeded Rs. 2

Crores, and therefore, it needed to be placed in Clause 2 of the Palekar Award.

Thus, dispute raised pertains to period prior to coming into force of

dissolution of partnership and hence, alleged reorganization or rationalization

has no bearing on the present controversy. He has also invited our attention

to Clause 10 (b) of the Dissolution Deed to urge that terms and conditions of

service applicable to workmen - members of respondent no.2 were not to be

adversely affected and to continue as they were on 31.12.1982. He submits

that thus, only effort in reference is to point out service conditions prevailing

as on 31.12.1982. He adds that in such a situation, subsequent division of one

newspaper establishment into 4 or 5 different establishment w.e.f. 01.01.1983

has got no relevance.

Judgment lpa458.10

10. Lastly he points out that though schedule to Working Journalists

Act may have come into force on 28.08.1989, the amendment enables any

employee to point out the position prevailing and hence, advantage thereof

enures to the benefit of respondent no.2. He therefore, submits that there is

no jurisdictional error or perversity and judgment of learned Single Judge

needs to be maintained.

11. Perusal of the Working Journalists Act, 1958 shows that it defines

Newspaper Establishment in Section 2[d] to mean - an establishment under

control of any person or a body of persons who are incorporated or not. Facts

above show an undisputed position that as on 31.12.1982, the newspaper

establishment alleged to be separated from 01.01.1983, were under common

control and ownership.

12. The Schedule appended to the Act and forming part of Section

2[d], has come into force on 28.08.1989. As per the first clause therein, two

or more newspaper establishments under common control are deemed to be

one newspaper establishment. Under sub-clause [3], two or more newspaper

Judgment lpa458.10

establishments to publishing newspaper bearing the same or similar title and

in same language in any place in India, or bearing the same or similar title

but, in different languages in the same city or union territory, are to be

deemed to be one newspaper establishment.

13. Facts pointed out by Shri Salunke, learned counsel for petitioner

show that newspaper Navbharat is being published in Hindi, simultaneously

from Nagpur, Raipur, Jabalpur, Bhopal and Indore. Earlier it was having only

one name i.e. Navbharat. After division, a word signifying city from which it

is being published has been added to its title. This therefore, shows that as on

31.12.1982, there was one owner and even thereafter i.e. even in 1989, when

this position was prevailing, all 5 establishments needed to be clubbed

together and taken as one newspaper establishment. The discussion shows

that such a plea was/is available to respondent no.2 even after coming into

force of Schedule on 28.08.1989. As such, there is no question of

retrospective operation of the amendment.

14. Here, terms and conditions in dissolution of partnership are

mentioned by the learned Single Judge as also by the learned Member of

Industrial Court. Clauses 10 and 10(b) therein read as under :

Judgment lpa458.10

"10. As regards the workmen employed by the dissolved firm of Nav Bharat Press, it is agreed that the workmen attached to be various business which are vested in the parties hereto by virtue of this deed of dissolution shall continue to be employed by them in their respective business subject to the following conditions :

                 (a)      ....
                 (b)      The terms and conditions of service applicable  

to workmen shall not be in any way less favourable than those applicable to them before 31.12.1982, and ..

(c) ..."

15. Clause 10(b) unequivocally demonstrates that inspite of

dissolution, terms and conditions of service applicable to workmen cannot be

in any way altered to thir prejudice and cannot be less favourable than those

applicable to them before 31.12.1982.

16. The gross revenue of the newspaper establishment on 31.12.1982

is admittedly above Rs. 2 Crores. There is no challenge to finding of fact

reached by the Industrial Court and accepted by the learned Single Judge. As

Judgment lpa458.10

per Chapter II of Palekar Award which has come into force on 15.10.1979, this

establishment therefore is falling in Clause 2, which covers slab of Rs. 2

Crores and above, but, less than Rs. 4 Crores. This placement in Clause 2

w.e.f. 01.01.1983, is therefore automatic. Facts applicable before division of

common ownership into four partnerships show that on 31.12.1982, the

service conditions flowing from the placement in Clause 2 were available and

are attracted and govern members of respondent no.2 Trade Union.

17. The appellant has accepted to extend those service conditions

because of clause 10[b] supra. Hence, the contention that units/partnerships

at other 4 places ought to have been joined as party respondent to the

Reference Proceedings is erroneous and misconceived.

18. We therefore, do not see any jurisdictional error or perversity. No

case is made out warranting interference in Letters Patent Appeal. The same

is accordingly dismissed. No costs.

                          JUDGE                             JUDGE

Rgd.