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2010 DIGILAW 1798 (BOM)

Arun v. Member, Industrial Court

2010-12-21

B.P.DHARMADHIKARI

body2010
JUDGMENT : 1. 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 281[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 nonapplicant 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 281 [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. 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. 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 281[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[1A] 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. 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 281[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, Copytester, 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 281[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 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 281[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 nonapplicants 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 interse 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 281[A] confers jurisdiction on Court because of that consent certificate. The apparent incongruity in thought process shows total non application of mind. 10. Section 281[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 281[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 281[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 281[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 281[A] and the Industrial Court has also not decided it. The Industrial Court therefore, was required to find out whether, nonapplicant 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. The Industrial Court therefore, was required to find out whether, nonapplicant 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 281[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 281[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 281A, it would always be open to such persons to approach a civil court for resolution of their dispute.” These observations unequivocally 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 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 subsection [1] of section 281[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 subsection [1A] 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 nonapplication 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. 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 inrelation 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 Incharge 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. 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.