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2011 (3) ALL MR 213
In the High Court of Bombay at Nagpur
B.P. DHARMADHIKARI
Arun & Others
Versus
Member, Industrial Court & Others
WRIT PETITION No. 435 OF 1995
Decided on : 21-12-2010
Trade Unions Act, 1926 - Section 28(1-A)-Working Journalists and other Newspaper Employees (Conditions of Service and Miscellaneous Provisions) Act, 1955, Section 2-Reference-Consent certificate of Registrar-Proof of Official seal of Registrar not found on certificate-Contents thereof also not proved-Industrial Court admitted said certificate in evidence-Erroneous-Indus-trial Court cannot exercise reference jurisdiction.-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 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.
Working Journalists and other Newspaper Employees (Conditions of Service) and Miscellaneous Provisions Act, 1955 - Section 2(dd)-Working Journalist-Status of-Determination of-Petitioner, appointed as clerk-Claimed to have worked as "Librarian"-Status of ’Librarian’ declined to him-Witness produced by petitioner in support of his contention ignored-Official letters, addressing petitioner as librarian not given consideration-Fact that petitioner enrolled as a Member of Working Journalists Trade Union on account of nature of his work also overlooked-Improper exercise-All such materials cannot be discarded-Decisive test is nature of work and not appointment letter. 1994 (3) SCC 510-Relied on.-The petitioner claimed that he was working as Librarian from beginning and he filed several documents i.e. 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. Nature of his working was then considered and therefore, he was enrolled. This evidence therefore against 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.
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. 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 L
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