ARUN Vs. MEMBER INDUSTRIAL COURT

JUDGEMENT

(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 28-1A 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".

(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 28-1A 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 Borosil Glass Works Ltd. Employees Union vs. D. D. Bambode and others, 2001 1 SCC 350 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 anywhere. 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 S. K. Maini vs. M/s Carona Sahu Company Ltd., 1994 3 SCC 510 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 28-1A 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.