BALLUBHAI JAVERBHAI PANCHAL Vs. SANDESH LIMITED

JUDGEMENT

(1.) THE petitioner Ballubhai Javerbhai Panchal impugns the order dated 16. 11. 1995 passed by the Industrial Court, Maharashtra at Bombay in Reference (II) No. 479 of 1982 whereby the said Industrial Court rejected the reference.

(2.) IN the reference made by the Government of Maharashtra under Section 10 of the Industrial Disputes Act, 1947 the industrial dispute referred for adjudication between the parties was whether Shri Ballubhai J. Panchal should be reinstated with full back wages and continuity of service with effect from 8. 3. 1965.

(3.) THE said industrial dispute arises from the facts which are narrated briefly herein. According to the petitioner he was appointed on 31. 12. 1958 by respondent no. 1 as news photographer vide appointment order of the even date effective from 15. 1. 1959. The Petitioner was appointed for Cine Weekly "chitrajyot" published by respondent no. 1 on monthly remuneration of Rs. 100/including all allowances. According to the order dated 31. 12. 1958 besides the above amount, the petitioner was to be given Rs. 5/- for each photographs sent by the petitioner and published by respondent no. 1 "chitrajyot". The petitioner was to send the respondent no. 1 exclusive news and special features and he was not allowed to work for any other paper of Ahmedabad. The petitioner claims that his work was found highly satisfactory by the respondent no. 1 would accept for publication photographs from the petitioner of the minimum value of Rs. 300/- per month and that the petitioner would be paid a sum of Rs. 400/- per month on an average including monthly salary of Rs. 100/ -. He was sending photographs of various film functions, film actors and actresses and events that took place at various shooting locations. He also used to forward the respondent no. 1 various news items pertaining to film industry and special features in that regard. The petitioner claims that he was a working journalist as defined under the Working Journalists (Condition of Service) and Miscellaneous Provisions Act, 1955 (for short "the Act of 1955" ). In or about November 1964, there was an exchange between the petitioner and the Chairman of respondent no. 1 over his demand for increasing his salary. By the letter dated 26. 11. 1964 the 1st respondent informed the petitioner to discontinue the arrangement of the petitioner sending the 1st respondent various news items at Ahmedabad and only the arrangement of sending photograph was to continue. This act of the respondent no. 1 according to the petitioner, was an act of victimization for raising a demand for increase in salary. On 8. 3. 1965, the respondent no. 1 informed the petitioner that he should not send the photographs and the arrangement with the petitioner was terminated. The petitioner raised the grievance by sending the notice through his Advocate on 24. 5. 1965 to the respondent no. 1 to which reply was received by the petitioner whereby the respondent no. 1 denied the claim of the petitioner. After receipt of the reply in the month of June 1965, the petitioner filed a Civil suit in the Court of Bombay City Civil Court, Mumbai, inter alia, challenging his termination as illegal, void and of on effect and also for recovery of salary, travelling allowance and charges for photographs. The respondent no. 1 raised the objection of jurisdiction of Civil Court to decide and try the issues raised by the petitioner in the suit and the Bombay City Civil Court by the order dated 28. 2. 1978 dismissed the suit on the ground that it had no jurisdiction in the matter. It appears that the petitioner filed a complaint on 23. 3. 78 before the Government Labour Officer and invoked the machinery under Industrial Disputes Act, 1947. The matter was taken up in conciliation but that failed and failure report was submitted. The State Government however, on 24. 4. 1979 refused to refer the dispute raised by the petitioner for adjudication to the Industrial Tribunal. The Petitioner challenged the action of the State Government in refusing to refer the dispute for adjudication by filing the writ petitioner before this Court. This Court on 25. 6. 1979 allowed the writ petition, set aside the order dated 24. 4. 79 passed by the State Government and directed the State Government to make the reference of this industrial dispute raised by the petitioner. In view of the directions given by this Court, the State Government referred the dispute of the petitioner seeking reinstatement with full back wages to the Industrial Tribunal. The petitioner filed a statement of claim to which written statement was filed by Respondent No. 1. The petitioner filed his affidavit accompanying by number of documents. He was cross-examined on behalf of respondent No. 1 Shri K. C. Shah and P. G. Joshi were examined as witnesses on behalf of the respondent no. 1. As observed above, the Industrial Court by the impugned award dated 16. 11. 1995, rejected the reference on the ground that the petitioner has failed to establish the relationship of employer and employee with respondent no. 1.