Bombay High Court
Michael David And Others vs All India Reporter Pvt. Ltd. Thr. Its ... on 12 April, 2016
Author: Prasanna B. Varale
Bench: Prasanna B. Varale
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
: NAGPUR BENCH : NAGPUR.
WRIT PETITION NO. 5814 OF 2015
PETITIONERS : 1] Michael David, aged Major, Occu. Nil.
2] Cyril Fransis, aged Major, Occu. Nil.
3] D. G. Deauskar, aged Major, Occu. Nil.
4] Y. K. Khandare, aged Major, Occu. Nil.
ig 5] B. P. Surjuse, aged Major, Occu. Nil.
6] V. G. Shukla, aged Major, Occu. Nil.
7] A. S. Naidu, aged Major, Occu. Nil.
8] Desmond Grand, aged Major, Occu. Nil.
9] V. P. Badokar, aged Major, Occu. Nil.
10] T. A. Nagrikar, aged Major, Occu. Nil.
11] B. S. Naidu, aged Major, Occu. Nil.
12] G. S. Dekate, aged Major, Occu. Nil.
13] R. S. Meshram, aged Major, Occu. Nil.
14] Panjabrao Dhangre, (dead)
15] L. R. Shelokar, aged Major, Occu. Nil.
16] K. P. Khandare, aged Major, Occu. Nil.
17] A. E. Gangane, aged Major, Occu. Nil.
18] Y. P. Tembhekar, aged Major, Occu. Nil.
19] N. A. Walde, aged Major, Occu. Nil.
20] S. M. Kadu, aged Major, Occu. Nil.
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21] D. Z. Dandre, aged Major, Occu. Nil.
22] B. S. Wankhede (Dead),
23] R. D. Shende, aged Major, Occu. Nil.
24] S. M. Kawadkar, aged Major, Occu. Nil.
25] B. P. Bhagat, aged Major, Occu. Nil.
26] Ashok Kirat, aged Major, Occu. Nil.
27] Raju Pandurang Thomas (Dead)
28] Kiran Walde, aged Major, Occu. Nil.
29] Raju Jayatgude, aged Major, Occu. Nil.
All C/o Ishwardas Chintaman Tembhurne,
R/o Plot NO. 571, Model Town, Indora,
P.O. Jaripatka, Nagpur - 24.
- VERSUS -
RESPONDENTS : 1] All India Reporter Pvt. Ltd.,
Congress Nagar, Dhantoli, Nagpur,
through its Director
2] A.I.R. Engineering Co. Pvt. Ltd.,
Regd. Office at AIR Building,
Congress Nagar, Dhantoli, Nagpur
through its Managing Director.
3] Papyrus Printing and Packaging Products
(PPPP), C-46, MIDC, Hingna Road,
Nagpur
-------------------------------------------------------------
Mr. N. S. Warulkar, Advocate for the petitioner.
Mr. H. V. Thakur and N.H. Joshi, Advocates for the respondent nos.1 and 3
Mr. V. R. Thakur and Y. V. Dharashivkar, Advocates for respondent no.2
------------------------------------------------------------
CORAM : PRASANNA B. VARALE, J.
DATE : APRIL 12, 2016.
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ORAL JUDGMENT
Rule. Rule made returnable forthwith. The petition is taken up for final disposal at the stage of admission with the consent of the learned counsel for the parties.
2] By the present petition, the petitioners challenge the order passed by the learned Member, Industrial Court, Nagpur, dated 19.09.2015 in Reference IDA No. 09/2004, thereby rejecting the application (Exh.95) filed by the petitioners seeking amendment.
3] The petitioners claim to be the workmen engaged by the respondent no.2, who is alleged to be the unit of the respondent no.1.
Before the Conciliation Officer under Industrial Disputes Act, 1947, Nagpur, a dispute was submitted by the petitioners i.e. party no.2, alleging that the respondent nos.1 and 2 i.e. party no.1, without there being any cause and reason, suddenly closed down the unit situated at C-46, MIDC, Hingna Road, Nagpur. While effecting closure, the mandatory provisions of Sections 25-FFA and 25-FFF of the Industrial Disputes Act, 1947 (hereinafter referred to as "the Act of 1947" for the sake of brevity) were not followed. The respondents resisted the submissions, stating that the respondent nos.1 and 2 are two different ::: Uploaded on - 22/04/2016 ::: Downloaded on - 29/07/2016 21:59:43 ::: 4 WP5814.15.odt and distinct companies and they are separately registered under the Companies Act, 1956. The Board of Directors are also different. It was submitted that the respondent no.3 - M/s Papyrus Printing and Packaging Products is a separate factory registered under the Factories Act, having no concern with the respondent no.2. The Conciliation Officer, with failure report, submitted the matter to the Additional Labour Commissioner. By the order, dated 21.10.2004, the Additional Commissioner of Labour framed the Schedule, which reads that "All the 40 workers should be reinstated w.e.f. 28.06.2004 with backwages for the days of closing down.". Immediately on 25.10.2004, by the Corrigendum, the Schedule dated 21.10.2004 was re-framed. The petitioners herein by submitting Statement of Claim, approached the Industrial Court by filing Reference IDA No. 09/2004. The respondent nos.1 and 2 herein submitted their written statement. It seems that there was earlier round of litigation before this Court at the instance of the respondent no.2. In challenge to the orders in reference, dated 21.10.2004 and 25.10.2004, the petitioners, by presenting an application for amendment, submitted that the party no.1 and 1-A company are one and the same , though under different identity. It was the submission in the amendment application that the party no.1 Company is the holding company of party no.1-A company as the party ::: Uploaded on - 22/04/2016 ::: Downloaded on - 29/07/2016 21:59:43 ::: 5 WP5814.15.odt no.1 company has total control over the affairs of party No.1-A company. In short, the submission was in the nature of functional integrity between the respondent respondent nos.1 and 2 companies.
The application was opposed by the petitioners/party no.2. In addition to the denial of claim of functional integrity between the companies, it was submitted that the reference is now at the stage of recording the evidence and the petitioners are trying to enlarge the scope of reference and protracting the proceedings. The learned Member, Industrial Court, in its detailed order by referring to the submissions advanced by the parties and the judgments relied on by them in support of their submissions, held that the issue raised by the petitioners is beyond the scope of reference. The Industrial Court further observed that the petitioners i.e. party no.2 have adduced the evidence by filing affidavits.
The witnesses were examined and cross-examined by the party no.1-A. The Industrial Court, thus, finding no favour, rejected the application for amendment by observing that the matter is pending since last more than 11 years and as such called the parties to proceed with the matter on day to day basis.
4] The learned counsel for the petitioners vehemently submitted that the Industrial Court has erroneously observed that the ::: Uploaded on - 22/04/2016 ::: Downloaded on - 29/07/2016 21:59:43 ::: 6 WP5814.15.odt issue of the functional integrity is raised at a later stage and the same is beyond the scope of reference. The learned counsel further submitted that in the statement of claim itself it was submitted that the party no.1 company had engaged 20 workmen and 8 workmen were engaged in M/s Papyrus Printing and Packaging Products, which is a unit of party no.1. The learned counsel further submitted that it was a specific claim of the petitioners that party no.1-A is a unit of party no.1 and party nos.1 and 1-A i.e. respondent nos.1 and 2 before this Court, have effected closure of the unit without following the mandatory provisions of Sections 25FFA and 25FFF of the Act of 1947. The respondents denied the claim of the petitioners and as such, the Industrial Court ought to have granted an opportunity to the petitioners to lead evidence in support of the ground raised in respect of functional integrity.
Instead of granting opportunity to the petitioners to lead evidence by allowing the amendment application, the Industrial Court, rejected the application by adopting the mechanical approach. The learned counsel submitted that the delay in proceedings is not caused due to the act of the petitioners, but as because there were round of litigation which reached to this Court as well as the Apex Court. In support of his submission that the Industrial Court ought to have permitted the petitioners to lead evidence and ought to have decided the issue even ::: Uploaded on - 22/04/2016 ::: Downloaded on - 29/07/2016 21:59:43 ::: 7 WP5814.15.odt though it was not pleaded by the petitioners, the learned counsel for the petitioners placed reliance on the judgments of this Court reported in 1991 LAB. I.C. 1653 in the case of Bombay Mothers & Children's Society .vs. General Labour Union (Red Flag) and another and 1999(2) Mh.L.J. 106 in the case of Modern Foundry and Machine Works Ltd. .vs. State of Maharashtra and others.
5] Per contra, Mr. Thakur, the learned counsel for the respondent nos.1 and 3 supports the order passed by the Industrial Court. It is the submission of the learned counsel for the respondent no.1 that the respondent no.1 - All India Reporters Pvt. Ltd. has been declared as newspaper establishment by the result of a proceeding decided by the Hon'ble Supreme Court. He submitted that for the employees of the respondent no.1, the provisions of Working Journalists and Other Newspaper Employees (Conditions of Service) and Miscellaneous Provisions Act, 1955 are applicable. He further submitted that in view of the judgment of the Hon'ble Apex Court, the Wage Boards were constituted and in view of various Awards such as Bachhawat Award and Palekar Award, the benefits of wage fixation or wage revision are being granted to the journalists and they are applicable to the employees of the respondent no.1. He further ::: Uploaded on - 22/04/2016 ::: Downloaded on - 29/07/2016 21:59:43 ::: 8 WP5814.15.odt submitted that the respondent no.2 has a different and distinct entity.
He further submitted that a specific stand was taken before the Conciliation Officer that the respondent nos.1 and 2 are two different and distinct companies operating in different fields and provisions of different Acts are applicable to them. The learned counsel further submitted that the conditions of services of the respondent no.2 company are governed by the Bombay Industrial Relations Act, 1946.
He further submitted that an attempt was made by the petitioner-
employees to club the employees of the respondent no.1 and 2, though these companies are different and distinct. He submitted that a specific stand was taken and it was submitted that there is no functional integrity between two establishments i.e. respondent nos.1 and 2. He further submitted that the respondent no.3 - M/s Papyrus Printing and packaging Products is a factory under the Factories Act having no concern with either respondent no.1 or respondent no.2. The learned counsel submitted that a complaint was also filed before the Labour Court and the simultaneous proceeding before the Labour Court are pending. It is the submission of the learned counsel that due to loss caused to the respondent no.2, the respondent no.2 decided to close down the industry w.e.f. 28.06.2004 and accordingly, an intimation was served to various authorities. The learned counsel submitted that the ::: Uploaded on - 22/04/2016 ::: Downloaded on - 29/07/2016 21:59:43 ::: 9 WP5814.15.odt Conciliation Officer submitted failure report and by order dated 21.10.2004, the Schedule was framed and on finding that the Schedule was ambiguous and erroneous, a corrigendum was issued.
6] Mr.Thakur, the learned counsel further submitted that by the amendment application, the petitioners intend to enlarge the scope of the reference and the same being not permissible, the application is rightly rejected. The learned counsel submitted that while it was for the Labour Commissioner to frame reference, the petitioners themselves have settled and framed the issues in the statement of claim. The learned counsel then invited my attention to the provisions of Sections 25FFA and 25FFF as well Section 33 of the Act of 1947. It is submitted that on the backdrop of the grounds raised by the petitioners in the amendment application and by giving valid reasons, the application is rejected and now the matter is at the stage of examination of the witnesses. The proceedings are pending before the Industrial Court for a considerable long period and any interference in the order passed by the Industrial Court would lead to protracting the proceedings and the same being unwarranted, the learned counsel submits that the petition be dismissed.
::: Uploaded on - 22/04/2016 ::: Downloaded on - 29/07/2016 21:59:43 :::10 WP5814.15.odt 7] Mr. Thakur, the learned counsel placed reliance on the following judgments :
1] (2015) 1 SCC 71 Oshiar Prasad .vs. Employees in relation to Management of Sudamdih Coal Washery 2] AIR 1968 SC 585 Management of Bangalore Woollen, Cotton & Silk Mills Co. Ltd. .vs. Workmen and another.
4] (1961) 2 LLJ 660 Gujrat Engineering Co. .vs. Ahmedabad Misc. Indistrial Workers' Union.
5] (1965) 2 LLJ 433 Workmen of M/s British India Corporation Ltd. .vs. British India Corporation Ltd.
6] AIR 1960 SC 818 U.P. Eletric Supply Co.Ltd. .vs. Workmen of M/s S.M. Choudhary 7] 2009 I LLJ 558 (SC) Regional Provident Fund Commissioner and others .vs. ABS Spinning Orissa Ltd and another.
8] 2013 (6) Mh.L.J. 460 Voltas Ltd. .vs. State of Maharashtra and others.
8] Heard the learned counsel for the parties at length. On a perusal of the material, I find considerable merit in the submissions of Mr. Thakur, the learned counsel for the respondents. Perusal of the ::: Uploaded on - 22/04/2016 ::: Downloaded on - 29/07/2016 21:59:43 ::: 11 WP5814.15.odt reference framed in the corrigendum, issued on 25.10.2004 and perusal of the application seeking amendment, show that the petitioners are in an attempt to enlarge the scope of reference. It was the submission of the learned counsel that the Tribunal cannot expand the scope of reference and it must confine its adjudication to the points of dispute referred and matters incidental thereto. It will be useful to refer to the observation of the Hon'ble Apex Court in the case of Oshiar Prasad .vs. Employees in relation to Management of Sudamdih Coal Washery (supra), which reads thus -
"19. ...........
9. From the above it therefore appears that while it is open to the appropriate Government to refer the dispute or any matter appearing to be connected therewith for adjudication, the Tribunal must confine its adjudication to those points of dispute referred and matters incidental thereto. In other words, the Tribunal is not free to enlarge the scope of the dispute referred to it but must confine its attention to the points specifically mentioned and anything which is incidental thereto. The word 'incidental' means according to Webster's New Word Dictionary :
'happening or likely to happen as a result of or in connection with something more important; being an incident; casual; hence, secondary or minor, but usually associated;' ::: Uploaded on - 22/04/2016 ::: Downloaded on - 29/07/2016 21:59:44 :::
12 WP5814.15.odt 'Something incidental to a dispute' must therefore mean something happening as a result of or in connection with the dispute or associated with the dispute. The dispute is the fundamental thing while something incidental thereto is an adjunct to it. Something incidental, therefore, cannot cut at the root of the main thing to which it is an adjunct [to it]."
22. It is thus clear that the appropriate Government is empowered to make a reference under Section 10 of the Act only when "industrial dispute exists" or "is apprehended between the parties". Similarly, it is also clear that the Tribunal while answering the reference has to confine its inquiry to the question(s) referred and has no jurisdiction to travel beyond the question(s) or/and the terms of the reference while answering the reference. A fortiori, no inquiry can be made on those questions, which are not specifically referred to the Tribunal while answering the reference."
9] It will also be useful to refer to the observations of the Hon'ble Apex Court in the case of Workmen of M/s British India Corpn. .vs. British India Corpn. (supra) at paragraph 2, which reads thus :
"2. Taking first the question of amalgamation of dearness allowance with wages, the tribunal held that this question had not been referred to it. We have already set ::: Uploaded on - 22/04/2016 ::: Downloaded on - 29/07/2016 21:59:44 ::: 13 WP5814.15.odt out the term of reference, and it is obvious that there is no express reference in that term to the amalgamation of dearness allowance with wages. It is, however, urged on behalf of the appellants that this question arises incidentally out of the matter under reference and should have been dealt with by the tribunal, particularly as dearness allowance is part of wages, though the two have been treated separately for various reasons. It is true in a sense dearness allowance is a part of wages; but we are of opinion that the question of amalgamation of dearness allowance with basic wages raises specific and distinct issues some of which may be of far-reaching effect in the region to which this industry belongs and such a question cannot be considered as a mere incidental matter arising out of the reference as to increase in wages. Increase in wages is a very different matter and such an increase would not necessarily comprise even incidentally the question of amalgamation of dearness allowance with basic wages. We agree with the tribunal that if it was the intention of Government that the matter of amalgamation of dearness allowance and basic wages should be considered by the tribunal, there should have been a specific term in the reference to that effect. In the absence of such a term, it was not possible for the tribunal to consider this question and thus make a radical change in the pattern of wages prevalent in the region as if by a side- wind. We therefore reject the contention of the appellants in this behalf."::: Uploaded on - 22/04/2016 ::: Downloaded on - 29/07/2016 21:59:44 :::
14 WP5814.15.odt 10] It will be useful to refer to the observations of this Court in the case of Voltas Ltd. .vs. State of Maharashtra and others (supra) at paragraph 11, which reads thus :
"11. It is settled position in law that the terms of reference are never to be construed pedantically. The order making a reference has to be read along with pleadings of the parties and other circumstances with a view to cull out therefrom, the various points about which the parties are at variance leading to the dispute and to determine the real nature of the dispute. The parties are to be offered an opportunity before the Industrial Tribunal to file their statements of claim and response. As long as the parties do not travel way beyond the terms of the reference, the Tribunal would be well within its jurisdiction in adjudicating the dispute between the parties."
11] There is merit in the submission of Mr. Thakur, the learned counsel for the respondent no.2 that the petitioners cannot establish the aspect of functional integrity between the respondent nos.1 and 2 only on a reference made to Sections 25FFA and 25FFF. He submitted that as the important words of the provisions are "an undertaking", it would necessary to read the provisions along with Section 2(ka) of the Act of 1947. The said provision read thus :
::: Uploaded on - 22/04/2016 ::: Downloaded on - 29/07/2016 21:59:44 :::15 WP5814.15.odt "2ka. Industrial establishment or undertaking" means an establishment or undertaking in which any industry is carried on :
(a) .........
(b) If the predominant activity or each of the
predominant activities carried on in such establishment or undertaking or any unit thereof is an industry and the other activity or each of the other activities carried on in such establishment or undertaking or unit thereof is not severable from and is for the purpose of carrying on, or aiding the carrying on of, such predominant activity or activities, the entire establishment or undertaking or, as the case may be unit thereof shall be deemed to be an industrial establishment or undertaking ;"
It was the submitted by the learned counsel for the respondent no.2 that nothing is placed on record to comply the requirement of Section 2ka(b). The learned counsel submitted that on the contrary, it is the case of the respondents that the respondent nos.1 and 2 are two different and distinct companies registered under the Companies Act.
The activities of these two companies are severable from each other.
12] Though, it was the submission of the learned counsel for the petitioners that the issue raised by the petitioners about the ::: Uploaded on - 22/04/2016 ::: Downloaded on - 29/07/2016 21:59:44 :::
16 WP5814.15.odt functional integrity was left open by the judgment and order of this Court in Writ Petition No. 1972/2005 and the Industrial Court ought to have allowed the application and permitted the petitioners to lead the evidence so as to decide the issue of functional integrity, I am unable to accept the submission of the learned counsel for the petitioners, for the reason that by way of amendment application, the petitioners are trying to enlarge the scope of reference and the same cannot be permitted in the facts and circumstances referred to above.
13] Considering the above referred facts, in my opinion, the order passed by the learned Member, Industrial Court, Nagpur impugned in this petition need no interference. The petition thus being meritless deserves to be dismissed and the same is accordingly dismissed.
Rule is discharged. No costs.
JUDGE Diwale ::: Uploaded on - 22/04/2016 ::: Downloaded on - 29/07/2016 21:59:44 :::