# M/S Jagran Prakashan Ltd. & Anr v. Presiding Officer, Labour Court, U.P. Allahabad & Ors

- **Citation:** (2020) 9 ILRA 668
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-08-04
- **Case number:** WRIT - C No. 37024 of 2012
- **Bench:** J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/m-s-jagran-prakashan-ltd-anr-v-presiding-officer-labour-court-u-p-allahabad-ors-46068
- **Pages:** 31

## Headnote

(A) Labour Law - Uttar Pradesh Industrial
Disputes Act, 1947 (State Act) - Section 4-K
- reference - Section 3 - Industrial Disputes
Act (central Act) - Section 25-O , Section 25N - Labour Court is a Court of referred
jurisdiction - Working Journalists Act -
Section3 - Sections 14, Section 15 - statute
brought ''to regulate certain conditions of
service of working journalists and other
persons
employed
in
newspaper
establishments' - Labour Court - rightly
concluded
-
closure
pleaded
by
the
employers is no closure, but a sham to get
rid of the workman - retrenchment has been
held to be unlawful and in breach of Section
25-N of the Central Act - retrenchment has
been held neither to be lawful or justified -
no infirmity with the award impugned. (Para52,54)

Petitioner(employer) - newspaper establishment
- appointment - harness of the employers -
terminated service of his workman working as a
'junior plate maker' - reason assigned for
dispensation of his services - installation of a
C.T.P. Machine, which the workman castigates
as improper, wrong and a colourable exercise of
powers -Labour Court - Award - answered the
reference in favour of the workman and against
the employers - holding the termination of
service of the workman invalid - ordering his
reinstatement with continuity. (Para-2,10)

HELD:- In the totality of circumstances,
particularly, the fact that the workman has not
after all rendered service during the entire
period of time until his superannuation, though
not on account of his fault, ends of justice
would be met by modifying the award impugned
to provide that the workman shall be entitled to
receive in full satisfaction of all his claims, a
lump sum of Rs.6 lakhs from the employers
within two months of date. workman would be
entitled to simple interest @ 6% per annum till
realization if not paid within stipulated time.
workman shall be entitled to receive in costs
from the employers a sum of Rs.20,000/-
.(Para-56)
9 All. M/S Jagran Prakashan Ltd. & Anr. Vs. Presiding Officer, Labour Court, U.P. Aallahabad & Ors. 669
Petition partly allowed. (E-7)

List of Cases cited:-

## Text

_Characters 0–39,857 of 108,705. This is a partial read: ask again with offset=39857 for what follows._

668 INDIAN LAW REPORTS ALLAHABAD SERIES
which the amount shall be recovered as
arrears of land revenue from the said
Respondent
No.2
by
the
concerned
collector and shall be paid to the petitioner.

39. The petitioner shall serve certified
copy of this judgment on respondent No.2
as well as the Collector of the concerned
District.

40. So far as the prayer Nos. (c), (d)
and (e) in the writ petition are concerned,
we leave it open to the petitioner, if he
chooses, to approach appropriate forum in
appropriate proceedings.

41. We make it clear that we have not
expressed any opinion on merits on the
matter in issue, i.e., whether the petitioner
is or is not eligible for grant of scholarship
under the scholarship scheme on the
criterion of income.

42. The writ petition is allowed with
costs as aforesaid.
----------
(2020)09ILR A668
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 04.08.2020

BEFORE

THE HON'BLE J.J. MUNIR, J.

WRIT - C No. 37024 of 2012

M/S Jagran Prakashan Ltd. & Anr.
 ...Petitioners
Versus
Presiding
Officer,
Labour
Court,
U.P.
Allahabad & Ors. ...Respondents

Counsel for the Petitioners:
Sri Chandra Bhan Gupta

Counsel for the Respondents:
C.S.C., Ms. Bushra Maryam, Sri M.K.
Sharma, Sri Manoj Kumar, Sri Namit Kumar
Sharma

(A) Labour Law - Uttar Pradesh Industrial
Disputes Act, 1947 (State Act) - Section 4-K
- reference - Section 3 - Industrial Disputes
Act (central Act) - Section 25-O , Section 25N - Labour Court is a Court of referred
jurisdiction - Working Journalists Act -
Section3 - Sections 14, Section 15 - statute
brought ''to regulate certain conditions of
service of working journalists and other
persons
employed
in
newspaper
establishments' - Labour Court - rightly
concluded
-
closure
pleaded
by
the
employers is no closure, but a sham to get
rid of the workman - retrenchment has been
held to be unlawful and in breach of Section
25-N of the Central Act - retrenchment has
been held neither to be lawful or justified -
no infirmity with the award impugned. (Para52,54)

Petitioner(employer) - newspaper establishment
- appointment - harness of the employers -
terminated service of his workman working as a
'junior plate maker' - reason assigned for
dispensation of his services - installation of a
C.T.P. Machine, which the workman castigates
as improper, wrong and a colourable exercise of
powers -Labour Court - Award - answered the
reference in favour of the workman and against
the employers - holding the termination of
service of the workman invalid - ordering his
reinstatement with continuity. (Para-2,10)

HELD:- In the totality of circumstances,
particularly, the fact that the workman has not
after all rendered service during the entire
period of time until his superannuation, though
not on account of his fault, ends of justice
would be met by modifying the award impugned
to provide that the workman shall be entitled to
receive in full satisfaction of all his claims, a
lump sum of Rs.6 lakhs from the employers
within two months of date. workman would be
entitled to simple interest @ 6% per annum till
realization if not paid within stipulated time.
workman shall be entitled to receive in costs
from the employers a sum of Rs.20,000/-
.(Para-56)
9 All. M/S Jagran Prakashan Ltd. & Anr. Vs. Presiding Officer, Labour Court, U.P. Aallahabad & Ors. 669
Petition partly allowed. (E-7)

List of Cases cited:-

1. British India Corporation Vs Collector, Kanpur
Nagar & ors., 2016 (1) ALJ 202

2. SAIL (Sales Branch), Kanpur Vs St. of U.P. &
ors., (2011) 129 FLR 506

3. Mahendra Yadav Vs Om Prakash, 2006 (65)
ALR 560

4. Novartis India, Ltd. Vs St. of W.B. & ors.,
2004 (101) FLR 278.

5. Novartis India Ltd Sadhu Ram Vs Delhi
Transport Corporation, (1983) 4 SCC 156

6. Management of the Daily Pratap Vs Their
Katibs, (1972) 2 SCC 342.

7. Pratap Chandra Mohanti Vs General Manager,
United News of India & anr., 1993 Lab IC 919
M/s.
8. Triveni Glass Ltd. Vs St. of U.P. & ors., (2008)
3 All LJ 420

9. Mohd. Sarwar Vs St. of U.P. & ors., 2013 (6)
AWC 6169

10. Pottery Mazdoor Panchayat Vs The Perfect
Pottery Co. Ltd., (1979) 3 SCC 762

11. Firestone Tyre & Rubber Co. of India (P)
Ltd. Vs The Workmen Employed represented by
Firestone Tyre Employee's Union, (1981) 3 SCC
451

12. Hariprasad Shivshanker Shukla & anr. Vs
A.D. Divelkar & ors., AIR 1956 SC 121

13. H.P. Mineral & Industrial Development Corp.
Employees' Union Vs St. of H.P. & ors., (1996) 7
SCC 139

(Delivered by Hon'ble J.J. Munir, J.)

1. M/s. Jagran Prakashan Limited,
Allahabad and their Establishment at
Varanasi, dissatisfied with an award of the
Presiding Officer, Labour Court, U.P.,
Allahabad, dated 27.01.2012 (published on
11.04.2012), made in Adjudication Case
no.1 of 2009, have instituted this Writ
Petition, challenging the Award. The
Award, last mentioned, has been rendered
in an industrial dispute between M/s.
Jagran
Prakashan
Limited
and
their
workman, Ram Charitra Mishra. The
Adjudication Case is a sequel to a reference
made under Section 4-K of the Uttar
Pradesh Industrial Disputes Act, 1947 (for
short, ''the State Act') by the Labour
Commissioner, U.P., Kanpur (an ex officio
Secretary to the Government) in the
following terms (rendered into English
from Hindi vernacular):

"Whether
the
act
of
the
Employers in terminating the services of
their workman, Sri Ram Charitra Mishra
son of Sri Satya Narain Mishra, ''junior
plate maker', vide order dated 14.11.2006,
with effect from 15.11.2006, is justified
and/ or lawful? If not, to what benefit/
relief is the concerned workman entitled
and in what terms?

2. The petitioners are admittedly a
newspaper establishment, who employ
working
journalists,
non-working
journalists as well as other employees.
According to the case of the second
respondent, Ram Charitra Mishra, the
workman, who shall hereinafter be referred
to as the ''workman', was initially enrolled
as apprentice in petitioners' establishment
w.e.f. 17.07.1989. He trained as an
apprentice in the trade of plate making and
was employed as a semi-skilled workman
in the petitioners' establishment, on the
basis
of
an
oral
engagement
dated
01.11.1989.
The
petitioners
shall
hereinafter
be
referred
to
as
the
''employers'. The workman's case is that
ever since his appointment, he has been in
670 INDIAN LAW REPORTS ALLAHABAD SERIES
harness
of
the
employers,
working
regularly as a plate maker. He has done his
duties honestly and with integrity. He was
served with a letter dated 14.11.2006,
suddenly terminating his services w.e.f.
15.11.2006. The reason assigned for
dispensation of his services was the
installation of a C.T.P. Machine, which the
workman castigates as improper, wrong
and a colourable exercise of powers.

3. It is the workman's further case that
in the publication of a newspaper, process
is a necessary and intermediate stage.
Without processing, there can be no
publication of a newspaper. According to
the workman, the process department has
not been closed down due to installation of
the C.T.P. Machine. The Sub-Editor, the
clerk and the operator, besides other hands,
have been retained in the department after
requisite training. The installation of the
machine has not led to deprivation of
employment to those, who were in the
process department. It is also claimed that
prior to dispensation of the workman's
services, some new hands have been
recruited, but his services have been
dispensed with without bearing in mind his
seniority. He was a permanent workman.
He has never been served with a notice of
closure. At the time when the workman's
services have been dispensed with, more
than 100 workmen were in harness of the
employers.

4. It is the workman's case that
according to Section 25-O of the Industrial
Disputes Act (for short, ''the Central Act'),
it is necessary to secure permission for a
valid
closure
from
the
Appropriate
Government, which in this case, has not
been obtained. It is also pleaded by the
workman that the provisions of Section 25N of the Central Act have been observed in
breach. The order of termination of his
services squarely falls in the category of
retrenchment. It is pleaded that he has not
been served with three months' prior notice
before retrenchment or paid notice pay in
lieu thereof. It is also the workman's case
that no retrenchment compensation has
been paid to him. It is specifically pleaded
that whatever sum of money in connection
with his unlawful retrenchment has been
paid, he has received under protest and
without prejudice. Along side, it is pleaded
that the dispute raised by him is not barred
by estoppel. The order for termination of
his services is unjustified and illegal. He
sought relief of reinstatement in service
with continuity and full back-wages. This
case of the workman is based on the written
statement that he put in before the Labour
Court, after registration of the Adjudication
Case under reference.

5. The employers lodged their written
statement too in the Adjudication Case,
where they admitted the factum of the
workman being in their harness and
dispensation
of
his
services
w.e.f.
15.11.2006. It is pleaded that M/s. Jagran
Prakashan Varanasi Pvt. Ltd. has been
amalgamated with M/s. Jagran Prakashan
Limited. M/s. Jagran Prakashan Limited
have a unit of theirs at 7, P.D. Tandon
Road, Allahabad, that is registered under
the Factories Act, 1948. It is pleaded by the
employers that the provisions of the
Working Journalists and Other Newspaper
Employees (Conditions of Service) and
Miscellaneous Provisions Act, 1955 (for
the short, ''the Working Journalists Act')
govern their establishment, and, they are a
newspaper establishment.

6. It is the employers' further case the
workman was employed as a full time
employee,
working
in
their
process
9 All. M/S Jagran Prakashan Ltd. & Anr. Vs. Presiding Officer, Labour Court, U.P. Aallahabad & Ors. 671
department as a junior plate maker since
01.11.1991. On account of a change over to
the very modern C.T.P. Printing Machine,
their process department has been closed
down. The aforesaid closure of the process
department has resulted in dispensation of
services of a total of seven workmen,
including the workman. Those workmen,
who had knowledge about working of
computers,
have
been
retained
after
extending some elementary training to
them, which enables them to operate the
new machine. It is the employers' further
case that the workman has been paid due
closure compensation, under Section 25FFF of the Central Act. It is also the
employers' case that their establishment, in
all its departments, employ a total of 83
hands. As such, the provisions of Sections
25-O and 25-N of the Central Act are not
applicable. The closure is justified, bona
fide and valid.

7. It is pleaded that a case about
validity of closure has not been referred.
The reference is not maintainable and
illegal. The workman has been paid his
earned wages upto 15th December, 2006,
notice pay, closure compensation and
bonus, all totalling a sum of Rs.72,676/-,
which the workman has received as full and
final payment of his outstandings. He has
no right to challenge closure of the Section/
Department, where he was employed. The
workman is not entitled to any relief.

8. It may be recorded here that before
the Labour Court, both parties filed their
written statements and also rejoinder
statements,
which
constitute
their
pleadings.
Both
parties
filed
their
documentary evidence, besides leading oral
evidence. The workman appeared in
support of his case as WW-1. It must be
remarked here that a subsidiary issue
covered by the reference and, therefore,
examined by the Labour Court, was about
the date of the workman's retention. The
parties appear to be at issue about the date
of
the
workman's
retention
by
the
employers, inasmuch as the workman
claims
that
he
was
retained
w.e.f.
17.07.1989, whereas the employers say that
it was w.e.f. 01.11.1991. This question was
gone into by the Labour Court, on the basis
of documentary evidence and also the law
applicable
to
apprentices
in
an
establishment, who lateron go on to
become regular employees. It appears that
the workman was retained as an apprentice
on 17.07.1989 at the Varanasi Unit of the
employers. He was an apprentice on a
stipend of Rs.650/- per month. This period
of paid apprenticeship was duly considered
by the Labour Court, bearing in mind the
provisions of the Apprentices Act, 1961. It
found that the workman was in the
employers' harness since 17.07.1989 and
not 01.11.1991, as urged by the employers.
The time period of retention would have
material bearing on the validity of the
workman's dispensation from service since
closure or retrenchment compensation etc.
paid to him, would be determinable on that
basis.

9. It was also urged before the Labour
Court that the reference was without
jurisdiction, inasmuch as the workman
qualified as such, under the Central Act on
account of extension of the protective
umbrella of the Central Act to working
journalists and other newspaper employees
by Section 3 of the Working Journalists
Act; this extension of the benefit of the
Central Act to working journalists and
other employees of the newspaper leads to
the
inevitable
consequence
that
the
''Appropriate Government', to make a
reference,
would
be
the
Central
672 INDIAN LAW REPORTS ALLAHABAD SERIES
Government, under Section 10 of the
Central Act and not the State Government,
under Section 4-K of the State Act. The
reference here being one made by the State
Government, under Section 4-K of the
State Act, it was incompetent and all
proceedings before the Labour Court on its
basis a nullity.

10. The Labour Court by its Award
dated
27.01.2012
has
answered
the
reference in favour of the workman and
against
the
employers,
holding
the
termination of service of the workman
invalid and ordering his reinstatement with
continuity along with 50% back-wages.
The sum of money paid towards closure
compensation has been ordered to be
adjusted. Costs in the sum of Rs.2000/-
also, have been awarded in favour of the
workman.

11. Heard Sri Chandra Bhan Gupta,
learned
Counsel
for
the
employers
(petitioner) and Sri Manoj Kumar Sharma,
learned Counsel appearing on behalf of the
workman (respondent no. 2).

12. Before this Court, the learned
Counsel for the employers has substantially
urged that the impugned award is without
jurisdiction, on two counts. First, the
reference is incompetent, inasmuch as to
every
working
journalist
and
other
employee of a newspaper establishment,
the provisions of the Central Act alone
apply, where reference can be made by the
Central Government, under Section 10 of
the last mentioned Act, and not the State
Government under Section 4-K of the State
Act. He further submits that even if the
State Government be found competent to
make a reference, in relation to the
workman on ground that he is an employee
of a newspaper establishment other than a
working journalist, the reference can be
made to and dealt with by the competent
Labour
Court
or
Industrial
Tribunal
appointed under the Central Act. It cannot
be made to or answered by the Labour
Court, constituted under the State Act,
assuming that the State Government is
competent to make a reference, relating to
the workman. As such, the impugned
award,
if
the
reference
were
held
competent, would be without jurisdiction,
being one rendered by a Labour Court, not
competent to decide a reference under the
Central Act.

13. Secondly, the impugned award is
assailed as one without jurisdiction on
ground that it is based on a reference that is
completely away from the dispute that is
involved between parties. It is pointed out
by the learned Counsel for the employers
that the reference is one that relates to
termination of services of the workman,
whereas the dispute involved is about
closure. Learned Counsel for the employers
submits that a case where the services of a
workman come to an end on account of
closure of an industry or a part of it, is
completely different from termination of
services, that fall within the mischief of
retrenchment, both under the Central Act
and the State Act. Where services of an
employee come to an end in consequence
of closure of an industrial unit or one of its
department, the dispute that is to be
referred by the Appropriate Government is
about the validity of the closure. It is not
about validity of termination of service of a
workman, that would fall within the generic
category of retrenchment.

14. It is emphasized by the learned
Counsel for the employers that a Labour
Court is a Court of referred jurisdiction. It
cannot enlarge, change or alter the scope of
9 All. M/S Jagran Prakashan Ltd. & Anr. Vs. Presiding Officer, Labour Court, U.P. Aallahabad & Ors. 673
the reference made. In the present case, the
dispute referred was about termination of
services of the workman and its validity; it
was not at all about the validity of closure
of that department of the employers where
the workman was serving, leading to
dispensation of services. As such, it was
not at all open to the Labour Court to
examine the question of validity of the
closure, that led to dispensation of the
workman's service as that was beyond the
scope of reference. The Labour Court, in
the submission of the learned Counsel for
the employers, was, therefore, not at all
clothed with jurisdiction to determine the
validity of the closure pleaded by the
employers, being a Court of referred
jurisdiction.

15. The learned Counsel for the workman
has refuted the submission advanced on behalf
of the employers. These will be noticed a little
later, together with a more elaborate statement
by the learned Counsel for the employers in
support of his contentions summarized above.

16. This Court finds that on the
submissions of parties advanced, the
following
two
questions
arise
for
consideration:

(1) Whether a junior plate maker
employed with a newspaper establishment
is a workman by virtue of the Working
Journalists Act alone, and exclusively
governed by the provisions of the Central
Act so as to render a reference under
Section 4-K of the State Act in his case
incompetent? If so, is the Labour Court/
Industrial Tribunal constituted under the
Central Act, alone competent to answer a
reference in relation to such a workman?

(2) Whether on a reference about
validity of termination of services of a
workman, the Labour Court as a Court of
referred jurisdiction, can go into the
validity of a closure pleaded by the
employers to determine if it is sham and no
closure at all?

17. The submissions of the learned
Counsel for the employers with regard to
question no.1 have been summarized
hereinabove.
Dilating
on
those
submissions, learned Counsel for the
employers has placed reliance on a decision
of this Court in British India Corporation
vs. Collector, Kanpur Nagar and others,
2016 (1) ALJ 202. In the said case, the
question was whether the workman of a
Central Government Company, where the
Central
Government
had
deep
and
pervasive control over its affairs, could
invoke the provisions of Section 6-H(1) of
the State Act to recover his dues found for
him under an award passed in an
adjudication case by the competent Labour
Court/ Tribunal. The award was also passed
on a reference made under the State Act. It
was held by this Court that the employers
being entirely a Central Government
Company, the award passed by the
Industrial Tribunal on a reference made by
the State Government under the State Act,
though not challenged, would not clothe the
Deputy
Labour
Commissioner
with
jurisdiction to recover, on the basis of the
award under Section 6-H(1) of the State
Act. In British India Corporation (supra),
it was held:

"9. In Civil Misc. Writ Petition
No. 3667 of 2011 the British India
Corporation v. State of U.P. decided on
12th March, 2013 this Court quashed the
labour court award dated 7th October,'2010
holding that the appropriate government is
the Central Government in the matter of the
petitioners.
In
view
of
the
above
discussions it is clear that from the very
674 INDIAN LAW REPORTS ALLAHABAD SERIES
beginning the appropriate government with
respect of the petitioner-company was the
Central Government. In the petitioner's
case itself reported in 2011 (2) AWC 1316:
2011(2) ALJ (NOC) 154 (All) in paragraph
No.18 as quoted above, this Court noted,
the fact that the notification under section
39 of the Industrial Disputes Act issued by
the Central Government empowering the
state authority to refer the dispute even in
the case of Central Government company
would not be applicable in the present case
for the reason that firstly the reference was
made in July, 1996 when the said
notification was not in existence and
secondly under the notification the state
authorities could refer an industrial dispute
under Section 10 of the Central Act to the
Labour Court or Tribunal constituted by the
Central Government. In the present set of
facts the basis of the impugned order under
section 6 H(1) of the U.P. Act is the award
dated 16th March, 1988 which was passed
by the Labour Court under the U.P. Act. No
reference was made under Section 10 of the
Industrial Disputes Act, 1947 to the Labour
Court or Tribunal constituted by the
Central Government. This Court in the
judgment noted in para 8 above held the
reference to be void and quashed the
award.

10. In both the present writ
petitioners the award is not under challenge
but the fact remains that the source of claim
of the Respondent- workman is the award
dated - 16th Marcy, 1988 which was passed
upon a reference by the State Government
under the U.P. Act and not by the Central
Government which was the appropriate
Government under the Central Act. Under
the circumstances the respondent No. 3
cannot be said to have jurisdiction in
respect of industrial dispute or matter
incidental
thereto,
relating
to
the
petitioners. Thus both the impugned orders
passed by the Deputy Labour Court
Commissioner respondent No. 3 are held to
be without jurisdiction."

18. Further reliance has been placed
by the learned Counsel for the employers
on a decision of this Court in Steel
Authority of India Ltd. (Sales Branch),
Kanpur vs. State of U.P. and others,
(2011) 129 FLR 506, where the issue was,
whether the Steel Authority of India being
an industry under the authority of the
Central Government, or so to speak a
public sector undertaking, would be subject
to the jurisdiction of the Labour Court,
appointed under the State Act on a
reference made by the State Government,
under that Act. Answering this issue in the
negative, it was held by this Court in Steel
Authority of India Ltd. (supra):

"8. It will be seen that so far as
SAIL
is
concerned,
it
answers
the
description of an Industry under the
authority of the Central Government. The
aforesaid aspect of the matter is further
established from the notification dated
3.7.1998 (referred to above) issued by the
Central Government under section 39 of
the Act, 1947 which contains the list of
Central Public Sector Undertakings and
includes the name of SAIL at Item No. 119.

9. Counsel for the respondent
workmen could not refer to any relevant
fact for disputing the said contention of the
petitioner. It is, therefore, held that so far as
the SAIL is concerned, the appropriate
government under the Act, 1947 is the
Central Government.

10. Reference of disputes to the
Labour Court/Industrial Tribunal is under
section 10(c) of the Act, 1947. The section
provides that a dispute or any matter
appearing to be connected with, or relevant
to, the dispute, covered by matters
9 All. M/S Jagran Prakashan Ltd. & Anr. Vs. Presiding Officer, Labour Court, U.P. Aallahabad & Ors. 675
specified in Second Schedule, the reference
shall be referred to the Labour Court for
adjudication. Section 10(d) of the Act,
1947 provides that a dispute or any matter
appearing to be connected with, or relevant
to any matter specified in the Second
Scheduled or the Third Schedule shall be
referred to a Tribunal for adjudication.

11. From the aforesaid it is
apparently clear that so far as the disputes
qua matters covered by Second Schedule
are concerned, it can either be referred to
the Labour Court or to the Industrial
Tribunal. Dispute pertaining to matters
covered by Third Schedule have to be
referred to the Industrial Tribunal only.
Labour Court has been defined under
section 2(kkb) to be a Court constituted
under section 7 of the Act, 1947. Section 7
provides that appropriate Government may,
by notification in the official gazette,
constitute one or more Labour Courts for
adjudication of the industrial disputes
relating to any matter specified in the
Second Schedule and for performing such
other functions as may be assigned to them
under the Act.

12. So far as the Industrial
Triburial is concerned, the same has been
defined under section 2(r) and means an
Industrial
Tribunal
constituted
under
section 7- A of the Act, 1947.

13. It is not in dispute that the
Central
Government
has
constituted
Industrial Tribunal cum Labour Court in
exercise of powers under the Act, 1947.

14. This Court may record that a
dispute pertaining to discharge/removal of
workmen including reinstatement or grant
of relief to the workmen of a Central
Government Undertaking who had wrongly
been dismissed is covered by section 4 of
the Act, 1947. What logically follows is
that for such a dispute, the appropriate
government to refer the matter to the
Labour Court or the Industrial Tribunal in
exercise of powers under section 10(c)
would be the Central Government.

15. It is admitted on record that
the reference in the facts of the case was
made by the State Government to the
Labour Court under section 4-K of the U.P.
Industrial Disputes Act, 1947 on 6.2.1998
which was registered as Adjudication Case
No. 12 of 1998 and was transferred to the
Labour Court U.P. at Kanpur-III on
24.5.2006 and allotted new registration No.
as Adjudication Case No. 105 of 2006.

16. It is held that on the date the
reference was made it was the Central
Government which had the competence to
make the reference under section 10.

17. The notification relied upon
by the Counsel for the workmen dated
3.7.1998 is prospective in nature and will
not infuse life in a dead reference which
was made by the State Government on a
date it was not competent to do so.

18. It has also been brought to the
notice of the Court that the notification
dated 3.7.1998 has since been withdrawn
and as on date it is the Central Government
which can refer the disputes in respect of
Public Sector Undertakings are concerned.

19. Since the reference itself was
bad, any decision thereon would fall
automatically for want of authority."

19. Learned Counsel for the workman
on the other hand submits that the question
in hand goes to the root of the matter, as it
puts in issue the power of the State
Government to make a reference. The
employers ought to have challenged the
order of reference, at the time it was made.
He submits that no challenge at the stage of
reference was laid through appropriate
proceedings by the employers, and now,
after an award has been made by the
Labour Court, it is no longer open to
676 INDIAN LAW REPORTS ALLAHABAD SERIES
question the jurisdiction of the State
Government to make a reference under the
State Act or the jurisdiction of the Labour
Court, functioning under that Act, to
pronounce the award impugned. Learned
Counsel for the workman has submitted
that mere mention of a wrong provision
would not denude the Court of jurisdiction,
which it otherwise has. In support his
contention, reliance has been placed on the
decision of this Court in Mahendra Yadav
vs. Om Prakash, 2006 (65) ALR 560. The
said decision was rendered in the context of
challenge to a compromise recorded in a
Civil Suit by filing a Miscellaneous Civil
Appeal instead of a regular Appeal under
Section 96 CPC. Since both, a regular
Appeal and a Miscellaneous Appeal would
lie to the same Court, it was held in
paragraph 12 of the report in Mahendra
Yadav (supra):

"12. The submission of the
learned Counsel for the appellant that
instead of filing a miscellaneous appeal, a
regular appeal under section 96, C.P.C. was
filed and therefore the same was not
maintainable needs to be noted. However,
he could not dispute that even if a
miscellaneous appeal would lie before the
Court below and there will not be change
of forum of the Appellate Court may be a
regular appeal or a miscellaneous appeal.
Assuming for a moment that the said
argument of the appellant has some force it
will not make any difference as it has been
firmly established that mere mention of a
wrong section will not make any difference
if the Court had the jurisdiction to entertain
and decide the appeal."

20. It is next submitted that the
question as to which Government is the
Appropriate Government under the Central
Act depends upon the fact as to which
Government is responsible for maintaining
industrial peace of the territory, in relation
to a particular industrial dispute. Reliance
has been placed on a decision of the
Calcutta High Court in Novartis India,
Ltd. v. State of West Bengal and others,
(2004) 101 FLR 278. In Novartis India
Ltd. (supra), the controversy was about
which State Government would have
territorial jurisdiction over the industrial
dispute, and in that context it was held:

"19. From the discussions made
hereinabove and the decisions referred to
hereinabove the following broad principles
emerge:

(1) Head office of a company
may be located in one State but it may have
a branch in another State. The branch may
be under the control of the head office yet it
is a separate branch engaged in an industry
and is itself an industry being carried on by
the company as a separate unit. Hindustan
Aeronautics Ltd. case [1979 (1) L.L.N.
204] (vide supra)].

(2) If there is any disturbance of
industrial peace at a branch office located
in a different State where considerable
number of workmen are working the
appropriate Government concerned in the
maintenance of industrial peace is the
Government of that State where the branch
is located. [Hindustan Aeronautics Ltd.
case [1979 (1) L.L.N. 204] (vide supra)].

(3) If the parties to an industrial
dispute reside within a State or if the subjectmatter of the industrial dispute substantially
arises within the State then the Government of
that State will be the appropriate Government to
make a reference under S. 10 of the said Act.
Indian Cable Company, Ltd. (vide supra)
Workmen of Sri Ranga Vilas Motors (Private)
Ltd. case (vide supra)].

(4) Ordinarily, if there is a
separate establishment and the workman is
9 All. M/S Jagran Prakashan Ltd. & Anr. Vs. Presiding Officer, Labour Court, U.P. Aallahabad & Ors. 677
working
in
that
establishment,
the
industrial dispute will arise at that place
[Workman of Sri Ranga Vitas Motors
(Private), Ltd. case (vide supra)].

(5) There should clearly be some
nexus between the dispute and the territory
of the State and not necessarily between the
territory of the State and the industry
concerning
which
the
dispute
arose.
Workmen of Sri Ranga Vitas Motors
(Private), Ltd. case (vide supra).

22. There is no doubt that the
State Government was competent and has
jurisdiction and authority to refer the
industrial dispute regarding termination of
services of--

(1) Sri Bikash Bhusan Ghosh;

(2) Sri Pradip Kumar Mukherjee;
and

(3) Sri Shyama Charan Mallick to
the Tribunal under S. 2-A of the said Act
separately instead of referring the dispute
separately the State Government by one
reference had referred the matter to the
Tribunal regarding termination of services
of the said workmen.

It is evident from the order No.
888-IR/IR/11L-11/95, dated 12 June, 1997
(Annexure P12 of the writ application), that
the Government exercised the power under
S. 10 read with S. 2-A of the said Act. It is
not a case that Government had no
jurisdiction to refer the industrial dispute
under S. 10 read with S. 2-A of the said Act
individually.
A
careful
reading
of
Annexure P12 of the writ application
shows that though the industrial disputes
regarding termination of service of--

(1) Sri Bikash Bhusan Ghosh;

(2) Sri Pradip Kumar Mukherjee;
and

(3) Sri Shyama Charan Mallick
were referred to the Tribunal by a single
order but the dispute referred to the
Tribunal are industrial disputes separate
from each other and each one is a dispute
under S. 2-A of the said Act.

There was no inherent lack of
jurisdiction of the State Government to refer
those industrial disputes. At best it may be
said that the reference made was irregular but
such irregularity did not go to the root of the
matter and therefore the order of reference
was neither null and void nor even voidable.
The objection raised by the writ-petitioner is
trivial and on hyper-technical grounds which
should not be entertained by this Court
exercising writ jurisdiction."

21. It is next contended by the learned
Counsel for the workman that where the
reference of a dispute validly confers
jurisdiction on the Labour Court or
Tribunal, findings on jurisdictional facts
recorded by the Labour Court are not open
to interference by this Court under Article
226 of the Constitution. It is also urged that
interference on a mere technical ground is
not at all appropriate. In support of his
contention,
learned
Counsel
for
the
workman has placed reliance upon a
decision of the Supreme Court in Sadhu
Ram vs. Delhi Transport Corporation,
(1983) 4 SCC 156. In Sadhu Ram (supra),
the legality of termination of services of the
workman, a bus conductor, was the subject
matter
of
reference
by
the
Delhi
Administration to the Labour Court. It was
urged on behalf of the employer that the
reference was incompetent, because the
workman had not raised any demand with
the
Management
before
moving
the
Conciliation Authority. It was contended,
therefore, that there was no industrial
dispute that could be referred. After the
award was made, the employers challenged
it in the High Court, where aforesaid
contention of the employers was accepted.
Reversing the High Court, the Supreme
Court held in Sadhu Ram (supra):
678 INDIAN LAW REPORTS ALLAHABAD SERIES

"2. ............. The management
invoked the jurisdiction of the High Court
of Delhi under Article 226 of the
Constitution questioning the award of the
Labour Court. The High Court went into a
learned discussion on what was an
industrial
dispute
and
what
was
a
jurisdictional fact, a discussion which in
our opinion was an entirely unnecessary
exercise. In launching into a discussion on
these questions needlessly, the High Court
appeared to forget the basic fact that the
Labour Court had given two categoric
findings: (i) that the Union had raised a
demand with the management and (ii) that
the termination of the services of the
workman was a mala fide and colourable
exercise of power. Delving into the
evidence as if it was an appellate court, and
reappreciating the evidence, the High Court
thought that one of the documents upon
which the Labour Court had relied was a
suspicious document; and the High Court
went on to find that no demand had been
raised and there was no industrial dispute
which could be properly referred by the
Government for adjudication. On those
findings a learned Single Judge of the High
Court quashed the award of the Presiding
Officer of the Labour Court. The decision
of the learned Single Judge was affirmed
by a Division Bench. The workman has
come before us under Article 136 of the
Constitution.

3. We are afraid the High Court
misdirected itself. The jurisdiction under
Article 226 of the Constitution is truly wide
but, for that very reason, it has to be
exercised with great circumspection. It is
not for the High Court to constitute itself
into an appellate court over tribunals
constituted under special legislations to
resolve disputes of a kind qualitatively
different from ordinary civil disputes and to
readjudicate upon questions of fact decided
by those tribunals. That the questions
decided pertain to jurisdictional facts does
not entitle the High Court to interfere with
the findings on jurisdictional facts which the
Tribunal is well competent to decide. Where
the circumstances indicate that the Tribunal
has snatched at jurisdiction, the High Court
may be justified in interfering. But where the
tribunal gets jurisdiction only if a reference is
made and it is therefore impossible ever to
say that the Tribunal has clutched at
jurisdiction, we do not think that it was
proper for the High Court to substitute its
judgment for that of the Labour Court and
hold that the workman had raised no demand
with
the
management.
There
was
a
conciliation proceeding, the conciliation had
failed and the Conciliation Officer had so
reported
to
the
Government.
The
Government was justified in thinking that
there was an industrial dispute and referring it
to the Labour Court."

22. This Court has considered the
rival
submissions
advanced.
To
the
understanding
of
this
Court,
the
propositions advanced on both sides, so far
as the question in hand is concerned, do not
do much to resolve it. The decisions relied
upon by the learned Counsel for the
employers generally refer to cases where
the employers were a Central Government
Company or an undertaking, where the
Central
Government
had
deep
and
pervasive control. It was in that context
held in the decisions relied upon by the
learned Counsel for the employers that the
Appropriate Government would be the
Central Government, and the Labour Court
or the Tribunal competent to decide, would
be one appointed under the Central Act. In
Section 2(dd) and 2(f) of the Working
Journalists Act, a non-journalist newspaper
employee and a working journalist are
defined as under:
9 All. M/S Jagran Prakashan Ltd. & Anr. Vs. Presiding Officer, Labour Court, U.P. Aallahabad & Ors. 679

"2. Definitions .-In this Act,
unless the context otherwise requires,-

(a)

(b)

(c)

(d)

(dd) "non-journalist newspaper
employee" means a person employed to do
any work in, or in relation to, any
newspaper establishment, but does not
include any such person who-

(i) is a working journalist, or

(ii) is employed mainly in a
managerial or administrative capacity, or

(iii)
being
employed
in
a
supervisory capacity, performs, either by
the nature of the duties attached to his
office or by reason of the powers vested in
him, functions mainly of a managerial
nature;]

(e)

[(ee)

(f) "working journalist" means a
person whose principal avocation is that of a
journalist and [who is employed as such, either
whole-time or part-time, in, or in relation to,
one or more newspaper establishments], and
includes an editor, a leader-writer, news-editor,
sub-editor, feature-writer, copy-tester, reporter,
correspondent, cartoonist, news-photographer
and proof-reader, but does not include any
such person who-

(i) is employed mainly in a
managerial or administrative capacity; or

(ii)
being
employed
in
a
supervisory capacity, performs, either by the
nature of the duties attached to his office or
by reason of the powers vested in him,
functions mainly of a managerial nature;"

23. Section 3 of the Act under
reference provides:

"3. Act 14 of 1947 to apply to
working journalists .-(1) The provisions
of the Industrial Disputes Act, 1947 (14 of
1947), as in force for the time being, shall,
subject to the modification specified in subsection (2), apply to, or in relation to,
working journalists as they apply to, or in
relation to, workmen within the meaning of
that Act.