ORDER
Anand Byrareddy, J.
1. The petitioner Association is a union of workmen of the second respondent establishment. The first respondent is a publisher and the second respondent is a printer. The first respondent publishes the following:
1) “Udayavani”, a daily newspaper, since the year 1970;
2) “Tushara”, a weekly since the year 1973;
3) “Taranga” a monthly, since the year 1983; and,
4) “Rooptara”, a film monthly, since the year 1977.
The second respondent was engaged as a printer by the first respondent
2. The Government of India appointed a Wage Board for non-journalist employees of the newspaper industry in November 1975, under Section 17 of the Working Journalists and other Newspaper Employees (Conditions of Services) and Miscellaneous Provisions Act, 1955 (Act 45 of 1955) and the said Wage Board made recommendations in respect of interim wages, to the Government of India which accepted the recommendations by an order dated 01.04.1977. The Government of India thereafter constituted a Tribunal headed by Justice C.C. Palekar, under Section 13DD(1) of the said Act for purposes of fixing and revising rates of wages in respect of non-journalist newspaper employees on the ground that the Wage Board constituted earlier had not been able to function effectively. The recommendations made by the Tribunal were accepted by the government as per order dated 26.12.1980.
3. It was contended by 64 workmen of respondent No. 2, represented by the petitioner, that the above named publications published by respondent No. 1 were newspapers within the meaning of Section 2(b) of Act 45 of 1955. And as the same are printed by respondent No. 2, the management of the said respondents would constitute a single newspaper establishment within the meaning of Section 2(d) of Act 45 of 1955. Hence the orders passed by the Government of India under the Act in respect of wage scales and other allowances applicable to newspaper employees as also the petitioner workmen, be implemented. The petitioner submitted a charter of demand urging the respondents to implement the Wage Board recommendations. The respondents failed to do so. The petitioner approached the Labour Commissioner and Conciliation Officer, who initiated conciliation proceedings. The conciliation having failed, the dispute was referred to the Industrial Tribunal for adjudication.
4. On the basis of pleadings before it, the Tribunal had framed and recast 7 issues for determination. Of these, issues Nos. 2 & 3 were treated as preliminary issues. Namely, whether the petitioner had the locus standi to espouse the cause of the concerned workmen and whether the dispute is an industrial dispute. These two issues were answered in favour of the petitioner and the workmen, by a considered order dated 26.09.1988. Subsequently respondent No. 2 who was not formally on record was impleaded and four additional issues were framed at its instance. In answering the said additional issues the tribunal held that as there was no demand made on the second respondent the said respondent could not be bound by any award made on adjudication. And the tribunal further held on other issues to the effect that there was no jural relationship between the employees of the respondent No. 2 and the respondent No. 1. That the respondent No. 1 and respondent No. 2 do not constitute a composite establishment and are independent entities. And that there was no obligation on the part of respondent No. 1 to implement the recommendation of the Wage Board. It is this which is in challenge in this writ petition.
5. Shri M.C. Narasimhan, Senior Advocate for Shri K.B. Narayana Swamy for the petitioner contends as follows:
That the Tribunal had committed a cardinal error in holding that there was no industrial dispute. He would submit that the dispute raised was general in nature and was a collective demand. It was not necessary for the 64 workmen to seek the support of other workmen of respondent No. 2. The Tribunal erred in entering upon questions of espousal, representation by the Association, membership of the workmen in the Association, etc, as the said questions had been decided by the Tribunal earlier as on 26.09.1988 and had attained finality.
The tribunal was in error in finding that the dispute was not covered under Section 2(a) and therefore there was no industrial dispute. Whereas the dispute was clearly one under Section 2(k) of the Act. The Tribunal has lost sight of the fact that in a dispute covered under Section 2(k) of the Act, all workmen are covered and that it is not necessary to consider the common cause aspect in holding that there was no proper espousal.
The glaring admission by MW1 that even as on the date of adducing evidence the work of Udayavani newspaper was being carried on at the premises of respondent No. 2 and that the process of composing, up to the preparation of translucent paper, was being carried out only by the respondent No. 2 press. The work of composing, proof reading, pasting up and processing are done subsequently by workmen of respondent No. 2 is admitted by the said witness. This has been completely glossed over by the Tribunal, That without the participation of the 64 workmen, the said newspaper would not come out. It is further pointed out that when the employees of respondent No. 2 were required to work on the printing of Udayavani newspaper, they were not under the supervision of the respondent No. 2 press. The peculiar relationship as between the publisher, respondent No. 1 and the press, respondent No. 2 created a situation where 64 employees of respondent No. 2 were under the exclusive supervision of respondent No. 1. It is submitted that the Supreme Court has, while applying the control test, held while distinguishing between an independent contractor and employee, that supervision of work and allotment of work are determining factors. And, in the instant case on hand, it was certainly not necessary to demonstrate that the entire establishment of respondent No. 2 was part of respondent No. 1 – it was enough if the factum of engagement of the concerned workmen exclusively for the publication of the newspaper is established. And this is an admitted position and duly noticed by the Tribunal.
It is contended that though respondent Nos. 1 and 2 appear to be separate entities, the two establishments are one inasmuch as there is functional irregularity in the publication and printing of the said newspapers. The artificial separation of one being a limited company and the other a partnership concern is only intended to deny the workmen their legitimate due. The Managing Director of respondent No. 1 and the Managing Partner of the respondent No. 2 and the Editor of Udayavani newspaper are the same individual. He directs the editing, printing and publishing of the newspaper and is in overall control of administrative, financial and organisational matters. There is thus a functional integrality to render the two establishments a newspaper establishment for purposes of Act 45 of 1955 and is hence bound to extend the benefits to which the workmen claim. The Tribunal, while holding that there exists functional integration between the two establishments with regard to bringing out newspaper Udayavani, has held that the same is not so with respect to other business transactions. In this regard the counsel would point out that there was no acceptable legal evidence in support of this issue.
6. The following authorities were relied upon in support of the petitioners contentions:
Delhi Cloth and General Milk Co. Ltd. v. Workmen and Ors. 1967 (1) LLJ 423. To support the contention that the Tribunal must confine its adjudication to points of dispute referred and matters incidental thereto.
Southern India Tannery, Tiruchirapalli v. Industrial Tribunal, Madras and Anr. 1969-II LLJ 157. This decision is pressed into service on the issue of the espousal being proper if the dispute is of or collective nature.
7. Per contra Shri S.N. Murthy, Senior Advocate appearing for Shri. M.L.N. Reddy for respondent No. 1 would contend that notwithstanding the dispute that the respondent No. 1 is the owner and publisher of the newspaper and periodicals referred to, it has come into existence in the year 1970. It is one of the customers of respondent No. 2. Respondent No. 2 had come into existence in the year 1941. They are separate and distinct entities in fact and in the eye of law. In any event the claim of the workmen is that they are employees of respondent No. 1. This cannot be enlarged into considering whether respondents Nos. 1 and 2 together constitute a newspaper establishment in terms of Act 45 of 1955. The occasional and mere supervision would not render the petitioners employees of respondent No. 1.
The finding of the Tribunal as to the two establishments being separate and distinct is based on several criteria and is a clear finding of fact which does not warrant interference in the writ jurisdiction of this Court.
8. Reliance is placed on the following authorities:
B Ganapathy Bhandarkar v. Regional Provident Fund Commissioner, Bangalore FLR 1990 (60) 143. To contend that functional integrality could be established between two units – if one cannot function altogether in absence of the other.
Isha Steel Treatment, Bombay v. Association of Engineering Workers, Bombay and Ors. 1987-I-LLJ 427. In this case a firm was running two factories. Closure of one of the units was challenged under the Industrial Disputes Act. The fact that the Provident Fund Accounts and ESI accounts of both factories having a common number and the existence of a settlement containing similar terms between the Management and workmen were alone held not sufficient to hold that the two factories are one unit.
Associated Cement Companies Ltd. v. Their Workmen AIR 1959 SC 967: To emphasize that the tests to establish functional integrality are varied and could not be restricted to an instance of close co-operation in the printing of a newspaper.
9. Shri S.V. Shastry appearing for respondent No. 2 would contend that the points of reference for adjudication were preceded by charter of demand sent to respondent No. 1, there was no such demand placed on respondent No. 2. As there was no demand by the workmen of the union – there could be no adjudication. The petitioners are admittedly workmen of respondent No. 2 and there is no dispute raised. The Labour Court has thus rightly held that respondent No. 2 is not bound by any award that may be passed as there is no dispute.
10. Shri Shastry would rely on the following authorities:
– K. Krishnan Panicker v. Hindustan Machine Took Ltd. 1999 Lab IC 3823
– Bhagwan Doss Chopra v. United Bank of India and Ors. 1987 (55) FLR 909
– PSI Data Systems Ltd. v. The Presiding Officer, Additional I. Industrial Tribunal and Ors. 1992 Lab. I.C.-1127
– Kerala State Electricity Board and Ors. v. Labour Court, Ernakulam and Ors. 1995(70) FLR – 1133
The above citations are in support of the contention that no liability could be fastened on respondent No. 2.
11. He would further rely on the following:
Motor and Machinery Manufacturers Ltd. v. Industrial Tribunal, Delhi and Ors. 1963 -I-LLJ. 222:
This decision in support of the contention that the espousal was not proper.
– Sindhu Resettlement Corporation Ltd. v. Industrial Tribunal of Gujarat and Ors. AIR 1968 SC 529;
– Shambu Nath Goyal v. Bank of Baroda AIR 1978 SC 1088; and,
– Pratap Press, New Delhi v. Secretary, Delhi Press Workers’ Union and Ors. AIR 1978 SC 1088:
These decisions to support the contention that non placing of a demand is fatal to adjudication.
– Isha Steel Treatment, Bombay v. Association of Engineering Workers, Bombay and Anr. AIR 1987 SC 1478;
– PBM Polytex, Ltd. Boregaon, Madhya Pradesh v. Regional Provident Fund Commissioner, Jabalpur1999 (1) LLN. 610;
– District Transport Manager (Administration), Orissa State Road Transport Corporation v. Dilip Kumar Nayak and Anr.1997 (2) LLN. 10;
– Wipro Ltd. v. The Regional Provident Fund Commissioner, Karnataka 1994 LLR 34;
– Regional Provident Fund Commissioner, Mangalore v. B. Ganapathy Bhandarkar 2003 (98) FLR 987;
– Sadhana Lodh v. National Insurance Co. Ltd. and Anr. AIR 2003 SC 1561:
– Tamil Nadu Joint action Council and Textile Trade Union v. Government of Tamil Nadu and Ors. AIR 1987 SC 1490:
These decisions are cited to indicate the tests to be applied as regards functional integrality.
11. By way of reply, Shri. M.C. Narasimhan would contend that respondent No. 1 being a newspaper establishment is not denied. The exclusive supervision by respondent No. 1 of the concerned workmen in the production of the newspaper and periodicals is found as a fact. The peculiar circumstance of 64 employees working only during the night to print Udayavani is clinching in support of the contention that they were engaged exclusively by respondent No. 1, a newspaper establishment.
12. Further respondent No. 2 feigning lack of knowledge of the demand is unfair and naive. The lapse, if any, in not making respondent No. 2 a party in the first instance was purely inadvertent and was rendered a mere formality in the face of the Management of these two being composed of substantially the same personnel.
13. Insofar as the contention regarding the espousal being improper, he would reiterate that even a minority can raise a dispute. And Section 36 of the Industrial Disputes Act enables the raising of such a dispute in respect of others.
14. On these rival contentions, I hold that the findings on Issues Nos. 2 and 3 by an order dated 26.9.1988 attained finality. The framing of additional issues at the instance of respondent No. 2 upon the said respondent being impleaded and a divergent opinion being formed on the footing that respondent No. 2 is an independent entity and that no formal demand was raised on it – completely effaces the peculiar circumstances pleaded and admitted. It is flying in the face of the fact that the workmen are ostensibly employed by respondent No. 2, a contention is taken as to both the respondents together being a newspaper establishment in the production of the newspaper and periodicals. The Tribunal has proceeded to interpret the judgment of this Court passed in Writ Appeal W.A. No. 7737/96 dated 21.08.1997. It was not permissible for the Tribunal to proceed to interpret the judgment – the judgment speaks for its elf. The judgment certainly did not provide licence to reverse the findings of the Tribunal on Issues Nos. 2 & 3 while deciding Additional Issues Nos. 1 to 4. The findings thereof are an improper exercise of jurisdiction by the Tribunal and are liable to be quashed.
15. In so far as the findings of the Tribunal on other issues are concerned – the finding that there is no jural relationship between the employees of respondent No. 2 and respondent No. 1 is arrived at on the basis of a blinkered view adopted in negation of the admitted facts and circumstances. For instance the engagement of the workmen for the purposes of printing the newspaper under its exclusive supervision by respondent No. 1 is a case in point. The two respondents being independent entities in the eye of law not withstanding, the claim by the workmen for implementation of the recommendation of the Wage Board was justified. The respondents together being considered as a newspaper establishment under the provisions of Act 45 of 1955 for the limited purpose of sustaining the claim of the workmen is acceptable.
16. The Tribunal has correctly found that there was functional integrality in the printing and publishing of the newspaper as between the respondents. The finding of the Tribunal farther that there was no such functional integrality in respect of other transactions was not material and does not negate the first part of the finding.
17. The Tribunal was ignored and glossed over the circumstance that the existence and interaction of respondents Nos. 1 and 2 and the engagement of the workmen, whether by design or chance, results in the production of a newspaper by the labour of the workmen and therefore ought not to deny them their due as a newspaper establishment bound by the recommendations of the Wage Board, given statutory force by virtue of the Government order pursuant thereto. In the result the impugned Award requires to be quashed.
18. It was stated at the bar that as of to-day respondent No. 1 has its own press and that no newspaper or periodical is printed through the medium of respondent No. 2. Be that as it may. The petitioner workmen would be entitled to such benefits in terms of the recommendations of the Wage Board during such period as their services were admittedly utilized by respondent No. 2 in the production of the newspaper published by respondent No. 1.
19. Accordingly the writ petition is allowed and the impugned award of the Labour Court is quashed.