Case Note & Summary
The petitioner, Arun Asatkar, was a member of the Nagpur Union of Working Journalists since 1978 and worked at Lokmat newspaper. A dispute arose regarding his eligibility for membership and consequent claim to a flat, leading respondent nos. 2 and 3 to file Reference Application (TU) No.4/1994 under Section 28(1A) of the Trade Union Act, 1926, before the Industrial Court, Nagpur. The Industrial Court held that the petitioner was not entitled to continue as a member and directed removal of his name. The petitioner challenged this order by way of a writ petition under Articles 226 and 227 of the Constitution of India before the High Court. The primary legal issue was whether the Industrial Court had jurisdiction to entertain the reference when the consent certificate issued by the Deputy Commissioner of Labour was not exhibited or duly proved in evidence. The petitioner argued that the certificate was not proved and that the court could not venture into the validity of his initial enrollment. The respondents contended that the issuance of the certificate was not disputed and that the Industrial Court correctly appreciated the evidence. The High Court, while examining the scheme of Section 28(1A), observed that the consent of the Registrar is a jurisdictional prerequisite and the certificate itself must be proved to establish its identity and contents. The High Court found that the Industrial Court had erroneously read the unexhibited and unproved document into evidence, recording an incongruous finding that the certificate was not proved yet its issuance was not denied. The court held that such a certificate cannot confer jurisdiction unless properly established, and the Industrial Court's approach suffered from non-application of mind. The judgment therefore set aside the Industrial Court's order (though the final operative text is not reproduced) and answered the jurisdictional point in favour of the petitioner. The reasoning established that without proof of the consent certificate, the reference under Section 28(1A) was not maintainable.
Headnote
A) Trade Union Law - Dispute Resolution - Jurisdictional Prerequisites - Trade Union Act, 1926, Section 28(1A) - The Industrial Court's jurisdiction under Section 28(1A) is conditional upon production of a valid consent certificate from the Registrar, and such certificate must be duly proved and exhibited as the document issued by the competent authority; failure to do so renders the entire reference incompetent. Held, that the Industrial Court erred in reading an unproved and unexhibited consent letter into evidence on the ground that its issuance was not disputed, as the identity and contents of the document were not established (Paras 8-10).
B) Evidence - Proof of Documents - Consent Certificate under Trade Union Act - Trade Union Act, 1926, Section 28(1A) - In proceedings under Section 28(1A), the consent certificate must be properly identified and proved; even if the fact of issuance is not disputed, the Industrial Court cannot read the document into evidence unless it is exhibited and its contents are established. The Industrial Court's finding that there was no objection to issuance while simultaneously noting an objection to the document's validity showed non-application of mind (Paras 9-10).
Issue of Consideration
Whether the Industrial Court could rely on an unproved and unexhibited consent certificate to assume jurisdiction under Section 28(1A) of the Trade Union Act, 1926
Law Points
- Under Section 28(1A) of Trade Union Act
- 1926
- consent of the Registrar is a prerequisite for reference and the consent certificate must be proved and its contents established to confer jurisdiction
- Industrial Court cannot assume jurisdiction based on an unexhibited and unproved document
Case Details
2010 LawText (BOM) (12) 96
WRIT PETITION No. 435 OF 1995
Uday Dastane for Petitioner; Mr. Kankale, A.G.P. for Respondent No.1; S.G. Jagtap for Respondent No.3; P.C. Marpakwar for Respondent No.4
Arun s/o Sheshrao Asatkar
1. Member, Industrial Court, Maharashtra, Nagpur Bench, Nagpur; 2. Jayant Murlidhar Harkare; 3. Ganesh Krishnarao Shirole; 4. Nagpur Union of Working Journalists; 5. Shyam Lohabare; 6. Manoharrao Andhare; 7. Prakash Deshpande; 8. Siddhartha Mohan Sontakke (dead)(deleted); 9. Inderkumar Jain
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Nature of Litigation
Writ petition under Articles 226 and 227 challenging order of Industrial Court in a reference under Section 28(1A) of Trade Union Act regarding membership of a trade union.
Remedy Sought
Petitioner sought to quash the Industrial Court's order which had held that he was not entitled to continue as a member and directed removal of his name from the membership register.
Filing Reason
The Industrial Court had answered the reference partly against the petitioner, declaring him ineligible for membership of the Nagpur Union of Working Journalists.
Previous Decisions
The Industrial Court, Nagpur, in Reference Application (TU) No.4/1994 dated 12.10.1994, held that the petitioner was not entitled to continue as a member of the Union and directed removal of his name.
Issues
Whether the Industrial Court could rely on an unproved and unexhibited consent certificate to assume jurisdiction under Section 28(1A) of the Trade Union Act, 1926.
Submissions/Arguments
Petitioner argued that the Industrial Court exceeded its jurisdiction by examining the initial validity of membership; the consent certificate was not exhibited and proved; the reference only required determining whether petitioner was a member, not whether enrolment was valid; the employer's evidence that petitioner worked as librarian was disregarded.
Respondents argued that the Industrial Court correctly appreciated evidence; the consent letter was not disputed, and its issuance was admitted; the petitioner was not a working journalist and thus ineligible; there was no jurisdictional error.
Ratio Decidendi
For an Industrial Court to assume jurisdiction under Section 28(1A) of the Trade Union Act, 1926, the consent certificate issued by the Registrar must be duly proved and exhibited; the mere fact that its issuance is not disputed does not dispense with the requirement of proving the document and its contents. Failure to establish the identity of the document as the consent certificate renders the proceedings without jurisdiction.
Judgment Excerpts
During evidence this consent letter [document before it], was not duly proved and it was not exhibited. It also shows that there is no official seal of Deputy Registrar of Trade Union on it.
The apparent incongruity in thought process shows total non application of mind.
The jurisdiction becomes available in the light of said language, hence the contents of certificate issued by the competent Authority must be established.
Procedural History
The petitioner became a member of respondent no.4 Trade Union in 1978. He joined service of Lokmat newspaper in 1974. Dispute arose over his claim to a flat allotted by the Union. Respondent nos. 2 and 3 filed Reference Application (TU) No.4/1994 under Section 28(1A) of the Trade Union Act before the Industrial Court, Nagpur, with the consent of the Deputy Commissioner of Labour. The Industrial Court partially allowed the reference, holding that petitioner was not qualified to be a member and directing removal of his name. The petitioner filed Writ Petition No. 435 of 1995 under Articles 226 and 227 of the Constitution before the Bombay High Court, Nagpur Bench, challenging the Industrial Court's order. The High Court issued Rule, and no interim relief was granted. The matter was heard and the High Court delivered oral judgment on 21.12.2010.
Acts & Sections
- Trade Union Act, 1926: Section 28(1A)
- Working Journalists and Other Newspaper Employees (Conditions of Service) and Miscellaneous Provisions Act, 1955: Section 2(f), Section 2(dd)
- Constitution of India: Article 226, Article 227
