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The Management of Antiseptic (Journal) 326, Thambu Chetty Street, Madras-1 Vs. A. Gangadharan and - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtChennai High Court
Decided On
Case NumberW.A. No. 291 of 1978
Judge
Reported in(1984)IILLJ232Mad; (1985)1MLJ1
ActsIndustrial Disputes Act, 1947 - Sections 25G
AppellantThe Management of Antiseptic (Journal) 326, Thambu Chetty Street, Madras-1
RespondentA. Gangadharan and ;The Government of India, Represented by the Under Secretary Department of Labour
Cases ReferredIn Associated Cement Companies v. Their Workmen
Excerpt:
.....disputes act, 1947 - appeal against order which quashed decision of second respondent that press and publication of appellants are two independent units - location of press and publication are different - registration of press was under factories act and publication under tamil nadu shops and establishments act - two separate employees union were existed in press and publication - employees of two units stand on separate muster rolls and their wage structures were different - held, no reasons to interfere with order passed by court below. - - , who heard the writ petition, after tracing the preceding facts, assessed the matter in the light of the pronouncements of courts, including this court as well as the highest court in the land. the second submission of the learned..........publication to have the same brought within the mischief of the act on the ground that both the press and the publication are integrated and inseparable units. ultimately the matter went before the first respondent and by order dated 29th july, 1965, the first respondent held that the press and the publication are different establishments. this order of the respondent was challenged in w.p. no. 603 of 1966 and this court allowed the writ petition and directed the first respondent examine the matter and dispose of the same after hearing the employees. once again the first respondent examined the matter and by order dated 11th september, 1969, held that the publication are separate establishments. the matter was again brought to this court in w.p. no. 1023 of 1970 and this court was.....
Judgment:

Nainar Sundaram, J.

1. The second respondent in W.P. No. 1972 of 1973 is the appellant in this writ appeal. The first respondent herein is the petitioner and the second respondent herein is the first respondent in the writ petition. For the sake of convenience, we shall refer to the parties as per their appellations in the writ petition. The writ petition was filed to quash the order of the first respondent dated 15th September, 1972 passed under S. 19A of the Employees' Provident Funds and Miscellaneous Provisions Act, 1952, hereinafter referred to as the Act, the same bearing the nomenclature of the Employees' Provident Funds and Family Pension Fund Act, 1952 prior to its amendment by Act 99 of 1976. The writ petition came to be filed for the above relief in the following circumstances. The second respondent as a firm was carrying on the business of publication of two medical journals 'Antiseptic' and 'Health' at premises No. 323-324 Thambu Chetty Street, Madras-1 even from the year 1904, the said establishment shall hereinafter be referred to as the Publication. In 1932, the same firm established a printing press under the name and style of 'Antiseptic Press' at No. 10, Thambu Chetty Street, Madras-1 and it shall hereinafter be referred to as the press. There is no difficulty with regard to the Press and it has been brought within the mischief of the Act. Admittedly, there was a move by the concerned employees of the Publication to have the same brought within the mischief of the Act on the ground that both the press and the publication are integrated and inseparable units. Ultimately the matter went before the first respondent and by order dated 29th July, 1965, the first respondent held that the press and the publication are different establishments. This order of the respondent was challenged in W.P. No. 603 of 1966 and this court allowed the writ petition and directed the first respondent examine the matter and dispose of the same after hearing the employees. Once again the first respondent examined the matter and by order dated 11th September, 1969, held that the publication are separate establishments. The matter was again brought to this court in W.P. No. 1023 of 1970 and this court was obliged to quash the said order on the ground that no reasons were expressed and the order was a non-speaking order. The matter again went back to the first respondent and the first respondent passed the present impugned order, addressed to the President of the Antiseptic Employees' Union and the text of the said order runs as follows :

'With reference to your letter dated the 11th August, 1971 on the above subject, I am directed to say that the Central Government, in pursuance of the orders of the High Court of Madras, has carefully considered the entire matter. The representatives of the management and the Employees' Union of M/s Antiseptic, Madras, have also been given a hearing and the Central Government finds that :-

1. M/s Antiseptic, Madras are publishing medical journals, 'Antiseptic' and 'Health'; and in pursuance thereof they have set up their own press. The journals are printed in that press and thereafter published from the office. The press has been covered under the provision of the Employees' Provident Funds and Family Pension Fund Act, 1952 under the head 'printing'.

2. The Press and the office are located in different premises and are registered under different enactments.

3. There are two separate union for the press and the office workers. This has been admitted by Shri Gangadharan, Secretary of the Union.

4. No outside job is undertaken by the press. This fact has also been admitted by Shri Gangadharan, Secretary of the Union. The learned counsel for the Union has also conceded that the firm of M/s Antiseptic is not engaged in printing in general.

5. The mere fact that there might be unity of finance, management and functional integrality between the two units would not result in the coverage of the office also.

6. The primary activity of M/s Antiseptic is the publication of medical journals, viz., 'Antiseptic' and 'Health' and not printing.

7. The office is not an adjunct of the printing press.

'2. In view of the foregoing, the Central Government has come to the conclusion that the office establishment and the printing press of M/s Antiseptic are two separate establishments. The publishing house cannot be considered as a part of the printing press and therefore, the office is not liable to be covered under the Employees' Provident Fund and Family Pension Fund Act, 1952. The press would, however, continue to be covered under the said Act. The Central Government hereby directs accordingly under S. 19A of the said Act.

'By order and in the name of the President'.

2. Ramanujam, J., who heard the writ petition, after tracing the preceding facts, assessed the matter in the light of the pronouncements of courts, including this court as well as the highest court in the land. In conclusion, the learned judge held that the financial, managerial and functional integrality of the two units has been established and in view of that, the decision of the first respondent that the Press and the publication are two independent units cannot be sustained. The learned judge allowed the writ petition. However, the question as to which of the two activities is the main activity for the purposes of the application of the Act was left open by the learned judge. The writ appeal is directed against the order of the learned judge.

3. Mr. K. Ramagopal, learned counsel for the second respondent, (the appellant herein) would advance two submissions coveting interference in writ appeal. One is that it is entirely within the jurisdiction of the first respondent, (the second respondent herein) to decide the matter under S. 19A of the Act and when such a decision has been rendered by the first respondent on an appraisal of the factual aspects, this court, in writ jurisdiction, shall not constitute itself into an appellate court re-examine the matter once again from the factual angle and render a different decision. The second submission of the learned counsel is that even otherwise the tests well accepted by the judicial precedents to find out the integrality or otherwise of the two units, if properly applied, could lead only to one answer and that is, the two units are independent and separate. We shall now examine these contentions.

4. Regarding the first contention, we can take it that it is now well settled that in a proceeding under Art. 226 of the Constitution of India, this court is not supposed to sit as a court of appeal over the findings of fact recorded by the concerned inferior Tribunal to re-assess and re-appreciate the factual materials or to correct purely an error of fact not leading to an error of jurisdiction. There cannot be the issuance of a writ on the mere ground that the decision rendered by the inferior Tribunal is erroneous on facts from the point of view of this court. But, that does not mean that this court, under Art. 226 of the Constitution of India, has no power to determine as to how far the provisions of a particular statute would or would not apply to the admitted set of facts. It has also been recognised that this court can examine the jurisdictional facts. But, even this examination has got its own limitations. There is no need to go into the ambit of the power of this court examine jurisdictional facts, because it does not strictly arise in the present case. If on admitted facts, by the application of the well accepted principles a particular legal consequence should follow and if there is an omission on the part of the inferior Tribunal to adhere to the process and reach the ultimate conclusion in law then, this court is not powerless to come to the rescue of the party who is put to prejudice by the order of the inferior Tribunal.

5. The decision under S. 19A of the Act not immune to review by this Court if there had been a violation of the principles governing the same. The pointing issue in the present case is as to whether the two units, namely, the press and the publication form one integral unit or they are independent and separate. If the position is the first one, the publication, alongwith the press, will come within the mischief of the Act. If the position is the latter one, the publication will go outside the Act. That it is the first respondent who should decide the matter is not being disputed before us. In Indian Cable Co. Ltd. v. Its Workmen : (1962)ILLJ409SC , the Supreme Court opined that the question a branch or a department is in itself an industrial establishment within the meaning of S. 25G of the Industrial Dispute Act, 1947, is a mixed one of fact and law. In Metro Motors Pvt. Ltd. v. R. P. F. Commissioner , a Bench of the Punjab High Court, consisting of Bhandari, C.J., and Dulrt, J., observed that even if the view of the Central Government under S. 19A of the Act were to be against a party and his contentions, yet, he would still be entitled to have the decision examined by the High Court, if the decision is to turn on the interpretation of the Act itself.

6. In Andal & Co. v. Regional Provident Fund Commissioner ILR (1965) Mad. 302, Srinivasan, J., held that the finality given to the order of the Central Government by S. 19A of the Act cannot stand in the way of this court examining the order in the exercise of its writ jurisdiction and this Court, in the exercise of its jurisdiction, can enter in to the examination of the question whether the Act is applicable to the particular factory or establishment and resolve any matters of doubt that may exist even upon the five heads mentioned in S. 19A of the Act. The exposition of the above proposition which countenances the jurisdiction of this court examine the propriety or otherwise of the decision of the Central Government under S. 19A of the Act necessarily leads to the other question as to whether the first respondent ignored the well accepted principles to find out the integrality or otherwise of the two units, so as to make both come within the mischief of the Act.

7. In Associated Cement Companies v. Their Workmen : (1960)ILLJ1SC , while examining the question as to when two units owned by the same company would became parts of one establishment for the purpose of the Industrial Disputes Act, 1947 the Supreme Court summed up the position as follows :

'The Act not having prescribed any specific tests for determining what is 'one establishment', we must fall back on such considerations as in the ordinary industrial or business sense determine the unity of an industrial establishment, having regard no doubt to the scheme and object of the Act and other relevant provisions of the Mines Act, 1952, or the Factories Act, 1948, what then is 'one establishment' in the ordinary industrial or business sense The question of unity or oneness presents difficulties when the industrial establishment consists of parts, units, departments, branches, etc. If it is strictly unitary in the sense of having one location and one unit only, there is little difficulty in saying that it is one establishment. Where, however, the industrial under-taking has parts, branches, departments, units, etc. with different locations, near or distant, the question arises what tests should be applied for determining what constitutes 'one establishment'. Several tests were referred to in the course of arguments before us, such as, geographical proximity, unity of ownership, management and control, unity of employment and conditions of service, functional integrality, general unity of purpose etc. To most of these we have referred while summarising the evidence of Mr. Dongray and the finding of the Tribunal thereon. It is, perhaps, impossible to lay down any one test as an absolute and invariable test for all cases. The real purpose of these tests is to find out the true relation between the parts, branches, units etc. If in their true relation they constitute one integrated whole, we say that the establishment is one; if on the country they do not constitute one integrated whole, each units is then a separate unit. How the relation between the units will be judged must depend on the facts proved, having regard to the scheme and object of the statute which give the right of unemployment compensation and also prescribes disqualification therefor. Thus, in one case the unity of ownership, management and cannot may be the important test; in another case functional integrality or general unity may be the important test; and in still another case, the important test may be the unity of employment. Indeed, in a large number of cases several tests may fall for consideration at the same time. The difficulty of applying these tests arises because of the complexities of modern industrial organisation; many enterprises may have functional integrality between factories which are separately owned; some may be integrated in part with units or factories having the same ownership and in part with factories or plants which are independently owned. In the midst of all these complexities it may be difficult to discover the real thread of unity.'

As observed in the above decision, the real purpose of the test must be to find out the true relation between the parts, branches, units etc. and if in their true relation they constitute one integrated whole, then it must be held that the establishment is one. But, on the contrary, if they do not constitute one integrated whole, then each unit must be held to be independent and a separate one.

8. The following factual features are admitted : (i) Both the press and the publication are owned by the same firm; (ii) the control and supervision of both the units are by one and the same agency, may be by different partners; (iii) regarding finance, the bank account is one; and the tax assessments are common; (iv) in the press, no outside job is undertaken; (v) only to cater to the needs of the publication and to serve its cause, the press was started; (vi) the maintenance of the press as well as the publication is from and out of the subscription and advertisement revenue from the publication; and (vii) the press cannot be carried on but for the publication and the needs of the publication with regard to printing are being fulfilled by the press. In our view, as held by the learned judge, these factual features clinchingly establish the financial, managerial and functional integrality between the two units and they constitute one integrated whole.

9. Coming to the factors that have been mainly taken note of by the first respondent to hold that the press and the publication are independent units, they are; the location of the two units; their registration under different status (the Press, under the Factories Act and the Publication, under the Tamil Nadu Shops and Establishments Act); and the existence of two separate unions, one for the employees of the press and one for the emloyees of the publication. It is also urged before us that the employees of the two units stand on separate muster rolls; the wage structures are different; and there is no element of transferability from one unit to another. As rightly held by the learned judge, these features are of much consequence and the major features with regard to financial, managerial, and functional integrality besides common ownership having been established, they clinch the issue and we have to hold that the first respondent has not appreciated and applied the correct principles to the admitted facts and has not drawn the invariable conclusion in law. The purpose must be to find out the true relation between the two units, as to whether they constitute one integral whole. Unless there are other clinching factual features which completely militate against this integrality; financially, managerially and functionally, besides common ownership, the conclusion is inescapable that the two units constitute one and the same establishment. The first respondent did find as a matter of fact that there is financial, managerial and functional integrality between the two units. Yet, the first respondent chose to ignore these crucial features, taking note features, which are not very germane on the facts of the present case. The other features taken note of by the first respondent are likely to be there, even when the same establishment is to man two or more parts of its own and, on the facts of the present case, they are not decisive.

10. The above discussion obliges us to dismiss the writ appeal and accordingly, the same is dismissed. There will be no order as to costs.


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