Delhi High Court
The Associated Press, Through Its ... vs Laurinda Keys Long & Another on 31 July, 2009
Author: Sanjiv Khanna
Bench: Sanjiv Khanna
REPORTABLE
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ WRIT PETITION (CIVIL) NO.3783 OF 2008
Reserved on : 22nd July, 2009.
% Date of Decision : 31st July, 2009.
THE ASSOCIATED PRESS, THROUGH
ITS GENERAL MANAGER ..... Petitioner.
Through Mr. Ravinder Sethi, Sr. Advocate
with Mr S. Gupta, Mr. Ateev Mathur, Mr. Manish
Paliwal and Mr. Puneet Sharma, Advocates.
VERSUS
LAURINDA KEYS LONG & ANOTHER ... Respondents
Through Mr. K.C. Mittal, Advocate
with Mr. Suman Doval, MSection
Ruchika Mittal and Mr. Sujeet Singh,
Advocates.
CORAM:
HON'BLE MR. JUSTICE SANJIV KHANNA
1. Whether Reporters of local papers may be
allowed to see the judgment?
2. To be referred to the Reporter or not ? Yes
3. Whether the judgment should be reported
in the Digest ? Yes
SANJIV KHANNA, J.:
1. Ms. Laurinda Keys Long, the respondent No.1 herein is a person of Indian origin holding an American passport, who was WP(C) NO.3783-2008 Page 1 employed by the Associated Press, the petitioner herein on 11th October, 1976 in U.S.A. The petitioner is an accredited news agency with Press Information Bureau and engaged in news collection and distribution.
2. The respondent No.1 after employment with the petitioner worked in various countries as per their directions and requirement as a Journalist. By letter dated 27th August, 1999, she was transferred and posted for the first time to India (New Delhi) as a News Editor. The respondent No.1 was paid wages and salary as per the terms and conditions of employment from 1976 onwards. It is a case of the petitioner that even after transfer to India, her salary was paid in US Dollars in her US account though tax at source was being deducted and paid to the Indian Government.
3. The petitioner terminated the services of the respondent No.1 on 30th November, 2004. It is a case of the respondent No.1 that termination was without any cause or reason.
4. The respondent No.1 preferred a petition under Section 17(1) of the Working Journalists & Other Newspaper Employees (Conditions of Service) and Miscellaneous Provisions Act, 1955 ( Act, for short) before the Deputy Labour Commissioner for payment of gratuity by the respondent No.1. By the impugned order, which bears the date 15th February, 2008, Deputy Labour Commissioner has allowed the application under Section 17 (1) of the Act and has directed the WP(C) NO.3783-2008 Page 2 petitioner to pay gratuity to the respondent No.1 of Rs. 45,10,254/- along with the interest @ 12% per annum from 23rd December, 2005.
5. Two questions arise for consideration in the present writ petition. Firstly, whether the Act is applicable and secondly, whether the said order could have been passed by Deputy Labour Commissioner under Section 17(1) of the Act without recourse to proceedings as contemplated under Section 17(2) of the Act.
6. The Act was enacted to regulate conditions of service of working journalists, etc. in the newspaper establishments. Section 1 of the Act states that it extends to whole of India. Section 2(d) and 2(f) define the term "newspaper establishment" and "working Journalists". The said definition clauses are as under:-
"2(d). "newspaper establishment" means an establishment under the control of any person or body of persons, whether incorporated or not, for the production or publication of one or more newspaper or for conducting any news agency or syndicate:
and includes newspaper establishments specified as one establishment under the Schedule-
Explanation.- For the purpose of this clause-
(a) different departments, branches and centres of newspaper establishments shall be treated as parts thereof;
(b) a printing press shall be deemed to be a newspaper establishment if the principal business thereof is to print newspaper;
2(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 WP(C) NO.3783-2008 Page 3 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;"
7. On conjoint reading of Sections 1, 2(d) & (f) of the Act, it is apparent that relevant provisions of the Act will apply to persons, who are working journalists within the meaning of Section 2(f) and are employed in a newspaper establishment as defined in Section 2(d) of the Act. Even if the respondent No.1 was initially appointed as a working journalist in United States of America in the year 1976, and on the basis of the said initial appointment was transferred to India vide letter dated 27th August, 1999, as her services were terminated on 30th November, 2004 while working in India, she would be governed and entitled to protection and benefits under the Act. The contractual terms regulating the employment of respondent No.1 may have been agreed and settled outside India but once the respondent No.1 was transferred to India and the petitioner satisfies requirements of newspaper establishment and the respondent No.1 satisfies the requirements of a working journalist, the Act will be applicable. Section 16 of the Act in categorical terms states that the provisions of the Act will have over-riding effect on any other previous law, award, WP(C) NO.3783-2008 Page 4 agreement or contract of service, which are inconsistent therewith. More favourable terms are protected.
8. The Supreme Court in Bennett Coleman and Co. Pvt. Ltd., Vs. Punya Priya Das Gupta, AIR 1970 SC 426 had interpreted the expression "working journalist" in Section 2(f) of the Act and held that the said expression is not restricted to a newspaper employee who is presently employed in a newspaper establishment but the term includes an ex-employee, whose employment has come to an end. The first issue, therefore regarding applicability of the Act is decided in favour of the respondent No.1. It is held that the respondent No.1 is entitled to protection and benefits under the Act. The petitioner is also bound by the Act being a newspaper establishment and the respondent No.1 was a working journalist as defined for the purpose of the Act.
9. The second issue relates to interpretation of Section 17 of the Act and the jurisdiction of Deputy Labour Commissioner to adjudicate the contentions and defences raised by the petitioner to the application under Section 17 (1) of the Act filed by respondent No.1. Section 17 of the Act reads as under:-
"[17. Recovery of money due from an employer.- (1) Where any amount is due under this Act to a newspaper employee from an employer, the newspaper employee himself, or any person authorised by him in writing in this behalf or in the case of the death of the employee, any member of his family may, without prejudice to any other mode of recovery, make an application to the State Government for the recovery of the WP(C) NO.3783-2008 Page 5 amount due to him and if the State Government, or such authority, as the State Government may specify in this behalf, is satisfied that any amount is so due, it shall issue a certificate for that amount to the Collector, and the Collector shall proceed to recover that amount in the same manner as an arrear of land revenue.
(2) If any question arises as to the amount due under this Act to a newspaper employee from his employer, the State Government may, on its own motion or upon application made to it, refer the question to any Labour Court constituted by it under the Industrial Disputes Act, 1947 (14 of 1947) or under any corresponding law relating to investigation and settlement of industrial disputes in force in the State and the said Act or law shall have effect in relation to the Labour Court as if the question so referred were a matter referred to the Labour Court for adjudication under that Act or law.
(3) The decision of the Labour Court shall be forwarded by it to the State Government which made the reference and any amount found due by the Labour Court may be recovered in the manner provided in sub- section (1)."
10. There is difference between Section 17(1) and Section 17(2) of the Act. Section 17(1) of the Act provides for recovery of an amount due to a newspaper employee from an employer as arrears of land revenue. A newspaper employee, for this purpose, is required to make an application to the State Government or authority appointed by the State Government, who can issue a certificate for recovery of the amount through the Collector under the Land Revenue Act. The State Government or the authority under Section 17(1) should be WP(C) NO.3783-2008 Page 6 satisfied that the amount is due to the newspaper employee before a certificate is issued.
11. Section 17(2) of the Act stipulates that when any question arises as to the amount due under the Act to a newspaper employee from an employer, the State Government on its own motion or on an application will refer the disputes to the Labour Court under the Industrial Disputes Act, 1947 or corresponding law, if applicable. Section 17(2) applies when a dispute arises about the amount due to the newspaper employee from the employer. The dispute is to be adjudicated by the Labour Court under the Industrial Disputes Act after reference is made by the State Government on its own motion or on an application made. Sub Section (3) to Section 17 stipulates that the amounts determined by the Labour Court under section 17(2) can be recovered under Section 17(1) of the Act. Under Sub-Section (1) to Section 17 of the Act, the State Government or the authority appointed by the State Government is not competent and authorized to adjudicate the disputes relating to the amount claimed or due. The State Government or the authority appointed by the State Government is not an adjudicating authority and capable of deciding the disputes on the amount due. The State Government or the authority cannot adjudicate and determine the rights, accept or reject the claim or defence by passing a detailed order dealing with the merits and contentions raised by the parties. In such cases the matter has to be referred to adjudication under Section 17(2) of the Act.
WP(C) NO.3783-2008 Page 7 Satisfaction required under Section 17(1) is not equivalent to; nor confers jurisdiction to adjudicate disputed questions. The Supreme Court in Kasturi & Sons Pvt. Ltd. Versus Section N. Salivateswaran & Others 1959 SCR 1 had examined the provisions of Section 17 of the Act and had observed that the inquiry contemplated under Section 17(1) requires a summary inquiry of very limited nature and is confined to narrow question what is the actual amount due to be paid to the employee under the decree, award or any other valid order obtained by the employee after he or she establishes the claim. The Supreme Court rejected the contention that the State Government or the authorized authority can hold an inquiry into the merits and contentious issues regarding an employee's claim while deciding the question of satisfaction under Section 17 (1) of the Act. The Supreme Court observed:-
"9. ..... It is well-known that, whenever the legislature wants to confer upon any specified authority powers of a civil Court in the matter of holding enquiries, specific provision is made in that behalf. If the legislature had intended that the enquiry authorized under Section 17 should include within its compass the examination of the merits of the employee's claim against his employer and a decision on it, the legislature would undoubtedly have made an appropriate provision conferring on the State Government or the specified authority the relevant powers essential for the purpose of effectively holding such an enquiry. The fact that the legislature has enacted Section 11 in regard to the Wage Board but has not made any corresponding provision in regard to the State Government or WP(C) NO.3783-2008 Page 8 the specified authority under Section 17 lends strong corroboration to the view that the enquiry contemplated by Section 17 is a summary enquiry of a very limited nature and its scope is confined to the investigation of the narrow point as to what amount is actually due to be paid to the employee under the decree, award, or other valid order obtained by the employee after establishing his claim in that behalf. We are reluctant to accept the view that the legislature intended that the specified authority or the State Government should hold a larger enquiry into the merits of the employee's claim without conferring on the State Government or the specified authority the necessary powers in that behalf. In this connection, it would be relevant to point out that in many cases some complicated questions of fact may arise when working journalists make claims for wages against their employers. It is not unlikely that the status of the working journalist, the nature of the office he holds and the class to which he belongs may themselves be matters of dispute between the parties and the decision of such disputed questions of fact may need thorough examination and a formal enquiry. If that be so it is not likely that the legislature could have intended that such complicated questions of fact should be dealt with in a summary enquiry indicated by Section 17.
10. Section 17 seems to correspond in substance to the provisions of Section 20, sub-section (1), of the Industrial Disputes (Appellate Tribunal) Act, 1950, which has now been repealed. Under this section, any money due from an employer under any award or decision of an industrial tribunal may be recovered as arrears of land revenue or as a public demand by the appropriate Government on an application made to it by the person entitled to the money under that award or decision. It is clear that the proceeding under Section 20, sub-section (1), could commence only if and after the workman had obtained an award or decision WP(C) NO.3783-2008 Page 9 in his favour. We are inclined to think that the position under Section 17 is substantially similar."
12. Counsel for the respondent No.1 submitted that under Section 17(1) of the Act, the State Government or the authorized officer is entitled to adjudicate disputed questions of law and, therefore, the Deputy Labour Commissioner was entitled to interpret Section 5 of the Act and hold that the respondent No.1 was entitled to and compute quantum of gratuity. It was contended that when only disputed questions of facts are involved, the matter is required to be referred and adjudicated under Section 17 (2) of the Act. It is not possible to agree with the said contention. Section 17(2) of the Act will apply when disputed questions of facts, disputed questions of law or when mixed disputed question of facts and law arise. The jurisdiction of the State Government or the authorized authority is limited under Section 17(1) of the Act and confined to narrow examination for satisfaction whether any amount can be recovered. A detailed or elaborate inquiry into disputes and counter claims whether they relate to law, facts or are mixed questions of law and facts is not envisaged under Section 17(1) of the Act.
13. The petitioners in the present case had filed a detailed written statement/reply before Deputy Labour Commissioner, authorized officer appointed by the State Government under Section 17 (1) of the Act. Disputes were raised regarding applicability of Section 5 and the quantum of gratuity payable under Section 5. One of the WP(C) NO.3783-2008 Page 10 contentions raised was whether service rendered by the respondent No.1 outside India before she was transferred to India vide letter dated 27th August, 1999 can be taken into consideration and counted for computing gratuity. These questions are debatable; require adjudication and application of mind before they are decided one way or the other. Possibly the respondent No.1 has a good case and after due application of mind and reasoning, the State Government or the authorized officer may feel that the claimant newspaper employee would succeed, but this by itself would not confer jurisdiction on the State Government or authorized officer to exercise power under Section 17(2) of the Act. Lack of jurisdiction will make an order void and lifeless, even when the decision is correct. A right decision cannot confer jurisdiction, when under the statute the adjudicator has no authority and power to decide. Adjudication is to be made by the Labour Court and not by the State Government or the authorized officer under Section 17(1) of the Act. Any adjudication or inquiry into the merits and contentious issues can only be done under Section 17(2) of the Act and not under Section 17(1) of the Act. Any order passed by the State Government or the authorized officer under Section 17(1) of the act adjudicating the disputes and contentions relating to merits and the amount due would be without jurisdiction. It is clear from the order stated to be dated 4th May, 2008 that the respondent No.2, Deputy Labour Commissioner has adjudicated the disputes and contentions raised by the parties in the order. He has, WP(C) NO.3783-2008 Page 11 therefore, acted without jurisdiction and the order cannot be sustained.
14. In view of the aforesaid discussion the writ petition is allowed and the impugned order dated 4th May, 2008 passed by Deputy Labour Commissioner is set aside. The claim of the respondent No.1 for gratuity and the quantum thereof has to be adjudicated under Section 17 (2) of the Act. The State Government is at liberty to make reference to the Labour Court under Section 17(2) of the Act.
15. It is clarified that this Court has not expressed any opinion; whether the claim of the respondent No.1 for payment of gratuity and quantum thereof is maintainable under Section 5 of the Act. It is further clarified that this Court has not examined other contentions raised by the petitioner with regard to back dating of the impugned order in view of the aforesaid reasoning. No Costs.
(SANJIV KHANNA) JUDGE JULY 31, 2009.
NA/P WP(C) NO.3783-2008 Page 12