Gujarat High Court
Devji Maganbhai Vacheta vs D B Corp Ltd Through The Authorized ... on 26 June, 2018
Equivalent citations: AIRONLINE 2018 GUJ 135
Author: Harsha Devani
Bench: Harsha Devani, A.S. Supehia
C/LPA/433/2018 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 433 of 2018
In
SPECIAL CIVIL APPLICATION NO. 818 of 2018
with
CIVIL APPLICATION NO. 1 of 2018
with
R/LETTERS PATENT APPEAL NO. 434 of 2018
In
SPECIAL CIVIL APPLICATION NO. 764 of 2018
With
CIVIL APPLICATION NO. 1 of 2018
with
R/LETTERS PATENT APPEAL NO. 538 of 2018
In
SPECIAL CIVIL APPLICATION NO. 823 of 2018
With
CIVIL APPLICATION NO. 1 of 2018
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS.JUSTICE HARSHA DEVANI
and
HONOURABLE MR.JUSTICE A.S. SUPEHIA
==========================================================
1 Whether Reporters of Local Papers may be allowed to
see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the
judgment ?
Page 1 of 23
C/LPA/433/2018 JUDGMENT
4 Whether this case involves a substantial question of law
as to the interpretation of the Constitution of India or any
order made thereunder ?
==========================================================
DEVJI MAGANBHAI VACHETA
Versus
D B CORP LTD THROUGH THE AUTHORIZED SIGNATORY SHARAD
MATHUR
==========================================================
Appearance:
MR PRABHAKAR UPADYAY(1060) and Mr. AKASH MODI, and Mr. AMRESH
PATEL, ADVOCATES for the appellants.
Mr. GOPAL JAIN, SENIOR ADVOCATE, LEAREND COUNSEL assisted by
Ms. MANU M SAINANI (9671) for the RESPONDENT No.1
Mr. UTKARSH SHARMA, ASSISTANT GOVERNMENT PLEADER(1) for the
RESPONDENT(s) No. 2,3
==========================================================
CORAM:HONOURABLE MS.JUSTICE HARSHA DEVANI
and
HONOURABLE MR.JUSTICE A.S. SUPEHIA
Date : 26/06/2018
COMMON ORAL JUDGMENT
(PER : HONOURABLE MS.JUSTICE HARSHA DEVANI)
1. All these appeals are directed against the common judgment and order dated 2.2.2018 passed by the learned Single Judge in Special Civil Application No.764 of 2018 and allied matters, whereby the writ petitions filed by the respondent-company have been allowed and the second respondent Labour Commissioner has been directed to exercise his power under section 17(2) of the Working Journalists and Other Newspaper Employees (Conditions of Service) and Miscellaneous Provisions Act, 1955 (hereinafter referred to as 'the Act') and refer the matter with appropriate and relevant disputes which have been raised in the respective Page 2 of 23 C/LPA/433/2018 JUDGMENT cases. Since all the appeals arise out of a common judgment and order, they were heard together and are decided by this common judgment.
2. The facts stated briefly are that the first respondent original petitioner is a company registered under the Companies Act, 1956. The appellants herein while claiming to be the employees of the company moved an application under section 17(1) of the Act before the respondent No.2 Labour Commissioner claiming recovery of arrears of wages as revised by the Majithia Wage Board Recommendations which were duly notified by the Central Government vide notification dated 11.11.2011, the validity of which has been affirmed by the Supreme Court by a judgment and order dated 7.2.2014.
3. The first respondent-company appeared and filed its reply and contested the matter on the grounds that it is only when the employer fails to pay the dues which are to be recovered that the employees are entitled to make an application under section 17(1) of the Act; whereas in this case the claimants have not approached the employer company in the prescribed manner for claiming dues in accordance with the Majithia Wage Board Recommendations and have directly raised a claim before the Labour Commissioner; the appellants were not covered by the Majithia Wage Board Recommendations as their duties were of managerial/ supervisory/ administrative nature which do not fall within the ambit of the definition of 'working journalists' or 'non-working journalists'. It was further contended that the concerned employees had signed waiver in terms of clause 20(J) of the Page 3 of 23 C/LPA/433/2018 JUDGMENT Majithia Wage Board's Recommendations. It was also stated that the statement of the amount due on account of difference in pay is not correct and that no amount is due from the Company on the basis of the Majithia Board Recommendations. Drawing attention of the provisions of sub-section (2) of section 17 of the Act, it was contended that the Labour Commissioner had no jurisdiction to adjudicate the claim filed by the claimants under section 17(1) of the Act.
4. Pursuant to the applications made by the appellants, the second respondent Labour Commissioner entered into an adjudicatory process and after turning down the objections raised by the first respondent company, allowed the claim of the appellants and issued a certificate under section 17(1) of the Act.
5. Being aggrieved, the respondent-company presented the captioned writ petitions before this court challenging the orders passed by the second respondent Labour Commissioner. By the impugned common judgment and order dated 2.2.2018 made in Special Civil Applications No.764 of 2018 to 869 of 2018, the learned Single Judge allowed the writ petitions in the following terms:
"26. In the result, all these writ petitions succeed and are allowed. The impugned orders passed by the respondent No.1 Authority are hereby quashed and set aside. Rule is made absolute to the above extent.
27. However in the interest of justice, following directions have been issued:-
[1] The respondent No.1 shall exercise his power under Section 17(2) of the Act and refer the matters with Page 4 of 23 C/LPA/433/2018 JUDGMENT appropriate and relevant disputes which have been raised in the respective cases. Such exercise shall be carried out by the respondent No.1 Authority within a period of four weeks from the date of receipt of copy of this order.
[2] The Labour Court shall dispose of the Reference/s as expeditiously as possible, not later than six months in accordance with law.
[3] It is hereby made clear that this Court has not examined the case on merits and, therefore, the Labour Court shall decide the references on its own merits, without being influenced by any of the observations made in any of the order, including the present judgment."
6. It appears that the State Government has accepted the judgment and order passed by the learned Single Judge and in compliance with the above directions referred the matter to the Labour Court under section 17(2) of the Act, and accordingly, the proceedings are pending adjudication.
7. Certain other facts connected with the controversy in issue may also be noted. Contempt petitions came to be filed before the Supreme Court by the employees against their respective employers in connection with the non- implementation of the Majithia Wage Board recommendations, wherein by an order dated 4.10.2016 in Contempt Petition (C) No.411/ 2014 in Writ Petition (C) No.246/ 2011, the Supreme Court, inter alia, observed thus:
"In all cases where there is a dispute with regard to the amount payable, we direct the State Governments to act under the provisions of Section 17(2) of the Working Journalists and Other Newspaper Employees (Conditions of Service) and Miscellaneous Provisions Act, 1955. The concerned Labour Court will finalize its award expeditiously and send the same to the State Government for due execution."Page 5 of 23
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8. It appears that several writ petitions came to be filed before this court being Special Civil Application No.11874 of 2014 and other allied matters seeking a direction to the respondent-employers to implement the recommendations of the Majithia Wage Board which had been accepted by the Government of India by its notification dated 11.11.2011, as directed by the Supreme Court and make payment of wages as per the said recommendations. A Division Bench of this court, by a judgment and order dated 16.12.2015 dismissed the petitions on the ground of non-maintainability. It, however, expressed the opinion that such disputes deserve adjudication before the competent authority/ court as per section 17 of the Act. The court further clarified that as and when complaints/applications are received from the concerned newspaper employees by the State Government, the State Government shall consider and decide the same in accordance with law keeping in mind the provisions of sections 17 and 18 of the Act.
9. Mr. Prabhakar Upadhyay and Mr.Akash Modi, learned advocates for the appellants submitted that the learned Single Judge ought to have taken into consideration that the respondent Company had submitted its reply dated 29.11.2016 before the Labour Commissioner in the proceedings initiated under section 17 of the Act. However, in support of the contentions raised in the reply, the respondent Company had not produced any evidence on record. It was submitted that the proceedings had been adjourned from time to time with a view to provide ample opportunity to the Page 6 of 23 C/LPA/433/2018 JUDGMENT respondent Company to produce evidence; however, the respondent Company failed to do so. It was emphatically argued that there is no disputed question of fact involved in the present case, despite which the learned Single Judge has held that the issue which has been raised by the original petitioner viz., the respondent Company is required to be adjudicated under section 17(2) of the Act.
9.1 It was submitted that the Supreme Court had been pleased to pass judgment dated 7.2.2014 in Writ Petition (C) No.246/ 2011 and allied matters, whereby it had upheld the notification dated 11.11.2011 issued by the Government of India and had been pleased to direct the concerned newspaper establishments to implement the recommendations of the Majithia Wage Board in view of the notification dated 11.11.2011 and directed to pay arrears to the concerned employees. It was contended that the rights of the present appellants have been crystallized in view of the notification dated 11.11.2011 issued by the Government of India and the judgment and order dated 7.2.2014 passed by the Supreme Court. It was submitted that the respondent Company is bound to implement the judgment passed by the Supreme Court and that the claim of the appellants being based upon the notification dated 11.11.2011 and the decision of the Supreme Court, no disputed question of fact is involved.
9.2 It was submitted that based on the decision of the Supreme Court, the Labour Commissioner has powers under section 17(1) of the Act to issue certificate to recover the amount due from the respondent Company. It was contended that on the basis of the facts and the evidence available on Page 7 of 23 C/LPA/433/2018 JUDGMENT record, it is crystal clear that there are no disputed questions of fact as canvassed by the respondent Company and therefore, the Labour Commissioner had the jurisdiction to issue recovery certificate under section 17(1) of the Act, on the basis of the evidence available on record.
9.3 It was further submitted that the learned Single Judge had failed to appreciate clause 20(J) of the notification dated 11.11.2011 in proper perspective, as the same would be applicable only in the case where the employer is paying emoluments higher than the recommendations made as contemplated under section 16 of the Act, namely that where under any such award, agreement, contract of service or otherwise, a newspaper employee shall continue to be entitled to the more favourable benefits in respect of that matter, notwithstanding that he receives benefits of other matters under the Act. However, the respondent Company has failed to establish in the proceedings initiated under section 17(1) of the Act that it is extending pay scale and other monetary benefits higher than that provided as per the recommendations of the Majithia Wage Board.
9.4 It was submitted that the appellants had produced pay slips as provided by the respondent Company and also submitted copies of statements of claim certified by a Chartered Accountant and that the amount to which the appellants are entitled had been mentioned in the certificate issued by the Chartered Accountant. The claim made by the appellants had not been controverted by the respondent Company in the proceedings initiated under section 17(1) of the Act, and hence, the second respondent Labour Page 8 of 23 C/LPA/433/2018 JUDGMENT Commissioner had no option but to draw adverse inference against the respondent Company and was wholly justified in exercising powers under section 17(1) of the Act and issuing certificate in favour of the appellants herein. It was accordingly urged that the impugned judgment and order passed by the learned Single Judge suffers from various infirmities, and is therefore, required to be quashed and set aside and the order passed by the Labour Commissioner deserves to be restored.
10. On the other hand Mr. Gopal Jain, senior advocate, learned counsel for the respondent Company, submitted that the scope of sub-section (1) of section 17 of the Act has been well settled by decisions of the Supreme Court as well as different High Courts, including this High Court. In support of such submission, the learned counsel placed reliance upon the decisions of the Supreme Court in M/s Kasturi and sons (Private) Ltd. v. Shri N. Salivateeswaran and another, A.I.R. 1958 SC 507; Samarjit Ghosh v. Bennett Coleman & Company and another, (1987) 3 SCC 507; as well as decision of this High Court in Keshavlal M. Rao v. State of Gujarat & others, 1993 (1) GLR 1, to submit that the power conferred under sub-section (1) of section 17 of the Act can be exercised by the Labour Commissioner provided there is a prior determination in favour of the applicants. It was submitted that the Labour Commissioner has no power to adjudicate upon a claim and in case a claim is made without prior determination, the Labour Commissioner is required to refer the matter to the Labour Court under sub-section (2) of section 17 of the Act.
10.1 The attention of the court was invited to the order dated 4.10.2016 passed by the Supreme Court in contempt petitions Page 9 of 23 C/LPA/433/2018 JUDGMENT filed by the employees against the concerned employers on account of non-compliance of its direction regarding implementation of the Majithia Wage Board recommendations, to submit that in these very proceedings the court has directed the State Governments to act under the provisions of section 17(2) of the Act and has further observed that the concerned Labour Courts will finalize the award expeditiously and send the same to the State Government for due execution. It was submitted that under the circumstances, the contention that the judgment of the Supreme Court was a determination in favour of the appellants is misconceived.
10.2 It was further submitted that the appellants/claimants cannot be judges in their own cause and decide the amount due and that the law in this regard is well settled. Referring to the impugned order it was pointed out that the learned Single Judge had directed time-bound adjudication and the process before the competent forum has already commenced. It was further pointed out that the impugned judgment and order was passed on 2.2.2018 and the State Government had referred the matter to the Labour Court by an order dated 21.2.2018, whereas the present appeals have been preferred on 28.2.2018 during the pendency of the proceedings before the Labour Court. It was urged that the learned Single Judge has rightly held that the Commissioner had no powers under section 17(1) of the Act to decide disputed questions of facts and directed him to refer the matter to the Labour Court under section 17(1) of the Act and that there being no infirmity in the impugned order passed by the learned Single Judge the appeals deserve to be dismissed.Page 10 of 23
C/LPA/433/2018 JUDGMENT
11. The limited controversy that arises in the present case is as to whether or not pursuant to the applications made by the appellants, the Labour Commissioner was justified in exercising powers under section 17(1) of the Act and issuing certificate of recovery of the amount so claimed to the Collector. According to the respondent Company, the applications made by the appellants were in the nature of claims, and, therefore, in the absence of a prior determination by a competent authority, the Labour Commissioner, in exercise of powers under sub-section (1) of section 17 of the Act, had no jurisdiction to adjudicate upon such claims and issue a certificate of recovery and should have referred the dispute to the Labour Court as contemplated under sub-section (2) of the Act and based on the determination made by the Labour Court, if any amount was found due, issued certificate of recovery under sub-section (1) of section 17 of the Act.
12. Thus, the controversy in the present case, centers around the scope of sub-section (1) of section 17 of the Act. It would, therefore, be necessary to refer to the provisions of section 17 of the Act, which read thus:
"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 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 Page 11 of 23 C/LPA/433/2018 JUDGMENT 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)."
13. Thus, under sub-section (1) of section 17 of the Act, a newspaper employee is entitled to make an application to the State Government for recovery of any amount due to him. This is without prejudice to his right to any other mode of recovery. Basically, therefore, sub-section (1) of section 17 of the Act is a recovery proceeding. In terms of sub-section (1) of section 17 of the Act, upon an application for recovery being made, if the State Government is satisfied that any amount is so due, it is required to issue a certificate for that amount to the Collector, who in turn is required to proceed to recover such amount in the same manner as an arrear of land revenue.
14. The scope of the powers of the Labour Commissioner under sub-section (1) of section 17 of the Act is no longer res integra and stands concluded by the above referred decisions of the Supreme Court as well as this High Court.
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15. In M/s Kasturi and sons (Private) Ltd. v. Shri N. Salivateeswaran (supra), the Supreme Court has held thus:
"5. It would be necessary and convenient to construe Section 17 of the Act first and determine its true scope and effect. The larger question about the vires of this Act and the validity of the decision of the Wage Board set up by the Central Government under Section 8 of the Act have been considered by us in the several petitions filed by several employers in that behalf before this Court. We have held in those petitions that, with the exception of Section 5(1)(a)(iii) which deals with the payment of gratuity to employees who voluntarily resign from service, the rest of the act is valid. That is why the question about the vires of Section 17 need not be considered in the present petition over again. The main point which remains to be considered, however, is: Does Section 17 constitute the State Government or the authority specified by the State Government into a forum for adjudicating upon the merits of the claim made by newspaper employee against his employer under any of the provisions of this Act? Section 17 provides:
"Where any money is due to a newspaper employee from an employer under any of the provisions of this Act, whether by way of compensation, gratuity or wages, the newspaper employee may, without prejudice to any other mode of recovery, make an application to the State Government for the recovery of the money due to him, and if the State Government or such authority as the State Government may specify in this behalf is satisfied that any money 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."
It is clear that the employee's claim against his employer which can form the subject-matter of an enquiry under Section 17 must relate to compensation awardable under Section 4 of the Act, gratuity awardable under Section 5 of the Act, or wages claimable under the decision of the Wage Board. If the employee wishes to make any other claim against his employer, that would not be covered by Page 13 of 23 C/LPA/433/2018 JUDGMENT Section 17. As the marginal note shows, the section deals with the recovery of money due from an employer.
6. The employee contends that the process of recovery begins with the making of an application setting out the claim and ends with the actual recovery of the amount found due. On this construction, the dispute between the employee and his employer in regard to any claim which the employee may make against his employer would fall to be determined on the merits right up from the start to the issue of the certificate under this section. In other words, if a claim is made by the employee and denied by the employer, the merits of the claim together with the other issues that may arise between the parties have to be considered under this section. On this argument Section 17 provides a self-contained procedure for the enforcement of the claims covered by it.
7. On the other hand, the case for the petitioner is that the section provides for a procedure to recover the amount due from an employer, not for the determination of the question as to what amount is due. The condition precedent for the application of Section 17 is a prior determination by a competent authority or the court of the amount due to the employee from his employer. It is only if and after the amount due to the employee has been duly determined that the stage is reached to recover that amount and it is at this stage that the employee is given the additional advantage provided by Section 17 without prejudice to any other mode of recovery available to him. According to this view, the State Government or the authority specified by the State Government has to hold a summary enquiry on a very narrow and limited point: Is the amount which is found due to the employee still due when the employee makes an application under Section 17, or, has any amount been paid, and, if yes, how much still remains to be paid? It is only a limited enquiry of this type which is contemplated by Section 17. Within the scope of the enquiry permitted by this section are not included the examination and decision of the merits of the claim made by the employee. When the section refers to the application made by the employee for the recovery of the money due to him, it really contemplates the stage of execution which follows the passing of the decree or the Page 14 of 23 C/LPA/433/2018 JUDGMENT making of an award or order by an appropriate court or authority. In our opinion, the construction suggested by the petitioner should be accepted because we feel that this construction is more reasonable and more consistent with the scheme of the Act.
8. It is significant that the State Government or the specific authority mentioned in Section 17 has not been clothed with the normal powers of a court or a tribunal to hold a formal enquiry. It is true that Section 3, sub- section (1) of the Act provides for the application of the Industrial Disputes Act, 1947, to or in relation to working journalists subject to sub-section (2); but this provision is in substance intended to make working journalists workmen within the meaning of the main Industrial Disputes Act. This section cannot be read as conferring on the State Government or the specified authority mentioned under Section 17 power to enforce attendance of witnesses, examine them on oath, issue commission or pass orders in respect of discovery and inspection such as can be passed by the boards, courts or tribunals under the Industrial Disputes Act, It is obvious that the relevant provisions of Section 11 of the Industrial Disputes Act, 1947, which confer the said powers on the conciliation officers, boards, courts and tribunals cannot be made applicable to the State Government or the specified authority mentioned under Section 17 merely by virtue of Section 3(1) of the Act.
9. In this connection, it would be relevant to remember that Section 11 of the Act expressly confers the material powers on the Wage Board established under Section 8 of the Act. Whatever may be true nature or character of the Wage Board -- whether it is a legislative or an administrative body -- the legislature has taken the precaution to enact the enabling provisions of Section 11 in the matter of the said material powers. 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 authorised 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 Page 15 of 23 C/LPA/433/2018 JUDGMENT 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 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 proceedings under Section 20, sub-section (1) could commence only if and after the workman had obtained an award or decision in his favour. We are inclined to Page 16 of 23 C/LPA/433/2018 JUDGMENT think that the position under Section 17 is substantially similar."
16. In Samarjit Ghosh v. Bennett Coleman & Company (supra), the Supreme Court held thus:
"5. Sub-Sections (2) and (3) of Section 17 provide:
"(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)."
6. When all the provisions of Section 17 are considered together it is apparent that they constitute a single scheme. In simple terms the scheme is this. A newspaper employee, who claims that an amount due to him has not been paid by his employer, can apply to the State Government for recovery of the amount. If no dispute arises as to the amount due the Collector will recover the amount from the employer and pay it over to the newspaper employee. If a question arises as to the amount due, it is a question which arises on the application made by the newspaper employee, and the application having been made before the appropriate State Government it is that State Government which will call for an adjudication of the dispute by referring the question to a Labour Court. When the Labour Court has decided the question, it will forward its decision to the State Government which made the reference, and Page 17 of 23 C/LPA/433/2018 JUDGMENT thereafter the State Government will direct that recovery proceedings shall be taken. In other words the State Government before whom the application for recovery is made is the State Government which will refer the question as to the amount due to a Labour Court, and the Labour Court upon reaching its decision will forward the decision to the State Government, which will then direct recovery of the amount."
17. A Division Bench of this court in Keshavlal M. Rao v. State of Gujarat (supra) held that:
"2. ... ... The condition precedent for invocation of section 17(1) is a prior determination by a competent authority or forum as to the amount due to the newspaper employee from his employer and that too under the Act. It is only after the amount due to the newspaper employee from his employer under the Act stands determined, without any disputation over it, the stage will be set for recovery as per section 17(1). Though section 17(1) speaks about the State Government or the specified authority being satisfied as to "amount is so due", the enquiry in this behalf could not be at a summary level and for a limited purpose to find out as to whether the amount already determined continues to be due or has been discharge fully or partially. Within the scope of section 17(1) determination as such of the amount due, would not fall. Section 17(2) of the Act in contrast by the very opening set of expressions, namely "If any question arises as to the amount due under this Act to a newspaper employee from his employer", sets down the process for determination of the amount due. ... ..."
18. Thus, section 17 of the Act provides for a procedure to recover the "amount due" from an employer and not for determination of the question as to what amount is due. The condition precedent for invocation of section 17(1) of the Act is a prior determination of the amount due to the employee from his employer by a competent authority or court. It is only after Page 18 of 23 C/LPA/433/2018 JUDGMENT the amount due to the employee has been duly determined that the stage is reached to recover that amount and it is at this stage that the employee is given an additional advantage provided by section 17 of the Act without prejudice to any other mode of recovery available to him. In case where there is an application based upon a prior determination of the amount due, the State Government or the authority specified by the State Government has to hold a summary inquiry on a very narrow and limited point: viz., is the amount which is found due to the employee still due when the employee makes an application under section 17 of the Act, or, has any amount been paid, and, if yes, how much still remains to be paid? It is only a limited enquiry of this type which is contemplated by section 17 of the Act. Within the scope of the enquiry permitted by this section, the examination and decision of the merits of the claim made by the employee are not included. When the section refers to the application made by the employee for the recovery of the money due to him, it really contemplates the stage of execution which follows the passing of the decree or the making of an award or order by an appropriate court or authority. Accordingly sub-section (2) of section 17 of the Act provides that if any question arises as to the amount due under the 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 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.
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19. Thus, if the application of the employee is based upon a prior determination, the State Government is required to proceed under sub-section (1) of section 17 of the Act and issue a certificate after ascertaining as to whether the entire amount is due or whether any part thereof has already been paid. However, if the application is not based on a determination and is based upon a claim like the present one, wherein the question as to the amount due would arise, the State Government may on its own motion or an application made to it, refer the dispute to any Labour Court constituted by it under the Industrial Disputes Act, 1947 or under any corresponding law relating to investigation and settlement of industrial disputes in force in the State Court, for adjudication under that Act or law. After the Labour Court adjudicates upon the claim, in view of the provisions of sub-section (3) of section 17 of the Act, its decision is required to be forwarded by it to the State Government which made the reference and any amount found due by the Labour Court may then be recovered in the manner provided in sub-section (1) of section 17 of the Act.
20. Thus, section 17 of the Act is a complete code for recovery of any amount due to the employee. In case it is a determined amount, recovery certificate would be issued under sub-section (1) of section 17 of the Act after conducting the narrow inquiry as contemplated therein. If the amount is not a determined one, the matter is required to be referred to the Labour Court for adjudication and after the Labour Court adjudicates upon the claim, if it finds any amount to be due, Page 20 of 23 C/LPA/433/2018 JUDGMENT then on the basis of such decision, a certificate of recovery would be issued under sub-section (1) of section 17 of the Act.
21. Examining the facts of the present case in the light of the above legal position, the appellants herein made applications before the second respondent Labour Commissioner, claiming that certain amounts to be due to them based upon the recommendations of the Majithia Wage Board. The respondent Company disputed the entitlement as well as the amount claimed by the appellants. The Labour Commissioner in the purported exercise of powers under sub-section (1) of section 17 of the Act, embarked upon a fact finding inquiry de hors any power to make such inquiry having been vested in him under the Act, and adjudicated the claims and determined the amounts due and issued certificates under sub-section (1) of section 17 of the Act. The exercise carried out by the Labour Commissioner is, therefore, clearly beyond the powers conferred upon him under sub-section (1) of section 17 of the Act which limits the inquiry to be made by the Labour Commissioner to the extent as to whether any part of the determined amount had already been paid or was the entire amount outstanding.
22. In the opinion of this court, since the applications made by the appellants were merely claims of amounts due based on the recommendations of the Majithia Wage Board and were not based upon any decision or determination of any competent authority determining such amounts to be due to the appellants, the Labour Commissioner had no jurisdiction under sub-section (1) of section 17 of the Act to enter into the merits Page 21 of 23 C/LPA/433/2018 JUDGMENT of such claims and issue certificates for recovery based upon such claims. Having regard to the fact that the applications were not based upon any prior determination, the correct course of action that ought to have been adopted by the Labour Commissioner was to resort to the provisions of sub- section (2) of section 17 of the Act and refer the question to the Labour Court envisaged under the said sub-section. It is only after the Labour Court adjudicated upon such claim and found that any amount is due to the applicants, that a certificate of recovery could have been issued under sub- section (1) of section 17 of the Act. The action taken by the Labour Commissioner on the applications made by the appellants was therefore, wholly without jurisdiction and unsustainable in law. The learned Single Judge was, therefore, wholly justified in setting aside the order dated 16.12.2017 passed by the second respondent Labour Commissioner and directing him to refer the question to the concerned Labour Court as contemplated under sub-section (2) of section 17 of the Act. The impugned judgment and order passed by the learned Single Judge being in consonance with law as well as the principles propounded in the above referred decisions, therefore, cannot be said to suffer from any infirmity so as to warrant interference.
23. The upshot of the above discussion is that the appeals fail and are accordingly dismissed. Notice is discharged with no order as to costs. The Labour Court shall proceed further in terms of the directions issued by the learned Single Judge in the judgment and order dated 2.2.2018 passed in the captioned petitions.
Page 22 of 23C/LPA/433/2018 JUDGMENT
24. In light of the order passed in the main letters patent appeals, the civil applications for stay do not survive and are disposed of accordingly. Notice is discharged with no order as to costs.
(HARSHA DEVANI, J) (A. S. SUPEHIA, J) karim Page 23 of 23