Karnataka High Court
The Management Of The Printers (Mysore) ... vs Union Of India on 29 January, 2013
Author: Ravi Malimath
Bench: Ravi Malimath
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
ON THE 29TH DAY OF JANUARY 2013
BEFORE
THE HON'BLE MR.JUSTICE RAVI MALIMATH
WRIT PETITION NO.43062 OF 2003(L-RES)
BETWEEN:
The Management of
The Printers (Mysore) Pvt.Ltd.,
Having its registered office
At Plot Nos.7-12. Kumbalgodu
Industrial Area, Phase-II
Bangalore - 560 074.
Represented by its Director
Sri K.N.Shantha Kumar. ... PETITIONER
(By Sri Pradeep S.Sawkar & Sri Abhilash Raju, Advocate
for Sri Sundaraswamy Ramdas and Sri Anand, Advocates)
AND:
1. Union of India
Represented by its Secretary
Ministry of Labour,
Shram Shakthi Bhavan,
Rafi Marg, New Delhi - 110 001.
2. Bangalore Newspaper
Employees Union
District Office Compound,
Kempegowda Road,
Bangalore - 560 009
Represented by its
General Secretary. ... RESPONDENTS
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(By Sri C.Shashikantha, ACGSC for R1
Sri M.C.Narasimha, Sr.Counsel & Sri K.B.Narayana,
Advocate for R2)
*****
This Writ Petition filed under articles 226 and 227 of
the Constitution of India praying to declare that the
notification dated 5.12.2000 vide Annexure-B issued by
the Central Government at paras I(d), (e) and (f) is
unconstitutional and consequently declare that the order
of reference dated 19.10.2002 vide Annexure-E made by
the appropriate Government and the proceedings in
I.D.235/2000 are without authority of law. Set aside the
order dated 19.5.2003 passed by the Industrial Tribunal,
Bangalore, in I.D.235/2002 vide Annexure-L.
This Writ Petition coming on for hearing this day, the
Court made the following:-
ORDER
The petitioner is a company incorporated under the Companies Act, 1956 and carrying on the business of printing and publishing of newspaper, periodicals, magazines etc. viz., Deccan Herald, Prajavani, Sudha, Mayura, etc. The employees of the petitioner company are classified in two categories, namely, working journalists and non-working journalists.
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2. The Working Journalists And Other Newspaper Employees (Conditions of Service) and Miscellaneous Provisions Act, 1955 (hereinafter referred to as 'Act'), was promulgated to regulate their service conditions employed in the newspaper establishments. The provisions of the Act postulates creation of a Wage Board in order to assist the Central Government to make its recommendations. Accordingly, a Wage Board was constituted in terms of Section - 9 and Section - 13C of the Act for fixing / revising rates of wages of working journalists and non- journalists newspaper employees in various newspaper establishment.
3. The Wage Board thus constituted submitted their recommendations on 25.07.2000, in terms of Annexure -A to the writ petition. Subsequently, the Central Government issued a notification dated 05.12.2000, under Section - 12 of the Act notifying the said recommendations of the Wage Board subject to modification as specified therein. The same is produced as Annexure - B to the writ petition. Thereafter, based on the notification of the Central 4 Government, the second respondent-the Bangalore Newspaper Employees Union, raised an industrial dispute seeking upgradation of twelve Scanner Operators working as Factory Staff in the petitioner company as working journalists. The same was replied to. A conciliation was effected, which ended in a failure. Thereafter, the State Government by its order dated 19.10.2002 referred the said dispute for adjudication to the Industrial Tribunal, in terms of Annexure - E.
4. During the pendency of the matter before the Industrial Dispute Tribunal, due to exigencies, the petitioner transferred two of twelve workmen, one to Hubli and the other to Mangalore. At the request made by one of them, the transfer order was postponed and the workmen was directed to report to duty by 13.05.2003. Likewise, the other person also submitted an application seeking for extension and the petitioner-Management extended the time of reporting.
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5. In the meanwhile, the second respondent union filed I.A. No.2 for a direction to the Management to keep the orders of transfer in abeyance till the disposal of the case. On contest, the I.A. was allowed and the order of transfer was kept in abeyance. Further, the Tribunal directed the Management not to effect any change in the place of work and work assignment of all the workmen involved in the case.
6. Under these circumstances, being aggrieved by the notification issued by the Central Government in terms of Section-12 of the Act, in notifying the recommendation of the Wage Board along with modifications, the present writ petition has been filed seeking the following reliefs:
(a) to declare that the Notification dated 05.12.2000 (Annexure - B) issued by the Central Government at para - i (d), (e) and (f) as unconstitutional and consequently declare that the order of reference bearing No.LD 108 IDA 2002, dated 19.10.2002 (Annexure - E) made by the appropriate Government and the proceedings in I.A. 235 of 2000 are without authority of law;6
(b) set-aside the order dated 19.05.2003 passed by the Industrial Tribunal, Bangalore, in I.D. 235/2002 (Annexure - L)
(c) pass such other orders as this Hon'ble Court deems fit to grant in the circumstances of the case.
7. Shri. Pradeep S. Sawkar, the learned counsel appearing for the petitioner contends that the notification issued by the Central Government is unconstitutional and hence requires to be set-aside. Thus, as a consequence whereof, the reference made by the Industrial Dispute Tribunal also requires to be set-aside. He places reliance on the recommendations made by the Wage Board in terms of Annexure - A. With reference therein, he contends that the demands which have been enunciated, did not contain the inclusion of Scanner / Scanner Operators. It was not even pleaded. The demands as noted in para - 2.1.3, as stated in the Wage Board recommendation are as follows:
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(a) Scale of wages
(b) Dearness Allowance,
(c) Other Allowance,
(d) Wages of Part - Time Employees
(e) Wages For Time Work (Time-Rated Employees)
8. There was no demand by the workmen or by others to treat the Scanner / Scanner Operator to be read as coming under the definition of a Working Journalists in terms of Section - 2(f) of the Act. Therefore, when there is not even a recommendation made by the Wage Board, the question of the Central Government adding on the said category is beyond its jurisdiction.
9. The recommendations as made by the Wage Board admittedly does not contain the said category of the Scanner / Scanner Operators. When the recommendations of the Wage Board was thereafter placed for consideration before the Central Government for issuance of necessary orders, the Central Government in exercise of its powers under Section - 12 of the Act issued the notification in terms of Annexure - B. While so doing, the powers under 8 Section - 12 of the Act were invoked. It is stated that the report could be accepted by the Central Government, with certain modifications which in the opinion of the Central Government does not affect important alteration and the character of the recommendation. It is therefore contended that the inclusion of a category into the definition of working journalists and placing the Scanner / Scanner Operation in the first schedule by deleting them from the Fourth Schedule is ultra vires. The purported power exercised by the Central Government under Section - 12 of the Act is ultra vires.
10. That the Central Government has apparently exercised powers under Section - 12(2) of the Act. That the modification which is sought to be made by the Central Government is the inclusion of the Scanner Operator into the First Schedule. This was not the recommendation of the Wage Board. It was a modification that the Central Government thought fit to inculcate. When a modification is made in terms of the proviso of Clause - (a), to Section -
12(2), the Central Government shall cause notice to all 9 persons likely to be affected in any manner. Apparently, by including the Scanner Operator in the First Schedule, the petitioner would necessarily stand affected. Therefore, notice to them was mandatory and failure to comply with the mandatory provisions of the proviso to clause - (2)(a) of Section - 12 would therefore render the notification of the Central Government as unconstitutional.
11. On the other hand, Shri. C. Shashikantha, the learned Additional Central Government Standing Counsel, appearing for the first respondent - Union of India supports the notification. He contends that none of the pleas of the petitioner could be accepted. That the power that has been exercised by the Central Government as narrated in Annexure - B, is in terms of Section - 12 of the Act. It is stated therein that the Central Government proposed to accept the recommendations of the Wage Board, subject to modifications. Such modifications in the opinion of the Central Government, does not affect the important alteration in the character of the recommendations. Therefore, the notification has to be 10 read as if the Central Government has exercised the powers under Section - 12(1) of the Act. He pleads that the contentions of the petitioners that the power under Section
- 12(2) has been exercised is ill-founded and cannot be accepted.
12. He further contends that after the Wage Board made its recommendations, there were representations made to the Central Government by various persons and agencies. That these recommendations were considered by the Central Government. In the opinion of the Central Government they thought it fit to add the Scanner / Scanner Operators into the First Schedule and that such an action has been undertaken only after considering the relevant material and the representations made. He further pleads that the contention of the petitioner that it is unconstitutional is misplaced and liable to be set-aside.
13. Shri. M.C. Narasimhan, the learned Senior Counsel appearing on behalf of the counsel for the second respondent, supports all the contention of the first 11 respondent. He however further adds that by inclusion of Scanner / Scanner Operator on to the first Schedule, there is no fundamental change in the recommendation made by the Wage Board. He relies on the definition in terms of Section - 2(f) to state that the job of Scanner / Scanner Operator is necessarily to be considered an equivalent to the work of a journalist. That the nature of the work they do and other factors has to be considered while determining whether they could be included into the definition of the 'Working Journalists'. The definition for 'Working Journalists' includes an editor, a leader-writer, news-editor, sub-editor, feature-writer, copy-tester, reporter, correspondent, cartoonist, news-photographer and proof-reader. Therefore, in view of the nature of his job he should be included under the definition of 'Working Journalists'. It is under these circumstances that the Central Government having thought it fit, has included the same. That such an action was taken by the Central Government based on the various recommendations made to it and the various demands made by workmen and 12 other agencies. He further reiterates that the power exercised by the Central Government is under Section - 12(1) of the Act and not under Section - 12(2). He therefore, contends that the petition is devoid of merits and liable to be dismissed.
14. Heard learned counsels and examined the material.
15. The Working Journalists And Other Newspaper Employees (Conditions of Service) and Miscellaneous Provisions Act, 1955, has been promulgated to regulate all the conditions of the working journalists and other persons. It contemplates the constitution of the Wage Board to be constituted under Section - 9 of the Act by the Central Government. A recommendation is to be made by the Wage Board to the Central Government. In terms of Section - 12, the Central Government can enforce the recommendations of the Wage Board. Notwithstanding the recommendations made, the Central Government, as it thinks fit, can make modifications to the recommendations 13 made by the Board or if modifications are likely to affect persons then, such persons shall be issued a notice to the said effect. Section - 12 of the Act reads as follows:
"12. Powers of Central Government to enforce recommendations of the Wage Board -
(1) As soon as may be, after the receipt of the recommendations of the Board, the Central Government shall make an order in terms of the recommendations or subject to such modifications, if any, as it thinks fit, being modifications which, in the opinion of the Central Government, do not effect important alterations in the character of the recommendations.
(2) Notwithstanding anything contained in sub-section (1), the Central Government may, if it thinks fit, -
(a) make such modifications in the
recommendations, not being
modifications of the nature referred to in sub-section (1), as it thinks fit:
Provided that before making any such modifications, the Central Government 14 shall cause notice to be given to all persons likely to be affected thereby in such manner as may be prescribed, and shall take into account any representations which they may make in this behalf in writing; or
(b) refer the recommendations or any part thereof to the Board, in which case, the Central Government shall consider its further recommendation and make an order either in terms of the recommendations or with such modifications of the nature referred to in sub-section (1) as it thinks fit."
(3) Every order made by the Central Government under this Section shall be published in the Official Gazette, together with the recommendations of the Board relating to the order and the order shall come into operation on the date of publication or on such date, whether prospectively, or retrospectively, as may be specified in the order."15
16. There is a clear distinction between sub section (1) and (2) of the Act. The power of the Central Government to make modifications is enunciated in clause - (1). It states that the Central Government as it thinks fit can make modifications to the recommendations made by the Board if it does not affect important alteration of the character of the recommendations. Therefore, this would have to be read to mean that whenever such recommendations are sought to be altered and such alterations do not affect the character of the recommendation, the same can be made by the Central Government in exercise of the power under sub-section-(1) of Section-12 of the Act.
17. Sub-section (2) of Section-12 of the Act, confers a greater power on the Central Government. It refers to such modification which are beyond those coming under sub-section-(1), which means such of those modifications which affects the character of the recommendations. That before such modifications are made, a notice shall be given to all such persons who are likely to be affected by such a 16 proposed modification. Therefore, a reading of Section - 12 would postulate the authority to the Central Government firstly, to accept the report as has been submitted by the Wage Board. Secondly, to accept the report with certain modification, if does not affect the important character of the recommendation and thirdly, to accept the recommendation with modifications which are likely to affect certain persons provided a notice is issued to them on such a proposed modification.
18. Under the facts and circumstances of the present case, it is undisputed that there was no demand before the Wage Board for inclusion of Scanner / Scanner Operator in the First Schedule. Consequently, there was no recommendation by the Wage Board to include the same. It is the Central Government who thought it fit to include the Scanner / Scanner Operator in the First Schedule.
19. In terms of including the Scanner / Scanner Operator in the First Schedule the scale of pay that the 17 scanner operator would be receiving would be higher than what was being paid to them presently. Prior to the notification they were classified in the category - 3(a) with a scale of pay of Rs.5765-260-7585-340-9965-450-12565. By giving effect to the notification, the scale of pay would be Rs.5475-300-7575-415-10480-575-13930.
20. The new scale of pay would necessarily affect the petitioner in view of the revision of the pay scale. It is for this reason that the proviso has to be read as being mandatory and failure to comply would render the action of the Central Government, i.e., issue of notification as ultravires the Act.
21. Whether the Scanner / Scanner Operator is to be construed as if coming within the definition of Section - 2(f) of the Act or not is not a matter of serious consideration before this Court. What is sought to be agitated herein is the power of the Central Government to pass such an order in terms of Section - 12 and whether such an order of the Central Government is ultravires the 18 Act. Even though it has been argued by the respondent with regard to the nature of the work rendered by the Scanner / Scanner Operator, in my considered view that is not a subject matter of this writ petition. Theoretically, even if it is assumed that the definition of the 'Working Journalist' would include the Scanner / Scanner Operator, such an inclusion should necessarily be in accordance with law. When admittedly there is no demand to the Wage Board and there is no recommendation by the Wage Board, such a major decision as has been taken to include Scanners/ Scanner Operators in the First Schedule, it cannot be said that such an inclusion does not affect the character of the recommendation.
22. On the other hand, a plain reading would necessarily show the contrary. It is a modification that is wholly alien to the Wage Board recommendation. Therefore to say that the Central Government has exercised the powers under sub Section- (1) of Section - 12 is incorrect. The modification which the Central Government has thought it fit to inculcate in the notification is necessarily a 19 modification which changes the character of the recommendations. Therefore, the power exercised by the Central Government is under sub Section-(2) of Section-12 of the Act and in exercising the power under Section-12 (2) of the Act, it is mandatory to cause notice to the persons who are likely to be affected by such a recommendation. Admittedly, the same has not been done. Therefore, until and unless the proviso has been complied with, which is mandatory, the notification as has been issued by the Central Government in terms of Section - 12 of the Act would render it as being ultravires the Act.
23. Even though the prayer sought for is to declare Paragraphs - 1 (d, (e) and (f) of the notification dated 05.12.2012 as unconstitutional, I'am of the considered view that the question of the constitutional validity of the said clauses is wholly misplaced. What is required to be considered by in this writ petition is not the constitutional validity, but whether Annexure - B is ultravires the Act. The question of constitutional validity does not arise for consideration.
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24. Reference is made to the judgment dated 01.02.2006 passed in Writ Petition No.25288/2001. The petitioner therein was also a printer and publisher of newspaper, etc. It had challenged the very same notification that is sought to be challenged in this writ petition. On the submission made by the Central Government Standing Counsel, that no notice was issued to the petitioner prior to passing of the orders under Section - 12 of the Act and that the alteration made by the Central Government would increase the liability to the petitioner in payment of wages, the learned Single Judge was of the view that the impugned orders in the absence of issuance of the notices to the petitioner, the material modifications made by the Central Government are vitiated. Accordingly, the notification of the Central Government was quashed insofar as it relates to the petitioner and other consequential reliefs were ordered.
25. Consequently since no notice was issued, the Board was directed to issue such notices. However, in the 21 instant case, the Central Government has taken a stand in this case that it is a notification that has been issued in terms of Section-12(1) of the Act. That is their specific case. Therefore even though it is presently pleaded that the Central Government may be granted an opportunity to now issue notices to the petitioner, the same liberty cannot be granted to the respondents herein, purely because the contentions advanced herein are not that was advanced in the aforesaid writ petition. Further, the aforesaid writ petition was disposed off on a concession. The present order is on merits.
26. For the aforesaid reasons, the following order is passed:
(i) Paragraph Nos.1 (d), (e), (f) of the
notification of the Central Government
dated 05.12.2000, in terms of Annexure - B are quashed as being ultra vires the Working Journalists And Other Newspaper Employees (Conditions of Service) and Miscellaneous Provisions Act, 1955.
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(ii) Consequently, all further proceedings pursuant to the same are declared as null and void.
Rule made absolute.
Sd/-
JUDGE JJ