Gujarat High Court
Divya Bhaskar Corp Ltd vs State Of Gujarat & 2 on 2 February, 2018
Author: A.J.Desai
Bench: A.J.Desai
C/SCA/764/2018 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 764 of 2018
TO
SPECIAL CIVIL APPLICATION NO. 869 of 2018
FOR APPROVAL AND SIGNATURE :
HONOURABLE MR.JUSTICE A.J.DESAI Sd/-
=========================================
1. Whether Reporters of Local Papers may be NO allowed to see the judgment ?
2. To be referred to the Reporter or not ? NO
3. Whether their Lordships wish to see the fair NO copy of the judgment ?
4. Whether this case involves a substantial NO question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ?
=========================================================== DIVYA BHASKAR CORP LTD.....Petitioner Versus STATE OF GUJARAT & 2....Respondents ========================================= Appearance :
MR S N SOPARKAR, SENIOR COUNSEL ASSISTED BY MR YOGI K GADHIA, ADVOCATE for the Petitioner.
MS MANISHA LAVKUMAR, GOVERNMENT PLEADER ASSISTED BY MR TIRTHRAJ PANDYA, Assistant Government Pleader in Special Civil Application No.764 to 814 of 2018 for respondent No.1 & 3. MRS HANSA PUNANI, Assistant Government Pleader in Special Civil Application Nos.815 to 869 of 2018 for respondent No.1 & 3. MR ANVESH V. VYAS, CAVEATOR / ADVOCATE for the Respondent No.2 in Special Civil Application Nos.771 and 791 of 2018. MR PRABHAKAR UPADYAY, CAVEATOR / ADVOCATE for the Respondent No.2. MR AAKASH MODI, CAVEATOR / ADVOCATE for the Respondent No.2. MR AMRESH N. PATEL, CAVEATOR / ADVOCATE for the Respondent No.2. ========================================= CORAM : HONOURABLE MR. JUSTICE A.J.DESAI Page 1 of 19 HC-NIC Page 1 of 19 Created On Fri Feb 02 23:39:50 IST 2018 C/SCA/764/2018 CAV JUDGMENT Date : 2/02/2018 COMMON CAV JUDGMENT
1. The present group of petitions arise from different orders passed by the Labour Commissioner, State of Gujarat -
respondent No.1 herein exercising his powers under Section 17 (1) of the Working Journalists and Other Newspaper Employees (Conditions of Service) and Miscellaneous Provisions Act, 1955 directing the petitioner to pay certain amounts declaring that each of the employees is entitled for such benefits under the recommendations of Majithia Wage Board which was established under Section 9 of the Act.
2. Learned advocates have appeared for the respondent No.2 - employee on caveat and argued the matter at length. The State of Gujarat has also been represented by Government Pleader. All the learned advocates appearing for the respondents have categorically stated that they do not intend to file any affidavit-in- reply in the matter and would like to oppose each petitions on the record produced by the petitioner itself. They have also requested that the matters may be heard and finally disposed of.
3. Rule. Learned Assistant Government Pleader waives service of rule on behalf of respondent No.1 and respective learned advocates waive service of rule on behalf of respondent No.2 in this group of petitions.
4. The brief facts arises from the record are as under :-
5. That the petitioner is a Company registered under the Companies Act, 1956. The petitioner being a Public Limited Company is engaged in multi-ferrous business including Radio, Page 2 of 19 HC-NIC Page 2 of 19 Created On Fri Feb 02 23:39:50 IST 2018 C/SCA/764/2018 CAV JUDGMENT Media (print and electronics), Textile, Real Estate etc. The Working Journalists and Other Newspaper Employees (Conditions of Service) and Misc. Provisions Act, 1955 (hereinafter referred to as 'the Act') was enacted to regulate the conditions of service of working Journalists and other persons employed in the newspaper establishments throughout the country. One of the activities carried out by the petitioner Company is of printing newspaper and hence, the provisions of the Act would be applicable. Justice G. R. Majithia (Retired Judge, Bombay High Court) was appointed as Chairman of the two Wage Boards on 4.3.2009. The said two Wage Boards headed by Justice Majithia (hereinafter referred to as 'Majithia Wage Board') submitted its recommendations to the Central Government which was accepted by the Central Government and Notification under Section 12 of the said Act was published. Certain proceedings in connection with the Majithia Wage Board were heard before the Hon'ble Supreme Court. Subsequently, contempt petitions were also filed before the Hon'ble Supreme Court in the case of Avishek Raja and others v. Sanjay Gupta being Contempt Petition (C) No.411 of 2014 in Writ Petitions (C) No.246 of 2011 and allied matters. The said Contempt Petitions were disposed of by the Hon'ble Supreme Court on 19.6.2017 by issuing certain directions.
6. During the pendency of those Contempt Petitions, each of the respondent employee had submitted an application under Section 17 (1) of the Act to the State of Gujarat requesting to issue certificate of recovery of the amount of which details were supplied along with the said application in proforma form C of the Act.
7. The petitioner filed its objection and raised various contentions / objections including the maintainability of an Page 3 of 19 HC-NIC Page 3 of 19 Created On Fri Feb 02 23:39:50 IST 2018 C/SCA/764/2018 CAV JUDGMENT application under Section 17 (1) of the Act, about the applicability of the recommendations of Majithia Wage Board, denial of the amount claimed by each of the employee and thereby requested the State of Gujarat to exercise its power under Section 17 (2) of the Act by referring the case of the employees to Labour Court for adjudication. The petitioner had also raised various other objections which would be referred herein after at suitable findings.
8. The Labour Commissioner by his impugned orders which have been passed in the month of December, 2017 in all these group petitions, accepted the application of the employees in part and directed to issue recovery certificates to the tune of other than the amount claimed by the employees and further directed to execute the certificates as per the provisions of Bombay Land Revenue Code.
9. Hence these petitions.
10. Mr. S.N. Soparkar, learned Senior Counsel assisted by Mr. Yogi K. Gadhia, learned advocate appearing for the petitioner has vehemently submitted that the Labour Commissioner has acted beyond his jurisdiction while exercising his power under Section 17 (1) of the Act. He would submit that though specific contentions have been raised by the petitioner with regard to the eligibility of each workman for the benefits as per the recommendations of the Majithia Wage Board, with regard to option availed by each of the respondent - employee under Clause 20 (J) of the recommendations of Majithia Wage Board, the say of the employee that such option was given by the employee under duress and that too in absence of any material. The findings with regard to the above aspects Page 4 of 19 HC-NIC Page 4 of 19 Created On Fri Feb 02 23:39:50 IST 2018 C/SCA/764/2018 CAV JUDGMENT recorded by the respondent are beyond the scope of powers under Section 17 (1) of the Act. He would submit that a copy of the declaration as per clause 20 (J) of the Majithia Wage Board recommendations submitted by each of the employee was produced by the respondent and a specific objection was raised about the entitlement of any benefits under the recommendations of the Majithia Wage Board, the respondent - State ought to have referred the matter to Labour Court, as provided under Section 17 (2) of the Act. He would further submit that the petitioner has also raised a question of eligibility of each employee with regard to the benefits claimed under Majithia Wage Board.
11. He would further submit that when any question arises as to the amount due, such issue is required to be referred to the Labour Court constituted under the provisions of Industrial Disputes Act, 1947 and thereafter, the Labour Court has to adjudicate the said issue. By taking me through the applications submitted by the employees, he would submit that the amount was claimed by the employees whereas the respondent authority has accepted part of the amount claimed and has accordingly issued Certificates which is beyond the scope of Section 17 (1) and, therefore, as provided under Section 17 (2), the question ought to have been referred to the Labour Court. He would submit that the Hon'ble Supreme Court while disposing of the contempt petitions itself has held that if some dispute arises, the same is required to be resolved by Fact Finding Authority under Section 17 of the Act.
12. In support of his submissions, Mr. Soparkar has relied upon the decisions in the case of the Hon'ble Supreme Court in the case of (1) Kasturi and Sons (Private) Limited v. Shri N. Salivateeswaran and another AIR 1958 SC 507, (2) Samarjit Page 5 of 19 HC-NIC Page 5 of 19 Created On Fri Feb 02 23:39:50 IST 2018 C/SCA/764/2018 CAV JUDGMENT Ghosh v. M/s. Bennett Coleman and Company and another (1987) 3 SCC 507 (3) decision of this Court in the case of Keshavlal M. Rao v. State of Gujarat and others 1993 - I L.L.N. 373 (4) decision of the High Court of Judicature at Bombay in the case of Navbharat Press Employees Union, C/o. Mafatlal Employees Union, Thane v. State of Maharashtra, Labour Industries and Energy Department, Mumbai and others, 2009 III CLR 782 (5) decision of the Punjab and Haryana High Court in the case of State of Punjab and others v. Malout Transport Company, reported in 1963 IIILJ 40 (PH). He, therefore, would submit that the impugned orders may be quashed and set aside and appropriate orders may be passed.
13. On the other hand, Ms. Manisha Lavkumar, learned Government Pleader assisted by Mr. Tirthraj Pandya and Ms. Hansa Punani, learned Assistant Government Pleaders appearing for the State as well as Mr. Prabhakar Upadhyaya and Mr. Aakash Modi and Mr. Anvesh V. Vyas, learned advocates appearing for the respondent No.2 - employees would submit that the respondents - employees fall under the category of working journalists and, therefore, recommendations made by Majithia Wage Board would be applicable and, therefore, raising such dispute in recovery proceedings is only to delay in making the payments for which the employees are entitled to. He would further submit that the so- called declaration under Clause 20 (J) of the recommendations which were produced were obtained under duress which has been rightly dealt with by the authority below. It was further submitted that even if it is accepted that such declaration was made, it is not the case of the petitioner that the benefits to the working journalists as per the terms and conditions are higher than recommended by Majithia Wage Board and, therefore also, the Page 6 of 19 HC-NIC Page 6 of 19 Created On Fri Feb 02 23:39:50 IST 2018 C/SCA/764/2018 CAV JUDGMENT petitions are required to be dismissed. He would submit that though the claim by each of the employee is of X amount and certificate is issued qua another Y amount which is less than the claim one. The employees accepted the same as full and final amount and, therefore, there is no question of further determination of the amount. He, therefore, would submit that the petitions may be dismissed.
14. Learned advocates appearing for the respondents would further submit that the alleged declaration made at the instance of each employee by which it is alleged to have declared that the employees had exercised their options to be retained in the prevailing wage structures since the wage structure of the Company is better and more favourable, cannot be accepted since the petitioner did not produce any documentary evidence to establish that the wage structure is better than recommended by Majithia Wage Board. Therefore, the same is inconsistent with the provisions of the Act and, therefore, Section 16 of the Act would come into play and, therefore, the respondent authority has rightly discarded such defence raised by the petitioner. They, therefore, would submit that the petitions be dismissed.
15. Neither learned advocates Mr. Patel and Mr. Upadhyaya nor Ms. Manisha Lavkumar, learned Government Pleader have relied upon any decision in support of their contentions. However, they would submit that if the impugned orders are quashed and set aside, then appropriate directions may be issued to the authorities / Courts below.
16. I have heard learned advocates appearing for the respective parties. Since the question involved in the present Page 7 of 19 HC-NIC Page 7 of 19 Created On Fri Feb 02 23:39:50 IST 2018 C/SCA/764/2018 CAV JUDGMENT group of petitions is with regard to provisions of Section 17 of the Act, the same is reproduced herein below :-
"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 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)."Page 8 of 19
HC-NIC Page 8 of 19 Created On Fri Feb 02 23:39:50 IST 2018 C/SCA/764/2018 CAV JUDGMENT
17. It is an undisputed fact that relying upon the recommendations of Majithia Wage Board, the respondents - employees had submitted applications for recovery of certain dues under Section 17 (1) of the Act. By submitting applications, X amount was claimed by the employees and calculations were submitted along with the applications as per Form C to the Schedule of the Act. Pursuant to the notice issued by the respondent authority, the petitioner appeared before the respondent No.1 authority and lodged its objections and maintainability of the applications and raised different types of disputes and requested the Authority to refer the matter to Labour Court as provided under Section 17 (2) of the Act.
18. A detailed objection has been produced at Annexure D along with the present petition wherein specific contentions have been raised about the amounts claimed by the employees, option availed by employees and declaration made under Clause 20 (J) of the Majithia Wage Board recommendations and whether each of the employees would be covered as per Majithia Wage Board recommendations on the ground that the employees are non- working Journalists and would not entitle for any benefits.
19. The Hon'ble Supreme Court in the case of Avishek Raja and others v. Sanjay Gupta (Supra) while disposing of Contempt Petition (C) No.411 of 2014 in Writ Petitions (C) No.246 of 2011 and allied matters, has after dealing with the provisions of the Act as well as certain recommendations of Majithia Wage Board and particularly, Clause 20 (J) has held in paragraphs 23 and 24 which read as under :-
"23. The Majithia Wage Board Award has been Page 9 of 19 HC-NIC Page 9 of 19 Created On Fri Feb 02 23:39:50 IST 2018 C/SCA/764/2018 CAV JUDGMENT approved by this Court by its judgment dated 07.02.2014 passed in Writ Petition No. 246 of 2011. The Award, therefore, has to be implemented in full. While it is correct that issues concerning, (i) Clause 20(j); (ii) whether the award applies to contractual employees; (iii) whether it includes variable pay and (iv) the extent of financial erosion that would justify withholding of payment of arrears has not been specifically dealt with either in the Award or in the judgment of this Court, there can be no manner of doubt that a reiteration of the scope and ambit of the terms of the Award would necessarily be called for and justified. This is what we propose to do hereinafter so as to ensure due and full compliance with the order(s) of the Court.
24. Insofar as the highly contentious issue of Clause 20(j) of the Award read with the provisions of the Act is concerned it is clear that what the Act guarantees to each "newspaper employee" as defined in Section 2(c) of the Act is the entitlement to receive wages as recommended by the Wage Board and approved and notified by the Central Government under Section 12 of the Act. The wages notified supersedes all existing contracts governing wages as may be in force. However, the Legislature has made it clear by incorporating the provisions of Section 16 that, notwithstanding the wages as may be fixed and notified, it will always be open to the concerned employee to agree to and accept any benefits which is more favourable to him than what has been notified under Section 12 of the Act. Clause 20(j) of the Majithia Wage Board Award will, therefore, have to be read and understood in the above light. The Act is silent on the availability of an option to receive less than what is due to an employee under the Act. Such an option really lies in the domain of the doctrine of waiver, an issue that does not arise in the present case in view of the specific Page 10 of 19 HC-NIC Page 10 of 19 Created On Fri Feb 02 23:39:50 IST 2018 C/SCA/764/2018 CAV JUDGMENT stand of the concerned employees in the present case with regard to the involuntary nature of the undertakings allegedly furnished by them. The dispute that arises, therefore, has to be resolved by the fact finding authority under Section 17 of the Act, as adverted to hereinafter."
20. The Hon'ble Supreme Court in the case of Kasturi and Sons (Private) Limited v. Shri N. Salivateeswaran and another (Supra) while dealing with the provisions of Section 17 (1) and 17 (2) of the Act, empowering the Authority to deal with the disputes, has held in paragraphs 4 to 9 as under :-
"4. The petitioner's case is that Section 17 of the Act provides only for a mode of recovery of any money due to a working journalist. It does not empower the State Government or the authority specified by the State Government to act as a forum for adjudicating 4 upon the merits of the disputed claim. That being so, the second respondent has no jurisdiction to deal with the merits of the first respondent's claim against the petitioner. In the alternative, the petitioner contends that,if S. 17 confers jurisdiction on the State Government or the authority specified by the State Government to adjudicate upon disputed claims mentioned in the said. section, the said section would be ultra vires and void. On these alternative pleas, two alternative reliefs are claimed by the petitioner. The first relief claimed is that a writ in the nature of the writ of prohibition or other suitable writ or direction be issued restraining the second respondent from exercising any powers under S.17 of the Act and proceeding with the enquiry into the application filed by the first respondent and forwarded to him by the State Government and issue him a certificate. The other relief claimed is that this court should be pleased to order and direct that S.17 of the Act Page 11 of 19 HC-NIC Page 11 of 19 Created On Fri Feb 02 23:39:50 IST 2018 C/SCA/764/2018 CAV JUDGMENT is ultra vires and void on the grounds set out in the petition.
5. It would be necessary and convenient to construe S.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 S.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 S.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 S.17 need not be considered in the present petition over again. The main point which remains to be considered, however, is: Does S.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 hip, 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 5 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 s..
Page 12 of 19HC-NIC Page 12 of 19 Created On Fri Feb 02 23:39:50 IST 2018 C/SCA/764/2018 CAV JUDGMENT 17 must relate to compensation awardable under S.4 of the Act, gratuity awardable under S.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 S.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 S.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 S.17 is a prior determination by a competent authority or the 6 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 S.17 without prejudice to any other mode of recovery available to him.
Page 13 of 19HC-NIC Page 13 of 19 Created On Fri Feb 02 23:39:50 IST 2018 C/SCA/764/2018 CAV JUDGMENT 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 S.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 S.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 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 S.17 has not been clothed with the normal powers of a court or a tribunal to hold a formal enquiry. It is true that S.3, sub-s. (1) of the Act provides for the application of the Industrial Disputes Act, 1947, to or in relation to working journalists subject to sub-s. (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 S.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 7 or tribunals under the Industrial Disputes Act. It is obvious that the relevant provisions of S.11 of the Page 14 of 19 HC-NIC Page 14 of 19 Created On Fri Feb 02 23:39:50 IST 2018 C/SCA/764/2018 CAV JUDGMENT 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 S.17 merely by virtue of S.3 (1) of the Act.
9. In this connection, it would be relevant to remember that S.11 of the Act expressly confers the material powers on the Wage Board established under S..8 of the Act. Whatever may be the 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 s. 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 authorized under S.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 S.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 S.17 lends strong corroboration to the view that the enquiry contemplated by S.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 Page 15 of 19 HC-NIC Page 15 of 19 Created On Fri Feb 02 23:39:50 IST 2018 C/SCA/764/2018 CAV JUDGMENT 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 8 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 S.17."
21. The Hon'ble Supreme Court in the case of Samarjit Ghosh v. M/s. Bennett Coleman and Company and another (Supra) has categorically held that if the dispute arises about the amount, such dispute is required to be referred to a Labour Court. Paragraph 6 of the judgment is relevant which reads as under :-
"6. When all the provisions of S. 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 Page 16 of 19 HC-NIC Page 16 of 19 Created On Fri Feb 02 23:39:50 IST 2018 C/SCA/764/2018 CAV JUDGMENT 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 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."
22. While dealing with the provisions of Section 33 of the Industrial Disputes Act, 1947 which are pari material to Section 17 of the Act, similar view has been taken by the High Court of Judicature at Mumbai in the case of Navbharat Press Employees Union, C/o. Mafatlal Employees Union, Thane v. State of Maharashtra, Labour Industries and Energy Department, Mumbai and others (Supra).
23. Similar is the view taken by the Punjab and Haryana High Court in the case of State of Punjab and others v. Malout Transport Company (Supra).
24. Therefore, in my view, when different types of disputes have been raised by the employees including the amount claimed by the employees and the respondent No.1 authority has calculated its own amount, I am of the opinion that the respondent No.1 Page 17 of 19 HC-NIC Page 17 of 19 Created On Fri Feb 02 23:39:50 IST 2018 C/SCA/764/2018 CAV JUDGMENT authority has committed an error in issuing Certificates while exercising powers under Section 17 (1) of the Act. In my opinion, the respondent No.1 authority ought to have exercised its power under Section 17 (2) of the Act and should have referred the disputes to the Labour Court for adjudication. It has also come to the knowledge of this Court that the authority below who has passed the impugned orders, itself has, in case of some employees of the petitioner Company, dealt with similar applications and has referred the case to Labour Court, exercising his power under Section 17 (2) of the Act. Writ petitions being Special Civil Application Nos.1805 to 1827 of 2018 filed by employees challenging those orders have been disposed of by the undersigned on 31.1.2018.
25. As far as the submissions with regard to provisions of Section 16 of the Act raised by learned advocates Mr. Patel and Mr. Upadhyaya for the respondents is concerned, this Court has not examined the same since the Court inclines to pass appropriate orders in the matters.
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 appropriate and relevant disputes which have been raised in the respective Page 18 of 19 HC-NIC Page 18 of 19 Created On Fri Feb 02 23:39:50 IST 2018 C/SCA/764/2018 CAV JUDGMENT 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 orders, including the present judgment.
Sd/-
(A.J.DESAI, J.) Savariya Page 19 of 19 HC-NIC Page 19 of 19 Created On Fri Feb 02 23:39:50 IST 2018