Andhra HC (Pre-Telangana)
Business Manager, Andhra Printers Ltd. vs Industrial Tribunal-Cum-Labour Court ... on 4 August, 1992
Equivalent citations: 1992(3)ALT519, (1993)ILLJ562AP
Author: P. Venkatarama Reddi
Bench: P. Venkatarama Reddi
ORDER
1. A preliminary objection raised by the Management of M/s. Andhra Printers Limited with regard to the maintainability of the application under Section 33-C(2) of the Industrial Disputes Act (hereinafter referred to as 'the I.D. Act') filed by a journalist has led to the filing of this writ petition by the Management. The Labour Court over-ruled the preliminary objection and held that Section 17 of the Working Journalists and Other Newspaper Employees (Conditions of Service) and Miscellaneous Provisions Act, 1955 (hereinafter referred to as 'W.J. Act') does not bar a claim under Section 33-C(2) of the I.D. Act made by a working journalist.
2. The 2nd respondent in the writ petition was the applicant before the Labour Court. He was a part-time Correspondent of Andhra Jyothi daily newspaper at Warangal. The 2nd respondent who was being paid a consolidated salary had claimed before the Labour Court scales of pay, Dearness Allowance, House Rent Allowance, Variable Dearness Allowance, Bonus and wages in lieu of earned leave, for the period between 1975 and 1986. The Management (petitioner herein) apart from denying entitlement of the petitioner to the monetary benefits claimed, took the plea that the remedy of the 2nd respondent lies under the provisions of the W.J. Act but not under the I.D. Act. The Labour Court rejected this plea of the Management recording its conclusion as follows :
"In view of the decision of the Karnataka High Court reported in 1982 - I - LLJ page 189, in view of the use of the words "without prejudice to any other mode of recovery" in Section 17(1) of the Working Journalists Act, in view of the scope of Section 33-C(2) of I.D. Act and in view of the fact that this Court alone has to decide the dispute between the parties either in a reference made by the Government or on a petition filed by the petitioner, I am of the opinion that M.P. 115/87 filed by petitioner is maintainable. Hence this petition is dismissed."
It is against this order of the Labour Court in I.A. No. 274/87 dated November 27, 1987 that the present writ petition has been filed with a prayer to quash the order of the Labour Court.
3. The learned Counsel for the petitioner Mr. G. Ramachandra Rao has argued that the 2nd respondent being a working journalist whose conditions of service are governed by the Act, should work out the remedies under the Act because his claim falls within the purview of the Act. The learned Counsel relying upon the judgment of the Supreme Court in State of Punjab v. Labour Court, Jullundur 1981 - I - LLJ - 354 has contended that the Act impliedly bars the jurisdiction of the Labour Court under Section 33-C(2) in relation to working journalists and other newspaper employees governed by the Act. The proper remedy of the journalists, according to the learned Counsel, is to move the State Government under Section 17(2) of W.J. Act to refer the question in dispute to the Labour Court and it is only after the Labour Court decides the question that the petitioner can approach the Government under Section 33-C(2) of I.D. Act for recovery of the money due as per the order of the Labour Court. The learned Counsel assailed the approach of the Labour Court in thinking that the Labour Court can decide a dispute of this nature whether it be on a reference under Section 17(2) of the W.J. Act or under Section 33-C(2) of the I.D. Act, and hence the objection raised by the Management is not one of substance. The learned Counsel for the 2nd respondent has countered the argument of the petitioner that the Labour Court cannot exercise its jurisdiction under Section 33-C(2) in the face of the remedy available to the journalist under Section 17 of the W.J. Act. The learned Counsel for the respondent submits that undisputedly the 2nd respondent comes within the definition of 'Workman' under the Industrial Disputes Act and if so, both the remedies can be availed of by the journalist-workman. The learned Counsel has also relied upon the Full Bench judgment of this Court in A.P.S.W.I. Co-op. Society Ltd. v. Labour Court, Hyderabad . and M. Radhakrishna Reddy v. Sri. B.V. Bus Service . to emphasise his point that the journalist-workman has a concurrent remedy. The Learned Counsel for the respondent supported the reasoning of the Labour Court based on the expression 'without prejudice to any other mode of recovery' occurring in Section 17(1) of the W.J. Act.
4. To resolve this controversy, it is necessary to make a brief reference to the relevant provision of the W.J. Act. As the preamble says, it is an Act to regulate certain conditions of service of working journalists and other persons employed in newspaper establishments. 'Newspaper employee' is defined to mean any working journalist, and includes any other person employed to do any work in or in relation to any newspaper establishment (Vide Clause (c) of Section 2); 'Working journalist' is defined to mean a person whose principal avocation is that of a journalist and (who is employed as such, either whole-time or part-time, in, or in relation to, one or more newspaper establishments) and includes an editor, reporter, etc. (Vide Clause (f) of S. 2). The bracketed words were substituted by Act 36 of 1981 with effect from August 13, 1980 in the place of the words "who is employed as such in or in relation to any newspaper establishment". There is also an exclusionary clause to the definition, but it is not relevant for the purpose of this case. The Act empowers the Central Government to fix the rates of wages of working journalist and non-journalist newspaper employees and revise the same from time to time. For fixation or revision of rates of wages, the Central Government can constitute a Wage Board or Tribunal. On receipt of the recommendations of the Board or the tribunal, the Central Government has to make an order in terms of the recommendations or subject to such modifications that do not effect important alteration in the character of recommendations. The powers and procedure to be followed by the Board and the Tribunal are set out in the Act. The Act also makes a provision for payment of gratuity on the termination, retirement, resignation or death of a working journalist without prejudice to any benefits or rights accruing under the Industrial Disputes Act. Restrictions on the hours of work of the working journalists are prescribed by the Act. The entitlement of earned leave on full wages and leave on medical certificate is also provided for by the Act. Section 3 of the Act enjoins that the provisions of the Industrial Disputes Act, 1947, as in force for the time being, shall subject to the modification specified in sub-section (2) apply to, or in relation to, working journalist as they apply to, or in relation to, workmen within the meaning of that Act. Sub-section (2) provides for a larger period of notice to be given to the working journalist in a case of retrenchment. There is no need to refer to other provision excepting the crucial provision contained in Section 17. Section 17 is in the following terms :
"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 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 same manner provided in sub-section (1)."
Even a cursory reading of Section 17 would show that it is only the amounts due to a newspaper employee under the Act (that could be recovered by resorting to the forum and machinery provided by that Section. Of course, in the present case almost all the claims made by the 2nd respondent are traceable to Justice Palekar Award constituted by the Central Government under the Act, as accepted by the Central Government. Hence there can be no doubt that the remedy provided by Section 17 of the Act can as well be resorted to by the 2nd respondent for the purpose of enforcing his monetary claims against the newspaper establishment. He could have sought for a reference of the question as to the amounts due under the W.J. Act to the Labour Court and based upon the order of the Labour Court, he could have recovered the amount under Section 17(3) read with sub-section (1) thereof. But the 2nd respondent has not chosen that remedy. He being a workman within the meaning of the Industrial Disputes Act, has chosen to invoke the jurisdiction of the Labour Court under Section 33-C of the I.D. Act. The question is whether the 2nd respondent is barred in law by doing so.
5. At the outset I must say that it is not uncommon in the history of labour legislation in our country to confer on an industrial employee benefits and remedies under two or more enactments. The apparent trend of the decided cases is to treat such remedies as concurrent supplementing or complementing each other but not excluding each other. The two Full Bench decisions of this Court referred to above are the classic examples of the application of this principle. If two remedies are available under two special enactments dealing with the labour welfare, it is perfectly open to the employee to choose one of the remedies under either of the enactments. In may view, the situation in the present case is no different from this legal proposition. However, there is one exception to this widely accepted principle and that exception is discernible from a solitary decision of the Supreme Court in State of Punjab v. Labour Court, Jullundur (supra). If the legislation conferring benefit on the employee or the workman with reference to a specified item or subject matter is considered to be a self-contained, comprehensive and exhaustive legislation laying down a distinct procedure for the enforcement of rights, the remedy provided in general terms by another enactment which is more general in nature, cannot be availed of by the workman. He has to work out his remedies within the frame work of the legislation providing for special remedy with respect to the specific subject matter. In that case, the Supreme Court held that an application under Section 33-C(2) of the I.D. Act cannot be maintained for the purpose of recovering gratuity due under the Payment of Gratuity Act. The Supreme Court observed that the Payment of Gratuity Act enacts a complete Code containing detailed provisions covering all the essential features of a scheme for payment of gratuity. After a brief reference to the provisions of the Act, the Supreme Court concluded that the Parliament intended that proceedings for payment of gratuity must be taken under that Act and not under any other law. The Supreme Court therefore held that the Labour Court therefore held that the Labour Court had no jurisdiction to deal with the application under Section 33-C. The learned Counsel for the petitioner has placed strong reliance on this judgment, but I do not think that this judgment has any relevance in the context of the W.J. Act. Section 3 of the W.J. Act brings into its fold by reference the provisions of the I.D. Act, 1947 for the time being in force subject to the modification contained in sub-section (2). Sub-section (1) of Section 3 enjoins :
"The provisions of the Industrial Disputes Act, 1947, as in force for the time being, shall subject to the modifications specified in sub-section (2), apply to, or in relation to, working journalists as they apply to, or in relation to, workmen within the meaning of that Act."
6. Section 3(2) provides for a longer period of notice before retrenching an editor or any other working journalist. Thus, Section 3(1) of the W.J. Act plainly manifests an intention to preserve and apply the provisions of the I.D. Act as amended from time to time to the working journalist as well. If so, Sec.33-C of the I.D. Act which is a remedial provision as far as the workman is concerned, ought to be imported and read into the provisions of the W.J. Act. When so read, there will be no inconsistency between Section 33-C and the provisions of the W.J. Act. Section 33-C can operate as an additional remedy to the working journalist. He can choose a convenient remedy either by moving the Labour Court under Section 33-C or by moving the State Government to refer the disputed question to the Labour Court for determination under Section 17(2) of the W.J. Act. The absence of the provision like Section 3 in the Payment of Gratuity Act makes all the difference for the applicability of the ratio of the Supreme Court's judgment referred to supra.
7. The interplay of Section 3 of the W.J. Act and the provisions of the I.D. Act has very well been highlighted in the decision rendered by B. C. Misra, J. of the Delhi High Court in Statesman Ltd, v. Lt. Governor, Delhi 1975 - II - LLJ - 33. The learned Judge observed : (p. 38) :
"In the present statute under consideration, Section 3 of the Act expressly applies the provisions of the Industrial Disputes Act to the Working Journalists. The Journalists Act even taken as a complete code for the sake of argument, would include within its ambit Section 3 and the provisions of the Industrial Disputes Act extended to it by a fiction created by provisions of law. There is nothing in the Journalists Act which expressly or by necessary intendment excludes the application of the Industrial Disputes Act, to matters which are expressly not covered by the Journalists Act."
8. The issue can be viewed from another angle. Section 17 (1) employs the expression "without prejudice to any other mode of recovery". These words emphasise and reinforce the idea that the remedy available to the newspaper employee under the I.D. Act or under common law, is not meant to be excluded by Section 17. The learned counsel submits that the ambit of the aforesaid expression shall be confined only to sub-section (1) of Section 17 and cannot be projected into sub-section (2). In order words, he says that if there is no dispute with regard to the entitlement to get the amount from the employer, then only he can move either the State Government for recovery of the amount due to him or resort to any other mode of recovery. But, according to the learned Counsel, when once the liability is disputed by the employer, the question has got to be decided under Section 17(2) by the Labour Court at the instance of the State Government and this latter remedy provided by Section 17(2) is the exclusive remedy and no other mode of recovery is permissible in such a case. I am unable to agree with this contention. The phraseology "without prejudice to any other mode of recovery" occurring in sub-section (1) of Section 17 cannot be read in isolation. Sub-Section (1), (2) and (3) of Section 17 are integral part of one scheme and all these sub-sections are closely interlinked. Hence there is no reason why the phrase "without prejudice to any other mode or recovery" shall not be equally applied to sub-section (2).
9. N. D. Venkatesh, J. of Karnataka High Court in M/s. Newspapers & Periodicals, Bangalore v. State of Karnataka 1982 - I - LLJ - 189, after referring to the Judgment of the Supreme Court dealing with the interpretation of two sub-sections of a Section, observed as follows (p. 196) :
"Now, all the three sub-section of S. 17 will have to be read together and not in isolation. The heading of S. 17 is 'Recovery of money due from an employer'. All the three sub-sections deal with the same question. As observed by the Supreme Court in Madanlal Fakirchand Dudhediya v. Shree Changded Sugar Mills Ltd., , that "where the Court is dealing with two sub-sections of a section.... it is necessary that the two sub-sections must be construed as a whole' each portion throwing light, if need be, on the rest'. The two sub-sections must be read as parts of an integral whole and as being interdependent...." If so read what that S. 17, construed as a whole, conveys ? A person, who claims to be newspaper employee, may take recourse to these provisions for recovery of the amount said to be due to him under the Act by his employer and request the Government to issue a certificate to the Collector in order to recover that money as an arrear of land revenue and pay the same to him. If the Government is satisfied that the money claimed is due, it has to issue a certificate. But, if any question arises as to the amount due, then it has to refer the same to the Labour Court. After deciding this issue the Labour Court will have to forward its finding to the Government so that it may issue a certificate and recover the money as provided in sub-section (2). Here again it may be noted that this cheaper remedy made available to the newspaper employee is "without prejudice to any other mode of recovery" he may have in law. This means, he can, if he so chooses, file a regular suit or may, perhaps take recourse to S. 33-C of the Act of 1947."
This is a judgment relied upon by the Labour Court in coming to the conclusion it did and I am also in respectful agreement with the view expressed by the learned Judge of the Karnataka High Court.
10. There is one more argument which has to be dealt with, not because it is strictly necessary to deal with, but out of deference to the contention strenuously urged by the learned Counsel for the petitioner. The learned Counsel seems to think that there is a real and qualitative distinction between Section 33-C of the I.D. Act and Section 17(2) of the W.J. Act. The learned Counsel while recalling that the provisions of Section 33-C are analogous to execution proceedings, contends that Section 33-C is more limited in scope than Section 17(2). It is only after a determination of the disputed question under Section 17(2) a working journalist can move the Labour Court under Section 33-C(2) of the I.D. Act or the State Government under Section 17(1) of W.J. Act for the recovery of the amount due to him on the strength of the order of the Labour Court passed under Section 17(2). This argument is advanced with a view to counter the opinion expressed by the learned Presiding Officer of the Labour Court that it does not make real difference whether the workman approaches the Labour Court under Section 33-C(2) directly or under Section 17(2) through the media of the State Government. Even here, it appears that the argument of the learned Counsel is not well-founded. If a newspaper employee claims certain monetary benefits as flowing from the provisions of the W.J. Act, there is no reason why the same cannot be recovered under Section 33-C even though the liability is denied by the employer. I would only restate the scope of Section 33-C(2) by referring to a Full Bench judgment of this Court in M. Radhakrishna Reddy v. Sri B. V. Bus Service (supra), Lakshmana Rao, J. (as he then was) speaking for the Full Bench, after referring to various judgments of the Supreme Court and of this Court, summarised the principles in the following terms :
"In the above referred decision the Supreme Court laid down the following principles :
1. The proceedings under S. 33-C(2) is analogous to an execution proceeding.
2. Section 33-C(2) is wider than Section 33C(1).
3. For a claim to be maintainable under S. 33-C(2) the workman should have an existing right in his favour to claim the money or the benefit.
4. If the workman has a right under a settlement, award, a scheme or a statute to claim any money or benefit, mere denial of that right by the employer will not be sufficient to negative his claim under S. 33-C(2) ..."
In that case, in answer to the workman's claim for wages for the relevant period, a defence was set up by the employer that the workman abandoned the service and did not report for duty after a particular date. The Labour Court rejected this plea and awarded wages to the workman, treating him as having been in employment during that period. This award was upheld by the Full Bench. It was observed : "If there was denial by the employer of the right of an employee to receive wages which he was entitled to under a statute, by such mere denial, the jurisdiction of the Labour Court to enquire into the matter will not be excluded. What all the Labour Court has to do in such a situation was to enquire into the question whether the workman had an existing right to wages or not. In the instant case the Labour Court did only that and it rightly enquired into the jurisdictional fact as to the existence of the workman's right to claim wages."
By parity of reasoning, the mere fact that the Management has denied the right of the journalist to the wages claimed by him on the strength of Palekar Tribunal's Award is not a consideration which would come in the way of the Labour Court interpreting and applying the Award to the extent it applies to the case of the 2nd respondent. Thus, I find no substance in the contention advanced by the learned Counsel for the petitioner.
11. In my considered view, the impugned order of the Labour Court is unassailable. The writ petition therefore fails and is hereby dismissed. No costs. The Labour Court shall expeditiously dispose of the 2nd respondent's application.
12. I shall not be understood as expressing any view on the merits of the various claims made by the 2nd respondent.