Madhya Pradesh High Court
Naidunia A Unit Of Jagaran Prakashan ... vs Dy.Labour Commissioner on 12 September, 2019
Author: S.C.Sharma
Bench: S.C.Sharma
1
HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE
WRIT PETITION NO.7822 OF 2016
(Naidunia and Another
vs
Deputy Labour Commissioner, Bhopal and Others)
Indore, Dated 12.09.2019
Shri Girish Patwardhan, learned counsel for the
petitioners.
Shri Anshuman Shrivastava, learned counsel for the
respondents.
Arguments heard.
ORDER
Learned counsel for the petitioners has drawn our attention towards the judgment delivered by Division Bench dated 18.07.2019 in Writ Petition No.17859/2016 in the case of M/s. Rajasthan Patrika Private Limited vs State of Madhya Pradesh and Others and other connected matters and his contention is that the controversy involved in the present case stands concluded. This Court has carefully gone through the aforesaid judgment and in the present case also, the employer has disputed the amount payable to the workmen and in the judgment delivered by the Coordinate Bench of this Court also, the amount was disputed. In those circumstances, the writ petition has been allowed and the Labour Court has been directed to exercise power under Section 17(2) of the Working Journalists and Other Newspaper Employees (Conditions of Service) and Miscellaneous Provisions Act, 1955 (for short the 'WJ Act'). Paragraph Nos.13 to 34 of the aforesaid judgment reads as under:-
(13) The claimant filed a rejoinder and specifically stated 2 HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE WRIT PETITION NO.7822 OF 2016 (Naidunia and Another vs Deputy Labour Commissioner, Bhopal and Others) that he had not preferred any such declaration (Annx.P/7).
The order of Labour Court, Jaipur has neither been filed nor provided and, therefore, no reliance can be placed on those orders. The petitioner filed written arguments (Annx.P/11) on which heavy reliance was placed by Shri Patwardhan during the course of arguments. A careful reading of reply to show-cause notice/ claim (Annx.P/6) makes it clear that petitioner has neither disputed that claimant was an employee of institution nor disputed the claim amount of Rs.9,06,108/-. It is for the first time by way of written submission (Annx.P/11), it is urged that as per the statement of claim, the quantification of wages are not acceptable.
(14) This is settled in law that if something is pleaded in the claim application, the same must be denied with accuracy and precision while filing the reply. If reply is pregnant with relevant pleadings, necessary arguments can be advanced based thereupon either orally or by way of filing written submission. In the main reply, there is no denial of quantification of amount claimed by the employee. In absence thereto, it cannot be said that there exists a dispute on the question of claim (to the tune of Rs.9,06,108/-). In other words, a party can say that there exists a dispute when a claim preferred is categorically denied by the other side while filing reply. In 2008 (4) MPLJ 536, [Smt. Gomti Bai Tamrakar & ors. vs. State of M.P. & ors.] and 2007 (3) MPHT 309 (DB), [Nagda Municipality vs. ITC Ltd.], the Courts opined that if reply or pleading are silent on a question of fact, no amount of argument can be advanced and accepted. For this reason, we are unable to hold that present petitioners disputed the claim of the petitioner. The alleged dispute raised was founded upon Clause 20(j) of the Majithia Wage Board award. At the cost of repetition, in our opinion, in Para-26 of the judgment of Avishek Raja (supra), the Apex Court made it clear that by invoking clause 20(j), lesser wages than the wages flowing from W.J. Act cannot be granted. Thus, dispute in this regard raised by the employer is no dispute in the eyes of law. So far the orders of Labour Court Jaipur are concerned, the said orders were neither placed before the authority below nor before this court. Accordingly, this dispute also does not exist in the eyes of law. In Avishek Raja (supra), it is made clear 3 HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE WRIT PETITION NO.7822 OF 2016 (Naidunia and Another vs Deputy Labour Commissioner, Bhopal and Others) that if there exists no dispute, Section 17(1) can be invoked. In the instant case, as analyzed, the employer has failed to raise any actual dispute while filing the reply before the Deputy Labour Commissioner.
(15) We will be failing in our duty if argument of Shri Patwardhan in relation to category of employee and class of newspaper establishment is not considered. Shri Patwardhan has taken pains to canvass this argument on the strength of judgment of Allahabad High Court in the case of Hindustan Media Venture (supra). In page-24, the court categorically recorded that petitioner from very beginning stated that it shall be falling under clause 7 for the purpose of computation of gross revenue. The classification of employees was also categorically pleaded which is taken note of by the court in page-24 and 26 of the judgment. At the cost of repetition, there is no such factual foundation in the reply filed by the employer before the court below. Thus said judgment cannot be pressed into service.
(16) In the impugned order dated 19.9.2016, the learned Deputy Labour Commissioner has categorically recorded that under clause 20(j) of Majithia Wage Board award, undertaking claiming wages less than the Wage Board Award, is not enforceable. In categorical terms, it is recorded that employer has not denied the calculation sheet annexed with the claim application and, therefore, the claim amount is not disputed. (17) We do not find any procedural impropriety or perversity in the order dated 19.9.2016 (Annx.P/13). In absence of any "dispute", the learned Deputy Labour Commissioner has rightly issued the order dated 19.9.2016. In absence of any illegality which warrants interference by this court, interference is declined. Petitions are dismissed.
WP-6102-2018 (18) In this matter also, the order of Deputy Labour Commissioner dated 30.09.2016 (Annx.P/3) is called in question whereby in exercise of power under section 17(1) of W.J. Act, the learned authority issued RRC for ensuring payment to the claimant to the tune of Rs.1,29,594/-. (19) Shri Patwardhan, learned counsel for the employer by taking this court to the show-cause notice dated 2.7.2016 (Annx.P/1) submits that although this notice was 4 HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE WRIT PETITION NO.7822 OF 2016 (Naidunia and Another vs Deputy Labour Commissioner, Bhopal and Others) served on the petitioner, the notice shows that enclosed claim application was not supplied and, therefore, the word "enclosed application" was scored out in the notice. The petitioner filed a detailed reply to the show cause notice which is running in eight pages. The petitioner categorically stated that the copy of claim application and related documents were not supplied to him. In absence of supplying the said application showing method of quantification, effective reply could not be filed. Even otherwise, the claim of applicant was not tenable. The claimant is not entitled to any payment whatsoever. Repeatedly it was mentioned that no chart has been supplied by the authority while issuing show cause notice. The notice was issued without application of mind and without proper adjudication.
(20) Shri Patwardhan urged that without considering the aforesaid aspects, the learned Deputy Commissioner mechanically passed the order dated 30.09.2016, It was erroneously held in this order that there is no dispute between the parties. It was wrongly held that the petitioner, although had raised certain disputes but there is no basis for such objection. The authority erred in holding that the petitioner has not filed any objection with necessary particulars/ basis while disputing the claim of the workman. It is argued that once claim is not admitted and is categorically denied, the Deputy Labour Commissioner has erred in exercising power under sub- section 1 of section 17 of the Act. Lastly reliance is placed on certain order of Depty Labour Commissioner filed with rejoinder.
(21) Per contra, Shri Ashok Shrivastav, learned counsel for the claimant supported the impugned order. He argued that if claim application and details were not supplied to the present petitioner, he should have procured that application from the office of Deputy Labour Commissioner. Having not done so, it is no more open to raise this objection for the first time before this court. Shri Shrivastav also placed reliance on the claim application dated 8.12.2014 filed by the petitioner with the rejoinder. The written submission of petitioner dated 2.9.2016 (Annx.P/8) with the rejoinder were referred, to contend that the only objection raised by the employer is regarding jurisdiction/ competence of the 5 HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE WRIT PETITION NO.7822 OF 2016 (Naidunia and Another vs Deputy Labour Commissioner, Bhopal and Others) authority and source of power has already been described by the competent authority in the impugned order. Thus, no interference be made.
(22) No other point is pressed by learned counsel for the parties.
(23) We have heard the learned counsel for the parties at length on this aspect and perused the record. (24) In the previous case, it was clearly held that power under section 17(1) is in the nature of execution proceedings. This power can be exercised when there exists no real dispute between the parties in relation to claim of amount. Thus, the spinal issue in this case is whether there exists any "dispute" in relation to claim or not.
(25) In the reply, the respondents have categorically denied the claim. They averred that claim applications were never served on them. Interestingly, alongwith rejoinder, orders dated 21.3.2017 (Smt. Mamta Bartriya Vs. Managing Director, order dated 25.03.2017 (Shri Kamlesh Dahare Vs. Managing Director) and order dated 29.05.2017 (Shri Mahesh Giri Vs.Managing Director) are filed. On these orders, heavy reliance was placed by Shri Patwardhan during arguments. It was pointed out that these claim applications were also filed by respective claimants under section 17(1) of the Act. However, the employer filed the reply and categorically denied the claim on facts. The authority below opined that since there exists a dispute between the parties in relation to claim, the amount cannot be said to be an admitted one and, therefore, RRC cannot be issued in exercise of power under section 17(1) of the Act. Resultantly, in these three matters, recommendation were made to the appropriate government for referring the matter/ dispute to the Labour Court in exercise of power under section 17(2) of W.J Act. (26) We find substantial force in the argument of Shri Patwardhan in this matter. We are unable to hold that in this case there exists no dispute. It is seen that employer had specifically denied the claim and raised certain legal objections in the reply. In this view of the matter, we are constraint to hold that in the impugned order, learned Deputy Labour Commissioner has erred in holding that employer has failed to raise the dispute. In our opinion, in 6 HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE WRIT PETITION NO.7822 OF 2016 (Naidunia and Another vs Deputy Labour Commissioner, Bhopal and Others) the factual backdrop of this case, the learned Deputy Labour Commissioner has erred in passing the impugned order dated 30.09.2016.
(27) Resultantly, the order dated 30.09.2016 is set aside. The matter is remitted back before the learned Deputy Labour Commissioner to examine this aspect in entirety. This order will not come in the way of respondent No.1 to pass appropriate order/making reference to the appropriate government in exercise of power under section 17(2) of the Act.
(28) This petition is allowed to the extent indicated above. WP-1309-2017, WP-1312-2017, WP-1313-2017, WP- 1315-2017, WP-1316- 2017, WP-1317-2017, WP-1318- 2017, WP-1382-2017, WP-1390-2017, WP-1393-2017, WP-1394-2017, WP-1397-2017, WP-1398-2017, WP- 1402-2017, WP-1405-2017, WP-1406-2017, WP-1414- 2017, WP-1419-2017, WP-1424-2017, WP-14426-2018, WP-14429-2018 & WP-14430-2018.
(29) Shri Sankalp Kochar, learned counsel for the employer urged that all these matters are identical in nature. Shri Ashok Shrivastava, learned counsel for the workmen did not dispute the said contention. Accordingly, the matters are analogously heard.
(30) The facts are taken from WP No.1397/2017. In this case, the claimant preferred his application Annexure P/3 before the Deputy Labour Commissioner. In this application, he claimed wages as per Majithia Wage Board Award for the period between 11.11.2011 to 31.03.2014. In the prayer clause of this application, he requested the Deputy Labour Commissioner to enquire about the non-payment of said wages and apprise the Hon'ble Supreme Court. On this application, the petitioner was put to notice vide notice dated 02.07.2016 Annexure P/4. In turn, the employer preferred a reply Annexure P/5. Shri Sankalp Kochar submits that in the reply, petitioner raised an objection that the claimant being a 'Carpenter' is not covered under the WJ Act. Petitioner's financial claim was disputed. It was stated that the necessary amount has already been paid to the claimant. Since there exists a dispute, power under Section 17(2) of the WJ Act can be exercised and matter may be referred to the Labour Court for adjudication. (31) Shri Ashok Shrivastava, learned counsel for the 7 HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE WRIT PETITION NO.7822 OF 2016 (Naidunia and Another vs Deputy Labour Commissioner, Bhopal and Others) employee vehemently opposed the said contention. It is submitted that there exists no dispute between the parties and; therefore, power under sub-section (1) of Section 17 of the WJ Act was rightly exercised by the authority below. (32) No other point is pressed by the learned counsel for the parties.
(33) In this case also, the pivotal question is whether there existed any "dispute" between the parties in relation to the claim of the claimant. This point requires a microscopic scrutiny of the pleadings before the authority below. As noticed, the claimant in this application has not even prayed for issuance of Revenue Recovery Certificate or for direction to make the payment. His application was filed to inquire into the matter and submit the inquiry report before the Supreme Court. When petitioner was put to notice, on this application he filed reply and raised a legal objection that claimant being a Carpenter is not covered under the said Act. On more than one occasion, a factual assertion was made denying the claim submitted by the claimant. In the impugned order dated 28.09.2016, the learned Deputy Labour Commissioner opined that there is no dispute between the parties because reason for "dispute" is not furnished with proof by the present petitioner. We are unable to countenance this finding of learned Deputy Labour Commissioner. At the cost of repetition, in our opinion, Section 17(1) power is in the nature of executing proceeding. If there exists no dispute about the claim amount or there had been an adjudication in relation to said amount which is derived after adjudication, RRC can be issued under Section 17(1) of the WJ Act but this power cannot be exercised when claim is disputed by other side in specific. In the instant case, learned Deputy Labour Commissioner has erred in holding that there exists no dispute (as analysed in the earlier portion of this order). In similar nature of disputes, Deputy Labour Commissioner has sent the terms of reference to the appropriate Government for sending the same for adjudication to appropriate Labour Court in exercise of power under sub-section (2) of Section 17 of the Act. We fail to understand as to why a different view is taken in these matters of similar nature. Resultantly, all the impugned orders in these batch of petitions are set aside. To clarify, impugned orders of 8 HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE WRIT PETITION NO.7822 OF 2016 (Naidunia and Another vs Deputy Labour Commissioner, Bhopal and Others) Deputy Labour Commissioner, consequential RRCs and the order passed in review jurisdiction are set aside. The matters are remitted back before the Deputy Labour Commissioner to pass appropriate orders by taking into account the observations made herein above. It is made clear that this Court has not expressed any opinion on the merits of the case. It will be lawful for the Deputy Labour Commissioner to refer the dispute to Government to enable it to send it to Labour Court for adjudication. (34) Petitions are allowed to the extent indicated above.
The judgment delivered in the aforesaid case shall be applicable mutatis mutandis in the present case also. The impugned order is set-aside.
With the aforesaid, this writ petition stands allowed. Certified copy as per Rules.
(S.C. SHARMA) (SHAILENDRA SHUKLA)
JUDGE JUDGE
Arun/-
Digitally signed by
ARUN NAIR
Date: 2019.09.16
17:49:24 +05'30'