M/S Rajasthan Patrika Pvt. Ltd. Through ... vs The State Of Madhya Pradesh on 4 September, 2019

[Cites 23, Cited by 18]

Madhya Pradesh High Court

M/S Rajasthan Patrika Pvt. Ltd. Through ... vs The State Of Madhya Pradesh on 4 September, 2019

Bench: S.C.Sharma

Regard being had to the similitude in the controversy involved in the present cases, the writ petitions were Digitally signed by Trilok Singh Savner Date: 05/09/2019 17:19:33 HIGH COURT OF MADHYA PRADESH 2 WP Nos.6242/19, 6255/19, 6265/19, 6326/19,6331/19, 6334/19, 6336/19, 6340/19, 6342/19,6352/19, 6252/19, 6264/19, 6324/19, 6325/19, 6327/19, 6338/19 & 6345/19 analogously heard and by a common order, they are being disposed of by this Court. Facts of Writ Petition No.6242/2019 are narrated hereunder.

The present writ petition is arising out of the order dated 4.4.2018 passed in Case No.61/2018. The controversy involved in this case is concluded on account of the judgment delivered by the judgment delivered by this Court in the matter of M/s. Rajasthan Patrika Pvt. Ltd. Vs. State of M.P. and others in WP No.18372/2018. This Court in Paragraph 11 to 22 has held as under:-

"(11) In the case of M/s. Kasturi (supra) the Apex Court considered the unamended provision of Section 17 of the Act of 1955. In the unamended Section 17, there was no provision for making reference to the labour Court for adjudication of the dispute. In this backdrop, in M/s.

Kasturi (supra) certain findings were given, on which heavy reliance is placed by learned senior counsel. After the amendment in Section 17 aforesaid, the matter again travelled to Supreme Court in 1987 (3) SCC 507, [Samarjit Ghosh vs. M/s. Bennett Coleman & Company & anr.]. The Apex Court expressed its view as under:

"6. When all the provisions of Section 17 are considered together it is apparent that they constitute a single scheme. In simple terms the scheme is this. A newspaper employee, who claims that an amount due to him has not been paid by his employer, can apply to the State Government for recovery of the amount. If no dispute arises as to the amount due the Collector will recover the amount from the employer and pay it over to the newspaper employee. If a question arises as to the amount due, it is a question which arises on the application made by the newspaper employee, and the application having been made before the appropriate State Government it is that State Government which will call for an adjudication of the dispute by referring the question to a Labour Court. When the Labour Court has decided the question, it will forward its decision to the State Government which made the reference, and 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." [Emphasis Supplied] A plain reading of this para makes it clear like noon day that Section 17 is a Code in itself. If upon considering the claim application of the employee and (12) its response by the employer, the question arises regarding the amount due the State Government can call for an adjudication of the dispute by referring the question to a labour Court.

(12) Before a Division Bench of this Court in MP-311-1980, [M/s.

Nav Bharat Press vs. State of M.P.] decided on 28.07.1980 a question cropped up relating to interpretation of Wage Board recommendations and Section 17(2) aforesaid. The Division Bench opined as under:

"From the facts stated above, it is clear that a dispute did arise within the meaning of Section 17(2) of the Act relating to the interpretation of the Wage Board Recommendations in the context of dearness allowance payable to the employees. The dispute cannot be decided Digitally signed by Trilok Singh Savner Date: 05/09/2019 17:19:33 HIGH COURT OF MADHYA PRADESH 3 WP Nos.6242/19, 6255/19, 6265/19, 6326/19,6331/19, 6334/19, 6336/19, 6340/19, 6342/19,6352/19, 6252/19, 6264/19, 6324/19, 6325/19, 6327/19, 6338/19 & 6345/19 without properly interpreting the Wage Board Report in the light of the Census Report of 1971. Such a matter could not have been determined by the Labour Commissioner under Section 17(1). In our opinion, the State Government was bound to make a reference under Section 17(2)."

[Emphasis Supplied] (13) In 1980 Lab IC 684, [M/s. Newspapers and Perodical, Banglore vs. State of Karnatak] their Lordships opined as under:

"The above observations of the Supreme Court apply equally even while construing the ambit and scope of Section 17 as it stands now (after its substitution by Central Act No. 65 of 1962). The position has not changed except for the fact that under sub-section (2), as it stands now, the State Government has been conferred with powers to refer the question, the question being as to what amount, if any, is due to a working journalist from his employer, to an appropriate Labour Court for adjudication. The amount due under the Act means wages, which the newspaper employee claims he is entitled to get from his employer,-as fixed by the Wage Board constituted under the Act to that category of employees to which he claims that he belongs. As observed by the Supreme Court in Kasturi & Sons [AIR 1958 SC 507.] case that 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 invoking Section 17."

[Emphasis Supplied] The Karnataka High Court considered the change in Section 17 of the Act [after pronouncement of judgment in the case of M/s. Kasturi (supra)] and clearly held that State Government has now been conferred with the power to refer the question as to what amount is due to an employee from his employer. (13) This adjudication needs to be done by labour Court.

(14) Justice Dipak Mishra (as his Lordship then was) speaking for this Court in 2000 (3) MPHT 240, [Nav Bharat Press (Pvt. Ltd.) vs. State of M.P.] considered the legislative changes in Section 17 right from the era of M/s. Kasturi (supra) to the present day. The Court also considered the aforesaid judgment of Karnataka High Court and Division Bench judgment of this Court. After taking stock of said judgments, this Court opined as under:

"On a reading of the amended provisions and keeping in view the decisions governing the field, it is graphically clear that a dispute arising with regard to amount due under the Act has to be referred to the appropriate Labour Court constituted under the industrial Disputes Act, 1947. When the due is disputed on one ground or other the authority cannot adjudicate that lis and determine the rights. In the case at hand on a perusal of Annex. D, it is absolutely dear that the claim of the petitioner was resisted on the ground that he was never an employee of the petitioner. This stand has also been taken note of by the Dy. Labour Commissioner but he proceeded to adjudicate the matter. In the opinion of this Court when a dispute of this nature was raised before the Dy. Labour Commissioner he could not have adjudicated the controversy under Section 17(1) of the Act and the matter could have been referred for adjudication under Section 17(2) of the Act.

In view of the aforesaid analysis, the order passed vide Annex. I is untenable and is liable to be quashed and accordingly, I do so. However, it is directed that the State Government shall make a reference of the dispute to the competent Labour Court constituted under the Industrial Disputes Act, 1947 within a period of 2 months from receipt of this order."

[Emphasis Supplied] A plain glance of this judgment shows that when employee and employer were at loggerheads on the question of "amount due", this Court opined that Deputy Labour Commissioner erred in passing the impugned order and the State Government shall make a reference to the labour Court. The ratio decidendi flowing from this judgment is that when there exists a dispute about "amount due" or about existence of employee-employer relationship, matter needs to be referred by the State Government to Digitally signed by Trilok Singh Savner Date: 05/09/2019 17:19:33 HIGH COURT OF MADHYA PRADESH 4 WP Nos.6242/19, 6255/19, 6265/19, 6326/19,6331/19, 6334/19, 6336/19, 6340/19, 6342/19,6352/19, 6252/19, 6264/19, 6324/19, 6325/19, 6327/19, 6338/19 & 6345/19 appropriate labour Court. In 2017 (8) SCC 435, [Avishek Raja v. Sanjay Gupta] the Supreme Court poignantly held as under:

"26. Insofar as the highly contentious issue of Clause 20(j) of the (14) 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 employee concerned 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 stand of the employees concerned 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.

28. There is nothing either in the provisions of the Act or in the terms of the Wage Board Award which would enable us to hold that the benefits of the Award would be restricted to the regular employees and not contractual employees. In this regard, we have taken note of the definition of "newspaper employees", "working journalist" and "non- journalist newspaper employees" as defined in Sections 2(c), 2(f) and 2(dd) of the Act. Insofar as "variable pay" is concerned, as already noticed and extracted in para 10 above, this Court while dealing with the concept of variable pay has taken the view that the said relief has been incorporated in the Majithia Wage Board Award in order to give fair and equitable treatment to employees of newspapers. Therefore, no question of withholding the said benefit by taking any other view with regard to "variable pay" can arise. In fact, a reading of the relevant part of the Award would go to show that the concept of "variable pay" which was introduced in the Award stems from grade pay contained in the Report of the Sixth Pay Commission and was intended to bring the working journalist and non-journalist employees covered by the Act on a par with the Central Government employees to the extent possible. So far as the concept of heavy cash losses is concerned, we are of the view that the very expression itself indicates that the same is different from mere financial difficulties and such losses apart from the extent of being crippling in nature must be consistent over the period of time stipulated in the Award. This is a question of fact that has to be determined from case to case.

29. Having clarified all doubts and ambiguities in the matter and upon holding that none of the newspaper establishments should, in the facts of the cases before us, be held guilty of commission of contempt, we direct that henceforth all complaints with regard to non-implementation of the Majithia Wage Board Award or otherwise be dealt with in terms of the mechanism provided under Section 17 of the Act. It would be more appropriate to resolve such complaints and grievances by resort to the enforcement and remedial machinery provided under the Act rather than by any future approaches to the courts in exercise of the contempt jurisdiction of the courts or otherwise." [Emphasis Supplied] (15) In view of this judgment also, it is the mechanism provided under Section 17 of the Act which will address the claim of the employee regarding demand of wages as per the Board. Since Act of 1955 was held to be silent about option of an employee to still get lesser wages then what was due to an employee under the Act, it was poignantly held that it is in the domain of doctrine of waiver. Whether undertaking/auction is Digitally signed by Trilok Singh Savner Date: 05/09/2019 17:19:33 HIGH COURT OF MADHYA PRADESH 5 WP Nos.6242/19, 6255/19, 6265/19, 6326/19,6331/19, 6334/19, 6336/19, 6340/19, 6342/19,6352/19, 6252/19, 6264/19, 6324/19, 6325/19, 6327/19, 6338/19 & 6345/19 submitted by employee voluntary or under compelling circumstances is a question of fact which needs adjudication by labour Court. Para 28 of the judgment of Avishek Raja (supra) makes it clear that benefit of Wage Board Award is applicable to contractual employees also. Existence of employee-employer relation, existence of an option by an employee whether given on his own volition or not are disputed questions of fact which needs adjudication by labour Court. These questions, in our opinion can be gone into by labour Court while deciding the reference.

(16) The argument of learned senior counsel based on Section 10(1)(c) & (d) referred hereinabove appears to be attractive at the first blush but lost its complete shine on a deeper scrutiny of the matter. In the Central Act (ID Act, 1947) the Second Schedule contains six entries, whereas the Third Schedule is pregnant with eleven entries. By MP Labour Laws (Amendment) & Miscellaneous Provisions Act, 2003 (28 of 2003) Second Schedule of Central Act is renumbered as "Part-A" and "Part-B" was inserted. Entry No.7 of Part-B covers the Act of 1955. Even otherwise, Entry Nos.1 & 2 of the main Second Schedule provides jurisdiction to labour Court to examine propriety, legality of an order passed by the employer under the standing order and interpretation of standing order. It is a matter of common knowledge in industrial jurisprudence normally service conditions of industrial workers are governed by provisions popularly called as "standing order". The "standing order" is not defined in the ID Act, 1947. The expression "standing order", in our considered view has to be (16) given a wide meaning. Any binding provision which governs any of the service conditions of the employee must be equated with "standing order".

(17) Any narrow or technical interpretation will lead to an absurd result and will not be as per legislative intent ingrained in aforesaid entries of Second Schedule. This is trite law that while considering a statutory provision the Court must consider the text and the context both {See: 1977 (2) SCC 256, [Board of Mining Examination vs. Ramjee] & 1987 (1) 424, [RBI vs. Peerless General Finance and Investment Co. Ltd.]}. In the context, "standing order" is used in Second Schedule, it will cover the conditions envisaged in the Wage Board Award. Reference may be made to the judgment of Supreme Court in Huawei Technologies Company Ltd. vs. Sterlite Technologies Ltd., 2016(3) MPLJ 15 and 2009 (10) SCC 293, [SBP & Co. (2) vs. Patel Engg. Ltd.] (wherein expression 'Rules' appearing in Section 15(2) of Arbitration and Conciliation Act, 1996 was directed to be understood with reference to provisions for appointment contained in arbitration agreement. The term 'Rules' appearing in Section 15(2) of the Act will have to be understood with reference to the provisions for appointment contained in the relevant contract. This judgment can be used for the purpose of analogy. Thus, we are unable to persuade ourselves with the line of argument advanced by learned senior counsel that reference order itself suffers from a jurisdictional error. In the result, the argument that jurisdictional error and validity of reference cannot be gone into by labour Court pales into insignificance.

(18) So far judgment in Jagran Parkashan (supra) cited by Shri Kochar is concerned, suffice it to say in the said case impugned order was passed by Assistant Labour Commissioner referring two disputes for adjudication before the labour Court. As per the statutory provision prevailing in the concerned State, the High Court opined that ALC has passed the impugned order dated 13.12.2016 without jurisdiction. The State was directed to consider making a reference of dispute under Section 17(2) of the Act for adjudication before appropriate Labour Court. In the instant case, reference is made by the State Government and, therefore, the said judgment has no application in the instant case.

(19) So far as judgment of Keshvlal M. Rao (supra) is concerned, in our considered view on account of different language employed and mechanism provided in Section 17(2) of the Act of 1955, it cannot be treated as pari materia to Section 33(C)(2) of the ID Act. We respectfully recorded our disagreement with the view taken in Keshavlal M. Rao (supra). Apart from this, in view of judgments of Samarjit Ghosh (supra), Digitally signed by Trilok Singh Savner Date: 05/09/2019 17:19:33 HIGH COURT OF MADHYA PRADESH 6 WP Nos.6242/19, 6255/19, 6265/19, 6326/19,6331/19, 6334/19, 6336/19, 6340/19, 6342/19,6352/19, 6252/19, 6264/19, 6324/19, 6325/19, 6327/19, 6338/19 & 6345/19 Navbharat (supra) and recent judgment of Supreme Court in the case of Avishek Raja (supra), otherwise the judgment of Keshvlal M. Rao (supra) cannot be pressed into service.

(20) Apart from this, it is relevant to mention that order of reference is in the realm of an administrative act. [See: Constitution Bench judgment reported in AIR 1953 SC 53, (State of Madras vs. C.P. Sarathy)]. Similarly in Shambhu Nath Goyal vs. Bank of Baroda, Jullundur, (1978) 3 SCC 353, it was held that in making a reference under Section 10 of the ID Act, the appropriate government is doing an administrative act and not a judicial or quasi judicial act. Hence, any factual foundation in the order of Deputy Labour Commissioner or in the reference order will not create any right in favour of the parties. The Labour Court will be free to adjudicate the matter on its own merits in accordance with law.

(21) As analyzed above, no fault can be found in the orders of reference passed by State Government and impugned orders of learned Single Judges. Resultantly, the writ appeals and writ petitions are dismissed. No cost.

(22) A typed copy of this order be kept in all the connected matters."

The Division Bench has declined to interfere with the reference order and has held that the Labour Court shall be free to adjudicate the matter on merit in accordance with law. Against which the review was preferred and the same has been dismissed, i.e. R.P. No.854/2019. In the considered opinion of this Court, once the controversy involved in the present matter stands concluded on account of a judgment delivered by the Division Bench dated 9.5.2019, no further orders are required to be passed afresh.

The writ petition along with other connected petitions are dismissed. The judgment delivered in the case of M/s. Rajasthan Patrika Pvt. Ltd. (supra) shall be applicable mutatis mutandis in the present case and the Labour Court shall be free to decide the matter on the basis of reference in accordance with law.

No order as to costs.

                                (S. C. Sharma)                                              (Shailendra Shukla)
                                    Judge                                                          Judge

                   trilok/-




Digitally signed by Trilok Singh Savner
Date: 05/09/2019 17:19:33

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