1. All the aforesaid writ petitions have been filed by Hindustan Media Ventures Ltd., a body corporate, raising a common questions. Writ C No. 14105 of 2017 has been treated as the lead case, a brief statement of the dispute in each petition is given below:-
Writ C No. 15082/2017 has been filed by the petitioner in respect of claim made by Sri Nitesh Gupta, who was appointed as Assistant Manager in the Supply Chain but who made a claim under Section 17(1) of the Working Journalists and other Newspaper Employees (Conditions of Service) and Miscellaneous Provisions Act, 1955 (hereinafter referred to as the Act) claiming himself to be a "working journalist". The said claim has been allowed in the like manner as claim was allowed in the case of Anek Singh - the lead case.
Writ C No. 15085/2017 has been filed by the petitioner in respect of claim made by Sri Jaswant Rai, who was appointed as Assistant Executive in the Supply Chain but who made a claim under Section 17(1) of the Act. The said claim has been allowed in the like manner as claim was allowed in the case of Anek Singh - the lead case.
Writ C No. 15143/2017 has been filed by the petitioner in respect of claim made by Sri Bhoori Singh, who was originally appointed as Assistant Executive and later promoted to Executive in the Supply Chain but who made a claim under Section 17(1) of the Act. The said claim has been allowed in the like manner as claim was allowed in the case of Anek Singh - the lead case.
Writ C No. 15147/2017 has been filed by the petitioner in respect of claim made by Sri Bappa Halder, who was appointed in the Supply Chain but who made a claim under Section 17(1) of the Act. The said claim has been allowed in the like manner as claim was allowed in the case of Anek Singh - the lead case.
Writ C No. 16484/2017 has been filed by the petitioner in respect of claim made by Sri Veerbahadur Kushwaha, who was appointed as Assistant Executive in the Supply Chain but who made a claim under Section 17(1) of the Act. The said claim has been allowed in the like manner as claim was allowed in the case of Anek Singh - the lead case.
Writ C No. 16487/2017 has been filed by the petitioner in respect of claim made by Sri Premraj Singh, who was appointed as Assistant Manager in the Supply Chain but who made a claim under Section 17(1) of the Act. The said claim has been allowed in the like manner as claim was allowed in the case of Anek Singh - the lead case.
Writ C No. 16492/2017 has been filed by the petitioner in respect of claim made by Sri Rajkumar Sharma, who was appointed in the Supply Chain but who made a claim under Section 17(1) of the Act. The said claim has been allowed in the like manner as claim was allowed in the case of Anek Singh - the lead case.
Writ C No. 16494/2017 has been filed by the petitioner in respect of claim made by Sri Jogender Singh, who was appointed as Senior Executive in the Supply Chain but who made a claim under Section 17(1) of the Act. The said claim has been allowed in the like manner as claim was allowed in the case of Anek Singh - the lead case.
Writ C No. 16496/2017 has been filed by the petitioner in respect of claim made by Sri Abnesh Kumar, who was appointed as Executive in the Supply Chain but who made a claim under Section 17(1) of the Act. The said claim has been allowed in the like manner as claim was allowed in the case of Anek Singh - the lead case.
Writ C No. 16499/2017 has been filed by the petitioner in respect of claim made by Sri Amit Kumar Patel, who was appointed as Assistant Executive Trainee in the Supply Chain but who made a claim under Section 17(1) of the Act. The said claim has been allowed in the like manner as claim was allowed in the case of Anek Singh - the lead case.
Writ C No. 14105 of 2017 (lead case)
2. This writ petition has been filed to quash order dated 25.3.2017 passed by the Assistant Labour Commissioner, Agra under Section 17(1) of the Act.
3. While, elaborate argument have been made by learned counsel for the parties in support of their respective cases, the issue involved in the present writ petition is short, namely, whether the amount directed to be paid by the Assistant Labour Commissioner, vide its order dated 25.3.2017 is such as may be described as 'due under this Act' for the purpose of Section 17(1) of the Act or whether it is a claim made by the employees of the petitioner that requires prior adjudication through reference procedure in accordance with Section 17(2) of the Act.
4. Section 17(1), (2) and (3) of the Act reads as under:-
"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 authorized 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).
5. The aforesaid provisions are analogous to the provision of Section 33(C) of the Industrial Disputes Act, 1947. Similar provisions also exist under Section 6 H of the U.P. Industrial Disputes Act, 1947.
6. Sri Navin Sinha Senior Advocate assisted by Sri Imranullah and Sri Mohammad Khalid, learned counsel appearing for the petitioner, has submitted, for jurisdiction to arise and a valid order under Section 17(1) of the Act to be passed, there must pre-exist an amount which is due. On the other hand, if there is a dispute as to the entitlement to the amount being claimed and/or computation of the amount, only option open to the claimant would be to seek reference of such dispute under Section 17(2) of the Act.
7. He submits, in the instant case there are, broadly two disputes which necessarily require prior adjudication before any amount can be claimed to be due from the petitioner. Thus, according to him the Majithia Wage Board recommendations (hereinafter referred to as the M.W.B. recommendations), on which impugned order is based, does not prescribe a single wage structure applicable to all classes of newspaper establishments and all category of employees.
8. M.W.B. recommendations categorize different newspaper establishments into eight classes and provides for different wage structure for each class of establishment. Then, for different category of workman within each class of newspaper establishments, wages are required to be paid as per unique/specified wage structure as has been recommended.
9. Thus, he submits unless it is admitted or undisputed between the parties as to which class of establishment, the petitioner belongs and which category of workman the claimant belongs, it cannot be said that any particular amount has become due to a particular claimant employee.
10. Elaborating this submission, learned Senior counsel has relied on the definition of the term newspaper establishment given under Section 2(d) of the Act which means and includes in establishment under the control of any person etc. for the production or publication of one or more newspapers and includes newspaper establishment specified as one establishment under the schedule to the Act. The schedule to the Act creates a legal fiction where under two or more newspaper establishments under common control may be deemed to be under common control where newspaper establishment are owned by bodies corporate one of which is a subsidiary of the other.
11. Then, the Act further categorizes and defines workman working in newspaper establishment into two categories-Non-Journalist Newspaper Employees defines under Section 2(d)(d) of the Act and Working Journalist defines under Section 2(f) of the Act. These definitions, in his submission been made applicable to the MWB recommendations by clause 10 falling under Chapter XIX under Rule V of those recommendations.
12. For purpose of fixation and revision of wages, Section 9 of the Act provides for constitution of Wage Board. Section 10 of the Act requires the Wage Board so constituted to make recommendation after following procedure. The recommendation is to be made to the Central Government. Under Section 11 of the Act, the Wage Board has been given certain powers of an Industrial Tribunal constituted under the Industrial Disputes Act, 1947. Then, under Section 12, the Central Government is empowered to enforce the recommendation of the Wage Board.
13. It is not disputed between the parties that the Central Government accepted the recommendation of the Majithia Wage Boards on 25.10.2011 and notified the same in the Gazette of India on 11.11.2011. These recommendations having been made and notified in accordance with the Act, the same have statutory flavour.
14. It is with respect to the aforesaid notification that the present dispute has arisen. Sri Sinha has read out various parts of the aforesaid recommendations to submit that the recommendation so notified only provide for a working table or tables to be looked into in accordance with the manner or method also provided under those recommendations to determine the wages actually payable to "working journalists" and "non-journalists newspaper employees" employed with different newspaper establishment. He would submit that the said recommendations do not offer a single or simple solution that may be applied to all newspaper establishments and all categories of employees working therein.
15. In the above regard, he has relied on provisions of Clauses-III falling under Section 2 of the recommendations which creates different classification of newspaper establishment based on the average gross revenue of three accounting years 2007-08, 2008-09 and 2009-10. It reads:
"Classification of newspaper Establishments and Grouping of Newspaper Employee.
3. Classification of newspaper Establishments:-For the purpose of fixation or revision of rates of wages in respect of working journalists and non-journalists newspaper employees (other than the news agencies), the newspaper establishments shall be classified hereinafter provided.
(a) (i) The classification of newspaper establishments shall be based on the average gross revenue of three accounting years 2007-08, 2008-09 and 2009-10. The different departments, branches and centres and newspaper establishments shall be treated as parts thereof.
(ii) Notwithstanding the clubbing of different departments, branches and centres of newspaper establishments on the basis of their own gross revenue, the units of the newspaper establishments of all the classes as categorized in paragraph 6 of this Chapter shall not be stepped up by more than two classes over and above the classes to which they belong according to their gross revenue, as a result of their clubbing.
Explanation- For the purpose of this clause,
(a) If there are different units/branches/companies of one classified newspaper establishment in one town or city and adjoining areas, even though carrying different names, these will be treated as one single unit of that newspaper establishment.
(b) In the case of a newspaper establishment completing two out of the aforementioned three (3) accounting years,its classification shall be determined on the basis of its average gross revenue for those two years.
(c) In the case of a newspaper establishment which has completed only one year of the said accounting years, its classification shall be determined on the basis of its gross revenue for that year.
(d) A newspaper establishment, for which the provisions of clauses (a), (b) and (c) above do not apply, is liable to be classified after the completion of its first accounting year on the basis of its gross revenue for that year.
Notwithstanding anything contained in clauses (b), (c) and (d) above, a newspaper establishment which is classified on the basis of two (2) accounting years shall be placed one class lower than the class in which it is liable to be placed and a newspaper establishment, which is classified on the basis of one accounting year, shall be placed two classes lower than the class in which it is liable to be placed. In either case, it shall not be lower than Class VIII."
16. Then, he has relied on class 6 of the said recommendation which reads as under:-
" 6. Classification of news agency- Newspaper establishment shall be classified under the following classes on the basis of their gross revenue as per paragraph 3 of this Chapter.
Class Gross Revenue Class Gross Revenue
I Rupees One Thousand Crore and above V Rupees Ten Crore and above but less than Rupees Fifty Crore
II Rupees Five Hundred Crore and above but less than Rupees One Thousand Crore VI Rupees Five Crore and above but less than Rupees Ten Crore
III Rupees One Hundred Crore and above but less than Rupees Five Hundred Crore VII Rupees One Crore and above but less than Rupees Five Crore
IV Rupees Fifty Crore and above but less than Rupees One Hundred Crore VIII Less than Rupees One Crore
Note:- Foreign newspaper establishments, those operating in India with their Principal Office outside India, shall be treated as Class I newspaper establishment.
Explanation-For the purpose of this clause,
(a) No newspaper establishment shall be deemed to be below class VIII.
(b) Gross revenue of the circulation and advertisement clubbed together derived by a newspaper establishment, other than the one falling in Class VIII, if the advertisement revenue is less than 50% of its aforesaid revenue, then it should be placed in the class next below the class in which it would fall on the basis of its total average gross revenue.
(c) Gross revenue of the circulation and advertisement clubbed together derived by a newspaper establishment, other than the one falling in classes VII and VIII, if the advertisement revenue is less than 40% of its aforesaid revenue, then it should be placed two classes below the class in which it would fall on the basis of its total average gross revenue. Establishments falling in Class VII whose advertisement is less than 40% of gross revenue will be placed in Class VIII.
(d) Newspaper establishment, other than one falling in Class VIII, publishing Indian language newspapers from a district town and not having more than two publications and whose advertisement revenue is less than 50 per cent of the total gross revenue, will be placed one class below the class which it would fall on the basis of its total revenue."
17. Then, he has relied on class 8 of the recommendation which is in respect of groups of newspaper employees which reads as under:-
8. Grouping of Newspaper Employees:-
(1) The working journalists in newspaper establishments of classes I to VIII shall be grouped as under the Schedule I.A; and the functional definitions of various categories of working journalists in the news agency are described in the Schedule I.B.
(2) Non-Journalists newspaper employees (administrative staff) in newspaper establishments of classes I to VIII shall be grouped as under the Schedule II.
(3) Non-journalists newspaper employees (factory staff) in newspaper establishments of classes I to VIII shall be grouped as under the Schedule III."
18. Not only this, learned Senior counsel would then submit that the classification of newspaper establishment having been thus determined, it is thereafter to be seen, to which category the newspaper employees fall in or belong. This has to be done in accordance with clause 8 of the M.W.B. recommendations.
19. According to learned Senior counsel, the above involves a complex exercise of determination of unit wise revenue of various department etc. of a newspaper establishment. Then upon clubbing as provided under the M.W.B. Recommendations, to determine the average gross revenue and thereafter to examine whether the advertisement revenue of the newspaper establishment is less or more than 50% or 40% of the gross revenue of circulation and advertisement. Only when such computations and calculations are finalized that it can be said with any certainty whether a newspaper establishment belongs to class-I or any other class (class I to class VIII as specified in Clause 6 of the M.W.B. recommendations.
20. Then, it has been submitted classification of newspaper establishment is alone not enough to find out the wages payable to a category of employees. It has been submitted, once the classification of newspaper establishments is made, then, the issue of further classification of the employees would arise.
21. In this regard, under Clause 8 of the M.W.B. recommendations there are three major groupings being of working journalists newspaper establishments of classes I to VIII; non-journalists newspaper employees (administration staff) in newspaper establishment of classes I to VIII; and; non-journalist newspaper employees (factory staff) in newspaper establishments.
22. Not only this, then, the M.W.B. recommendations contemplate variable pay which is specified percentage of the basic pay drawn by employees which is a concept borrowed from the 6th Pay Commission implemented by the Government of India.
23. In the above background of the Act and the recommendations made by the Majithia Wage Board, learned Senior counsel for the petitioner submits according to the petitioner's understanding it falls in the class-VII as a newspaper establishment and that the salary being drawn by the claimant respondent is higher than the recommendations made by the Majithia Wage Board. Therefore, he submits, in view of Section 16 of the Act, the respondent claimant continues to be entitled to be more favourable benefits that are availed by him without or outside the MWB recommendations.
24. On the other hand, he submits that the M.W.B. recommendations are not in the shape of an award enforceable per-se but, it is a binding recommendation which provides for a revision of wages and fitment in accordance with classification of establishment and fitment of employees.
25. He then relies on the judgment of the Supreme Court in the case of Bennet Coleman and Co. Ltd. Vs. State of Bihar and Ors, 2015 2 LLJ 590 to submit that similar Wage Board recommendations were held to be not an award under the Industrial Disputes Act and it is not a settlement or agreement. For ready reference paragraphs 2, 15, 18 and 21 of the aforesaid judgment are quoted below:-
"2. Whether the appellant is liable to be prosecuted under Section 25U read with Section 29 and under Serial No. 13 of the Fifth Schedule of the Industrial Disputes Act, 1947 (for short, 'the I.D. Act') is the question arising for consideration in this case. The allegation is that the recommendations of the Manisana Wage Board have not been properly implemented, a section of the journalists have been discriminated in a hostile manner and thus, there is unfair labour practice.
15. Thus, in legal parlance, the Wage Board recommendations made under Section 10 of the Working Journalists Act is not an award under Section 2(b) of the I.D. Act. Once the recommendations under Section 10 are received, it is for the Central Government to issue appropriate orders so as to enforce the same in terms of Section 12 of the Working Journalists Act, which reads as follows:
18. Having regard to the scheme of the Working Journalists Act and having regard to the provisions of the I.D. Act, as incorporated by Section 3 of the Working Journalists Act, prosecution for unfair labour practice is maintainable only under Section 25U. Section 25U provides for penalty for committing unfair labour practice and Section 29 provides for penalty for breach of settlement or award. Section 2(ra) of the I.D. Act defines unfair labour practice. Settlement is defined under Section 2 (p) to be a settlement arrived at in the course of conciliation proceedings and includes a written agreement between the employer and the workmen otherwise than in the course of conciliation proceedings. The recommendations of the Wage Board is thus neither an award nor a settlement in terms of the provisions under the I.D. Act. It is not passed by the Labour Court or Industrial Tribunal or National Industrial Tribunal and it is not an Arbitration Award in terms of Section 10A of the I.D. Act. It is not a settlement in terms of Section 2(b) of the I.D. Act. It is not an agreement between the parties. Its enforceability, the order passed by the Central Government. The Central Government has passed that order by issuing Annexure P1 notification. If the same is not complied with, as we have already referred to above, the remedies lie under Section 18 for penalty and not under the provisions, of the I.D. Act.
21. A bare reading of the provision would show that the same provides for exercise of the powers of the Tribunal by the Wage Board in the process of making its procedure. The provision does not make Wage Board a Tribunal. The Tribunal under the I.D. Act does not make recommendations, it passes award; whereas the Wage Board under the working Journalists Act is competent only to make a recommendation in terms of Section 10 and after the notification of the recommendations by the Central Government if there is any dispute regarding any amount due under the notification, a dispute is raised under Section 17(2) of the Working Journalists Act and thereafter an award is passed by the Labour Court."
26. Also, it has been submitted, the scope of Section 17(1) of the Act is limited and no adjudication can be made and proceeding under Section 17(1) of the Act. In this regard reliance has been placed on judgment in the case of Kasturi and Sons (Private) Ltd. Vs. N. Salivateeswaran and Anr., 1958 AIR(SC) 507, wherein of which paragraphs 10, 12 and 13 are quoted below:-
"10. 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 tken the precaution to enact the enabling provision 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 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 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 journalists, 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.
12. In this connection we may also refer to the provisions of s.33C of the Industrial Disputes Act (14 of 1947). Sub-section (1) of s. 33C has been added by Act 36 of 1956 and is modelled on the provisions of s.17 of the present Act. Section 33C, sub-section (2), however, is more relevant for our purpose. Under s. 33C, sub section (2), where any workman is entitled to receive from his employer any benefit which is capable of being computed in terms of money, the amount at which such benefit may be computed may, subject to any rules made under this Act, be determined by such Labour Court as may be specified in this behalf by the appropriate Government, and the amount so determined should be recovered as provided for in sub-section (1). Then follows sub-section (3) which provides for an enquiry by the Labour Court into the question of computing the money value of the benefit in question. The Labour Court is empowered under this sub-section to appoint a commissioner who shall, after taking such evidence as may be necessary, submit a report to the Labour Court, and the Labour Court shall determine the amount after considering the report of the commissioner and other circumstances of the case. These provisions indicate that, where an employee makes a claim for some money by virtue of the benefit to which he is entitled, an enquiry into the claim is contemplated by the Labour Court, and it is only after the Labour Court has decided the matter that the decision becomes enforceable under s. 33C(1) by a summary procedure.
13. It is true that, in the present case, the Government of Bombay has specified the authorities under the Payment of Wages Act and the Industrial Disputes Act as specified authorities under s.17 to deal with applications of newspaper employees whose wages are less than Rs. 200 per month or more respectively; but there can be no doubt that, when the second respondent entertained the first respondent's application, he was acting as the specified authority under s.17 and not as an industrial tribunal. It is clear that, under s.17, the State Government would be entitled to specify any person it likes for the purpose of holding an enquiry under the said section. The powers of the authority specified under s. 17 must be found in the provisions of the Act itself, and they cannot be inferred from the accidental circumstances that the specified authority otherwise is a member of the industrial tribunal; since there is no provision in the Act which confers on the specified authority the relevant and adequate powers to hold a formal enquiry, it would be difficult to accept the position that various questions which may arise between the working journalists and their employers were intended to be dealt with in a summary and an informal manner without conferring adequate powers on the specified authority in that behalf. The second respondents himself was impressed by this argument, but he was inclined to hold that the necessary power could be assumed by him by implication because he thought that, in the absence of such implied power, his jurisdiction under s. 17 could not be effectively exercised. In our opinion, this approach really begs the question. If the legislature did not confer adequate powers on the specified authority under s. 17, a more reasonable inference would be that the nature and scope of the powers under s.17 is very limited and the legislature knew that, for holding such a limited and narrow enquiry, it was unnecessary to confer powers invariably associated with formal and complicated enquiries of a judicial or quasi-judical character. We must accordingly, hold that the second respondent had no jurisdiction to entertain the first respondent's application at this stage."
27. Also, reliance has been placed on a decision of this Court in the case of Allahabad Patrika (P.) Ltd. Vs. Presiding Officer and others, 2000 3 AWC 1926, of which paragraphs 7 and 9 read as below:-
"7. A comparison of the language used in sub-sections (1) and (2) of Section 17 of the said Act of 1955 also shows that the first sub-section is merely an additional mode of recovery and the second sub-section provides for reference before a labour court when adjudication is required. This law so settled appears to have been followed consistently. On behalf of the respondents, nothing has been shown that the said law has since undergone a change.
9. As it has been already held that the proceeding under sub-section (1) is merely an additional mode of recovery and admittedly, in the present case there is no adjudication with regard to the dispute of payability of the claim amount by the present petitioner to the respondent No. 4 upon a finding that there was relationship of master and servant between the two."
28. To the same effect reliance has been placed on a judgment of the Delhi High Court in Writ Petition (Civil) No. 3783 of 2008 Associated Press, through its General Manager Vs. Laurinda Keys Long and another decided on 31.7.2009 wherein of which paragraph 13 reads as below:-
"13. The petitioners in the present case had filed a detailed written statement/reply before Deputy Labour Commissioner, authorized officer appointed by the State Government under Section 17 (1) of the Act. Disputes were raised regarding applicability of Section 5 and the quantum of gratuity payable under Section 5 One of the WP(C) NO.3783-2008 Page 10 contentions raised was whether service rendered by the respondent No.1 outside India before she was transferred to India vide letter dated 27th August, 1999 can be taken into consideration and counted for computing gratuity. These questions are debatable; require adjudication and application of mind before they are decided one way or the other. Possibly the respondent No.1 has a good case and after due application of mind and reasoning, the State Government or the authorized officer may feel that the claimant newspaper employee would succeed, but this by itself would not confer jurisdiction on the State Government or authorized officer to exercise power under Section 17(2) of the Act. Lack of jurisdiction will make an order void and lifeless, even when the decision is correct. A right decision cannot confer jurisdiction, when under the statute the adjudicator has no authority and power to decide. Adjudication is to be made by the Labour Court and not by the State Government or the authorized officer under Section 17(1) of the Act. Any adjudication or inquiry into the merits and contentious issues can only be done under Section 17(2) of the Act and not under Section 17(1) of the Act. Any order passed by the State Government or the authorized officer under Section 17(1) of the act adjudicating the disputes and contentions relating to merits and the amount due would be without jurisdiction. It is clear from the order stated to be dated 4th May, 2008 that the respondent No.2, Deputy Labour Commissioner has adjudicated the disputes and contentions raised by the parties in the order. He has, WP(C) NO.3783-2008 Page 11 therefore, acted without jurisdiction and the order cannot be sustained."
29. In this regard, it has been stated, the observation in the order passed by the Supreme Court in contempt proceedings on which great reliance has been placed in the impugned order and which appears to be the basis or the real reasoning of the impugned order, is not a binding direction inasmuch as that direction, was clarified by the Supreme Court itself in the subsequent order and the respondent authority has erred in not looking into the later order of the Supreme Court.
30. In this regard, it is to be seen, the Supreme Court in Contempt Petition (C) No. 411 of 2014 Avishek Raja & others Vs. Sanjay Gupta had by its order dated 23.8.2016 first issued certain directions amongst others relevant to State of Uttar Pradesh which are quoted below:-
Re: State of Uttar Pradesh
All contempt petitions in respect of establishments in Uttar Pradesh which have been reported by the Labour Commissioner, U.P. to have implemented the recommendations of Majithia Wage Board are also closed.
Office to very and act accordingly.
Insofar as other establishments where the recommendations of Majithia Wage Board have been partially implemented in Uttar Pradesh or are yet to be implemented, we deem it proper to lay down the following parameters for resolution of the question.
In one of our previous orders, we have indicated that the large number of contempt petitions, I. As and other miscellaneous petitions that have come before the Court has made it virtually impossible to consider each case individually. We had, therefore, thought it proper to authorize the Labour Commissioners of each State who is also the Statutory Authority under the Working Journalists & Other Newspaper Employees (Conditions of service) and Miscellaneous Provisions Act, 1955 to do certain acts on behalf of the Court and directed Labour Commissioners of five Stages, namely, Uttar Pradesh, Himachal Pradesh, Nagaland, Manipur and Uttarakhand to be present so as to enable the Court to pass full and effective orders in the matters under consideration. We elaborate the aforesaid directions in the following manner:-
(a) In respect of such of the establishments which have been reported by the Labour Commissioner in his affidavit/report not to have implemented the recommendations of Majithia Wage Board the detailed facts which had led the Labour Commissioner to arrive at the said conclusion be laid before the Court after giving the affected party an opportunity of hearing.
(b) The management of each of the establishments will be bound under the present order to furnish to the Labour Commissioner all such records, reports, documents and information that the Labour Commissioner deems it necessary to consider before passing appropriate orders in terms of direction (a).
(c) The Labour Commissioner may, if he considers it necessary, in an appropriate case, himself visit the premises of an establishment to satisfy himself as to the implementation of the recommendations of the Majithia Wage Board.
(d) It will be open for each affected employee to lay before the State Government/Labour Commissioner, the details of the amount that he/she claims to be due under the recommendations of the Majithia Wage Board over and above the emoluments drawn by him. If such a resort is made to the State Government/Labour Commissioner the concerned authority would be fully empowered to carry out necessary adjudication and pass consequential orders in terms of Section 17 of the Act.
We direct the Labour Commissioner, Uttar Pradesh, who is present in Court today, to promptly initiate and complete the aforesaid exercise in terms of the present directions on priority basis and report back to this Court with his conclusions and findings within a period of six weeks. The matter will be considered again on 4th October, 2016."
31. Then, by its subsequent order dated 4.10.2016 passed in the aforesaid contempt petition the Supreme Court itself passed the order to issuing a direction to the following manner:-
"In respect of such of the defaulting units against whom recovery proceedings have not been initiated, the same shall be initiated and completed at the earliest.
In all cases where there is a dispute with regard to the amount payable, we direct the State Governments to act under the provisions of Section 17(2) of the Working Journalists and Other Newspaper Employees (Conditions of Service) and Miscellaneous Provisions Act; 1955. The concerned Labour Court will finalize its award expeditiously and send the same to the State Government for due execution."
32. Thus, Sri Sinha, would submit, in view of the categorical observation by the Supreme Court that in cases of dispute the State Government may proceed under Section 17(2) of the Act, there is no doubt that the earlier order of the Supreme Court (in those contempt proceedings), stood modified and could not be read to mean direct recoveries could be effected by taking recourse to Section 17(1) of the Act, in such cases.
33. On the issue of existence of dispute in the present facts, Sri Sinha has relied on appointment letter issued to individual claimant employees which specified their exact position and designation and which also reflect on the broad category to which they may belong being 'working journalists' and or 'non-journalists newspaper employee' etc.
34. In the instant case, the claimant employee was appointed as an Assistant Manager in the Supply Chain Department as has been claimed by means of the letter as appointment annexed to the writ petition which has not been disputed by the respondent.
35. Then, he would submit, the claimant employee wrongly described himself as a 'working journalists' (in the application filed under Section 17(1) of the Act), which he clearly was not as 'working journalists' under the Act is a person whose avocation is that of a journalist and it includes editor, lead writer, news editor but does not and cannot include a person who is appointed as an Assistant Manager in a Supply Chain Department.
36. However, leaving that part Sri Sinha would then submit, in the reply/objection first filed by the petitioner, a copy of which again has been annexed to the writ petition, it was stated by the petitioner that there was no amount due; the claimant was working as a manager and therefore, the Majithia Wage Board recommendations were not applicable to it and; alternatively wages being paid to the respondents were higher than the wages recommended by the Majithia Wage Board and therefore, those wage board recommendations were not applicable by virtue of Section 16 of the Act.
37. Then, upon summons being served when the respondents, the Assistant Labour Commissioner, Agra to the Agra establishment of the petitioner, a further reply was submitted by the petitioner, on 05.01.2017 which again has been annexed to the writ petition wherein reliance was placed on earlier reply dated 30.12.2016 (referred to above).
38. Again, on 16.02.2017 a written statement was filed by the petitioner wherein preliminary objection had been raised specially to the claim of wages as were being claimed and again it was reiterated that there was no amount due to the respondent-employee; the employee was working in a managerial or administrative or supervisory capacity and not as a working journalist and; lastly that the wages being paid to him were more favourable than the wages recommended by the Majithia Wage Board.
39. The respondent-employee then itself filed an application for additional plea, paragraphs 6, 7 and 8 where of are quoted below:-
"6. That in year 2009 Hindustan Times Media Limited had incorporated as separate company named as Hindustan Media Ventures Limited which is near to 100% subsidiary company of Hindustan Times Media Limited.
7. That the applicant is working in HMVL and which is near to 100% subsidiary of Hindustan Times Media Ltd. Thus as per the Majithia recommendations and also working Journalist and other news paper employees (Terms and Conditions of Service) Miscellaneous Provisions 1955 the gross revenue would fall under the Category - I.
8. That as per the categorization of news paper establishment, the applicant was entitled for the wages of Rs. 50,498.90/- (per month) and total difference of wages amounting of Rs. 31,14,267/- as per Majithia award. The Chart of Calculation of arrears of wages is enclosed herewith as Annexure No. 4."
39.Relying on the above, Sri Sinha would submit, the respondent-employee had itself made pleadings which made it necessary to first examine the entities that were to be included in the identity of the petitioner as a newspaper establishment and to thereafter determine the class of establishment to which the petitioner belongs. Unless such class is first determined upon examination of entire material and evidence, the question of structure of wages payable could not be examined.
40. The aforesaid additional plea was also responded to by the petitioner by filing a written statement or submission wherein it was stated that the recommendations only explained the mechanism for classification of newspaper establishments. Based on its own perception, the petitioner claimed to belong to newspaper establishment under class VII while respondent-employee claimed it fell under Class I. Thus as made clear by the Supreme Court by its order dated 04.10.2016, in such cases the dispute adjudication mechanism under Section 17(2) had to be necessarily adopted.
41. Then, coming to the impugned order, Sri Sinha has submitted, the Assistant Labour Commissioner has itself first recorded in the order and thus admitted that the respondent-employee was an Assistant Manager. Thereafter, the said authority has recorded the plea of the petitioner that the respondent-employees were drawing higher wages than those recommended by Majithia Wage Board.
42. Then, in paragraph 4 of the order of Assistant Labour Commissioner has referred to certain proceedings held on 22.03.2017 wherein in respect of which it has recorded that an affidavit of evidence was filed by the respondents. Reliance has been placed thereon with a further observation that no rebuttal was made by the petitioner. Sri Sinha submits, such an affidavit was never served on the petitioner and the same is not existing on record of the respondent authority.
43. The authority then proceeded to record its conclusion that the objection raised by the petitioner is wrong and misconceived and has been made with the intention to mislead the authority. According to the Assistant Labour Commissioner, alongwith the affidavit the claimant-employee has brought on record evidence in nature of admission of the petitioner that it belonged to class I and not class VII as claimed.
44. On the question of wages payable, the Assistant Labour Commissioner has then concluded that the claimant in this case belongs to group 2 (non-working journalists) working in class I establishment and is entitled to higher wages accordinlgy. This has been done without even looking into the question whether the claimant-employee was a workman.
45. Therefore, according to Sri Sinha, the impugned order is wholly without jurisdiction vested under Section 17(1) of the Act and is therefore invalid.
46. Responding to the aforesaid submissions, Sri S.K. Chaudhary, learned counsel for the respondents-employee submits, the Majithia Wage Board was constituted under Section 12 of the Act to provide for uniformity of wages. He further submits that in view of Section 13 of the Act, the wages payable to the employees in a newspaper establishment cannot be less than those recommended by the Wage Board.
47. He then submits, the recommendation of the Wage Board were challenged by certain newspaper establishments in Writ Petition (Civil) No. 246 of 2011, which were upheld and the review was dismissed. He then submits, the Majithia Wage Board recommendation has taken effect from 11.11.2011 and that in view of the fact that the respondent-employee did not exercise option under paragrpah 20(j) of the Majithia Wage Board recommendation, they are eligible to the wages under Majithia Wage Board recommendations. Then, he submits that the petitioner has not established any basis of higher wages being paid by it than payable under Majithia Wage Board recommendations.
48. Sri Chaudhary, with great vehemence, has stressed, there exists no dispute as to classification of the petitioner as a newspaper establishment of class I or as to the categorization of the respondent-employee. For this he relies first on the alleged affidavit dated 22.03.2017 claimed to have been filed before the Assistant Labour Commissioner, Agra. Specifically he relies on the annexure to such affidavit, purportedly written in respect of another employee working in another area. He then tried to compare the "Scale of Basic Pay : 9000 - ARI (4%) - 19800" specified with the scale/scales recommended under the M.W.B. Recommendations. He thus argues, inferentially, that the petitioner is admittedly, a Class I establishment.
49. While arguments have been so advanced from both sides, it is seen, Majithia Wage Board recommendations are mandatory. However, for being applied, they first require classification of the newspaper establishments and then further require categorization of the employees according to their nature of work. Only when these workings are ascertained that the Wage Board recommendation can become enforceable. Perhaps, it is in view of the aforesaid situation that the later order of the Supreme Court dated 04.10.2016 has clarified that in case of dispute the matter be referred under Section 17(2) of the Act.
50. Thus, it is to be seen whether there is any dispute or if Majithia Wage Board recommendations are directly enforceable against the petitioner without determination of any question.
51. In this regard, it is seen that the petitioner had from the very beginning stated that it was establishment falling under Class VII in view of its computation of gross revenue. This position was not accepted by the workman claimant-employee who claimed that the petitioner establishment was a Class I establishment.
52. Therefore, first it has to be established in accordance with Section 2(d) of the Act read with Schedule to the Act, the entities etc. that are included in the identity of the petitioner as a newspaper establishment.
53. Thereafter, the primary question to be examined before any wages can be claimed to be due by an employee at any particular rate, would be which class does the petitioner qualify as an establishment. This classification has to be done in terms of clause 3 (i) (ii) of the M.W.B. recommendations.
54. Then, the result of classification made under clause 3 has to be fixed or finalized under class 6 of those MWB recommendations. For that purpose the explanation to clause 6 has to be applied. There under, depending on the gross revenue of the circulation and advertisement clubbed together a newspaper establishment may be placed higher or lower than the classification that it first appears to belong on the consideration of gross revenue except the newspaper establishment that falling under class 8.
55. Thus issues, arising under the Majithia Wage Board recommendation could be decided only after looking into two aspects : one of the newspaper establishments and/or news agencies to be included in the identity of the petitioner as a newspaper establishment. Even if such identity is established or known it would not suffice to determine the issue of the Class of the newspaper establishment of the petitioner.
56. It would further require examination of gross circulation and advertisement revenues for three accounting periods specified in the Majithia Wage Board recommendations itself.
57. Even, this would not lead to final determination of the classification of the newspaper establishment inasmuch as final placement of the petitioner newspaper establishment in the classification would depend upon whether the advertisement revenue was 40 % or 50% or less of the gross revenue. Only then and in accordance with such result, final classification of a newspaper establishment would arise.
58. It is thus seen, the aforesaid exercise would have to be done in two parts. First, it would have to be seen as to which entities/units/establishments are to be included in the identity of the petitioner as a newspaper establishment. It would require pleadings to be made and evidence to be led. Even constitutional documents of corporate and other entities and inter-se contracts between the petitioner establishment and its subsidiaries etc. would have to be gone into. Their shareholding pattern would have to be necessarily examined before any particular entity may be included in the identity of the petitioner as a newspaper establishment as subsidiary or holding company.
59. Once such id
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entity is established, then, a further and more elaborate exercise would have to be gone into involving scrutiny of financial documents relating to gross revenue, circulation revenue and advertisement revenue of each entity/unit/establishment which is included in the identity of the petitioner as a newspaper establishment. Only after such a scrutiny has been made the result would arise as contemplated under the Majithia Wage Board recommendation in terms of Clause 6 thereof and it may be said with any certainty whether the petitioner newspaper establishment belongs to Class I or Class VII or to any other class. 60. In the present case parties are at complete variance on the issue inasmuch as while, petitioner claims to be itself Class VII establishment the claimant-employee claims it to be a Class I establishment, which position the parties stated from the very beginning of the dispute. It is clear that the issue has to be resolved first before any other question could be looked into or examined. 61. As has been discussed above, the aforesaid issue of the classification of the highly disputed and requires pleadings and recording of detailed evidence on two major aspects. First, as to the entities to be included in the identity of the petitioner newspaper establishment and second, as to the financial results for specified period. These issues, by very nature & character such as would fall clearly outside the scope of linoted powers under Section 17(1) of the Act as has been held in Kasturi and Sons (Private) Ltd. Vs. N. Salivateeswaran and Anr., 1958 AIR(SC) 507 and by this Court in Allahabad Patrika (P.) Ltd. Vs. Presiding Officer and others, 2000 3 AWC 1926, as discussed above. 62. Reference made by learned counsel for the respondent to an affidavit in which affidavit dated 22.03.2017 is therefore relevant. While a copy of the same has been annexed with the counter affidavit filed in the present proceedings, there is no proof shown of the same having either been served on the petitioner or of the same having been formally received/filed, if at all, before the Assistant Labour Commissioner. In any case, undisputedly, no order was passed on it to allow any opportunity to the petitioner to reply or rebut the same. 63. Even otherwise, to accept the affidavit as conclusive admission of the petitioner as to it's classification (as a newspaper establishment), in the context in respect of complex dispute required to be resolved for the application of the Majithia Wage Board recommendations, is far fetched and over simplification of the issue. In face of specific case set up by the petitioner that it was a class VII establishment it could not be said that it is a class I establishment by drawing inference solely by comparing the pay scale mentioned in one appointment letter (issued in a territory of a different jurisdictional Assistant Labour Commissioner), with the pay scale under the Majithia Wage Board recommendations, solely on account of such wage being similar to that which is payable to an employee in a class-1 establishment. The comparison is dangerous to even venture. 64. In any case, the inference sought to be drawn by learned counsel for the respondents on the basis of documents annexed so called affidavit dated 22.03.2017 are presumptuous. Neither the petitioner has anywhere in those documents admitted to itself being a class I establishment nor has it made any pleading or disclosure in any of those documents as may directly lead to an admission on its part as a class I establishment. 65. Thus, it cannot be said that the petitioner is a class I establishment on its own admission. In fact, the same appears to be highly disputed. 66. Then, as to the respondent-employee belonging to any category of employees there is no material to infer as such. On a prima facie basis the respondent-employee was appointed as an Assistant Manager. However, he claimed himself to be a 'working journalist' in his claim petition. Even if such an application was maintainable on such pleadings, then to, the issue was vexed. The grouping of the employee was to be first determined as a 'working journalist' or as a 'non journalist newspaper employee' or as a 'factory employee'. 67. Then, the petitioner having raised the issue that the employee was a managerial or administrative and or supervisory employee and that claim being based on the disclosure of the claimant himself, who described himself as an Assistant Manager, a dispute came to life and it could not have been lightly brushed aside as has been done by the Assistant Labour Commissioner. 68. Properly, such a dispute if shown to be bona fide, as it appears in the instant case, ought to have been left open to be referred for adjudication. Thus, there exist disputes, both as to classification of petitioner establishment as also category of the respondent employee. 69. The claim raised before the respondent Assistant Labour Commissioner clearly fell outside the proceedings under Section 17 (1) of the Act. Only reference of dispute mechanism could be resorted to by the respondent employee in terms of Section 17 (2) of the Act. 70. Accordingly, I find that the impugned order dated 25.03.2017 is without jurisdiction and is otherwise wholly erroneous. It is accordingly quashed. However, it is left open to the employee to seek reference of such dispute as it may be advised in terms of Section 17 (2) of the Act. 71. The writ petition is allowed. No order as to costs.