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Lokmat Media Private Limited, (Formerly known as Lokmat Newspapers Private Limited., Through its Sr. Manager Legal Syed Arshad Ali v/s Dilip & Others

    Writ Petition Nos. 3618 of 2016, 3735 of 2016, 3738 of 2016, 3742 of 2016, 3905 of 2017, 3948 of 2017, 3953 of 2017, 3954 of 2017, 3994 of 2016, 4333 of 2017 & 5456 of 2016

    Decided On, 05 September 2018

    At, In the High Court of Bombay at Nagpur

    By, THE HONOURABLE MR. JUSTICE S.B. SHUKRE

    For the Appellant: M.G. Bhangade, Senior Advocate, V.V. / R.M. Bhangde, Advocate. For the Respondents: R1, S.D. Thakur, Advocate, R2, V.P. Maldhure, K.L. Dharmadhikari, A.G.Ps.



Judgment Text

Oral Judgment:

1. Rule. Heard forthwith by consent of the parties.

2. These petitions are being disposed of by this common judgment as they involve common issues which go to the root of the whole dispute between the petitioner and the non-journalist newspaper employees involved in these petitions. There are some ancillary issues as well which have been raised in four of the writ petitions bearing Nos. 3953 of 2017, 4333 of 2017, 3994 of 2016 and 3954 of 2017. But, they too can be dealt with in this common judgment by making a specific reference to them, if required.

3. The petitioner in these petitions is a Company registered under the provisions of the Companies Act, 1956 and is engaged in the business of printing and publication of newspapers. Being a newspaper establishment, the petitioner is governed by such enactments as the Working Journalists and Other Newspaper Employees (Conditions of Service) and Miscellaneous Provisions Act, 1955 (for short, the 'Act of 1955'); The Industrial Disputes Act, 1947 (for short, the 'ID Act'); Maharashtra Recognition of trade Unions & Prevention of Unfair Labour Practices Act, 1971 (for short, the 'Act of 1971') and Wage Board Awards as are entitled Palekar Award (effective date 1.10.1980); Bachhawat Award (effective date 1.1.1988); Manisana Award (effective date 1.4.1998 and Majathia Award (effective date 11.11.2011).

4. The employees who filed complaints under Sections 5, 28 and 30 alleging unfair labour practices covered under items 7 and 9 of Schedule IV of the Act of 1971, are the 1st respondents in all these petitions with respondent no. 2 Industrial Court, Nagpur being a formal and second party.

5. In the complaints filed before the Industrial Court, it was the case of the 1st respondents that they were appointed in the post of Assistant Paster/Paster initially on the establishment of the petitioner. The appointments as Assistant Paster/Paster of the 1st respondents were made by the petitioner on different dates falling broadly within the years from 1984 to 1990. The 1st respondents contended that due to technological improvements taking place sometime in the year 1997, the work of pasting became obsolete and they switched over to the work of pagination. They submitted that the recommendations of Manisana Award were notified by the Central Government by its notification dated 5.12.2000 and the recommendations were made applicable to the establishment of the petitioner with effect from 1.4.1998.

6. The 1st respondents submitted that even though they were performing the work of Paster/Assistant Paster since beginning of their job, they were not given the designation of Assistant Paster/Paster and wages applicable to such designations and, therefore, they were compelled to file complaints before the Industrial Court claiming all these benefits. Those complaints were filed sometime in the year 1996 and at that time, it was further submitted, the designation or post of Planner was not available, Manisana award neither being in the making nor in sight, and that the 1st respondents were also performing the work of Assistant Paster/Paster only. They further submitted that thus, there was no occasion for them to claim the designation of and benefits available to the post of Planner in the complaints filed sometime in the year 1996. They submitted that during the pendency of those complaints, the petitioner, by its letter dated 5.7.2002, granted the 1st respondents the designation and wages of Assistant Paster / Paster and as the relief sought in the complaint was made available by the petitioner, the 1st respondents withdrew the complaints. According to the 1st respondents, the withdrawal of the complaints could not be construed as giving up the claim as regards their entitlement to have the designation of the Planner and all benefits applicable to the post of Planner.

7. The 1st respondents further complained that after applicability of the Manisana Award w.e.f. 1.4.1998, the post of Planner came into being and a newspaper establishment like the petitioner was required to pay the wages and make available all benefits applicable to the post of Planner to those non-journalists newspaper employees who, by virtue of their performing the functions of the post of Planner, had become working journalists and entitled to the post of Planner. But, the 1st respondents further submitted, neither such designation nor such benefits were made available to them inspite of their performing all those functions as are included in the functional definition of the post of Planner given under the Manisana Award. They submitted that several representations were made to the petitioner to implement the Manisana Award applicable to the petitioner establishment, but till filing of the complaints, it was not made applicable to the 1st respondents and as such, the 1st respondents filed the complaints alleging commission of unfair labour practices referable to items 7 and 9 of Schedule IV of the Act of 1971.

8. In reply filed to the complaints by the petitioner, the appointments of the 1st respondents as Assistant Paster/Paster have not been disputed by the petitioner. What is disputed by the petitioner is their performing the work of pagination and that of Planner. According to the petitioner, the 1st respondents performed and continued to perform the work of Paster and the only difference after the introduction of the new technology was that what was earlier done by them as Assistant Paster or Paster manually came to be performed by them digitally by means of computers. It was submitted by the petitioner, as Assistant Paster or Paster, 1st respondents' job was to paste the news articles, advertisements, photographs, cartoons etc. on a page of newspaper at the places already determined and indicated to them by the Editor or the editorial staff which they continued to do always.

9. It was further submitted by the petitioner that the post of Assistant Paster/Paster was included in the categories of the posts created by Palekar Award and Bachhawat Award and that these Awards did not provide for any such category or the post as 'Planner'. It was further submitted by the petitioner that the post of Planner was created for the first time in Manisana Award which was accepted by the Central Government and made effective from 1.4.1988. The petitioner further submitted that the provisions for applicable payscale and other benefits including working hours and leave rules were also made for the post of Planner in Manisana Award. It was further submitted that functional definition of the Planner was given in Manisana Award. But, at the same time, the post of Paster was also provided for in Manisana Award.

10. It was further submitted by the petitioner that as the designation of the post of Planner and all the applicable benefits were claimed by the 1st respondents already working as Pasters, it was necessary that an adjudication regarding the entitlement of the 1st respondents to be designated as Planner was required to be made by a Competent Authority first and only after such adjudication of right of the 1st respondents to claim the designation and benefit of the post of Planner that there could have been a grievance made by the 1st respondents, if such designation and benefits were not made available to them, and which could have been rightfully made by them by alleging unfair labour practices under items 7 and 9 of Schedule IV. But, in the present case, it is also submitted by the petitioner, there is no such adjudication having been made by the Competent Authority which, in the opinion of the petitioner, is the Authority contemplated under Section 10 of the ID Act, the provisions of which are applicable to the employees like the 1st respondents to whom the provisions of the Act of 1955 were applicable. The petitioner further submitted, whether the 1st respondents were entitled to the designation or the post of Planner, was a question of fact and it could not be gone into in a proceeding initiated under Sections 5, 28, 30 read with Section 26 and 27 of the Act of 1971, which were summary in nature and that it was required to be decided appropriately by a substantive reference under Section 10 of the ID Act.

11. It was further submitted by the petitioner that the limitation period for filing of a complaint alleging unfair labour practice was of 90 days of the occurrence of the unfair labour practice and as the complaints were filed after several years from the occurrence of the alleged unfair labour practice, the complaints were hopelessly barred by limitation.

12. The petitioner further submitted that earlier some of the petitioners had filed complaints claiming benefits of wages applicable to the post of Assistant Paster or Paster and after receiving those benefits during the pendency of the complaints, withdrew their complaints and that was after issuance of the notification dated 5.12.2000 by the Central Government. The petitioner submitted that at the time when the complaints were withdrawn, Manisana Award, by virtue of notification dated 5.12.2000, had already been made applicable with effect from 1.4.1998 and, therefore, it was open for the 1st respondents to have pursued those complaints for the benefits under the Manisana Award that they are claiming now, but they did not. So, according to the petitioner, these 1st respondents are precluded and estopped from filing fresh complaints seeking those benefits which they could have sought in the earlier round of litigation. It was also submitted by the petitioner that the 1st respondents were not 'workmen' within the meaning of the ID Act and, therefore, no complaint under the Act of 1971 could be filed by them.

13. Thus, on facts as well as law, it was submitted by the petitioner that the complaints were devoid of any merit and, therefore, petitioner urged that the complaints be dismissed.

14. The Industrial Court, on merits of the case, found that it had jurisdiction to entertain the complaints; that the complaints were well within the period of limitation; that there was employer-employee relationship between the petitioner and the 1st respondents ; that the 1st respondents were entitled to get designation and benefits of the post of Planner; that the petitioner, by not giving such designation and benefits to the 1st respondents indulged in unfair labour practice of not implementing the Award, Settlement or Agreement as contemplated under item 9 of Schedule IV to the Act of 1971 though such practice did not amount to any discrimination made by the petitioner against the 1st respondents under item 7 of the Act of 1971 and accordingly, partly allowed the complaints by common judgment delivered on 30th October 2015.

15. The first contention of learned Senior Advocate for the petitioner is that there being no such Award, Settlement or Agreement as referred to in item 9 of Schedule IV to the Act of 1971 which has not been implemented by the petitioner, the complaints are not maintainable. He submits that the claim of the 1st respondents is based upon what is provided under the Manisana Award and Manisana Award does not provide for any automatic switch over of the employee working as Paster or Assistant Paster to Planner and, therefore, the entitlement of the 1st respondents as a question of fact, would have to be first adjudicated upon by the competent forum. He submits that for this purpose, there has to be a substantive reference made under Section 10 of the ID Act, the provisions of which are applicable to the employees covered by the Act of 1955. In support, he invites my attention to Section 3 of the Act of 1955. He also submits that Manisana Award is nothing but a document containing recommendations of the Wage Board and even though it has been made applicable to the newspaper industry, it is not an Award or a Settlement or an Agreement in terms of the provisions of the ID Act. He points out from Section 3 (18) of the Act of 1971 that the words and expressions used in the Act and not defined therein, carry the same meanings assigned to them by the Bombay Industrial Relations Act or the ID Act or the other Acts as are applicable to the employees as mentioned therein and in the present case, as the provisions of the ID Act are applicable, the expression 'Award', 'Settlement' or 'Agreement' used in item 9 would have to be assigned the same meaning as has been given in the ID Act. He relies upon the case of Benett Coleman And company Limited v. State of Bihar & ors reported in (2015) 11 SCC 204.

16. In reply, Shri S. D. Thakur, learned counsel for the 1st respondents submits that the case of Benett Coleman (supra) is not applicable to the present case. He submits that in that case, the question involved was, whether the appellant therein was liable to be prosecuted under Section 25U read with Section 29 and under Sr. No. 13 of the Vth Schedule to the ID Act on the allegations that the recommendations of the Wage Board established under the provisions of the Act of 1955 were not properly implemented and that a set of journalists was discriminated against. He submits, in this context it was held by the Hon'ble Supreme Court that the recommendations of the Wage Board being not in the nature of Award or a Settlement in terms of the provisions of the ID Act and a special remedy having been provided under Section 17 and under Section 18 of the Act of 1955 respectively for recovery and for penalty, remedy under the ID Act was not available. In other words, he further submits, it was held by the Hon'ble Supreme Court that the remedy for breach of the order passed by the Central Government making applicable the recommendations of the Wage Board like Manisana Award would lie under Section 17 or Section 18 of the Act of 1955 and not under the ID Act and it was not held that the remedy would not lie under the Act of 1971.

17. Shri Thakur further submits that the remedy provided under the Act of 1955 is limited in nature and it is not a complete remedy. He submits that the remedy is only for recovery of the wages under Section 17 and recourse to this remedy is possible only when the wages are already ascertained. He submits that the grievance of the 1st respondents is that though they are entitled to be given designation and all benefits of the post of Planner, they are being deprived of the same by not implementing the Manisana Award and, therefore, the 1st respondents have sought different directions from the Industrial Court including the direction of making available all those benefits by the petitioner to the 1st respondents. He submits that Section 17 remedy is circuitous and not expeditious. He further submits that Section 18 remedy is penal in nature. Shri Thakur also submits that the Act of 1955 is not a complete Code and, therefore, if a larger relief has been sought for, it could be done only under the provisions of the Act of 1971 which is a complete code and, therefore, the complaints as filed by the 1st respondents are maintainable. He submits that when different remedies are available to an employee, he has a choice to elect anyone of the remedies provided under different Acts.

18. Shri Thakur, learned Advocate, further submits that it is well settled law that it is an implied condition of every agreement, an appointment order creating employer-employee relationship would be an agreement also, that the parties thereto will act in conformity with the law. Shri Thakur relies upon the case of S. G. Chemicals and Dyes Trading Employees Union v. S. G. Chemicals and Dyes Trading Limited reported in (1986) 2 SCC 624.

19. Shri Thakur also submits that in exercise of extraordinary writ jurisdiction of this Court, it is not permissible for this Court to interfere with the findings recorded by the Industrial Court just because another view is possible, unless it has been shown that the view taken by the Industrial Court is so illogical that it does not arise in a reasonable manner from the facts established on record, or it is contrary to law or it suffers from perversity, which is not the case here. In support, learned counsel relies upon Devinder Singh v. Municipal Council reported in (2011) 6 SCC 584.

20. The complaints were filed by the 1st respondents alleging unfair labour practices on the part of the petitioner and the unfair labour practices allegedly committed by the petitioner were in terms of items 7 and 9 of Schedule IV to the Act of 1971. The Industrial Court has already dismissed the allegation of breach of unfair labour practice covered by item 7 of Schedule IV made by the 1st respondents and as this finding has not been challenged by the 1st respondents, it has attained finality. So, we have to consider the alleged unfair labour practice as referred to in item 9 in the light of the arguments canvassed on behalf of both the sides.

21. Item 9 of Schedule IV to the Act of 1971 reads thus:

'9. Failure to implement award, settlement or agreement.' The Act of 1971 does not provide for definition of any of the above three material words, 'award, settlement, agreement'. Learned Senior Advocate for the petitioner submits that the meaning of these words would have to be understood with reference to the definitions given in the ID Act with the aid of Section 3 (18) of the Act of 1971. He also submits that to the employees like the 1st respondents, provisions of the ID Act are applicable. Section 3 (18) of the Act of 1971 does provide for picking up the meaning of the words and expressions used in the Act, if not defined therein, from those Acts like the Bombay Act, the Sales Promotion Employees (Conditions of Service) Act, 1976 or the Central Act, as may be applicable in a given case. In the instant case, provisions of the ID Act are indeed applicable to the employees like the 1st respondents. This position is not disputed by the learned counsel for the 1st respondents though it is his submission that the remedy provided under the ID Act is one out of multiple remedies available to the 1st respondents under different enactments including the Act of 1971. The availability of multiple remedies is a point which could be considered later. But, for understanding the meaning of the aforestated words, what is necessary now is to consider the relevant provisions of the ID Act defining these words.

22. Section 2 (b) of the ID Act defines the word 'award' as interim or a final determination of any industrial dispute or of any question relating thereto by any Labour Court, Industrial Tribunal or National Industrial Tribunal and includes an arbitration award made under Section 10A.

23. Section 2 (p) of the ID Act conceptualizes the definition of the word 'settlement'. It says that it is a settlement arrived at in the course of conciliation proceeding and includes a written agreement between the employer and workmen arrived at otherwise than in the course of conciliation proceeding where such agreement has been signed by the parties thereto in such manner as may be prescribed and a copy thereof has been sent to an officer authorised in that behalf by the appropriate Government or the conciliation officer.

24. A good consideration of the above definitions makes it as clear as crystal that Manisana Award, being basically in the nature of recommendations of the Wage Board made applicable by the Central Government by issuing a notification in terms of Section 12 of the Act of 1955, and not falling in any of the categories of resolution of dispute prescribed in Sections 2 (b) and 2 (p) of the ID Act, would not fall within the area of effulgence of the words 'Award' and 'Settlement' illuminatingly defined under the ID Act. This Award would also not be qualified to be termed an agreement. Reason is discovered in the definition of the term 'settlement' given in Section 2 (p) of the ID Act. It defines settlement as inclusive of an agreement arrived at between the employer and the workmen otherwise than in the course of conciliation proceeding, if such an agreement has been signed by the parties in a prescribed manner and its copy has been sent to an authorized officer. If this is how the word 'settlement' is defined there is no escape for us from determining the status of Manisana Award vizaviz the word 'agreement' used in item 9 on the anvil of defined parameters of 'settlement' given under the ID Act. When examined from this angle, Manisana award would also not answer the description of the agreement which is included in the meaning assigned to the word 'settlement' under the ID Act. The reason is that it is in the nature of recommendations made applicable by an order of the Central Government and is not a document signed by the employer and the workmen and published in a prescribed manner.

25. Of course, an argument has been advanced by Shri Thakur that the Wage Board headed by Justice Manisana had a constitution of tripartite nature, comprising representatives of the employer, workmen and the Government and so it could also be broadly considered to be a body making recommendations based on agreement contemplated by law. I am not inclined to accept the argument for the reason that it is only that agreement which is included in the definition of the term 'settlement' under the ID Act which is made expressly between the employer and the workmen, which is signed by the parties thereto and published in a prescribed manner. For this conclusion, I also find support forthcoming from the provisions of the Indian Contract Act. Under Section 2 (e) of the Indian Contract Act, an agreement has been defined to be every promise and every set of promises forming consideration for each other. In order that there is a promise, there has to be a proposal by one party which is accepted by the other party (Section 2(b) Indian Contract Act). These ingredients are lacking in the recommendations of Manisana Award. The deficiencies, therefore, unmistakably lead me to hold that the recommendations of the Wage Board like Manisana Award would not and do not allow them to claim the status of an agreement even under the regimen of general law governed by the Indian Contract Act.

26. In the case of Bennet Coleman (supra), the Hon'ble Supreme Court has held that recommendations of Manisana Award are neither in the nature of an Award nor a Settlement in terms of the provisions of the ID Act. It has been further held that they are also not in the nature of an agreement between the parties and their enforceability, being only recommendations, depends upon the order passed by the Central Government. Relevant observations of the Hon'ble Apex Court made in Bennett Coleman (supra) are thus:

'16. Having regard to the scheme of the Working Journalists Act and having regard to the provisions of the ID 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 ID 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 are, thus neither an award nor a settlement in terms of the provisions under the ID Act. It is not passed by the Labour Court or the Industrial Tribunal or the National Industrial Tribunal and it is not an arbitration award in terms of Section 10A of the ID Act. It is not a settlement in terms of Section 2(p) of the I.D. Act. It is not an agreement between the parties. Its enforceability, being a recommendation, depends on 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 17 for recovery or under Section 18 for penalty and not under the provisions of the ID Act.'

27. Although it has been submitted by learned counsel for the 1st respondents that the ratio of the case of Bennett Coleman (supra) is not applicable, as I have stated, the argument cannot be accepted for the reason that the Hon'ble Apex Court had examined the question in the context of the unfair labour practice at sr. no. 13 followed by the employer giving rise to a cause of action against the employer under Section 25U read with Section 29 of the ID Act, item at sr. no. 13 of the Vth Schedule to the ID Act. This unfair labour practice is identical to one covered by item 9 of Schedule IV to the Act of 1971. Sr. no. 13 also shows that failure to implement settlement, agreement or award is one of the unfair labour practices, amongst others, mentioned in Vth schedule. Hon'ble Apex Court held that remedy under Section 25U read with Section 29 providing for penalty for committing unfair labour practice and for penalty for breach of settlement or award respectively would not be available as the recommendations of Manisana Award neither constitute an award nor amount to settlement nor are akin to an agreement and the remedy would lie under Section 17 or under Section 18 of the Act of 1955 for recovery or for imposition of penalty.

28. Here, we are not concerned with what remedy was held to be available to the employee in Bennett Coleman (supra) and our interest is in the principle of law laid down by the Hon'ble Supreme Court which ultimately has constituted the reason for final conclusion made by the Hon'ble Apex Court. The final conclusion is of availability of remedy elsewhere and the reason or the principle underlying the conclusion is that the recommendations of the Wage Board are neither in the nature of an award nor a settlement nor an agreement in terms of provisions of the ID Act. This, in my view, is the ratio decidendi of Bennett Coleman (supra) and it squarely covers the issue involved in the present controversy. If any further elucidation of the doctrine of ratio decidendi is required, a useful reference may be made to the exposition given by Hon'ble Supreme Court in paragraph20 of its judgment in the case of Krishena Kumar v/s Union of India and others reported in (1990) 4 SCC 207. Argument of learned counsel for the 1st respondents regarding the ratio of Bennett Coleman being different is, therefore, rejected.

29. Once we find that the recommendations of Manisana Award, though by an order issued and notified under Section 12 of the Act of 1955 by the Central Government have been made applicable to the establishment of the petitioner with effect from 1.4.1998, do not constitute either an award or settlement or agreement as contemplated under item 9 of Schedule IV to the Act of 1971, the inevitable corollary is that any failure to implement these recommendations would not amount to any unfair labour practice as contemplated under Item 9. Here, there is no award or settlement or agreement which could be implemented and no failure that could be counted for as an unfair labour practice under the Act of 1971. The enforceability of the Wage Board recommendations, termed as Award, would have to be made by resorting to remedy available elsewhere and not under the Act of 1971.

30. Learned counsel for the 1st respondents has placed reliance on the case of S. G. Chemicals (supra) in which in paragraph 23 the Hon'ble Supreme Court has observed that it is implied condition of every agreement including a settlement that the party thereto will act in conformity with law and that such provision is not required to be expressly stated in any contract. Developing his submission on the strength of these observations, Shri Thakur further submits that in the instant case as well it could be said that the petitioner is obliged to act in conformity with the law and the law in the present context is the notification issued by the Central Government under Section 12 of the Act of 1955 making applicable to the newspaper industry the recommendations of the Manisana Wage Board. This has been disagreed to by Shri Bhangde learned Senior Advocate. To my mind, the argument is impressive, at least outwardly, and so deserves its due consideration.

31. The appointments of the 1st respondents made by the petitioner to the post of Assistant Paster/Paster, if treated as amounting to agreement of employment and accepted them to be so, just for the sake of arguments, it would make one go to the next level, the level from where one could say that the parties to the agreement impliedly hold themselves out to be in conformity with the law and do nothing which violates the law. Theoretically, I am not speaking about factual reality, this would lead to an obligation on the part of the petitioner to give effect in letter and spirit to the recommendations of the Manisana Wage Board as they have a binding force as law, they having been made applicable by the Central Government by following the procedure prescribed under Section 12 of the Act of 1955 with effect from 1.4.1998. So, the question would boil down to the fact as to whether or not there is any recommendation in Manisana Award which says that from the date from which the recommendations become applicable, the post of Paster/Assistant Paster shall no longer exist and shall be converted to the post of Planner, a post created for the first time by this Award or something which expressly prescribes that the post of Paster or the Assistant Paster shall be deemed to be or shall stand merged into the post of Planner.

32. As I see from the record of the case, however, there is no such express provision made in Manisana Award. Learned counsel for the 1st respondents also could not point out to me existence of any such provision in the Award. On the contrary, as submitted by learned Senior Advocate for the petitioner, Manisana Award retains post of Paster and also creates the post of Planner, giving its functional definition in the words, ''Planner' means a person who assists in the job of photo editing, colour editing and shadow editing and highlights any news matter given by the editor' . There is no dispute raised by the 1st respondents to the submission that Manisana Award also makes a mention about the post of Paster.

33. This would mean that Manisana Award envisages two different and distinct posts of Paster and Planner and does not consider the post of Paster as equivalent to Planner or having merged into the post of Planner. Rather, it defines the term 'Planner' and specifically provides for wages, other service benefits including leave and lesser working hours by placing them in the category of Working Journalists. For the category of Working Journalists, weekly 36 working hours are prescribed while for the category of nonworking journalist newspaper employees, the weekly working hours are 48. There is no dispute about the fact that the Paster is a nonjournalist newspaper employee. Combined effect of such distinction and differences between the post of Paster and Planner, as seen from Manisana Award and the relevant provisions of the Act of 1955 defining the expressions 'working journalist', and 'nonworking journalist newspaper employee' is that Manisana Award has neither provided for merger of the post of Paster into the post of Planner nor converted the post of Paster by deeming fiction to the post of Planner.

34. What has been found in earlier paragraphs by me would lead to a conclusion that an employee working as Paster or Assistant Paster would be required to prove by leading sufficient evidence, his eligibility for and entitlement to the conferment of the designation of Planner upon him and availability to him of all service benefits that accompany such designation as a matter of right. This would be a question of fact to be decided in accordance with law, after taking into consideration the evidence led by the parties and the provisions of the applicable law including the recommendations of Manisana Award by a Competent Authority. As the provisions of the ID Act are applicable to the 1st respondents, a substantive reference, as rightly submitted by the learned Senior Advocate, would have to be made under Section 10 of the ID Act and if there is any other remedy available under any law, other than the Act of 1971, it can also be thought by them. But, till an adjudication regarding entitlement to the designation of Planner and benefits accompanying the designation is made by a competent forum, there would not be any Award or Settlement as contemplated under item 9 of Schedule IV to the Act of 1971 or for that matter 'law', disobedience of which on the part of the employer would give rise to complaint of unfair labour practice, if any. Case of S.G. Chemicals (supra), therefore, would not give any assistance to 1st respondents at least at this stage.

35. The discussion so made would enable me to hold that even if the recommendations of Manisana Award are considered, of course hypothetically only, to be included impliedly in the agreement of employment as Shri Thakur, learned counsel for the 1st respondents would want this Court to do, still, it would not help the case of the 1st respondents, there being no provision expressly made in these recommendations prescribing merger of or deeming conversion of the post of Paster with or into the post of Planner. Entitlement, as a matter of right, has to be proved and only way of doing it is by an adjudication by a competent authority. If there is one such adjudication, the further requirement would be to prove the failure on the part of the employer to give effect to the entitlement so determined. So, without declaration of the right to get the designation and benefits, made on facts of each case, there cannot and would not be any failure to implement the implied agreement of the parties to give effect to law, so as to push the failure into the field covered by item 9 of Schedule IV. The argument of learned counsel for the 1st respondents is, therefore, rejected.

36. So, now the position is that recommendations of Manisana Award are neither an Award nor Settlement nor Agreement as held by the Hon'ble Apex Court in the case of Benett Coleman (supra) and, therefore, there is no question of any failure on the part of the petitioner to implement the Award or Settlement or Agreement so as to give rise to an unfair labour practice under item 9, Schedule IV on the part of the petitioner. It would then follow and as rightly submitted by learned Senior Advocate for the petitioner, the complaints filed under the provisions of the Act of 1971 are not maintainable and as such liable to be dismissed on this ground alone. The Industrial Court has no jurisdiction to deal with and decide the complaints filed in the present controversy by the 1st respondents and, therefore, the impugned common order passed by the Industrial Court is without jurisdiction.

37. In Devinder Singh (supra) relied upon by the 1st respondents, the limits of the jurisdiction of the High Court in issuing writs under extraordinary jurisdiction are prescribed. These limits suggest that interference by the High Court is warranted in the exceptional cases and one of the exceptional cases is of an order passed without jurisdiction. The present case falls this exception and, therefore, it would be appropriate for this Court to cor

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rect the error of jurisdiction in exercise of its supervisory jurisdiction under Article 227 of the Constitution of India. 38. There are many more points raised during the course of arguments canvassed by learned Senior Advocate for the petitioners and learned counsel for the 1st respondents. The points raised by learned Senior Advocate relate to bar of limitation, the application of doctrine of estoppel against some of the 1st respondents , the 1st respondents claiming to be working journalists could not be said to be 'workmen' within the meaning of the ID Act and hence, would be out of the purview of the Act of 1971, availability of effective remedy to redress the grievance under such Acts as ID Act and the Act of 1971 and Act of 1955, the evidence placed by the 1st respondents not being supported by the pleadings and, therefore, inadmissible and perverse appreciation of evidence. Shri Thakur has also raised several other points such as, the Act of 1955 being not a complete Code, does not provide for any effective remedy for redressal of grievances as are raised by the 1st respondents; continuing causes of action; when several remedies are available under different enactments, it is the choice of the employee to elect the remedy which needs to be respected, the remedies provided under Sections 17 and 18 of the Act of 1955 being circuitous and time consuming, are not effective, the 1st respondents, as per the settled law are covered by the provisions of the Act of 1971 and the admissions given by the witnesses of the petitioner regarding performance of the functions of the Planner for the last several years by the 1st respondents, finally nail the defence of the petitioners. 39. In support of the above said contentions, Shri Bhangde has placed reliance upon – (1) State of Punjab v. Labour Court, Jullunder & ors reported in (1980) 1 SCC 4. (2) Shashikaran R. Shrivastava, Thane v. Bennett Coleman & Co. Ltd., Mumbai reported in 2017 CLR II 65. (3) Kasturi and Sons v. N. Salivwateswaran & anr reported in AIR 1958 SC 507. (4) H. R. Adyanthaya & ors v. Sandoz (India) Ltd & ors reported in (1994) 5 SCC 737. 40. Learned counsel for the 1st respondents draws support for his other submissions from the following cases : (1) M/s Lokmat Newspaper v. Prabhakar Choudhary, decided by the Division Bench of this Court in LPA No. 326 of 2010 along with other LPAs on 25th August 2010. (2) Sanjay Shalikram Ingle v. Lokmat reported in 2010 (3) Mh. L. J. 549. (3) Bennett Coleman Co. Ltd. v. Mumbai Mazdoor Sabha reported in 1994 (2) CLR 337. (4) Dashrath Rajaram Solanki & ors v. Executive Engineer & anr reported in 2013 (4) Mh. L. J. 223. (5) S. B. Patole v. Fujitsu ICIM Ltd reported in 2011 (2) Mh. LJ 72. (6) Bombay Transport and Dock Worker Union v. Aryadoot Transport Ltd. Reported in 2002 (1) CLR 699. 41. As I have already found that the complaints filed by the 1st respondents are not maintainable before the Industrial Court and the impugned common order passed by the Industrial Court is without jurisdiction, there is neither any need to consider these other submissions and the case laws relied upon by the rival parties nor would it be appropriate for this Court to express any opinion on the same, lest the rights and remedies available to the parties get prejudicially affected. As such, the other submissions and the case laws cited by the rival parties are not considered. 42. In the result, I find that there is merit in these petitions and they deserve to be allowed. Writ Petitions are allowed. The impugned common order is quashed and set aside, it being passed without jurisdiction. Liberty is given to the 1st respondents to resort to appropriate remedy as may be available to them under law, keeping all questions including that of limitation open. Rule is made absolute accordingly. No costs.
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