WRIT PETITION NO. 6500 OF 2016

28th January 2020

Petitioner Counsel: Shri. Akshay A. Naik
Respondent Counsel: Shri. A. R. Deshpande Smt. H. N. Prabhu
Act Name: Working Journalists and Other Newspaper Employees (Conditions of Service) and Miscellaneous Provisions Act, 1955

HeadLine : Working Journalists & Other Newspaper Employees(Conditions of Service) Act 1955, S.17 -Recovery of money due from employer– Grant of by Asst.Labour Commsnr.- Validity
Objection by employer re: amount claimed by employee - Commissioner allowed application instead of referring dispute to competent Labour Court– Recovery order, improper

Section :
Section 17 Working Journalists and Other Newspaper Employees (Conditions of Service) and Miscellaneous Provisions Act, 1955 Section 17(1) Working Journalists and Other Newspaper Employees (Conditions of Service) and Miscellaneous Provisions Act, 1955 Section 17(2) Working Journalists and Other Newspaper Employees (Conditions of Service) and Miscellaneous Provisions Act, 1955

Cases Cited :
Paras 6, 9: Kasturi and Sons (Private) Ltd. Vs. N. Salivateswaran and another, reported in AIR 1958 SC 507
Paras 6, 10: D. B. Corp Ltd. Vs. State of Maharashtra and others, reported in 2018(6) Mh.L.J. 871

JUDGEMENT

Heard.

2. Rule. Rule made returnable forthwith. Heard finally by the consent of learned counsel appearing for the rival parties.

3. By this writ petition, the petitioner (employer) has challenged order dated 06/06/2015, passed by the respondent No.2 i.e. Assistant Labour Commissioner, whereby an application filed by respondent No.1 (employee) under Section 17 of the Working Journalists and Other Newspaper Employees (Conditions of Service) and Miscellaneous Provisions Act, 1955, has been allowed in its entirety and directions have been given to the petitioner to pay certain amounts claimed by the respondent No.1 employee.

4. On 02/12/2019, this Court recorded the question that arose for consideration. The said order reads as follows :-
“ Heard learned counsel for the petitioner.
2. The question that is raised on behalf of the petitioner is that in the present case, respondent No.2 could not have decided the dispute between the parties on the question of entitlement of amounts as claimed by respondent No.1 by seeking to exercise power under section 17(1) of the Working Journalists and Other Newspaper Employees (Conditions of Service) and Miscellaneous Provisions Act, 1955 and instead the dispute between the parties ought to have been referred to the Labour Court under the provisions of the Industrial Disputes Act, 1947, by exercising power under section 17(2) of the Act of 1955. According to the petitioner, by passing the impugned order dated 06/06/2015, respondent No.1 committed an error in exercising its power and therefore, the impugned order is rendered without jurisdiction.
3. Issue notice for final disposal, returnable on 16/12/2019.
4. Learned counsel Mr.Anand Deshpande waives notice on behalf of respondent No.1. Learned Assistant Government Pleader Mrs. Mrunal Naik waives notice on behalf of respondent No.2. ”

5. It is undisputed that the respondent No.1 was an employee of the petitioner herein. He moved an application under Section 17 of the aforesaid Act for recovery of money allegedly due to him from the petitioner. It is on the basis of the said application that the respondent No.2, as the Competent Authority representing the State Government, passed the impugned order deciding the amounts due and giving consequential directions to the petitioner to pay such amount to respondent No.1.

6. The learned counsel appearing for the petitioner submitted that the respondent No.2 erred in exercising power under Section 17(1) of the said Act. It was submitted that the moment the petitioner disputed the amount payable to the respondent No.1 under provisions of the said Act, all that the respondent No.2 could have done was to exercise power under Section 17(2) of the said Act and to refer the said question to the Labour Court of competent jurisdiction established under the Industrial Disputes Act, 1947. According to the learned counsel for the petitioner, by failing to do so and deciding the dispute on merits and giving consequential directions to the petitioner, respondent No.2 committed a grave error and such an order was in violation of the scheme contemplated under Section 17 of the said Act. Reliance was placed on Constitution Bench judgment of the Hon’ble Supreme Court in the case of Kasturi and Sons (Private) Ltd. vs. N. Salivateswaran and another reported in AIR 1958 SC 507 and judgment of this Court in the case of D. B. Corp Ltd. vs. State of Maharashtra and others reported in 2018(6) Mh.L.J. 871.

7. The learned counsel appearing for respondent No.1, was unable to distinguish the present case from the cases that arose before this Court and Hon’ble Supreme Court in the aforesaid judgments regarding the manner in which the scheme contemplated under Section 17 of the said Act operates.

8. The learned AGP appeared on behalf of respondent No.2.

9. A Perusal of the said judgments relied upon by the learned counsel for the petitioner would show that the position of law insofar as Section 17 of the said Act is concerned, is covered under the said judgments. The Constitution Bench Judgment of the Hon’ble Supreme Court in the Kasturi and Sons (Private) Ltd. vs. N. Salivateswaran and another (supra) was rendered when Section 17 of the said Act, as it stands today, was yet to see the light of the day. The provision at that point in time, with some minor differences, was the same as Sub Section (1) of Section 17 of the said Act as it now stands. Even in such a situation, when there was no express provision for the State Government to refer a question that arose as regards amounts due to an employee under the provisions of the said Act to the competent Labour Court, the Hon’ble Supreme Court read such a requirement in the said provision, on the basis that the State Government and any Authority representing the State Government did not have wherewithal to conduct enquiry as contemplated under the provisions of the said Act determining amount due to an employee, when a dispute arose regarding the same. The relevant portion of the judgment of the Constitution Bench of the Hon’ble Supreme Court reads as follows :-
“(5) It would be necessary and convenient to construe S.17 of the Act first and determine its true scope and effect. The larger question about the vires of this Act and the validity of the decision of the Wage Board set up by the Central Government under S.8 of the Act have been considered by us in the several petitions filed by several employers in that behalf before this Court. We have held in those petitions that, with the exception of S.5 (1) (a) (iii) which deals with the payment of gratuity to employees who voluntarily resign from service, the rest of the Act is valid. That is why the question about the vires of S.17 need not be considered, in the present petition over again. The main point which remains to be considered, however, is : Does S.17 constitute the State Government or the authority specified by the State Government into a forum for adjudicating upon the merits of the claim made by newspaper employee against his employer under any of the provisions of this Act ? Section 17 provides :
" Where any money is due to a newspaper employee from an employer under any of the provisions of this Act, whether by way of compensation, gratuity or wages, the newspaper employee may, without prejudice to any other mode of recovery, make an application to the State Government for the recovery of the money due to him, and if the State Government or such authority as the State Government may specify in this behalf is satisfied that any money 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."
It is clear that the employee's claim against his employer which can form the subjectmatter of an enquiry under S.17 must relate to compensation awardable under S.4 of the Act, gratuity awardable under S.5 of the Act, or wages claimable under the decision of the Wage Board. If the employee wishes to make any other claim against his employer, that would not be covered by S.17. As the marginal note shows, the section deals with the recovery of money due from an employer.
(6) The employee contends that the process of recovery begins with the making of an application setting out the claim and ends with the actual recovery of the amount found due. On this construction, the dispute between the employee and his employer in regard to any claim which the employee may make against his employer would fall to be determined on the merits right up from the start to the issue of the certificate under this section. In other words, if a claim is made by the employee and denied by the employer, the merits of the claim together with the other issues that may arise between the parties have to be considered under this section. On this argument S.17 provides a self-contained procedure for the enforcement of the claims covered by it.
(7) On the other hand, the case for the petitioner is that the section provides for a procedure to recover the amount due from an employer, not for the determination of the question as to what amount is due. The condition precedent for the application of S.17 is a prior determination by a competent authority or the Court of the amount due to the employee from his employer. It is only if and after the amount due to the employee has been duly determined that the stage is reached to recover that amount and it is at this stage that the employee is given the additional advantage provided by S.17 without prejudice to any other mode of recovery available to him. According to this view, the State Government or the authority specified by the State Government has to hold a summary enquiry on a very narrow and limited point : Is the amount which is found due to the employee still due when the employee makes an application under S.17, or, has any amount been paid, and, if yes, how much still remains to be paid ? It is only a limited enquiry of this type which is contemplated by S.17. Within the scope of the enquiry permitted by this section are not included the examination and decision of the merits of the claim made by the employee. When the section refers to the application made by the employee for the recovery of the money due to him, it really contemplates the stage of execution which follows the passing of the decree or the making of an award or order by an appropriate Court or authority. In our opinion, the construction suggested by the petitioner should be accepted because we feel that this construction is more reasonable and more consistent with the scheme of the Act.
(8) It is significant that the State Government or the specific authority mentioned in S.17 has not been clothed with the normal powers of a Court or a tribunal to hold a formal enquiry. It is true that S.3, sub-s.(1) of the Act provides for the application of the Industrial Disputes Act, 1947, to or in relation to working journalists subject to sub-s.(2); but this provision is in substance intended to make working journalists workmen within the meaning of the main Industrial Disputes Act. This section cannot be read as conferring on the State Government or the specified authority mentioned under S.17 power to enforce attendance of witnesses, examine them on oath, issue commission or pass orders in respect of discovery and inspection such as can be passed by the boards, Courts or tribunals under the Industrial Disputes Act. It is obvious that the relevant provisions of S.11 of the Industrial Disputes Act, 1947, which confer the said powers on the Conciliation Officers, boards, Courts and tribunals cannot be made applicable to the State Government or the specified authority mentioned under S.17 merely by virtue of S.3(1) of the Act.”

10. This Court in the case of D. B. Corp Ltd. vs. State of Maharashtra and anr. (supra) has followed the said position of law and the substituted provision w.e.f. 1963 as it stands today, has been taken into consideration and it has been held by this Court as follows :-
“(8) Thus, on both principle and authority, the State Government's power under Section 17(1) is merely to issue a certificate of the "amount due", if there is either no dispute as to the amount, which calls for a decision, or an already accomplished adjudication of such dispute. Several questions may arise in an application for recovery. The Act itself provides for obligations of a newspaper establishment and corresponding entitlements of newspaper employees. Question may arise as to the identity of the applicant as a newspaper employee or of the establishment as a newspaper establishment. Wage boards are constituted under the Act for determination of wages and remuneration to working journalists and other newspaper employees. These awards provide for classification of newspaper establishments based on annual gross revenue or other criteria for the purpose of determination of applicable wages. Since different slabs or levels of wages are provided for different categories of employees, questions of correct classification of the establishment or category of the employeeapplicant may arise for determination. These will have to be adjudicated by the Labour Court in a reference. These cannot be decided by the State Government or its delegate under Section 17(1). The satisfaction about the dues referred to in Section 17(1) is satisfaction about non-existence of any dispute or question as to the dues and not satisfaction about the correctness of the dues. Any question as to the correctness of the dues must be left to the Labour Court, to be decided in a reference, under Section 17(2). Accordingly, the only conclusion that can be drawn from the scheme of Section 17 of the Act is that whenever a claim for recovery of amount due is contested by the employer newspaper establishment and adjudication or determination of the amount due is called for, the State Government or its delegate (in the present case, the Assistant Labour Commissioner) has to stay its hand and necessarily refer it to the Labour Court constituted under the Industrial Disputes Act and await an adjudication by that Court. It is only after such adjudication is made by that Court, that the State or its delegate will have power to issue a recovery certificate.”

11. Applying the said position of law to the facts of the present case, it becomes evident that the impugned order is unsustainable. This is because on a specific dispute raised by the petitioner in respect of the amounts due claimed by the respondent No.1 under the Manisana Award and other such claims, the respondent No.2, instead of referring the question to the Competent Labour Court, proceeded to decide the matter on merits and gave consequential directions to the petitioner.

12. Thus, it is evident that the impugned order passed by respondent No.2 is unsustainable and it deserves to be set aside. At the same the, claim raised by the respondent No.1 needs to be adjudicated in terms of Section 17(2) of the said Act. Since the material regarding dispute raised by the petitioner in respect of the amount due is very much available before this Court, instead of sending the matter back to the respondent No.2 for referring it to the Labour Court under Section 17(2) of the said Act, it would be in the interest of justice that the dispute is referred by this Court in terms of Section 17(2) of the said Act to the concerned Labour Court.

13. In view of the above, the writ petition is disposed of in the following terms :
(a) The writ petition is partly allowed. The impugned order passed by the respondent No.2 is quashed and set aside.
(b) The question that arises following the dispute raised by petitioner as regards amounts due to respondent No.1, is referred to the Labour Court at Akola which shall be decided by the said Court in terms of Section 17(2) of the said Act and in accordance law.
(c) Considering the fact that the respondent No.1 had filed his application under Section 17(1) of the said Act, as far back as in the year 2010, it would be in the interest of justice that the Labour Court decides the question as expeditiously as possible and in any case within a period of four months from today.

14. It is made clear that all questions are kept open and rival parties would be at liberty to place on record relevant material before the Labour Court for proper adjudication of the dispute that arises in the present case.

15. Rule made absolute in above terms. No order as to costs.