Nair Service Society v. State of Kerala — 1968 DIGILAW 252 (KER)

JUDGMENT V.P. Gopalan Nambiyar, J. 1. Certain disputes between the petitioner, a registered Society (and the Managing Editor of a newspaper called 'Malayali') and the 3rd respondent, one of its employees relating to arrears of wages and gratuity were referred by the Government under section 17 (2) of the Working Journalists (Condition of Services) and Miscellaneous Provisions Act, 1955, (referred to as the Journalists' Act, for short) to the Labour Court, Quilon, for decision as References 1 and 2 of 1966. The petitioner's allegation is that pursuant to the reference an enquiry was held, evidence was taken, and after hearing, the cases stood posted to 4th May 1967, but that to his knowledge, no orders were passed on that day or any subsequent day, nor communicated to the petitioner. Nor according to the petitioner, was the 'award' of the Labour Court published. In spite of these, the petitioner was served with Ext. P-2, notice, dated 3rd January 1968, by the Tahsildar, Changanacherry to remit Rs. 535 the amount due under Reference No. 2 of 1966 to the 3rd respondent, and with Ext. P-3 notice in similar terms, for a sum of Rs. 3,702.26 in respect of Reference No. 1 of 1966. These were replied to by Ext. P-4, and Ext. P-5 by which the Tahsildar was informed that the petitioner had no information about the judgment in the two cases referred to in the notices. Despite these, by Exts. P-6 and P-7, the Tahsildar replied that steps for realisation will be pursued. The petitioner seeks to quash Exts. P-2, P-3 and P-6 and P-7 and the "award ", if any, passed by the 2nd respondent in Reference Nos. 1 and 2 of 1966 and prays for other consequential reliefs. 2. A counter-affidavit has been filed by the 3rd respondent. The learned Government Pleader appearing for the other respondents submitted that the Labour Court made its 'decision' or 'award' in the two References on 6th June 1967, and forwarded the same to the Government on 7th June 1967; It was admitted however, that a copy of the same has not so far been communicated to the petitioner, and also that it has not been published. 3. 3. The petitioner claims the reliefs prayed for firstly on the ground that the "award" of the 2nd respondent had not been published and could not be enforced without publication ; and secondly on the ground that the- principles of natural justice required that a copy of the award or decision should be communicated to the petitioner, before coercive steps were taken in pursuance of the same. The learned Government Pleader and the counsel for the 3rd respondent joined issue and contended that neither publication nor communication was necessary. 4. The requirement of publication was claimed on the ground that the Labour Court's decision was an "award" to which the provisions of the Industrial Disputes Act would be attracted, and therefore the same would not be enforceable till publication. To appreciate this contention, the relevant provisions of the Journalists' Act may be read : Section 17 of the Journalists' Act reads : "17 (1) Where any amount is clue under this Act to a newspaper employee from an employer the newspaper employee himself or any person authorised 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, 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)." , And section 3 of the same Act provides: "(3) (1) The provisions of the Industrial Disputes Act, 1947, as in force for the time being, shall, subject to the modification specified in sub-section (2) apply to or in relation to, working journalists as they apply to, or in relation to, workmen within the meaning of that Act. (2) Section 25-F of the aforesaid Act, in its application to working journalists, shall be construed as if in clause (a) thereof, for the period of notice referred to therein in relation to the retrenchment of a workman, the following periods of notice in relation to the retrenchment of a working journalist had been substituted, namely:” (a)six months, in the case of an editor, and (b)three months, in the case of any other working journalist." Section 17 (1) of the Industrial Disputes Act provides for publication of every award within thirty days of its receipt by the Government and section 17-A provides that an award shall become enforceable on the expiry of thirty days from the date of its publication. 5. The petitioner's contention is that the deeming provision or the fiction if I may so call it in the concluding part of section 17 (2) of the Journalists' Act would attract the operation of the provisions of section 17(1) and section 17-A of fee Industrial Disputes Act. The submission on behalf of respondents is that it would not, and that section 17 (2) embodies a self contained code for realisation of the amounts due to a newspaper employee, analagous to section 33 (C) (2) of the Industrial Disputes Act. For convenient understanding section 33 (C) (1), (2) and (3) may be re-produced: "33-C. Recovery of money due from an employer. For convenient understanding section 33 (C) (1), (2) and (3) may be re-produced: "33-C. Recovery of money due from an employer. (1) Where any money is due to a workman from an employer under a settlement or an award or under the provisions of Chapter V-A the workman himself or any other person authorised by him in writing in this behalf, or in the case of the death of the workman, his assignee or heirs may, without prejudice to any other mode of recovery, make an application to the appropriate Government for the recovery of the money due to him, and if the appropriate Government is satisfied that any money is so due, it shall issue a certificate for that amount to the Collector who shall proceed to recover the same in the same manner as an arrear of land revenue: Provided that every such application shall be made within one year from the date on which the money became due to the workman from the employer: Provided further that any such application may be entertained after the expiry of the said period of one year, if the appropriate Government is satisfied that the applicant had sufficient cause for not making the application within the said period. (2) Where any workman is entitled to receive from the employer any money or any benefit which is capable of being computed in terms of money and if any question arises as to the amount of money due or as to the amount at which such benefit should be computed then the question may, subject to any rules that may be made under this Act, be decided by such Labour Court, as may be specified in this behalf by the appropriate Government. (3) For the purposes of computing the money value of a benefit, the Labour Court may if it so thinks fit, 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. (4) * * * * *" Prima facie, the language of section 17(2) of the Journalists' Act, seems to indicate that the reference for adjudication made to the Labour Court, under that section is to be regarded as one made under section 10 (1) of the Industrial Disputes Act and therefore should attract the provisions of section 17 (2) of the latter Act. Counsel for the petitioner reinforced this position by reference to section 3 of the Journalists' Act, which did not exclude or curtail the applicability of section 17 of the Industrial Disputes Act, but only of certain other sections. In Kasturi and Sons v. Salvadeeswaran 1958 (1) L.L.J. 527 the Supreme Court had to consider the scope of section 17 of the Journalists' Act, as it stood prior to its amendment in 1963. The language of the section was then materially different. Referring to sub-section (1) of section 3 of the Journalists' Act, the Supreme Court stated that the provision was in substance intended to make the working journalists 'workmen' within the meaning of the Industrial Disputes Act. In the light of this exposition, the support sought to be derived from section 3 of the Journalists' Act, may not be of much avail to the petitioner. But the words in section 17 (2): "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 " appear wide enough to attract the provisions of section 17(1) and 17-A of the Industrial Disputes Act. Such a conclusion was sought to be avoided by counsel for the respondents by contending that section 17 (2) of the Journalists' Act corresponds to section 33(C) (2) of the Industrial Disputes Act, that the adjudication of the Labour Court is not an 'award', but only a 'decision' which required no publication; and that in, any event, the requirement' of publication within a specified time is directory and not mandatory. Section 33 (C) (2) of the Industrial Disputes 'Act does not contain words similar to what is employed by section 17(2) of the Journalists' Act. In Kasturi and Sons v. Salvadeeswaran's case the Supreme Court's observations were made with respect to, section 17 as it stood before its amendment in 1963, .and not with respect to the amended section. Section 33 (C) (2) of the Industrial Disputes 'Act does not contain words similar to what is employed by section 17(2) of the Journalists' Act. In Kasturi and Sons v. Salvadeeswaran's case the Supreme Court's observations were made with respect to, section 17 as it stood before its amendment in 1963, .and not with respect to the amended section. In the face of the difference in language, I am not prepared to draw a close parallel between the section 33 (C) (2) of the Industrial Disputes Act, and section 17(2) of the Journalists' Act. There is similarity between the provisions to this extent, namely, that power is given to the specified authority to adjudicate the dispute, and after such an adjudication, a special mode of recovery is also provided. On the language of section 17 (2) of the Journalists Act I am inclined to think that the reference made under it, would attract section 10 (1) of the Industrial Disputes Act and also requirement of the publication under section 17(2) thereof, unless the scope of the fiction were to be limited by the purpose of the enactment, as to which no arguments were addressed. I do not venture a final opinion on the question, as this writ petition, can be disposed of on another ground. It has also to be noted that even if the adjudication of the Labour Court were to be regarded as an award, requiring publication, it has been ruled, that the requirement of publication within a specified time, is directory and not mandatory vide The Remington Rand of India Ltd. v. The Workmen A.I.R. 1968 S.C. 224. 6. The petitioner however, is on firmer ground that natural justice requires that the adjudication of the Labour Court should be communicated, before drastic steps by way of revenue recovery proceedings are initiated against the petitioner. As noticed, it is common ground that the Labour Court's decision has not so far been communicated to the petitioner. He referred to the fact that he had no knowledge of the adjudication in his replies, Exts. P-4 and P-5. Fair-play and natural justice seems, to me to require that the petitioner should have been given notice of the Labour Court's adjudication, and apprised, at least, of the substance of it before revenue recovery proceedings were set in motion against him. This was not done. P-4 and P-5. Fair-play and natural justice seems, to me to require that the petitioner should have been given notice of the Labour Court's adjudication, and apprised, at least, of the substance of it before revenue recovery proceedings were set in motion against him. This was not done. On this ground I allow this writ petition and quash Exts. P-2, P-3 and P-6 and P-7. 7. The O.P. is allowed as above. No costs.