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2000 DIGILAW 805 (ALL)

ALLAHABAD PATRIKA (P. ) LTD. v. PRESIDING OFFICER

2000-05-24

ALOKE CHAKRABARTI

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ALOKE CHAKRABARTI, J. ( 1 ) THIS writ petition was filed by the employer challenging the order dated 29,5. 1999 passed by the Presiding Officer under the Working Journalists and other News Paper Employees (Conditions of Service) and Miscellaneous Provisions Act. 1955 at Annexure-5 to the writ petition as also the citation for recovery following the same dated 27. 7. 1999 at Annexure-6 to the writ petition. The respondents working Journalist contested the proceeding and filed counter-affidavit. Petitioner filed rejoinder-affidavit. ( 2 ) HEARD Mr. V. B. Singh, learned counsel for the petitioner and Mr. C. K. Parekh, learned counsel for the contesting respondent. ( 3 ) THE contention of the learned counsel for the petitioner is that the application which has been allowed by the impugned order was under sub-sectton (1) of Section 17 of the said Act of 1955 which is in the nature of execution proceeding on the basis of some adjudication as regards the claim and it is an additional mode of recovery only and not a proceeding for deciding the payability of the claim. Learned counsel for the petitioner compared the provisions of sub-section (1) and sub-section (2) of Section 17 of the said Act for the purpose of showing difference in the nature of the two proceedings. It is further stated that when the claim has been adjudicated already, the additional mode of recovery is provided under sub-section (1) before an officer of the State Government and when it requires adjudication, then provision has been made under sub-section (2) for reference of the question to any Labour Court constituted under the industrial Disputes Act. With regard to the impugned order, it has also been contended that amounts have not been specified by the applicant and still then the authority has allowed the claim amount in its entirety without considering the payability of each head. It has been contended further that the payability has been strongly disputed by the writ petitioner before the authority who passed the impugned order and a dispute has been raised as regards relationship of master and servant between the petitioner and the contesting respondent. ( 4 ) LEARNED counsel for the petitioner in support of his contentions relied on the Judgment in the case of Kosturi and Sons (Private) Ltd. v. N. Salivateswaran and another. ( 4 ) LEARNED counsel for the petitioner in support of his contentions relied on the Judgment in the case of Kosturi and Sons (Private) Ltd. v. N. Salivateswaran and another. AIR 1958 SC 507 ; keshavlal M. Rao v. State of Gujarat and others, 1993 (1) LLN 373, P. K. Singh and others u. Presiding Officer and others. AIR 1988 SC 1618 ; Central Bank of India Ltd. v. P. S. Rajagopalan etc. . AIR 1964 SC 743 and Kays Construction Company (Private) Ltd. v. State of uttar Pradesh and others, AIR 1965 SC 1488 . ( 5 ) LEARNED counsel for the respondent contended that the appointment of the respondent is under the petitioner and therefore, there was no dispute with regard to payability of the claim and in such circumstances, provisions of subsection (1) of Section 17 of the said Act 1955 could be availed. It is further contended that each head of claim was specified in the chart enclosed to the application filed by the contesting respondent and those having not been denied or disputed there was no substantial dispute left for decision by the Labour Court. In support of his contentions learned counsel for the respondent referred to the cases of Sohan Singh and others v. General manager, Ordnance Factory, Khamaria, Jabalpur and others. AIR 1981 SC 1862 ; Bennett coleman and Company Private Ltd. v. Punya Priya Das Gupta, AIR 1070 SC 426 and State of punjab v. Labour Court, 1980 (1) SCC 4 . Learned counsel for the respondent also distinguished the case of Kasturi and Sons Private Ltd. (supra ). ( 6 ) AFTER considering the contentions of respective parties. 1 find that the contention requires to be decided is as to whether such a claim could be adjudicated in a proceeding under sub-section (1)of Section 17 of the said Act of 1955. Law decided in this respect has not been disputed. It appears that the scope of the said provision has been explained in the case of. Kasturi and Sons private Ltd. . (supra ). A perusal of the said Judgment indicates that the Apex Court decided the said aspect as follows. "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. Kasturi and Sons private Ltd. . (supra ). A perusal of the said Judgment indicates that the Apex Court decided the said aspect as follows. "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 Section 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 Section 17 without prejudice to any other mode of recovery available to him. " ( 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. ( 8 ) ON facts in the present case. It appears that the contesting respondent filed application giving all particulars of his claim. In the objection filed by the employer (Annexure-4 to the writ petition), it raised a dispute contending that there is no relationship of master and servant between the claimant and the petitioner. It is true that the respondent No. 4 tried to make out a case that there is relationship of master and servant between the petitioner and the respondent no. 4, but the question has to be decided as to the scope of the said proceeding whether it permits adjudication of such dispute. ( 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. ( 10 ) IN view of the aforesaid. ( 10 ) IN view of the aforesaid. I am of the opinion that without there being prior decision as to the said dispute, the payability of the claim by the petitioner could not be decided in the proceeding under sub-section (1) of Section 17 of the said Act of 1955. There could not be any recovery without there being adjudication of payability of the claim by the person against whom claim has been lodged. In such circumstances, the impugned order cannot stand. ( 11 ) THE writ petition is, Therefore, allowed and the impugned order at Annexure-5 to the writ petition and the citation at Annexure-6 to the writ petition are hereby quashed. There will be no order as to costs. .