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2010 DIGILAW 1820 (PAT)

Bennet Coleman And Co. Ltd. v. State Of Bihar

2010-08-11

AKHILESH CHANDRA

body2010
JUDGEMENT Akhilesh Chandra, J. 1. Heard learned Counsels representing the Petitioners in all the four cases and learned Additional Public Prosecutors for opposite party. 2. All these four cases have been filed under Section 482 of the Code of Criminal Procedure seeking quashing of order dated, 6th February, 2004 passed in Complaint Case No. 322 M of 2004 by the Chief Judicial Magistrate, Patna, taking cognizance against the Petitioners for the offences under Sections 25 (U) and 29 of the Industrial Dispute Act, 1947 for alleged violation of the provisions under Section 18(3) and SI. 13 of Schedule 5B of the said Act, that is, committing unfair labour practice and breach of settlement on Award. The case was transferred for trial to the Court of Sri Sanjay Kumar Singh, Judicial Magistrate, 1st Class, Patna. 3. It is admitted fact that the complaint was filed by Opposite Party no. 2, Labour Commissioner, Patna, who had earlier issued letter no. 4198 dated, 27th August, 2003 against the Petitioners relating to implementation of the recommendation of the Manisana Wage Board Award but in reply to the said letter the Management explained vide its letter dated, 1st September, 2003 that as per recommendation of the Wage Board the Journalists were being paid wages as per Class-ll whereas non-journalist employees were paid the wages of Class- VI and as such the same was a violation of Manisana Wage Board Award and as such they have not implemented the provisions of Part-Ill, Chapter-I, Clause 2(3) of Manisana Wage Board Award which provides an explanation; For the purpose of this clause- 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, will be treated as one single Unit of that newspaper establishment. 4. It is further stated in the complaint petition that the Management treating the four Units different whereas they are branches of one establishment which further appears from Identity Card issued to the employees working under all the four Branches whereon the Times of India appears printed. 5. The learned Counsel for the Petitioners submitted that the Petitioner in Cr. Misc. No. 12876 of 2004 is an independent establishment wherein all the employees are being given their wages as per the Awards. 5. The learned Counsel for the Petitioners submitted that the Petitioner in Cr. Misc. No. 12876 of 2004 is an independent establishment wherein all the employees are being given their wages as per the Awards. So far Petitioners of other three cases are concerned, they are altogether different Companies but supporting the functions of Petitioner of first case on the basis of out sourcing and Manisana Wage Board Award is not applicable upon them. Further, no offence for which cognizance has been taken, is made out against either of the Petitioners in all the four cases. On the other hand, learned Additional Public Prosecutor supported the Order under challenge and averments made in the complaint petition. 6. Admittedly, Manisana Wage Board was constituted under the provisions of Working Journalist & other Newspaper Employees (Condition of Service) & Miscellaneous Provisions Act, 1955, which by submitting Award, of national importance recommended the prescribed wages for the employees of Newspaper Establishment and the recommendations have been accepted by the Central Government who issued Notification in this regard. Since the recommendations were enforceable all over India its status is an Award of National Tribunal. Thus, the contention of learned Counsel that there is no unfair labour practice even if Manisana Wage Board Award is not properly implemented, is not acceptable. In view the of the term "unfair labour practice" as defined under Section 2(ra) of the Industrial Disputes Act means any of the practices as specified in the Fifth Schedule. 7. Similarly, at serial no. 13 of 5th Schedule under Industrial Dispute Act reads "failure to implement Award, Settlement or Agreement". Thus non-implementation of any term of the Award constitutes an offence punishable under Section 25-U of the Act read with Section 29, both respectively reads as such: 25-U. Penalty for committing unfair Labour practices-Any person who commits any unfair Labour practice be punishable with imprisonment for a term which may extend to six months or fine which may extend to one thousand rupees or with both. 29. Penalty for breach of settlement or Award. 29. Penalty for breach of settlement or Award. Any person who commits a breach of any term of any settlement or Award, which is binding on him under this Act, shall be punishable with imprisonment for a term which may extend to six months, or with fine, or with both, and where the breach is a continuing one, with a further fine which may extend to two hundred rupees for every day during which the breach continues after the conviction for the first and the Court trying the offence, if it fines the offender, may direct that the whole or any part of the fine realized from him shall be paid, by way of compensation, to any person who, in its opinion, has been injured by such breach." It is also relevant to mention here that Chapter II Section 3 of the W.J. and Other Newspaper Employees etc. Act, 1955 reads as such: 3. Act 14 of 1947 to apply to working Journalists:- (1) The provisions of the Industrial Disputes Act, 1947, as in force for the time being, shall subject to 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 25F 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." 8. Now, the only question left for consideration whether the Award is binding upon all the Petitioners or not. As per Petitioners only Petitioners of first case is liable to comply the Award and make payment of wages accordingly which they are doing. To support this my attention was drawn towards the orders passed in CWJC No. 7240 of 2002 which was filed by the Times of India Newspaper Employees Union and another seeking relief against non- implementation of the recommendation of the Award. To support this my attention was drawn towards the orders passed in CWJC No. 7240 of 2002 which was filed by the Times of India Newspaper Employees Union and another seeking relief against non- implementation of the recommendation of the Award. Ultimately, in their absence, vide order dated, 19th November, 2009 the Writ Petition was disposed of on the submissions of the opposite parties that if they are not being paid the wages as per recommendations the amount is recoverable on their applications to the State Government under Section 17 of the Working Journalists and Other Miscellaneous Provision Act, 1955 which they have not done so giving liberty to avail out the remedy available the writ applications appears to have been disposed of. 9. The above is not sufficient to establish that the recommendations are being properly implemented. Moreover, assuming the employees at the time of filing of the writ application in the year 2002 did not approach the State Government as required under Section 17 of the Act but they might have done subsequently giving rise to issuance of letter no. 4198 dated, 27th August, 2003 by Deputy Labour Commissioner, Patna, for implementation of the Award to the Management. 10. The contention of learned Counsel for the Petitioners that other three Petitioners than M/s Bennett Coleman Co. Ltd. and Others have their separate identity and the employees under them are not to be benefited by the recommendation of Manisana Wage Board Award but this statement is also not acceptable in face of assertion of the complainant in the complaint petition itself that workmen under all the three other Petitioners which are said to have been just supporting Petitioners of first case as out sourcing Agent, have printed Identity Cards at the top of the same the Times of India appears printed and In spite of filing of some of the Identity Cards issued by all the four Petitioners Company having same feature in the petitions filed before this Court, the Petitioners are conspicuously silent. Even during the course of argument nothing contrary was pointed out. 11. The above materials are Prima facie sufficient to establish that all the three establishments under names and style (1) M/s Times Publishing House Ltd., M/s Pearl Printwell Ltd. and M/s Excel Publishing House Ltd. are the Units of one establishment M/s Bennet Coleman & Co. Ltd., having different names for internal convenience. 12. 11. The above materials are Prima facie sufficient to establish that all the three establishments under names and style (1) M/s Times Publishing House Ltd., M/s Pearl Printwell Ltd. and M/s Excel Publishing House Ltd. are the Units of one establishment M/s Bennet Coleman & Co. Ltd., having different names for internal convenience. 12. The submissions of learned Counsel for the Petitioners that if at all there is any violation of the provisions of Working Journalist and other Newspaper Employees Act, 1955 they may be liable to be penalized under Section 18 of the Act, but not for the offences under which cognizance has been taken. As stated above, the provisions of Industrial Disputes Act, 1947 is, Prima facie, applicable in the instant case and whether any offence have been constituted under Section 18 of the Act it is left to be decided by the Trial Court at the time of hearing on the point of charge or at any appropriate stage. The Trial Court without being restricted to the order taking cognizance for a particular offence, if find fit, may proceed with trial for other offences also if made out after framing proper charge. 13. Thus, finding no merit, all the four petitions are hereby dismissed, and the Court below is directed to proceed expeditiously and decide the case, on its own merit without being prejudiced of instant non-interference.