Research › Search › Judgment

Madhya Pradesh High Court · body

2019 DIGILAW 30 (MP)

Rajasthan Patrika Pvt. Ltd. v. State of M. P.

2019-01-08

ROHIT ARYA

body2019
ORDER Arya, J -- 1. Petitioner M/s Rajasthan Patrika Private Limited – a registered company in terms of the Memorandum of Association of the company engaged in publication of daily Hindi news paper in various States including the State of Madhya Pradesh amongst other works, the news paper published from the State of Madhya Pradesh is known as “Patrika” has approached this Court in this writ petition under Article 226 and 227 of the Constitution of India challenging the legality, validity and propriety of the order dated 31.8.2016 (Annexure P-14) passed by the respondent No. 2 under section 17(1) of the Working Journalists and Other Newspaper Employees (Conditions of Service) and Miscellaneous Provisions Act, 1955 (for short, the Act, 1955') and the consequent recovery certificate of the even date, Annexure P-15 with a further direction that the affidavit filed by respondent No. before the said authority if treated as an application, the same be sent to the labour Court for conducting the enquiry under section 17(2) of the Act, 1955. 2. Before adverting to the facts relevant and the contentions advanced by both the parties, it is expedient to reiterate peripheral facts giving raise to the present petition. The Central Government constituted two wage boards on 24.5.2007 under sections 9 and 13C of the Act, 1955 to determine the wages to be paid to the working journalists and non-journalist employees under the chairmanship of Dr. Justice Narayan Kurup, However, he has resigned with effect from 31.7.2008. Therefore, Justice G.R. Majithia was appointed as Chairman with effect from 4.3.2009 (hereinafter referred to as ‘the Majithia Wage Board’) and the recommendations were submitted to the Central Government on 31.12.2010. Consequent upon acceptance of the recommendations on 25.10.2011, the Central Government has issued a notification to the said effect under section 12(1) of the Act, 1955 which was published on 11.11.2011. Even before publication of the notification, various news paper establishments affected by the Majithia Wage Board had challenged the same before the Hon’ble Supreme Court under Article 32 of the Constitution of India, lead case being ABP Pvt. Ltd., and another v. Union of India, Writ Petition (Civil) No. 246 of 2011. Even before publication of the notification, various news paper establishments affected by the Majithia Wage Board had challenged the same before the Hon’ble Supreme Court under Article 32 of the Constitution of India, lead case being ABP Pvt. Ltd., and another v. Union of India, Writ Petition (Civil) No. 246 of 2011. During pendency of the writ petitions, the recommendations of the Majithia Wage Board were published by the Central Government vide notification dated 11.11.2011 under section 12(1) of the Act, 1955, therefore, the same have also been challenged by way of amendment in writ petitions. Hon’ble Supreme Court dismissed bunch of writ petitions on 7.2.2014 (supra). The part of operative portions of the order relevant for the purpose of this writ petition are quoted below : “(iv) Accordingly, we hold that the recommendations of the Wage Boards are valid in law, based on genuine and acceptable considerations and there is no valid ground for interference under Article 32 of the Constitution of India. Consequently, all the writ petitions are dismissed. (v) In view of our conclusions and dismissal of all the writ petitions, the wages as revised/determined shall be payable from 11.11.2011 when the Government of India has notified the recommendations of the the Majithia Wage Boards. All the arrears up to March, 2014 shall be paid to all eligible persons in four equal installments within a period of one year from today and continue to pay the revised wages from April, 2014.” (Emphasis supplied) It appears that the order passed by the Hon’ble Supreme Court since was not implemented, sizable number of employees have filed contempt petitions before the Hon’ble Supreme Court complaining non-compliance of the order. All the contempt petitions were clubbed together, lead case being Contempt Petition (Civil) No. 411 of 2014, Avishek Raja and others v. Sanjay Gupta arising out of Writ Petition (Civil) No. 246 of 2011 have been decided on 19.6.2017. A detailed comprehensive order was passed clarifying the mandate contained in the order dated 7.2.2014 (supra), while dispelling the unsustainable objection raised by the petitioners/establishments. Relevant for the purpose of this writ petition is paragraph 24 wherein clause 20(j) of the notified recommendations of the Majithia Wage Board are dealt with. A detailed comprehensive order was passed clarifying the mandate contained in the order dated 7.2.2014 (supra), while dispelling the unsustainable objection raised by the petitioners/establishments. Relevant for the purpose of this writ petition is paragraph 24 wherein clause 20(j) of the notified recommendations of the Majithia Wage Board are dealt with. Clause 20(j) of the recommendations and paragraph 24 of the order are quoted below : “20(j) The revised pay scales shall become applicable to all employees with effect from 1st July, 2010. However, if any employee within three weeks from the date of publication of Government Notification under section 12 of the Act enforcing these recommendations exercises his option for retaining his existing pay scale and “existing emoluments”, he shall be entitled to retain his existing scale and such emoluments.” “24. Insofar as the highly contentious issue of Clause 20(j) of the Award read with the provisions of the Act is concerned it is clear that what the Act guarantees to each “newspaper employee” as defined in section 2(c) of the Act is the entitlement to receive wages as recommended by the Wage Board and approved and notified by the Central Government under section 12 of the Act. The wages notified supersedes all existing contracts governing wages as may be in force. However, the Legislature has made it clear by incorporating the provisions of section 16 that, notwithstanding the wages as may be fixed and notified, it will always be open to the concerned employee to agree to and accept any benefits which is more favourable to him than what has been notified under section 12 of the Act. Clause 20(j) of the Majithia Wage Board Award will, therefore, have to be read and understood in the above light. The Act is silent on the availability of an option to receive less than what is due to an employee under the Act. Such an option really lies in the domain of the doctrine of waiver, an issue that does not arise in the present case in view of the specific stand of the concerned employees in the present case with regard to the involuntary nature of the undertakings allegedly furnished by them. Such an option really lies in the domain of the doctrine of waiver, an issue that does not arise in the present case in view of the specific stand of the concerned employees in the present case with regard to the involuntary nature of the undertakings allegedly furnished by them. The dispute that arises, therefore, has to be resolved by the fact finding authority under section 17 of the Act, as adverted to hereinafter.” At this stage, it shall be appropriate to refer to the relevant provisions of the Act, 1955 which regulate the conditions of service of the working journalists and non-journalist employees employed in the news paper establishments throughout the country inter alia their entitlement to gratuity, provident fund, leave with pay, hours of work, minimum wages, fixation of wages, etc., Section 9 empowers the Central Government to constitute Wage Board for fixing and revising rates of wages to the working journalists and other employees. Recommendations are to be made by the Board under section 10. After acceptance of the recommendations, the same are required to be notified by the Central Government under section 12. Section 13 empowers that after coming into force of the order published by the Central Government, every working journalist shall be entitled to be paid by the employer the wages at the rate which shall in no case be less than the rate of wages specified in the order. Section 13 empowers that after coming into force of the order published by the Central Government, every working journalist shall be entitled to be paid by the employer the wages at the rate which shall in no case be less than the rate of wages specified in the order. Chapter IIA deals with non-journalist news paper employees and contains the provisions which are para materia with the provision with regard to the working journalists in the news paper establishments, i.e., for fixation and revision of rate of wages, etc., Section 16(1) provides that the provisions of the Act, 1955 shall have the effect notwithstanding anything inconsistent therewith contained in any other law or in the terms of any award, agreement or contract of service, whether made before or after the commencement of the Act with the proviso quoted below : “Provided that where under any such award, agreement, contract of service or otherwise, a newspaper employee is entitled to benefits in respect of any matter which are more favourable to him than those to which he would be entitled under this Act, the newspaper employee shall continue to be entitled to the more favourable benefits in respect of that mater, notwithstanding that he receives benefits in respect of other matters under this Act.” Section 16A imposes an embargo on the employer, in the matter of discharge, or dismissing any employee. The same is quoted below: “16A. Employer not to dismiss, discharge, etc., newspaper employees.— No employer in relation to a newspaper establishment shall, by reason of his liability for payment of wages to newspaper employees at the rates specified in an order of the Central Government under section 12, or under section 12 read with section 13AA or section 13DD, dismiss, discharge or retrench any newspaper employee.” Section 17 deals with recovery of money due from an employer. The controversy involved in this case revolves around section 17. Hence, the same is quoted extenso. “17. The controversy involved in this case revolves around section 17. Hence, the same is quoted extenso. “17. Recovery of money due from an employer.— (1) Where any amount is due 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 arrears 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 (14 of 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).” Facts of the case: 3. The respondent No.3 was initially appointed on contract basis by the petitioner/company vide appointment letter dated 1.11.2012 (Annexure R/3-1) as “Chief Reporter” in Editorial Department at Gwalior Branch office for a period of one year from the date of joining, on a consolidated amount of Rs.12,000/- per month inclusive of D.A., and all other allowances. In addition thereto, he is entitled for a sum of Rs.5,000/- as house rent allowance and Rs.2,000/- as conveyance allowance as well as Rs.1,000/- as mobile allowance. In addition thereto, he is entitled for a sum of Rs.5,000/- as house rent allowance and Rs.2,000/- as conveyance allowance as well as Rs.1,000/- as mobile allowance. It appears that the period was extended with effect from 1.10.2013 vide appointment letter dated 30.9.2013 (Annexure P-3) as Chief Reporter in Editorial Department at Gwalior Branch. The same was further extended twice vide letters dated 1.10.2015 (Anenxure P-4) and 31.12.2015 (Anenxure P-5). Due to non-implementation of the notified recommendations of the Majithia Wage Board even after decision in Writ Petition No.246/2011 (supra), by the Hon’ble Supreme Court and with the strength of the order; particularly paragraph 24 passed by the Hon’ble Supreme Court in Contempt Petition No (C) No. 572 of 2014 arising out of Writ Petition No. 246/2011 (supra), the respondent No. 3 has raised a grievance in the office of Assistant Labour Commissioner, Gwalior on 21.7.2015 and the same was processed under section 17(1) of the Act, 1955 but, for want of territorial jurisdiction the same was made over to the Labour Commissioner, Indore vide communication dated 4.4.2016 (Annexure P-7). Thereafter, it appears that the respondent No. 3 was terminated from service with effect from 31.3.2016. Respondent No. 3 had raised an industrial dispute and upon failure of conciliation proceedings, reference was made to the Labour Court, No. 1, Gwalior. The said reference was answered by the Labour Court in favour of the respondent No. 3 on 23.5.2017 in case No. COC/26/A/I.D.Act/2016 (Reference). There is nothing on record that the said Award has been further challenged by the petitioner. Hence, the same has attained finality. The Labour Commissioner, Indore has issued notice to the Branch Manager, Patrika Office, Gwalior on 12.5.2016 (Annexure P/8) and the case was fixed for 31.5.2016. Initially, time was sought by the office of Patrika, Gwalior office and submitted the reply dated 13.6.2016 on 25.7.2016 (Annexure P-9) wherein the claim was denied with the sole contention that the respondent No. 3 has signed the undertaking by way of option under clause 20(j) to prefer the existing wages and other benefits but, not the recommendations of the Majithia Wage Board. Therefore, he is precluded from raising any claim on the basis of recommendations of the Majithia Wage Board. Therefore, he is precluded from raising any claim on the basis of recommendations of the Majithia Wage Board. The petitioner again submitted a reply (written submissions) on 6.8.2016 with the contention that similar averments were made in the State of Rajasthan by sizable number of journalists (168 in number) and after examination of their cases, the Labour Commissioner has found that the claim raises a dispute and referred the matter to the Labour Court for adjudication. On similar lines, another reply was submitted on 10.8.2016 by the petitioner. However, the respondent No. 3 has brought on record of the original file; the affidavit dated 5.8.2015 submitted on 7.8.2015 in the pending contempt petition before the Hon’ble Supreme Court inter alia contending that since 1.11.2012 he is serving with Rajasthan Patrika as Chief Reporter at Gwalior edition but, he has not been extended the benefits of revised wages and interim relief granted under the notified recommendations of the Majithia Wage Board as notified by the Central Government on 11.11.2011. As such, neither the order passed by the Hon’ble Supreme Court has been complied with nor the monetary benefits have been released. It is further alleged that in the month of June, 2014, he was called in the Gwalior Office of Patrika by one Ashok Sharma and asked the respondent No.3 and other employees to sign on two sets of papers without allowing them to go through the contents thereof. He was given to understand that the aforesaid signed papers were obtained to treat them as an undertaking purportedly in terms of clause 20(j) of the recommendations of the Majithia Wage Board. Hence, prayed that a direction be issued to the petitioner/establishment for payment of revised wages and other emoluments under section 17(1) of the Act, 1955 to him. 4. He was given to understand that the aforesaid signed papers were obtained to treat them as an undertaking purportedly in terms of clause 20(j) of the recommendations of the Majithia Wage Board. Hence, prayed that a direction be issued to the petitioner/establishment for payment of revised wages and other emoluments under section 17(1) of the Act, 1955 to him. 4. The Labour Commissioner after due opportunity to either party during the proceedings and upon due consideration of the written arguments has passed the impugned order dated 31.8.2016 (Annexure P-14) by which opined that clause 20(j) of the recommendations of the Majithia Wage Board has no application to the facts of the case as the undertaking in the form of option was required to be given within three weeks from the date of publication of the Government notification under section 12 of the Act, 1955, i.e., with effect from 11.11.2011 for retaining his existing pay scale and existing emoluments or the revised pay scales with effect from 1.7.2010. In the instant case, the respondent No. 3 has been appointed as Chief Reporter in Editorial Department at the Branch Office, Gwalior initially with effect from 1.11.2012 and thereafter with effect from 1.10.2013 further appointment letter has been issued, much after the date of notification published by the Central Government on 11.11.2011 under section 12(1) of the Act, 1955 enforcing the revised pay scales with effect from 1.7.2010 in accordance with recommendations of the Majithia Wage Board. Even otherwise, the undertaking which is undated allegedly obtained some where in the month of June, 2014 from the respondent No. 3 is of no consequence. In that context, relied upon the orders of the Hon’ble Supreme Court in W.P.No.246/2011 (supra), and the Contempt Petition (Civil) No. 411/2014 (supra), wherein it has been observed that it will be open for each affected employee to lay before the State Government/labour commissioner the details of the amount that he/she claims to be due under the recommendations of the Majithia Wage Board over and above the emoluments drawn by him. If such a resort is made to the State Government/labour Commissioner the concerned authority would be fully empowered to carry out necessary adjudication and pass consequential orders in terms of section 17 of the Act. If such a resort is made to the State Government/labour Commissioner the concerned authority would be fully empowered to carry out necessary adjudication and pass consequential orders in terms of section 17 of the Act. Hence, the labour Commissioner has found that no dispute existed warranting reference of dispute to the Labour Court under section 17(2) of the Act, 1955. Resultantly, on 31.8.2016 ordered for payment of arrears of wages and other emoluments payable to the respondent No. 3 to the tune of Rs. 21,46,945/- (Annexure P-14) and thereafter, on the even date, issued the recovery certificate for recovery of the amount as arrears of land revenue vide Annexure P-15. 5. Questioning the aforesaid orders, the learned counsel for the petitioner primarily contends that in view of the undertaking given by respondent No.3 by way of option for existing pay and the emoluments, as on the date of his initial appointment and thereafter, the claim for revised wages and emoluments notified by the Central Government on 11.11.2011 in terms of the recommendations of the Majithia Wage Board are not extendable to the respondent No. 3 in the teeth of clause 20(j) thereof. In the rejoinder a faint attempt is made even to dispute the status and duties being performed by the respondent No. 3 on the premise that he does not fall within the definition of ‘working journalist’ under section 2(f) of the Act, 1955 though no such plea was raised before the Labour Commissioner in any of the replies referred to above. 6. Per contra, respondent No. 3 contends that he has been initially engaged with effect from 1.11.2012 as “Chief Reporter” in Editorial Department at Gwalior Branch office but, not on 30.9.2013 as pleaded in the writ petition. The recommendations of the Majithia Wage Board have been made applicable by the Central Government vide notification dated 11.11.2011 published under section 12(1) of the Act, 1955 and the revised pay and emoluments are effective from 1.7.2010. Under clause 20(j), the option was to be exercised within three weeks from the date of notification which expires on 2.12.2011. The said period has expired much earlier to the initial date of appointment of the respondent No. 3 with effect from 1.11.2012. Under clause 20(j), the option was to be exercised within three weeks from the date of notification which expires on 2.12.2011. The said period has expired much earlier to the initial date of appointment of the respondent No. 3 with effect from 1.11.2012. Further, once the recommendations of the Majithia Wage Board were notified by the Central Government on 11.11.2011 and as disclosed by the petitioner/establishment that they have implemented the same with effect from the said date before the Labour Commissioner, Jaipur, State of Rajasthan vide letter dated 3.6.2016 (AnnexureR/3-2), the respondent No. 3 cannot be denied the benefits of notified revised pay/wages and emoluments. Besides, the alleged undertaking even otherwise is undated and was obtained from the respondent No. 3 alongwith other similarly situated employees under threat and duress in the month of June, 2014 is of no consequence. Hence, the petitioner cannot deny payment of dues payable to the respondent No. 3 in terms of recommendations of the Majithia Wage Board under the pretext that a ‘dispute’ as regards entitlement of the respondent No. 3 for payment resting on the alleged undertaking which required to be enquired by the labour Court under section 17(2) of the Act, 1955. 7. Heard. 8. The sole controversy revolves around sub-sections (1) and (2) of section 17 of the Act, 1955 quoted above, in the factual backdrop of the case in hand. 9. The initial appointment letter of the respondent No. 3 dated 1.11.2012 (Annexure R/3-1) as “Chief Reporter” in Editorial Department at Gwalior office is not denied by the petitioner. Thereafter, his further continuance till termination on 31.3.2016 though set aside by the labour Court vide award dated 23.5.2017 (supra), which has attained finality has also not been disputed by the petitioner. 10. The recommendations of the Majithia Wage Board are notified by the Central Government on 11.11.2011 under section 12(1) of the Act, 1955 making the revised pay and emoluments tothe working journalists and the non-working journalists of the news papers with effect from 1.7.2010. The option under clause 20(j) of the recommendations was available to the employees covered under the Majithia Wage Board for three weeks from the date of notification. The said period expired on 2.12.2011. The respondent No. 3 was not even in employment on that date as his initial date of appointment is 1.11.2012. 11. The option under clause 20(j) of the recommendations was available to the employees covered under the Majithia Wage Board for three weeks from the date of notification. The said period expired on 2.12.2011. The respondent No. 3 was not even in employment on that date as his initial date of appointment is 1.11.2012. 11. Hence, the recommendations of clause 20(j) of the Majithia Wage Board have no application to the facts in hand, as a consequence thereof, the alleged undated undertaking is of consequence. Moreover, the petitioner himself has disclosed before the Labour Commissioner, Jaipur, State of Rajasthan vide communication dated 3.6.2016 (Annexure R/3-2) as regards implementations of the recommendations of the Majithia Wage Board to its employees with effect from 11.11.2011. There is no dispute that the revised wages and the emoluments notified by way of recommendations of the Majithia Wage Board are higher than the wages paid to the respondent No.3 under his appointment letter. As a matter of fact, such payment of wages and emoluments are in violation of section 13 of the Act, 1955 which contemplates that the working journalists entitled to wages at rates not less than those specified in the order notified by the Central Government under section 12(1) thereof. The petitioner claimed that the respondent No. 3 is not entitled for the revised wages and emoluments in terms of clause 20(j) of the recommendations of the Majithia Wage Board. There is no other question or dispute was raised by the petitioner before the Labour Commissioner. There is nothing on record to construe that the claim of the respondent No. 3 is shrouded with suspicion or dispute as tried to be presented by the petitioner. Hence, the reasoning assigned by the Labour Commissioner based on the material placed on record while concluding entitlement of respondent No. 3 for revised wages and emoluments in terms of recommendations of the Majithia Wage Board is in consonance with the provisions of the Act, 1955. As such, the order dated 31.8.2016 (Annexure P.14) passed by the said authority determining the revised wages and emoluments and recovery of the amount as ‘dues’ as arrears of land revenue by issuance of the recovery certificate of the even date vide Annexure P-15 cannot be faulted with. 11. The petitioner tried to contend that the respondent No. 3 himself had claimed arrears of Rs. 11. The petitioner tried to contend that the respondent No. 3 himself had claimed arrears of Rs. 16,37, 256/- which is evident from the chart annexed with the affidavit of the respondent No.3 dated 21.7.2015 whereas the Labour Commissioner has determined the arrears due as Rs. 21,46,945/-. As such, there is apparent dispute of entitlement of dues. From a perusal of the original record, it is apparent that the respondent No. 3 has submitted a revised chart of arrears due dated 31.5.2016 wherein the amount shown is 22,81,857/- but, there is nothing on record that the petitioner at any point of time objected to the same. As a matter of fact, it is not a case of dispute of entitlement of claim but, arithmetical variations. It needs no mention that while computing the claim under section 17(1) of the Act, 1955 as ‘amount due’ from an employer to the employee, the authority is empowered to make summary enquiry in that behalf to ascertain the exact amount due as laid down by the Hon’ble Supreme Court in the case of Kasturi and Sons (Private) Ltd., v. N. Salivateeswaran and others [ AIR 1958 SC 507 ]. Hence, no interference is warranted in the orders under challenge. 12. The judgments cited by learned counsel for the petitioner, viz., Samarjit Ghosh v. Bennett Coleman and Co., and another, [ AIR 1987 SC 1869 , Bombay High Court in Writ Petition No. 1821 of 2018 D.B.Corp., Ltd., v. State of Maharashtra decided on 9.8.2018 and High Court of Gujarat at Ahmedabad in Special Civil Application No.764 of 2018 to Special Civil Application No. 869 decided on 2.2.2018 and Letters Patent Appeal No. 433 of 2018 Devji Maganbhai Vacheta v. D.B.Corp. Ltd., decided on 26.6.2018 are distinguishable on facts; particularly, the denial of claim is restricted to clause 20(j) of the recommendations of the Majithia Wage Board only before the Labour Commissioner and this Court but, the period for submission of option by the employees in terms of notification issued by the Central Government stood expired on 2.12.2011 and thereafter, the respondent No. 3 has been initially appointed as “Chief Reporter” in Editorial Department at Gwalior office vide order dated 1.11.2012 (Annexure R/3-1) as discussed above and are of no assistance to the petitioner. 13. Writ petition sans merit and is hereby dismissed.