M/S Jagran Prakashan Ltd v. State Of Haryana And Others

IN THE HIGH COURT OF PUNJAB AND HARYANA AT

CHANDIGARH CWP-36570-2019 (O&M) Date of Decision: 16.11.2023 M/S JAGRAN PRAKASHAN LIMITED

...Petitioner

Versus

STATE OF HARYANA AND OTHERS

...Respondents

CORAM: HON'BLE MR. JUSTICE HARSH BUNGER Present :

Mr. Sanjay Kaushal, Senior Advocate with Ms. Ojaswini Gagneja, Advocate for the petitioner.

Mr. Satish Singla, A.A.G., Haryana.

Ms. Aakriti Mittal, Advocate for respondents No.5 to 56.

HARSH BUNGER, J.

Petitioner (M/s Jagran Prakashan Limited) has filed the instant writ petition under Articles 226/227 of the Constitution of India, inter-alia seeking a writ in the nature of certiorari for quashing the impugned reference dated 22.10.2018 (Annexure P-11) passed by the Principal Secretary to Government of Haryana; whereby, a common reference has been made under the provisions of Section 17(2) of the Working Journalists and other Newspapers Employees (Conditions of Service) and Miscellaneous Provisions Act, 1955 (for short 'the Act, 1955') with regard to separate claims of 51 workmen (private respondents, herein). A further prayer has been made for seeking quashing of impugned order dated 12.09.2019 (Annexure P-21) passed by the learned

Industrial Tribunal-cum-Labour Court, Hisar (for short `the Tribunal'); whereby, directions have been issued to assign separate numbers and subsequently, preparing separate case files pertaining to claims of all private respondents.

Another prayer has been made for quashing the order dated 03.10.2019 (Annexure P-23) passed by the learned Tribunal; whereby, the review application filed by the petitioner-Establishment assailing order dated 12.09.2019 (Annexure P-21) has been dismissed. The petitioner also seeks a writ in the nature of mandamus for directing respondent No.1-State of Haryana for making separate references in each individual case, in accordance with the provisions of the relevant Act and Rules.

2.

Briefly, the petitioner is a Newspaper Establishment and publishes newspaper from different places in India, including Hisar. It appears that certain workmen-newspaper employees submitted their respective claims under Section 17(1) of the Act, 1955 for recovery of certain amount in terms of Government Notification No.S.O. 2524(E), S.O. 2525(E) dated 24.10.2008 and S.O. No.2532(E) dated 11.11.2011. Upon considering the afore-said claims submitted by various newspaper employees, the Government of Haryana, Labour Department through its Principal Secretary made a common reference vide its order dated 22.10.2018 (Annexure P-11), which reads as under :- "HARYANA GOVERNMENT LABOUR DEPARTMENT

ORDER

In exercise of powers conferred under sub-section

(2) of section 17 of the Working Journalists and other Newspaper Employees (Conditions of Service) and

Miscellaneous Provisions Act, 1955, the Governor of Haryana is pleased to refer the below mentioned issue to the Ld. Labour Court-cum-Industrial Tribunal, Hisar for adjudication :- Whether Sh. Mohan Lal and 50 other Newspaper Employees are entitled to wages and other benefits from M/s Jagran Prakashan Limited, 15 Industrial Area, Delhi Road, Hisar as per the list of claims enclosed? If so, with what details?

The Ld. Labour Court-cum-Industrial Tribunal, Hisar may decide the above issue within stipulated period as per directions dated 13.10.2017 of the Hon'ble Supreme Court of India (copy enclosed).

Dated: 22.10.2018 Dr. Mahavir Singh Principal Secretary to Government, Haryana, Labour Department"

3.

Before proceeding further, it would be appropriate to state here that the Act, 1955 (for short 'the Act of 1955') has been enacted to regulate the conditions of employment of working journalists and other newspaper employees. Section 9 of the Act, 1955 provides for fixation of wages and revision thereof in respect of working journalists by the Central Government. Section 13-C of the Act, 1955 provides for fixation and revision of wages in respect of non-journalist newspaper employees. Such fixation or revision of wages is to be dealt with by a Wage Board constituted under the provisions contained in the Act, 1955. The recommendations of the Wage Board, if accepted, are to be notified by Central Government under Section 12 of the Act, 1955. The Government of India constituted two Wage Boards under the provisions of Sections 9 and 13-C of the Act, 1955 by Notification dated 24.05.2007. The Wage Boards submitted their recommendations to the Central Government on 31.12.2010. In exercise of

powers conferred by Section 12 of the Act, 1955, the Central Government issued Notification dated 11.11.2011 for implementation of recommendations of Wage Boards in respect of working journalists and non-journalist newspapers employees. The recommendations of Wage Boards implemented by the Notification dated 11.11.2011 are popularly known as recommendations of 'Majithia Wage Board'. 4.

Various newspaper establishments affected by the Majithia Wage Board award laid challenge to the recommendations of the Wage Board by filing writ petitions before the Apex Court under Article 32 of the Constitution of India. Eventually, the Hon'ble Supreme Court decided a bunch of writ petitions, the lead case being W.P. (Civil) No.246 of 2011 (ABP Pvt. Ltd., & Another v. Union of India and others) alongwith Contempt petition (Civil) No.252 of 2012 on 07.02.2014, reported as (2014) 3 SCC 327. The operative portion thereof reads as under: "74. In view of our conclusion and dismissal of all the writ petitions, the wages as revised/determined shall be payable from 11.11.2011 when the Government of India notified the recommendations of the Majithia Wage Boards. All the arrears up to March, 2014 shall be paid to all eligible persons in four equal instalments within a period of one year from today and continue to pay the revised wages from April, 2014 onwards."

5.

It appears that non-implementation of the aforesaid order gave rise to bunch of contempt petitions before the Hon'ble Supreme Court; lead case being Contempt Petition (C) No.411 of 2014 (Avishek Raja and others v. Sanjay Gupta). Various writ petitions also came to be filed under Article 32 of the Constitution of India alleging arbitrary transfer and termination/retrenchment of the journalists and employees concerned, who

claimed to have demanded due implementation of the Majithia Wage Board Award. Certain objections were raised by establishments as regards Clause 20(j) of the notified recommendations of the Majithia Wage Board. Said Clause 20(j) reads as under :- "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."

6.

The above referred contempt petitions as well as writ petitions were decided by the Apex Court by judgment and order dated 19.06.2017 in case of Avishek Raja and others v. Sanjay Gupta, (2017) 8 SCC 435. A detailed order was passed clarifying the mandate contained in order dated 07.02.2014 (supra), dispelling the objections raised by establishments as regards clause 20(j) of the notified recommendations of the Majithia Wage Board. The relevant extract of para 26 of the order dated 19.06.2017 in case of Avishek Raja and others (supra) reads as under :- "26.

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.

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. The dispute that arises, therefore, has to be resolved by the fact finding authority under Section 17 of the Act, as adverted to hereinafter."

7.

It is also apposite to state here that during the course of the contempt proceedings in Avishek Raja's case (supra), the Apex Court had passed orders directing all the State Governments acting through their respective Chief Secretaries to appoint Inspectors under Section 17B of the Act, 1955, to determine as to whether the dues and entitlements of all categories of newspaper employees, including journalists under the Majithia Wage Board Award, has been implemented in accordance with the terms thereof. It was provided that the Inspectors shall submit their report to the Court through the Labour Commissioners of each State indicating the precise findings on the issue indicated above. 8.

It appears that during the course of proceeding of the Avishek Raja's case (supra), various interlocutory applications were filed alleging wrongful termination of services and fraudulent surrender of the

rights under the Wage Board recommendations to avoid liabilities in terms of the order of the Apex Court.

9.

Upon receipt of such applications, the Apex Court directed the Labour Commissioner of each of the States to look into all such grievances and on determination of the same, file necessary reports before the Court. As large number of such applications came before the Apex Court which required investigation into the facts as well, the Apex Court found it appropriate not to monitor the implementation of the Majithia Wage Board recommendations on an individual basis and considered it appropriate to decide certain questions of law which had been formulated by it and to lay down mechanism to implement the Majithia Wage Board Recommendations.

Consequently, after deciding the legal aspects that had arisen in the case, the Apex Court disposed of all the contempt petitions as well as the writ petitions with the following directions contained in order dated 19.06.2017: - "29. Having clarified all doubts and ambiguities in the matter and upon holding that none of the newspaper establishments should, in the facts of the cases before us, be held guilty of commission of contempt, we direct that henceforth all complaints with regard to nonimplementation of the Majithia Wage Board Award or otherwise be dealt with in terms of the mechanism provided under Section 17 of the Act.

It would be more appropriate to resolve such complaints and grievances by resort to the enforcement and remedial machinery provided under the Act rather than by any future approaches to the Courts in exercise of the contempt jurisdiction of the Courts or otherwise.

30. Insofar as the writ petitions seeking interference with transfer/termination, as the case may be, are concerned,

it appears that the same are relatable to service conditions of the concerned writ petitioners. Adjudication of such question in the exercise of high prerogative writ jurisdiction of this Court under Article 32 of the Constitution would not only be unjustified but such questions should be left for determination before the appropriate authority either under the Act or under cognate provisions of law (Industrial Disputes Act, 1947 etc.), as the case may be.

31. In the light of the above, all the contempt petitions as well as the writ petitions filed under Article 32 of the Constitution shall stand answered and disposed of in the terms hereinabove."

10.

It appears that subsequently a miscellaneous application was filed in the aforesaid case (Avishek Raja's case (supra)); wherein an order dated 13.10.2017 was passed by the Hon'ble Supreme Court, which reads as under:

"Upon hearing the learned counsel for the applicant we clarify our Judgment dated 19.06.2017 to mean that dispute (s) referred for adjudication under Section 17 (2) of the Working Journalists and Other Newspaper Employees (Conditions of Service) and Miscellaneous Provisions Act, 1955 will be disposed of by the concerned Labour Court/Industrial Tribunal as Expeditiously as possible, preferably, within six months of the reference being made.

With the aforesaid clarification the miscellaneous application is disposed of."

11.

It is in the backdrop of the aforementioned circumstances that the private respondents herein filed their respective application(s) to claim their due amount(s) from the petitioner-Establishment herein.

12.

At this stage, it would be apposite to notice the provisions of Section 17 of the Act of 1955 through which the recommendations of the Majithia Wage Board Award were to be implemented. Section 17 of the Act, 1955 is being reproduced herein below:

"17. Recovery of money due from an employer:- 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 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 (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)."

13.

It is in respect of the afore-said separate claim applications submitted by the private respondents herein that the above-referred common reference order dated 22.10.2018 (Annexure P-11) was made. 14.

A perusal of the paper-book would reveal that subsequent to the afore-said common reference, the private respondents herein filed their respective claim statements before the learned Tribunal below, which was contested by the petitioner-Establishment herein. 15.

On the basis of the pleadings of the parties, it appears that issues have been framed by the learned Tribunal below. 16.

It further appears that during pendency of the proceedings before the learned Tribunal below, the private respondents herein moved application before the learned Tribunal below for assigning separate reference number to each claim application; whereupon, the learned Tribunal below passed an order referring the issue to the Labour Department, Haryana for taking appropriate action. Thereafter, the learned Tribunal below passed another order dated 12.09.2019 (Annexure P-21) directing its office to give separate numbers to all the references. The petitioner-Establishment sought review of the aforesaid order dated 12.09.2019; however, the same was also dismissed by the learned Tribunal below vide order dated 03.10.2019 (Annexure P-23).

17.

In the afore-mentioned circumstances, the petitionerEstablishment has filed the instant writ petition. 18.

Learned senior counsel for the petitioner has argued that the impugned reference order dated 22.10.2018 (Annexure P-11) is bad as the employees had filed their claim applications under Section 17(1) of the Act, 1955 and not in terms of Section 17(2) of the Act, 1955 as the power to refer

dispute under Section 17(2) of the Act, 1955 with regard to the amount due, is vested with the State Government only on its own motion or upon an application/complaint of an employee. Another argument raised by learned senior counsel for the petitioner is that the State of Haryana through its Principal Secretary, could not have made a common reference with regard to separate claims of the newspaper employees and in fact, the learned Tribunal below had already framed an issue as to "whether the action of the appropriate Government to refer the dispute of 51 employees in one common reference, is legal and justified" and in view of the said issue, it has been accepted that the previous reference was bad being a common reference.

Learned senior counsel has further contended that the learned Tribunal below has erred in passing the impugned order dated 12.09.2019 (Annexure P-21); whereby, he had directed his office to give separate number to all the references and to prepare separate files. In this regard, it is submitted that the power to make a reference vests only with the State Government and the learned Tribunal below could not have directed its office to give separate numbers to all the references. It is submitted that the petitioner-Establishment had raised a grievance regarding the same before the learned Tribunal below by filing a review application, however the same has also been wrongly dismissed vide order dated 03.10.2019 (Annexure P-23).

On the basis of the afore-mentioned submissions, it is submitted that the impugned orders be quashed and a direction be issued to the State of Haryana to make separate references in each individual case in accordance with the provisions of the Act, 1955 and the Rules framed thereunder.

19.

The afore-said submissions made on behalf of the petitionerEstablishment have been countered by the counsel representing the private respondents herein on the strength of the submissions made in an application filed on their behalf seeking vacation of an ex-parte stay order dated 17.12.2019 passed by this Court in this matter. 20.

It is submitted that the separate employees had filed their individual claims before the Government and after considering all the claims, the appropriate Government, while exercising its power under Section 17(2) of the Act, 1955 had made a common reference in respect of all the employees to the learned Tribunal below for adjudication; where the employees had submitted their separate claims. It is submitted that the instant petition has been filed by the petitioner-Establishment only to delay the process and no prejudice has been caused to them by the common reference as well as the impugned order dated 12.09.2019; whereby, the learned Tribunal below has directed its office to assign separate numbers to all the references and to prepare separate files.

It is submitted that the afore-said order was in consonance with the directions issued by this Court in CWP-7590-2019 in its order dated 19.03.2019 (Annexure R-6), which reads as under :- "The appropriate Government has made a reference under Section 17(2) of the Working Journalists and other Newspaper Employees (Conditions of Service) and Miscellaneous Provisions Act, 1955 ("1955 Act") to the Industrial Tribunal-cum-Labour Court, Ambala in a dispute regarding entitlement to wages by non-journalists newspaper employees numbering 43 vide order dated October 22, 2018 endorsed-issued on December 31, 2018.

February 22, 2019 making three-fold prayers. One it is pointed out that the records be corrected which prayer has been granted by the Labour Court vide its order dated February 26, 2019. The second prayer for registration of the reference under Section 17(2) of the 1955 Act has been allowed by the same order. What remains is the third prayer that each case be registered and numbered separately and accordingly proceeded with independently to determine whether wages as claimed are due. It may be noticed that in the reference order under Section 17(2) there is appended a list of 43 workers involved in these bunch of cases. There are, therefore, 43 claim applications referred for determination.

The third prayer appears to be fair and reasonable that each case should be registered separately such as IDR 1/1, IDR 1/2 and so on and so forth and the cases should not be clubbed together to read "ITR1/2019" unless the short form "ITR" has any significance to the Labour Court it should be converted to read Industrial Dispute Reference (IDR). Once the cases have been separated they may be listed together or spaced out as per the discretion of the Labour Court. The Labour Court would be free to first settle the legal issues involved between the parties and to decide them in accordance with law and then consider each individual clam for money due.

If this method is not followed it may result in chaos ultimately making it difficult for both the Labour Court and this Court if called upon to exercise judicial review at the appropriate stage. To make these changes in the format of determination I should not think notice to the workers is necessary as none of their rights will be prejudiced and time and money would be saved. The cases are at the initial stage and, therefore, corrective steps, if taken, immediately would be a stitch in time.

As a result, this petition is disposed of in the above terms and the cases are ordered to be numbered separately

in the manner indicated above and then taken up for recording of evidence.

In case the respondents are aggrieved by this order, they are free to approach the Court by way of an application.

A copy of this order be given to learned counsel for the petitioner attested by the Bench Secretary." Accordingly, it is submitted that there is no merit in the petition and the same may be dismissed.

21.

A short reply has also been filed on behalf of respondents No.1 to 3 herein (State of Haryana); wherein, the following stand has been taken :- "(G) That thereafter a request was received by the appropriate Government from the learned Labour Court (respondent no.4) for separation of references in respect of private respondents. On receipt of said request, the matter was examined and it was found that once the reference is made by the appropriate Government, it cannot be withdrawn and accordingly, the office of the Labour Commissioner, Haryana vide letter dated 2.8.2019 advised the learned Labour Court (Respondent no.4) to allot separate numbering at its own level in respect of claim of each newspaper employee. This action of the answering respondent is based on the decision dated 19.3.2019 of this Hon'ble Court passed in C.W.P. No.7590 of 2019 - The Indian Express (P) Limited Versus State of Haryana and others..."

22.

I have heard learned counsel for the parties and have perused the paper-book with their able assistance.

23.

As regards the submission on behalf of the petitionerEstablishment that a common reference could not have been made by the Haryana Government; suffice it to say that an order of reference is in the realm of an administrative act. In Shambhu Nath Goyal v. Bank of

Baroda, Jullundur, (1978) 3 SCC 353, it was held that in making a reference under Section 10 of the Industrial Disputes Act, the appropriate government is doing an administrative act and not a judicial or quasi-judicial act. It was observed therein that any factual foundation in the order of Deputy Labour Commissioner or in the reference order will not create any right in favour of the parties. It was further held that the Labour Court will be free to adjudicate the matter on its own merits in accordance with law. 24.

The scope/ambit of an order of reference was considered by a Constitution Bench of Hon'ble Supreme Court in State of Madras v. C.P. Sarathy, AIR 1953 Supreme Court 53 wherein, it was held as under:-

15. Moreover, it may not always be possible for the Government, on the material placed before it, to particularise the dispute in its order of reference, for situations might conceivably arise where public interest requires that a strike or a lock-out, either existing or imminent, should be ended or averted without delay, which under the scheme of the Act, could be done only after the dispute giving rise to it has been referred to a Board or a Tribunal (vide Sections 10(3) and 23).

In such cases the Government must have the power, in order to maintain industrial peace and production, to set in motion the machinery of settlement with its sanctions and prohibitions without stopping to enquire what specific points the contending parties are quarrelling about, and it would seriously detract from the usefulness of the statutory machinery to construe Section 10(1) as denying such power to the Government. We find nothing in the language of that provision to compel such construction.

reinstatement. But, beyond this no obligation can be held to lie on the Government to ascertain particulars of the disputes before making a reference under Section 10(1) or to specify them in the order.

16. This conclusion derives further support from Clause (a) of Section 10(1) which provides in the same language for a reference of the dispute to a Board for promoting a settlement. A Board is part of the conciliation machinery provided by the Act, and it cannot be said that it is necessary to specify the dispute in referring it to such a body which only mediates between the parties who must of course, know what they are disputing about. If a reference without particularising the disputes is beyond cavil under Clause (a), why should it be incompetent under Clause (c)? No doubt the Tribunal adjudicates, whereas the board only mediates.

But the adjudication by the Tribunal is only an alternative form of settlement of the disputes on a fair and just basis having regard to the prevailing conditions in the industry and is by no means analogous to what an arbitrator has to do in determining ordinary civil disputes according to the legal rights of the parties. Indeed, this notion that a reference to a Tribunal under the Act must specify the particular disputes appears to have been derived from the analogy of an ordinary arbitration. For instance, in - 'Ramayya Pantulu v. Kutty and Rao (Engineers) Ltd.'

"that if a dispute is to be referred to a Tribunal the nature of the dispute must be set out just as it would if a reference were made to an arbitrator in a civil dispute. The Tribunal like any other arbitrator can give an award on a reference only if the points of reference are clearly placed before it."

The analogy is somewhat misleading. The scope of adjudication by Tribunal under the Act is much wider, as pointed out in - "the Western India Automobile Association v. Industrial Tribunal, Bombay', 1949 F C R 321 and it would involve no hardship if the reference also is made in wider terms provided, of course, the dispute is one of the kind described in Section 2(k) and the parties between whom such dispute has actually arisen or is apprehended in the view of the Government are indicated either individually or collectively with reasonable clearness. The rules framed under the Act provide for the Tribunal calling for statements of their respective cases from the parties and the disputes would thus get crystallised before the Tribunal proceeds to make its award. On the other hand, it is significant that there is no procedure provided in the Act or in the rules for the Government ascertaining the particulars of the disputes from the parties before referring them to a Tribunal under Section 10(1).

17. In view of the increasing complexity of modern life and the interdependence of the various sectors of a planned national economy, it is obviously in the interest of the public that labour disputes should be peacefully and quickly settled within the frame-work of the Act rather than by resort to methods of direct action which are only too well calculated to disturb the public peace and order and diminish production in the country, and courts should not be astute to discover formal defects and technical flaws to overthrow such settlements..." 25.

In view of the above-referred judicial pronouncements, it is manifest that the appropriate Government is well within its right to make a reference of dispute after coming to a conclusion that a dispute has

actually arisen or is apprehended and such dispute can be indicated either individually or collectively with reasonable clearness. 26.

In the instant case, a common reference has been made as to "Whether Sh. Mohan Lal and 50 other Newspaper Employees are entitled to wages and other benefits from M/s Jagran Prakashan Limited, 15 Industrial Area, Delhi Road, Hisar, as per the list of claims enclosed? If so, with what details?" It is thus apparent that the Government was seized of the various claims, which were referred for adjudication by a common reference dated 22.10.2018 (Annexure P-11) to the learned Tribunal below. 27.

In my considered view, no fault can be found with the common reference having been made to the learned Tribunal below for adjudication. Still further, as the reference was pertaining to all the employees, accordingly, it cannot be said that the learned Tribunal below has erred in directing its office to assign separate numbers to all the references and to prepare separate files. Once, a common reference has been made in respect of all the employees, there is no error in the order dated 22.09.2019 (Annexure P-21) which is also in consonance with the order dated 19.03.2019 passed by this Court in CWP No.7590 of 2019 (as reproduced here-in-before). Since there is no error in the order dated 22.09.2019 (Annexure P-21), accordingly, there was no occasion for the review of the same by the learned Tribunal below.

28.

In view of the afore-said discussion, I do not find any merit in the writ petition and the same is, accordingly, dismissed. The learned Tribunal below shall proceed with adjudication of the separate

claims pending before it, in accordance with law. 29.

No other point has been urged.

30.

All pending application/s, if any, shall stand closed. November 16, 2023 (HARSH BUNGER) gurpreet JUDGE Whether speaking/reasoned:

Yes/No Whether reportable:

Yes/No