M/S BENNET COLEMAN & CO.LTD. Vs. STATE OF BIHAR & ORS.
Supreme Court of India (Division Bench (DB)- Two Judge)
Appeal (Civil), 269 of 2015, Judgment Date: Feb 10, 2015
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.269 OF 2015
(ARISING OUT OF SLP(CRL.) NO.10134/2010)
M/S BENNET COLEMAN & CO. LTD Appellant(s)
VERSUS
STATE OF BIHAR & ORS. Respondent(s)
WITH
CRIMINAL APPEAL NO.270 OF 2015
(ARISING OUT OF SLP(CRL.) NO.1884/2011)
CRIMINAL APPEAL NO.271/2015
(ARISING OUT OF SLP(CRL) No. 1956/2011),
CRIMINAL APPEAL NO.272/2015
(ARISING OUT OF SLP(CRL) No. 1957/2011,
CONMT.PET.(C) No. 171/2012 In SLP(CRL) No. 1957/2011,
CONMT.PET.(C) No. 172/2012 In SLP(CRL) No. 1884/2011
J U D G M E N T
Kurian Joseph, J.
CRIMINAL APPEAL NO.269 OF 2015
(ARISING OUT OF SLP(CRL.) NO.10134/2010)
1. Leave granted.
2. Whether the appellant is liable to be prosecuted under Section 25U
read with Section 29 and under Serial No.13 of the Fifth Schedule of the
Industrial Disputes Act, 1947 (for short, 'the I.D. Act') is the question
arising for consideration in this case. The allegation is that the
recommendations of the Manisana Wage Board have not been properly
implemented, a section of the journalists have been discriminated in a
hostile manner and thus, there is unfair labour practice.
3. The Deputy Labour Commissioner, Patna preferred a complaint before
the Chief Judicial Magistrate, Patna with the allegations referred to above
seeking prosecution of the appellant under Section 25U read with Section 29
of the I.D. Act.
4. The appellant preferred a petition before the High Court under
Section 482 Cr.P.C., the same was dismissed holding that the complaint was
maintainable and thus, the present appeal.
5. Mr. P.P. Rao, learned senior counsel, submits that the prosecution
under the provisions of I.D. Act is not maintainable as there is no award
or settlement or agreement which has been violated so as to make them
liable for prosecution. The Wage Board under the Working Journalists and
Other Newspaper Employees (Conditions of Service) and Miscellaneous
Provisions Act, 1955 (for short, 'Working Journalists Act'), has only given
their recommendations as per Section 10 and under Section 12, the same have
been notified by the Central Government. In case, the orders notified
under Section 12 are not implemented, the remedy is under Section 17 of the
Working Journalists Act for recovery of money due from the employer. Under
Section 17(2) of the Working Journalists Act, if there is any dispute with
regard to the amount due under the Act, it is for the State Government to
refer the question to the Labour Court of competent jurisdiction
constituted under the provisions of the I.D. Act and it is for that Court
to pass the award. In case such an award is not complied with, then alone
arises a question of prosecution under Section 25U, even if the Industrial
Disputes Act as such is applicable.
6. Learned counsel appearing for the State and the Employees Union
submits that by virtue of Section 3 of the Working Journalists Act, the
provisions of I.D. Act as such have been made applicable, the
recommendations of the Wage Board is an award, the award has not been
implemented in its letter and spirit, a section of the employees has been
discriminated and thus, the prosecution is maintainable.
7. The moot question is as to the jurisdiction of the Court to proceed
under the provisions of the I.D. Act. Section 3 of the Working Journalists
Act reads as follows:-
"3. Act 14 of 1947 to apply to working journalists. - (1) The provisions
of the Industrial Dispute Act, 1947 (14 of 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.
8. Sub-section (2) of Section 3 of the Working Journalists Act provides
for a modification in the application of Section 25F; which is not relevant
in the present case. As per Section 3 of the Working Journalists Act, the
provisions of the I.D. Act have been made applicable to the working
journalists, as if they are workmen under the I.D. Act. Thus, being a
legislation by reference, provisions of I.D. Act are applicable so far as
working journalists are concerned.
9. An award is defined under Section 2(b) of the I.D. Act, which reads
as follows:-
"2 (b) "award" means an interim or a final determination of any industrial
dispute or of any question relating thereto by any Labour Court, Industrial
Tribunal or National Industrial Tribunal and includes an arbitration award
made under Section 10A;"
10. The provision would show that it must be the determination of an
industrial dispute or any question relating thereto by any Labour Court,
Industrial Tribunal or National Industrial Tribunal. It could also be an
arbitration award under Section 10A.
11. Industrial dispute is defined under Section 2(k), which reads as
follows:-
"2(k) "industrial dispute" means any dispute or difference between
employers and employers, or between employers and workmen, or between
workmen and workmen, which is connected with the employment or non-
employment or the terms of employment or with the conditions of labour, of
any person;"
12. Being a dispute on wages, there cannot be any dispute that the issue
under reference is an industrial dispute.
13. The Wage Board, constituted under Section 9 read with Section 13C of
the Working Journalists Act, submitted their recommendation in terms of
Section 10 of the Working Journalists Act. Section 1 of their
recommendation, is titled as Manisana (Wage Board) Award. It is
significant to note that when the Central Government, in terms of Section
12 of the Working Journalists Act, issued the notification on 5.12.2010
(Annexure P1), the recommendations were incorporated under Part Three. To
the extent relevant, we shall extract Part Three, which reads as follows:-
"PART THREE
Chapter 1
Recommendation of the Wage Boards for working journalists and non-
journalist newspaper employees (other than newspaper employees in new
agency)
Section 1
Preliminary
Short title and commencement.- (1) These recommendations may be
called the Manisana (Wage Board) Award.
(2) The Award shall be deemed to have come into force on the
first day of April, 1998 in respect of the newspaper establishments of
Classes III and above and on the first day of June, 1999 in respect of the
newspaper establishments of Classes IV and V and on the first day of April,
2000 in respect of the newspaper establishments of Classes VI to IX."
14. It may be seen that even according to the Wage Board, though it is
titled as Award, they are only recommendations. The same can only be so
under the Working Journalists Act in terms of Section 10 of the Act, which
reads as follows:-
"10. Recommendation by Board.- (1) The Board shall, by notice published in
such manner as it thinks fit, call upon newspaper establishments and
working journalists and other persons interested in the fixation or
revision of rates of wages of working journalists to make such
representations as they may think fit as respects the rates of wages which
may be fixed or revised under this Act in respect of working journalists.
(2) Every such representation shall be in writing and shall be made within
such period as the Board may specify in the notice and shall state the
rates of wages which, in the opinion of the person making the
representation, would be reasonable, having regard to the capacity of the
employer to pay the same or to any other circumstance, whichever may seem
relevant to the person making the representation in relation to his
representation.
(3) The Board shall take into account the representation aforesaid, if any,
and after examining the materials placed before it make such
recommendations as it thinks fit to the Central Government for the
fixation or revision of rates of wages in respect of working journalists;
and any such recommendation may specify, whether prospectively or
retrospectively, the date from which the rates of wages should take
effect.
(4) In making any recommendations to the Central Government, the Board
shall have regard to the cost of living, the prevalent rates of wages for
comparable employment, the circumstances relating to the newspaper industry
in different regions of the country and to any other circumstances which to
the Board may seem relevant.
Explanation. - For the removal of doubts, it is hereby declared that
nothing in this sub-section shall prevent the Board from making
recommendations for fixation or revision of rates of wages on all India
basis."
15. Thus, in legal parlance, the Wage Board recommendations made under
Section 10 of the Working Journalists Act is not an award under Section
2(b) of the I.D. Act. Once the recommendations under Section 10 are
received, it is for the Central Government to issue appropriate orders so
as to enforce the same in terms of Section 12 of the Working Journalists
Act, which reads as follows:-
"12. Powers of Central Government to enforce recommendations of the Wage
Board.- (1) As soon as may be, after the receipt of the recommendations of
the Board, the Central Government shall make an order in terms of the
recommendations or subject to such modifications, if any, as it thinks
fit, being modifications which, in the opinion of the Central Government,
do not effect important alterations in the character of the
recommendations.
(2) Notwithstanding anything contained in sub-section (1), the Central
Government may, if it thinks fit, -
(a) Make such modifications in the recommendations, not being
modifications of the nature referred to in sub-section (1), as it thinks
fit: Provided that before making any such modifications, the Central
Government shall cause notice to be given to all persons likely to be
affected thereby in such manner as may be prescribed, and shall take into
account any representations which they may make in this behalf in writing ;
or
(b) refer the recommendations or any part thereof to the Board
in which case, the Central Government shall consider its further
recommendations and make an order either in terms of the recommendations or
with such modifications of the nature referred to in sub-section (1) as it
thinks fit.
(3) Every order made by the Central Government under this
section shall be published in the official Gazette together with the
recommendations of the Board relating to the order and the order shall
come into operation on the date of publication or on such date, whether
prospectively or retrospectively, as may be specified in the order."
16. If the said order is not complied with, the employees may take
recourse to Section 17 of the Working Journalists Act, which reads as
follows:-
"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 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)"
17. There is also a provision for penalty under Section 18 of the Working
Journalists Act, which reads as follows:-
18. Penalty.- (1) If any employer contravenes any of the provisions of this
Act or any rule or order made thereunder, he shall be punishable with fine
which may extend to two hundred rupees.
(1A) Whoever, having been convicted of any offence under this Act, is again
convicted of an offence involving the contravention of the same provision,
shall be punishable with fine which may extend to five hundred rupees.
(1B) Where an offence has been committed by a company, every person who, at
the time the offence was committed, was in charge of, and was responsible
to, the company for the conduct of the business of the company, as well as
the company, shall be deemed to be guilty of the offence and shall be
liable to be proceeded against and punished accordingly:
Provided that nothing contained in this sub-section shall
render any such person liable to any punishment provided in this section if
he proves that the offence was committed without his knowledge or that he
exercised all due diligence to prevent the commission of such offence.
(1C) Notwithstanding anything contained in sub-section (1B), where an
offence under this section has been committed by a company and it is proved
that the offence has been committed with the consent or connivance of, or
that the commission of the offence is attributable to, any gross negligence
on the part of any director, manager, secretary or other officer of the
company, such director, manager, secretary or other officer shall also be
deemed to be guilty of such offence and shall be liable to be proceeded
against and punished accordingly.
(1D) For the purposes of this section. -
(a) "company" means any body corporate and includes a firm or other
association of individuals; and
(b) "director" in relation to a firm means a partner in the firm.
(2) No court inferior to that of a Presidency Magistrate or a Magistrate of
the first class shall try any offence punishable under this section.
(3) No court shall take cognizance of an offence under this section, unless
the complaint thereof is made within six months of the date on which the
offence is alleged to have been committed."
18. Having regard to the scheme of the Working Journalists Act and having
regard to the provisions of the I.D. Act, as incorporated by Section 3 of
the Working Journalists Act, prosecution for unfair labour practice is
maintainable only under Section 25U. Section 25U provides for penalty for
committing unfair labour practice and Section 29 provides for penalty for
breach of settlement or award. Section 2(ra) of the I.D. Act defines
unfair labour practice. Settlement is defined under Section 2(p) to be a
settlement arrived at in the course of conciliation proceedings and
includes a written agreement between the employer and the workmen otherwise
than in the course of conciliation proceedings. The recommendations of
the Wage Board is thus neither an award nor a settlement in terms of the
provisions under the I.D. Act. It is not passed by the Labour Court or
Industrial Tribunal or National Industrial Tribunal and it is not an
Arbitration Award in terms of Section 10A of the I.D. Act. It is not a
settlement in terms of Section 2(b) of the I.D. Act. It is not an
agreement between the parties. Its enforceability, being a recommendation,
depends on the order passed by the Central Government. The Central
Government has passed that order by issuing Annexure P1 notification. If
the same is not complied with, as we have already referred to above, the
remedies lie under Section 17 for recovery or under Section 18 for penalty
and not under the provisions of the I.D. Act.
19. During the course of hearing, we are informed that the Employees'
Union have already taken recourse to the remedy under Section 17(2) of the
Working Journalists Act with regard to the amounts due in terms of the
notification issued by the Central Government under Section 12 and the same
is pending before the Labour Court, Patna (Case Reference No.7/2013). If
the Labour Court passes an appropriate award and in case the same is not
implemented then alone there arises a question of prosecution under Section
25U read with Serial No.13 of the Fifth Schedule of the I.D. Act "Failure
to implement award, settlement or agreement".
20. Learned counsel for the respondents has also made a submission that
in terms of Section 11 of the Working Journalists Act, the Wage Board may
exercise all powers of the Industrial Tribunal under I.D. Act to the extent
relevant. Section 11(1) reads as follows:-
"11. Powers and procedure of the Board.-(1) Subject to the provisions
contained in sub-section (2), the Board may exercise all or any of the
powers which an Industrial Tribunal constituted under the Industrial
Disputes Act, 1947 (14 of 1947), exercises for the adjudication of an
industrial dispute referred to it and shall, subject to the provisions
contained in this Act, and the rules, if any, made thereunder have power to
regulate its own procedure. "
21. A bare reading of the provision would show that the same provides for
exercise of the powers of the Tribunal by the Wage Board in the process of
making its recommendations in regulating its procedure. The provision does
not make Wage Board a Tribunal. The Tribunal under the I.D. Act does not
make recommendations, it passes award; whereas the Wage Board under the
Working Journalists Act is competent only to make a recommendation in terms
of Section 10 and after the notification of the recommendations by the
Central Government if there is any dispute regarding any amount due under
the notification, a dispute is raised under Section 17(2) of the Working
Journalists Act and thereafter an award is passed by the Labour Court.
22. The appeal is hence allowed, the impugned order is set aside and the
complaint and order passed by the Magistrate taking cognizance are quashed.
23. There will also be a direction to the Labour Court, Patna to dispose
of the Case Reference No.7/2013, pending before it, expeditiously.
24. We make it clear that this order shall not stand in the way of the
Employees Union taking recourse to other remedies, if any, available to
them under other provisions of the Working Journalists Act or the I.D. Act.
CRIMINAL APPEAL NO.270 OF 2015
(ARISING OUT OF SLP(CRL.) NO.1884/2011)
CRIMINAL APPEAL NO.271/2015
(ARISING OUT OF SLP(CRL) No. 1956/2011),
CRIMINAL APPEAL NO.272/2015
(ARISING OUT OF SLP(CRL) No. 1957/2011,
25. Leave granted.
26. In view of the judgment dated 10.02.2015 passed in Criminal Appeal
No.269/2015 arising out of SLP (CRL) No.10134/2010, the impugned orders are
set aside and the complaint and order passed by the Magistrate taking
cognizance are quashed and the appeals are allowed.
CONMT.PET.(C) No. 171/2012 In SLP(CRL) No. 1957/2011
CONMT.PET.(C) No. 172/2012 In SLP(CRL) No. 1884/2011
27. In view of the judgment dated 10.02.2015 passed in Criminal Appeal
No.269/2015 arising out of SLP (Crl) No.10134/2010, nothing survives in
these contempt petitions, which are, accordingly, dismissed.
................................J.
[KURIAN JOSEPH]
................................J.
[N.V. RAMANA]
NEW DELHI;
FEBRUARY 10, 2015.