Full Judgment Text
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.
JUDGMENT
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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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.”
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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
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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
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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,
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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.
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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:-
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“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
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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
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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,
JUDGMENT
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.
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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.
JUDGMENT
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