Full Judgment Text
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.11646 OF 2019
Head of Human Resource
Dainik Bhaskar Group, (D. B. Corp Ltd)
Divya Marathi,
Plot No.15295, Motiwala Complex,
Jalna Road, Aurangabad-431001. ..Petitioner
Versus
Shri. Dinesh Devidas Pardeshi
Age 37 years, Occ: Nil,
R/o Home No.972, Murdijapur Colony,
Mhada Colony,
Tq. Dist. Aurangabad-431 001. ..Respondent
WITH
WRIT PETITION NO.4864 OF 2022
1. Managing Director,
Dainik Bhaskar Group, (D. B. Corp Ltd.)
Plot No.280, Sarkhej-Gandhinagar Highway
Near YMCS Club, Ahmedabad,
Gujrat-380051.
2. Head of Human Resource
Dainik Bhaskar Group, (D. B. Corp Ltd)
Divya Marathi,
Plot No.15295, Motiwala Complex,
Jalna Road, Aurangabad-431001. ..Petitioners
Versus
1. State of Maharashtra through
Government Pleader, Bombay High Court
Bench at Aurangabad Through Secretary of
Ministry of Labour and Industries, Mantralaya, Mumbai.
2. Bhaskar S/o Narayan Kodam
Age 41 years, Occ: Service,
R/o House No.330, Huke Lane
Anand Bazar, Ahmednagar ..Respondents
WITH
WRIT PETITION NO.4862 OF 2022
1. Managing Director,
Dainik Bhaskar Group, (D. B. Corp Ltd.)
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Plot No.280, Sarkhej-Gandhinagar Highway
Near YMCS Club, Ahmedabad,
Gujrat-380051.
2. Head of Human Resource
Dainik Bhaskar Group, (D. B. Corp Ltd)
Divya Marathi,
Plot No.15295, Motiwala Complex,
Jalna Road, Aurangabad-431001. ..Petitioners
Versus
1. State of Maharashtra through
Government Pleader, Bombay High Court
Bench at Aurangabad Through Secretary of
Ministry of Labour and Industries, Mantralaya, Mumbai.
2. Vijay S/o Govind Naval,
Age 32 years, Occ: Service,
R/o Plot No.32, Lane No.2,
Ambika Nagar, Mukundwadi, Aurangabad ..Respondents
WITH
WRIT PETITION NO.4869 OF 2022
1. Managing Director,
Dainik Bhaskar Group, (D. B. Corp Ltd.)
Plot No.280, Sarkhej-Gandhinagar Highway
Near YMCS Club, Ahmedabad,
Gujrat-380051.
2. Head of Human Resource
Dainik Bhaskar Group, (D. B. Corp Ltd)
Divya Marathi,
Plot No.15295, Motiwala Complex,
Jalna Road, Aurangabad-431001. ..Petitioners
Versus
1. State of Maharashtra through
Government Pleader, Bombay High Court
Bench at Aurangabad Through Secretary of
Ministry of Labour and Industries, Mantralaya, Mumbai.
2. Santosh S/o Prabhakar Paikrao,
Age 33 years, Occ: Service,
R/o C/o A.L. Pardhe, Plot No.28,
Vishal Nagar, Garkhed Parisar, Aurangabad. ..Respondents
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WITH
WRIT PETITION NO.4870 OF 2022
1. Managing Director,
Dainik Bhaskar Group, (D. B. Corp Ltd.)
Plot No.280, Sarkhej-Gandhinagar Highway
Near YMCS Club, Ahmedabad,
Gujrat-380051.
2. Head of Human Resource
Dainik Bhaskar Group, (D. B. Corp Ltd)
Divya Marathi,
Plot No.15295, Motiwala Complex,
Jalna Road, Aurangabad-431001.
3. Editor,
Daily Divay Marathi
Shyam Talkies Complex
Near Shivaji Maharaj Putla, Nanded
Tq. & Dist. Nanded. ..Petitioners
Versus
1. State of Maharashtra through
Government Pleader, Bombay High Court
Bench at Aurangabad.
2. Vilas Santaram Ingle,
Age 50 years, Occ: Service,
R/o Acharya Kalguni Housing Society,
Pratap Nagar, Shanoorwadi, Aurangabad. ..Respondents
WITH
WRIT PETITION NO.4858 OF 2022
1. Managing Director,
Dainik Bhaskar Group, (D. B. Corp Ltd.)
Plot No.280, Sarkhej-Gandhinagar Highway
Near YMCS Club, Ahmedabad,
Gujrat-380051.
2. Head of Human Resource
Dainik Bhaskar Group, (D. B. Corp Ltd)
Divya Marathi,
Plot No.15295, Motiwala Complex,
Jalna Road, Aurangabad-431001. ..Petitioners
Versus
1. State of Maharashtra through
Government Pleader, Bombay High Court
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Bench at Aurangabad Through Secretary of
Ministry of Labour and Industries, Mantralaya, Mumbai.
2. Vijay S/o Bhimrao Wankhede,
Age 32 years, Occ: Service,
R/o C/o House No.1-2-5-20,
Ambedkar Chowk, Bhimnagar,
Bhavsingpura, Aurangabad. ..Respondents
WITH
WRIT PETITION NO.4860 OF 2022
1. Managing Director,
Dainik Bhaskar Group, (D. B. Corp Ltd.)
Plot No.280, Sarkhej-Gandhinagar Highway
Near YMCS Club, Ahmedabad,
Gujrat-380051.
2. Head of Human Resource
Dainik Bhaskar Group, (D. B. Corp Ltd)
Divya Marathi,
Plot No.15295, Motiwala Complex,
Jalna Road, Aurangabad-431001. ..Petitioners
Versus
1. State of Maharashtra through
Government Pleader, Bombay High Court
Bench at Aurangabad Through Secretary of
Ministry of Labour and Industries, Mantralaya, Mumbai.
2. Arun S/o Devorao Talekar,
Age 41 years, Occ: Service,
R/o Plot No.77, Gali No.5,
Near Hanuman Nagar,
Nar Sudhakarao Naik School,
Garkheda Parisar, Aurangabad ..Respondents
WITH
WRIT PETITION NO.4859 OF 2022
1. Managing Director,
Dainik Bhaskar Group, (D. B. Corp Ltd.)
Plot No.280, Sarkhej-Gandhinagar Highway
Near YMCS Club, Ahmedabad,
Gujrat-380051.
2. Head of Human Resource
Dainik Bhaskar Group, (D. B. Corp Ltd)
Divya Marathi,
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Plot No.15295, Motiwala Complex,
Jalna Road, Aurangabad-431001. ..Petitioners
Versus
1. State of Maharashtra through
Government Pleader, Bombay High Court
Bench at Aurangabad Through Secretary of
Ministry of Labour and Industries, Mantralaya, Mumbai.
2. Suraj S/o Apparao Joshi,
Age 37 years, Occ: Service,
R/o Plot No.54, Meeranagar,
Padegaon, Tq. Dist. Aurangabad-431 001. ..Respondents
WITH
WRIT PETITION NO.11665 OF 2019
Head of Human Resource
Dainik Bhaskar Group, (D. B. Corp Ltd)
Divya Marathi,
Plot No.15295, Motiwala Complex,
Jalna Road, Aurangabad-431001. ..Petitioner
Versus
Sudhir S/o Bhaskarao Jagadale
Age 38 years, Occ: Nil,
R/o House No.343, Ajintha Road,
Near Bus Stand, Sawangi (Harsool),
Tq. Dist. Aurangabad-431 008. ..Respondent
WITH
WRIT PETITION NO.4861 OF 2022
1. Managing Director,
Dainik Bhaskar Group, (D. B. Corp Ltd.)
Plot No.280, Sarkhej-Gandhinagar Highway
Near YMCS Club, Ahmedabad,
Gujrat-380051.
2. Head of Human Resource
Dainik Bhaskar Group, (D. B. Corp Ltd)
Divya Marathi,
Plot No.15295, Motiwala Complex,
Jalna Road, Aurangabad-431001. ..Petitioners
Versus
1. State of Maharashtra through
Government Pleader, Bombay High Court
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Bench at Aurangabad Through Secretary of
Ministry of Labour and Industries, Mantralaya, Mumbai.
2. Namdeo S/o Goroba Gaikwad,
Age 50 years, Occ: Service,
R/o C/o Adv. Gunwant Daware,
Daware Building, Abhay Book Centre,
Aurangabad Road, Naralibagh, Aurangabad ..Respondents
WITH
WRIT PETITION NO.4865 OF 2022
1. Managing Director,
Dainik Bhaskar Group, (D. B. Corp Ltd.)
Plot No.280, Sarkhej-Gandhinagar Highway
Near YMCS Club, Ahmedabad,
Gujrat-380051.
2. Head of Human Resource
Dainik Bhaskar Group, (D. B. Corp Ltd)
Divya Marathi,
Plot No.15295, Motiwala Complex,
Jalna Road, Aurangabad-431001. ..Petitioners
Versus
1. State of Maharashtra through
Government Pleader, Bombay High Court
Bench at Aurangabad Through Secretary of
Ministry of Labour and Industries, Mantralaya, Mumbai.
2. Dhananjay Sadashivrao Bramhapurkar,
Age 37 years, Occ: Service,
R/o C/o A. S. Shashtri, Flat No.6,
Redey Apartment in from of Manik Hospital,
Ashok Nagar, Garkheda Parisar Aurangabad. ..Respondents
WITH
WRIT PETITION NO.4868 OF 2022
1. Managing Director,
Dainik Bhaskar Group, (D. B. Corp Ltd.)
Plot No.280, Sarkhej-Gandhinagar Highway
Near YMCS Club, Ahmedabad,
Gujrat-380051.
2. Head of Human Resource
Dainik Bhaskar Group, (D. B. Corp Ltd)
Divya Marathi,
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Plot No.15295, Motiwala Complex,
Jalna Road, Aurangabad-431001. ..Petitioners
Versus
1. State of Maharashtra through
Government Pleader, Bombay High Court
Bench at Aurangabad Through Secretary of
Ministry of Labour and Industries, Mantralaya, Mumbai.
2. Suresh S/o Sandu Borde,
Age 50 years, Occ: Service,
R/o C/o Pravin Jagtap, H-43,
Shiv Shankar Colony, Behind Tanaji Putla,
Tq. Dist. Aurangabad-431 008. ..Respondents
WITH
WRIT PETITION NO.4866 OF 2022
1. Managing Director,
Dainik Bhaskar Group, (D. B. Corp Ltd.)
Plot No.280, Sarkhej-Gandhinagar Highway
Near YMCS Club, Ahmedabad,
Gujrat-380051.
2. Head of Human Resource
Dainik Bhaskar Group, (D. B. Corp Ltd)
Divya Marathi,
Plot No.15295, Motiwala Complex,
Jalna Road, Aurangabad-431001. ..Petitioners
Versus
1. State of Maharashtra through
Government Pleader, Bombay High Court
Bench at Aurangabad Through Secretary of
Ministry of Labour and Industries, Mantralaya, Mumbai.
2. Bharat S/o Pandurang Deogaonkar,
Age 46 years, Occ: Service,
R/o Bhaskar Vasti Yesgaon,
Tq. Kopargaon Dist. Nagar,
C/o Sudam Jadhav Galli No.17,
Sanjay Nagar, Mukundwadi,
Tq. Dist. Aurangabad-431 008. ..Respondents
WITH
WRIT PETITION NO.4867 OF 2022
1. Managing Director,
Dainik Bhaskar Group, (D. B. Corp Ltd.)
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Plot No.280, Sarkhej-Gandhinagar Highway
Near YMCS Club, Ahmedabad,
Gujrat-380051.
2. Head of Human Resource
Dainik Bhaskar Group, (D. B. Corp Ltd)
Divya Marathi,
Plot No.15295, Motiwala Complex,
Jalna Road, Aurangabad-431001. ..Petitioners
Versus
1. State of Maharashtra through
Government Pleader, Bombay High Court
Bench at Aurangabad Through Secretary of
Ministry of Labour and Industries, Mantralaya, Mumbai.
2. Prakash S/o Sambhaji Khandelote,
Age 48 years, Occ: Nill,
R/o C/o Gautam Jadhav
Plot No.18-A, Laghu Wetan Colony, Mukundwadi,
Tq. Dist. Aurangabad-431 008. ..Respondents
WITH
WRIT PETITION NO.4863 OF 2022
1. Managing Director,
Dainik Bhaskar Group, (D. B. Corp Ltd.)
Plot No.280, Sarkhej-Gandhinagar Highway
Near YMCS Club, Ahmedabad,
Gujrat-380051.
2. Head of Human Resource
Dainik Bhaskar Group, (D. B. Corp Ltd)
Divya Marathi,
Plot No.15295, Motiwala Complex,
Jalna Road, Aurangabad-431001. ..Petitioners
Versus
1. State of Maharashtra through
Government Pleader, Bombay High Court
Bench at Aurangabad Through Secretary of
Ministry of Labour and Industries, Mantralaya, Mumbai.
2. Devidas S/o Vasant Lanjewar,
Age 46 years, Occ: Service,
R/o Row House No.41, Emrald City
Garkheda Parisar, Aurangabad ..Respondents
…
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Mr. V. D. Sapkal, Senior Advocate a/w Mr. Ashok Patil, Mr.
Pankaj Sutar, Mr. Vishwabbushan Kamble and Mr. Nikhil S. Jaju,
Advocate for the Petitioners.
Mr. Rahul D. Khadap, Advocate for Respondent No.2 in WP/
11646/2019, WP/4864/2022, WP/4862/2022, WP/4869/2022.
Mr. Yatin I. Thole, Advocate for Respondent No.2 in WP/
4870/2022, WP/4858/2022, WP/4860/2022, WP/4859/2022, WP/
11665/2019.
Mr. Shrimant R. Kedar, Advocate for Respondent No.2 in WP/
4861/2022, WP/4865/2022, WP/4868/2022.
Mr. P. M. Shinde h/f Mr. Prashant B. Jadhav, Advocate for Re-
spondent No.2 in WP/4866/2022 and WP/4867/2022.
Mr. Vijay B. Garud, Advocate for Respondent No.2 in WP/
4863/2022.
Petitioner Nos.1 and 2 and Respondent No.1 is deleted in WP/
11646/2019 and WP/1665/2019 by order dated 23.09.2019.
…
WITH
WRIT PETITION NO.10774 OF 2022
Sudhir S/o. Bhaskarao Jagadale,
Age 43 years, Occu. Nil,
R/o. House No.343, Ajintha Road,
Near Bus Stand, Sawangi (Harsool),
Tq. & Dist. Aurangabad. ..Petitioner
Versus
M/s. D. B. Corp Limited,
Second Floor, Motiwala Complex,
Jalna Road, Aurangabad.
Through its
Head of Human Resources. ..Respondent
…
Mr. P. M. Shinde h/f Mr. Prashant B. Jadhav, Advocate for the Pe-
titioner.
Mr. V. D. Sapkal, Senior Advocate i/by Mr. N. S. Jaju, Advocate for
Respondent.
…
CORAM : SANDEEP V. MARNE, J.
RESERVED ON : 19.12.2022.
PRONOUNCED ON : 22.12.2022.
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JUDGMENT:-
1. Rule. Rule made returnable forthwith. With the con-
sent of the parties, matters are taken up for final hearing at the
admission stage.
2. In these group of petitions petitioners challenge the
award dated 04.01.2019 passed by the Member, Labour Court,
Aurangabad in Reference IDA No.20/2017 as well as order dated
10.06.2019 rejecting Review Petition No.09/2019. By amending
petitions, the order dated 14.09.2022 passed by the Additional
Tahsildar, Aurangabad seeking enforcement of the awards has
also been challenged.
3. Petitioner is a private limited company engaged in
multi-ferrous business activities in the areas of Radio, Media
(print and electronics), Textile, Real Estate etc. Petitioner claims
to be one of the largest print media groups in the country with 65
newspaper editions published in 4 languages having readership of
4.4 crores across 13 States. Its annual revenues have been
described in one of the litigations as more than Rs.1000/- crores.
4. Respondents in these petitions have been appointed by
petitioners on various posts. For the purpose of illustration, the
details of appointment of respondent no.2 in Writ Petition
No.4859/2022 are discussed. Respondent no.2 was offered an
appointment by petitioners on the post of Telephone Operator on
10.06.2011. Upon acceptance of an offer, appointment order came
to be issued in favour of respondent no.2 on 12.06.2011 appointing
him as Telephone Operator with effect from 13.06.2011. The salary
package offered to respondent no.2 was in the form of Cost to
Company (CTC) package of Rs.1,08,000/- per annum.
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5. The Working Journalists and Other Newspapers
Employees (Conditions of Service) and Miscellaneous Provisions
Act, 1955 (for short ‘the Act of 1955’) has been enacted to regulate
the conditions of employment of working journalists and other
newspaper employees in pursuance of recommendations of Press
Commission. Section 9 of the Act of 1955 provides for fixation of
wages and revision thereof in respect of working journalists by the
Central Government. Section 13-C of the Act of 1955 provides for
fixation and revision of wages in respect of non-journalist
newspaper employees. The Government of India constituted two
Wage Boards under the provisions of Sections 9 and 13-C of the
Act of 1955 by Notification dated 24.05.2007. The Wage Boards
submitted their recommendations to the Central Government on
31.05.2010. In exercise of powers conferred by Section 12 of the
Act of 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’.
6. Clause 20(j) of the Notification dated 11.11.2011
provides for exercise of option by an employee to retain existing
emoluments within three weeks of publication of the Notification
dated 11.11.2011. It is the case of petitioners that the respective
employees in the present petitions executed such options in the
form of declarations under Clause 20(j) of the Notification and
thereby opted for retention of existing emoluments.
7. Applications were filed on 18.01.2017 by employees in
the present petitions before the Assistant Labour Commissioner,
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Aurangabad under Section 17(1) of the Act of 1955 claiming
benefits under the Majithia Wage Board recommendations. The
Assistant Labour Commissioner took cognizance of the application
dated 18.01.2017 and made References to the Labour Court,
Aurangabad for adjudication under the provisions of Section 17(2)
of the Act of 1955.
8. Upon Reference being made to the Labour Court, the
employees filed their statements of claim claiming differences of
arrears of salary as per Notification dated 11.11.2011. The claims
are resisted by petitioners by filing written statement raising
various defences. The Labour Court made award dated 04.01.2019
partially answering the Reference in affirmative and declaring
that all employees are entitled for difference of arrears of salary as
per the Majithia Wage Boards recommendations published vide
Notification dated 11.11.2011 without any interest. Petitioners are
directed to pay difference of such arrears of salary within three
months.
9. Petitioners sought review of the award dated
04.01.2019. However, by order dated 10.06.2019 the Labour Court
was pleased to reject the Review Petitions. The present petitions
are filed challenging the awards dated 04.01.2019 as well as orders
passed in Review on 10.06.2019.
10. When some of the present petitions came up before
this Court on 23.09.2019, this Court refused to stay the impugned
award on account of inability expressed by petitioners to deposit
50% of the awarded amount. Despite rejection of the interim stay,
the impugned awards were not implemented and therefore,
applications were filed before the Assistant Labour Commissioner,
Aurangabad for enforcing the awards, who directed the employees
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to approach the Labour Court again holding that the exact figure
of the amount was not quantified. Aggrieved by the communication
of the Assistant Labour Commissioner, Aurangabad dated
30.06.2020 some of the employees filed Writ Petition
Nos.5606/2021, 5607/2021, 5650/2021 and 5605/2021 in this Court.
The petitions were disposed of by this Court by its order dated
23.03.2022 directing Assistant Labour Commissioner to collect the
details regarding exact salaries paid to them and the salaries
recommended by Majithia Wage Board and accordingly calculate
the amounts and issue recovery certificates. Consequent to the
order passed by this Court, the Assistant Labour Commissioner
issued recovery certificates dated 09.05.2022 in favour of
employees. The Collector sought to direct Additional Tahsildar,
Aurangabad to enforce the recovery certificates by letter dated
13.06.2022. The Additional Tahsildar, Aurangabad accordingly
started recovery proceedings against petitioners and an
attachment order was issued on 14.09.2022. This Court by order
dated 15.09.2022 stayed the attachment order dated 14.09.2022
subject to petitioners depositing 50% of the awarded amount.
Accordingly, petitioners have deposited 50% amount of the
recovery certificates on 27.09.2022/03.10.2022.
11. Appearing for petitioners Mr. Sapkal the learned
Senior Advocate would rely upon the provisions of sub-Section 2 of
Section 17 of the Act of 1955 and contend that the Reference can
be made only by the State Government and powers to make
Reference under the provisions of Section 17(2) cannot be
delegated to any authority by the State Government. He would
contend that by Notification dated 11.05.2016 the powers to make
Reference under sub-Section 2 of Section 17 of the Act of 1955 have
been delegated to the Deputy/Additional Commissioner of Labour
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which is ab initio void . He would rely upon the judgment of this
Court in All India Reporter Private Limited Vs. The State of
Maharashtra and Others, Writ Petition No.6402/2019 decided
on 17.11.2022 in which this Court has struck down the Notification
dated 11.05.2016 and has held that the Reference in that case
made by the Additional Commissioner of Labour was not
maintainable. Mr. Sapkal would submit that in the present case,
the Reference has been made by the Assistant Labour
Commissioner in exercise of delegated powers and since there is no
provisions for delegation of powers under Section 17(2) of the Act
of 1955, the Reference made by the Assistant Commissioner
Labour was clearly not maintainable.
12. So far as the merits of the petitions are concerned, Mr.
Sapkal would submit that the present cases are clearly covered by
Clause 20(j) of the Notification dated 11.11.2011 under which the
employees have executed declarations obtained for existing
emoluments within the window period of three months provided in
Clause 20(j). Having given up their rights to claim salaries on the
basis of Majithia Wage Board by executing declarations under
Clause 20(j), the employees are now estopped from taking a volte
face and demand such wages. He would further submit that
though appointed in the year 2011 and peacefully drawing salary
as per the existing emoluments, the employees raised belated
claims before the Assistant Commissioner of Labour in the year
2017 which were not maintainable. Mr. Sapkal would, therefore,
submit that even on merits, the claims of employees were not
grantable.
13. Per contra Mr. Yatin Thole, learned counsel appearing
for respondent no.2 in Writ Petition Nos.4870/2022, 4858/2022,
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4860/2022, 4859/2022 and 11665/2019 would oppose the petitions
and support the award passed by the Labour Court. He would
submit that the awards of the Labour Court have been made on
04.01.2019 and Review Petition dismissed on 10.06.2019 whereas
most of petitions have filed after inordinate delay of more than
three years in January 2022. He would further submit that the
issue of legality of the Notification dated 11.05.2016 or the issue of
validity of delegation of powers to Assistant Labour Commissioner
to make Reference under Section 17(2) of the Act of 1055 are not
raised either in the present petitions or before the Labour Court.
He would, therefore, urge that petitioners are estopped from
raising these issues directly at this stage of argument. He would
submit that if petitioners had any objection about making of
Reference by Assistant Labour Commissioner under Section 17(2)
of the Act of 1955, it ought to have raised that objection before the
Assistant Labour Commissioner. He would submit that after the
Reference is answered in favour of the employees, petitioners
cannot be permitted to raise such a technical issue directly before
this Court that too at the stage of final argument.
14. Mr. Thole would further submit that Section 17 of the
Act of 1955 constitutes a ‘single scheme’ to enable the employees to
claim benefits of recommendations of Wage Boards. Inviting my
attention to the provisions of Section 17, Rule 36 and Form ‘C’ to
the Rules Mr. Thole would contend that the employees had rightly
made the application in the format provided in Form ‘C’ and
therefore, the objection to the delegation of powers is not
maintainable. He would further submit that petitioners took
chance by seeking review of the award and in review as well
objection to the delegation of powers for making References under
Section 17(2) of the Act of 1955 was not raised. Inviting my
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attention to the orders passed by the Apex Court dated 13.10.2017
and 28.01.2019 in the case of Avishek Raja & Ors. Vs. Sanjay
Gupta & Ors.; M.A. No.171/2019 in Writ Petition No.246/2011
Mr. Thole would contend that the scheme of the Act is such that
Supreme Court expected that the Reference to be decided within
six months. He would submit that as against the time limit fixed
by the Supreme Court of six months, in the present case the
employees are made to run from pillar to post for last more than
five years on account of non-cooperative attitude of petitioners.
15. Inviting my attention to declaration dated 15.11.2011
made by respondent no.2 in Writ Petition No.4859/2022 Mr. Thole
would contend that the same was involuntary in nature. He would
submit that respondent no.2 (Suraj Joshi) was appointed on
13.06.2011 and executed a declaration within four months in a
proforma admitting to terms such as provision of promotional
avenues, economic sustainability etc. He would submit that within
four months from the appointment and without getting any
promotion, the employee would not have made such an
declaration. He would, therefore, submit that the declarations
were forcefully obtained from the employees. Referring to CTC
package of Rs.1,08,000/- offered to him, Mr. Thole would contend
that the same amounted to the gross salary of Rs.9000/- per month
and take home salary of Rs.7000/- per month. Referring to the
Explanation to Clause 20(j) of the Notification Dated 11.11.2011
Mr. Thole would contend that term ‘existing emoluments’ includes
various heads such as basic pay, variable dearness allowance etc.,
whereas what is offered to employees under CTC package does not
include such heads and therefore, cannot construed to mean as
‘existing emoluments’ within the meaning of Clause 20(j).
Referring to the provisions of Section 13 of the Act of 1955, Mr.
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Thole would contend that the provision mandates payment of
wages ‘at rates not less than those specified in the order’. In
support of his contention Mr. Thole has relied upon following
judgments:
1. Business Bhaskar Newspaper Vs. Government of NCT
of Delhi & Ors.; Writ Petition (C) No.8550/2018 decided
on 27.01.2022.
2. Shri. Samarjit Ghosh Vs. M/s. Bennett Coleman and
Co. and Another, AIR 1987 SCC 1869.
3. Pradhan Prabandhak/Unit Head M/s. Amar Ujala Vs.
State of U.P. and 3 others; Writ Petition (C)
No.11856/2018 decided on 31.05.2018.
4. All India Reporter Karamchari Sangh & Ors. Vs. All
India Reporter Limited and Ors. decided on 02.05.1988.
5. D. B. Corp. Ltd. Vs. State of Maharashtra & Ors. ; Writ
Petition No.1821/2018 with other connected writ petitions,
decided on 09.08.2018.
6. Managing Director, Dainik Bhaskar Group, (D. B.
Corp. Ltd.) & Ors. Vs. The State of Maharashtra & Anr.;
Writ Petition No.11646/2019 with other connected writ
petition, decided on 23.09.2019.
7. Suraj Apparao Joshi Vs. The Deputy Labour
Commissioner, Aurangabad and Ors.; Writ Petition
No.5606/2021 with other connected writ petitions, decided on
23.03.2022.
8. D. B. Corp Ltd. Vs. D. P. Agrawal Publications Pvt. Ltd.
& Others; CS (Comm) No.1320/2016, decided on 20.02.2019.
16. Mr. Kedar, learned counsel appearing for respondent
employee in Writ Petition No.4861/2021 would invite my attention
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to the recovery certificate issued therein in support of his
contention that there is a huge difference of about Rs.13,000/- in
monthly salary that is being paid to the employees and the one
payable as per Majithia Wage Boards recommendations. He would
therefore submit that, by no stretch of imagination, can be
contended that the existing emoluments are more favorable to the
employees than the one payable as per the Majithia Wage Board
recommendations.
17. Mr. Shinde, learned counsel appearing for
respondents-employees in Writ Petition No.4866/2022 and
4867/2022 would adopt the submissions of Mr. Thole and would
further submit that the implementation of recommendations of
Majithia Wage Board is not discretionary for petitioners and that
the same is compulsory. He would rely upon the Order of the Apex
Court in Shobha Ram Vs. Ramesh Chandra Agarwal , passed
on 19-06-2017 in various Contempt Petitions relating to non-
implementation of Majitia Wage Board Recommendations, in
support of his contention that Section 16 of the Act of 1955 leaves
option to the employees to accept only benefits which are more
favorable to them than the one notified under Section 12 of the Act
of 1955. Since the wages offered by petitioners are not more
favorable than the one notified, the notified wages as per Majithia
Wage Board would alone be payable.
18. Mr. Khadap, learned counsel appearing for
respondents-employee in Writ Petition Nos.11646/2019, 4864/2022,
4862/2022 and 4869/2022 would adopt the submissions of Mr.
Thole.
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19. In rejoinder Mr. Sapkal would contend that the issue
of jurisdiction goes to the root of the matter and that therefore,
even if the same is not expressly raised, this Court is otherwise
bound by the decision in All India Reporter Private Limited
(supra). In support of his contention that an order passed in
absence of jurisdiction is a nullity, Mr. Sapkal would rely upon the
judgment of the Apex Court in Sarup Singh and Another Vs.
Union of India and Another, (2011) 11 SCC 198. Mr. Sapkal
would alternatively submit that the jurisdiction of the Labour
Court was otherwise challenged in the written statement filed by
petitioners.
20. Rival contentions of the parties now fall for my
consideration.
21. Since the issue involved is about interpretation of
provisions of Section 17 of the Act of 1955, it would be necessary to
reproduce the said provision as under:
“ 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 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
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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).
22. Thus Section 17 of the Act of 1955 provides for a
complete scheme for recovery of money due from the employer. In
case there is no dispute about money payable, the State
Government or the authority specified by it can straightaway issue
a recovery certificate and the Collector can proceed to recover
amount as arrears of land revenue. If there is a dispute about the
amount payable, the State Government is required to make a
Reference to the Labour Court under the provisions of sub-Section
2 of Section 17 of the Act of 1955 and it is the Labour Court which
will decide the dispute and forward its decision to the State
Government under sub-Section 3 of Section 17. Once the State
Government receives the decision of the Labour Court under
Section 17(3), further proceedings of recovery are to be effected
under sub-Section 1 of Section 17. This is the scheme of recovery
provided for under Section 17 of the Act of 1955.
23. Careful reading of provisions of sub-Sections (1) and
(2) of Section 17 of the Act of 1955 would indicate that while sub-
Section (1) uses the words ‘ if the State Government or such
authority, as the State Government may specify in this behalf , ….’,
the words used in sub-Section (2) are ‘ the State Government may ’.
These words ‘ or such authority as the State Government may
specify in this behalf ’ are absent in sub-Section (2) of Section 17 of
the Act of 1955.
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24. This Court has considered and interpreted the
provision of Section 17 of the Act of 1955 in All India Reporter
Private Limited (supra). This Court held in paragraph nos.7 to
11 as under:
“7] A perusal of Section 17(1) of the Act of 1955 indicates that
without prejudice to any other mode of recovery, it would be open
for a newspaper employee to seek recovery of amount due to him
by making an application to the State Government. On the State
Government or such authority that the State Government may
satisfy in this behalf being satisfied that any amount is so due, a
certificate for such amount can be issued to the Collector who
can then proceed to recover that amount in the same manner as
an arrear of land revenue. It is clear from the said
provision that the State Government has been conferred the
power of delegating the task of determining whether any amount
is due as claimed by a newspaper employee. The State
Government can either itself or through such authority as
specified issue a certificate as provided. In contrast, when the
provisions of Section 17(2) of the Act of 1955 are
analyzed, it becomes clear that no such power of delegation has
been conferred on the State Government. Thus, if any question
arises as to the
amount due under the Act of 1955, it is for the State Government
either on its own motion or on upon an application made to it to
refer the question to any Labour Court as permitted. In other
words, the State Government has not been conferred any power
to delegate the task of
referring such question to any Labour Court. There is thus a
clear
distinction contained in the provisions of Sections 17(1) and
17(2) of the Act of 1955 inasmuch as the power of delegation
conferred on the State Government under Section 17(1) is
missing in Section 17(2) of the Act of 1955.
In this regard, the learned Counsel for the petitioner is
justified in relying upon the decision in
M. Chandru (supra) wherein the
Hon’ble Supreme Court has observed in clear terms that
delegation of power is permissible if there exists such provision
in the Principal Act. The
power to delegate being a statutory requirement must find place
in the Principal Act itself. It is thus clear that in the absence of
any such power of delegation being conferred upon the State
Government under Section
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17(2) of the Act of 1955 to refer any question as to whether any
amount is due under the Act of 1955 to a newspaper employee,
such reference has to be made by the State Government itself.
8] The Additional Commissioner of Labour has relied upon the
notification dated 11/5/2016 issued by the Industries, Energy
and Labour Department of the State Government and has
thereafter made the order
of reference. This notification states that the State Government
has been pleased to allocate the work to refer the question to any
Labour Court within the meaning of Section 17(2) of the Act of
1955 to the officers
mentioned in Schedule thereto. We find that in the absence of
any power of delegation being conferred on the State
Government under Section 17(2) of the Act of 1955, the
notification dated 11/5/2016 would not have any force of law.
In the absence of any enabling power to delegate
the task of referring any question to the Labour Court, it would
have to be held that exercise of such power by the officers
mentioned in the
Schedule to the notification dated 11/5/2016 would amount to
usurping the authority conferred only on the State Government.
The notification dated 11/5/2016 therefore does not have any
statutory support of Section 17(2) of the Act of 1955. It is
therefore held that it was not
permissible for the Additional Commissioner of Labour to have
referred the dispute to the Labour Court under Section 17(2) of
the Act of1955. Such reference under Section 17(2) ought to
have been made by the State Government itself. Consequently,
the Labour Court was not
empowered to proceed further with the reference as made.
9] It was also submitted by the learned Counsel for the
petitioner that since the members of the Union sought
determination of their entitlement to higher wages, remedy
under Section 17 of the Act of
1955 was not available. What was required to be resolved was
an
industrial dispute and therefore the members of the Union ought
to have invoke appropriate jurisdiction in that regard. Reliance
was placed on the
decision in Sanjay Shalikram Ingle (supra). However, since it
has been found that the Additional Commissioner of Labour was
not empowered to make the reference under Section 17(2) of the
Act of 1955 to the Labour
Court, it would not be necessary at this stage to consider the said
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aspect of the matter. If a reference is made by the State
Government under Section 17(2) of the Act of 1955, the said
aspect can be considered at that stage.
10] It was urged by the learned Counsel for the Union that the
challenge to the notification dated 11/5/2016 was raised
belatedly since the present Writ Petition was filed on 16/9/2019.
It is found that reference to the said notification has been made
for the first time in the order of reference dated 23/7/2018. After
the Additional Commissioner of Labour made the order of
reference to the Labour Court, the petitioner
raised a preliminary objection to the tenability of the reference
proceedings on 17/1/2019. That objection came to be rejected on
8/8/2019. In these facts therefore it cannot be said that the
challenge to the notification dated 11/5/2016 was belated.
Needless to state that in
addition to a challenge to the said notification, the order of
reference dated 23/7/2018 as well as the order passed by the
learned Judge, 4th
Labour Court, Nagpur below Exh.11 on 8/8/2019 are also
under
challenge in this Writ Petition. We therefore do not find that the
Writ Petition has been filed belatedly for it to be not entertained
on merits.
11] Hence, for the aforesaid reasons, it is held that the
notification dated 11/5/2016 issued by the State Government
delegating its power under Section 17(2) of the Act of 1955 to the
Additional Commissioner of Labour to make a reference to the
Labour Court does
not have any statutory support. There is no power conferred on
the State Government to delegate the power conferred upon it to
refer any dispute to the Labour Court for determining whether
any amount is due to the
members of the Union under the Act of 1955. Consequently, the
notification dated 11/5/2016 is struck down as having been
issued
without there being any power conferred on the State
Government in that regard under Section 17(2) of the Act of
1955. Consequently, the order
dated 8/8/2019 passed below Exh.11 in Reference (IDA) No.
10/2018 is also set aside and it is declared that the said
reference is not maintainable before the Labour Court in view of
the notification dated 11/5/2016
being struck down. The Union is free to agitate its claim in
accordance with law. It is clarified that this Court has not
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examined the claim on
merits and all questions in that regard are kept open.”
25. Thus in All India Reporter Private Limited (supra)
this Court has held that power of delegation is not conferred on the
State Government under sub-Section (2) of Section 17 of the Act of
1955 and that therefore, the Notification dated 11.05.2016
providing for such delegation has no force of law. This Court has
struck down the Notification dated 11.05.2016. Since, it is held
that the State Government cannot delegate the power of making
Reference under sub-Section (2) of Section 17 of the Act of 1955,
this Court has further proceeded to hold that the Reference made
by Additional Commissioner of Labour in that case was not
maintainable.
26. The judgment in All India Reporter Private
Limited (supra) squarely applies to the facts of the present case.
In the present case as well the order of Reference has been made
by the Assistant Commissioner of Labour, Aurangabad. The
power is exercised by the Assistant Commissioner of Labour on the
strength of the Notification dated 11.05.2016, which has been set
aside in All India Reported Private Limited (supra).
Therefore, following that judgment, the References made by the
Assistant Commissioner of Labour before the Labour Court will
have to be held as not maintainable.
27. Faced with the above situation, the learned counsels
appearing for respondent-employees have made strenuous efforts
to distinguish the judgment in All India Reporter Private
Limited (supra). Firstly, reliance is placed on the judgment of the
Apex Court in Shri. Samarjit Ghosh (supra) in which it is held in
paragraph no.6 as under:
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“6. When all the provisions of s. 17 are considered together it is
apparent that they constitute a single scheme. In simple terms
the scheme is this. A newspaper employee, who claims that an
amount due to him has not been paid by his employer, can
apply to the State Government for recovery of the amount. If no
dispute arises as to the amount due the Collector will recover
the amount from the employer and pay it over to the newspaper
employee. If a question arises as to the amount due, it is a
question which arises on the application made by the newspaper
employee, and the applica- tion having been made before the
appropriate State Govern- ment it is that State Government
which will call for an adjudication of the dispute by referring
the question to a Labour Court. When the Labour Court has
decided the ques- tion, it will forward its decision to the State
Government which made the reference, and thereafter the State
Govern- ment will direct that recovery proceedings shall be
taken. In other words the State Government before whom the
applica- tion for recovery is made is the State Government
which will refer the question as to the amount due to a Labour
Court, and the Labour Court upon reaching its decision will
forward the decision to the State Government, which will then
direct recovery of the amount.”
Relying on Samarjit Ghosh (supra), it is contented that the
provisions of Section 17 of the Act of 1955 are held to be
constituting a ‘single scheme’. In that judgment, the Apex Court
has explained the scheme of Section 17 of the Act of 1955 and has
not dealt with the issue as to whether the delegated authority can
make Reference under Section 17(2) of the Act of 1955. In fact the
Apex Court has also used the word ‘State Government’ for making
Reference under Section 17(2) of the Act of 1955. Therefore, the
judgment in Samarjit Ghosh (supra) is of no assistance to
respondent-employees.
28. Reliance is placed on the judgment of the Single Judge
of the Allahabad High Court in M/s. Amar Ujala (supra) in which
the judgment in Shri. Samarjit Ghosh (supra) has been referred
and it is held as under:
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“In the instant case, when the entire section 17 of the Act, 1955
is read as a whole, it cannot be said that the legislature
intentionally omitted the words "such authority, as specified by
the State Government", from sub-section (2) of section 17 of the
Act because by providing the power of delegation in sub-section
(1) of section 17 of the Act, keeping in mind the scheme of the
entire section 17 of the Act, 1955, the State Government was
empowered to delegate its power to deal with applications
contemplated under Section 17 of the Act, 1955. Otherwise also,
the State Government under its general power of delegation by
notification can delegate exercise of its administrative power.
In the instant case, the State Government had empowered the
Deputy Labour Commissioner to dispose of application under
Section 17 of the Act which would include power to refer to the
labour court as it was a step-in-aid for disposal of the
application under sub-section (1) of Section 17 of the Act.
Therefore the specified authority did not lack jurisdiction to
make a reference to the labour court. Accordingly, the reference
order does not suffer from jurisdictional error.”
Thus in M/s. Amar Ujala (supra) a Single Judge of the Allahabad
High Court has held that omission of words ‘such authority, as
specified by the State Government’ in sub-Section (2) of Section 17
of the Act of 1955 is not intentional and that the State
Government is empowered to delegate its powers under Section
17(2) of the Act of 1955. It is further held that the State
Government otherwise has general power of delegation in exercise
of administrative powers.
29. Thus the view taken by a Single Judge of the
Allahabad High Court in Amar Ujala (supra) appears to be
directly contrary to the view taken by this Court in All India
Reporter Private Limited (supra). It also appears that the
decision of the Allahabad High Court in Amar Ujala (supra) was
not brought to the notice of this Court while deciding All India
Reporter Private Limited (supra). However, there are two
reasons why I must fallow the judgment of this Court in All India
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Reporter Private Limited (supra). Firstly, it is judgment of the
Bombay High Court which is binding on me, whereas judgment
rendered by a Single Judge of the Allahabad High Court would
only have persuasive value. Secondly, the judgment of this Court
in All India Reporter Private Limited (supra) is rendered by
the Division Bench, whereas one in Amar Ujala (supra) is of
Single Judge of the Allahabad High Court. Therefore, the
judgment in All India Reporter Private Limited (supra) is
binding on this Court and is required to be followed as a precedent.
30. As observed earlier the present case is fully covered by
the judgment of this Court in All India Reporter Private
Limited (supra), which this Court is bound to follow. Following
the said decision, the References made by the Assistant
Commissioner of Labour, Aurangabad under the provisions of sub-
Section 2 of Section 17 of the Act of 1955 are required to be held as
not maintainable. Consequently, the Awards passed by the
Labour Court are liable to be set aside.
31. True it is that the issue of delegation of powers to make
reference under Section 17(2) of the Act of 1955 was not raised
before the Labour Court by the Petitioners nor has been raised in
the present petition. However it is a pure question of law and goes
to the root of the matter. Therefore notwithstanding absence of
pleadings, the same can always be considered and decided by this
court. The Apex Court, in its recent judgment in Saurav Jain &
Anr Vs. A. B. P. Design & Ors, 2021 SCC Online 552 has dealt
with the issue of permissibility of raising issues of law directly in
appeals and has held as under:
34. With regard to new grounds being raised before this Court in
a special leave petition under Article 136, we note that under
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Order 21 Rule 3(c) of the Supreme Court Rules 2013, SLPs are
to be confined to the pleadings before the court whose order is
challenged. However, with the leave of the Court, additional
grounds can be urged at the time of the hearing.
35. This Court in Bharat Kala Bhandar (P) Ltd. v. Municipal
Committee 14 dealt with a civil appeal where a contention had
not been raised in the suit or in the grounds of appeal before the
High Court, and was advanced before this Court for the first
time. Although the Court noted that the scope of the appeal
cannot be broadened at the instance of the parties, if a plea
raises a question of considerable importance, it can be
entertained by this Court. In a similar vein, this Court
in Vasant Kumar Radhakisan Vora v. Board of Trustees of the
Port of Bombay 15 , noted that pure questions of law which go to
the root of the jurisdiction in a case can be raised for the first
time in an appeal under Article 136 of the Constitution.
36. In Chandrika Misir v. Bhaiya Lal16, this Court was hearing
a special leave petition concerning the possession of parties over
the suit property which was the subject of the U.P. Zamindari
Abolition and Land Reforms Act (Act 1 of 1951). While
adjudicating on whether the suit was barred by limitation,
Justice DG Palekar, speaking for a two Judge bench, observed
that the civil court did not have jurisdiction to entertain the suit
at all. Although the plea of bar on jurisdiction had not been
raised in the courts below, the Court held that:
“6. It is from this order that the present appeal has been
filed by special leave. It is to be noticed that the suit had been
filed in a civil court for possession and the Limitation Act
will be the Act which will govern such a suit. It is not the case
that U.P. Act 1 of 1951 authorises the filing of the suit in a
civil court and prescribes a period of limitation for granting
the relief of possession superseding the one prescribed by the
Limitation Act. It was, therefore, perfectly arguable that if
the suit is one properly entertainable by the civil court the
period of limitation must be governed by the provisions of the
Limitation Act and no other. In that case there would have
been no alternative but to pass a decree for possession in
favour of the plaintiffs. But the unfortunate part of the whole
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case is that the civil court had no jurisdiction at all to
entertain the suit. It is true that such a contention with
regard to the jurisdiction had not been raised by the
defendant in the trial court but where the court is inherently
lacking in jurisdiction the plea may be raised at any stage,
and, it is conceded by Mr. Yogeshwar Prasad, even in
execution proceedings on the ground that the decree was a
nullity. If one reads Sections 209 and 331 of the U.P. Act 1 of
1951 together one finds that a suit like the one before us has
to be filed before a Special Court created under the Act
within a period of limitation specially prescribed under the
rules made under the Act and the jurisdiction of the ordinary
civil court is absolutely barred.”
(emphasis supplied)
37. In Most Rev. P.M.A. Metropolitan v. Moran Mar
Marthoma 17 as well, a three Judge bench of this Court
entertained an objection as to maintainability of the suit under
Section 9 of the CPC, despite the plea not having been raised
before the courts below. The Court observed that the plea of a
bar or lack of jurisdiction can be entertained at any stage, since
an order or decree passed without jurisdiction is non-est in law.
38. The position of law has been consistently applied even in
criminal proceedings under Article 136 of the Constitution.
In Masalti v. State of Uttar Pradesh 18 , the confirmation of the
death sentence of a number of accused persons by the High
Court was under challenge before this Court. Chief Justice
Gajendragadkar, speaking for a four judge Bench of this Court,
observed that:
“11. We are not prepared to accept Mr. Sawhney's
argument that even if this point was not raised by the
appellants before the High Court, they are entitled to ask us
to consider that point having regard to the fact that 10
persons have been ordered to be hanged. It may be conceded
that if a point of fact which plainly arises on the record, or a
point of law which is relevant and material and can be
argued without any further evidence being taken, was urged
before the trial court and after it was rejected by it was not
repeated before the High Court, it may, in a proper case, be
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permissible to the appellants to ask this Court to consider
that point in an appeal under Article 136 of the Constitution;
after all in criminal proceedings of this character where
sentences of death are imposed on the appellants, it may not
be appropriate to refuse to consider relevant and material
pleas of fact and law only on the ground that they were not
urged before the High Court. If it is shown that the pleas
were actually urged before the High Court and had not been
considered by it, then, of course, the party is entitled as a
matter of right to obtain a decision on those pleas from this
Court. But even otherwise no hard and fast rule can be laid
down prohibiting such pleas being raised in appeals under
Article 136.”
(emphasis supplied)
39. Based on the position of law, we find it just to allow the
appellant to raise the ground of jurisdiction before us. Allowing
the ground to be raised would not require the submission of
additional evidence since it is a pure question of law and strikes
at the heart of the matter. We shall now turn to the merits of this
argument.
The Objection of the counsels for the respondent-employees about
the issue of delegation not being raised before Labour Court
deserves rejection.
32. So far as the issue of delay in filing the present
petition, no doubt some of these petitions are filed after delay of 3
mong years. However it is not that the Petitioners acquiesced in
the decisions of the Labour Court. They did institute Writ Petition
No. 11646/2019 immediately after passing of award by the Labour
Court. Ideally the other petitions should also have been filed
contemporaneously. However since the issue involved in all
petitions is the same and since all petitions can be decided by a
common judgments, it would not be appropriate to segregate the
petitions by dates of filing and dismiss some of them on the ground
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of delay. Considering the fact that the Petitioners did file one of
the petitions timely, it cannot be stated that they are guilty of
latches.
33. The rest of the arguments on merits of the matters are
not required to be dealt with at this stage as References made by
the Assistant Commissioner of Labour are held to be faulty. Mr.
Sapkal has also relied upon the judgment of this Court in Sanjay
Shalikram Ingle Vs. Lokmat, 2010 (4) All M. R. 210 , in which
this Court was dealing with the issue of maintainability of
complaints filed under the provisions of Maharashtra Recognition
of Trade Unions and Prevention of Unfair Labour Practices Act,
1971 (for short ‘the Act of 1971’) for ascertainment of the claims to
wages under the Majithia Wage Board recommendations. While
holding that such complaint filed under the provisions of the Act of
1971 to be maintainable this Court held as under:
“These observations therefore clearly show that forum under
S.17 of the Working Journalist Act is available only when an
ascertained sum is to be recovered and not otherwise. Here,
first the classification of respondent newspaper and
categorization is essential and then only the wages and other
benefits relevant for petitioners can be determined. Petitioners
are praying for that determination and also for compensation
and interest for subjecting them to unfair labour practice. This
compensation can not be awarded to them in proceedings
under S. 17. In any case as S. 17 is not equivalent to S.33-C-2
of Industrial Disputes Act, no inquiry into any dispute as to
classification or categorization and annual turn over of the
respondent news paper is possible under it. The finding of
Industrial Court about availability of remedy under S.17 to
petitioners is unsustainable. It is obvious that theory of an
alternate efficacious remedy was/is not relevant at all.”
34. Thus having held that References made by the
Assistant Commissioner of Labour, Aurangabad are in
contravention of the provisions of sub-Section (2) of Section 17 of
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the Act of 1955, following the decision in Sanjay Shalikram
Ingle (supra) the remedy of filing complaint under the provisions
of the Act of 1971 would possibly be open for respondent-employees
in addition to the State Government itself making a Reference
under the provisions of sub-Section (2) of Section 17 of the Act of
1955.
35. Writ Petition No. 10774 of 2022 has been filed claiming
interest on the amounts awarded by the Labour Court. Since the
Awards are being set aside, there is no question of payment of any
interest. Therefore Writ Petition No. 10774 of 2022 is liable to be
dismissed.
36. Accordingly, writ petitions (except Writ Petition No.
10774 of 2022) are allowed. The awards passed by the Labour
Court are set aside. It shall be open to respondents-employees to
exercise such remedies for enforcement of their rights to claim
wages as per recommendations of Majithia Wage Board as may be
available under law. Writ Petition No. 10774 of 2022 is dismissed.
The amount deposited by petitioners in this Court shall be
withdrawn by them after a period of eight (08) weeks from today.
37. Rule is made absolute in above terms. Rule is dis-
charged in Writ Petition No. 10774 of 2022.
(SANDEEP V. MARNE)
JUDGE
Devendra/December-2022
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.11646 OF 2019
Head of Human Resource
Dainik Bhaskar Group, (D. B. Corp Ltd)
Divya Marathi,
Plot No.15295, Motiwala Complex,
Jalna Road, Aurangabad-431001. ..Petitioner
Versus
Shri. Dinesh Devidas Pardeshi
Age 37 years, Occ: Nil,
R/o Home No.972, Murdijapur Colony,
Mhada Colony,
Tq. Dist. Aurangabad-431 001. ..Respondent
WITH
WRIT PETITION NO.4864 OF 2022
1. Managing Director,
Dainik Bhaskar Group, (D. B. Corp Ltd.)
Plot No.280, Sarkhej-Gandhinagar Highway
Near YMCS Club, Ahmedabad,
Gujrat-380051.
2. Head of Human Resource
Dainik Bhaskar Group, (D. B. Corp Ltd)
Divya Marathi,
Plot No.15295, Motiwala Complex,
Jalna Road, Aurangabad-431001. ..Petitioners
Versus
1. State of Maharashtra through
Government Pleader, Bombay High Court
Bench at Aurangabad Through Secretary of
Ministry of Labour and Industries, Mantralaya, Mumbai.
2. Bhaskar S/o Narayan Kodam
Age 41 years, Occ: Service,
R/o House No.330, Huke Lane
Anand Bazar, Ahmednagar ..Respondents
WITH
WRIT PETITION NO.4862 OF 2022
1. Managing Director,
Dainik Bhaskar Group, (D. B. Corp Ltd.)
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Plot No.280, Sarkhej-Gandhinagar Highway
Near YMCS Club, Ahmedabad,
Gujrat-380051.
2. Head of Human Resource
Dainik Bhaskar Group, (D. B. Corp Ltd)
Divya Marathi,
Plot No.15295, Motiwala Complex,
Jalna Road, Aurangabad-431001. ..Petitioners
Versus
1. State of Maharashtra through
Government Pleader, Bombay High Court
Bench at Aurangabad Through Secretary of
Ministry of Labour and Industries, Mantralaya, Mumbai.
2. Vijay S/o Govind Naval,
Age 32 years, Occ: Service,
R/o Plot No.32, Lane No.2,
Ambika Nagar, Mukundwadi, Aurangabad ..Respondents
WITH
WRIT PETITION NO.4869 OF 2022
1. Managing Director,
Dainik Bhaskar Group, (D. B. Corp Ltd.)
Plot No.280, Sarkhej-Gandhinagar Highway
Near YMCS Club, Ahmedabad,
Gujrat-380051.
2. Head of Human Resource
Dainik Bhaskar Group, (D. B. Corp Ltd)
Divya Marathi,
Plot No.15295, Motiwala Complex,
Jalna Road, Aurangabad-431001. ..Petitioners
Versus
1. State of Maharashtra through
Government Pleader, Bombay High Court
Bench at Aurangabad Through Secretary of
Ministry of Labour and Industries, Mantralaya, Mumbai.
2. Santosh S/o Prabhakar Paikrao,
Age 33 years, Occ: Service,
R/o C/o A.L. Pardhe, Plot No.28,
Vishal Nagar, Garkhed Parisar, Aurangabad. ..Respondents
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WITH
WRIT PETITION NO.4870 OF 2022
1. Managing Director,
Dainik Bhaskar Group, (D. B. Corp Ltd.)
Plot No.280, Sarkhej-Gandhinagar Highway
Near YMCS Club, Ahmedabad,
Gujrat-380051.
2. Head of Human Resource
Dainik Bhaskar Group, (D. B. Corp Ltd)
Divya Marathi,
Plot No.15295, Motiwala Complex,
Jalna Road, Aurangabad-431001.
3. Editor,
Daily Divay Marathi
Shyam Talkies Complex
Near Shivaji Maharaj Putla, Nanded
Tq. & Dist. Nanded. ..Petitioners
Versus
1. State of Maharashtra through
Government Pleader, Bombay High Court
Bench at Aurangabad.
2. Vilas Santaram Ingle,
Age 50 years, Occ: Service,
R/o Acharya Kalguni Housing Society,
Pratap Nagar, Shanoorwadi, Aurangabad. ..Respondents
WITH
WRIT PETITION NO.4858 OF 2022
1. Managing Director,
Dainik Bhaskar Group, (D. B. Corp Ltd.)
Plot No.280, Sarkhej-Gandhinagar Highway
Near YMCS Club, Ahmedabad,
Gujrat-380051.
2. Head of Human Resource
Dainik Bhaskar Group, (D. B. Corp Ltd)
Divya Marathi,
Plot No.15295, Motiwala Complex,
Jalna Road, Aurangabad-431001. ..Petitioners
Versus
1. State of Maharashtra through
Government Pleader, Bombay High Court
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Bench at Aurangabad Through Secretary of
Ministry of Labour and Industries, Mantralaya, Mumbai.
2. Vijay S/o Bhimrao Wankhede,
Age 32 years, Occ: Service,
R/o C/o House No.1-2-5-20,
Ambedkar Chowk, Bhimnagar,
Bhavsingpura, Aurangabad. ..Respondents
WITH
WRIT PETITION NO.4860 OF 2022
1. Managing Director,
Dainik Bhaskar Group, (D. B. Corp Ltd.)
Plot No.280, Sarkhej-Gandhinagar Highway
Near YMCS Club, Ahmedabad,
Gujrat-380051.
2. Head of Human Resource
Dainik Bhaskar Group, (D. B. Corp Ltd)
Divya Marathi,
Plot No.15295, Motiwala Complex,
Jalna Road, Aurangabad-431001. ..Petitioners
Versus
1. State of Maharashtra through
Government Pleader, Bombay High Court
Bench at Aurangabad Through Secretary of
Ministry of Labour and Industries, Mantralaya, Mumbai.
2. Arun S/o Devorao Talekar,
Age 41 years, Occ: Service,
R/o Plot No.77, Gali No.5,
Near Hanuman Nagar,
Nar Sudhakarao Naik School,
Garkheda Parisar, Aurangabad ..Respondents
WITH
WRIT PETITION NO.4859 OF 2022
1. Managing Director,
Dainik Bhaskar Group, (D. B. Corp Ltd.)
Plot No.280, Sarkhej-Gandhinagar Highway
Near YMCS Club, Ahmedabad,
Gujrat-380051.
2. Head of Human Resource
Dainik Bhaskar Group, (D. B. Corp Ltd)
Divya Marathi,
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Plot No.15295, Motiwala Complex,
Jalna Road, Aurangabad-431001. ..Petitioners
Versus
1. State of Maharashtra through
Government Pleader, Bombay High Court
Bench at Aurangabad Through Secretary of
Ministry of Labour and Industries, Mantralaya, Mumbai.
2. Suraj S/o Apparao Joshi,
Age 37 years, Occ: Service,
R/o Plot No.54, Meeranagar,
Padegaon, Tq. Dist. Aurangabad-431 001. ..Respondents
WITH
WRIT PETITION NO.11665 OF 2019
Head of Human Resource
Dainik Bhaskar Group, (D. B. Corp Ltd)
Divya Marathi,
Plot No.15295, Motiwala Complex,
Jalna Road, Aurangabad-431001. ..Petitioner
Versus
Sudhir S/o Bhaskarao Jagadale
Age 38 years, Occ: Nil,
R/o House No.343, Ajintha Road,
Near Bus Stand, Sawangi (Harsool),
Tq. Dist. Aurangabad-431 008. ..Respondent
WITH
WRIT PETITION NO.4861 OF 2022
1. Managing Director,
Dainik Bhaskar Group, (D. B. Corp Ltd.)
Plot No.280, Sarkhej-Gandhinagar Highway
Near YMCS Club, Ahmedabad,
Gujrat-380051.
2. Head of Human Resource
Dainik Bhaskar Group, (D. B. Corp Ltd)
Divya Marathi,
Plot No.15295, Motiwala Complex,
Jalna Road, Aurangabad-431001. ..Petitioners
Versus
1. State of Maharashtra through
Government Pleader, Bombay High Court
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Bench at Aurangabad Through Secretary of
Ministry of Labour and Industries, Mantralaya, Mumbai.
2. Namdeo S/o Goroba Gaikwad,
Age 50 years, Occ: Service,
R/o C/o Adv. Gunwant Daware,
Daware Building, Abhay Book Centre,
Aurangabad Road, Naralibagh, Aurangabad ..Respondents
WITH
WRIT PETITION NO.4865 OF 2022
1. Managing Director,
Dainik Bhaskar Group, (D. B. Corp Ltd.)
Plot No.280, Sarkhej-Gandhinagar Highway
Near YMCS Club, Ahmedabad,
Gujrat-380051.
2. Head of Human Resource
Dainik Bhaskar Group, (D. B. Corp Ltd)
Divya Marathi,
Plot No.15295, Motiwala Complex,
Jalna Road, Aurangabad-431001. ..Petitioners
Versus
1. State of Maharashtra through
Government Pleader, Bombay High Court
Bench at Aurangabad Through Secretary of
Ministry of Labour and Industries, Mantralaya, Mumbai.
2. Dhananjay Sadashivrao Bramhapurkar,
Age 37 years, Occ: Service,
R/o C/o A. S. Shashtri, Flat No.6,
Redey Apartment in from of Manik Hospital,
Ashok Nagar, Garkheda Parisar Aurangabad. ..Respondents
WITH
WRIT PETITION NO.4868 OF 2022
1. Managing Director,
Dainik Bhaskar Group, (D. B. Corp Ltd.)
Plot No.280, Sarkhej-Gandhinagar Highway
Near YMCS Club, Ahmedabad,
Gujrat-380051.
2. Head of Human Resource
Dainik Bhaskar Group, (D. B. Corp Ltd)
Divya Marathi,
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Plot No.15295, Motiwala Complex,
Jalna Road, Aurangabad-431001. ..Petitioners
Versus
1. State of Maharashtra through
Government Pleader, Bombay High Court
Bench at Aurangabad Through Secretary of
Ministry of Labour and Industries, Mantralaya, Mumbai.
2. Suresh S/o Sandu Borde,
Age 50 years, Occ: Service,
R/o C/o Pravin Jagtap, H-43,
Shiv Shankar Colony, Behind Tanaji Putla,
Tq. Dist. Aurangabad-431 008. ..Respondents
WITH
WRIT PETITION NO.4866 OF 2022
1. Managing Director,
Dainik Bhaskar Group, (D. B. Corp Ltd.)
Plot No.280, Sarkhej-Gandhinagar Highway
Near YMCS Club, Ahmedabad,
Gujrat-380051.
2. Head of Human Resource
Dainik Bhaskar Group, (D. B. Corp Ltd)
Divya Marathi,
Plot No.15295, Motiwala Complex,
Jalna Road, Aurangabad-431001. ..Petitioners
Versus
1. State of Maharashtra through
Government Pleader, Bombay High Court
Bench at Aurangabad Through Secretary of
Ministry of Labour and Industries, Mantralaya, Mumbai.
2. Bharat S/o Pandurang Deogaonkar,
Age 46 years, Occ: Service,
R/o Bhaskar Vasti Yesgaon,
Tq. Kopargaon Dist. Nagar,
C/o Sudam Jadhav Galli No.17,
Sanjay Nagar, Mukundwadi,
Tq. Dist. Aurangabad-431 008. ..Respondents
WITH
WRIT PETITION NO.4867 OF 2022
1. Managing Director,
Dainik Bhaskar Group, (D. B. Corp Ltd.)
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Plot No.280, Sarkhej-Gandhinagar Highway
Near YMCS Club, Ahmedabad,
Gujrat-380051.
2. Head of Human Resource
Dainik Bhaskar Group, (D. B. Corp Ltd)
Divya Marathi,
Plot No.15295, Motiwala Complex,
Jalna Road, Aurangabad-431001. ..Petitioners
Versus
1. State of Maharashtra through
Government Pleader, Bombay High Court
Bench at Aurangabad Through Secretary of
Ministry of Labour and Industries, Mantralaya, Mumbai.
2. Prakash S/o Sambhaji Khandelote,
Age 48 years, Occ: Nill,
R/o C/o Gautam Jadhav
Plot No.18-A, Laghu Wetan Colony, Mukundwadi,
Tq. Dist. Aurangabad-431 008. ..Respondents
WITH
WRIT PETITION NO.4863 OF 2022
1. Managing Director,
Dainik Bhaskar Group, (D. B. Corp Ltd.)
Plot No.280, Sarkhej-Gandhinagar Highway
Near YMCS Club, Ahmedabad,
Gujrat-380051.
2. Head of Human Resource
Dainik Bhaskar Group, (D. B. Corp Ltd)
Divya Marathi,
Plot No.15295, Motiwala Complex,
Jalna Road, Aurangabad-431001. ..Petitioners
Versus
1. State of Maharashtra through
Government Pleader, Bombay High Court
Bench at Aurangabad Through Secretary of
Ministry of Labour and Industries, Mantralaya, Mumbai.
2. Devidas S/o Vasant Lanjewar,
Age 46 years, Occ: Service,
R/o Row House No.41, Emrald City
Garkheda Parisar, Aurangabad ..Respondents
…
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Mr. V. D. Sapkal, Senior Advocate a/w Mr. Ashok Patil, Mr.
Pankaj Sutar, Mr. Vishwabbushan Kamble and Mr. Nikhil S. Jaju,
Advocate for the Petitioners.
Mr. Rahul D. Khadap, Advocate for Respondent No.2 in WP/
11646/2019, WP/4864/2022, WP/4862/2022, WP/4869/2022.
Mr. Yatin I. Thole, Advocate for Respondent No.2 in WP/
4870/2022, WP/4858/2022, WP/4860/2022, WP/4859/2022, WP/
11665/2019.
Mr. Shrimant R. Kedar, Advocate for Respondent No.2 in WP/
4861/2022, WP/4865/2022, WP/4868/2022.
Mr. P. M. Shinde h/f Mr. Prashant B. Jadhav, Advocate for Re-
spondent No.2 in WP/4866/2022 and WP/4867/2022.
Mr. Vijay B. Garud, Advocate for Respondent No.2 in WP/
4863/2022.
Petitioner Nos.1 and 2 and Respondent No.1 is deleted in WP/
11646/2019 and WP/1665/2019 by order dated 23.09.2019.
…
WITH
WRIT PETITION NO.10774 OF 2022
Sudhir S/o. Bhaskarao Jagadale,
Age 43 years, Occu. Nil,
R/o. House No.343, Ajintha Road,
Near Bus Stand, Sawangi (Harsool),
Tq. & Dist. Aurangabad. ..Petitioner
Versus
M/s. D. B. Corp Limited,
Second Floor, Motiwala Complex,
Jalna Road, Aurangabad.
Through its
Head of Human Resources. ..Respondent
…
Mr. P. M. Shinde h/f Mr. Prashant B. Jadhav, Advocate for the Pe-
titioner.
Mr. V. D. Sapkal, Senior Advocate i/by Mr. N. S. Jaju, Advocate for
Respondent.
…
CORAM : SANDEEP V. MARNE, J.
RESERVED ON : 19.12.2022.
PRONOUNCED ON : 22.12.2022.
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JUDGMENT:-
1. Rule. Rule made returnable forthwith. With the con-
sent of the parties, matters are taken up for final hearing at the
admission stage.
2. In these group of petitions petitioners challenge the
award dated 04.01.2019 passed by the Member, Labour Court,
Aurangabad in Reference IDA No.20/2017 as well as order dated
10.06.2019 rejecting Review Petition No.09/2019. By amending
petitions, the order dated 14.09.2022 passed by the Additional
Tahsildar, Aurangabad seeking enforcement of the awards has
also been challenged.
3. Petitioner is a private limited company engaged in
multi-ferrous business activities in the areas of Radio, Media
(print and electronics), Textile, Real Estate etc. Petitioner claims
to be one of the largest print media groups in the country with 65
newspaper editions published in 4 languages having readership of
4.4 crores across 13 States. Its annual revenues have been
described in one of the litigations as more than Rs.1000/- crores.
4. Respondents in these petitions have been appointed by
petitioners on various posts. For the purpose of illustration, the
details of appointment of respondent no.2 in Writ Petition
No.4859/2022 are discussed. Respondent no.2 was offered an
appointment by petitioners on the post of Telephone Operator on
10.06.2011. Upon acceptance of an offer, appointment order came
to be issued in favour of respondent no.2 on 12.06.2011 appointing
him as Telephone Operator with effect from 13.06.2011. The salary
package offered to respondent no.2 was in the form of Cost to
Company (CTC) package of Rs.1,08,000/- per annum.
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5. The Working Journalists and Other Newspapers
Employees (Conditions of Service) and Miscellaneous Provisions
Act, 1955 (for short ‘the Act of 1955’) has been enacted to regulate
the conditions of employment of working journalists and other
newspaper employees in pursuance of recommendations of Press
Commission. Section 9 of the Act of 1955 provides for fixation of
wages and revision thereof in respect of working journalists by the
Central Government. Section 13-C of the Act of 1955 provides for
fixation and revision of wages in respect of non-journalist
newspaper employees. The Government of India constituted two
Wage Boards under the provisions of Sections 9 and 13-C of the
Act of 1955 by Notification dated 24.05.2007. The Wage Boards
submitted their recommendations to the Central Government on
31.05.2010. In exercise of powers conferred by Section 12 of the
Act of 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’.
6. Clause 20(j) of the Notification dated 11.11.2011
provides for exercise of option by an employee to retain existing
emoluments within three weeks of publication of the Notification
dated 11.11.2011. It is the case of petitioners that the respective
employees in the present petitions executed such options in the
form of declarations under Clause 20(j) of the Notification and
thereby opted for retention of existing emoluments.
7. Applications were filed on 18.01.2017 by employees in
the present petitions before the Assistant Labour Commissioner,
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Aurangabad under Section 17(1) of the Act of 1955 claiming
benefits under the Majithia Wage Board recommendations. The
Assistant Labour Commissioner took cognizance of the application
dated 18.01.2017 and made References to the Labour Court,
Aurangabad for adjudication under the provisions of Section 17(2)
of the Act of 1955.
8. Upon Reference being made to the Labour Court, the
employees filed their statements of claim claiming differences of
arrears of salary as per Notification dated 11.11.2011. The claims
are resisted by petitioners by filing written statement raising
various defences. The Labour Court made award dated 04.01.2019
partially answering the Reference in affirmative and declaring
that all employees are entitled for difference of arrears of salary as
per the Majithia Wage Boards recommendations published vide
Notification dated 11.11.2011 without any interest. Petitioners are
directed to pay difference of such arrears of salary within three
months.
9. Petitioners sought review of the award dated
04.01.2019. However, by order dated 10.06.2019 the Labour Court
was pleased to reject the Review Petitions. The present petitions
are filed challenging the awards dated 04.01.2019 as well as orders
passed in Review on 10.06.2019.
10. When some of the present petitions came up before
this Court on 23.09.2019, this Court refused to stay the impugned
award on account of inability expressed by petitioners to deposit
50% of the awarded amount. Despite rejection of the interim stay,
the impugned awards were not implemented and therefore,
applications were filed before the Assistant Labour Commissioner,
Aurangabad for enforcing the awards, who directed the employees
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to approach the Labour Court again holding that the exact figure
of the amount was not quantified. Aggrieved by the communication
of the Assistant Labour Commissioner, Aurangabad dated
30.06.2020 some of the employees filed Writ Petition
Nos.5606/2021, 5607/2021, 5650/2021 and 5605/2021 in this Court.
The petitions were disposed of by this Court by its order dated
23.03.2022 directing Assistant Labour Commissioner to collect the
details regarding exact salaries paid to them and the salaries
recommended by Majithia Wage Board and accordingly calculate
the amounts and issue recovery certificates. Consequent to the
order passed by this Court, the Assistant Labour Commissioner
issued recovery certificates dated 09.05.2022 in favour of
employees. The Collector sought to direct Additional Tahsildar,
Aurangabad to enforce the recovery certificates by letter dated
13.06.2022. The Additional Tahsildar, Aurangabad accordingly
started recovery proceedings against petitioners and an
attachment order was issued on 14.09.2022. This Court by order
dated 15.09.2022 stayed the attachment order dated 14.09.2022
subject to petitioners depositing 50% of the awarded amount.
Accordingly, petitioners have deposited 50% amount of the
recovery certificates on 27.09.2022/03.10.2022.
11. Appearing for petitioners Mr. Sapkal the learned
Senior Advocate would rely upon the provisions of sub-Section 2 of
Section 17 of the Act of 1955 and contend that the Reference can
be made only by the State Government and powers to make
Reference under the provisions of Section 17(2) cannot be
delegated to any authority by the State Government. He would
contend that by Notification dated 11.05.2016 the powers to make
Reference under sub-Section 2 of Section 17 of the Act of 1955 have
been delegated to the Deputy/Additional Commissioner of Labour
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which is ab initio void . He would rely upon the judgment of this
Court in All India Reporter Private Limited Vs. The State of
Maharashtra and Others, Writ Petition No.6402/2019 decided
on 17.11.2022 in which this Court has struck down the Notification
dated 11.05.2016 and has held that the Reference in that case
made by the Additional Commissioner of Labour was not
maintainable. Mr. Sapkal would submit that in the present case,
the Reference has been made by the Assistant Labour
Commissioner in exercise of delegated powers and since there is no
provisions for delegation of powers under Section 17(2) of the Act
of 1955, the Reference made by the Assistant Commissioner
Labour was clearly not maintainable.
12. So far as the merits of the petitions are concerned, Mr.
Sapkal would submit that the present cases are clearly covered by
Clause 20(j) of the Notification dated 11.11.2011 under which the
employees have executed declarations obtained for existing
emoluments within the window period of three months provided in
Clause 20(j). Having given up their rights to claim salaries on the
basis of Majithia Wage Board by executing declarations under
Clause 20(j), the employees are now estopped from taking a volte
face and demand such wages. He would further submit that
though appointed in the year 2011 and peacefully drawing salary
as per the existing emoluments, the employees raised belated
claims before the Assistant Commissioner of Labour in the year
2017 which were not maintainable. Mr. Sapkal would, therefore,
submit that even on merits, the claims of employees were not
grantable.
13. Per contra Mr. Yatin Thole, learned counsel appearing
for respondent no.2 in Writ Petition Nos.4870/2022, 4858/2022,
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4860/2022, 4859/2022 and 11665/2019 would oppose the petitions
and support the award passed by the Labour Court. He would
submit that the awards of the Labour Court have been made on
04.01.2019 and Review Petition dismissed on 10.06.2019 whereas
most of petitions have filed after inordinate delay of more than
three years in January 2022. He would further submit that the
issue of legality of the Notification dated 11.05.2016 or the issue of
validity of delegation of powers to Assistant Labour Commissioner
to make Reference under Section 17(2) of the Act of 1055 are not
raised either in the present petitions or before the Labour Court.
He would, therefore, urge that petitioners are estopped from
raising these issues directly at this stage of argument. He would
submit that if petitioners had any objection about making of
Reference by Assistant Labour Commissioner under Section 17(2)
of the Act of 1955, it ought to have raised that objection before the
Assistant Labour Commissioner. He would submit that after the
Reference is answered in favour of the employees, petitioners
cannot be permitted to raise such a technical issue directly before
this Court that too at the stage of final argument.
14. Mr. Thole would further submit that Section 17 of the
Act of 1955 constitutes a ‘single scheme’ to enable the employees to
claim benefits of recommendations of Wage Boards. Inviting my
attention to the provisions of Section 17, Rule 36 and Form ‘C’ to
the Rules Mr. Thole would contend that the employees had rightly
made the application in the format provided in Form ‘C’ and
therefore, the objection to the delegation of powers is not
maintainable. He would further submit that petitioners took
chance by seeking review of the award and in review as well
objection to the delegation of powers for making References under
Section 17(2) of the Act of 1955 was not raised. Inviting my
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attention to the orders passed by the Apex Court dated 13.10.2017
and 28.01.2019 in the case of Avishek Raja & Ors. Vs. Sanjay
Gupta & Ors.; M.A. No.171/2019 in Writ Petition No.246/2011
Mr. Thole would contend that the scheme of the Act is such that
Supreme Court expected that the Reference to be decided within
six months. He would submit that as against the time limit fixed
by the Supreme Court of six months, in the present case the
employees are made to run from pillar to post for last more than
five years on account of non-cooperative attitude of petitioners.
15. Inviting my attention to declaration dated 15.11.2011
made by respondent no.2 in Writ Petition No.4859/2022 Mr. Thole
would contend that the same was involuntary in nature. He would
submit that respondent no.2 (Suraj Joshi) was appointed on
13.06.2011 and executed a declaration within four months in a
proforma admitting to terms such as provision of promotional
avenues, economic sustainability etc. He would submit that within
four months from the appointment and without getting any
promotion, the employee would not have made such an
declaration. He would, therefore, submit that the declarations
were forcefully obtained from the employees. Referring to CTC
package of Rs.1,08,000/- offered to him, Mr. Thole would contend
that the same amounted to the gross salary of Rs.9000/- per month
and take home salary of Rs.7000/- per month. Referring to the
Explanation to Clause 20(j) of the Notification Dated 11.11.2011
Mr. Thole would contend that term ‘existing emoluments’ includes
various heads such as basic pay, variable dearness allowance etc.,
whereas what is offered to employees under CTC package does not
include such heads and therefore, cannot construed to mean as
‘existing emoluments’ within the meaning of Clause 20(j).
Referring to the provisions of Section 13 of the Act of 1955, Mr.
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Thole would contend that the provision mandates payment of
wages ‘at rates not less than those specified in the order’. In
support of his contention Mr. Thole has relied upon following
judgments:
1. Business Bhaskar Newspaper Vs. Government of NCT
of Delhi & Ors.; Writ Petition (C) No.8550/2018 decided
on 27.01.2022.
2. Shri. Samarjit Ghosh Vs. M/s. Bennett Coleman and
Co. and Another, AIR 1987 SCC 1869.
3. Pradhan Prabandhak/Unit Head M/s. Amar Ujala Vs.
State of U.P. and 3 others; Writ Petition (C)
No.11856/2018 decided on 31.05.2018.
4. All India Reporter Karamchari Sangh & Ors. Vs. All
India Reporter Limited and Ors. decided on 02.05.1988.
5. D. B. Corp. Ltd. Vs. State of Maharashtra & Ors. ; Writ
Petition No.1821/2018 with other connected writ petitions,
decided on 09.08.2018.
6. Managing Director, Dainik Bhaskar Group, (D. B.
Corp. Ltd.) & Ors. Vs. The State of Maharashtra & Anr.;
Writ Petition No.11646/2019 with other connected writ
petition, decided on 23.09.2019.
7. Suraj Apparao Joshi Vs. The Deputy Labour
Commissioner, Aurangabad and Ors.; Writ Petition
No.5606/2021 with other connected writ petitions, decided on
23.03.2022.
8. D. B. Corp Ltd. Vs. D. P. Agrawal Publications Pvt. Ltd.
& Others; CS (Comm) No.1320/2016, decided on 20.02.2019.
16. Mr. Kedar, learned counsel appearing for respondent
employee in Writ Petition No.4861/2021 would invite my attention
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to the recovery certificate issued therein in support of his
contention that there is a huge difference of about Rs.13,000/- in
monthly salary that is being paid to the employees and the one
payable as per Majithia Wage Boards recommendations. He would
therefore submit that, by no stretch of imagination, can be
contended that the existing emoluments are more favorable to the
employees than the one payable as per the Majithia Wage Board
recommendations.
17. Mr. Shinde, learned counsel appearing for
respondents-employees in Writ Petition No.4866/2022 and
4867/2022 would adopt the submissions of Mr. Thole and would
further submit that the implementation of recommendations of
Majithia Wage Board is not discretionary for petitioners and that
the same is compulsory. He would rely upon the Order of the Apex
Court in Shobha Ram Vs. Ramesh Chandra Agarwal , passed
on 19-06-2017 in various Contempt Petitions relating to non-
implementation of Majitia Wage Board Recommendations, in
support of his contention that Section 16 of the Act of 1955 leaves
option to the employees to accept only benefits which are more
favorable to them than the one notified under Section 12 of the Act
of 1955. Since the wages offered by petitioners are not more
favorable than the one notified, the notified wages as per Majithia
Wage Board would alone be payable.
18. Mr. Khadap, learned counsel appearing for
respondents-employee in Writ Petition Nos.11646/2019, 4864/2022,
4862/2022 and 4869/2022 would adopt the submissions of Mr.
Thole.
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19. In rejoinder Mr. Sapkal would contend that the issue
of jurisdiction goes to the root of the matter and that therefore,
even if the same is not expressly raised, this Court is otherwise
bound by the decision in All India Reporter Private Limited
(supra). In support of his contention that an order passed in
absence of jurisdiction is a nullity, Mr. Sapkal would rely upon the
judgment of the Apex Court in Sarup Singh and Another Vs.
Union of India and Another, (2011) 11 SCC 198. Mr. Sapkal
would alternatively submit that the jurisdiction of the Labour
Court was otherwise challenged in the written statement filed by
petitioners.
20. Rival contentions of the parties now fall for my
consideration.
21. Since the issue involved is about interpretation of
provisions of Section 17 of the Act of 1955, it would be necessary to
reproduce the said provision as under:
“ 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 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
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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).
22. Thus Section 17 of the Act of 1955 provides for a
complete scheme for recovery of money due from the employer. In
case there is no dispute about money payable, the State
Government or the authority specified by it can straightaway issue
a recovery certificate and the Collector can proceed to recover
amount as arrears of land revenue. If there is a dispute about the
amount payable, the State Government is required to make a
Reference to the Labour Court under the provisions of sub-Section
2 of Section 17 of the Act of 1955 and it is the Labour Court which
will decide the dispute and forward its decision to the State
Government under sub-Section 3 of Section 17. Once the State
Government receives the decision of the Labour Court under
Section 17(3), further proceedings of recovery are to be effected
under sub-Section 1 of Section 17. This is the scheme of recovery
provided for under Section 17 of the Act of 1955.
23. Careful reading of provisions of sub-Sections (1) and
(2) of Section 17 of the Act of 1955 would indicate that while sub-
Section (1) uses the words ‘ if the State Government or such
authority, as the State Government may specify in this behalf , ….’,
the words used in sub-Section (2) are ‘ the State Government may ’.
These words ‘ or such authority as the State Government may
specify in this behalf ’ are absent in sub-Section (2) of Section 17 of
the Act of 1955.
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24. This Court has considered and interpreted the
provision of Section 17 of the Act of 1955 in All India Reporter
Private Limited (supra). This Court held in paragraph nos.7 to
11 as under:
“7] A perusal of Section 17(1) of the Act of 1955 indicates that
without prejudice to any other mode of recovery, it would be open
for a newspaper employee to seek recovery of amount due to him
by making an application to the State Government. On the State
Government or such authority that the State Government may
satisfy in this behalf being satisfied that any amount is so due, a
certificate for such amount can be issued to the Collector who
can then proceed to recover that amount in the same manner as
an arrear of land revenue. It is clear from the said
provision that the State Government has been conferred the
power of delegating the task of determining whether any amount
is due as claimed by a newspaper employee. The State
Government can either itself or through such authority as
specified issue a certificate as provided. In contrast, when the
provisions of Section 17(2) of the Act of 1955 are
analyzed, it becomes clear that no such power of delegation has
been conferred on the State Government. Thus, if any question
arises as to the
amount due under the Act of 1955, it is for the State Government
either on its own motion or on upon an application made to it to
refer the question to any Labour Court as permitted. In other
words, the State Government has not been conferred any power
to delegate the task of
referring such question to any Labour Court. There is thus a
clear
distinction contained in the provisions of Sections 17(1) and
17(2) of the Act of 1955 inasmuch as the power of delegation
conferred on the State Government under Section 17(1) is
missing in Section 17(2) of the Act of 1955.
In this regard, the learned Counsel for the petitioner is
justified in relying upon the decision in
M. Chandru (supra) wherein the
Hon’ble Supreme Court has observed in clear terms that
delegation of power is permissible if there exists such provision
in the Principal Act. The
power to delegate being a statutory requirement must find place
in the Principal Act itself. It is thus clear that in the absence of
any such power of delegation being conferred upon the State
Government under Section
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17(2) of the Act of 1955 to refer any question as to whether any
amount is due under the Act of 1955 to a newspaper employee,
such reference has to be made by the State Government itself.
8] The Additional Commissioner of Labour has relied upon the
notification dated 11/5/2016 issued by the Industries, Energy
and Labour Department of the State Government and has
thereafter made the order
of reference. This notification states that the State Government
has been pleased to allocate the work to refer the question to any
Labour Court within the meaning of Section 17(2) of the Act of
1955 to the officers
mentioned in Schedule thereto. We find that in the absence of
any power of delegation being conferred on the State
Government under Section 17(2) of the Act of 1955, the
notification dated 11/5/2016 would not have any force of law.
In the absence of any enabling power to delegate
the task of referring any question to the Labour Court, it would
have to be held that exercise of such power by the officers
mentioned in the
Schedule to the notification dated 11/5/2016 would amount to
usurping the authority conferred only on the State Government.
The notification dated 11/5/2016 therefore does not have any
statutory support of Section 17(2) of the Act of 1955. It is
therefore held that it was not
permissible for the Additional Commissioner of Labour to have
referred the dispute to the Labour Court under Section 17(2) of
the Act of1955. Such reference under Section 17(2) ought to
have been made by the State Government itself. Consequently,
the Labour Court was not
empowered to proceed further with the reference as made.
9] It was also submitted by the learned Counsel for the
petitioner that since the members of the Union sought
determination of their entitlement to higher wages, remedy
under Section 17 of the Act of
1955 was not available. What was required to be resolved was
an
industrial dispute and therefore the members of the Union ought
to have invoke appropriate jurisdiction in that regard. Reliance
was placed on the
decision in Sanjay Shalikram Ingle (supra). However, since it
has been found that the Additional Commissioner of Labour was
not empowered to make the reference under Section 17(2) of the
Act of 1955 to the Labour
Court, it would not be necessary at this stage to consider the said
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aspect of the matter. If a reference is made by the State
Government under Section 17(2) of the Act of 1955, the said
aspect can be considered at that stage.
10] It was urged by the learned Counsel for the Union that the
challenge to the notification dated 11/5/2016 was raised
belatedly since the present Writ Petition was filed on 16/9/2019.
It is found that reference to the said notification has been made
for the first time in the order of reference dated 23/7/2018. After
the Additional Commissioner of Labour made the order of
reference to the Labour Court, the petitioner
raised a preliminary objection to the tenability of the reference
proceedings on 17/1/2019. That objection came to be rejected on
8/8/2019. In these facts therefore it cannot be said that the
challenge to the notification dated 11/5/2016 was belated.
Needless to state that in
addition to a challenge to the said notification, the order of
reference dated 23/7/2018 as well as the order passed by the
learned Judge, 4th
Labour Court, Nagpur below Exh.11 on 8/8/2019 are also
under
challenge in this Writ Petition. We therefore do not find that the
Writ Petition has been filed belatedly for it to be not entertained
on merits.
11] Hence, for the aforesaid reasons, it is held that the
notification dated 11/5/2016 issued by the State Government
delegating its power under Section 17(2) of the Act of 1955 to the
Additional Commissioner of Labour to make a reference to the
Labour Court does
not have any statutory support. There is no power conferred on
the State Government to delegate the power conferred upon it to
refer any dispute to the Labour Court for determining whether
any amount is due to the
members of the Union under the Act of 1955. Consequently, the
notification dated 11/5/2016 is struck down as having been
issued
without there being any power conferred on the State
Government in that regard under Section 17(2) of the Act of
1955. Consequently, the order
dated 8/8/2019 passed below Exh.11 in Reference (IDA) No.
10/2018 is also set aside and it is declared that the said
reference is not maintainable before the Labour Court in view of
the notification dated 11/5/2016
being struck down. The Union is free to agitate its claim in
accordance with law. It is clarified that this Court has not
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examined the claim on
merits and all questions in that regard are kept open.”
25. Thus in All India Reporter Private Limited (supra)
this Court has held that power of delegation is not conferred on the
State Government under sub-Section (2) of Section 17 of the Act of
1955 and that therefore, the Notification dated 11.05.2016
providing for such delegation has no force of law. This Court has
struck down the Notification dated 11.05.2016. Since, it is held
that the State Government cannot delegate the power of making
Reference under sub-Section (2) of Section 17 of the Act of 1955,
this Court has further proceeded to hold that the Reference made
by Additional Commissioner of Labour in that case was not
maintainable.
26. The judgment in All India Reporter Private
Limited (supra) squarely applies to the facts of the present case.
In the present case as well the order of Reference has been made
by the Assistant Commissioner of Labour, Aurangabad. The
power is exercised by the Assistant Commissioner of Labour on the
strength of the Notification dated 11.05.2016, which has been set
aside in All India Reported Private Limited (supra).
Therefore, following that judgment, the References made by the
Assistant Commissioner of Labour before the Labour Court will
have to be held as not maintainable.
27. Faced with the above situation, the learned counsels
appearing for respondent-employees have made strenuous efforts
to distinguish the judgment in All India Reporter Private
Limited (supra). Firstly, reliance is placed on the judgment of the
Apex Court in Shri. Samarjit Ghosh (supra) in which it is held in
paragraph no.6 as under:
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“6. When all the provisions of s. 17 are considered together it is
apparent that they constitute a single scheme. In simple terms
the scheme is this. A newspaper employee, who claims that an
amount due to him has not been paid by his employer, can
apply to the State Government for recovery of the amount. If no
dispute arises as to the amount due the Collector will recover
the amount from the employer and pay it over to the newspaper
employee. If a question arises as to the amount due, it is a
question which arises on the application made by the newspaper
employee, and the applica- tion having been made before the
appropriate State Govern- ment it is that State Government
which will call for an adjudication of the dispute by referring
the question to a Labour Court. When the Labour Court has
decided the ques- tion, it will forward its decision to the State
Government which made the reference, and thereafter the State
Govern- ment will direct that recovery proceedings shall be
taken. In other words the State Government before whom the
applica- tion for recovery is made is the State Government
which will refer the question as to the amount due to a Labour
Court, and the Labour Court upon reaching its decision will
forward the decision to the State Government, which will then
direct recovery of the amount.”
Relying on Samarjit Ghosh (supra), it is contented that the
provisions of Section 17 of the Act of 1955 are held to be
constituting a ‘single scheme’. In that judgment, the Apex Court
has explained the scheme of Section 17 of the Act of 1955 and has
not dealt with the issue as to whether the delegated authority can
make Reference under Section 17(2) of the Act of 1955. In fact the
Apex Court has also used the word ‘State Government’ for making
Reference under Section 17(2) of the Act of 1955. Therefore, the
judgment in Samarjit Ghosh (supra) is of no assistance to
respondent-employees.
28. Reliance is placed on the judgment of the Single Judge
of the Allahabad High Court in M/s. Amar Ujala (supra) in which
the judgment in Shri. Samarjit Ghosh (supra) has been referred
and it is held as under:
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“In the instant case, when the entire section 17 of the Act, 1955
is read as a whole, it cannot be said that the legislature
intentionally omitted the words "such authority, as specified by
the State Government", from sub-section (2) of section 17 of the
Act because by providing the power of delegation in sub-section
(1) of section 17 of the Act, keeping in mind the scheme of the
entire section 17 of the Act, 1955, the State Government was
empowered to delegate its power to deal with applications
contemplated under Section 17 of the Act, 1955. Otherwise also,
the State Government under its general power of delegation by
notification can delegate exercise of its administrative power.
In the instant case, the State Government had empowered the
Deputy Labour Commissioner to dispose of application under
Section 17 of the Act which would include power to refer to the
labour court as it was a step-in-aid for disposal of the
application under sub-section (1) of Section 17 of the Act.
Therefore the specified authority did not lack jurisdiction to
make a reference to the labour court. Accordingly, the reference
order does not suffer from jurisdictional error.”
Thus in M/s. Amar Ujala (supra) a Single Judge of the Allahabad
High Court has held that omission of words ‘such authority, as
specified by the State Government’ in sub-Section (2) of Section 17
of the Act of 1955 is not intentional and that the State
Government is empowered to delegate its powers under Section
17(2) of the Act of 1955. It is further held that the State
Government otherwise has general power of delegation in exercise
of administrative powers.
29. Thus the view taken by a Single Judge of the
Allahabad High Court in Amar Ujala (supra) appears to be
directly contrary to the view taken by this Court in All India
Reporter Private Limited (supra). It also appears that the
decision of the Allahabad High Court in Amar Ujala (supra) was
not brought to the notice of this Court while deciding All India
Reporter Private Limited (supra). However, there are two
reasons why I must fallow the judgment of this Court in All India
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Reporter Private Limited (supra). Firstly, it is judgment of the
Bombay High Court which is binding on me, whereas judgment
rendered by a Single Judge of the Allahabad High Court would
only have persuasive value. Secondly, the judgment of this Court
in All India Reporter Private Limited (supra) is rendered by
the Division Bench, whereas one in Amar Ujala (supra) is of
Single Judge of the Allahabad High Court. Therefore, the
judgment in All India Reporter Private Limited (supra) is
binding on this Court and is required to be followed as a precedent.
30. As observed earlier the present case is fully covered by
the judgment of this Court in All India Reporter Private
Limited (supra), which this Court is bound to follow. Following
the said decision, the References made by the Assistant
Commissioner of Labour, Aurangabad under the provisions of sub-
Section 2 of Section 17 of the Act of 1955 are required to be held as
not maintainable. Consequently, the Awards passed by the
Labour Court are liable to be set aside.
31. True it is that the issue of delegation of powers to make
reference under Section 17(2) of the Act of 1955 was not raised
before the Labour Court by the Petitioners nor has been raised in
the present petition. However it is a pure question of law and goes
to the root of the matter. Therefore notwithstanding absence of
pleadings, the same can always be considered and decided by this
court. The Apex Court, in its recent judgment in Saurav Jain &
Anr Vs. A. B. P. Design & Ors, 2021 SCC Online 552 has dealt
with the issue of permissibility of raising issues of law directly in
appeals and has held as under:
34. With regard to new grounds being raised before this Court in
a special leave petition under Article 136, we note that under
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Order 21 Rule 3(c) of the Supreme Court Rules 2013, SLPs are
to be confined to the pleadings before the court whose order is
challenged. However, with the leave of the Court, additional
grounds can be urged at the time of the hearing.
35. This Court in Bharat Kala Bhandar (P) Ltd. v. Municipal
Committee 14 dealt with a civil appeal where a contention had
not been raised in the suit or in the grounds of appeal before the
High Court, and was advanced before this Court for the first
time. Although the Court noted that the scope of the appeal
cannot be broadened at the instance of the parties, if a plea
raises a question of considerable importance, it can be
entertained by this Court. In a similar vein, this Court
in Vasant Kumar Radhakisan Vora v. Board of Trustees of the
Port of Bombay 15 , noted that pure questions of law which go to
the root of the jurisdiction in a case can be raised for the first
time in an appeal under Article 136 of the Constitution.
36. In Chandrika Misir v. Bhaiya Lal16, this Court was hearing
a special leave petition concerning the possession of parties over
the suit property which was the subject of the U.P. Zamindari
Abolition and Land Reforms Act (Act 1 of 1951). While
adjudicating on whether the suit was barred by limitation,
Justice DG Palekar, speaking for a two Judge bench, observed
that the civil court did not have jurisdiction to entertain the suit
at all. Although the plea of bar on jurisdiction had not been
raised in the courts below, the Court held that:
“6. It is from this order that the present appeal has been
filed by special leave. It is to be noticed that the suit had been
filed in a civil court for possession and the Limitation Act
will be the Act which will govern such a suit. It is not the case
that U.P. Act 1 of 1951 authorises the filing of the suit in a
civil court and prescribes a period of limitation for granting
the relief of possession superseding the one prescribed by the
Limitation Act. It was, therefore, perfectly arguable that if
the suit is one properly entertainable by the civil court the
period of limitation must be governed by the provisions of the
Limitation Act and no other. In that case there would have
been no alternative but to pass a decree for possession in
favour of the plaintiffs. But the unfortunate part of the whole
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case is that the civil court had no jurisdiction at all to
entertain the suit. It is true that such a contention with
regard to the jurisdiction had not been raised by the
defendant in the trial court but where the court is inherently
lacking in jurisdiction the plea may be raised at any stage,
and, it is conceded by Mr. Yogeshwar Prasad, even in
execution proceedings on the ground that the decree was a
nullity. If one reads Sections 209 and 331 of the U.P. Act 1 of
1951 together one finds that a suit like the one before us has
to be filed before a Special Court created under the Act
within a period of limitation specially prescribed under the
rules made under the Act and the jurisdiction of the ordinary
civil court is absolutely barred.”
(emphasis supplied)
37. In Most Rev. P.M.A. Metropolitan v. Moran Mar
Marthoma 17 as well, a three Judge bench of this Court
entertained an objection as to maintainability of the suit under
Section 9 of the CPC, despite the plea not having been raised
before the courts below. The Court observed that the plea of a
bar or lack of jurisdiction can be entertained at any stage, since
an order or decree passed without jurisdiction is non-est in law.
38. The position of law has been consistently applied even in
criminal proceedings under Article 136 of the Constitution.
In Masalti v. State of Uttar Pradesh 18 , the confirmation of the
death sentence of a number of accused persons by the High
Court was under challenge before this Court. Chief Justice
Gajendragadkar, speaking for a four judge Bench of this Court,
observed that:
“11. We are not prepared to accept Mr. Sawhney's
argument that even if this point was not raised by the
appellants before the High Court, they are entitled to ask us
to consider that point having regard to the fact that 10
persons have been ordered to be hanged. It may be conceded
that if a point of fact which plainly arises on the record, or a
point of law which is relevant and material and can be
argued without any further evidence being taken, was urged
before the trial court and after it was rejected by it was not
repeated before the High Court, it may, in a proper case, be
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permissible to the appellants to ask this Court to consider
that point in an appeal under Article 136 of the Constitution;
after all in criminal proceedings of this character where
sentences of death are imposed on the appellants, it may not
be appropriate to refuse to consider relevant and material
pleas of fact and law only on the ground that they were not
urged before the High Court. If it is shown that the pleas
were actually urged before the High Court and had not been
considered by it, then, of course, the party is entitled as a
matter of right to obtain a decision on those pleas from this
Court. But even otherwise no hard and fast rule can be laid
down prohibiting such pleas being raised in appeals under
Article 136.”
(emphasis supplied)
39. Based on the position of law, we find it just to allow the
appellant to raise the ground of jurisdiction before us. Allowing
the ground to be raised would not require the submission of
additional evidence since it is a pure question of law and strikes
at the heart of the matter. We shall now turn to the merits of this
argument.
The Objection of the counsels for the respondent-employees about
the issue of delegation not being raised before Labour Court
deserves rejection.
32. So far as the issue of delay in filing the present
petition, no doubt some of these petitions are filed after delay of 3
mong years. However it is not that the Petitioners acquiesced in
the decisions of the Labour Court. They did institute Writ Petition
No. 11646/2019 immediately after passing of award by the Labour
Court. Ideally the other petitions should also have been filed
contemporaneously. However since the issue involved in all
petitions is the same and since all petitions can be decided by a
common judgments, it would not be appropriate to segregate the
petitions by dates of filing and dismiss some of them on the ground
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of delay. Considering the fact that the Petitioners did file one of
the petitions timely, it cannot be stated that they are guilty of
latches.
33. The rest of the arguments on merits of the matters are
not required to be dealt with at this stage as References made by
the Assistant Commissioner of Labour are held to be faulty. Mr.
Sapkal has also relied upon the judgment of this Court in Sanjay
Shalikram Ingle Vs. Lokmat, 2010 (4) All M. R. 210 , in which
this Court was dealing with the issue of maintainability of
complaints filed under the provisions of Maharashtra Recognition
of Trade Unions and Prevention of Unfair Labour Practices Act,
1971 (for short ‘the Act of 1971’) for ascertainment of the claims to
wages under the Majithia Wage Board recommendations. While
holding that such complaint filed under the provisions of the Act of
1971 to be maintainable this Court held as under:
“These observations therefore clearly show that forum under
S.17 of the Working Journalist Act is available only when an
ascertained sum is to be recovered and not otherwise. Here,
first the classification of respondent newspaper and
categorization is essential and then only the wages and other
benefits relevant for petitioners can be determined. Petitioners
are praying for that determination and also for compensation
and interest for subjecting them to unfair labour practice. This
compensation can not be awarded to them in proceedings
under S. 17. In any case as S. 17 is not equivalent to S.33-C-2
of Industrial Disputes Act, no inquiry into any dispute as to
classification or categorization and annual turn over of the
respondent news paper is possible under it. The finding of
Industrial Court about availability of remedy under S.17 to
petitioners is unsustainable. It is obvious that theory of an
alternate efficacious remedy was/is not relevant at all.”
34. Thus having held that References made by the
Assistant Commissioner of Labour, Aurangabad are in
contravention of the provisions of sub-Section (2) of Section 17 of
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the Act of 1955, following the decision in Sanjay Shalikram
Ingle (supra) the remedy of filing complaint under the provisions
of the Act of 1971 would possibly be open for respondent-employees
in addition to the State Government itself making a Reference
under the provisions of sub-Section (2) of Section 17 of the Act of
1955.
35. Writ Petition No. 10774 of 2022 has been filed claiming
interest on the amounts awarded by the Labour Court. Since the
Awards are being set aside, there is no question of payment of any
interest. Therefore Writ Petition No. 10774 of 2022 is liable to be
dismissed.
36. Accordingly, writ petitions (except Writ Petition No.
10774 of 2022) are allowed. The awards passed by the Labour
Court are set aside. It shall be open to respondents-employees to
exercise such remedies for enforcement of their rights to claim
wages as per recommendations of Majithia Wage Board as may be
available under law. Writ Petition No. 10774 of 2022 is dismissed.
The amount deposited by petitioners in this Court shall be
withdrawn by them after a period of eight (08) weeks from today.
37. Rule is made absolute in above terms. Rule is dis-
charged in Writ Petition No. 10774 of 2022.
(SANDEEP V. MARNE)
JUDGE
Devendra/December-2022
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