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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
WRIT PETITION No.4816, 4792, 4802, 4904, 5080,
5085 & 5152 OF 2009.
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WRIT PETITION No. 4816/2009.
Sanjay Shalikram Ingle,
Vasant Nagar, June Babhulkheda,
Nagpur - 27. ....PETITIONER.
VERSUS
M/s. Lokmat, Proprietors
M/s. Lokmat Newspapers Private Ltd.,
Lokmat Bhavan, Wardha Road, Nagpur
through its Managing Director. ....RESPONDENT.
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WRIT PETITION No. 4792/2009.
Shalikram Shriram Waghade,
c/o. Shri Fagoji Neware,
Near Mata Mandir, Marar Toli,
Ramnagar, Nagpur. ....PETITIONER.
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VERSUS
M/s. Lokmat, Proprietors
M/s. Lokmat Newspapers Private Ltd.,
Lokmat Bhavan, Wardha Road, Nagpur
through its Managing Director. ....RESPONDENT.
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WRIT PETITION No. 4802/2009.
Fulchand Baburao Gedam,
C/o. Shri Ramchandra Waghmare,
Plot no.54, Howrah Peth, Opp. Hatgade
Kirana Stores, Near house of Shri
Satpute, Nagpur - 27. ....PETITIONER.
VERSUS
M/s. Lokmat, Proprietors
M/s. Lokmat Newspapers Private Ltd.,
Lokmat Bhavan, Wardha Road, Nagpur
through its Managing Director. ....RESPONDENT.
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WRIT PETITION No. 4904/2009.
Bharat Vithalrao Pimple,
C/o. Shri Ramesh Pimple,
Near Priya Fabrication, Plot no.63,
Gedam Layout, IC Chowk,
Hingna Road, Nagpur. ....PETITIONER.
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VERSUS
M/s. Lokmat, Proprietors
M/s. Lokmat Newspapers Private Ltd.,
Lokmat Bhavan, Wardha Road, Nagpur
through its Managing Director. ....RESPONDENT.
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WRIT PETITION No. 5080/2009.
Dnyaneshwar Haribhau Kadu,
C/o. Shri Ramesh Haribhau Kadu,
Trimurti Nagar, Hsg. Board Colony,
Qr.No. LIG 16/2, Ring Road, Nagpur. ....PETITIONER.
VERSUS
M/s. Lokmat, Proprietors
M/s. Lokmat Newspapers Private Ltd.,
Lokmat Bhavan, Wardha Road, Nagpur
through its Managing Director. ....RESPONDENT.
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WRIT PETITION No. 5085/2009.
Ramesh Balkrishna Marwadi,
Takiya, Dhantoli
Nagpur - 440 012. ....PETITIONER.
VERSUS
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M/s. Lokmat, Proprietors
M/s. Lokmat Newspapers Private Ltd.,
Lokmat Bhavan, Wardha Road, Nagpur
through its Managing Director. ....RESPONDENT.
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WRIT PETITION No. 5152/2009.
Prabhakar Rambhau Choudhari,
c/o. Shri Prakash Vithalrao Lambat,
Vishram Apptt., Near Rajabaksha
Hanuman mandir, Medical Chowk,
Nagpur. ....PETITIONER.
VERSUS
M/s. Lokmat, Proprietors
M/s. Lokmat Newspapers Private Ltd.,
Lokmat Bhavan, Wardha Road, Nagpur
through its Managing Director. ....RESPONDENT.
-----------------------------------
Mr. S.D. Thakur, Advocate for Petitioners.
Mr. V.P. Marpakwar, Advocate for Respondent.
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CORAM : B.P. DHARMADHIKARI , J.
Date of reserving the Judgment. - 17.02.2010.
Date of Pronouncement. - 12.03.2010.
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JUDGEMENT.
1. Challenge in these Writ Petitions filed under Articles 226 read with
227 of the Constitution of India is to common order dated 21/7/2009 passed
below Exh. 2 and 12 by the Industrial Court at Nagpur in ULP Complaints
Nos.209 to 215 of 2009 filed under Section 28 read with schedule IV items 7
and 9 of Maharashtra Recognition of Trade Unions and Prevention of Unfair
Labour Practices Act, 1971, (hereinafter referred to as “the MRTU Act” for
short). Industrial Court has held that in previous litigation between parties the
entitlement to permanency was already settled and hence, subsequent ULP
Complaints which only sought its execution needed to be filed only under
Section 50 of MRTU Act. It therefore dismissed ULP Complaints No. 209 to 215
of 2009 as not maintainable and as time-barred. Hence with the consent of
parties, Rule is made returnable forthwith and Writ Petitions are heard finally.
2. Undisputed facts in relation to previous litigation between parties
reveal that by the common order dated 12.02.2002 the Industrial Court
allowed seven earlier ULP complaints filed on 19/10/1996 under Section 28 of
MRTU Act against present respondent. Those seven complainants are petitioners
in these seven writ petitions before this Court. They had claimed permanency
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and consequential benefits as per provisions of Model Standing Orders after
completion of 240 days contending that by not extending to them the said
benefits, the respondent – employer had indulged in unfair labour practice
falling under Item 9 of Schedule IV of Act No. I of 1972. Said item makes failure
to implement award, settlement, agreement etc., an unfair labour practice. The
complainants there had filed applications under Section 30(2) of MRTU Act
claiming as interim relief the minimum wages as per provisions of Minimum
Wages Act. Those applications were rejected on 29.04.1998. Thereafter, the
complainants sought amendment in those ULP Complaints pointing out
termination of their services with effect from 01.05.1998. The respondent/
employer filed written statement and denied relationship of employer and
employee. It was stated that all complainants were employees privately engaged
by the officers in the employment of the employer and on some occasions they
could have visited the establishment in connection with domestic work of said
officer. It was contended that the respondent never recruited any such
complainant. It was further stated that for filling in the posts with it, the
vacancies are advertised, applications are invited and after interview, the
successful candidate is given appointment order in writing. All this procedure
was not followed in the case of petitioners and none of them was in fact in
employment of present respondent. With this defence, the petitioner filed
applications for dismissal of complaint on the ground that as the employer and
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employee relationship was in dispute, the Industrial Court could not have
entertained ULP Complaint at all. That application was rejected and when
matter came before this Court, on 27.11.2002 in view of judgments of the
Hon’ble Apex Court in the case of Vividh Kamgar Sabha vs. Kalyani Steels Ltd.,
reported at 2001 (1) SCC 381, and as also judgment of Division Bench of this
Court in the case of Hindustan Coca Cola Bottling vs. Bhartiya Kamgar Sena,
reported at 2002 I LLJ 380, the learned Single Judge allowed all those petitions.
The complainants then filed LPA No.172 of 2003 to 178 of 2003 and the
Division Bench of this Court by judgment dated 13.07.2007 allowed those
Letters Patent Appeals and restored the matter back before the Single Judge for
scrutiny of remaining controversy. This judgment of Division Bench was
challenged before the Hon’ble Apex Court but then the Hon’ble Apex Court did
not grant leave. After said rejection by the Hon. Apex Court, a review was filed
before the Division Bench of this Court and rejection of that review was also
assailed in SLP again, which came to be rejected. In these circumstances, those
writ petitions were considered by me in 2009 (2)Mh.L.J. 369 – Lokmat
Proprietors Vs.Prabhakar Rambhauji Choudhari. I did not find any jurisdictional
error or perversity in the findings reached by the Industrial Court and hence that
challenge by the employer was dismissed on 10/10/2008. The employer then
filed LPA before this Court and then an SLP before the Hon’ble Apex Court. Said
SLP is stated to be pending.
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3. On 8/6/2009 or thereabout the petitioners filed present ULP
Complaints 209 to 215 of 2009 and asked for wages as also other benefits
according to the provisions of various awards like Palekar award, Bachawat
award and Manisana award applicable to working journalists and claimed that
failure to extend the same to them constituted an unfair labour practice. By
other prayer, in addition to amount determined as above, they also sought
compensation at 33% of that amount or interest thereon at 18% (which ever
higher) as they are made victims of an unfair labour practice. In short the
grievance after permanency is in respect of benefits and salary/ salaries in
appropriate pay scale as per their occupation as specified in different awards
governing service conditions in news paper industry. Though no particular
amount as such is claimed in complainants, vide applications at Exh.2 under
S.30(2) for grant of interim relief, directions to employer to pay 75% of the
amount claimed in complaints during its pendency was sought. This application
was replied on 10/7/2009 by respondent/employer pointing out that ULP
Complaints were for implementation of order of the Industrial Court dated
12/2/2002 which already held complainants entitled to permanency after
completion of 240 days of service “with all consequential benefits”. Hence item
7 or item 9 were not at all applicable and as benefits needed to be calculated
and recovered, recourse to provisions of S. 50 of the MRTU Act was only
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permitted. They also pointed out that S. 28 could not be read as substitute of S.
50 MRTU Act as both prescribed different periods of limitation. They also
pointed out the forum of Labour Court made available for such recoveries by S.
17 of the Working Journalists and Other Newspaper Employees ( Conditions of
Service & Miscellaneous Provisions) Act, 1955 i.e., “Working Journalists Act”
for short. They pointed out that the details of wages worked out by employee
were not placed on record and as the claim was for period prior to 1/5/1998, it
was barred by limitation. With all most same plea, the employer also filed
separate applications below Exh.12 for dismissal of ULP Complaints. On
18/7/2009 petitioners filed their reply to Exh. 12 denying all challenges and
contending that unfair labour practice was occurring day to day and their
complaints were not time barred. Impugned common order is passed in this
background below these Exhs. 2 and 12 by the Industrial Court. It may be
stated here that though in Ex. 12 contention that Working Journalists Act is a
special Act and hence, MRTU Act or remedy under it stands impliedly repealed
has been raised, before this Court no such argument has been advanced.
4. Shri Thakur, learned counsel has argued that entire approach of
the Industrial Court in accepting the objection of employer and holding that ULP
Complaints ought to have been filed under S. 50 of MRTU Act is unsustainable
on facts as also law. First as per annual turn over of the newspaper, its
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classification under the relevant award needs to be ascertained and then the
corresponding wages or benefits prescribed therefor can be extended to the
complainants. Till the categorization or classification is so determined, the
entitlement of petitioners can not crystallize and hence, exercise required to be
undertaken by the Industrial Court is of adjudication of basic facts from which
said entitlement emerges. After declaration of permanency in earlier round, the
petitioners become entitled to benefits of various awards holding the field as per
Working Journalists Act and as those awards have not been extended to them,
item 9 of Sch. IV of MRTU Act has been rightly invoked. He states that only
rough calculations are made by the petitioners because of various disputed
questions of facts involved and said calculations are filed as a document which
needs to be proved. All these calculations are denied by employer. However, the
plea on limitation is not countered by it. As the awards are in force and are not
being applied to petitioners, it is case of continuous unfair labour practice. To
illustrate the scope of S. 50 of MRTU Act, continuous cause and right approach
towards issue of limitation, he relied upon certain judgments and I will refer to
them at appropriate juncture.
5. Shri Marpakwar, learned counsel on the other hand has supported
the impugned order by urging that it is not the case of continuous cause but of
execution of judgment of Industrial Court dated 12/2/2002 which as yet has not
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attained finality. He invites attention to ULP Complaints as filed in an effort to
demonstrate that only exercise of calculation is envisaged and no dispute about
classification or categorization is even alleged therein. Support is taken from the
document i.e,. charts of calculations filed by the petitioners/complainants to
show the amounts due and recoverable. The MRTU Act itself makes a special
provision for such calculations and hence, only forum under S. 50 is open
therefor. Judgment of the Hon’ble Apex Court in Rajasthan State Road Transport
Corp. vs. Zakir Hussain reported at 2005 III CLR 524 is pressed into service to
urge that said computation can not be done in any other way. As time limit
prescribed therefor had already expired, the ULP Complaints as filed have been
rightly dismissed by the Industrial Court.
6. Industrial Court has found that entitlement of petitioners to
regularization and consequential benefits was already declared by competent
court on 12/2/2002 and only exercise of calculations of amounts in pursuance
thereof under S. 50 was left. It found that complainants had also placed on
record the statement of amounts due to them as a document and it supported
contention that only arithmetical exercise was called for. It found that S. 28
MRTU Act prescribed limitation of 90 days and as cause had accrued on
12/2/2002, ULP Complaints filed in 2009 were after considerable delay. It also
expressed that though pending litigation may be a good excuse, delay does not
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get condoned automatically. It held that a special forum under S. 17 of the
Working Journalists Act was also available and hence Complaints before it were
not maintainable. It concluded that alternate & efficacious remedy under S. 50
of MRTU Act or S. 17 of Working Journalists Act is available to Complainants
and hence, ULP Complaints were not tenable.
7. In AIR 1958 S.C. 507 – 1958-I-LLJ 527 “Kasturi and Sons (Private)
Ltd. v. N. Salivateswaran“relied on by Shri Thakur, learned counsel while
considering the validity and scope of S.17 of the Working Journalists Act,
Hon’ble Apex Court holds that the employee’s claim against his employer
which can form the subject matter of an inquiry under S. 17 must relate to
compensation awardable under S. 4 , gratuity awardable under S. 5 or wages
claimable under the decisions of the Wage Board. If the employee wishes to
make any other claim against his employer, that would not be covered by S. 17.
As the marginal note shows, the section deals with the recovery of money due
from an employer. The section provides for a procedure to recover the amount
due from an employer, not for the determination of the question as to what
amount is due. The condition precedent for the application of S. 17 is stated to
be a prior determination by a competent authority or the Court of the amount
due to the employee from his employer. Hon’ble Apex Court holds that it is only
if and after the amount due to the employee has been duly determined, the
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stage is reached to recover that amount and it is at this stage that the employee
is given the additional advantage provided by S. 17 without prejudice to any
other mode of recovery available to him. The observations clearly show the ratio
& learned Member of Industrial Court could not have given importance to
factual matrix. Law laid down is very clear and the Hon’ble Apex Court
observes :–
“9. In this connection, it would be relevant to remember
that S. 11 of the Act expressly confers the material powers
on the Wage Board established under S. 8 of the Act.
Whatever may be true nature or character of the Wage
Board – whether it is a legislative or an administrative
body – the legislature has taken the precaution to enact
the enabling provisions of S. 11 in the matter of the said
material powers. It is well known that, whenever the
legislature wants to confer upon any specified authority
powers of a civil Court in the matter of holding enquiries,
specific provision is made in that behalf. If the legislature
had intended that the enquiry authorised under S. 17
should include within its compass the examination of the
merits of the employee’s claim against his employer and a
decision on it, the legislature would undoubtedly have
made an appropriate provision conferring on the State
Government or the specified authority the relevant powers
essential for the purpose of effectively holding such an
enquiry. The fact that the legislature has enacted S. 11 in
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regard to the Wage Board but has not made any
corresponding provision specified authority under S. 17
lends strong corroboration to the view that the enquiry
contemplated by S. 17 is a summary enquiry of a very
limited nature and its scope is confined to the
investigation of the narrow point as to what amount is
actually due to be paid to the employee under the decree,
award, or other valid order obtained by the employee
after establishing his claim in that behalf. We are
reluctant to accept the view that the legislature intended
that the specified authority or the State Government
should hold a larger enquiry into the merits of the
employee’s claim without conferring on the State
Government or the specified authority the necessary
powers in that behalf. In this connection, it would be
relevant to point out that in many cases some complicated
questions of fact may arise when working journalists
make claims for wages against their employers. It is not
unlikely that the status of the working journalist, the
nature of the office he holds and the class to which he
belongs may themselves be matters of dispute between the
parties and the decision of such disputed questions of fact
may need thorough examination and a formal enquiry. If
that be so it is not likely that the legislature could have
intended that such complicated questions of fact should be
dealt with in a summary enquiry indicated by S. 17.
10. Section 17 seems to correspond in substance
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to the provisions of S. 20, sub-s. (1) of the Industrial
Disputes (Appellate Tribunal) Act, 1950, which has now
been repealed. Under this section, any money due from an
employer under any award or decision of an Industrial
Tribunal may be recovered as arrears of land revenue or
as a public demand by the appropriate Government on an
application made to it by the person entitled to the money
under that award or decision. It is clear that the
proceedings under S. 20, sub-s. (1) could commence only
if and after the workman had obtained an award or
decision in his favour. We are inclined to think that the
position under S. 17 is substantially similar.
11. In this connection we may also refer to the
provisions of S. 33-C of the Industrial Disputes Act (14 of
1947). Sub-section (1) of S. 33-C has been added by Act
36 of 1956 and is modelled on the provisions of S. 17 of
the present Act. Section 33-C, sub-s. (2), however, is more
relevant for our purpose. Under S. 33-C, sub-s. (2), where
any workman is entitled to receive from his employer any
benefit which is capable of being computed in terms of
money, the amount at which such benefit may be
computed may, subject to any rules made under this Act,
be determined by such Labour Court as may be specified
in this behalf by the appropriate Government, and the
amount so determined should be recovered as provided for
in sub-s. (1). Then follows sub-s. (3) which provides for
an enquiry by the Labour Court into the question of
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computing the money value of the benefit in question. The
Labour Court is empowered under this sub-section to
appoint a commissioner who shall, after taking such
evidence as may be necessary, the Labour Court shall
determine the amount after considering the report of the
commissioner and other circumstances of the case. These
provisions indicate that, where an employee makes a
claim for some money by virtue of the benefit to which he
is entitled, an enquiry into the claim is contemplated by
the Labour Court, and it is only after the Labour Court
has decided the matter that the decision becomes
enforceable under S. 33C (1) by a summary procedure.”
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.
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17 to petitioners is unsustainable. It is obvious that theory of an alternate
efficacious remedy was/is not relevant at all.
8. The next aspect to be scrutinized is that of limitation and continuous
cause of action. S.28 as also S.50 of the MRTU Act prescribe different periods of
limitation and both also enable the Labour or the Industrial court to condone
delay. Paragraph 2 of the ULP Complainants show the contention that
respondent newspaper establishment is covered by the provisions of the
Factories Act, Industrial Disputes Act, Industrial Employment Standing orders
Act and Model Standing Orders framed thereunder. Paragraph 3 shows claim of
entitlement to provisions of the Working Journalist Act and benefits accruing to
newspaper employees under various awards like Palekar award, Manisana
Award and Bachawat Award etc. Bahawat Award classifies the newspaper
establishments in para 11 of Section II of Part I of Chapter IX of the Report on
the basis of the gross revenue into 10 classes. Ascertaining whether their
advertisement revenue is less or more than 45 per cent, of its gross revenue is
also essential for this purpose. In 2009(1) CLR 93- Mukund Nana Edke
Vs.Dainik Gavkari, learned Single Judge while considering challenge to
rejection of petitioner’s application u/s 33 C(2) claiming monetary benefits in
view of the Award passed by Justice Manisana Commission has found that the
jurisdiction of labour court u/s 33-C(2) is very limited and is in the nature of
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execution proceeding. Unless a party has a pre-existing or pre-adjudged right the
proceedings u/s 33-C(2) are not tenable and as claim made by petitioner there
was not adjudged by any competent authority, labour court was right in
rejecting that application. In 2009(3) ClR 782- Navbharat Press Employees
Union Vs. State of Maharashtra, Labour Industries and Energy Department and
others, conciliation officer declined to refer the demand for adjudication holding
that the dispute was only in respect of implementation of Manisana Award and
it did not fall within the ambit of law and could not be admitted in conciliation.
Division Bench of this Court held that the dispute was as regards entitlement of
the members of the petitioner union to higher wages on the basis that employer
newspaper fell in Class II and not in Class IV of Clause 6 of the Manisana Award
and hence basic question which to be decided was about class in which it fell.
It would involve a detailed investigation as regards gross revenue and was not a
case of mere implementation or execution of the said Manisana Award. Since in
fact industrial dispute existed in this case, Division Bench found that the
conciliation officer could not have refused to admit it in conciliation. In facts
before me entitlement of petitioners to permanency only with consequential
benefits has been declared. That may only entitle them to benefits of these
awards but then their placement in particular category or class qua the service
conditions as working journalists in relation to respondent newspaper needs to
determined. It is not the case where employer has fixed them in particular scale
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in purported extension of these awards and a wrong implementation is only
under attack. The case of petitioners is of total non-implementation and of
continuous nature. Failure to extend the award does constitute an unfair labour
practice under item 9 of Sch. IV of MRTU Act.
9. Whether in this situation S. 50 of MRTU Act offers a remedy ? In
2004 I CLR 145– Vaibhav Laxman Suravkar vs. Ultra Drytech Engineering Ltd.
relied on by the petitioners, the grievance was of non-compliance of the order
of Industrial Court directing the respondents to pay the wages to the
complainants. He filed application u/s 50 before Industrial Court for issuance of
a recovery certificate & employer contended that application u/s 50 was not
maintainable as the exact amount be payable is not reflected in the order.
Entitlement of the workmen was not in dispute, period and amount of wages
was also not in dispute and what remained was a simple arithmetic calculation.
Learned Single Judge held that the Industrial Court erred in holding that
provisions of section 50 would not be attracted. A comparison of the S. 33C-2-
and S. 50 undertaken there demonstrated the difference between the two
provisions. S. 50 applies where the money is due to the employee from an
employer under an order passed by the Court under Chapter VI of the State Act
while Section 33C(1) deals with a situation where the money due to an
employee is under a settlement, award or under Chapter VA or VB of the
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Central Act. The industrial court had noted in its order that there was no
effective challenge to the statement of computation which had been submitted
on behalf of the workmen. The amount was not disputed, nor was the mode of
calculation in dispute, The workmen had, not approached the industrial court in
proceedings under Section 50 for an adjudication of their entitlement. Their
entitlement had already been adjudicated upon in the order of 22nd June, 2001
passed in the complaint of unfair labour practices which was affirmed by this
Court. This Court held that all that remained to be done was a simple arithmetic
calculation. This court also noted that Section 50 is pari materia with Section
33-C(1) of the Industrial Disputes Act, 1947, save and except that (i) under the
former the amount due is pursuant to an order of the Court under Chap. VI
while under the latter it is under a settlement award or under Chapter VA or VB
and (ii) under the former the computation is done by the labour court while
under the latter by the appropriate government. These two differences are held
not to restrict the scope of Section 50 in comparison with Section 33C(1) or
indicated that a Labour Court under Section 50 has a lesser power than the
appropriate government. An arithmetical exercise is held no more alien to the
court under Section 50 than it is to the appropriate government under Section
33C(1). Following observations in para 16 are important here:–
“16. Now, there can be no dispute about the principle that
under Section 50, it would not be open to the Labour Court
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or the Industrial Court to adjudicate upon an entitlement
for the first time and the statement of law in the judgment
in Ramanathan’s case (supra) is correct so far as it
reiterates that position. Ramanathan’s case does not lay
down a wider principle and indeed, it cannot be so
construed having regard to the law laid down by the
Supreme Court. Section 50 refers to a situation where
money is due to an employee from an employer under an
order passed by the Court under Chapter VI. If the
entitlement of the employees has already been adjudicated
upon and a simple arithmetical calculation is all that is
required to be made, the workmen are entitled to move the
Industrial Court under Section 50. The workman do not
forsake their remedy under Section 50 merely because an
arithmetical calculation is still to be made and was not
made in the order of which enforcement is sought. To hold
that Section 50 would not apply merely because in the
original order of the Labour or Industrial Court, a final
computation has not been made would be to render the
salutary provision of Section 50 nugatory. Such an
interpretation cannot be adopted particularly since it is
contrary to the plain terms of Section 50 and the
interpretation placed on a similar provision by the Supreme
Court. To recapitulate, therefore, the provision of Section
50 of the Act can be availed of in a case such as the present
where the entitlement of the workmen is not in dispute,
where the period for which wages had to be paid was not in
dispute, where the amount of wages is not in dispute and
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the only surviving question in that regard was an
arithmetical calculation of the amount due and payable.”
10. In judgment in LPA reported at 2005(1) Mah.L.J. 279- Ultra Drytech
Engineering Ltd vs. Vaibhav Laxman Suravkar against the above judgment the
Division Bench of this Court has maintained this view and I find its following
observations important :–
“The legislative intention disclosed by sections 33-C(1) and
33-C(2) is fairly clear. Under section 33-C(1) where anymoney is due to a workman from an employer under a
settlement or an award or under the provisions of Chapter
V-A, the workman himself, or any other person authorisedby him in writing in that behalf, may make an application
to the appropriate Government to recover the money due tohim. Where the workman who is entitled to receive from
the employer any money or any benefit which is capable of
being computed in terms of money, applies in that behalfthe Labour Court may under section 33-C(2) decide the
questions arising as to the amount of money due or as to
the amount at which such benefit shall be computed.
Section 33-C(2) is wider than section 33-C(1). Matters
which do not fall within the terms of section 33-C(1) may,
if the workman is shown to be entitled to receive the
benefits, fall within the terms of section 33-C(2). If the
liability arises from an award, settlement or under the
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provisions of Chapter V-A, or by virtue of a statute or a
scheme made thereunder, mere denial by the employer may
not be sufficient to negative the claim under section 33-
C(2) before the Labour Court. Where however the right to
retrenchment compensation which is the foundation of the
claim is itself a matter which is exclusively within the
competence of the Industrial Tribunal to be adjudicated
upon a reference, it would be straining the language of
section 33-C(2) to hold that the question whether there
has been retrenchment may be decided by the Labour
Court.
15. The aforesaid three judgments of the Supreme
Court of India though considers the provisions of section
33-C(1) but as we have indicated above, the same are in
pari materia with section 50 of the M.R.T.U. and P.U.L.P.
Act, 1971 and therefore the law laid down by the Supreme
Court in the aforesaid cases will apply with equal force
while construing the provision of section 50 of the MRTU
and PULP Act, 1971. Apart therefrom, the aforesaid
judgments, in the case of U.P. Electric Supply Co. Ltd., vs.
R. K. Shukla and another, etc., the Supreme Court itself
has compared the provisions of section 33-C (1) and (2)
with section 6-H of the U.P. Industrial Disputes Act and has
come to the conclusion that under section 6-H of the U.P.
Industrial Disputes Act an amount can be computed and
the necessary relief can be granted by the Industrial Court.
In our view thus the comparison of section 50 of the
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M.R.T.U. and P.U.L.P. Act, 1971 with the provisions of
section 33C(1) leaves no manner of doubt that the
jurisdiction of the Industrial Court under section 50
permits simple arithmetic calculation for the purpose of
granting effective relief to the party. Undoubtedly, under
section 50 of the M.R.T.U. and P.U.L.P. Act, 1971 the
authorities are not empowered to determine the rights
between the parties but once the rights are determined by
an adjudication then, it is open to the Industrial Court to
grant relief under section 50 of the M.R.T.U. and P.U.L.P.
Act, 1971 even though under the said section it possess
only executory jurisdiction. We are also of the view that
section 50 of MRTU and PULP Act, 1971 is provided with a
view to enable a party to have recourse to an expeditious
remedy. We are therefore of the view that we must prefer
an interpretation which advances the object of the Act
rather than defeat the same.”
11. The remedy under Section 50 of MRTU Act is available only to
recover the past dues. Compensation or interest sought by the petitioners as
penalty for their victimization can not be allowed thereunder. Moreover the
classification of respondent establishment is also not possible under it. The
respondent has not expressly accepted the calculations of petitioners and it
appeared form arguments that dispute about classification of newspaper is also
yet not finally settled. Thus entitlement of petitioners to an ascertained sum is
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25
possible only after proper classification and their fixation in relevant wage
structure. Thereafter only the question of simple arithmetical exercise will arise
and not till then. When jurisdiction under Section 50 of MRTU Act is narrower
than one under Section 33-C-2 of Industrial Disputes Act, it follows that dispute
as to entitlement under a particular Award is cognizable only under item 9 of
Schedule IV thereof. Partial implementation or the wrong implementation are
the facets of same unfair labour practice viz. failure to implement award,
settlement or agreement under item 9. The learned member of the Industrial
Court is therefore in error in holding that the entitlement of petitioners i.e.,
Complainants before it was completely adjudicated and only simple calculations
were to be performed. It also overlooked the fact that the benefits of award can
be declined to even a permanent or regularized workman or there may be
complaints of incomplete or wrong implementation and victim has to invoke
jurisdiction under Section 28 r/w item 9 of Schedule IV of MRTU Act. He can
not seek declaration & direction under Section 50 in that respect. Observations
of the Hon’ble Apex Court in Rajasthan State Road Transport Corp. vs. Zakir
Hussain (supra) to buttress the contention that when Act creates an obligation
and enforces the performance in a specified manner, said performance can not
be enforced in any other manner is therefore is not relevant here. Hon’ble Apex
Court has made those observations while holding that a civil suit challenging
termination by a daily wage conductor was not tenable because of Industrial
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Disputes Act.
12. Section 50 of MRTU ACT enables recovery of money due from
employer but that application is required to be moved within one year from the
date on which it became due. If the Court finds that application could not be
moved within one year for sufficient cause, it can entertain it even after said one
year. Section 28 thereof enables the victim of unfair labour practice to move
Labour or Industrial Court within 90 days of the occurrence of such unfair
labour practice. If good and sufficient reasons are shown, the Court can
entertain a complaint filed after said period of 90 days also. Here it is already
found that recourse to Section 50 of MRTU Act is not possible. In Shankar
Mahadeo Charpe vs. S.S.H. Quazi – 1984 Lab.I.C. 948, relied upon by the
petitioners the learned Single Judge of this Court has held that the filing of
application for condonation of delay along with belated ULP Complaint as per
regulation 101 of the Industrial Court Regulations, 1975 framed under MRTU
Act is not mandatory. In 1984 Lab.I.C. 1721–Regional Manager, MSRTC,
Nagpur vs. Regional Secretary, MSRT Kamgar Saghatana, relied upon by
petitioners, the Division Bench of this Court held that failure to implement a
settlement includes even a partial failure to implement a particular term of the
settlement. The settlement gave assurance of absorption to employees and
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Division Bench has observed that the employees had no other remedy but to
invoke item 9 of Sch. IV to enforce that right. The right is held to be enforceable
so long as the settlement remains in force and binding on parties. Language of S.
30 of MRTU Act is looked into in paragraph 9 to note that it contemplated two
types of occurrences of unfair labour practice. The word “has engaged in” is
found to contemplate occurrence of unfair labour practice once for all and only
the effect continues to flow therefrom. The other phrase “is engaging in” is held
to denote occurrence of unfair labour practice which is of continuing or
recurring nature. The relief claimed by complainants there was found to be in
relation to unfair labour practice of recurring nature and that unfair labour
practice was found to recur so long as the relevant term of the settlement
remained un-implemented. It relies upon the Full Bench judgment of Hon’ble
Gujrat High Court in AIR 1977 Guj 37 “Textile Labour Association v. Ashok Mills”
on Bombay Industrial Relations Act (11 of 1947), Section 79 (as amended in
1966) and Section 46(5). Hon’ble Gujrat High Court holds that limitation bars
only a remedy but does not extinguish the right. In any industrial context so
long as an illegal change was continued and recurring month to month, the
Legislature could never have intended to deny the peaceful remedy in civil
jurisdiction to the affected employee so that the illegal change can be obliterated
and original industrial conditions in important matters in Schedule II would be
restored by the Labour Court. Said High Court held that in the cases of wage
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award or payments of the amenities month to month, the question of making an
illegal change would arise every month, when the wages in the sense of basic
wages or value of amenities would be refused by the employer. The employer
can choose to withdraw that illegal change even voluntarily at any time and
then there would be no grievance. It is only when the employer would persist in
his illegal change that the employees would have to resort to the Labour Court
for getting a decision about the illegal change and an order of its withdrawal.
Therefore, in the context of such recurring obligations, the term making of an
illegal change could never have same meaning of change made once for all so
that what continues is only its effect in the context of such recurring obligations
to pay month to month the wages or value of such amenities. The illegal change
would be made afresh every month when the employer refuses to carry out that
continuous obligation. In MSRTC Vs. Premlal Gajbhiye–2003 (4) Mah.L.J. 1025,
Full Bench of this High Court relied upon this Division Bench and also Full
Bench of Gujrath and concluded that “27.In the case in hand as already observed
above, the unfair labour practice by the appellants in continuing the denial of the
benefits under Clause 49 of 1956 settlement to the respondents is of recurring
nature and till and until such benefits are given, it will continue to recur and,
therefore, there is no substance in the contention of the appellants that the
complaints were barred by Law of Limitation.”
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13. Perusal of ULP Complainants as filed here shows that in paragraph
19 it is pleaded that after High Court judgment dated 10/10/2008 it was
necessary to wait to find out whether it is further challenged and there is prayer
to condone the delay, if any. Without prejudice, it is also pointed out that non
payment of wages as per the applicable Awards is a continuing wrong and hence
no limitation applied. It is apparent that looking to the nature of grievance
made, the cause is continuing one and hence, bar of limitation was/is not
attracted at all. Even assuming that the complaints were barred by limitation,
as held by the Industrial Court, it ought to have given an opportunity to them
for explaining the delay. Admittedly no such opportunity is given to the present
petitioners. The complaints as filed are not barred by limitation at all. The
finding of Industrial Court in that respect is therefore not sustainable and
deserves to be quashed & set aside.
14. The Complainants are complaining of failure on part of employer
respondent to extend to them the service conditions as per award and that
grievance is squarely covered only under item 9 of Schedule IV of the MRTU Act.
Necessary declaration of indulgence in unfair labour practice, direction to
withdraw it with appropriate positive direction are all possible only in ULP
Complaint under Section 28 r/w S.30 thereof. Prayers made and relief sought
by present petitioners is not envisaged under Section 50. In any case, in
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present set of facts particularly when recourse was to welfare provisions and
non-receipt of wages or benefits as per Awards in force was not in dispute (as
defence of the employer was only of arithmetical calculations), the Industrial
Court could not have refused to exercise narrower jurisdiction U/S 50 of the
MRTU Act found available by it as its larger jurisdiction U/S 28 r/w Section 30
was already invoked. Dismissal of the ULP Complainants themselves in such
situation on such technical ground was not at all warranted. Even if its view on
the controversy is presumed to be correct, still it should have seen that it was
open to it to grant relief under appropriate jurisdiction and it was duty bound
to exercise that jurisdiction in the interest of weaker section of the society.
15. Thus the common orders dated 21/7/2009 passed below Exh. 2 and
12 by the Industrial Court at Nagpur in ULP Complaints 209 to 215 of 2009 are
quashed and set aside. Application at Exh. 12 filed by the respondent employer
in all matters for their dismissal are rejected. Said ULP Complainants are
restored back to file for further consideration as per law. Writ petitions are
accordingly allowed. But in the circumstances of the case, there shall be no
order as to costs.
JUDGE
dragon
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