CRIMINAL MISCELLANIOUS No.12876 OF 2004
M/S BENNET COLEMAN & CO LTD & ORS--------Appellants
Versus
STATE OF BIHAR---------------------------Respondent
with
Cr.Misc. No.14046 oF 2004
M/S TIMES PUBLISHING HOUSE LTD. THRU. D.K.JAIN &
ORS------------------------------------Appellants
Versus
STATE OF BIHAR & ANR-------------------Respondents
with
Cr.Misc. No.14344 oF 2004
M/S EXCEL PUBLISHING HOUSE LTD. THRU. ANAND VARDHAN
SINGH----------------------------------Appellant
Versus
THE STATE OF BIHAR & ANR---------------Respondents
with
Cr.Misc. No.14624 oF 2004
M/S PEARL PRINTWELL LTD.LAXMI APARTMENT---Appellant
Versus
STATE OF BIHAR & ANR--------------------Respondents
*******
FOR THE PETITIONERS : M/S Chakradhari Sharan
Singh,Amit Kumar Singh,
Praveen kumar, Alok
Kumar Singh & S.H. Khan,
For the State : M/s Raj Ballabh Singh &
Murli Dhar, APPs
*******
P R E S E N T
THE HON’BLE MR. JUSTICE AKHILESH CHANDRA
Akhilesh Chandra, J. Heard learned counsels representing the
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petitioners in all the four cases and learned Additional
Public Prosecutors for opposite party.
2. All these four cases have been filed
under Section 482 of the Code of Criminal Procedure
seeking quashing of order dated 06th February, 2004
passed in Complaint Case no. 322 M of 2004 by the
Chief Judicial Magistrate, Patna, taking cognizance
against the petitioners for the offences under Sections
25(U) and 29 of the Industrial Dispute Act, 1947 for
alleged violation of the provisions under Section 18(3)
and Sl. 13 of Schedule 5 B of the said Act, that is,
committing unfair labour practice and breach of
settlement on Award. The case was transferred for trial
to the Court of Sri Sanjay Kumar Singh, Judicial
Magistrate, 1st Class, Patna.
3. It is admitted fact that the complaint was
filed by Opposite Party no.2, Labour Commissioner,
Patna, who had earlier issued letter no.4198 dated 27th
August, 2003 against the petitioners relating to
implementation of the recommendation of the Manisana
Wage Board Award but in reply to the said letter the
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Management explained vide its letter dated 01st
September, 2003 that as per recommendation of the
Wage Board the Journalists were being paid wages as
per Class-II whereas non-journalist employees were paid
the wages of Class- VI and as such the same was a
violation of Manisana Wage Board Award and as such
they have not implemented the provisions of Part-III,
Chapter-I, Clause 2(3) of Manisana Wage Board Award
which provides an explanation;
―For the purpose of this clause – if there
are different Units/ branches / companies of one
classified newspaper establishment in one town
or city and adjoining areas even though
carrying different names, will be treated as one
single Unit of that newspaper establishment.‖
4. It is further stated in the complaint
petition that the Management treating the four Units
different whereas they are branches of one
establishment which further appears from Identity Card
issued to the employees working under all the four
Branches whereon the Times of India appears printed.
5. The learned counsel for the petitioners
submitted that the petitioner in Cr.Misc. no. 12876 of
2004 is an independent establishment wherein all the
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employees are being given their wages as per the
Awards. So far petitioners of other three cases are
concerned, they are altogether different Companies but
supporting the functions of petitioner of first case on the
basis of out sourcing and Manisana Wage Board Award
is not applicable upon them. Further, no offence for
which cognizance has been taken, is made out against
either of the petitioners in all the four cases. On the
other hand, learned Additional Public Prosecutor
supported the Order under challenge and averments
made in the complaint petition.
6. Admittedly, Manisana Wage Board was
constituted under the provisions of Working Journalist
& other Newspaper Employees (Condition of Service)
& Miscellaneous Provisions Act, 1955, which by
submitting Award, of national importance recommended
the prescribed wages for the employees of Newspaper
Establishment and the recommendations have been
accepted by the Central Government who issued
Notification in this regard. Since the recommendations
were enforceable all over India its status is an Award of
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National Tribunal. Thus, the contention of learned
counsel that there is no unfair labour practice even if
Manisana Wage Board Award is not properly
implemented, is not acceptable. In view the of the term
“unfair labour practice” as defined under Section 2(ra)
of the Industrial Disputes Act means any of the practices
as specified in the Fifth Schedule.
7. Similarly, at serial no.13 of 5th Schedule
under Industrial Dispute Act reads “failure to
implement Award, Settlement or Agreement”. Thus
non-implementation of any term of the Award
constitutes an offence punishable under Section 25-U
of the Act read with Section 29, both respectively reads
as such:
―25-U. Penalty for committing unfair
Labour practices–Any person who commits
any unfair Labour practice be punishable with
imprisonment for a term which may extend to
six months or fine which may extend to one
thousand rupees or with both.
29. Penalty for breach of settlement or
Award.- Any person who commits a breach of
any term of any settlement or Award, which is
binding on him under this Act, shall be
punishable with imprisonment for a term which
may extend to six months, or with fine, or with
both, and where the breach is a continuing one,
with a further fine which may extend to two
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hundred rupees for every day during which the
breach continues after the conviction for the
first and the Court trying the offence, if it fines
the offender, may direct that the whole or any
part of the fine realized from him shall be paid,
by way of compensation, to any person who, in
its opinion, has been injured by such breach.‖
It is also relevant to mention here that
Chapter II Section 3 of the W.J. and Other Newspaper
Employees etc. Act, 1955 reads as such:
―3. Act 14 of 1947 to apply to working
Journalists:- (1) The provisions of the Industrial
Disputes Act, 1947, as in force for the time
being, shall subject to modification specified in
Sub-section (2), apply to, or in relation to,
working Journalists as they apply to, or in
relation to, workmen within the meaning of that
Act.
(2) Section 25F of the aforesaid Act, in
its application to working journalists, shall be
construed as if in Clause (a) thereof, for the
period of notice referred to therein in relation to
the retrenchment of a workman, the following
periods of notice in relation to the retrenchment
of a working journalist had been substituted
namely-
(a) six months, in the case of an editor,
And
(b) three months, in the case of any
other working journalist.‖
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8. Now, the only question left for
consideration whether the Award is binding upon all the
petitioners or not. As per petitioners only petitioners of
first case is liable to comply the Award and make
payment of wages accordingly which they are doing.
To support this my attention was drawn towards the
orders passed in CWJC no. 7240 of 2002 which was
filed by the Times of India Newspaper Employees
Union and another seeking relief against non-
implementation of the recommendation of the Award.
Ultimately, in their absence, vide order dated 19th
November, 2009 the writ petition was disposed of on
the submissions of the opposite parties that if they are
not being paid the wages as per recommendations the
amount is recoverable on their applications to the State
Government under Section 17 of the Working
Journalists and Other Miscellaneous Provision Act,
1955 which they have not done so giving liberty to avail
out the remedy available the writ applications appears to
have been disposed of.
9. The above is not sufficient to establish
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that the recommendations are being properly
implemented. Moreover, assuming the employees at the
time of filing of the writ application in the year 2002 did
not approach the State Government as required under
Section 17 of the Act but they might have done
subsequently giving rise to issuance of letter no.4198
dated 27th August, 2003 by Deputy Labour
Commissioner, Patna, for implementation of the Award
to the Management.
10. The contention of learned counsel for
the petitioners that other three petitioners than M/s
Bennett Coleman Co. Ltd. and Others have their
separate identity and the employees under them are not
to be benefited by the recommendation of Manisana
Wage Board Award but this statement is also not
acceptable in face of assertion of the complainant in the
complaint petition itself that workmen under all the
three other petitioners which are said to have been just
supporting petitioners of first case as out sourcing
Agent, have printed Identity Cards at the top of the
same the Times of India appears printed and inspite of
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filing of some of the Identity Cards issued by all the
four petitioners Company having same feature in the
petitions filed before this Court, the petitioners are
conspicuously silent. Even during the course of
argument nothing contrary was pointed out.
11. The above materials are prima facie
sufficient to establish that all the three establishments
under names and style (1) M/s Times Publishing House
Ltd., M/s Pearl Printwell Ltd. and M/s Excel
Publishing House Ltd. are the Units of one
establishment M/s Bennet Coleman & Co. Ltd., having
different names for internal convenience.
12. The submissions of learned counsel for
the petitioners that if at all there is any violation of the
provisions of Working Journalist and other Newspaper
Employees Act, 1955 they may be liable to be penalized
under Section 18 of the Act, but not for the offences
under which cognizance has been taken. As stated
above, the provisions of Industrial Disputes Act, 1947
is, prima facie, applicable in the instant case and
whether any offence have been constituted under
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Section 18 of the Act it is left to be decided by the trial
Court at the time of hearing on the point of charge or at
any appropriate stage. The trial court without being
restricted to the order taking cognizance for a particular
offence, if find fit, may proceed with trial for other
offences also if made out after framing proper charge.
13. Thus, finding no merit, all the four
petitions are hereby dismissed, and the Court below is
directed to proceed expeditiously and decide the case,
on its own merit without being prejudiced of instant
non-interference.
(Akhilesh Chandra, J.)
Patna High Court,
The 11th August, 2010.
AAhmad/(NAFR).