M/S BENNET COLEMAN & CO. LTDversusSTATE OF BIHAR & ORS

                       [2015] 2 S.C.R. 372


A            M/S BENNET COLEMAN & CO. LTD

                                v.

                   STATE OF BIHAR & ORS
B              (Criminal Appeal No. 269 of 2015)

                     FEBRUARY 10, 2015.

         [KURIAN JOSEPH AND N.V. RAMANA, JJ.]
c      Industrial Disputes Act, 1947: s.25U rlw s.29 - Non-
  implementation of recommendation of Wage Board
  constituted under Working Journalists Act - Prosecution
  u/s.25U of the l.D. Act - Maintainability of - Held: The
  recommendations of the Wage Board is neither an award
D nor a settlement in terms of the provisions under the I. D.
  Act - It is not passed by the Labour Court or Industrial
  Tribunal or National Industrial Tribunal - It is neither an
  Arbitration Award in terms of s.10A of the l.D. Act nor a
E settlement in terms of s. 2(b) of the l.D. Act- It is not an
  agreement between the parties - Its enforceability, being
  a recommendation, depends on the order passed by the
  Central Government - Prosecution under the provisions
  of ID Act is thus not maintainable as there is no award
F or settlement or agreement which has been violated so
  as to make them liable for prosecution - Working
  Journalists and other Newspaper Employees (Condition
  of Service) and Miscellaneous Provisions Act, 1955 -
  s.3.
G      Allowing the appeals and dismissing the
    contempt petitions, the Court
       HELD: Section 2(b) of the l.D. Act defines 'award'.

H                             372
 BENNET COLEMAN & CO. LTD v. STATE OF BIHAR 373


The provision shows that it must be the determination        A
of an industrial dispute or any question relating thereto
by any Labour Court, Industrial Tribunal or National
Industrial Tribunal. It could also be an arbitration award
under Section 1OA. Being a dispute on wages, there
cannot be any dispute that the issue under reference         B
is an industrial dispute. The Wage Board, constituted
under Section 9 read with Section 13C of the Working
Journalists Act, submitted their recommendation in
terms of Section 10 of the Working Journalists Act.
Section 1 of their recommendation, is titled as              C
Manisana {Wage Board) Award. Even according to the
Wage Board, though it is titled as Award, they are only
recommendations. The same can only be so under the
Working Journalists Act in terms of Section 10 of the
                                                             0
Act. Thus, in legal parlance, the Wage Board
recommendations made under Section 10 of the
Working Journalists Act is not an award under Section
2{b) of the 1.0. Act. Once the recommendations under
Section 10 are received, it is for the Central Government    E
to issue appropriate orders so as to enforce the same
in terms of Section 12 of the Working Journalists Act.
If the said order is not complied with, the employees
may take recourse to Section 17 of the Working
Journalists Act. Section 11(1) of Working Journalist         F
Act provides for exercise of the powers of the Tribunal
by the Wage Board in the process of making its
recommendations in regulating its procedure. The
provision does not make Wage Board a Tribunal. The
Tribunal under the 1.0. Act does not make                    G
recommendations, it passes award; whereas the Wage
Board under the Working Journalists Act is competent
only to make a recommendation in terms of Section 10
and after the notification of the recommendations by
                                                             H
374         SUPREME COURT REPORTS                   [2015] 2 S.C.R.


A the Centra.IGovemmentifthereisanydispute regarding any
  amount due under the notification, a dispute is raised
  under Section 17(2) of the Working Journalists Act and
  thereafter an award is passed by the Labour Court. [Para
  9, 10, 12 to 16, 21) [376-H;377-A-B,E-G;378- F-G;380- B-
B C;381- E;386- B-D]
          CRIMINALAPPELLATE JURISDICTION: Criminal Appeal
      No. 269 of2015.
     From the Judgment and Order dated 11. 08.2010 of the High
C Court of Patna at Patna in Misc. Cr. Case No. 12876 of 2004.
                                    WITH
          Crl. A. Nos. 270, 271 & 272 of 2015
          Conmt. Pet. (C) Nos. 171 & 172 of2012
D
          P. P. Rao, Bhaskar P. Gupta, K. Datta, Ashish Verma, Rahul
      Malhotra, Abhay Kumar, Manish Srivastava, Shahid Anwar,
      Deepak Goel for the Appellant.
     Sikumar, Deepak Goel, Gopal Singh, Rituraj Choudhary,
E Rashmi Srivastava, R. Gopalakrishnan forthe Respondents.
          The Judgment of the Court was delivered by
          KURIAN JOSEPH, J.
          CRIMINALAPPEAL N0.269 OF 2015
F
          (ARISING OUT OF SLP(CRL.) N0.10134/2010)
          1. Leave granted.
        2. Whether the appellant is liable to be prosecuted under
G Section 25U read with Section 29 and under Serial No.13 of the
  Fifth Schedule of the Industrial Disputes Act, 1947 (for short, 'the
  1.0. Act') is the question arising for consideration in this case.
  The allegation is thatthe recommendations of the Manisana Wage
  Board have not been properly implemented, a section of the
H journalists have been discriminated in a hostile manner and thus,
 BENNET COLEMAN & CO. LTD v. STATE OF BIHAR 375
               [KURIAN, J.]

there is unfair labour practice.                             A
     3. The Deputy Labour Commissioner, Patna preferred
a complaint before the Chief Judicial Magistrate, Patna
with the allegations referred to above seeking prosecution
of the appellant under Section 25U read with Section 29      8
of the l.D.Act.

    4. The appellant preferred a petition before the High
Court under Section 482 Cr.P.C., the same was dismissed
holding that the complaint was maintainable and thus, the    c
present appeal.

      5. Mr. P.P. Rao, learned senior counsel, submits that
the prosecution under the provisions of l.D. Act is not
maintainable as there is no award or settlement or o
agreement which has been violated so as to make them
 liable for prosecution. The Wage Board under the Working
Journalists and Other Newspaper Employees (Conditions
of Service) and Miscellaneous Provisions Act, 1955 (for
short, 'Working Journalists Act'), has only given their E
recommendations as per Section 10 and under Section
 12, the same have been notified by the Central
Government. In case, the orders notified under Section
12 are not implemented, the remedy is under Section 17
of the Working Journalists Act for recovery of money due F
from the employer. Under Section 17(2) of the Working
Journalists Act, if there is any dispute with regard to the
amount due under the Act, it is for the State Government
to refer the question to the Labour Court of competent
jurisdiction constituted under the provisions of the 1.0. Act G
and it is for that Court to pass the award. In case such an
award is not complied with, then alone arises a question
of prosecution under Section 25U, even if the Industrial
Disputes Act as such is applicable.
                                                              H
376        SUPREME COURT REPORTS                  [2015] 2 S.C.R.


A      6. Learned counsel appearing for the State and the
  Employees Union submits that by virtue of Section 3 of
  the Working Journalists Act, the provisions of l.D. Act as
  such have been made applicable, the recommendations
  of the Wage Board is an award, the award has not been
B implemented in its letter and spirit, a section of the
  employees has been discriminated and thus, the
  prosecution is maintainable.

          7. The moot question is as to the jurisdiction of the
C     Court to proceed under the provisions of the l.D. Act.
      Section 3 of the Working Journalists Act reads as follows:-

          "3. Act 14of1947 to apply to working journalists.
          - ( 1) The provisions of the Industrial Dispute Act,
o         1947 (14of1947), as in force for the time being,
          shall, subject to the modification specified in sub-
          section (2), apply to, or in relation to, working
          journalists as they apply to, or in relation to,
          workmen within the meaning of that Act.
E
       8. Sub-section (2) o·f Section 3 of the Working
  Journalists Act provides for a modification in the
  application of Section 25F; which is not relevant in the
  present case. As per Section 3 of the Working Journalists
F Act, the provisions of the I. D. Act have been made
  applicable to the working journalists, as if they are
  workmen under the l.D. Act. Thus, being a legislation by
  reference, provisions of l.D. Act are applicable so far as
  working journalists are concerned.
G
      9. An award is defined under Section 2(b) of the l.D.
  Act, which reads as follows:-

          "2 (b) "award" means an interim or a final
          determination of any industrial dispute or of any
H
 BENNET COLEMAN & CO. LTD v. STATE OF BIHAR 377
               [KURIAN, J.]

    question relating thereto by any Labour Court,          A
    Industrial Tribunal or National Industrial Tribunal
    and includes an arbitration award made under
    Section 10A·"
                  '
     10. The provision would show that it must be the B
determination of an industrial· dispute or any question
relating thereto by any Labour Court, Industrial Tribunal or"
National Industrial Tribunal. It could also be an arbitration
award under Section 1QA.
                                                            c
    11. Industrial dispute is defined under Section 2(k),
which reads as follows:-

     "2(k) "industrial dispute" means any dispute or
    difference between employers and employers, or
                                                            D
    between employers and workmen, or between
    workmen and workmen, which is connected with
    the employment or non-employment or the terms
    of employment or with the conditions of labour, of
    any person;"                                            E
    12. Being a dispute on wages, there cannot be any
dispute that the issue under reference is an industrial
dispute.

      13. The Wage Board, constituted under Section 9 read F
with Section 13C of the Working Journalists Act, submitted
their recommendation in terms of Section 10 of the Working
Journalists Act. Section 1 of their recommendation, is
titled as Manisana (Wage Board) Award. It is significant
to note that when the Central Government, in terms of G
Section 12 of the Working Journalists Act, issued the
notification on 5.12.2010 (Annexure P1), the
recommendations were incorporated under Part Three. To
the extent relevant, we shall extract Part Three, which H
378        SUPREME COURT REPORTS                 [2015] 2 S.C.R.


A     reads as follows:-

                           "PART THREE

                              Chapter 1

B        Recommendation of the Wage Boards for working
         journalists and non-journalist newspaper
         employees (other than newspaper employees in
         new agency)

C                             Section 1

                             Preliminary

         Short title and commencement.- (1) These
         recommendations may be called the Manisana
D
         (Wage Board) Award.

         (2) The Award shall be deemed to have come into
         force on the first day of April, 1998 in respect of
         the newspaper establishments of Classes Ill and
E        above and on the first day of June, 1999 in respect
         of the newspaper establishments of Classes IV
         and V and on the first day of April, 2000 in respect
         of the newspaper establishments of Classes VI to
         IX."
F
      14. It may be seen that even according to the Wage
  Board, though it is titled as Award, they are only
  recommendations. The same can only be so under the
  Working Journalists Act in terms of Section 10 of the Act,
G which reads as follows:-

         "10. Recommendation by Board.- (1) The Board
         shall, by notice published in such manner as it
         thinks fit, call upon newspaper establishments and
H
BENNET COLEMAN & CO. LTD v. STATE OF BIHAR 379
              [KURIAN, J.]

  working journalists and other persons interested      A
  in the fixation or revision of rates of wages of
  working journalists to make such representations
  as they may think fit as respects the rates of
  wages which may be fixed or revised under this
  Act in respect of working journalists.                B

  (2) Every such representation shall be in writing
  and shall be made within such period as the Board
  may specify in the notice and shall state the rates
  of wages which, in the opinion of the person          c
  making the representation, would be reasonable,
  having regard to the capacity of the employer to
  pay the same or to any other circumstance,
  whichever may seem relevant to the person
  making the representation in relation to his          D
  representation.
 (3) The Board shall take into account the
 representation aforesaid, if any, and after
 examining the materials placed before it make such     E
 recommendations as it thinks fit to the Central
 Government for the fixation or revision of rates of
 wages in respect of working journalists; and any
 such recommendation may specify, whether
 prospectively or retrospectively, the date from        F
 which the rates of wages should take effect.

 (4) In making any recommendations to the Central
 Government, the Board shall have regard to the
 cost of living, the prevalent rates of wages for       G
 comparable employment, the circumstances
 relating to the newspaper industry in different
 regions of the country and to any other
 circumstances which to the Board may seem
 relevant.                                              H
380     SUPREME COURT REPORTS                     [2015] 2 S.C.R.


A      Explanation. - For the removal of doubts, it is
       hereby declared that nothing in this sub-section
       shall prevent the Board from making
       recommendations for fixation or revision of rates
       of wages on all India basis."
B
       15. Thus, in legal parlance, the Wage Board
  recommendations made under Section 10 of the Working
  Journalists Act is not an award under Section 2(b) of the
  l.D. Act. Once the recommendations under Section 10 are
C received, it is for the Central Government to issue
  appropriate orders so as to enforce the same in terms of
  Section 12 of the Working Journalists Act, which reads as
  follows:-

D      "12. Powers of Central Government to enforce
       recommendations of the Wage Board.- (1) As
       soon as may be, after the receipt of the
       recommendations of the Board, the Central
       Government shall make an order in terms of the
E      recommendations or subject to such modifications,
       if any, as it thinks fit, being modifications which, in
       the opinion of the Central Government, do not
       effect important alterations in the character of the
       recommendations.
F
       (2) Notwithstanding anything contained in sub-
       section (1), the Central Government may, if it thinks
       fit, -

G      (a) Make such modifications in the
       recommendations, not being modifications of the
       nature referred to in sub-section (1 ), as it thinks fit:

       Provided that before making any such
H      modifications, the Central Government shall cause
 BENNET COLEMAN & CO. LTD v. STATE OF BIHAR 381
               [KURIAN, J.]

    notice to be given to all persons likely to be affected       A
    thereby in such manner as may be prescribed, and
    shall take into account any representations which
    they may make in this behalf in writing ; or

    (b) refer the recommendations or any part thereof             B
    to the Board in which case, the Central
    Government shall consider its further
    recommendations and make an order either in
    terms of the recommendations or with such
    modifications of the nature referred to in sub-               C
    section (1) as it thinks fit.

    (3) Every order made by the Central Government
    under this section shall be published in the official
    Gazette together with .tbe recommendations of the             D
    Board relating to the order and the order shall
    come into operation on the date of publication or
    on such date, whether prospectively or
    retrospectively, as may be specified in the order."       /


                                                                  E
     16. If the said order is not complied with, the employees
may take recourse to Section 17 of the Working Journalists
Act, which reads as follows:-

    "17. Recovery of money due from an employer.-
                                                                  F
    (1) Where any amount is due under this Act to a
    newspaper employee from an employer, the
    newspaper employee himself, or any person
    authorised by him in writing in this behalf, or in
    case of the death of the employee, any member                 G
    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             H
382         SUPREME COURT REPORTS                [2015] 2 S.C.R.


A         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.
B
           (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
C         question to any Labour Court constituted by it
          under the Industrial Disputes Act, 1947 (14 of
          1947), or under any corresponding law relating to
          investigation and settlement of industrial disputes
          in force in the State and the said Act or law shall
D         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.

E         (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 )"
F
          17. There is also a provision for penalty under Section
      18 of the Working Journalists Act, which reads as follows:-

          18. Penalty.- (1) If any employer contravenes any
          of the provisions of this Act or any rule or order
G
          made thereunder, he shall be punishable with fine
          which may extend to two hundred rupees.

         (1A) Whoever, having been convicted of any
         offence under this Act, is again convicted of an
H
BENNET COLEMAN & CO. LTD v. STATE OF BIHAR 383
              [KURIAN, J.]

  offence involving the contravention of the same       A
  provision, shall be punishable with fine which may
  extend to five hundred rupees.

  (1 B) Where an offence has been committed by a
  company, every person who, at the time the            B
  offence was committed, was in charge of, and
  was responsible to, the company for the conduct
  of the business of the company, as well as the
  company, shall be deemed to be guilty of the
  offence and shall be liable to be proceeded against   C
  and punished accordingly:

  Provided that nothing contained in this sub-section
  shall render any such person liable to any
  punishment provided in this section if he proves      D
  that the offence was committed without his
  knowledge or that he exercised all due diligence
  to prevent the commission of such offence.

  (1 C) Notwithstanding anything contained in sub-      E
  section (1 B), where an offence under this section
  has been committed by a company and it is proved
  that the offence has been committed with the
  consent or connivance of, or that the commission
  of the offence is attributable to, any gross          F
  negligence on the part of any director, manager,
  secretary or other officer of the company, such
  director, manager, secretary or other officer shall
  also be deemed to be guilty of such offence and
  shall be liable to be proceeded against and           G
  punished accordingly.

  (1 D) For the purposes of this section. -

  (a) "company" means any body corporate and
                                                        H
384       SUPREME COURT REPORTS                [2015] 2 S.C.R.


A       includes a firm or other association of
        individuals; and

        (b) "director" in relation to a firm means a
        partner in the firm.
B
        (2) No court inferior to that of a Presidency
        Magistrate or a Magistrate of the first class shall
        try any offence punishable under this section.

        (3) No court shall take cognizance of an offence
c       under this section, unless the complaint thereof
        is made within six months of the date on which
        the offence is alleged to have been committed."

       18. Having regard to the scheme of the Working
D Journalists Act and having regard to the provisions of
  the l.D. Act, as incorporated by Section 3 of the Working
  Journalists Act, prosecution for unfair labour practice is
  maintainable only under Section 25U. Section 25U
  provides for penalty for committing unfair labour practice
E and Section 29 provides for penalty for breach of
  settlement or award. Section 2(ra) of the l.D. Act
  defines unfair labour practice. Settlement is defined
  under Section 2(p) to be a settlement arrived at in the
F course of conciliation proceedings and includes a written
  agreement between the employer and the workmen
  otherwise than in the course of conciliation proceedings.
  The recommendations of the Wage Board is thus neither
  an award nor a settlement in terms of the provisions
G under the l.D. Act. It is not passed by the Labour
  Court or Industrial Tribunal or National Industrial Tribunal
  and it is not an Arbitration Award in terms of Section
  1OA of the l.D. Act. It is not a settlement in terms of
  Section 2(b) of the l.D. Act. It is not an agreement
H between the parties. Its enforceability, being a
 BENNET COLEMAN & CO. LTD v. STATE OF BIHAR 385
               [KURIAN, J.]

recommendation, depends on the order passed by the A
Central Government. The Central Government has passed
that order by issuing Annexure P1 notification. If the same
is not complied with, as we have already referred to
above, the remedies lie under Section 17 for recovery or
under Section 18 for penalty and not under the provisions B
of the l.D. Act.

     19. During the course of hearing, we are informed that the
Employees' Union have already taken recourse to the remedy
under Section 17(2) of the Working Journalists Act with regard    C
to the amounts due in terms of the notification issued by the
Central Government under Section 12 and the same is
pending before the Labour Court, Patna (Case Reference
No.7/2013). If the Labour Court passes an appropriate             D
award and in case the same is not implemented then alone
there arises a question of prosecution under Section 25U
read with Serial No.13 of the Fifth Schedule of the l.D. Act
"Failure to implement award, settlement or agreement".

     20. Learned counsel for the respondents has also made        E
a submission that in terms of Section 11 of the Working
Journalists Act, the Wage Board may exercise all powers of
the Industrial Tribunal under l.D. Act to the extent relevant.
Section 11 ( 1) reads as follows:-                                F

    "11. Powers and procedure of the Board.-(1)
    Subject to the provisions contained in sub-section
    (2), the Board may exercise all or any of the
    powers which an Industrial Tribunal constituted
                                                                  G
    under the Industrial Disputes Act, 1947 (14 of
    1947), exercises for the adjudication of an
    industrial dispute referred to it and shall, subject to
    the provisions contained in this Act, and the rules,
    if any, made thereunder have power to regulate its            H
386        SUPREME COURT REPORTS                 [2015] 2 S.C.R.


A         own procedure. "

       21. A bare reading of the provision would show that the
  same provides for exercise of the powers of the Tribunal by
  the Wage Board in the process of making its
B recommendations in regulating its procedure. The provision
  does not make Wage Board a Tribunal. The Tribunal
  under the 1.0. Act does not make recommendations, it
  passes award; whereas the Wage Board under the Working
  Journalists Act is competent only to make a
C recommendation in terms of Section 10 and after the
  notification of the recommendations by the Central
  Government if there is any dispute regarding any amount
  due under the notification, a dispute is raised under Section
  17(2) of the Working Journalists Act and thereafter an
D award is passed by the Labour Court.

          22. The appeal is hence allowed, the impugned order
      is set aside and the complaint and order passed by the
      Magistrate taking cognizance are quashed.
E
          23. There will also be a direction to the Labour Court,
      Patna to dispose of the Case Reference No.7/2013,
      pending before it, expeditiously.

       24. We make it clear that this order shall not stand in
F the way of the Employees Union taking recourse to other
  remedies, if any, available to them under other provisions
  of the Working Journalists Act or the 1.0. Act.

            CRIMINAL APPEAL N0.270 OF 2015
G
            (ARISING OUT OF SLP(CRL.) N0.1884/2011)

            CRIMINAL APPEAL N0.271/2015

            (ARISING OUT OF SLP(CRL) No. 1956/2011),
H
 BENNET COLEMAN & CO. LTD v. STATE OF BIHAR 387
               [KURIAN, J.]

       CRIMINAL APPEAL N0.272/2015                              A

       (ARISING OUT OF SLP(CRL) No. 195712011,

    25. Leave granted.

    26. In view of the judgment dated 10.02.2015 passed         8
in Criminal Appeal No.269/2015 arising out of SLP (CRL)
No.10134/2010, the impugned orders are set aside and
the complaint and order passed by the Magistrate taking
cognizance are quashed and the appeals are allowed.
                                                                c
    CONMT.PET.(C) No. 17·1/2012 In SLP(CRL) No. 1957
2011                     '.

    CONMT.PET.(C) No. 172/2012 In SLP(CRL) No. 1884/
2011                                                 D

      27. In view of the judgment dated 10.02.2015 passed
 in Criminal Appeal No.269/2015 arising out of SLP (Crl)
 No.10134/2010, nothing survives in these contempt
·petitions, which are, accordingly, dismissed.                  E

Devika Gujral                          Appeals allowed &
                                 Contempt Petition dismissed.