TaxTMI 
TaxTMI 
TaxTMI 
2017 (6) TMI 1397
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....ition (Civil) No. 104 of 2015 in Writ Petition (Civil) No. 246 of 2011, Contempt Petition (Civil) No. 105 of 2015 in Writ Petition (Civil) No. 246 of 2011, Contempt Petition (Civil) No. 106 of 2015 in Writ Petition (Civil) No. 246 of 2011, Contempt Petition (Civil) No. 107 of 2015 in Writ Petition (Civil) No. 246 of 2011, Contempt Petition (Civil) No. 109 of 2015 in Writ Petition (Civil) No. 246 of 2011, Contempt Petition (Civil) No. 110 of 2015 in Writ Petition (Civil) No. 246 of 2011, Contempt Petition (Civil) No. 111 of 2015 in Writ Petition (Civil) No. 246 of 2011, Contempt Petition (Civil) No. 112 of 2015 in Writ Petition (Civil) No. 246 of 2011, Contempt Petition (Civil) No. 113 of 2015 in Writ Petition (Civil) No. 246 of 2011, Contempt Petition (Civil) No. 120 of 2015 in Writ Petition (Civil) No. 246 of 2011, Contempt Petition (Civil) No. 121 of 2015 in Writ Petition (Civil) No. 246 of 2011, Contempt Petition (Civil) No. 127 of 2015 in Writ Petition (Civil) No. 246 of 2011, Contempt Petition (Civil) No. 128 of 2015 in Writ Petition (Civil) No. 246 of 2011, Contempt Petition (Civil) No. 129 of 2015 in Writ Petition (Civil) No. 246 of 2011, Contempt Petition (Civil) No. 131 of....
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.... 2015 in Writ Petition (Civil) No. 246 of 2011, Contempt Petition (Civil) Dairy No. 21713 of 2015 in Writ Petition (Civil) No. 246 of 2011, Contempt Petition (Civil) Dairy No. 25577 of 2015 in Writ Petition (Civil) No. 246 of 2011, Contempt Petition (Civil) Dairy No. 12967 of 2015 in Writ Petition (Civil) No. 246 of 2011, Contempt Petition (Civil) Dairy No. 25581 of 2015 in Writ Petition (Civil) No. 246 of 2011, Contempt Petition (Civil) Dairy No. 23904 of 2015 in Writ Petition (Civil) No. 246 of 2011, Contempt Petition (Civil) Dairy No. 25578 of 2015 in Writ Petition (Civil) No. 246 of 2011, Contempt Petition (Civil) Dairy No. 25579 of 2015 in Writ Petition (Civil) No. 246 of 2011, Contempt Petition (Civil) Dairy No. 25431 of 2015 in Writ Petition (Civil) No. 246 of 2011, Contempt Petition (Civil) Dairy No. 25432 of 2015 in Writ Petition (Civil) No. 246 of 2011, Contempt Petition (Civil) Dairy No. 26077 of 2015 in Writ Petition (Civil) No. 246 of 2011, Contempt Petition (Civil) Dairy No. 26256 of 2015 in Writ Petition (Civil) No. 246 of 2011, Contempt Petition (Civil) Dairy No. 26078 of 2015 in Writ Petition (Civil) No. 246 of 2011, Contempt Petition (Civil) Dairy No. 25430 of 201....
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....isen, Arpit Rai, Nishant Katneshwarkar, Amit Sharma, Ankit Raj and Shantanu Sagar, Advs. JUDGMENT RANJAN GOGOI, J. 1. The Working Journalists and Other Newspaper Employees (Conditions of Service) and Miscellaneous Provisions Act, 1955 (hereinafter for short 'the Act') was enacted to regulate the conditions of service of working journalists and other persons employed in newspaper establishments throughout the country. The Act is a comprehensive piece of legislation dealing with, inter alia, entitlement to gratuity, hours of work, leave as well as fixation of wages payable both to the working journalists and non-journalist newspaper employees, as may be. So far as fixation and revision of wages is concerned, Section 9 of the Act has left such fixation or revision of wages in respect of working journalists to be dealt with by a Wage Board constituted thereunder. The recommendations of the Wage Board, if accepted, are to be notified by the Central Government Under Section 12 of the Act. Section 13 of the Act provides that upon coming into operation of the Order of the Central Government Under Section 12 every working journalist will be entitled to be paid wages at the rate n....
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....r 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 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). 5. Section 17B of the Act provides for appointment of Inspectors to ensure compliance with the various p....
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....tten communications, we are fully satisfied that the Majithia Wage Board proceedings had been conducted and carried out in a legitimate approach and no decision of the Wage Board is perceived to having been taken unilaterally or arbitrarily. Rather all decisions were reached in a coherent manner in the presence of all the Wage Board members after having processed various statistics and we find no irregularity in the procedure adopted by the impugned Wage Boards. (ii) After perusing the relevant documents, we are satisfied that comprehensive and detailed study has been carried out by the Wage Board by collecting all the relevant material information for the purpose of the Wage Revision. The recommendations are arrived at after weighing the pros and cons of various methods in the process and principles of the Wage Revision in the modern era. It cannot be held that the wage structure recommended by the Majithia Wage Board is unreasonable. (iii) We have carefully scrutinized all the details. It is clear that the recommendations of the Sixth Central Pay Commission have not been blindly imported/relied upon by the Majithia Wage Board. The concept of 'variable pay' contained i....
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....nts', he shall be entitled to retain his existing scale and such emoluments. 12. The Majithia Wage Board Award also specified that establishments which suffered heavy cash losses consequently in three preceding accounting years shall be exempt from payment of arrears, which is clear from Clause 21 of the Award extracted below. 21. The arrears payable from the date of enforcement of the Award, if any, as a result of retrospective implementation, shall be paid in three equal installments after every six months from the date of enforcement of the Award and the first installment shall be paid within three months; Provided that the newspaper establishments, who suffered heavy cash losses consequently in three accounting years preceding the date of implementation of the Awards, shall be exempt from payment of any arrears. However, these newspaper establishments would be required to fix salaries or wages of their employees on notional basis in the revised scales of pay with effect from the date of implementation of the Awards, i.e., the 1st July, 2010. 13. Alleging that wages and allowances as per the Award of the Majithia Wage Board, duly approved and notified by the Central Go....
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.... such employees who are yet to approach this Court but have a grievance of the kind indicated above to move the Labour Commissioner of the State concerned in terms of the present order. Order dated 08th of November, 2016: For reasons we do not consider necessary at present to record the exercise of monitoring the implementation of the Majithia Wage Board Recommendations on the basis of the reports called for from the Labour Commissioners of different States stand deferred to a later date. Instead, it would be prudent and in fact necessary to decide certain questions of law which now stand formulated and have been submitted to the Court by Shri Colin Gonsalves, learned senior Counsel, at the request of the Court. Once the legal formulations are considered and decided, further orders with regard to the mechanism to implement the Majithia Wage Board Recommendations will follow. (Emphasis is supplied by us) 15. On the basis of the aforesaid orders of the Court, several reports have been submitted by the Labour Commissioners of different States indicating the position with regard to the implementation of the Majithia Wage Board Award. The said Reports indicate that in some of t....
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....nment, is guaranteed by the Act to the concerned working and non-journalist employees. The wages notified can be departed only to adopt more beneficial and favourable rates. It is, therefore, the contention of the contempt Petitioners that any agreement or undertaking to be governed by the previous wage structure, which is less favourable than what has been recommended by the Majithia Wage Board, is non est in law. That apart, contentions had been raised that none of the said undertakings are voluntary and have been obtained under duress and under threat of transfer/termination. The contempt Petitioners, therefore, urge that the Majithia Wage Board Award to the above extent may be clarified by this Court. 17. Insofar as variable pay, contractual employees, and financial capacity is concerned, it is the case of the contempt Petitioners that all the above matters have been exhaustively dealt with by the Majithia Wage Board. The recommendations thereof having been accepted by the Central Government there is no scope for any further debate or controversy on the said score. The Wage Board recommendations, as approved and notified, would apply to all categories of employees, including c....
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....articular case depends on the facts and circumstances of that case. Judicial orders are to be properly understood and complied with. Even negligence and carelessness can amount to disobedience particularly when the attention of the person is drawn to the Court's orders and its implication. ...... ...... ...... ...... ...... ...... ...... ...... Jurisdiction to punish for contempt exists to provide ultimate sanction against the person who refuses to comply with the order of the court or disregards the order continuously. ...... ...... ...... ...... ...... ...... ...... ...... No person can defy the Court's order. Wilful would exclude casual, accidental, bona fide or unintentional acts or genuine inability to comply with the terms of the order. A Petitioner who complains breach of Court's order must allege deliberate or contumacious disobedience of the Court's order. 20. Similar is the view expressed by this Court in Ashok Paper Kamgar Union v. Dharam Godha (2003) 11 SCC, 1, Anil Kumar Shahi v. Professor Ram Sevak Yadav (2008) 14 SCC 115, Jhareswar Prasad Paul v. Tarak Nath Ganguly (2002) 5 SCC 352, Union of India v. Subedar Devassy PV (2006) 1 SCC 613, Bihar....
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....involves a process of self-determination of the sweep, meaning and effect of the order in respect of which disobedience is alleged. The Courts must not, therefore, travel beyond the four corners of the order which is alleged to have been flouted or enter into questions that have not been dealt with or decided in the judgment or the order violation of which is alleged. Only such directions which are explicit in a judgment or order or are plainly self-evident ought to be taken into account for the purpose of consideration as to whether there has been any disobedience or wilful violation of the same. Decided issues cannot be reopened; nor can the plea of equities be considered. The Courts must also ensure that while considering a contempt plea the power available to the Court in other corrective jurisdictions like review or appeal is not trenched upon. No order or direction supplemental to what has been already expressed should be issued by the Court while exercising jurisdiction in the domain of the contempt law; such an exercise is more appropriate in other jurisdictions vested in the Court, as noticed above. 22. From the stand adopted by the newspaper establishments in the various....
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.... propose to do hereinafter so as to ensure due and full compliance with the order(s) of the Court. 24. Insofar as the highly contentious issue of Clause 20(j) of the Award read with the provisions of the Act is concerned it is clear that what the Act guarantees to each "newspaper employee" as defined in Section 2(c) of the Act is the entitlement to receive wages as recommended by the Wage Board and approved and notified by the Central Government Under Section 12 of the Act. The wages notified supersedes all existing contracts governing wages as may be in force. However, the Legislature has made it clear by incorporating the provisions of Section 16 that, notwithstanding the wages as may be fixed and notified, it will always be open to the concerned employee to agree to and accept any benefits which is more favourable to him than what has been notified Under Section 12 of the Act. Clause 20(j) of the Majithia Wage Board Award will, therefore, have to be read and understood in the above light. The Act is silent on the availability of an option to receive less than what is due to an employee under the Act. Such an option really lies in the domain of the doctrine of waiver, an issue t....
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..... In this regard we have taken note of the definition of "newspaper employees", "Working Journalist" and "Non-Journalist newspaper employees" as defined in Section 2(c), 2(f) and 2(dd) of the Act. Insofar as "variable pay" is concerned, as already noticed and extracted in paragraph 7 above, this Court while dealing with the concept of variable pay has taken the view that the said relief has been incorporated in the Majithia Wage Board Award in order to give fair and equitable treatment to employees of newspapers. Therefore, no question of withholding the said benefit by taking any other view with regard to "variable pay" can arise. In fact, a reading of the relevant part of the Award would go to show that the concept of "variable pay" which was introduced in the Award stems from grade pay contained in the Report of the 6th Pay Commission and was intended to bring the working journalist and non-journalist employees covered by the Act at par with the Central Government employees to the extent possible. So far as the concept of heavy cash losses is concerned, we are of the view that the very expression itself indicates that the same is different from mere financial difficulties and su....