Ranjana Desai, J.
1. Rule. The respondents waive service. By consent of the parties, taken up for hearing forthwith.
2. The petitioner is a trade union of employees registered under the Trade Unions Act, 1926. Respondent 5 is a Company registered under the Companies Act. It publishes Hindi daily newspaper 'Navbharat' which has huge circulation in the country. It owns a printing press. According to the petitioner, it is filing this petition on behalf of the employees who are its members. Respondent 2 is the Commissioner of Labour, Mumbai. Respondent 3 is the Assistant Commissioner of Labour, Thane and respondent 4 is the Deputy Commissioner of Labour, Thane.
3. The gist of the case of the petitioner is as under:
(a) The vast majority of the employees employed by respondent 5 at its press are the members of the petitioner-union. The service conditions offered by respondent 5 are very poor and not comparable to other newspaper establishments. The petitioner has repeatedly taken up various causes of the employees. But, respondent 5 has never cooperated and has always opposed all the efforts of the petitioner to ameliorate the service conditions of its members. The service conditions of employees employed in the newspaper undertakings are governed by Wage Board Award of Wage Boards constituted by the Central Government from time to time under the provisions of the Working Journalists and Other Newspaper Employees (Conditions of Service) and Miscellaneous Provisions Act, 1955 (for short, 'the Working Journalists Act'). Last of such award is known as Manisana Wage Award. It came into effect after the notification of the Central Government dated 5/12/2000.
(b). The said award classifies the newspaper establishments into 11 classes/categories depending on their gross turnover. Clause 6 of the said award pertains to classification. It reads as under:
6. Classes of newspaper establishments:Newspaper establishments shall be classified under the following classes on the basis of their gross revenue as per para (a) of this chapter.
CLASS GROSS REVENUE
IB Rs. 600 crores and above.
IA Rs. 225 crores and above but less than Rs. 600 crores
I Rs. 75 crores and above but less than Rs. 225 crores.
II Rs. 25 crores and above but less than Rs. 75 crores.
III Rs. 11 crores and above but less than Rs. 25 crores
IV Rs. 5.5 crores and above but less than Rs. 11 crores.
V Rs. 2.5 crores and above but less than Rs. 5.5 crores.
VI Rs. 1.25 crore and above but less than Rs. 2.5 crores.
VII Rs. 60 lakhs and above but less than Rs. 1.25 crore
VIII Rs. 30 lakhs and above but less than Rs. 60 lakhs.
IX Less than Rs. 30 lakhs.
(c). Clause 1(a) of the Chapter/Section II of the said award lays down the manner in which the establishment is to be classified. Clause (a-1) thereof is as under:
(a-1): Classification of newspaper establishment shall be based on the average gross revenue of three (3) accounting years 1995-96, 1996-97 and1997-98. The different departments, branches and centres of newspaper establishment shall be treated as parts thereof.
(d). From the various provisions of the said award, it is apparent that the wages of the employees are linked to the gross turnover of the employers.
(e). The gross revenue of respondent 5 is definitely between Rs. 25 crores and Rs. 75 crores and, therefore, respondent 5 should be accordingly classified in Class II of Clause 6 of the Manisana Award and the wages are to be fixed accordingly. Respondent 5 has, however, wrongly classified itself as Class IV establishment and is thereby paying lesser wages to the employees. The employees are thus deprived of the wages which are legally due to them. The petitioner vide its letter dated 4/8/2006 listed various grievances of the employees and requested respondent 5 to convene a meeting to resolve all those issues. By another letter dated 4/8/2006, the petitioner requested respondent 5 to furnish a certified copy of the certificate issued by Audit Bureau of Circulation for the year 1997-98. However, respondent 5 vide its letter dated 16/8/2006 refused to give the said document.
(f). As respondent 5 was not showing willingness to resolve the issues, the petitioner approached respondent 4 -the Deputy Commissioner of Labour, Thane vide its letter dated 30/8/2006 and requested him to intervene in the matter. Justification Statement dated 4/9/2006 was also sent. Respondent 3, thereafter called the parties for discussion. Respondent 3 informed the petitioner vide his letter dated 28/5/2007 that the petitioner should adopt appropriate legal proceedings and closed the proceedings. The petitioner, thereafter wrote letter dated 11/2/2008 to respondent 5 raising following demand.
The employer, M/s. Navabharat Press Ltd; Navabharat Bhavan, Sector-8, Plot No. 13, Sanpada (E), Navi Mumbai - 400 706 shall be directed to pay the wage scale of Class II Newspaper establishment as per Manisana Wage Board Award to all the workmen employed at the above establishment. This wage scale shall be made applicable from the date the said award came into effect.(f). The petitioner also sent a letter to respondent 3 reiterating its demand. The petitioner received letter dated 13/2/2008 from respondent 5 stating that it had correctly implemented the Manisana Award.
(h). The petitioner, thereafter, wrote letter dated 14/3/2008 to respondent 3 viz. the Conciliation Officer informing him that the demands raised by it had been refused by the employer i.e. respondent 5 and as such there existed a dispute. The petitioner requested him to hold conciliation proceedings in respect of the said dispute. The petitioner wrote another letter dated 10/4/2008 requesting respondent 3 to direct respondent 5 to furnish certain documents. However, there was no response to this letter. The petitioner, therefore, addressed letter dated 12/9/2008 bringing to the notice of respondent 3 that the dispute involved was in respect of gradation of respondent 5 as well as the employees' wages. It involved detailed examination of various documents including the balance sheet of respondent 5. Resolution of the said dispute would require full-fledged trial and, hence, it could be adjudicated only by an Industrial Tribunal constituted under the Industrial Disputes Act, 1947 (for short, 'the ID Act'). Since there was no response to this letter, the petitioner addressed another letter dated 14/10/2008 to respondent 4.
(i) On 4/12/2008, respondent 3 passed an order holding that the dispute is only in respect of implementation of the Manisana Award and it did not fall within the ambit of law and could not be admitted in conciliation. The petitioner is aggrieved by this order and, hence, has approached this Court.
4. We have heard Mr. Jalisatgi, learned Counsel for the petitioner. He drew our attention to Section 12 of the ID Act, which delineates the duties of the Conciliation Officer. He pointed out that Section 12(1) states that where an industrial dispute exists or is apprehended, the Conciliation Officer has to hold conciliation proceedings in the prescribed manner. Drawing our attention to the definition of the term 'industrial dispute', he submitted that there can be no doubt that in this case, industrial dispute as defined under the ID Act exists because the case of the petitioner is that respondent 5 falls in Class II of Clause 6 of the Manisana Award whereas respondent 5 contends that it falls in Class IV of Clause 6 of the said award. Since the determination of wages of the employees is linked to the classification of respondent 5, as per Clause 6 of the Manisana Award, the dispute in effect pertains to the terms of the employment or the conditions of labour of the members of the petitioner. Learned Counsel submitted that once an industrial dispute exists the Conciliation Officer has no option but to admit the dispute in conciliation. Learned Counsel submitted that respondent 3 has failed to appreciate the relevant legal provisions and has wrongly held that the dispute is only in respect of the implementation of the Manisana Award and, hence, could not be admitted in conciliation. Learned Counsel submitted that therefore this is a fit case where the impugned order should be set aside and direction should be given to respondent 3 to admit the dispute in conciliation. In support of his submissions, learned Counsel relied on the judgments of this Court in the Philips Workers' Union, Thane v. Philips India Ltd., Thane and Ors. 2001 1 CLR 235 and Devdas S. Amin v. State of Maharashtra and Ors. : 2001-I-LLJ 235
5. We have also heard Mr. Shetty, learned Counsel for respondent 5. He has drawn our attention to the affidavit in reply filed on behalf of respondent 5. He submitted that no industrial dispute is involved in this case. The petitioner is merely seeking implementation of Manisana Award. Learned Counsel submitted that an alternative remedy is provided under Section 36A of the ID Act, which the petitioner has not availed of and, therefore, the petition should be dismissed on that count. Learned Counsel relied on the Constitution Bench judgment of the Supreme Court in Central Bank of India Ltd. and Ors. v. Rajagopalan (P.S.) and Ors. : 1963 (11) LL.J. 89 which inter alia deals with the scope of Section 33C(2) of the ID Act which is similar to Section 17 of the Working Journalists Act. He submitted that in that case, it is held that like an executing court, the Labour Court has jurisdiction to interpret the award or settlement on which the workmen's rights rest. Therefore, it is only under Section 17 that the petitioner can seek interpretation and implementation of the Manisana Award. Learned Counsel also relied on the judgment of the Supreme Court in Secretary, Indian Tea Association v. Ajit Kumar Barat and Ors. 2000 I CLR 625. Learned Counsel submitted that the impugned order is perfectly legal and valid and warrants no interference from this Court.
6. Before we deal with the rival contentions, it is necessary to quote the relevant Sections of the ID Act. Section 2(k) of the ID Act defines industrial dispute. It reads thus:
2. Definitions. -In this Act, unless there is anything repugnant in the subject or context,
(k) 'industrial dispute' means any dispute or difference between employers and employers, or 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;
7. There is no dispute about the fact that the service conditions of the employees employed in the newspaper undertakings are governed by Wage Board Award of Wage Boards appointed by the Central Government from time to time. There is also no dispute about the fact that pursuant to the relevant provisions of the Working Journalists Act, the Central Government constituted Wage Boards. Manisana Award is the last of such awards and it governs the conditions of the employees employed in the newspaper undertakings. Thus, the conditions of the service of the members of the petitioner are governed by the said award.
8. We have already noted Clause 6 of the said award. The moot question is whether the gross revenue of respondent 5 is Rs. 25 crores and above but less than Rs. 75 crores or Rs. 5.5 crores and above but less than Rs. 11 crores. It is the petitioner's case that the gross revenue of respondent 5 is Rs. 25 crores and above but less than Rs. 75 crores and, therefore, respondent 5 falls in Class II of Clause 6 of the Manisana Award. The case of respondent 5, however, is that its gross revenue is Rs. 5.5 crores and above but less than Rs. 11 crores and, therefore, it falls in Class IV of Clause 6 of the said award. It is argued by the respondents that this is not an industrial dispute as defined under the ID Act. We are not inclined to accept this submission. The obvious reason why the petitioner contends that respondent 5 falls in Class II of Clause 6 of the said award is that if the petitioner succeeds in establishing its case, respondent 5's gross revenue will rise and consequently there will be a rise in the wages of the members of the petitioner-union. Therefore, in our opinion, this dispute pertains to terms of the employment or to the conditions of labour of the members of the petitioner-union because it relates to their wages and is consequently an industrial dispute.
9. We must now refer to Section 12 of the ID Act. It reads thus:
12. Duties of conciliation officers:(1) Where an industrial dispute exists or is apprehended, the conciliation officer may, or where the dispute relates to a public utility service and a notice under Section 22 has been given, shall, hold conciliation proceedings in the prescribed manner.
(2) The Conciliation Officer shall, for the purpose of bringing about a settlement of the dispute, without delay, investigate the dispute and all matters affecting the merits and the right settlement thereof and may do all such things as he thinks fit for the purpose of inducing the parties to come to a fair and amicable settlement of the dispute.
(3) If a settlement of the dispute or of any of the matters in dispute is arrived at in the course of the conciliation proceedings the conciliation officer shall send a report thereof to the appropriate Government [or an officer authorized in this behalf by the appropriate Government] together with a memorandum of the settlement signed by the parties to the dispute.
(4) If no such settlement is arrived at, the conciliation officer shall, as soon as practicable after the close of the investigation, send to the appropriate Government a full report setting forth the steps taken by him for ascertaining the facts and circumstances relating to the dispute and for bringing about settlement thereof, together with a full statement of such facts and circumstances, and the reasons on account of which, in his opinion, a settlement could not be arrived at.
(5) If, on a consideration of the report referred to in Sub-section (4), the appropriate Government is satisfied that there is a case for reference to a Board [Labour Court, Tribunal or National Tribunal], it may make such reference. Where the appropriate Government does not make such a reference it shall record and communicate to the parties concerned its reasons therefore.
(6) A report under this section shall be submitted within fourteen days of the commencement of the conciliation proceedings or within such shorter period as may be fixed by the appropriate Government:
[Provided that, [subject to the approval of the conciliation officer] the time for the submission of the report may be extended by such period as maybe agreed upon in writing by all the parties to the dispute.]
10. Sub-section (1) of Section 12 leaves no option to the Conciliation Officer but to admit the dispute in conciliation once he reaches a conclusion that an industrial dispute exists or is apprehended. It is not open for him at that stage to embark upon a detailed enquiry about the merits of the case. Sub-section (2) of Section 12 empowers the Conciliation Officer to investigate the dispute and all matters affecting the merits. But this investigation is to be done with a view to bringing about a settlement. He has to make efforts to induce the parties to come to a fair and amicable settlement. If a settlement is arrived at, he can send a report to that effect to the appropriate Government together with the memorandum of settlement. If no such settlement is arrived at under Sub-section (4), he has to close the investigation and submit a failure report to the appropriate Government, stating the facts and the reasons why a settlement could not be arrived at. Under Sub-section (5) of Section 12, if on a consideration of the report submitted under Sub-section (4), the appropriate Government is satisfied that there is a case for reference to a Board, Labour Court, Tribunal or National Tribunal, it may make such a reference. If the appropriate Government chooses not to make a reference, it has to record reasons therefore and communicate them to the parties. This is the scheme of Section 12. It is obviously in tune with the object of the ID Act which is to make provision for the investigation and settlement of industrial dispute.
11. If this is the scheme of Section 12 of the ID Act and since in fact industrial dispute exists in this case, the Conciliation Officer could not have refused to admit it in conciliation. He virtually adjudicated the demand even before admitting it in conciliation. In our opinion, he has fallen into a grave error. Similar view has been taken by this Court in Philips Workers' Union (supra) and we are in respectful agreement with it.
12. We are not impressed by the submission of learned Counsel for respondent 5 that an alternative remedy is available to the petitioner under Section 36-A of the ID Act. Under Section 36-A of the ID Act, if in the opinion of the appropriate Government, any difficulty or doubt arises as to the interpretation of any provision of any award or settlement, it may refer the question to the Labour Court, Tribunal or National Tribunal as it may think fit. Thus, it is for the appropriate Government to refer the said question to the appropriate forum if any difficulty or doubt arises as to the interpretation of award or settlement. This section does not provide an alternative remedy to the petitioner.
13. We will now examine whether Section 17 of the Working Journalists Act provides alternative remedy to the petitioner. Under Section 17(1) of the Working Journalists Act, a newspaper employee or his heir can make an application to the State Government for the recovery of the amount due to the employee and if the State Government is satisfied that the amount is so due, it shall issue a certificate for that amount to the Collector, and the Collector has to proceed to recover that amount in the same manner as an arrear of land revenue, and if any dispute arises as to the amount due then the State Government may on its own motion or on an application made to it, refer the dispute to the Labour Court. Thus, the amount has to be due and if there is no dispute as to the amount, a certificate is issued and the Collector proceeds to recover the amount in the same manner as an arrear of land revenue. But, if there is dispute as regards the quantum of amount, then a reference can be made by the State Government to the Labour Court for adjudication.
14. While interpreting Section 33-C(2) of the ID Act which is similar to this section, the Constitution Bench of the Supreme Court in Central Bank of India's case (supra) held that these proceedings are like execution proceedings. Claim under Section 33-C(2) postulates determination of the question about computing the benefits in terms of money. In some cases, it may have to be preceded by an inquiry into the existence of that right and such an inquiry must be held to be incidental to the main determination about computation of money. Similar view was taken by the Supreme Court in Inland Water Transport Corporation's case (supra).
15. The dispute in this case is as regards entitlement of the members of the petitioner union to higher wages on the basis that respondent 5 falls in Class II and not in Class IV of Clause 6 of the Manisana Award and, therefore, the basic question which has to be decided is as to in which class respondent 5 falls. That would involve a detailed investigation as regards gross revenue of respondent 5. For that purpose, various documents including the balance sheet of respondent 5 will have to be gone into. Therefore, this is not a mere implementation or execution of the said Manisana Award. The resolution of the dispute as to whether respondent 5 falls in Class II or Class IV of Clause 6 of the Manisana Award is not merely an inquiry incidental to the computation of amount due. It is the main dispute and, therefore, Section 17 would not provide an appropriate remedy for that purpose.
16. Reliance placed by learned Counsel for respondent 5 on the judgment of the Supreme Court in Secretary, Indian Tea Association's case (supra) is misplaced. In that case, the Supreme Court was considering appropriate Government's power of making reference under Section 10 of the ID Act. We are not concerned with that question here. The stage with which we are concerned here is prior to Section 10 of the ID Act. The question is whether under Section 12 of the ID Act, the Conciliation Officer should have admitted the dispute in conciliation or not. The judgment in the Secretary, Indian Tea Association's case (supra) is not applicable to the present case.
17. In the circumstances, in our opinion, the impugned order will have to be set aside. Hence, the following order:
18. The impugned order dated 4/12/2008 passed by respondent 3 is quashed and set aside. Respondent 3 is directed to admit the dispute in conciliation and proceed in accordance with law. The petition is disposed of.