This petition assails the reference order dated 23.03.2017 passed by the Deputy Labour Commissioner, Moradabad Region, Moradabad thereby referring a dispute, under Section 17 (2) of the Working Journalists and other Newspaper Employees (Conditions of Service) and Miscellaneous Provisions Act, 1955 (in short the Act, 1955) to the Labour Court, Bareilly for adjudication of the following issue:-
"Whether the establishment of M/s. Amar Ujala Publication Ltd., Delhi Road, Moradabad falls in category (v) or category (iii) as per recommendations of Majithia Wage Board. If it falls in category (iii) then to what benefits Sri Amit Tyagi son of Purshottam Tyagi, Sub-Editor, is entitled for the period 11.11.2011 to 01.09.2016."
Before proceeding further it would be appropriate to spell out the background giving rise to the aforesaid order of reference.
The Act, 1955 was enacted to regulate the conditions of service of working journalists and other persons employed in newspaper establishment throughout the country. The Act is a comprehensive piece of legislation dealing with, inter alia, entitlement of gratuity, hours of work, leave as well as fixation of wages payable to the working journalists and non-journalists, newspaper employees, as the case 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 therein. The recommendations of the Wage Board, if accepted, are to be notified by Central Government under Section 12 of the Act, 1955. Section 13 of the Act, 1955 provides that upon coming into operation of the order of the Central Government under Section 12, every working journalists will be entitled to be paid wages at the rate not less than what has been specified in the order. The Central Government, in exercise of its power under Sections 9 and 13C of the Act, 1955 had constituted two Wage Boards under the Chairmanship of one Dr. Justice Narayan Kurup to determine the wages to be paid to working journalists and non-journalists employees. When Justice Narayan Kurup resigned from its Chairmanship, Justice G.P. Majithia was appointed as Chairman of the two Wage Boards. The Wage Boards headed by Justice Majithia submitted its recommendations to the Central Government on 31.12.2010. The same were accepted by the Central Government on 25.10.2011 and a notification to the said effect, under Section 12 of the Act, 1955, was published on 11.11.2011. Various newspaper establishments affected by the Majithia Wage Board award laid challenge to the recommendations of the Wage Board by filing writ petitions before the Apex Court under Article 32 of the Constitution of India. The aforesaid writ petitions challenging the Wage Board recommendations as well as notification dated 11.11.2011 were dismissed by the Apex Court by its judgment and order dated 07.12.2014 passed in ABP (Private Ltd.) v. Union of India : (2014) 3 SCC 327. While dismissing the writ petitions, the apex Court directed "the wages as revised/determined shall be payable from 11.11.2011 when the Government of India notified the recommendations of the Majithia Wage Boards. All the arrears up to March, 2014 shall be paid to all eligible persons in four equal instalments within a period of one year from today and continue to pay the revised wages from April, 2014 onwards."
The Majithia Wage Board award had classified newspaper establishments in different categories based on the average gross revenue of the establishment for the preceding accounting years mentioned therein. Various categories of newspaper establishment based on the average gross revenue were worked out and the working and the non working journalists were classified into different categories. The recommendations were not only with regard to variable pay but also in respect of revised pay of Dearness allowance, House allowance, Transport allowance, Hill area allowance, Hardship allowance, etc. Alleging that wages and allowances as per the Majithia Wage Board award were not paid, various contempt petitions were filed before the Apex Court; and writ petitions were also filed under Article 32 of the Constitution of India alleging arbitrary transfer and termination/retrenchment of the journalists and employees concerned, who claimed to have demanded due implementation of the Majithia Wage Board Award. These contempt petitions as well as writ petitions were decided by the Apex Court by judgment and order dated 19.06.2017, which has been reported and published in journals i.e. Avishek Raja and others v. Sanjay Gupta : (2017) 8 SCC 435.
During the course of the contempt proceedings in Avishek Raja's case (supra), the apex court had passed orders directing all the State Governments acting through their respective Chief Secretaries to appoint Inspectors under Section 17-B of the Act, 1955 to determine as to whether the dues and entitlements of all categories of newspaper employees, including journalists under the Majithia Wage Board Award, has been implemented in accordance with the terms thereof. It was provided that the inspectors shall submit their report to the Court through the Labour Commissioners of each State indicating the precise findings on the issue indicated above.
During the course of proceeding of the Avishek Raja's case (supra), various interlocutory applications were filed alleging wrongful termination of services and fraudulent surrender of the rights under the Wage Board recommendations to avoid liabilities in terms of the order of the apex court. Upon receipt of such applications, the apex court directed the Labour Commissioner of each of the States to look into all such grievances and on determination of the same file necessary reports before the Court. As large number of such applications came before the Apex Court which required investigation into the facts as well, the Apex Court found it appropriate not to monitor the implementation of the Majithia Wage Board recommendations on an individual basis and considered it appropriate to decide certain questions of law which had been formulated by it and to lay down mechanism to implement the Majithia Wage Board Recommendations. Consequently, after deciding the legal aspects that had arisen in the case, the apex court disposed of all the contempt petitions as well as the writ petitions with the following directions:-
"29. Having clarified all doubts and ambiguities in the matter and upon holding that none of the newspaper establishments should, in the facts of the cases before us, be held guilty of commission of contempt, we direct that henceforth all complaints with regard to non-implementation of the Majithia Wage Board Award or otherwise be dealt with in terms of the mechanism provided under Section 17 of the Act. It would be more appropriate to resolve such complaints and grievances by resort to the enforcement and remedial machinery provided under the Act rather than by any future approaches to the Courts in exercise of the contempt jurisdiction of the Courts or otherwise.
30. Insofar as the writ petitions seeking interference with transfer/termination, as the case may be, are concerned, it appears that the same are relatable to service conditions of the concerned writ petitioners. Adjudication of such question in the exercise of high prerogative writ jurisdiction of this Court under Article 32 of the Constitution would not only be unjustified but such questions should be left for determination before the appropriate authority either under the Act or under cognate provisions of law (Industrial Disputes Act, 1947 etc.), as the case may be.
31. In the light of the above, all the contempt petitions as well as the writ petitions filed under Article 32 of the Constitution shall stand answered and disposed of in the terms hereinabove."
At this stage, it would be useful to notice the provisions of section 17 of the Act, 1955 through which the recommendations of the Majithia Wage Board Award were to be implemented. Section 17 of the Act, 1955 is being reproduced herein below:
"17. Recovery of money due from an employer:- 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 the case of the death of the employee, any member 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 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)."
The State Government in exercise of its power under sub-section (1) of section 17 of the Act, 1955, by a notification dated November 12, 2014, published in the official gazette on the same date, specified the officers competent to dispose the applications made under Section 17 of the Act, 1955. The relevant extract of the said notification is as follows:-
"In exercise of the powers under sub-section (1) of section 17 of the Working Journalists and other Newspaper Employees (Conditions of Service) and Miscellaneous Provisions Act, 1955 (Act No. 45 of 1955) and all other power vested in him, read with section 21 of the General Clauses Act, 1897 (Act No. 10 of 1897) and in supersession of notification no. 7421/XXXVI-1-539(ST)/81, dated December 29, 1989, the Governor is pleased to specify the officers mentioned in Column 2 to be "authorities competent" to dispose the applications made under Section 17 of the said Act in the area mentioned in Column 3 against their names in the Schedule given below:--
SCHEDULE Sr. No. Officers Notified Area 8 Additional /Deputy and All Assistant Labour Commissioners posted in Moradabad Region, Moradabad.
Moradabad, Sambhal (Bheem Nagar), Rampur, Bijnor and Jyotibaphule Nagar (Amroha).
"
The respondent no.4 moved an application before the authority, as specified under the notification, for recovery of the dues payable to him under the Majithia Wage Board award by claiming himself to be on the post of Senior Sub-Editor in the petitioner's establishment. A calculation chart was also submitted along with an application thereby making a demand of Rs. 22,53,695.98p as arrears payable. The said application was submitted on 24.10.2016. On the said application, a notice was issued to the petitioner. The petitioner submitted a reply dated 09.11.2016 denying the claim of the respondent no.4 as regards non-implementation of the Majithia Wage Board recommendations as also claiming that a similar application had been made by the respondent no.4 before the Deputy Labour Commissioner, Noida, on 28.09.2016, which is pending. Thereafter, a notice dated 16.12.2016 was issued by the Deputy Labour Commissioner, Moradabad calling upon the petitioner to submit a proper response. It appears, the petitioner, thereafter, raised a dispute as regards the amount payable under the award as also in respect of the category to which M/s. Amar Ujala Publication Ltd, Delhi Road, Moradabad fell i.e. category (v) or category (iii). Upon receipt of objections and noticing a dispute as regards the amount due and payable under the Act, 1955, the Deputy Labouur Commissioner, by the impugned order dated 23.03.2017, referred the dispute for adjudication to the Labour Court, Bareilly. Upon receipt of the reference, the labour court, Bareilly issued summons on 18.05.2017.
Assailing the reference order dated 23.03.2017 passed by the Deputy Labour Commissioner, Moradabad (second respondent) and the consequential proceedings, this petition has been filed.
I have heard Sunil Tripathi, Sri Pandey Rajeev Rajhans and Sri Bharat Kumar Srivastava for the petitioner; and Sri Manish Goyal, learned Additional Advocate General, assisted by Sri Nitin Kumar Agarwal, for the State-respondents.
The learned counsel for the petitioner assailed the reference order by claiming that under sub-section (2) of section 17 of the Act, 1955, the power to make a reference vests exclusively in the State Government and that power cannot be delegated under the Act and therefore the reference order by the Deputy Labour Commissioner is without jurisdiction and as such the said order as well as consequential proceedings are liable to be quashed. It has been contended that section 17 of the Act, 1955 contemplates two different fact situations. The first situation is where any amount under the Act is due and payable to a newspaper employee; and the second situation is where there is a dispute as regards the amount due under the Act. If there is no dispute as regards the amount due under the Act to a newspaper employee from any employer, the State Government or the authority, as the State Government may specify in that behalf, is empowered to issue a certificate of that amount to the Collector, upon which the Collector would recover that amount as an arrear of land revenue. But where a question arises as to what amount is due under the Act to a newspaper employee from his employer, it is only the State Government which can, on its own motion or on an application made to it, refer the question to a labour court constituted by it. It has been submitted that the power to refer the dispute vests exclusively in the State Government and such power of reference cannot be exercised by the Deputy Labour Commissioner as such the impugned order of reference is void and so are the consequential proceedings.
The learned counsel for the petitioner has urged that in sub-section (2) of section 17 of the Act there is conscious omission of the words "such authority, as the State Government may specify in this behalf" and such omission cannot be supplied by way of judicial interpretation in view of rule of casus omissus. It has been urged that sub-section (2) contemplates a separate application for reference although the State Government may, also, on its own motion, make a reference upon coming to know about dispute but, in no case, reference, under sub-section (2) of section 17 can be made by the authority specified under sub-section (1) of section 17.
To buttress his submissions, the learned counsel for the petitioner has placed reliance on a three Judges Bench decision of the Apex Court in Indore Development Authority v. Shailendra & others : (2018) 3 SC 412 where the apex court had observed that it is not open to the Court to recast, rewrite, or reframe the provision. The court cannot assume omission and add or amend words. Plain and unambiguous construction has to be given without addition and substitution of the words. The temptation of substituting words by explaining what it thought legislation is endeavoring is to be discouraged. Court has to consider what has been said and what has not been said. It is wrong and dangerous to proceed by substituting some other words for the words of the statute. When literal reading produces an intelligible result it is not open to read words or add words to statute. Making any generous addition to the language of the Act would not be a construction of the statutory provision; rather, would be an amendment thereof. While interpreting the provision the Court only interprets the law. The intention of the legislation must be found by the words used by the legislature itself. The legislative casus omissus cannot be supplied by judicial interpretative process. When language of the provision is clear, there is no scope for reading something into it. The scenario that thus emerges in relation to an interpretation of a statute can be explained as follows. It is a salutary principle that it is not open to the Court to add or substitute some words in place of the words of the statute. The court cannot reframe the legislation. The court cannot add to, or amend, the provisions; neither can the expressions used in the statute be treated as fungible.
Sri Sunil Tripathi has also placed reliance on decision of Gujarat High Court in the matter of Divya Bhaskar Corp. v. State of Gujarat : 2018 SCC Online Guj 193 and of the Bombay High Court in Navbharat Press Employees Union v. State of Maharashtra : 2009 SCC Online Bom 1601 so as to contend that under sub-section (1) of section 17 of the Act, 1955, the authority is not vested with any adjudicatory power and, in the event of a dispute, the only recourse is to the provision of reference, under sub-section (2) of section 17 of the Act, by the State Government, to a labour court for adjudication.
In nutshell, the submission on behalf of the petitioner is that the Deputy Labour Commissioner, under sub-section (1) of section 17 of the Act is an authority specified by the State Government only for the limited purpose of satisfying itself whether an amount under the Act is due to a newspaper employee from any employer and if it is satisfied that such amount is due it can issue a certificate for that amount to the Collector, and the Collector shall proceed to recover the same as an arrear of land revenue. But the moment the specified authority comes to a conclusion that the amount is disputed, it must stop at that moment and may send a report to the State Government for taking action under sub-section (2) or leave it open to the newspaper employee to move an application under sub-section (2) of section 17 of the Act to the State Government for a reference to the labour court. But, on his own, the specified authority cannot make a reference to the labour court. Therefore the impugned order of reference is without jurisdiction and void.
Per Contra, Sri Manish Goyal, learned Additional Advocate General, submitted that the provisions of section 17 of the Act constitute a single scheme. An application is to be submitted under sub-section (1) of section 17 by the newspaper employee claiming the amount due to him under the Act from an employer. Upon receipt of an application under sub-section (1), the State Government or the authority specified by the State Government has to satisfy itself as regards the amount due. In case a question arises concerning the amount due, a reference is to be made under sub-section (2) of section 17 to the labour court for adjudication. Upon such reference, the labour court has to adjudicate the issue as if it was a matter referred to it for adjudication under any corresponding law relating to investigation and settlement of industrial disputes in force in the State. Whereafter, under sub-section (3), the decision of the labour court is to be forwarded to the State Government which made the reference whereupon the amount found due by the labour court is to be recovered in the manner provided in sub-section (1) of the Act, 1955.
Sri Goyal submitted that the object of putting all the three parts: (a) raising of claim; (b) reference of dispute; and (c) adjudication of the claim and consequential recovery, under the same section clearly reflects the legislative intent of creating a seamless system for recovery of money due from an employer under the Act.
It has been submitted by Sri Goyal that section 17 of the Act does not contemplate adjudication of the dispute by the State Government and neither it contemplates exercise of any legislative power by the State Government therefore the State Government can clearly delegate its power to make a reference.
Sri Goyal submitted that the Governor in exercise of its power under sub-section (1) section 17 of the Act, 1955 and all other powers vested in it and in exercise of its power under Section 21 of the General Clauses Act, in supersession of all the existing notifications in that behalf, had authorised the Deputy Labour Commissioner, Moradabad to dispose applications under Section 17 of the Act, 1955. Meaning thereby that the Deputy Labour Commissioner, Moradabad was not only empowered to recover the amount due under sub-section (1) of section 17 of the Act but also to make a reference under sub-section (2) of the Act because such a reference is a step-in-aid to disposal of the application under sub-section (1) of section 17 of the Act.
Sri Goyal further submitted that the application under sub-section (1) of section 17 of the Act initiates a process which, upon a dispute being raised, is referred to the labour court under sub-section (2) of section 17 of the Act, 1955. The labour court, thereafter, takes a decision and forwards its decision to the referring authority, which takes recourse to its power under sub-section (1) of section 17 and effects recovery. The process that starts by making of an application under sub-section (1) is brought to its logical conclusion by making of recovery on the basis of the steps taken under sub-section (2) and sub-section (3) of section 17 of the Act. It has thus been contended by him that as the State Government under sub-section (1) of section 17 of the Act, 1955 has authorised the Deputy Labour Commissioner, Moradabad to dispose applications under Section 17 of Act, 1955 a reference order passed by the Deputy Labour Commissioner, Moradabad cannot be said to be without jurisdiction and, therefore, the writ petition is liable to be dismissed.
Sri Goyal in support of his submission had placed a decision of the apex court in Samarjit Ghosh v. M/s. Bennett Coleman and Co. & another : (1987) 3 SCC 507 where, in paragraph 6 of the report, the apex court had observed that when all the provisions of section 17 are considered together it is apparent that they constitute a single scheme. In simple terms the scheme is this. A newspaper employee, who claims that an amount due to him has not been paid by his employer, can apply to the State Government for recovery of the amount. If no dispute arises as to the amount due the Collector will recover the amount from the employer and pay it over to the newspaper employee. If a question arises as to the amount due, it is a question which arises on the application made by the newspaper employee, and the application having been made before the appropriate State Government it is that State Government which will call for an adjudication of the dispute by referring the question to a Labour Court. When the Labour Court has decided the question, it will forward its decision to the State Government which made the reference, and thereafter the State Government will direct that recovery proceedings shall be taken. In other words the State Government before whom the application for recovery is made is the State Government which will refer the question as to the amount due to a Labour Court, and the Labour Court upon reaching its decision will forward the decision to the State Government, which will then direct recovery of the amount.
Relying on the above judgment, Sri Goyal had submitted that it is the State Government before whom the application for recovery is made is the State Government which will refer the question, as to the amount due, to a Labour Court. Meaning thereby if the State Government has empowered any authority under sub-section (1) of section 17 of the Act to deal with such applications, it is that authority which gets power to make a reference as well.
Sri Goyal had further placed reliance on a decision of the Apex court in Madanlal Fakirchand Dudhediya v. Shree Changdeo Sugar Mills Ltd. And others : AIR 1962 SC 1543 so as to contend that two sub-sections must be read as parts of an integral whole and as being inter-dependent; an attempt should be made in construing them to reconcile them if it is reasonably possible to do so, and to avoid repugnancy.
Relying on the aforesaid decision, Sri Goyal submitted that harmonious constructions of the three sub-sections of section 17 of the Act would make it clear that the authority to whom an application is made under sub-section (1) of section 17 of the Act is the authority which is competent to make a reference under sub-section (2) of the Act and the same authority is also competent to recover the amount due upon adjudication of the reference by the labour court.
Reliance has also been placed by Sri Goyal on a decision of the Apex Court in Sirsilk Ltd. v. Government of Andhra Pradesh and another : AIR 1964 SC 160 where also the apex court had made an attempt to reconcile the two provisions of Industrial Disputes Act so as to resolve the conflict, if any.
In addition to above, reliance has also been placed on decision of the Apex Court in University of Allahabad and others v. Amrit Chand Tripathi and others : AIR 1987 SC 57 where it was held that provisions of a Statute have to be construed harmoniously so as to eliminate any conflict and without rendering any provision of the Act superfluous. By placing reliance on the aforesaid decision, Sri Goyal submitted that the provisions of sub-section (1) of section 17 of the Act when read with provisions of sub-section (2) and sub-section (3) of section 17 of the Act, discloses the intention of the legislature to create seamless and smooth system for recovery of amount due to a newspaper employee from any employer so that the employee may not be required to rush from one window to another to recover the amount claimed and therefore on a single application under sub-section (1) of section 17 of the Act, not only recovery can be made but even a reference can be made for adjudication and, dependent on answer to the reference, recovery can be effected by taking recourse to the provisions of sub-section (1) of section 17 of the Act.
Sri Goyal had also submitted that omission to use the words "such authority, as the State Government may specify", in sub-section (2) is not reflective of the legislative intent to take away the power of reference from the authorities specified under sub-section (1). Because having conferred power on the State Government to specify any authority under sub-section (1), it was not necessary for the legislature to again use the words "such authority, as the State Government may specify" in sub-section (2) of the Act inasmuch as such words would have been superfluous keeping in mind that a single scheme was contemplated by section 17 of the Act.
In nutshell, submission of Sri Goyal is that since the State Government has conferred powers on the Deputy Labour Commissioner to dispose of the applications under Section 17 of the Act, it includes the power to make a reference and as such the reference made cannot be said to be without jurisdiction.
I have given thoughtful consideration to the submissions of the learned counsel for the parties and have perused the record carefully., Before dealing with the rival submissions, it would be apposite to notice the original section 17 that existed in the Act, 1955 prior to its substitution by Act No. 65 of 1962.
Section 17 of the Act, as it existed before the amendment carried out by Act No. 65 of 1962, was as follows:-
"17. Recovery of money due from an employer:- Where any money is due to a newspaper employee from an employer under any of the provisions of this Act, whether by way of compensation, gratuity or wages, the newspaper employee may, without prejudice to any other mode of recovery, make an application to the State Government for the recovery of the money due to him, and if the State Government or such authority, as the State Government may specify in this behalf is satisfied that any money 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."
In M/S. Kasturi And Sons (Private) vs Shri N. Salivateeswaran And and another : AIR 1958 SC 507, the scope of power conferred by section 17 came for examination before a Five Judges Bench of the Apex Court. The Apex Court had held that the enquiry contemplated by section 17 is a summary enquiry of a very limited nature and its scope is confined to investigation of a 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. In that case the apex court had repelled the argument 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. The apex court had held that adjudicatory powers were not conferred by the provisions of the Statute on State Government or the specified authority and therefore, in the event of there being a dispute, the specified authority or the State Government had no power to enter upon the dispute and adjudicate and thereafter effect recovery.
The Act No. 65 of 1962 substituted the then existing section 17 by the provisions which have already been extracted above. A comparison of the two provisions would reveal that in the unamended section 17 of the Act the legislature had after using the words "where any money is due to a newspaper employee from an employer under any of the provisions of this Act" had illustrated the same by use of the words "whether by way of compensation, gratuity or wages". The present provision does not qualify the amount due under the Act by using any illustration as was used earlier. Further, the insertion of sub-section (2) and sub-section (3) in section 17 of the Act, by Act No. 65 of 1962, reveals the legislative intent to create a seamless scheme to ensure that in case of a dispute as regards the amount due to a newspaper employee, a reference could be made to the labour court and the decision of the labour court could be communicated straightaway to the authority to effect recovery as per the process contemplated by sub-section (1).
The apex court in the case of Samarjit Ghosh's case (supra) had therefore observed that when all the provisions of section 17 are considered together it is apparent that they constitute a single scheme. The apex court in Samarjit Ghosh's case (supra) was dealing with a situation where a newspaper employee had moved an application under section (1) of section 17 of the Act for recovery of dues. A dispute in respect of those dues had been raised and, in the meantime, the newspaper employee had been transferred to a State other than the State where he had moved an application under sub-section (1) of section 17 of the Act. A question arose as to which State Government would have a right to make a reference under sub-section (2) of section 17 of the Act for adjudication of the dispute to effect recovery under sub-section (1). In that context, the apex court had observed that it was the State Government before whom the application of recovery is made which will refer the question as to the amount due to the labour court and the labour court, upon receiving its decision, will forward its decision to the State Government, which will then direct recovery of the amount. While holding so, the apex court had examined the provisions of the Act and had come to a conclusion that when all the provisions of section 17 are considered together, it is apparent that they constituted a single scheme.
Further, under the Act, 1955, in exercise of powers under section 20 of the Act, 1955, Working Journalists (Conditions of Service) and Miscellaneous Provisions Rules, 1957 (in short Rules, 1957) have been framed. Rule 36 of Rules, 1957 provides for an application under Section 17 of the Act. It reads as follows:-
"36. Application under section 17 of the Act. -- An application under section 17 of the Act shall be made in Form ''C' to the Government of the State, where the Central Office or the Branch Office of the newspaper establishment in which the newspaper employee is employed, is situated."
Form 'C' has been provided in the Rules, 1957. Title of the application as denoted by Form C is as follows:
"FORM 'C' APPLICATION UNDER SUB-SECTION (1) OF SECTION 17 OF THE ACT 45 OF 1955 (Rule 36) The aforesaid application is addressed to the Secretary to the Government..........."
The Rules, 1957 do not provide for any separate application other than application under sub-section (1) of section 17 of the Act.
Having gone through the provisions of the Act, 1955, the Rules framed thereunder, the decisions cited by the learned counsel for the parties and, in particular, the decision of the Apex Court in Samarjit Ghosh's case (supra), this Court is of the firm view that section 17 of the Act, 1955 contemplates a seamless single scheme for recovery of amount due to a newspaper employee from any employer under the Act, 1955. The application by a newspaper employee is to be filed under sub-section (1) of section 17 of the Act, as per Rule 36 of Rules, 1957. That application can be filed before the State Government or such authority, as the State Government may specify in that behalf. Where there exists no dispute, the State Government or the authority, so specified, upon being satisfied that any amount is so due, shall issue a certificate for that amount to the Collector and the Collector would, thereafter, recover that amount as an arrear of land revenue. Where a question or dispute arises then a reference is to be made to the labour court for adjudication of the dispute. After adjudicating the dispute, the labour court has to forward its decision to the State Government or authority which made the reference, upon which the amount is to be recovered in the manner provided by sub-section (1) of the Act. Since Section 17, as a whole, creates a single seamless scheme, the State Government, in exercise of its power under sub-section (1) can specify an authority to do all acts which it has power to do under Section 17 of the Act.
In the State of Uttar Pradesh, the State Government, by notification dated 12th November, 2016, has delegated its powers to the Additional/Deputy/Assistant Labour Commissioners of the regions specified to dispose application made under section 17 of the Act, 1955. The notification does not limit the delegation to exercise of power contemplated by sub-section (1) of section 17. It is a broad delegation to exercise power to dispose application under Section 17. Once such power has been conferred upon the Additional/Deputy/Asst. Labour Commissioner, in case of a dispute, the Deputy Labour Commissioner is also empowered to make a reference and such reference would be on behalf of the State Government as one contemplated by sub-section (2) of section 17 of the Act.
The contention of the learned counsel for the petitioner that there is a conscious omission of the words "such authority, as the State Government may specify in this behalf" in sub-section (2) of section 17 of the Act, 1955 and therefore it would be deemed that reference can be made only by the State Government and not by the specified authority cannot be accepted because when various parts of section 17 are read as a whole a single seamless scheme emerges. Even otherwise, the notification of the State Government delegates power to the authority specified to deal with applications under Section 17 which necessarily includes power to make reference under Section 17(2).
It may be observed that a reference under sub-section (2) of section 17 of the Act does not contemplate exercise of judicial/quasi-judicial power and therefore the power which vests in the State Government to make a reference can be delegated and, in fact, by the notification dated 12th November, 2014, the State Government has clearly delegated its power by specifying the authorities who are competent to dispose the applications contemplated by section 17 of the Act. In fact, reference on an application under sub-section (1) upon a question having arisen is a step-in-aid of final disposal of an application under section 17 (1) of the Act, 1955 and, therefore, by conferring power on the specified authority to dispose the application under Section 17, the State Government, by necessary implication, has conferred power to make a reference as well.
The argument of the petitioner's counsel that upon dispute a fresh application would have to be submitted before the State Government for reference before the State Government, if accepted, would defeat the legislative intent of creating a single seamless scheme for recovery of the dues.
The decisions of the Gujarat High Court and of the Bombay High Court in the matter of Divya Bhaskar Corp. (supra) and in Navbharat Press Employees Union's case (supra), respectively, relied upon by the learned counsel for the petitioner are of no help to him because in all those cases, no such issue, as has arisen before this Court, was there, inasmuch as, neither the Gujarat High Court nor the Bombay High Court had dealt with the issue as to whether the power of making a reference could be exercised by the specified authority under a notification of the State Government.
The contention of the learned counsel for the petitioner that by reading 'specified authority' in sub-section (2) of section 17 of the Act by judicial interpretation would amount to filling up a conscious omission in the Act and therefore would be hit by doctrine of casus omissus may now be considered. The rule of casus omissus i.e. what has not has been provided for in the Statute cannot be supplied by the courts, is a rule of interpretation. In Padma Sundara Rao and others v. State of T.N. And others : (2002) 3 SCC 533, a Constitution Bench of this Court, comprising five Hon'ble Judges, in paragraph 15 of the report, had observed as follows:-
"Two principles of construction one relating to casus omissus and the other in regard to reading the statute as a whole appear to be well settled. Under the first principle a casus omissus cannot be supplied by the Court except in the case of clear necessity and when reason for it is found in the four corners of the statute itself but at the same time a casus omissus should not be readily inferred and for that purpose all the parts of a statute or section must be construed together and every clause of a section should be construed with reference to the context and other clauses thereof so that the construction to be put on a particular provision makes a consistent enactment of the whole statute. This would be more so if literal construction of a particular clause leads to manifestly absurd or anomalous results which could not have been intended by the Legislature. "An intention to produce an unreasonable result", said Danckwerts, L.J., in Artemiou v. Procopiou (1966 1 QB 878), "is not to be imputed to a statute if there is some other construction available". Where to apply words literally would "defeat the obvious intention of the legislation and produce a wholly unreasonable result" we must "do some violence to the words" and so achieve that obvious intention and produce a rational construction. [Per Lord Reid in Luke v. I.R.C. (1966 AC 557) where at p. 577 he also observed: "this is not a new problem, though our standard of drafting is such that it rarely emerges".]"
In Singareni Collieries Company Ltd. v. Vemuganti Ramakrishan Rao and others : (2013) 8 SCC 789, a two Judges Bench of the Apex Court had the occasion to deal with the doctrine of casus omissus. In paragraph 19, 20 and 21, the apex court had observed as follows:-
"19. Firstly, because while applying the doctrine of casus omissus the Court has to look at the entire enactment and the scheme underlying the same. In the case at hand, we find that Parliament has, wherever it intended, specifically provided for exclusion of time requisite for obtaining a copy of the order. For instance, under Section 28A which provides for re-determination of the amount of compensation on the basis of the Award of the Court, the aggrieved party is entitled to move a written application to the Collector within three months from the date of the Award of the Court or the Collector requiring him to determine the amount of compensation payable to him on the basis of the amount Awarded by the Court. Proviso to Section 28A specifically excludes the time requisite for obtaining a copy of the Award while computing the period of three months within which the application shall be made to the Collector. It reads:
"28A. Re- determination of the amount of compensation on the basis of the Award of the Court.- (1) Where in an Award under this part, the court allows to the applicant any amount of compensation in excess of the amount Awarded by the collector under section 11, the persons interested in all the other land covered by the same notification under section 4, sub-section (1) and who are also aggrieved by the Award of the Collector may, notwithstanding that they had not made an application to the Collector under section 18, by written application to the Collector within three months from the date of the Award of the Court require that the amount of compensation payable to them may be re- determined on the basis of the amount of compensation Awarded by the Court:
Provided that in computing the period of three months within which an application to the Collector shall be made under this sub- section, the day on which the Award was pronounced and the time requisite for obtaining a copy of the Award shall be excluded." (emphasis supplied) Absence of a provision analogous to proviso to Section 28A (supra) in the scheme of Section 11-A militates against the argument that the omission of such a provision in Section 11-A is unintended which could be supplied by the Court taking resort to the doctrine of casus omissus.
20. Secondly, because the legal position regarding applicability of the doctrine of casus omissus is settled by a long line of decisions of this Court as well as Courts in England. Lord Diplock in Wentworth Securities v. Jones (1980) AC 1974, revived the doctrine which was under major criticism, by formulating three conditions for its exercise namely, (1) What is the intended purpose of the statute or provision in question; (2) Whether it was by inadvertence that the draftsman and the Parliament had failed to give effect to that purpose in the provision in question; and (3) What would be the substance of the provision that the Parliament would have made, although not necessarily the precise words that the Parliament would have used, had the error in the Bill been noticed. The House of Lords while approving the above conditions in Inco Europe v. First Choice Distribution (2000) 1 All ER 109, went further to say that there are certain exceptions to the rule inasmuch the power will not be exercised when the alteration is far-reaching or when the legislation in question requires strict construction as a matter of law.
21. The legal position prevalent in this country is not much different from the law as stated in England. This Court has in several decisions held that casus omissus cannot be supplied except in the case of clear necessity and when reason for it is found within the four corners of the statute itself. The doctrine was first discussed by Justice V.D. Tulzapurkar in the case of Commissioner Of Income Tax, Central Calcutta v. National Taj Tradus (1980) 1 SCC 370. Interpretative assistance was taken by this Court from Maxwell on Interpretation of Statutes (12th Edn.) pg. 33 and 47. The Court said:
"10. Two principles of construction-one relating to casus omissus and the other in regard to reading the statute as a whole-appear to be well settled. In regard to the former the following statement of law appears in Maxwell on Interpretation of Statutes (12th Edn.) at page 33:
Omissions not to be inferred-"It is a corollary to the general rule of literal construction that nothing is to be added to or taken from a statute unless there are adequate grounds to justify the inference that the legislature intended something which it omitted to express. Lord Mersey said: 'It is a strong thing to read into an Act of Parliament words which are not there, and in the absence of clear necessity it is a wrong thing to do.' 'We are not entitled,' said Lords Loreburn L.C., 'to read words into an Act of Parliament unless clear reason for it is to be found within the four corners of the Act itself.' A case not provided for in a statute is not to be dealt with merely because there seems no good reason why it should have been omitted, and the omission in consequence to have been unintentional.
In regard to the latter principle the following statement of law appears in Maxwell at page 47:
A statute is to be read as a whole-"It was resolved in the case of Lincoln College (1595) 3 Co. Rep. 58 that the good expositor of an Act of Parliament should 'make construction on all the parts together, and not of one part only by itself.' Every clause of a statute is to 'be construed with reference to the context and other clauses of the Act, so as, as far as possible, to make a consistent enactment of the whole statute.' (Per Lord Davey in Canada Sugar Refining Co., Ltd. v. R: 1898 AC 735) In other words, under the first principle a casus omissus cannot be supplied by the Court except in the case of clear necessity and when reason for it found in the four corners of the statute itself but at the same time a casus omissus should not be readily inferred and for that purpose all the parts of a statute or section must be construed together and every clause of a section should be construed with reference to the context and other clauses thereof so that the construction to be put on a particular provision makes a consistent enactment of the whole statute. This would be more so if literal construction of a particular clause leads to manifestly absurd or anomalous results which could not have been intended by the Legislature. "An intention to produce an, unreasonable result", said Danckwerts L.J. in Artemiou v. Procopiou [1966] 1 Q.B. 878 "is not to be imputed to a statute if there is some other construction available." Where to apply words literally would "defeat the obvious intention of the legislation and produce a wholly unreasonable result" we must "do some violence to the words" and so achieve that obvious intention and produce a rational construction, (Per Lord Reid in Luke v. I.R.C.-1968 AC 557 where at p. 577 he also observed: "this is not a new problem, though our standard of drafting is such that it rarely emerges. In the light of these principles we will have to construe Sub-section (2)(b) with reference to the context and other clauses of Section 33B." ".
In a recent decision of the apex court in Central Bureau of Investigation, Bank Securities and Fraud Cell v. Ramesh Gelli and others : (2016) 3 SCC 788, while concurring with the view taken by his Lordship Hon'ble P.C. Pant, J, His Lordship Hon'ble Ranjan Gogoi, J., in paragraph 40, 41, and 42 of the report, had dealt with the rule of casus omissus and had observed as follows:-
"40. Though the rule of casus omissus i.e. "what has not been provided for in the statute cannot be supplied by the Courts" is a strict rule of interpretation there are certain well known exceptions thereto. The following opinion of Lord Denning in Seaford Court Estates Ltd. Vs. Asher[3] noticed and approved by this Court may be taken note of.
"...The English language is not an instrument of mathematical precision. Our literature would be much the poorer if it were ....He (The Judge) must set to work in the constructive task of finding the intention of Parliament, and he must do this not only from the language of the statute, but also from a consideration of the social conditions which gave rise to it, and of the mischief which it was passed to remedy, and then he must supplement the written word so as to give "force and life" to the intention of the legislature.....A judge should ask himself the question, how, if the makers of the Act had themselves come across this ruck in the texture of it, they would have straightened it out? He must then do as they would have done. A judge must not alter the material of which the Act is woven, but he can and should iron out the creases."
41. In Magor & St. Mellons Rural District Council Vs. Newport Corporation[4] the learned judge restated the above principles in a somewhat different form to the following effect:
"We sit here to find out the intention of Parliament and of ministers and carry it out, and we do this better by filling in the gaps and making sense of the enactment than by opening it up to destructive analysis."
42. Though the above observations of Lord Denning had invited sharp criticism in his own country we find reference to the same and implicit approval thereof in the judicial quest to define the expression "industry" in Bangalore Water Supply & Sewerage Board Vs. A Rajappa and Others[5]. Paragraphs 147 and 148 of the opinion of Chief Justice M.H. Beg in Bangalore Water Supply & Sewerage Board (supra), which are quoted below, would clearly indicate the acceptance of this Court referred to earlier.
"147. My learned Brother has relied on what was considered in England a somewhat unorthodox method of construction in Seaford Court Estates Ltd. v. Asher [(1949 2 ALL ER 155, 164], where Lord Denning, L.J., said : When a defect appears a Judge cannot simply fold his hands and blame the draftsman. He must set to work on the constructive task of finding the intention of Parliament - and then he must supplement the written words so as to give 'force and life' to the intention of legislature. A Judge should ask himself the question how, if the makers of the Act had themselves come across this ruck in the texture of it, they would have straightened it out? He must then do as they would have done. A Judge must not alter the material of which the Act is woven, but he can and should iron out the creases.
When this case went up to the House of Lords it appears that the Law Lords disapproved of the bold effort of Lord Denning to make ambiguous legislation more comprehensible. Lord Simonds found it to be "a naked usurpation of the legislative function under the thin disguise of interpretation". Lord Morton (with whom Lord Goddard entirely agreed) observed: "These heroics are out of place" and Lord Tucker said "Your Lordships would be acting in a legislative rather than a judicial capacity if the view put forward by Denning, L.J., were to prevail."
148. Perhaps, with the passage of time, what may be described as the extension of a method resembling the "arm-chair rule" in the construction of wills. Judges can more frankly step into the shoes of the legislature where an enactment leaves its own intentions in much too nebulous or uncertain a state. In M. Pentiah v. Muddala Veeramallappa [(1961) 2 SCR 295], Sarkar, J., approved of the reasoning, set out above, adopted by Lord Denning. And, I must say that, in a case where the definition of "industry" is left in the state in which we find it, the situation perhaps calls for some judicial heroics to cope with the difficulties raised."
From the decisions noticed above, it is clear that casus omissus cannot be supplied by the Court except in the case of clear necessity and when reason for it is found in the four corners of the statute itself but at the same time a casus omissus should not be readily inferred and for that purpose all the parts of a statute or section must be construed together and every clause of a section should be construed with reference to the context and other clauses thereof so that the construction to be put on a particular provision makes a consistent enactment of the whole statute.
In the instant case, when the entire section 17 of the Act, 1955 is read as a whole, it cannot be said that the legislature intentionally omitted the words "such authority, as specified by the State Government", from sub-section (2) of section 17 of the Act because by providing the power of delegation in sub-section (1) of section 17 of the Act, keeping in mind the scheme of the entire section 17 of the Act, 1955, the State Government was empowered to delegate its power to deal with applications contemplated under Section 17 of the Act, 1955. Otherwise also, the State Government under its general power of delegation by notification can delegate exercise of its administrative power.
In the instant case, the State Government had empowered the Deputy Labour Commissioner to dispose of application under Section 17 of the Act which would include power to refer to the labour court as it was a step-in-aid for disposal of the application under sub-section (1) of Section 17 of the Act. Therefore the specified authority did not lack jurisdiction to make a reference to the labour court. Accordingly, the reference order does not suffer from jurisdictional error.
No other point was pressed.
Consequently, the petition lacks merit and is accordingly dismissed.
Order Date :- 31.5.2018 Sunil Kr Tiwari