State Govt's Power To Refer Disputes Regarding Newspaper Employee's Dues To Labour Court Cannot Be Delegated: Bombay High Court

"In the absence of any such power of delegation being conferred upon the State Government under Section 17(2) of the Act of 1955 to refer any question as to whether any amount is due under the Act of 1955 to a newspaper employee, such reference has to be made by the State Government itself," the court held.

Justice A. S. Chandurkar and Justice M. W. Chandwani of the Nagpur bench in a writ petition filed by law journal All India Reporter struck down a notification of the state government delegating the power to make reference to the Labour Court to the Additional Commissioner of Labour.

"the notification dated 11/5/2016 would not have any force of law……exercise of such power by the officers mentioned in the Schedule to the notification dated 11/5/2016 would amount to usurping the authority conferred only on the State Government", the court added.

The Majthia Wage Board Award was applicable from November 11, 2011 and according to the petitioner, its employees are getting wages in accordance with that award. According to the All India Reporter Karmachari Sangh, a union of the petitioner's employees, its members are entitled to difference of wages as per Majithia Wage Board from July 01, 2010. The union approached the Additional Commissioner of Labour under section 17 of the 1955 Act. On July 23, 2018 the Additional Commissioner of Labour referred the dispute to the Labour Court.

Petitioner objected to the reference claiming that the Additional Commissioner did not have jurisdiction to refer the dispute to the Labour Court. The trade union opposed the petitioner's objection relying on a notification dated May 11, 2016 (2016 notification) issued by Maharashtra Industries, Energy and Labour Department. This notification assigned the work of making reference under section 17(2) of the Act to the Additional Labour Commissioner.

The Labour Court held that it has jurisdiction to consider and adjudicate the reference. Hence, the petitioner challenged the 2016 notification, as well as the orders of the Additional Labour Commissioner and the Labour Court before the High Court.

Advocate H. V. Thakur for the petitioner submitted that the 2016 notification, issued under section 17(2) of the Act is without jurisdiction as the state government is not empowered delegate the work of referring any question relating to the amount due to an employee under the Act to any Labour Court. Further, this issue is an industrial dispute and the trade union should have invoked the relevant provisions instead of section 17(2) of the 1955 Act.

Advocate V. P. Marpakwar for the trade union submitted that challenge to the 2016 notification was belated as the petitioner filed the present petition in only in September 2019. The petitioner participated in the conciliation proceedings before the Additional Commissioner of Labour. Hence, the petitioner could not challenge the order and the notification. Further, proceedings under section 17(2) of the Act were similar to the proceedings under section 33(C)(2) of the Industrial Disputes Act, 1947.

Thakur stated that there was no occasion for the petitioner to challenge the notification earlier as the Additional Commissioner of Labour only referred to the 2016 notification for the first time in his 2018 order. The petitioner had raised preliminary objection to the proceedings before the Labour Court and immediately filed the present petition once the Labour Court rejected the preliminary objection.

The question before the court was, "whether it is open for the State Government to delegate its power of referring a question arising under the Act of 1955 to any authority or whether such power has to be exercised by the State Government itself".

The court noted that under section 17(1) of the Act, the newspaper employee can seek recovery of any amount due to him by approaching state government. The state government or any authority specified by it may issue certificate to the Collector who can recover the amount in similar manner as arrears of land revenue.

Section 17(2) of the Act provides that if there is any question about the amount due under the Act of 1955, the State Government either suo moto or upon an application made to it has to refer the question to any Labour Court as permitted.

Therefore, in contrast with section 17(1), no such power of delegation has been conferred on the State Government under section 17(2) of the Act, the court observed.

"There is thus a clear distinction contained in the provisions of Sections 17(1) and 17(2) of the Act of 1955 inasmuch as the power of delegation conferred on the State Government under Section 17(1) is missing in Section 17(2) of the Act of 1955", said the court.

The court held that the state government itself has to make any reference to the Labour Court under section 17(2) as there is no provision enabling it to delegate the same. Further, 2016 notification does not have any statutory support of Section 17(2) for the same reason.

"It was not permissible for the Additional Commissioner of Labour to have referred the dispute to the Labour Court under Section 17(2) of the Act of 1955. Such reference under Section 17(2) ought to have been made by the State Government itself. Consequently, the Labour Court was not empowered to proceed further with the reference as made", the court stated.

The court did not examine the issue of whether section 17(2) of the Act is the appropriate remedy in this case since the Additional Commissioner of Labour was not empowered to make the reference to the Labour Court under section 17(2). If the state government refers the dispute under section 17(2) of the Act, the aspect of appropriate remedy can be considered, stated the court.

The court accepted the petitioner's submission that the petition was filed after the petitioner raised preliminary objection before the Labour Court which was rejected and held that the challenge to the 2016 notification was not belated.

Therefore, the Court struck down the 2016 notification as well as set aside the order of the Additional Commissioner of Labour making the reference and the Order of the Labour Court.

Case no. – Writ Petition No. 6402 of 2019

Case title – All India Reporter Private Limited v. State of Maharashtra and Ors.