Advocate, Supreme Court
Analysing the order passed by the Supreme Court in the contempt petitions filed by employees against the newspaper establishments, it is evident that the core issue of wilful contempt, deliberate non-compliance of the directions issued by Supreme Court on 7/2/2014 and subsequent acts done by the newspaper establishments in discouraging the employees from claiming money to wage board benefits has escaped the attention of Supreme Court.
Going into the background of the matter, it is evident that all the newspaper establishments have challenged the Majithai Wage Board award as notified by the Central government directly before the Supreme Court in a writ petition under Article 32 of the Constitution of India. Supreme Court heard the aforesaid writ petitions at length and finally wide its orders of 7/2/2014, dismissed all the writ petition thereby upholding the notification of the Central Government.
The Supreme Court further issued time-bound directions for implementation of the said award and payment of the benefits due under the aforesaid award to the employees within one year in four equal quarterly installments. Supreme Court further issued directions for payment of the benefits of midget wage board with effect from first of April 2014. The operative part of the historic order is as under:
71) Accordingly, we hold that the recommendations of the Boards are valid in law, based on genuine and acceptable considerations and there is no valid ground for interference under Article 32 of the Constitution of India.
72) Consequently, all the writ petitions are dismissed with no order as to costs.
73) In view of our conclusion and dismissal of all the writ petitions, 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 installments within a period of one year from today and continue to pay the revised wages from April 2014 onwards.
74) In view of the disposal of the writ petitions, the contempt petition is closed.
It was for the first time that Supreme Court has upheld the legality of any Wage Board Award and issued specific directions for the implementation of the same. The legal effect of the same is that the award merged in the orders of the court. As was expected, none of the newspaper establishments complied with the aforesaid directions issued by Supreme Court and resorted to dishonest and myriad devices to overreach the specific time-bound directions issued by the Supreme Court. Not all but a handful of newspaper employees on the basis of the orders of Supreme Court demanded their benefits under the aforesaid order.
As expected, the newspaper establishments refused to release the benefits despite very clear and specific directions of Supreme Court and more clear notification issued by the Central government which categorizes the newspaper establishment on the basis of its gross revenue and places the employees on the basis of their duties and posts in particular category. Most of the employees demanding the aforesaid benefits were either denied the said benefits or harassed, victimized for their such demands. Instances of large-scale transfer, termination, discharge took place in various newspapers establishments for obvious reasons of discouraging the employees from claiming their rights under the wage board award.
Since the wage board award was upheld by the Supreme Court and specific directions were issued by the Supreme Court for implementation of the wage board award, the non-compliance of the aforesaid orders and non-implementation of the award clearly amounted to contempt of the orders of Supreme Court dated 7/2/2014 in Writ Petition No. ( C) 246 of 2011. A large number of employees, unions, representative of employees approached the honorable Supreme Court against the employers claiming that the employers have committed contempt of court by not implementing the orders of the court and by not granting the benefits accrued to them under the wage board award.
In total around 82 such petitions involving thousands of employees were filed and taken on board for hearing by the Supreme Court. The hearing in such matters commenced and the Supreme Court passed various interlocutory orders seeking compliance or non-compliance of the orders. As expected, most of the newspaper establishments resorted to twisting of facts, misrepresentations and raising frivolous legal objections before the court and the matter drifted from the core issue of deliberate, willful and intentional non-compliance of the orders of Honorable Supreme Court to some legal issues such as payment of VDA, entitlement of contractual employees, extraction of signatures on clause 20 (j) of the Majithia Wage Board Award besides several other related issues.
Since these issues were mainly raised on behalf of the employees, the employers got the golden opportunity to create controversy on the understanding of the wage board and proper implementation thereby creating an alibi of dispute and non-entitlement of the employees besides various other fake issues of serious losses, incapacity to pay the wage board recommendations etc. With the advancement of arguments on these issues the employees were very happy about arguments by their counsels on these issues and became very hopeful that Supreme Court is going to hold all these issues in their favor.
The emphasis also drifted away from the main and core issue of deliberate non-implementation of the orders on the fancy arguments presented by some of the counsels on behalf of the employees. The courts have limited powers under contempt of court jurisdiction, the raising of such unrelated issues was a strategic mistake on the part of the counsels for employees which opportunity was grabbed by the team of lawyers deputed by the newspaper establishments to defend themselves.
At one stage of the matter, the judges were very aggressive and particular to get their orders implemented however in the absence of any specified machinery and due to the raising of unrelated issues, the courts drifted away from the intention of seeking the compliance of the orders through labor authorities. Earlier labor commissioners, as well as the Chief Secretaries of the respective states, were directed to file reports with regard to the implementation of the orders.
After some time the said process was found to be ineffective by the Supreme Court hence dropped. The main reason for dropping the said procedure is the raising of various legal issues from the side of the employees which suited the teleological concept of justice and the judges also got drifted with the same. It is a matter of record that in some of the reports submitted by the labor authorities before Supreme Court, it was reflected on the records that some of the establishments have not implemented the aforesaid orders of Supreme Court. It was a clear case of contempt however the Supreme Court lost sight of the aforesaid facts once detailed arguments on several legal issues were raised on behalf of the employees.
After prolonged hearings, the Supreme Court finally reserved the matters on 3rd of May 2017 for orders and finally pronounced the same on 19th of June 2017. The court wide its orders held that the employers are not guilty of deliberate contempt. The court however delved upon the various issues as raised on behalf of the employees and recorded positive findings on the same. The court upheld that the signatures on any declaration accepting the pay scales benefits lower than the multitier wage board are not binding on the employees and will have no legal effect.
The court also held that the contractual employees have not been separately categorized under the Majithia Wage Board Award hence there is nothing on record to show that they are not entitled to the benefits of midget wage board. The court also recorded of the finding of grant of VDA to the contractual employees. The court mainly discussed the provisions of the Working Journalists Act, 1955 and upheld that various provisions of the aforesaid act are enough protection for the rights of the employees.
The court emphasized that the entire mechanism as provided under the aforesaid Act can be invoked by the employees for claiming their benefits. While discussing the provisions of section 17 of the aforesaid Act, the court has observed that the said section takes care of the claims of the employees. It is however painful that court has not made any qualifying determination with regard to the machinery provided under section 17 (1) of the said Act and section 17 (2) of the said Act because both these remedies are very distinct from each other.
A plain and simple reading of the provisions of section 17 (1) of the said Act would say that the employee has a right to claim its due under the act before the labor authorities who would recover the same by issuing a recovery certificate. The impact of the aforesaid provision is wide, as it gives sweeping powers to the labor Commissioner to recover the dues of the employees. A further construction of the aforesaid section would clarify that section 17 one of the Act specifically empowers the labor Commissioner to issue a recovery certificate for the dues of the employees.
As the dues under the Majithia Wage Board Award are statutory dues based on the classification of the newspaper establishment and classification of the employee based upon the nature of his duties, to my understanding, the same can be recovered reliably by issuance of a recovery certificate by the labour authorities despite any dispute being raised by the newspaper establishment because any such dispute raised by the newspaper establishment in this regard is liable to be treated as a sham or fake dispute as the claim of the employees based upon the statutory wage board which was intimately upheld by the Supreme Court.
Having ignored a discussion on this crucial provision and non-issuance of any specific direction by the Supreme Court, the field is open for the employers to create a dispute in every claim thereby making the aforesaid provision ineffective. It is worthwhile to mention that during the last three years, several recovery certificates have been issued by the labor commissioners on the basis of the claims filed by the employees.
So far as section 17 (2) of the Act is concerned, the same contemplates adjudication of the claim of the employee by the labor court. The said machinery is the most effective mechanism for determining the dues of the employees however given the prolonged period of adjudication and complexities of the adjudication process, ultimately the same proves to be ineffective and the employees remains at the receiving and by filing such claims. Another painful aspect of this matter is that Pandora of litigation by the resourceful employers is launched in the process of adjudication by the labor court and even after the final adjudication, the matter drags before the High Courts, then to the Supreme Court on various Perry Farrell issues.
The observations made by the Supreme Court in its orders dated 19th of June 2017 regarding the availability of the machinery for enforcement of the orders under section 17 two of the said aActare nothing but an attempted to wash off its hands despite clear and recorded violation done by some of the establishments in non-implementing and ignoring the orders of Supreme Court.
On general evaluation of the aforesaid judgement dated 19th of June 2017 by the Supreme Court it also shows the ineffectiveness and limitations of the Indian legal system in balancing the equities between the haves and the have-nots. The Supreme Court has written a very positive judgement but it only reaffirms and reiterates the various provisions available to the employees and painfully drifts away from the core issue of deliberate, intentional nonimplementation of the wage board award and the directions issued by the Supreme Court on seventh of February 2014. The core issue of contempt being pushed in the background, the discussion as done by the Supreme Court remains only an academic exercise which does not grant any relief to the employees of the newspaper establishments.
Coming to the point of implementation of the award of Majithia Wage Baord and the directions of the Supreme Court issued on 7/2/2014, the machinery as described under section 17 (1) and 17 (2) of the working journalists act is the only remedy now available to the employees. The issue of contempt therefore can be held to have been decided against the employees as the Supreme Court has specifically observed that there is no wilful violation of the order hence there is no contempt committed by the employers. Now the employees have the remedy to invoke the aforesaid provisions of section 17 (1) as well as 17 (2) as the case may be. This needs to be done in very planned and united manner by the employees.
A simple reading of section 17 (1) of the said act would show that even the union or any person authorised on behalf of the employee can file an application before the labour authorities for recovery of the dues of the employees. A construction of this provision would be that any union can file the claim application on behalf of employees of the establishment and ask the labour authorities to issue a recovery certificate against their dues.
The process for recovery of the said dues or for filing of such applications as suggested by be earlier is that the employee would prepare a chart of all its dues on the basis of its entitlement under the Majithia Wage Board Award. The said chart needs to be very specific showing various columns of the receipts made by the employees and the dues accruing under the Award and the balance dues to be recovered under the recovery certificate.
The same needs to be prepared meticulously giving the entire details thereby leaving no scope for any dispute on the such amount. The application under section 17 (1) of the Working Journalists Act can be filed before the labour authorities and followed by the unions if the employees are not in a position to make the said application.
The employees themselves can approach the High Court for giving a time bound direction for disposal of their applications by the labour authorities. In the event of the application is being referred by the labour authorities to the labour court for adjudication under the industrial disputes machinery, the entire process is liable to be delayed inordinately however in the absence of any other specific remedy, the same is the only remedy available to the employees now. All the unions, leaders need to formulate a clear strategy in this regard.
So far as the dispute of fitment and gross revenue of r newspaper establishments is concerned, no dispute on the same can be upheld before the labour court as the Majithia Wage Board Award has specifically defined about the nature of duties and the fitment of a particular employee, the claimant employee can very well produce evidence of his duties wide various records, emails, office orders etc and claim the benefits of a particular post.
Any dispute regarding the fitment of the newspaper establishment in a particular category based on its revenue will not stand as the declaration done by the said newspaper establishments before the Registrar of newspapers, income tax authorities, DAVP and other statutory authorities will disclose the gross revenue receipts of the said newspaper establishment. The employees or the union needs to proceed very careful in this matter by preparing a clear draft of the claim application supported by documents in evidence and someone all the documents in this regard before the labour authorities.