M/S UNITED NEWS OF INDIA v. GOVT OF NCT OF DELHI AND ANR

1. This writ petition impugns the order No.S&E/NDD/33/2015/1207-1208 dated 12.05.2017 passed by Shri U.K.Sinha, Authority under the Delhi Shops & Establishments Act, 1954 (in short „Delhi Shops Act‟)/Deputy Labour Commissioner, New Delhi District, awarding a sum of Rs.12,46,420/- on account of unpaid earned wages plus allowances for the period from February, 2012 to 22.06.2015 along with compensation/penalty/additional relief @20%, total 2018:DHC:3251 amount Rs.14,95,704/- to respondent No.2 against the petitioner.

2. The relevant facts leading to file the present writ petition are that the respondent No.2 filed an application on 28.08.2015 before the Authority under the Delhi Shops Act against the petitioner to the effect that he has been working with the petitioner since 1995 as a Trainee Sub-Editor and then confirmed as a Journalist in the year 1996 and thereafter as Senior Correspondent. He claimed that all of a sudden his salary was stopped from February 2012 by the petitioner without assigning any reason. He alleged that with effect from 23.06.2015, the petitioner forcibly did not permit him to enter the office premises. He had lodged a complaint with the Deputy Labour Commissioner, New Delhi (in brief DLC), on 25.03.2015 about non-payment of salary and non-professional behavior of the petitioner. He claimed that the DLC had submitted failure report about the conciliation. The respondent No.2 claimed salary for 40 months @Rs.27,464/- per month, car allowance for 33 months @Rs.3,360/- per month and mobile and newspaper allowances for 33 months @Rs.900/- per month from September 2012.

3. The petitioner/Management filed its reply on 06.10.2015 pleading therein that the respondent no.2 was transferred to Shimla on 07.09.2012 and was relieved of his duties on 14.09.2012 and then the respondent no.2 stopped reporting for duty. It is pleaded that the petitioner has sent letters dated 28.02.2013 and reminder dated 28.06.2013 which the respondent failed to respond. It is also pleaded that since the respondent himself did not attend to his duties during the year 2012-13, 2013-14 and 2014-15, he is not entitled to any amount. However, the petitioner admitted the entitlement of the respondent for a sum of Rs.1,57,263/- for the period he had worked with them.

4. Admittedly, on 16.05.2016, on receiving the report of the failure of the conciliation proceedings, Shri U.K.Sinha, DLC made a reference of the industrial dispute, being Reference No.F- 24(66)DLC/NDD/16/719, on behalf of Government of NCT of Delhi under Section 10(1)(d) and 12(5) of the Industrial Disputes Act, 1947 (in short ID Act) to the Industrial Tribunal for adjudication, which includes the claim of the respondent No.2 for arrears of salary w.e.f. 14.09.2012 onwards.

5. Admittedly, the Industrial Tribunal on receiving the above said reference dated 16.05.2016 issued notice to the parties and the petitioner moved an application dated 16.06.2016 before the Authority under the Delhi Shops Act to drop the proceedings as the petitioner had received a notice from the Industrial Tribunal, Karkardooma, New Delhi for 26.08.2016 claiming the same relief.

6. The said application was dismissed by the Authority on 02.11.2016. Thereafter, the Authority under the Delhi Shops Act passed the impugned order dated 12.05.2017.

7. On 07.05.2018 and 09.05.2018, learned counsel for respondent No.2 sought time to take instructions. Today with the consent of the learned counsel for the parties arguments have been heard.

8. Learned counsel for the petitioner submits that by the impugned order, the Authority has granted the arrears of wages to the respondent No.2 for the period from February 2012 to 22.06.2015. He urged that the said Reference dated 16.05.2016 issued by the same officer Shri U.K.Sinha, DLC on behalf of Govt. of NCT of Delhi to the Industrial Adjudicator under Section 10(1)(d) and 12(5) of the ID Act covers the dispute with regard to arrears of salary from 14.09.2012 onwards. He emphasised that Shri U.K.Sinha, DLC, who himself has referred the matter for adjudication to the Industrial Tribunal, has considered and decided the subject matter by impugned order instead of raising his hands. He argues that the impugned order has been passed without jurisdiction. However, he submits that the petitioner is still ready to make the payment of Rs.1,57,263/to the respondent No.2 for the period when he had worked with them.

9. Per contra, it is submitted by learned counsel for the respondent No.2 that the Authority under the Delhi Shops Act has passed the order after considering the pleadings and evidence of the parties. He submits that the order dated 02.11.2016 of the Authority dismissing the application of the petitioner for dropping the proceedings was not challenged immediately and cannot be assailed now. He submits that the respondent was never transferred to Shimla and the documents of the transfer have been falsely created by the petitioner/Management in order to deny the salary to the respondent No.2.

10. I have heard learned counsel for the parties.

11. The respondent No.2 who was allegedly not allowed to enter the premises by the petitioner on 23.06.2015, had raised the industrial dispute before the DLC for salary and nonprofessional behavior of the respondent. The DLC has submitted its failure report of the conciliation proceedings between the parties. Admittedly, this has resulted into the Reference of the industrial dispute to the Industrial Tribunal by Shri U.K.Sinha, on behalf of Government of NCT of Delhi on 16.05.2016. The terms of said reference read as under:-

extent, and what directions are necessary in this respect?

3. “Whether Sh. Samrendra Kant Pathak is entitled to salary as per Majithia Wage Board Award, as modified by the Hon‟ble Supreme Court of India and if so, what directions are necessary in this respect?”

12. The terms of the reference are crystal clear to show that the dispute with regard to the payment of the salary for the period from 14.09.2012 onwards is pending disposal before the Industrial Tribunal which has the jurisdiction to decide. This dispute of the salary is covered by the III schedule of the ID Act. The respondent No.2 has simultaneously, before reference of the dispute, also filed an application under Section 21 of the Delhi Shops Act before the Authority under the Delhi Shops Act. The petitioner has brought this fact to the notice of the Authority under the Delhi Shops Act by application dated 16.06.2016. Despite the petitioner bringing the factum of the subject matter of the dispute pending before the Industrial Tribunal on a reference being made, the Authority under the Delhi Shops Act has proceeded to decide the matter by impugned order dated 12.05.2017 and granted the arrears of wages to respondent No.2 against the petitioner for the period from February 2012 to 22.06.2015. It is noticed that reference under Section 10(1)(d) and 12(5) of the ID Act pending before the Industrial Tribunal is also for claiming arrears of salary for the period 14.09.2012 onwards and the impugned order granted the unpaid wages to the respondent No.2 for the period from February 2012 to 22.06.2015. When the Industrial Tribunal, a Judicial Authority, is already seized of the matter in respect of wages for the period from 14.09.2012 onwards, the Authority under the Delhi Shops Act could have considered the claim of respondent No.2 only for the period from February 2012 to 13.09.2012 and not thereafter.