# M/s Bureau Chief Rashtriya Sahara & Anr v. Labour Commissioner, U.P. & Ors

- **Citation:** (2023) 5 ILRA 728
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-04-03
- **Case number:** Writ-C No. 23241 of 2016
- **Bench:** Kshitij Shailendra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/m-s-bureau-chief-rashtriya-sahara-anr-v-labour-commissioner-u-p-ors-50280
- **Pages:** 29

## Headnote

A. Civil Law - U.P. Industrial Disputes Act,
1947
-
Section
6(4)
,
4K,
6NReinstatement- once the Tribunal found
termination
of
the
services
of
the
petitioner as contrary to the provisions of
law,
relief
only
in
the
form
of
5 All. M/s Bureau Chief Rashtriya Sahara & Anr. Vs. Labour Commissioner, U.P. & Ors.
729
compensation etc would be unjust and the
Labour
Court
should
have
directed
reinstatement of the petitioner in service
with full or 50% back-wages. The Court
does not find any cogent reasoning in the
order of the Labour Court in so far as the
denial of relief of reinstatement or backwages is concerned- no reference made in
the order impugned dated 15.09.2014 that
any opportunity of hearing was provided
to the parties before remitting the matter
to the Labour Court. Therefore, remittance
made by the Labour Commissioner under
the order impugned dated 15.09.2014 is
found to be in teeth of specific provisions
of Section 6(4) of U.P. Act. (Para 1 to 42)

The writ petition is allowed. (E-6)

List of Cases cited:

## Text

_Characters 0–39,617 of 102,523. This is a partial read: ask again with offset=39617 for what follows._

728 INDIAN LAW REPORTS ALLAHABAD SERIES
Corporation as contained in the certificate
filed as annexure No. CA-1 to the counter
affidavit, when compared to the subsequent
report of the Investigating Official of the
Corporation, clearly established that cause
of death, which occurred on 10.09.2012,
had absolutely no co-relation with the fever
suffered by the assured one year ago, and
therefore,
non-disclosure
of
such
a
Fever/Enteric Fever/Urinary Tract Infection
cannot be treated as suppression of a
material fact while deciding the claim made
by the respondent No. 2. Therefore, the
facts of the case in the case of Mithoolal
Nayak (supra) and Smt. Krishna Wanti
Puri (supra) are distinguishable.

64. In view of above discussion, the
issue/contention No. 3 raised by Shri
Nagar, learned Senior Advocate also does
not have any force and is hereby discarded.

65. While I am fully satisfied that
grounds raised by the petitioner Life
Insurance Corporation of India challenging
the impugned award of Permanent Lok
Adalat do not have any substance, the
claim made by the respondent No.2 has
rightly been allowed by the Permanent Lok
Adalat under the order impugned.

66. In view of above discussion, I do
not find any good ground to interfere with
the impugned judgement and award of
Permanent Lok Adalat dated 15.02.2016.
Consequently, the writ petition fails and is
accordingly dismissed, however, without
imposing any costs.

67. In the present writ petition, an
interim order was passed on 06.05.2016
staying the operation of the impugned
award
dated
15.02.2016
subject
to
condition of making deposit of the entire
amount by the L.I.C. as awarded along with
upto date interest with a further stipulation
that the amount so deposited shall be kept
in a fixed deposit with a nationalized Bank.
Therefore, the amount deposited by the
Life Insurance Corporation under the
said interim order shall positively be
released in favour of respondent No. 2
within a period of two months from the
date a certified copy of this judgment and
order is produced before the court below.
The court below shall also ensure that
nationalized Bank, in which the amount has
been invested in pursuance of the interim
order dated 06.05.2016, shall be directed
and informed to release the same along
with interest accrued upto date in favour
of respondent No.2 within a period of two
months.
----------
(2023) 5 ILRA 728
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 03.04.2023

BEFORE

THE HON'BLE KSHITIJ SHAILENDRA, J.

Writ-C No. 23241 of 2016

M/s Bureau Chief Rashtriya Sahara & Anr.
 ...Petitioners
Versus
Labour Commissioner, U.P. & Ors.
 ...Respondents

Counsel for the Petitioners:
Sri Shakti Swarup Nigam, Sri Karshit Nigam

Counsel for the Respondents:
C.S.C., Sri Janmed Kumar

A. Civil Law - U.P. Industrial Disputes Act,
1947
-
Section
6(4)
,
4K,
6NReinstatement- once the Tribunal found
termination
of
the
services
of
the
petitioner as contrary to the provisions of
law,
relief
only
in
the
form
of
5 All. M/s Bureau Chief Rashtriya Sahara & Anr. Vs. Labour Commissioner, U.P. & Ors.
729
compensation etc would be unjust and the
Labour
Court
should
have
directed
reinstatement of the petitioner in service
with full or 50% back-wages. The Court
does not find any cogent reasoning in the
order of the Labour Court in so far as the
denial of relief of reinstatement or backwages is concerned- no reference made in
the order impugned dated 15.09.2014 that
any opportunity of hearing was provided
to the parties before remitting the matter
to the Labour Court. Therefore, remittance
made by the Labour Commissioner under
the order impugned dated 15.09.2014 is
found to be in teeth of specific provisions
of Section 6(4) of U.P. Act. (Para 1 to 42)

The writ petition is allowed. (E-6)

List of Cases cited:

1. Hindustan Aeronautics Ltd., Transport Aircraft Division,
Chakeri, Kanpur Vs St. of U.P. & ors. (2021) 168 FLR 338

2. Pratap Chandra Mohanty Vs G.M. United
News of India & anr. (1991) 2 OLR 326

3. Madhya Bharat Gramin Bank Vs Panchamlal
Yadav (2021) 171 FLR 8

4. M/s Jagran Prakashan Ltd. & anr. Vs P.O.,
Labour Court, U.P., Alld & ors. (2020) 167 FLR 412

5. M/s Hindustan Tin Works Pvt. Ltd. Vs The
Employees of M/s Hindustan Tin Works Pvt. Ltd
& ors. (1979) AIR SC 75

6. Harjinder Singh Vs Punj. St. Warehousing
Corp. (2010) 124 FLR 700

7. Deepali Gundu Surwase Vs Kranti Junior
Adhyapak & ors. (2013) 139 FLR 541

8. Bhuvanesh Kumar Dwivedi Vs M/s Hindalco
Industries Ltd (2014) 142 FLR 20

9. Mackinnon Mackenzie & Co. Ltd. Vs Mackinnon
Employees' Union (2015) 145 FLR 184

10. Armed Forces Ex Officers Multi Services Cooperative Society Ltd. Vs Rashtriya Mazdoor
Sangh (INTUC) (2022) 175 FLR 544
11. Jeetubha Khansangji Jadeja Vs Kutchh Distt.
Panchayat Civil Appeal No.6890 of 2022 ( SLP
(Civil) No.8393 of 2022)

(Delivered by Hon'ble Kshitij Shailendra, J.)

1. All these writ petitions cover
certain factual and legal aspects which are
common in all the matters. Therefore,
while deciding these writ petitions by a
common judgment, individual cases shall
also be dealt with.

2. For the purposes of deciding these
matters, Writ-C No.23241 of 2016 is being
treated as the leading one.

3. Heard Shri Shakti Swarup Nigam,
learned Senior Advocate assisted by Shri
Karshit Nigam, learned counsel for the
petitioners
and
Shri
Janmed Kumar,
learned counsel for respondent workman in
Writ-C No.23241 of 2016 and Writ-C
No.23786 of 2016; Shri Chandra Bhan
Gupta, learned counsel for the petitioner
and Shri Ajay Rajendra, learned counsel for
respondent workman in Writ-C No.22872
of 2016; and Shri Ajay Rajendra, learned
counsel for the petitioner and Shri Chandra
Bhan
Gupta,
learned
counsel
for
respondents in Writ-C No.27687 of 2016.

Writ-C No.23241 of 2016
(M/S Bureau Chief Rastriya Sahara And
Another Vs. Labour Commissioner U.P.
And 2 Others)

4. This writ petition has been filed
challenging the award dated 09.11.2015
passed by the Labour Court (I), U.P.
Kanpur in Adjudication Case No.275 of
1999, M/s Bureau Chief Rastriya Sahara
Vs. Munraj Singh. The award was
published on 15.03.2016. Another relief
has been claimed for quashing of the order
730 INDIAN LAW REPORTS ALLAHABAD SERIES
dated 15.09.2014 whereby the Labour
Commissioner, U.P., Kanpur had, in
purported exercise of powers conferred by
Section 6(4) of U.P. Industrial Disputes
Act, 1947 (for short U.P. Act), remitted the
matter to the Presiding Officer of the
Labour Court (I), U.P., Kanpur for
reconsideration.

5. The facts of the case, as per the
pleadings contained in the writ petition, are
that the petitioners are engaged in the
business of publication and distribution of
newspaper under the name and style of
''Rashtriya Sahara' and for the purpose of
distribution
of
newspapers
they
incorporated regulations known as ''Audit
Bureau of Circulation' under which they
appointed M/s. Rastriya News Agency and
M/s. Awathi News Agency as news agents
for
distribution
of
news
papers
on
commission basis; the respondent no 2 was
appointed as hawker on commission basis
for distribution of newspapers by the
petitioners.
After
incorporation
of
regulations known as 'Audit Bureau of
Circulation',
after
June
1996,
the
respondent no. 2 joined M/s. Rastriya News
Agency and M/s. Awathi News Agency for
distribution of news paper; the Deputy
Labour Commissioner in exercise of
powers under Section 4K of the U.P.
Industrial Disputes Act, 1947, vide its order
dated 27.01.2000 referred the matter of
alleged termination to respondent no. 1.
The contesting respondent set up his claim
that he was appointed as Salesman w.e.f.
01.06.1992 on consolidated salary of Rs.
950/- but since the payment was less than
minimum wages, a demand was raised that
was not considered by the petitioners and in
violation of Section 6N of the U.P.
Industrial Disputes Act, 1947, his services
were terminated and as such the respondent
no. 2 prayed for reinstatement.

6. The petitioners filed written
statement inter-alia on the ground that the
contesting respondent was a hawker on
commission basis upto June, 1996 and,
thereafter, there remained no relationship
between them and as such in absence of
employer and employee relationship there
can arise no question of termination of
service in year 1998, as after June, 1996 he
joined M/s. Rashtriya News Agency and
M/s. Awathi News Agency and after
enforcement of Regulations of 'Audit
Bureau of Circulation'. It was also stated
that contesting respondent was not given
any appointment letter nor applied for and
also there exists no post of Salesman.

7. The contesting respondent filed his
rejoinder affidavit; the petitioner also filed
rejoinder statement and again reiterated the
facts that contesting respondent was
appointed as Hawker and as such at no
point of time there was any relationship of
employer and employee. It was also stated
that provisions of Section 6N will not be
applicable as there remained no master and
servant relationship.

8. In support of his case, the
respondent no. 2 examined himself; in
support of their case the petitioners
examined Shri Ajai Tripathi and Shri
Manoj Dubey; and the petitioners filed
salary register to prove that there existed no
relationship of employer and employee. It
was also stated that no appointment letter
was ever issued nor was any Provident
Fund
deduction
or
Employees
State
Insurance Contribution ever made. Since
the contesting respondent was working on
commission basis as hawker, as such no
salary was ever paid to him; and without
considering the material on record and
ignoring the material facts and evidence,
the respondent no.1 treated the contesting
5 All. M/s Bureau Chief Rashtriya Sahara & Anr. Vs. Labour Commissioner, U.P. & Ors.
731
respondent as workman employed as
Salesman and granted reinstatement with
entire back wages.

9. It is contended that challenging the
award dated 24.12.2007 published on
01.04.2008, the petitioners filed Civil Misc.
Writ Petition No.25780 of 2008 before this
Court, which was allowed by judgment and
order dated 18.07.2011. Relevant portion of
the said judgment is extracted herein
below:-

"After
having
very
carefully
examined the submissions made by the
learned counsel for the parties and perused
the impugned award as well as the other
materials brought on record, I find that
there is force in the submissions made by
learned counsel for the petitioners and the
same are liable to be accepted. The
respondent no. 2 moved the State Govt.
under section 4K of the U.P. Act claiming
himself to be working as salesman in the
petitioners' establishment challenging the
termination of his employment by the
petitioners vide order dated 01.10.1998 on
the ground that the same infringed the
provisions of section 6N of the U.P. Act.

From perusal of the the written
statement filed by the petitioners before the
respondent no. 1 it transpires that the
petitioners had challenged the jurisdiction
of the respondent no. 1 to entertain and
decide the adjudication case in view of
section 3 of the Act 45 of 1955 which
stipulates that the central government
alone is competent to refer a dispute
between the employers and the employees
of a establishment to which the provisions
of the Act 45 of 1955 apply and that to, to a
tribunal constituted under the central Act.
From the perusal of the written statement
filed
by
the
petitioners
before
the
respondent no. 2 it appears that before the
respondent no. 1 the petitioners had taken
a specific plea that the respondent no. 2
was employed in their establishment as a
hawker and not as a salesman. In support
of
their
contention
they
had
filed
voluminous evidence which has been
compositely annexed as annexure no. 2 to
the writ petition.

I
have
very
carefully
gone
through the impugned award and I do not
find therein any adjudication by the
respondent no. 1 on the preliminary
objection raised before him by the
petitioners
regarding
his
lack
of
jurisdiction to entertain and decide the
adjudication case on account of the
reference made to him by the State Govt.
under Section 4K of the U.P.Act being
without jurisdiction in view of section 3 of
the Act 45 of 1955 on account of
respondent no. 2 being employed as a
hawker in the petitioners' establishment.
There is also no consideration in the
impugned award of the evidence filed by
the petitioners before the respondent no. 1
in support of their claim that the
respondent no. 2 was employed in their
establishment as a hawker and not as a
salesman as alleged by him. This omission
on the part of the respondent no. 2 has
further vitiated the impugned award.

For the aforesaid reasons, I am
of the view that the impugned award cannot
be sustained and is liable to be set aside.
The writ petition accordingly succeeds and
is allowed. The award dated 24.12.2007
passed by the respondent no. 1 is hereby set
aside and the matter is remitted back to the
respondent no. 1 for passing a fresh award
in the matter after considering the
objections raised by the petitioners in their
written statement and the evidence adduced
by the parties in support of their respective
claims, in accordance with law. Necessary
exercise in this regard shall be completed
732 INDIAN LAW REPORTS ALLAHABAD SERIES
by the respondent no. 1 within a period of
six months from the date of production of
certified copy of this order."

10. It is also contended that contesting
respondent
filed
an
application
for
amendment for reference before respondent
no. 2 and the State Government sent a
reference under Section 4k of U.P.
Industrial Disputes Act, 1947 whereas the
case is covered under the "The Working
Journalist and other Newspaper Employees
(Conditions of Service and Miscellaneous
Provisions Act, 1955 (45 of 1955"), as such
the reference could be sent under Section
10(1C) of the Industrial Disputes Act,
1947.

11. The petitioners filed objections
and stated that the establishment of
petitioner is covered under "The Working
Journalist
and
another
Newspaper
Employees (Conditions of Service and
Miscellaneous Provisions Act, 1955 (45 of
1955") as such reference can be made
under Section 3(1) of the Act, 1955 by the
Central Government and they had raised
their preliminary objection before Labour
Court but Award dated 24.12.2007 was
passed without deciding the preliminary
objection, as such this Court remanded the
matter to decide the preliminary issue; the
Labour Commissioner, U.P. (respondent
no.1) vide its order dated 13.03.2013
decided the application of contesting
respondent and held that the contesting
respondent is non working journalist as
such dispute between the parties is covered
under Section 4k of U.P. Industrial
Disputes Act, 1947.

12. In pursuance of the order of this
Court passed in Writ-C No.25780 of 2008,
a fresh award was passed on 12.07.2012
which was sent to the State Government for
publication but for some reason, the award
was not published. Pleadings to this
effect are contained in paragraph 21 of
the writ petition which states that by the
award dated 12.07.2012, the Labour
Court had rejected the claim of the
workman and dismissed the adjudication
case as not maintainable. However,
copy of such award dated 12.07.2012
has not been brought on record by
either of the parties in support of their
pleadings.

13. The reference in this case was
made to the Labour Court, Rampur for
adjudication of the industrial dispute in the
following terms:-

"क्य सेव योजकों द्व र श्रबमक श्री मुनर ज बसांह पुत्र श्री
महेश बसांह सेल्समैन, को बदन ांक 1.10.98 से क या से पृथक / वांबचर्
बकय ज न उबचर् एवां वैध बनक है ? यबद नहीं, र्ो सांिांबधर् श्रबमक
बहर्ल भ/क्षबर्पूबर्ा प ने क अबधक री है ? बकस बर्बथ एवां अन्य बकस
बववरण के स थ?"

14. The Labour Commissioner, U.P.,
Kanpur
by
order
impugned
dated
15.09.2014 sent back/remitted the matter,
in purported exercise of powers conferred
under Section 6(4) of U.P. Act, before the
respondent no.2 for the purpose of
reconsideration.

15. Pursuant to the order impugned
dated 15.09.2014, the Labour Court, by
impugned award dated 09.11.2015, has
found that termination of services of the
workman with effect from 01.10.1998 is
not according to law and, therefore, he is
entitled for reinstatement with continuity in
service along with 50% of back-wages. The
award was published as per the provisions
of the Act on 15.03.2016.

Contention of petitioners
5 All. M/s Bureau Chief Rashtriya Sahara & Anr. Vs. Labour Commissioner, U.P. & Ors.
733

16. Sri S.S. Nigam, learned Senior
Counsel for the petitioner, while arguing
the matter at length, has placed reliance
upon the provisions of Sections 2(c), 2(dd)
and 3 of the Working Journalists and Other
Newspaper
Employees
(Condition
of
Service) and Misc. Provisions Act, 1955
(Act No.45 of 1955) (hereinafter referred to
as the Act of 1955) and has submitted that
in view of the said provisions, the
respondent no.3 cannot be treated as an
employee in the petitioner establishment
and, even if he is treated to be a workman
as per the provisions of U.P. Industrial
Disputes Act, 1947 (U.P. Act) or the
Industrial Disputes Act, 1947 (Central Act),
it was the Central Government which was
competent to make reference to the labour
court and not the State Government. He has
referred to the definition clause contained
in Sections 2(c), 2(dd) and the provisions
of Section 3 regarding applicability of the
Central Act in relation to the employees
who are covered by the Act of 1955. For a
ready reference, Sections 2(c), 2(dd) and 3
of the Act of 1955 are being quoted herein
below:-

"2. (c) "newspaper employee"
means any working journalist, and includes
any other person employed to do any work
in, or in relation to, any newspaper
establishment;

(dd) "non-journalist newspaper
employee" means a person employed to do
any work in, or in relation to, any
newspaper establishment, but does not
include any such person who-

(i) is a working journalist, or

(ii) is employed mainly in a
managerial or administrative capacity, or

(iii)
being
employed
in
a
supervisory capacity, performs, either by
the nature of the duties attached to his
office or by reason of the powers vested in
him, functions mainly of a managerial
nature;]

3. Act 14 of 1947 to apply to
working journalists.―(1) The provisions
of the Industrial Disputes Act, 1947 (14 of
1947), as in force for the time being, shall,
subject to the modification specified in subsection (2), apply to, or in relation to,
working journalists as they apply to, or in
relation to, workmen within the meaning of
that Act.

(2) Section 25F of the aforesaid
Act,
in
its
application
to
working
journalists, shall be construed as if in
clause (a) thereof, for the period of notice
referred to therein in relation to the
retrenchment of a workman, the following
periods of notice in relation to the
retrenchment of a working journalist had
been substituted, namely:-

(a) six months, in the case of an
editor, and

(b) three months, in the case of
any other working journalist."

17. Sri Nigam has further submitted
that the Labour Commissioner, Kanpur had
no authority, power or competence to
remit/refer
the
matter
for
reconsideration/review to the Labour Court.
In support of his submission, he has placed
reliance upon the judgment of this court in
the case Hindustan Aeronautics Ltd.,
Transport Aircraft Division, Chakeri,
Kanpur Vs. State of U.P. and others: 2021
(168) FLR 338 and has specially referred
to paragraph 18 of the said judgment,
which is reproduced herein below:-

"18) A perusal of the impugned
order
shows
that
the
Labour
Commissioner, U.P., Kanpur has held a
judicial order of the Labour Court to be
flawed. He has sent back the matter to the
Labour Court to decide the reference on
734 INDIAN LAW REPORTS ALLAHABAD SERIES
merits. The Labour Commissioner has
decided that the reference is competent. He
has done so on the basis of an opinion of
the District Government Counsel, Kanpur
Nagar. The Labour Commissioner is not a
Court. He exercises the powers of the State
Government to make a reference that is not
a judicial power of any kind. All that he
can exercise is an administrative or
executive
power
conferred
on
the
Government.
Now,
if
there
were
a
delegation in his favour under Section 39,
assuming that he had the necessary
delegation, the delegation of powers under
Section 39 of the Central Act made by the
Central Government is to exercise the
administrative power of making a reference
to the competent Court. It is in no way a
judicial authority of supervision over the
Labour
Court,
conferred
on
the
Commissioner. In case, any party was
aggrieved by the order dated 17.09.2019
passed by the Presiding Officer, Labour
Court (3), U.P., Kanpur in Adjudication
Case No. 115 of 2010, it was open to that
party to approach this Court under Article
226 or 227 of the Constitution, for those
are the only remedies that are open, apart
from Article 136 of the Constitution, to
challenge a judicial determination of the
Labour Court, be it an order or an award.
There is no principle known to law which
permits an administrative review of judicial
action. The law envisages judicial review of
administrative action, and in some cases,
legislative action also. But there is no
concept known to law that permits an
administrative review. Judicial orders can
be undone by invoking the appellate,
revisional or supervisory procedures by
approaching a higher judicial forum. It
cannot be done by an executive or
administrative action. The impugned order
is also bad, for another reason. It has
proceeded substantially, if not entirely, on
the opinion of the District Government
Counsel. Even if an opinion were sought by
the
Labour
Commissioner,
who
is
presumably a layman (as opposed to a
legally trained mind) ought not have
referred to the legal opinion received by
him. In fact, he should not have acted on
any legal opinion at all. This is so because
an order founded on legal opinion is not
one where the Authority making the order,
has done an independent application of
mind. Rather, he has gone by the opinion of
another, may be a legal expert. This in
itself would vitiate the impugned order. In
any view of the matter, this Court is of
clear opinion that the impugned order
undoing
a
judicial
order
by
an
administrative determination is ultra vires
and without jurisdiction. Though, Mr.
Diptiman Singh sought to justify the order
dated 17.07.2019 passed by the Presiding
Officer, Labour Court (3), U.P., Kanpur in
Adjudication Case No. 115 of 2010, this
Court is not minded to examine that
question in the absence of a challenge to
the order dated 17.07.2019 by a party who
is aggrieved. It is also made clear that if
any party, including the fourth respondent,
is aggrieved by the order dated 17.07.2019,
it would be open to them to challenge the
said order through competent proceedings,
as advised."

18. Sri Nigam further submits that
once the Labour Court had passed an
award, which was not challenged before
this Court, the Labour Commissioner had
no jurisdiction to remit/refer the matter for
reconsideration by the Labour Court as it
would amount to administrative review of a
judicial order which this Court, in the case
of Hindustan Aeronautics Ltd. (supra),
has deprecated. He further submits that
even
if
the
order
of
the
Labour
Commissioner dated 15.09.2014 is treated
5 All. M/s Bureau Chief Rashtriya Sahara & Anr. Vs. Labour Commissioner, U.P. & Ors.
735
to be within jurisdiction, the power of
making reference to the Labour Court
could be exercised only when one or more
of the contingencies mentioned under
Section 6(4) of the U.P. Act were satisfied
which, according to Sri Nigam, did not
exist in the facts and circumstances of the
present case. He has emphatically pressed
upon the provisions of Section 6(4) of U.P.
Act, which are reproduced herein below:-

"6(4) Before publication of an
award of a Labour Court or Tribunal
under sub-section (3), if the State
Government if of the opinion that,-

(a) the adjudicating authority has
unreasonably refused permission to any
party to adduce evidence; or

(b) any party was prevented by
any other sufficient cause from adducing
evidence; or

(c) new and important material
fact or evidence has come to notice, which
after the exercise of due diligence, was not
within the knowledge of, or could not be
produced by, the party at the time when the
award was made; or

(d) the award is likely to disturb
the industrial peace; or

(e) the award is likely to affect
prejudicially
the
national
or
State
economy; or

(f) the award is likely to interfere
with the principles of social justice; or

(g)
the
award
has
left
undetermined any of the matters referred
for adjudication, or where it determines
any matter not referred for adjudication
and such matter cannot be separated
without affecting the determination of the
matters referred; or

(h) the award is so indefinite as
to be incapable of being enforced; or

(i) illegality of the award is
apparent upon the face of it, it may, after
giving the parties reasonable opportunity
of being heard, for reasons to be recorded,
remit the award for reconsideration of the
adjudicating authority, and that authority
shall, after reconsideration, submit its
award to the State Government, and the
State Government shall publish the award
in the manner provided in sub-section
(3).]"

19. Sri Nigam has further placed
reliance upon a judgment of Division
Bench of Orissa High Court in the case of
Pratap Chandra Mohanty Vs. General
Manager, United News of India and
another: 1991(2) OLR 326. Pragraphs 11
and 12 of the said judgment are being
extracted herein below:-

"11. We have duly considered the
aforesaid submission of Shri Mohanty and,
according to us, it would be difficult to say
that the benefit of the Industrial Disputes
Act would not be available to newspaper
employees other than working journalists
even if they be workmen within the meaning
of that Act. As to Section 3(1) of the
Working Journalists Act, we would say that
the provision in that section making the
Industrial Disputes Act applicable to
working journalists cannot be taken to be
that the said Act would not apply to other
newspaper employees. Section 3(1) might
have been enacted to make it abundantly
clear that the Industrial Disputes Act would
apply to working journalists even if they
may not satisfy the definition of 'workman'
as given in the Industrial Disputes Act. It is
worth poinhng out in this connection that a
working journalist as defined in Section
2(f) of the Working Journalists Act may not
be a 'workman' if the definition of that
expression as given in the Industrial
Disputes Act were to apply to him. The
legislature, however, wanted the benefits of
736 INDIAN LAW REPORTS ALLAHABAD SERIES
the Industrial Disputes Act to be made
available to working journalists and it is
perhaps because of this that Section 3(1)
was inserted in the Act. This apart,
reference to Section 3(1) shows that certain
modifications were made in the provisions
of the Industrial Disputes Act in their
application to working journalists. We do
nor think if we would be justified in
denying the benefits of a statute as
important as the Industrial Disputes Act to
other categories of newspaper employees,
if otherwise they be workmen within the
meaning of that Act, because of what has
been provided in Section 3(1) of the
Working Journalists Act. 12. As to the
application of the two specific Acts to
newspaper employees because of what has
been provided in Secs, 14 and 15 of the
Working Journalists Act, we would say that
these two sections were enacted to make
the two Acts in question applicable to
newspaper establishments because de hors
these provisions, those Acts might not have
applied
to
such
establishments.
The
legislature, however, wanted to give the
benefit of those Acts to all newspaper
employees. It may be pointed out that Secs.
14 and 15 have referred to the application
of the two Acts in question to "every
newspaper establishment" and not to
"newspaper employees". Of course, by
making these two Acts applicable to all
newspaper establishments, the benefits of
the same were conferred on all newspaper
employees. This does not mean that the
legislature wanted to rob the newspaper
employees of the benefits of other Acts.
According to us, no such conclusion can be
drawn on the basis of what has been
provided in Secs. 14 and 15 of the Working
Journalists Act."

20. Apart from the aforesaid, Sri
Nigam has argued that the respondent no.3
was merely working as a Hawker for
effecting distribution of newspapers and he
was neither an employee nor a workman in
the petitioners' establishment. He submits
that voluminous evidence was led on behalf
of the petitioners before the Labour Court
to demonstrate that in none of the registers
containing particulars and description of
the workmen/employees, the name of the
respondent no.3 found place. He has
referred to various annexures to the writ
petition to demonstrate that the respondent
no.3 was never enrolled for the purposes of
insurance which aspect is applicable for all
the employees/workmen of petitionerestablishment.
He
submits
that
the
respondent no.3 never led any evidence
before the Labour Court to establish that
any appointment letter was issued to him at
any point in time. He also submits that no
evidence was led by the respondent no.3
even to demonstrate that he worked
continuously from 1992 to 1998 and
therefore, in absence of evidence, the
award of the Labour Court on merits is
unsustainable. He further submits that in
evidence only an identity card was filed by
the respondent no.3 which was marked as
Exhibit- W-3, containing the description of
the respondent no.3 as ''Salesman' and that
such identity card could be issued to any
hawker or anyone for the purposes of
facilitating any task in the organization but
in no circumstance such an identity card
could be a cogent evidence to establish
workmanship or an employment so as to
justify
passing
of
an
award
for
reinstatement and back-wages.

21. Sri Nigam has also placed reliance
upon the judgment of the Apex Court in the
case of Madhya Bharat Gramin Bank Vs.
Panchamlal Yadav: 2021 (171) FLR 8 and
has contended that merely because there is
some violation on the part of the employer
5 All. M/s Bureau Chief Rashtriya Sahara & Anr. Vs. Labour Commissioner, U.P. & Ors.
737
which, in the present case, is not there
according to Sri Nigam, reinstatement with
back-wages is not automatic and relief
depends upon the facts of every case.

Contention of respondent

22. Per contra, Sri Janmed Kumar,
learned counsel for the respondent no.3,
while referring to the counter affidavit filed
by the said respondent, submits that the
Labour Court has rightly passed the award
by treating the services of the respondent
no.3 as a ''salesman'. He submits that since
salary of Rs.950/- per month was being
paid by the petitioners to the respondent
no.3 which was much less as per the
provisions of Minimum Wages Act, the
respondent no.3 agitated his claim for
enhancing wages before the petitioners
which ultimately resulted into termination
of his services with effect from 01.10.1998
and the Labour Court, by considering the
material placed before it, has rightly
directed reinstatement with back-wages. He
submits that pursuant to the award, the
respondent no.3 has been reinstated but he
is being paid only a sum of Rs.1,200/- per
month and not the regular pay scale which
is applicable for other workmen.

23. Rejoinder affidavit has been filed
on behalf of the petitioner reiterating the
version contained in the writ petition.

24. Since all the aforesaid writ
petitions were heard together, in one of the
matters reliance was placed on behalf of the
respondent-workman on a judgment of this
Court in the case of M/s Jagran Prakashan
Ltd. and another Vs. Presiding Officer,
Labour Court, U.P., Allahabad and
others: 2020 (167) FLR 412), with special
reference to paragraph 38 thereof, which is
quoted herein below:-

"38. The workman in this case is,
therefore, a workman, both under the
Central Act and the State Act as he satisfies
the definition of a workman under both the
statutes, independent of the provisions of
the Working Journalists Act. The employers
here being not an industry carried on by or
under
the
authority
of
the
Central
Government or one who fall under any of
the
specified
categories
or
named
establishment,
authorities
or
bodies,
mentioned under Section 2(a)(i) of the
Central Act, the Appropriate Government
would be the State Government in
accordance of the provisions of Section
2(a) (ii) of the Act, last mentioned.
Accordingly, reference of the dispute
under Section 4-K of the State Act is valid
and competent. Since the reference under
Section 4-K of the State Act is competent,
the further question, "Whether the Labour
Court/
Industrial
Tribunal
constituted
under the Central Act alone is competent to
answer a reference in relation to the
workman?"
is
not
required
to
be
answered."

25. Before proceeding to deal with
submissions made, the interim order dated
19.05.2016 passed in the present writ
petition is being referred to, whereby the
operation of the impugned award dated
09.11.2015 was stayed subject to the
condition that the petitioners deposit entire
back-wages as awarded to the respondent
no.3 and reinstate him in the same position
as he was working at the time when his
services were terminated.

26. Having heard the learned counsel
for the parties, this Court proceeds to
analyse the arguments advanced at the bar
in the light of the statutory provisions
contained under the Act of 1955, U.P. Act
1947 as well as Central Act, 1947.
738 INDIAN LAW REPORTS ALLAHABAD SERIES
Analysis of rival contentions

27. In so far as the definition of
"newspaper employee" as contained in
Section 2(c) as well as definition of "non
journalist
newspaper
employee"
as
contained in Section 2(dd) of the Act, 1955
is concerned, this Court in view of the
Division Bench judgment of Orissa High
Court in the case of Pratap Chandra
Mohanty (supra), as referred to and relied
upon by this Court in its judgment in the
case of Jagran Prakashan (supra) and in
light of Section 3 of the Central Act, 1947,
has extended the provisions of the Act of
1955 to the working of the respondent no.3
holding that he would fall in the inclusion
clause contained under Section 2(c) which
is apparent from the words "and includes
any other person employed to do any work
in, or in relation to, any newspaper
establishment".

28. The other contention of Sri Nigam
with reference to Section 3 that it was only
the
Central
Government
which
was
competent to make a reference in the matter,
this Court finds that by virtue of Section 2(a)
(ii) of the Central Act, 1947, it was the State
Government which was fully competent to
make a reference and Section 3 of the Act
1955 does not in any manner restrict power
of the State Government to make a reference
inasmuch as the power to make a reference
by the State Government is implicit in the
Central Act 1955 itself and keeping in view
of the nature of the petitioner establishment,
this Court finds that Section 2(a) (ii) of the
Central Act, 1947 fully clothed to the State
Government with power to make a reference
to the Labour Court. The said provision is
reproduced herein below:-

"2(a)(ii) in relation to any other
industrial dispute, including the State
public
sector
undertaking,
subsidiary
companies
set
up
by
the
principal
undertaking and autonomous bodies owned
or controlled by the State Government, the
State Government:

29. In so for as Shri Nigam's
contention with regard to the impugned
order dated 15.09.2014 is concerned, the
argument is that the Labour Commissioner
had no power under the Act to make a
reference to the Labour Court after the
Labour Court had passed an award and
such a remittance for reconsideration is in
teeth of the provisions of Section 6(4) of
the U.P. Act. He has placed strong reliance
upon the judgment of this Court in
Hindustan Aeronautics Ltd. (supra) and
submits that this Court has already held that
such a recourse is impermissible under the
eyes of law.

30. This Court has carefully examined
the judgment of this Court in the case of
Hindustan Aeronautics Ltd. (supra) and
finds that facts of the present case are
different from the facts of the case of
Hindustan Aeronautics Ltd. (supra). In
the case of Hindustan Aeronautics Ltd.
(supra), the Labour Commissioner had
sought an opinion from the District
Government Counsel (Civil), Kanpur after
passing of the award and the said DGC
submitted his opinion on 17.03.2020
advising the Labour Commissioner that
adjudication case could be heard by a court
constituted under the U.P. Industrial
Disputes Act, 1947 and merely on the basis
of
such
opinion,
the
Commissioner
denounced the award and remitted the
matter
to
the
Labour
Court
for
reconsideration. This Court, under such
facts, found the action of the Labour
Commissioner as unjustified. Further, the
provisions of Section 6(4) of the U.P. Act
5 All. M/s Bureau Chief Rashtriya Sahara & Anr. Vs. Labour Commissioner, U.P. & Ors.
739
were not considered in the judgment of
Hindustan Aeronautics Ltd. (supra) nor
were the delegated powers conferred by
Section 11-A of the U.P. Act, 1947
touched, which reads as follows:-

"[11-A. Delegation of powers.-
The State Government may, by notification
in the Official Gazette, direct that any
power exercisable by it under this Act or
rules made thereunder shall, in relation to
such matters and subject to such conditions
if any, as may be specified, in the direction,
be exercisable also by such officer or
authority
subordinate
to
the
State
Government as may be specified in the
notification.]
NOTES

Delegation of power-Power of State
Government.- It was held that the State
Government is empowered under Section
11-A to delegate any power under the Act
to any subordinate authority."

31. The judgment of Hindustan
Aeronautics Ltd. (supra) touches the
provisions of Section 39 of the Central Act
and states that the delegated power could
be exercised only for the purpose of
making a reference but could not be
exercised to examine the validity of an
award passed by the Labour Court as the
same would tantamount to administrative
interference in a judicial adjudication.

32. Meeting all the aforesaid
arguments of Sri S.S. Nigam, this Court
finds
that
the
power
of
Labour
Commissioner to remit the award passed by
the Labour Court for reconsideration by the
said court itself, is contained under Section
6(4) of the U.P. Act, 1947 in the light of
delegation made by the State Government
in exercise of power under Section 11-A of
the said Act. It has neither been pleaded nor
argued nor has anything been placed on
record that the State Government has not
delegated its powers upon the Labour
Commissioner by issuing any notification.
Therefore, this Court cannot assume that
there is no delegation made by the State
Government in favour of the Labour
Commissioner to exercise powers under
Section 6(4) of the Act.

33. In so far as the contention of Sri
Nigam
with
regard
to
existence/non
existence of any of the contingencies
enumerated under Section 6(4) of the U.P.
Act so as to remit the award for
reconsideration, Section 6(4)(i) is worth
consideration.