Bennett Coleman & Co. (P) Ltd. Vs.
Punya Priya Das Gupta [1969] INSC 99 (2 April 1969)
02/04/1969 SHELAT, J.M.
SHELAT, J.M.
BHARGAVA, VISHISHTHA VAIDYIALINGAM, C.A.
CITATION: 1970 AIR 426 1970 SCR (1) 181 1969
SCC (2) 1
CITATOR INFO:
RF 1972 SC1579 (6) R 1974 SC 844 (4) R 1990
SC1080 (11,14,15,17) RF 1991 SC1289 (16)
ACT:
Working Journalists (Conditions of Service)
and Miscellaneous Provisions Act, (45 of 1955), ss. 2(f), (rr) 5 and
17-Ex-employee, if entitled to maintain application for gratuity-Wages-Car
allowance and benefit, of free telephone and newspapers-If allowances
includible in wages.
Evidence Act (1 of 1872), s. 115-Scope of.
HEADNOTE:
In October 1963, the respondent was the
special correspondent of the appellant company and was entitled to car
allowance, free telephone and free newspapers in addition to his basic salary
and dearness allowance. On October 8, he tendered his resignation which was
accepted on October 21, with effect from the latter date. On October 23, he
accepted employment with another Newspaper and thereafter claimed compensation
for leave due to him. On November 11, the respondent received a letter from the
appellant that the appellant company's rules did not permit any such
compensation where an employee had resigned, that in the absence of a proper
notice by the respondent there was no termination of his employment and that
therefore his acceptance of other employment was in contravention of his
conditions of service. On November 21, therefore, the respondent went to the
appellant's office, received the letter dated October 21 accepting his
resignation, the statement of his account and a cheque for Rs. 2810.47 P. in
'full and final settlement of his claim. The statement of account showed that
no compensation for leave due to him was paid and further that in calculating
the gratuity payable to him, the, monetary value of free telephone, free
newspapers and car allowance were not included as part of his wages.
The respondent wrote immediately, on the same
day, to the appellant setting out the circumstances in which he received the
cheque and acceptance of his resignation. According to him he wanted to specify
that the full and final settlement did not include compensation for one month's
leave; and that the acceptance of his letter 'of resignation was withheld and
given to him only after he accepted the cheque for Rs. 2810.47 P. 'in full and
final settlement of his claims'. On December 5, the appellant replied stating
that the respondent's claim for leave compensation was not admissible under the
company's rules and in view of the final settlement the matter may be closed.
The respondent's claim was thereafter referred to the Labour Court. In his
statement of claim, the respondent claimed, (a) gratuity on the basis that his
monthly wages included the car allowance and Rs. 50, being the estimated value
of the benefit of a free telephone and newspapers and (b) one month's wages as
compensation for the month's leave, in all Rs. 6000.34 P. He did not deduct the
amount of Rs. 2810.47 P. as he had not encashed the cheque for that amount. The
Labour Court decreed part of the respondent's claim.
In appeal to this Court, on the question :
(1) Whether the respondent, not being in the appellant's employment at the time
he filed his claim in the Labour Court, was not entitled to avail himself of
the provisions of the Working Journalists (Conditions of Service) and
Miscellaneous Provision Act, 1955; (2) Whether the respondent, having signed
the receipt in full settlement of his claim was estopped from making claims in
respect of his leave for one month, the car allowance, and the estimated
benefit of the free telephone and newspapers; and (3) Whether the monetary
value of the free telephone and newspapers and the car allowance would be 182
included as part of his wages for calculating gratuity,
HELD : (1) Since the definition of 'an
employes in the Industrial Disputes Act, 1947 and the C.P. & Berar
Industrial Disputes Settlement Act (23 of 1947), were, in language, similar to
the one used in Working Journalists (Conditions of Service) and Miscellaneous
Provisions Act, the decision in Western India Automobile Association v.
Industrial Tribunal, [1949] F.C.R. 321 and Central
Provinces Transport Services Ltd. v. Raghunath, [1956] S.C.R. 956, interpreting
the word 'employee,' in those two Acts, would be authorities for the view that
an ex-employee would 'also be a working journalist. There is no conflict of
opinion between these two decisions and the decision in Dharangadhara Chemical
Works Ltd. v. State of Saurashtra, [1957] S.C.R. 152 and Workmen v. The
Management of Dimakuchi Tea Estate, [1958] S.C.R. 1156. Even assuming there is
some conflict the definitions of a 'newspaper employee' and 'working
journalist' being subject to a context to the contrary, the, benefit of ss. 5
and 17 of the Working Journalists Act is available to an ex-employee, though he
has ceased to be in the employment of the particular newspaper establishment at
the time of his application for gratuity. The only requirement is that the
claim in dispute must be one which has arisen or accrued whilst the claimant
was in the employment of the person against whom it is made.
Therefore, the respondent was entitled to
maintain his application. [189 E-F; 192 B-H] Dharangadhara Chemical Works Ltd.
v. State of Saurashtra, [1957] S.C.R. 152 and Workmen v. The Management of
Dimakuchi Tea Estate, [1958] S.C.R. 1156, explained.
(2)(a) Assuming the technical rule of estoppel
set out in s. 115 of the Evidence Act is applicable to industrial adjudication,
the rule could not be invoked against the claim for compensation for the leave
period. The letter of the respondent dated 21st November and the appellant's
reply dated 5th December show that the respondent was always making the claim
and never gave it up and that the company's case was also not that the
respondent gave, up the claim, but that the appellant company's rules did not
permit such compensation. The appellant did not produce any such rules before
the Labour Court and a belated referernce to any such rule in this Court could
not be permitted without opportunity to the respondent to controvert it. [193
D; 194 E] (b)Under s. 115 of the Evidence Act, the representation which estops
a person making it from acting contrary to it is one on the belief of which
the, other person acts in a manner he would not have done but for it and on
believing it to be true,. But such a conclusion could not be drawn in face of
the un contradicted statements in the letter of the respondent dated 21st
November that the management would not give him the letter of acceptance of his
resignation unless he signed the receipt in full settlement of all his claims.
When he received the letter dated November
19, the respondent could not rest content without jeopardizing his interests on
the mere oral intimation of acceptance of his resignation and so be went to the
appellant's Office to secure the written acceptance. He was then told that it
would not be given unless he passed a receipt in full settlement of his claim
and he signed the receipt under the stress of circumstances. [195 H-196 B]
(3)Under s. 2(rr) of the Act, 'wages' means all remuneration capable of being
expressed in terms of money payable to a workman in respect of his employment
or work done in such employment and includes, inter alia, such allowance as the
workmen is for the time being entitled to.
The car allowance and benefit of free
telephone and newspaper cannot be said 183 to be remuneration payable in
respect of employment or work done in, such employment. Neither the car
allowance nor the benefit of the telephone was given to the respondent in
respect of his employment or work done in such employment as they were not
restricted to the employment or the, work done by him as special correspondent.
He was entitled to them whether he used them or not in connection with his
employment or his work as a special correspondent. They would however fall
under the inclusive part of the definition as 'allowances'. Since they were
allowed to him to directly reduce the expenditure which would otherwise have
gone into his family budget, they were items relevant in the fixation of fair
wages and were properly regarded as part of the respondent's wages. Therefore,
they should be taken into consideration for the calculation of gratuity payable
to him. [196 H; 197 F-H] Hindustan Antibiotics Ltd. v. Workmen, [1967] 1 S.C.R.
652 674-675, followed.
CIVIL APPELLATE JURISDICTION : Civil Appeal
No. 1702 of 1966.
Appeal by special leave from the Award dated
February 28, 1966 of the Labour Court, Delhi in W.J. No. 2 of 1964.
G.B. Pal, O. C. Mathur and J. B. Dadachanji,
for the appellant.
M. K. Ramamurthi, Shyamala Pappu, J.
Ramamurthi, M. Mohan, P. S. Khera, B. Thakur and Vineet Kumar, for the
respondent.
The Judgment of the Court was delivered by
Shelat, J. This appeal, by special leave, is directed against the award of the
Labour Court, Delhi in a reference made to it under S. 17 (2) of the Working
Journalists (Conditions of Service) and Miscellaneous Provisions Act, 1955
(referred to hereinafter as the Act. ) The relevant facts leading to the said
reference may first be stated.
By its letter dated January 16, 1953 the
appellant-company appointed the respondent as a staff correspondent at Gauhati
on a basic salary of Rs. 300 and dearness allowance at 40% thereof in addition
to a fixed conveyance allowance of Rs. 100 per month. Sometime thereafter the
respondent was transferred to the company's branch office at Delhi where he
worked as a special correspondent. By 1963 the remuneration payable to him came
to Rs. 700 as basic pay, Rs. 497 as dearness allowance, Rs. 200 per month as
car allowance in addition to a free telephone and free newspapers. On October
8, 1963, while he was on leave, the respondent tendered his resignation. On
October 14, 1963 P. K. Roy, the company's General Manager, informed the
respondent that his letter of October 8, 1963 could not be considered 184 as
one of resignation as under the company's rules he would have first to report
on duty and then to give a notice. On October 21, 1963, however, the company
accepted the resignation with effect from that date and thereupon the
respondent joined the Indian Express on October 23, 1963.
Meanwhile, one V. G. Karnik, on behalf of the
company, informed the respondent by his letter dated November 19, 1963 that in
the absence of a proper notice by him there could be no termination of
employment and that "your reported acceptance of another employment in the
circumstances is in contravention of the terms and conditions of service of
this company". The respondent had, in the meantime, claimed compensation
for leave due to him, to which claim the said letter of Karnik replied that the
company's rules did not permit any such compensation where an employee had
resigned. On November 21, 1963 the respondent wrote to the said Roy (Ex. W/4)
that (1) after he had tendered his resignation there was a discussion between
them when the matter of acceptance of his resignation was amicably settled and
that it was thereafter that he joined the Indian Express, (2) the letter of
Karnik that there was no termination of his employment was not correct, (3)
after October 21, 1963 he had gone to the company's office to settle his
accounts and collect the dues payable to him as'also the letter of acceptance
of his resignation but he was told that the accounts were not yet ready and he
was not then paid even his salary and dearness allowance due upto October 20,
1965 although "I bad asked for these amounts at least", (4) the
letter accepting his resignation was held back until he was prepared to sign a
document "purporting to waive all my rights to leave salary" which he
had first refused to sign, (5) on receiving the said letter of Kamik he had
thought necessary to get a written acceptance of resignation, that, as
apprehended by him, that letter was handed over to him on that day only after
he accepted a cheque for Rs. 2810.47 P. and had given receipt therefor "in
full and final settlement of all my claims" and that he wanted to specify
in that receipt that full and final settlement on his side did not include
compensation for one month's leave due to him but the accountant did not allow
him to do SO. The statement of account which was given to the respondent on
November 21, 1963 and on which he signed the said receipt stated that he had
received the said cheque "in full and final settlement of all my claims
against the company subject to the bonus for 1963 if declared and payable to
me". The statement of -account mentioned Rs. 901-34 P. only as
remuneration for 20 days of October 1963 on the basis of his monthly
remuneration being Rs. 1,397, comprised of Rs. 700 as basic salary, Rs. 497 as
dearness allowance and Rs. 200 as car allowance. The statement of account thus
shows that though he was on leave in 185 October 1963, the company included the
car allowance while calculating his wages due for these 20 days. But it also
shows that no compensation for leave due to him was paid and further that in
calculating the gratuity payable to him the monetary value of free telephone
and free newspapers and the car allowance were not included as part of his
wages. In reply to the respondent's letter of November 21, 1963, the said Roy, by
his letter of December 5, 1963, wrote that as the respondent had not taken away
the company's letter of acceptance of resignation by the time Karnik addressed
the said letter, Kamik was "right on facts" but, in view of the
settlement of his affairs and the subsequent settlement of accounts, "it
was better to forget the past and part amicably". He also made it clear
that the respondent's claim for leave compensation was not admissible under the
company's rules.
The respondent thereafter applied to the Delhi
Administration and the latter, as aforesaid, referred his claim to the Labour
Court for adjudication. In his statement of claim before the Labour Court, the
respondent claimed that the monthly wages payable to him were Rs. 700 basic,
Rs. 497 as dearness allowance, Rs. 200 conveyance allowance and Rs. 50 being
the estimated value of the benefit of a free telephone and newspapers,
aggregating Rs. 1,447 per month. He claimed gratuity computable on the basis of
Rs. 1,447 as being his monthly wages, Rs. 1,447 as compensation for the month's
leave, in all, Rs. 6,000.34 P.
He did not deduct from the said claim the
said amount of Rs. 2,810.47 P. as he had not encashed the cheque given to him
against the receipt dated November 21, 1963. The company in its written
statement denied the claim relying on the said receipt and further denied that
the car allowance and the monetary value for the free telephone and newspapers
could be included in the wages payable to the respondent either as due to him
or for calculating gratuity. Before the Labour Court the company did not
dispute the value of the benefit of the free telephone and newspapers estimated
by the respondent, but it raised the question whether the said value and the
car allowance formed part of the respondent's wages and whether the amount of
gratuity payable to him could be ascertained on the footing of their being part
of his wages. The Labour Court held that there was no evidence that the car
allowance was not payable to the respondent while he was on leave as was the
case in respect of another working journalist, C. V. Vishwanath, whose claim
also the Labour Court was trying along with that of the respondent.
The Labour Court found this difference a
significant one and held that the car allowance had to be taken as part of the
wages. The Labour Court also held that the car allowance and the free telephone
and newspapers were an allowance and an amenity respectively falling under the
definition L 12 Sup CI/69-13 186 of s. 2 (rr) of the Industrial Disputes Act,
1947, both forming the component parts of monthly wages payable to the
respondent,. As regards the leave, the respondent was undoubtedly entitled to
30 days leave. But the company's plea was, firstly, that its rules did not
permit compensation for such leave and secondly, that it was set off against
the period of notice which the respondent was required to give. No rules,
however, were produced to show that they contained any provision disallowing
such compensation. As regards the notice period of one month, the Labour Court
held that as the resignation dated October 8, 1963 was accepted with effect
from October 21, 1963 there was compliance of 13 days only and therefore the
management was not liable to pay for the balance of 17 days leave. The Labour
Court rejected the company's plea that the receipt given by the respondent in
full settlement of all his claims estopped him from making these claims on the
ground that as these items were claimable under the Act there could be no
estoppel against law. In the result, the Labour Court held that the respondent
was entitled to claim car allowance at Rs. 200 per month, Rs. 50 per month for
telephone and newspapers and compensation for 13 days leave, that the first two
were parts of his wages, that his monthly remuneration was, therefore, Rs.
1,447 and gratuity equivalent to 51 months wages would have to be calculated on
the basis of Rs.
1,447 being his wages per month and directed
the company to pay on the aforesaid calculations Rs. 2,002 over and above Rs.
2,810.47 P. for which the company had issued the said cheque.
The first contention raised by counsel for
the company against the award was that the respondent, not being in the
company's employment at the time he filed his claim in the Labour Court, was
not a working journalist, and therefore, was not entitled to avail himself of
the provisions of the Act. Section 2(c) provides that "unless the context
otherwise requires" a newspaper employee "means any working
journalist, and includes any other person employed to do any work in, or in
relation to, any newspaper establishment".
Clause (f) of that section defines a
"working journalist" to mean a person whose principal avocation is
that of a journalist and "who is employed as such in, or in relation to
any newspaper establishment". Clause (g) provides that all words and
expressions used but not defined in this Act and defined in the Industrial
Disputes Act, 1947 shall have the -meanings respectively assigned to them in
that Act.
Counsel strenuously relied on the words
"who is employed" as a journalist in, or in relation to, any
newspaper establishment in cl. (f) of S. 2, his contention being that it is
only a newspaper employee who is presently employed in a newspaper
establishment who can resort to the Act and not an ex-employee whose employment
has come to an end 187 as a result of acceptance of his resignation. A question,
similar to that raised by counsel, also arose in Western India Automobile
Association v. Industrial Tribunal(1). The contention there was that in the
light of the definitions of 'industrial dispute' and 'an employee' as they
stood in the Industrial Disputes Act, 1947 before the Amending Act 36 of 1956
was passed, a dispute as to reinstatement of a discharged or dismissed workman
could not fall within the scope of an industrial dispute. The contention was
rejected. The Court observed that the definition of 'industrial dispute' used
the words "employment or non employment", that whereas one was a
positive, the other was a negative act of an employer, that such an act related
to an existing employment or to an existing non-employment.
After giving certain examples to illustrate
the four stages when a dispute could arise, the Court at page 330 concluded
thus :
"The failure to employ or the refusal to
employ are actions on the part of the employer which would be covered by the
term "employment or non-employment". Reinstatement is connected with
non-employment and is therefore within the words of the definition. It will be
a curious result if the view is taken that though a person discharged during a
dispute is within the meaning of the word "workman", yet if he raises
a dispute about dismissal and reinstatement, it would be outside the words of
the definition "in connection with employment or non-employment " A
similar question was canvassed in Central Provinces Transport Services Ltd. vs.
Raghunath(2) in connection with the C.P. & Berar Industrial Disputes
Settlement Act, XXIII of 1947. Section 2 (1 0) of that Act defined an
'employee' in terms identical with those in the Industrial Disputes Act as it
stood before the amendment in 1956, i.e., as meaning "any person employed
by an employer to do any skilled or unskilled manual or clerical work for
contract or hire or reward in any industry and includes an employee discharged
on account of any dispute relating to a change-whether before or after the
discharge". Section 2(12) defined an 'industrial dispute to mean "any
dispute or difference connected with an industrial matter arising between
employer and employee or between employers or employees". It was not
disputed that the question of reinstatement was an industrial dispute but the
controversy was as to whether it was an industrial dispute as defined by s. 2
(12) of that Act. The argument was that as the workman concerned was already
dismissed and his employment had thereby come to an end, he could not be termed
an employee (1) [1949] F.C.R. 321.
(2) 11956] S.C.R. 956.
188 as the intention of the legislature could
not be to include in the definition of an employee even those who had ceased to
be in service as otherwise there was no need for the further provision in S.
2(10) which included those who were discharged from service on account of the
dispute. The Court dismissed this contention following the decision in Western
India Automobile Association(1) and held that a dispute between an employer and
an employee regarding the latter's dismissal and reinstatement would be an
industrial dispute within s. 2(12) of that Act, that the inclusive clause in S.
2(10) was not an indication that dismissed employees would not fall within the
meaning of 'employee' or that the question of their reinstatement would not be
an industrial dispute and that that clause was inserted ex abundanti cauiela to
repel a possible contention that employees discharged under ss. 31 and 32 of
the Act would not fall within the meaning of s. 2(10) Since the definitions of
"ex employee" in these two Acts were in language similar to the one
used in the present Act, these decisions would be authorities for the view that
an exemployee would for the purposes of the present controversy be a working
journalist.
It was, however, argued that though these two
decisions considered a dismissed employee as a workman as defined by the Industrial
Disputes Act and the C.P. & Berar Act, there are two decisions of this
Court which express contrary views and that, therefore, there is a conflict of
opinion which should be resolved by a larger bench. The two decisions relied on
in this connection are: Dharangadhara Chemical Works Ltd. v.
State of Saurashtra(2) and Workmen v. The
Management of Dimakuchi Tea Estate(3). In Dharangadhara Chemical Works Ltd.,
the appellants were lessees holding a licence for manufacturing salt on the
demised lands. The salt was manufactured by a class of professional labourers,
known as agarias, from rain water that got mixed up with saline matter in the
soil. The work was seasonal and commenced after the rains and continued till
June when the agarias left for their villages. The demised lands were divided
into plots which were allotted to the agarias with a sum of Rs. 400 for each
plot to meet the initial expenses.
Generally the same plot would be allotted to
the same agaria every year, but if the plot was extensive in area it would be
allotted to two agarias in partnership. After the manufacture of salt these
agarias were paid at the rate of -1516 per maund. Accounts would be settled at
the end of each season and the agarias would be paid the balance due to them.
These agarias worked together with the members of (1) [1949] F.C.R. 321.
(2) [1957] S.C.R. 152.
(3) [1958] S.C.R. 1156.
189 their families and were also free to
engage extra labour on their own account, the appellant company having no
concern therewith. No hours of work were prescribed, no muster rolls were
maintained nor were working hours controlled by the appellant company. There
were also no rules as regards leave or holidays and the agarias were free to go
out of the factory after making arrangements for the manufacture of salt. On
these facts the question was whether the agarias were workmen as defined by s.
2(s) or independent contractors. Bhagwati, J. speaking for the Court, after
quoting s. 2(s) of the Industrial Disputes Act, as it stood prior to its
amendment, in 1956, said thus :
"The essential condition of a person
being a workman within the terms of this definition is that he should be
employed to do the work in that industry, that there should be, in other words,
an employment of his by the employer and that there should be the relationship
between the employer and him as between employer and employee or master and
servant.
Unless a person is thus employed there can be
no question of his being a workman within the definition of the term as
contained in the Act." Relying in particular on the words "unless a
person is thus employed" counsel argued that this decision was at variance
with what was said in the Central Provinces Transport Services Ltd.(1) and was,
besides, an authority for the proposition that as the definition of a workman
then stood, an ex-employee would not be a workman within the meaning of the
Act. We are of the view that this decision does not warrant such a contention
or that there is any conflict between this decision and the two earlier
decisions. The question before the Court was the distinction between an
employee and an independent contractor and it was only while describing the
characteristics of the two relationships that the learned Judge observed that
unless there was a relationship of master and servant and the person concerned
"is employed" he could not be regarded as "a work-man" as
defined by the Act. The Court was not concerned in that case with the question
posited in the Central Provinces Transport Services Ltd.(1) whether an employee
who has been discharged or dismissed and who claims a relief such as reinstatement
is a workman or not. Not having to consider such a question and being only
concerned with the distinction between an employee and an independent
contractor, the observations made by the Court to delineate the features of the
two relationships cannot be regarded either as laying down that an ex-employee
is not a workman or as being in conflict with the two earlier decisions which
are specific decisions on the definition (1) [1956] S.C.R. 956.
190 of "a workman" in the Act. In
the case of Workmen of Dimakuchi Tea Estate(1), the dispute related to the
dismissal of one Dr. K. P. Bannerjee. The management in the written statement
pleaded that Dr. Bannerjee was not a workman as defined by S. 2(s) of the Industrial
Disputes Act, that therefore his dismissal could not be an industrial dispute
as defined in s. 2(k) and the Tribunal could have no jurisdiction to decide
whether the management were justified or not in dismissing the Doctor. The
Tribunal as also the Labour Appellate Tribunal held, presumably because Dr. Bannerjee,
was not in the words of s. 2(s) a person employed in any industry to do any
skilled or unskilled manual ,or clerical work, that he was not a workman within
the meaning of S. 2(s), that the question of his dismissal was not an
industrial dispute, and that therefore, his case was beyond the Tribunal's
jurisdiction. The workman thereupon applied for special leave under Art. 136
and though leave was granted, it was limited to the question whether a dispute
in relation to a person who is not a workman was an industrial dispute as
defined by s. 2(k) of the Industrial Disputes Act, 1947. In view of the special
leave being so limited, the Court proceeded on the assumption that Dr.
Bannerjee was not "a workman" under the definition of that word as it
then stood. The problem was, whether even so, the dispute regarding his
dismissal could still be an industrial dispute, the contention of the workmen
being that it would be so as by the use of the expression 'of any person' in the
third part of s. 2(k) a dispute relating to a person, though not a workman,
would 'be an industrial dispute. In answering this problem the Court entered
into an elaborate discussion of the several provisions and the scheme of the
Act and came to the conclusion that though the clause defining 'industrial
dispute' had used the expression "of any person", that expression
must be given a restricted meaning, namely, that the dispute must be a real
dispute between the parties thereto so as to be capable of settlement or
adjudication by one party to the dispute giving necessary relief to the other
and the person regarding whom the dispute was raised must be one in whose
employment, non-employment, terms of employment or conditions of labour the
parties to the dispute had a direct or substantial interest. In the absence of
such an interest the dispute ,could not be said to be a real dispute between
the parties. At page 1172 of the Report, the Court, however, has made certain
observations which apparently appear to be in variance with the Western India
Automobile Association(2) and in the Central Provinces Transport Services
Ltd.(3). The observations relied on by counsel are as follows (1) [1958] S.C.R.
11 56. (2) [1949] F.C.R. 321.
(3) [1956] S.C.R. 956.
191 "It is clear enough that prior to
1956 when the definition of 'workman' in the Act was further widened to include
a person dismissed, discharged or retrenched in connection with, or as a
consequence of the dispute or whose dismissal, discharge or retrenchment led to
the dispute, a workman who had been discharged earlier and not during the
dispute was not a workman within the meaning of the Act. If the expression
"any person" in the third part of the definition clause were to be
strictly equated with 'any workman', then there could be no industrial dispute,
prior to 1956, with regard to a workman who had been discharged earlier than
the dispute. That seems to be the reason why the Legislature used the
expression 'any person' in the third part of the definition clause so as to put
it beyond any doubt that the non-employment of such a dismissed workman was
also within the ambit of an industrial dispute." These observations,
however, were made to show that as the definition of the workman stood before
the 1956 amendment there was a gap between a workman and an employee, that
though all workmen would be employees, the vice versa would not be correct as
the supervisory staff would not fall within the definition of workman and that
that gap, was reduced to a certain extent by the Amendment Act of 1956 and that
it would not be always correct to say that the workmen would have a direct and
substantial interest in questions relating to all kinds of employees. At page
1173 S. K. Das J. observed "The expression 'any person' in the definition
clause means, in our opinion, a person in whose employment, or non-employment,
or terms of employment, or conditions of labour the workmen as a class have a
direct or substantial interest-with whom they have, under the scheme of the
Act, a community of interest." While dealing with the decisions in Western
India Automobile Association(1) and Central Provinces Transport Services
Ltd.(2), the learned Judge clearly stated at page 1176 that the problem in
those cases was whether an industrial dispute included within its ambit a
dispute with regard to reinstatement of certain dismissed workmen, a problem
quite different from the one before them and that the illustrations given by
Mahajan J. (as he then was) in the Western India Automobile Association(1),
"to elucidate a different problem", could not be taken as
determinative of a problem which was not before the Court in that case. The
problem in each of these decisions being different and in view particularly (1)
[1949] F.C.R. 321. (2) [1956] S.C.R.
956.
192 of the fact that the case proceeded on
the assumption that Dr. Banerjee was not "a workman", it becomes
difficult to agree that the observations relied on by counsel were meant to be
or are in fact in variance with those in the two earlier decisions, or that
therefore, there is any conflict, of opinion on the question that a workman
whose services are terminated would still be a workman as defined by S. 2(s)
before it was amended in 1956.
But assuming that there is such a conflict as
contended, we do not have to resolve that conflict for the purposes of the
problem before us. The definition s. 2 of the present Act commences with the
words "In this Act unless the context otherwise requires' and provides
that the definitions of the various expressions will be those that are given
there.
Similar qualifying expressions are also to be
found in the Industrial Disputes Act, 1947, the Minimum Wages Act, 1948, the
C.P. & Berar Industrial Disputes Settlement Act, 1947 and certain other
statutes dealing with industrial questions. It is, therefore, clear that the
definitions of "a newspaper employee" and "a working journalist"
have to be construed in the light of and subject to the context requiring
otherwise. Section 5 of the Act, which confers the right to gratuity, itself
contemplates in cl. (d) of sub-s. 1 a case of payment of gratuity to the
nominee or the family of a working journalist who dies while he is in the
service of a newspaper establishment. Section 17(1) provides that where any
amount is due under the Act to a newspaper employee from an employer, such an
employee himself or a person authorised by him or, in case of his death, any
member of his family can apply to the State Government or other specified
authority for the recovery thereof. Similar provisions are also to be found in
S.
33C(1) of the Industrial Disputes Act. Claims
under that section include those for compensation in cases of retrenchment,
transfer of an undertaking and closure under Ch. VA of that Act, all of which
would necessarily be claims arising after termination of service and the
claimant would obviously be one in all ,hose cases who would not be presently
employed in the establishment of the employer against whom such claims are
made. Likewise, the claim for gratuity under s. 17 read with s. 5 of the Act
would itself be one which accrues after the termination of employment.
These provisions, therefore, clearly indicate
that it is not only a newspaper employee presently employed in a particular
newspaper establishment who can maintain an application for gratuity. The
scheme of all these acts dealing with industrial questions is to permit an
ex-employee to avail of the benefits of their provisions, the only requirement
being that the claim in dispute must be one which has arisen or accrued whilst
the claimant was in the employment of the person against whom it is made. There
can, therefore, be no doubt that the definitions of a "newspaper em194
made therein. The reason for not doing so seems to be that the respondent had
made the claim before one Mitra, the accountant in the Delhi office, and that
claim was a matter of dispute. This position emerges from Roy's reply dated
December 5, 1963 to the respondents said letter of November 21, 1963 wherein
the stand taken by Roy was that the respondent was, not entitled to compensation
for leave, not because he had given up that claim when he had signed the said
receipt, but because the company's rules did not permit such compensation, It
is, therefore, manifest that the respondent did not make any representation
when he signed the said receipt that he had waived his claim for leave period
or that the company did any act on any such representation which otherwise it
would not have done. In spite of the letter Ex. W/4, the company failed to
produce before the Labour Court its rules under which it was said that such a
claim was not permissible. In its special leave petition in this Court, the
company, however, cited a rule but we could take no notice of it as no
application for producing the rules or proving them as additional evidence was
made and it was hardly fair or just to take notice of it it such a late stage
without an opportunity to the respondent to verify or controvert it. Roy's
reply also indicates that the company's case, that the respondent's claim for
compensation for leave was at the time of preparing his statement of account
adjusted or set-off against its claim for the notice period, could not be
correct. For, if that was so, Roy would have straightway said so in his said
reply, or in any event the company would have led evidence of its accountant to
that effect before the Labour Court. The rule of estoppel thus could not be
invoked against the claim for compensation for leave period.
We next examine the question whether the
respondent was precluded from making the rest of his claim. The burden of
proving the ingredients of s. 115 of the Evidence Act lies on the party
claiming estoppel. The representation which is the basis for the rule must be
clear and unambiguous and not indefinite, upon which the party relying on it is
said to have, in good faith and in belief of it, acted. The statement of
account prepared at the time when the respondent gave the said receipt appears
to indicate that the benefit of the free telephone and newspapers and the car
arowance were not taken into account and gratuity due to the respondent was
calculated on the amount of pay being comprised of basic wages and dearness
allowance only. But the inference that the respondent had given up his
aforesaid claims when he passed the said receipt appears to be rebutted by the
following facts : (1) though the resignation was accepted on October 21, 1963
the letter of acceptance was not communicated to the respondent till November
21, 1963 when the company obtained from the res195 pondent the said receipt;
(2) in the meantime, the respondent received Karnik's said letter of November
19, 1963 to the effect that there was no termination of the respondent's
service in the absence of a month's notice, and on receipt of which, according
to the respondent, he considered it necessary to secure the letter of
acceptance of his resignation from the company. If the termination of his
service depended on the giving of a month's notice, how was it that the
company's Manager, D'Souza, had accepted the resignation and signed the letter
of acceptance Ex. W/1 on October 21, 1963; (3) the company was aware, as
Karnik's said letter shows, that on the basis that his resignation was accepted
with effect from October 21, 1963 the respondent had joined the Indian Express
on October 23, 1963. The respondent's case was that it was after he was told
that his resignation had been accepted that he joined the Indian Express. But
when he received Karnik's said letter he decided that he could not rest content
without jeopardizing his interests on the mere oral intimation of acceptance of
his resignation, and therefore, went to the company's office to secure a
written acceptance when he was told that unless he passed a receipt in full
settlement of his claims, the letter of acceptance would not be issued to him.
There appear to be two good reasons why the respondent's case cannot be easily
discarded. Firstly, since his resignation was accepted with effect from October
21, 1963 and even a letter to that effect was made ready and signed by the
company's manager, it would ordinarily have been communicated to him. If the
company had any claim against him or if it wanted that his account should be
settled before the letter was issued to him, surely an intimation to that
effect would have been given to him.
Secondly, though the respondent had put on
record his version as to how the said receipt was obtained from him as early as
November 21, 1963, i.e., on the very day that the said receipt was secured from
him, no refutation of any of the allegations in that letter is to be found in
Roy's reply to it dated December 5, 1963 save that the respondent's claim for
compensation for leave period was not admissible under the company's rules. It
is significant that there was no denial in that reply that he receipt was
obtained from the respondent in the manner alleged in the said letter dated
November 21, 1963. Even at the later stages the company did not examine its
accountant before the Labour Court to refute the said allegations. The
statements of the respondent in that letter having thus remained unchallenged,
the Labour Court could not reject them. In these circumstances it becomes
doubtful whether he could be said to have been estopped from making the said
claim-, on the ground only of the said receipt, if that receipt was obtained,
as alleged by him, under the stress of circumstances. In this connection the
fact that he kept the said cheque uncashed is not totally without relevance.
196 Under S. 115 of the Evidence Act the
representation which estops a person making it from acting contrary to it is
one on the belief of which the other person acts in a manner he would not have
done but for it and on believing it to be true. Such a conclusion is difficult
in face of the uncontradicted statements in the letter Ex. W/4 that the
management would not give him the letter of acceptance of his resignation
unless he signed the said receipt in full settlement of all his claims. The
plea of estoppel made on behalf of the company, therefore, cannot be accepted.
The third contention was that the monetary
value of the free telephone and newspapers and the car allowance could not be
included as part of his wages for calculating gratuity. The value in terms of
money of the benefit of free telephone and free newspapers, as estimated by the
respondent, was not in question. But the argument was that this benefit as also
the car allowance were given to the respondent by way of reimbursement for
expenses which as a special correspondent he would otherwise have had to incur
for the proper and efficient discharge of his duties. The two items, therefore,
were neither an allowance nor an amenity. The facts, however, are that the
telephone was installed by the company at the respondent's residence and stood
in his and not in the company's name. All payments connected with it, including
charges for calls, were made by the company.
There was no restriction that he could use
the telephone only for his official work or that he could not use it for
personal calls. He was not called upon to keep an account of personal calls,
the payment of which he would be called upon to make. Nor was any estimated
amount for such personal calls either demanded or deducted from his wages.
The newspapers were subscribed by the
respondent but the bills for them were paid by the company. It was not the case
of the company that the bills for them would be paid by it provided they were
made use of by the respondent for his work as a special correspondent. As
regards the car allowance, the car belonged to and stood registered in his name
but the company paid him a monthly allowance of Rs. 200/-. There was non evidence
whatsoever, not even a suggestion in the correspondence that that amount was
estimated as being equivalent to the expenses of conveyance which the
respondent would incur in the discharge of his duties. No such indication is to
be found in the company's evidence, nor was such a suggestion put to the
respondent when he examined himself before the Labour Court.
Since wages has not been defined in the Act,
its meaning is the same as assigned to it in the Industrial Disputes Act.
Under s. 2(rr) of that Act, 'wages' means all
remuneration capable of being expressed in terms of money, which would, if the
terms of 197 employment, expressed or implied, were fulfilled, be payable to a
workman in respect of his employment or of work done in such employment, and
includes (i) such allowances (including dearness allowance) as the workman is for
the time being entitled to; (ii) the value of any house accommodation, or of
supply of light, water, medical attendance or other amenity or of any service
or of any concessional supply of food-grains or other articles; (iii) any
travelling concession; but does not include any bonus and other items mentioned
therein Mr. Ramamurthi's argument was that the car allowance as. also the
benefit of the free telephone and newspapers would fall under the first part of
the definition as hey are remuneration capable of being expressed in terms of
money. The argument, however, cannot be accepted as neither of them can be said
to be remuneration payable in respect of employment or work done in such
employment.
Neither the car allowance nor the benefit of
the free telephone was given to the respondent in respect of his employment
work done in such employment as the use of the car and the telephone was not
restricted to the employment, or the work of the respondent as the special
correspondent.
There was no evidence that the car allowance
was fixed after taking into consideration the expenses which he would have
ordinarily to incur in connection with his employment or the work done in such
employment. Even if the respondent had not seed the car for conveying himself
to the office or to other places connected with his employment and had used
other alternative r cheaper means of conveyances or none at all, the car
allowance would still have had to be paid. So too, the, bills for the telephone
and the newspapers whether he used them or not in connection with his
employment or his work as the special correspondent therefore, we have to turn
to the latter part of the definition and the if the two items properly fall there
under. So, far as the car allowance is concerned, there was, as aforesaid,
nothing to suggest at it was paid to reimburse him of the expenses of
conveyance which he would have to incur for discharging his duties as the
special correspondent, or that it was anything else than an allowance within
the meaning of s. 2(rr) of that Act. It would, the reaee, fall under the
inclusive part (1) of the definition. Likewise, the benefit of the telephone
and newspapers was allowed to the respondent not merely for the use thereof in
connection with his employment or duties connected with it. Both the car
allowance and the benefit of the free telephone and newspapers appear to have
been allowed to him to directly reduce the expenditure which would otherwise
have gone into his family budget and were therefore items relevant in fixation
of fair wages. (see Hindustan anyibiotics Ltd.v.Workmen(1). That being the
position, the two [1967] 1.S.C.R. 652 at 674, 675.
198 items could on the facts and
circumstances of the present case be properly regarded as part of the
respondent's wages and -had to be taken into calculations of the gratuity
payable to him.
These were the only points raised before us
and since in our judgment none of them can be upheld the appeal must fail and
has to be dismissed with costs.
Y.P. Appeal dismissed.
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