Daily Navajyoti, Ajmer v. Appellate Authority Under S. 17(1) Of Working Journalists Act And Another

The Judgment of the Court was delivered by

Rajendra Saxena, J.:— This special appeal has been directed against the order, dated March 7, 1996, passed by the learned S.B in S.B Civil Writ Petition No. 300 of 1996, whereby appellant's writ petition was dismissed holding that the order, dated November 2, 1995 (Annexure 7) passed by the authority did not give any cause of action to the petitioner to file the writ petition.

2. A brief resume of the facts relevant for the disposal of this appeal can be recapitulated in a short compass. On April 24, 1995 Sri Mahesh Chand Sharma (respondent 2) filed a claim (Annexure 3) under S. 17(1) of the Working Journalists (Conditions of Service) and Miscellaneous Provisions Act, 1955 (briefly the Act) before the authority (respondent 1) with the averments that he was working as a Working Journalist with the Paily Navajyoti newspaper Establishment (briefly establishment), that he retired on March 30, 1993 after serving for a period of 30 years, that the terms and conditions of his service were governed by the Standing Orders and the provisions of the Act, that at the time of his retirement the establishment computed gratuity on the basis of his basic pay and dearness allowance only at Rs. 5,248 per month whereas as per provisions of S. 52(rr) of Industrial Disputes Act read with S. 5 of the Act he was entitled to get the gratuity computed on his wages including all remuneration capable of being expressed in forms of money namely free facility for telephone, newspapers and conveyance allowance amounting to Rs. 6,427 per month as per details shown in his statement of claim. Since he had been continuous in service for 30 years, he was entitled for gratuity equivalent to 15 months wages. But the establishment has only computed his gratuity for 12 years and six months only. Besides that, his monthly salary ought to have been computed following the pattern of fixation of wages at 26 working days in a month. Thus his gratuity amount works out to Rs. 1,37,206.00. Besides that, as per Standing Order 13 of Navajyoti Service Rules (Standing Orders), he was also entitled to three months notice prior to his retirement or in lieu thereof three months pay, which amounts to Rs. 23,782.50 but the appellant has paid him Rs. 65,613 only as gratuity. Respondent 2 further averred that during service he was getting free telephone facility at Rs. 500 per month, free newspaper facility at Rs. 250 per month and Rs. 750 per month as reimbursement of petrol for the conveyance. Thus, he is also entitled to get the gratuity on this amount of Rs. 1,500 per month.

3. Respondent 1 vide its letter, dated June 19, 1995 (Annexure 4) directed the appellant to make the payment of Rs. 95,375.50 as per claim filed by respondent 2 and to intimate by the next date about the payment so made failing which ex parte order for the recovery of the money due shall be passed against him. The appellant challenged the letter (Annexure 4) by filing S.B Civil Writ Petition No. 2957 of 1995, which was allowed by the learned Single Bench vide its order, dated 7 September 1995, and it was directed that letter Annexure 4 be treated only as a show-cause notice to the appellant, who shall be free to appear and raise all objections with regard to the claims in question including the jurisdiction of the authority to decide the matter.

4. On October 26, 1995, the appellant submitted its reply along with preliminary objections before the authority, wherein he inter alia averred that the claim of Rs. 95,375.50 in respect of gratuity has been filed by respondent 2 after two years of his retirement, that at the time of his retirement, vide letter, dated February 28, 1993 (Annexure 1) he was informed about his retirement, which was to be effective from March 31, 1993, that at that time respondent 2 was drawing Rs. 5,248 per month as salary, that the calculation of the gratuity was done in accordance with the provisions of Payment of Gratuity Act and an amount of Rs. 65,613 was paid to him vide Annexure 2, which he accepted without any objection. Therefore, there remains no dispute between the parties regarding the payment of gratuity amount. The appellant also raised an objection that under the Payment of Gratuity Act; Labour Commissioner, Jaipur has been designated as appellate authority to hear and dispose of the appeals arising out of the decisions given by the authority appointed under the said Act. Therefore, respondent 1 had no jurisdiction to entertain the claim. The appellant raised yet another objection that Sri Mahesh Chand Sharma was not entitled for gratuity as per provisions of the Act. Thus, there is apparently a dispute as to whether in the instant case the provisions of the Act shall apply or the provisions of the Payment of Gratuity Act, 1972, shall apply. Hence, the matter does not fall under S. 17(1) of the Act and such a disputed question cannot be decided by the authority and the matter has to be referred through the State Government to the Labour Court. The appellant also asserted that at the time of retirement Mahesh Chand Sharma was not enjoying the facility of free telephone, free newspapers and conveyance allowance. Moreover, the claim for the said facilities at Rs. 500, Rs. 250 and Rs. 750 per month is false and without foundation and therefore, the said amount, of Rs. 1,500 per month cannot be included in wages for computing his gratuity amount. Since Sri Mahesh Chand Sharma retired on attaining the age of superannuation he was not entitled to claim three months pay. The appellant, therefore, prayed the authority to decide the question of jurisdiction before entering into the merits of the case.

5. The authority after hearing the parties by its impugned order, dated November 2, 1995, held that since the Act is a Special Act its provisions shall override the provisions of the General Act, viz., the Payment of Gratuity Act, 1972, and that respondent 2 was entitled to claim gratuity as per provisions of the Act, which are more beneficial to him. The authority further held that it had the jurisdiction to investigate the matter and that other questions would be decided by him while deciding the matter as to whether or not any question arises warranting reference by the State Government to the Labour Court in terms of S. 17(1) of the Act. The learned S.B dismissed the writ petition filed by the appellant by the impugned order, dated March 7, 1996. Hence this special appeal.

6. We have heard the learned counsel for the parties at length and carefully perused the relevant record.

7. Sri R.K Kala has vigorously canvassed that respondent 2, who was appointed as working journalist, continuously served with the appellant establishment for about 30 years, that he attained the age of superannuation in 1992 but he was formally retired from service with effect from March 31, 1993, that at that time he was getting Rs. 3,995 as basic pay, Rs. 1,253 as dearness allowance, Rs. 30 as city compensatory allowance and Rs. 399.50 as house rent allowance, i.e, a total amount of Rs. 5,677.50 per month. In additional to this, one copy of Daily Navajyoti was supplied free to him at his residence for which payment at Rs. 4 per month was paid by the establishment to the hawker. Respondent 2 was neither paid any telephone allowance nor any conveyance allowance as he was not maintaining any car. Respondent 2 accepted the gratuity amount without any objection vide Annexure 2 and as such for the purpose of computation of gratuity he is not entitled for any other amount in the name of special allowance. Sri Kala submitted that since a question has arisen as to the amount due under the Act, the matter squarely falls under S. 17(2) of the Act and the authority has no jurisdiction to decide such a dispute. On the other hand, the State Government is required to refer the question to the Labour Court for adjudication.

8. On the other hand, Sri P.K Sharma, the learned counsel for respondent 2 has strenuously contended that admittedly, Sri Mahesh Chand Sharma was a working journalist, who has been in continuous service with the appellant for about 30 years and therefore, he is entitled for payment of gratuity as per provisions of S. 5 of the Act, which is a Special Act. He has asserted that the mode of calculation of monthly wages must be based treating 26 working days in a month and gratuity should be calculated on that basis as per law laid down by the Apex Court in Shri Digvijay Woollen Mills Ltd. v. Shri Mahendra Prataprai Buch [1980 (2) L.L.N 417]. Another limb of his argument is that car allowance, benefit of free telephone and free newspaper should be regarded as part of wages in calculating gratuity because such amenities fall within the meaning of wages under S. 2(rr) of the Industrial Disputes Act, 1947, forming the component part of monthly wages payable to respondent 2. He has contended that simply by accepting the gratuity amount vide Annexure 2, respondent 2 is not estopped from claiming the gratuity on the basis of the aforementioned amenities. For this, he has placed reliance on the case of Bennett Coleman and Company, Ltd. v. P.P Das Gupta [1969- II L.L.J 554]. He has submitted that as per rule 13 of the Standing Orders of the appellant establishment after completing the age of 58 years a working journalist at the time of termination of his service is entitled for three months notice or notice-pay. Thus, according to him, the amounts claimed by respondent 2 are legally payable to him under the Act. Therefore, the authority has jurisdiction to investigate the matter and determine the claim under S. 17(1) of the Act As regards the disputes raised by the appellant for the entitlement of the monetary value of the amenities (free telephone, free newspapers and the conveyance allowance), Sri P.K Sharma has submitted that if the authority feels that it is a disputed question then such dispute can be referred by the State Government to the Labour Court under S. 17(2) of the Act.

9. We have given our most anxious and thoughtful consideration to the rival submissions. A careful perusal of the statement of claim (Annexure 3) and the reply as also the preliminary objections (Annexure 6) raised by the appellant clearly indicate that there is a genuine dispute between the parties in respect of the following matters:

(i) Whether for the computing the gratuity of respondent 2. the provisions of the Act shall apply or those of Payment of Gratuity Act. 1972, are applicable?

(ii) Whether respondent 2 is entitled to get this wages computed at 26 working days per month for the purpose of computation of gratuity?

(iii) Whether the petitioner is entitled to get three months notice-pay as per Cl. 13 of Standing Orders?

(iv) Whether at the time of retirement respondent 2 was getting Rs. 750 as special allowance as claimed by him.

(v) Whether respondent 2 was getting the benefit/facility of free telephone, free supply of newspapers and reimbursement of petrol expenses as conveyance allowance at Rs. 500, Rs. 250 and Rs. 750 per month respectively, as claimed by him?

10. There is no dispute between the parties that respondent 2 was a working journalist within the meaning of S. 2(f) of the Act. Section 5 of the Act specifically provides for the payment of gratuity to a working journalist. The Working Journalists and Other Newspaper Employees (Conditions of Service) and Miscellaneous Provisions Act, 1955, has been enacted to regulate certain conditions of service of working journalists and other persons employed in Newspaper establishments. Hence it is a Special Act and its provisions regarding payment of gratuity and mode of calculation thereof shall override the provisions of the General Act, viz., the Payment of Gratuity Act, 1972. The case of respondent 2 clearly falls under S. 5(1)(a)(ii) of the Act, because he has retired from service on reaching the age of superannuation, and as such, he is entitled for gratuity, which shall be equivalent to 15 days' average pay for every completed year of service or any part thereof in excess of six months Vide Para. 2 of the memo of appeal, it has been specifically pleaded that respondent 2 had served the appellant establishment as a working journalist for about 30 years continuously till his retirement. Thus, in view of clear, cogent and unambiguous provisions of S. 5(1)(a)(ii) of the Act, the gratuity equivalent to 15 days' average pay for every completed year of service, i.e, for 15 months is apparently due to respondent 2, whereas he has been paid gratuity amount for a period of 12 years and 6 months only. Hence the respondent 2 is entitled to get 15 months wages as gratuity.

11. In the case of Digvijay Wollen Mills [1980 (2) L.L.N 417] (vide supra), the Apex Court while interpreting the provisions of S. 4(2) of the Payment of Gratuity Act, 1972, has explained the mode of calculation of monthly wages and has held that the monthly wage must be treated as wage for 26 working days and gratuity should be calculated on that basis. In that case the dispute was between the workmen of the Wollen Mills and management. As per S. 4 of the Payment of Gratuity Act, 1972, the payment of gratuity has to be computed at the rate of wages last drawn by the employee and not on the basis of 15 days' average pay for every completed year of service as provided under S. 5 of the Act. Thus, it is manifest that the provisions of S. 5 of the Act and those of S. 4 of the Act of 1972, are not similar and identical but are different. The provisions of S. 5 of the Act are more beneficial to a working journalist. Therefore, the law laid down in Digvijay Wollen Mills, Ltd. case (vide supra), regarding computation of gratuity, i.e, at 26 working days in a month cannot be pressed into service in the instant case and gratuity to respondent 2 has to be computed as per provisions of S. 5(1)(a)(ii) of the Act.

12. Section 17 of the Act runs as under:

“17. Recovery of money from an employer.— (1) Where any amount is due under this Act to a newspaper employee from an employer, the newspaper employee himself, or any person authorised by him in writing in this behalf, or in the case of the death of the employee, any member of his family may without prejudice to any other mode of recovery, make an application to the State Government for the recovery of the amount due to him and if the State Government, or such authority, as the State Government may specify in this behalf, is satisfied that any amount is so due, it shall issue a certificate for that amount to the Collector, and the Collector shall proceed to recover that amount in the same manner as an arrear of land revenue.

(2) If any question arises as to the amount due under this Act to a newspaper employee from his employer, the State Government may, on its own motion or upon application made to it refer the question to any Labour Court constituted by it under the Industrial Disputes Act. 1947, or under any corresponding law relating to investigation and settlement of industrial disputes in force in the State and the said Act or law shall have effect in relation to the Labour Court as if the question so referred were a matter to the Labour Court for adjudication under that Act or law.”

13. A careful perusal of S. 17(1) of the Act makes it amply clear that it can only be pressed into service when there is no dispute of any nature, either with regard to the status claimed by the person as the newspaper employee or working journalist or the quantum of amount claimed as due by him or the employer. The authority, therefore, has the jurisdiction under S. 17(1) to compute the amount of gratuity due when there is no dispute of any nature. But in the case at hand there is an apparent dispute as to whether respondent 2 was getting special allowance at Rs. 750 per month as claimed by him in the annexure appended to his statement of claim. Therefore, it is a contentious/disputed issue and such a dispute falls under S. 17(2) of the Act and the authority has no jurisdiction to investigate and determine as to whether respondent 2 was getting special allowance at Rs. 750 per month.

14. Similarly, there is a substantial dispute between the parties as to whether respondent 2 at the time of his retirement was getting benefit of free telephone, free newspapers and conveyance allowance at Rs. 500, Rs. 250 and Rs. 750 per month respectively. These matters also fall under S. 17(2) of the Act and the authority has no jurisdiction to decide such a dispute under S. 17(1) of the Act.

15. In Bennett Coleman and Company, Ltd. case (vide supra), the working journalist was undisputably getting the amenities like free telephone, free supply of newspaper and the car allowance. The Apex Court held that the said aminities were liable to be included as wages under S. 2(rr) of the Industrial Disputes Act for the purposes of computing the gratuity. But in the case at hand, the factum of providing the alleged benefits to respondent 2 have been seriously disputed and questioned by the appellant. Therefore, the claim in this regard clearly falls under S. 17(2) of the Act for which the State Government is obliged to make reference to the Labour Court.

16. As per Cl. (13) of the Standing Order of the appellant, respondent 2 was entitled to three months' notice-pay. Hence this part of the claim fall under S. 17(1) of the Act.

17. In our considered opinion, the learned S.B has not correctly interpreted the previsions of Ss. 17(1) and 17(2) of the Act and wrongly held that no cause of action has arisen to him by the impugned order. The authority, has also committed patent error in holding that it has jurisdiction under S. 17(1) of the Act to hear and decide the claim filed by respondent 2 and to this extent, the impugned orders cannot be sustained in toto.

18. In the result, this special appeal is partly allowed and it is directed that the authority shall, after making necessary enquiry, perusing the documents and hearing the parties and after being satisfied about the gratuity amount, which is so due under the provisions of S. 1(1)(a)(ii) of the Act in respect of the undisputed amounts of basic salary, dearness allowance city compensatory allowance and house rent allowance, pass necessary order and issue the certificate under S. 17(1) of the Act for the unpaid gratuity amount in favour of respondent 2. Since there exists substantial dispute between the parties in respect of the gratuity amount calculated on the basis of special allowance at Rs. 750 per month and benefit of facility of free telephone, free supply of newspapers and conveyance allowance amounting to Rs. 1500 per month authority has no jurisdiction to decide such contentious question and for which the State Government may promptly take appropriate action under S. 17(2) of the Act and refer the question to the appropriate Labour Court for adjudication in accordance with law.

19. The parties are directed to appear before the authority (respondent 1) on.