Padhi, J.:— Challenging the order passed by the Presiding Officer, Labour Court, Bhubaneswar, in Industrial Miscellaneous Case No. 147 of 1988 under S. 33-C(2) of the Industrial Disputes Act, 1947, the petitioners have approached this Court.
2. Facts necessary for adjudication of the controversy between the parties are as follows:
Opposite party 2 filed an application under S. 33-C(2) of the Industrial Disputes Act before the Presiding Officer, Labour Court, asserting therein that since 31 May, 1981, he has been working as a “special correspondent” of the daily Oriya newspaper “The Samaj.” He used to send news items from Baripada on a monthly salary of Rs. 100 per month which was subsequently enhanced to Rs. 250 per month. Since he was working as a “special correspondent”, he was entitled to bonus, house rent and also wages at the rate of ⅓rd of the pay and dearness allowance of sub-editor as per ‘Palekar's award.” Claiming the differential amount, he filed an application under S. 33-C(2) of the Industrial Disputes Act (Annexure I) before the Presiding Officer, Labour Court, Bhubaneswar.
3. On receiving notice, petitioners appeared and filed their written statement (Annexure 2) taking the specific stand that opposite party 2 was never appointed either an “employee” or “special correspondent” by them. He is not a “working journalist” and Palekar's award is not applicable to him. Opposite party 2 was undertaking his studies. He approached the Editor of “The Samaj” to give some financial assistance and in return he promised to furnish some local news from Baripada. For prosecuting the study, Editor of “The Samaj” helped him by giving him Rs. 100 per month which he subsequently enhanced to Rs. 250. After he completed his education, he has been enrolled as an advocate and was practising at Baripada and thereafter he is practising as such at Cuttack. In short, the status of opposite party 2 to be either a “working journalist” or “an employee' or “special correspondent” of the newspaper establishment was questioned. Since status of opposite party 2 has to be decided, an application under S. 33-C(2) of the Industrial Disputes Act was not maintainable. The alternate stand was that in view of S. 17(2) of the Working Journalists (Conditions of Service) and Miscellaneous Provisions Act, 1955 (Act 45/1955 (hereinafter referred to as the Working Journalists Act) as incorporated by Act 65 of 1962 in Working Journalists Act, 1955, which by implication had repealed S. 3 of the Working Journalists Act (Act 45 of 1955), the proceeding was not maintainable.
4. The Presiding Officer after assessing evidence and documents produced by opposite party 2 came to the conclusion that though opposite party 2 claimed in his application to be a “special correspondent” in fact he was a part-time correspondent, his principal avocation was journalism, therefore, he was a “working journalist.” He worked as a “part-time correspondent” from 1 January, 1982 till 31 December, 1986, on which date he had voluntarily abandoned to work as such. After coming to the above findings, Labour Court directed the petitioner to pay a sum of Rs. 20,036.18 as differential emoluments as per “Palekar's award” to opposite party 2.
5. Challenging this order of Labour Court passed under S. 33-C(2) of the Industrial Disputes Act, learned counsel for the petitioners submitted that:
(A) In view of incorporation of S. 17(2) of Working Journalists Act (Act 45/55) (Amending Act 65 of 1962), the proceeding under S. 33-C(2) of the Industrial Disputes Act was not maintainable.
(B) Since the petitioners had disputed the status of opposite party 2, the application under S. 33-C(2) of the Industrial Disputes Act was also not maintainable.
(C) Since opposite party 2 was neither an employee of the newspaper establishment nor a “working journalist” as defined under S. 2(f) of the Working Journalists Act, the order of Labour Court (opposite party 1) is not sustainable.
(D) Opposite party 2 claimed differential emoluments claiming to be a “Special correspondent.” The criteria for being declared as “special correspondent” has been stated in “Palekar's award.” The facts stated in the application does not fulfil the requirements to declare him as a “special correspondent.” He was not a “special correspondent”/an employee/a “working journalist” working in the petitioners' newspaper establishment.
6. Counsel for opposite party 2 submitted that since he was working as a “part-time correspondent” he comes within the ambit and definition of “working journalist” as defined under S. 2(f) of Working Journalists Act. He has only prayed for computation of his emoluments which was due to him as per “Palekar's award”, therefore, application under S. 33-C(2) of the Industrial Disputes Act was maintainable. Industrial Disputes Act is a benevolent legislation for workmen. Section 3 of Working Journalists Act by incorporation has made the provisions of Industrial Disputes Act applicable so far as “working journalists” are concerned with some modifications. Therefore, his application under S. 33-C(2) of the Industrial Disputes Act was maintainable.
7. The moot questions which arise for consideration in this writ application are:
(A) In view of incorporation of S. 17(2) in Working Journalists Act by Act 65/62, whether a ‘working journalist’ can avail the provision of Industrial Disputes Act. Stated in a different way, whether a ‘working journalist’ can file an application under S. 33-C(2) of Industrial Disputes Act in view of the specific provision of S. 17(2) of Working Journalists Act?
(B) When the status of an employee is challenged by the employer, whether an application under S. 33-C(2) of Industrial Disputes Act is maintainable?
(C) Whether opposite party 2 was a ‘special correspondent’ as was asserted by him in his application or he was a ‘part-time correspondent’ as found by the Court, was the Court justified to come to a finding that opposite party 2 was a ‘part-time correspondent’ in the newspaper establishment when opposite party 2 claimed to be a ‘special correspondent’?
8. Question No. A:
Since the ground of attack is after incorporation of S. 17(2) in Working Journalists Act, 1955, no more a “working journalist” can avail provisions of S. 33-C(2) of Industrial Disputes Act, 1947, brief history and background of relevant provisions in relevant statutes, i.e, Industrial Disputes Act and Working Journalists Act requires reference. Industrial Disputes Act, 1947, did not contain S. 33-C. In 1954, Industrial Disputes Appellate Tribunals Act, 1954, came into force. Section 20 of this Act contained an equivalent provision like S. 33-C, but without “any question” clause. In 1955 Working Journalists Act came into force. Section 3 of the Working Journalists Act referred to Industrial Dispute Act, 1947 and not to Industrial Disputes Appellate Tribunals Act, 1954. As it appears it did not refer to the aforesaid Act as S. 17 of Working Journalists Act had such a provision as S. 20 of the Industrial Appellate Tribunals Act, 1954. In 1956 Industrial Disputes Act, 1947, was amended and S. 33-C was added. But without “any question” clause and Industrial Disputes Appellate Tribunals Act, 1954, was repealed i.e, S. 20 of the Industrial Disputes Appellate Tribunals Act, 1954, became S. 33-C of the Industrial Disputes Act. By Act 65 of 1962 Working Journalists Act was amended, incorporating similar provision like S. 33-C of Industrial Disputes Act without “any question” clause. In 1964 Industrial Disputes Act was amended to incorporate “any question” in S. 33-C(2).
Section 3(1) of Working Journalists Act reads as follows:
“The provisions of the Industrial Disputes Act, 1947, as in force for the time being, shall subject to the modification specified in Sub-sec. (2), apply to, or in relation to, working journalists as they apply to, or in relation to, workmen within the meaning of that Act.”
9. Therefore, the meaning of the expression “for the time being” assumes importance. At the point of time when S. 3 of Working Journalists Act referred to Industrial Disputes Act, 1947, S. 33-C(2) as it new stands was not in the statute book. The expression “for the time being” is capable of different interpretations according to the context. As given in Venkataramaiyer's Law Lexicon, Vol. 1 — 1971 Ed. pages 459-460, the words “for the time being” might be used with a context showing clearly that they were intended to point one single period of time. It might be according to the context that the same words would apply to a succession of periods. In Law Lexicon it has been stated:
“The words ‘for the time being’ are capable of different interpretations according to the context; for example, they might be used with a context showing clearly that they were intended to point one single period of time…… It might be, according to the context, that the same words would apply to a succession of periods.”
The general sense of the phrase ‘for the time being’ is that of time indefinite, and refers to indefinite state of facts which will arise in future and which may vary from time to time.
10. In Stroud's Judicial Dictionary, 4th Edn. (Vol. 5) page 2773 the meaning of “time being” has been stated as follows:
“The phrase ‘for the time being’ may, according to its context, mean the time present, or denote a single period of time; but its general sense is that of time indefinite, and refers to an indefinite state of facts which will arise in the future, and which may (and probably will) vary from time to time (Ellison v. Thomas [31 LJCh. 867], Coles v. Pack. See also Re Gounters' Settlement Trusts [1949 Ch. 502].”
11. In Ellison v. Thomas [(1862) 31 LJCh. 867], their Lordships while construing the meaning of words “for the time being” have observed:
“….The words ‘for the time being’ are capable of different interpretations, according to the context; for example, they might be used with a context showing clearly that they were intended to point to one single period of time; and a case was put of a person intending to give a promissory note to a company, and giving it to the secretary ‘for the time being’, meaning clearly the person who appeared to be the secretary at the particular time when the note became payable. It might be, according to the context, that the same words would apply to succession of periods. Take the common case of a petition for payment of dividends to the rector of a certain parish for the time being, which, of course, would point, not to a single period, but a succession of periods. …”
12. In the case of Devkumarsinghji Kasturchandji v. State of Madhya Pradesh [A.I.R 1967 M.P 268], construing the expression “any other enactment for the time being in force” of S. 4(3) of the Madhya Pradesh Municipal Corporation Act, their Lordships opined that the expression “any other enactment for the time being in force” does not mean an enactment which was already in force at the time the corporation imposed a tax under S. 132 (1)(a); but means any legislation enacted whether before or after the imposition of the tax by the corporation. The general sense of the phrase “for the time being” is that of time indefinite, and refers to indefinite state of facts which will arise in future and which may vary from time to time.
13. In the case of Newspapers and Periodicals, Bangalore v. State of Karnataka [1982 — I L.L.N 594], construing the scope and ambit of S. 17(2) of Working Journalists Act and the right of working journalist to pursue his remedies under S. 33-C(2) of Industrial Disputes Act, his Lordship as observed:
“…….But if any question arises as to the amount due then it has to refer the same to the Labour Court. After deciding this issue the Labour Court will have to forward its finding to the Government so that it may issue a certificate and recover the money as provided in Sub-sec. (2). Here again it may be noted that this cheaper remedy made available to the newspaper employee is ‘without prejudice to any other mode of recovery’ he may have in law. This means he can, if he so chooses, file a regular suit or may perhaps, take recourse to S. 33-C of the Act of 1947…..”
14. In our opinion “for the time” in the context shall refer to the general sense, i.e, to that of time indefinite and refers to indefinite state of facts which will arise in future and which may vary from time to time. Though when at the time S. 3 of the Working Journalists Act refer to Industrial Disputes Act, 1947, though S. 33-C(2) of the Industrial Disputes Act was not in the statute book a working journalist can pursue his remedies under the same. Section 33-C(2) of the Industrial Disputes Act prima facie is more beneficial remedy than that of S. 17(2) of Working Journalists Act, since S. 33-C(2) of Industrial Disputes Act is not bound by the discretion of appropriate Government. When Working Journalists Act, 1955, in S. 3 incorporated the provision of Industrial Disputes Act, 1947, by reference it intended to confer existing and unknown future benefits that may accrue to the parties since Industrial Disputes Act was a special Act to investigate and resolve industrial disputes. By giving our anxious consideration, we would prefer to adopt the wider meaning of the expression “for the time being” rather than confine it to one single period. This would enable the Working Journalist Act in consonance with up to date provision of investigation and settlement of disputes under the Industrial Disputes Act and shall not make S. 3 redundant. Therefore, in our opinion it is open for a working journalist either to pursue his remedies under S. 17(2) of the Working Journalists Act or S. 33-C(2) of Industrial Disputes Act.
15. Question No. B:
Maintainability of the application under S. 33-C(2) of Industrial Disputes Act has been questioned on the ground that since opposite party 2 was neither a “special correspondent” nor a “part-time correspondent” nor an employee under the newspaper establishment, opposite party 2 has to first establish his status. In other words question arises as to when status of an employee is disputed, whether Labour Court can decide the dispute under S. 33-C(2) of Industrial Disputes Act.
16. The scope and ambit of S. 33-C(2) vis-à-vis S. 10 of Industrial Disputes Act had engaged the attention of Apex Court as well as various High Courts including our High Court. In the case of Central Bank of India, Ltd. v. P.S Rajagopalan [A.I.R 1964 S.C 743], facts were under “Sastri award”, clerks of the Central Bank operating adding machines were declared to be entitled to “special allowance” of Rs. 10 per month. Four clerks had made a claim for computation basing on the “Sastri award” before the Labour Court which was resisted by the Bank and it was submitted that the Labour Court under S. 33-C(2) of Industrial Disputes Act had no jurisdiction to determine whether the clerks came within the category entitled to get the benefit or not. It was held that the enquiry as to whether the four clerks came within the category was purely “incidental” and necessary for the purpose of giving the relief asked and, therefore, the Labour Court had jurisdiction to enquire whether the clerks answered the description of the category mentioned in the “Sastri award.” In the case of Central Inland Water Transport Corporation, Ltd. v. Its workmen [1974 — II L.L.N 78], their Lordships pointed out that by merely making a claim in a loaded form, a Workman cannot give the Labour Court jurisdiction under S. 33-C(2). Adjudication by the Labour Court must be incidental for computation of the entitlement for the money due to the workman. In the case of Punjab Beverages (Private), Ltd. v. Jagadish Singh [1978 - II L.L.N 665], Bhagwait, J., speaking for the Court pointed out that:
“….It is not competent to the Labour Court exercising jurisdiction under S. 33-C(2) to arrogate to itself the function of an Industrial Tribunal and entertain a claim which is not based on an existing right but which may appropriately be made the subject-matter of an industrial dispute in a reference under S. 10 of the Act ……”
Labour Court exercising jurisdiction under S. 33-C(2) of Industrial Disputes Act has got to be circumspect before it undertakes an investigation, reminding itself that any investigation it undertakes is, in a real sense, “incidental” to computation of benefit, under an existing right, which is its principal concern. Where a case involves an investigation directed to the determination of the applicant's right to receive and the corresponding liability, if at all, of the employer, such an investigation is impermissible in an application under S. 33-C(2) of Industrial Disputes Act. In deciding the maintainability of the application under S. 33-C(2) of the Industrial Disputes Act is to be looked at as the right set up in the application and not what the other side contends in its reply. In other words once the workman's case as disclosed in the application shows existence of relationship of employer and employee is not put in dispute by the applicant himself and on the basis of the existing right, the application would be maintainable. The fact that the employer by his plea raised some dispute does not mean that the jurisdiction of the Labour Court to deal with the question is taken away. A mere assertion by the employer that the applicant has no right or status or the employer has no liability, will not oust the jurisdiction of a Labour Court to take a decision. The Labour Court can go into the right of status. A blanket or mala fide denial on the part of the employer of the status or the right of the applicant cannot oust the jurisdiction of the Labour Court. Though in S. 33-C(2) of the Industrial Disputes Act proceeding the mere denial of the right of the workman by the employer would not take away the jurisdiction of the Labour Court where the basis and foundation of the claim is seriously contested and determination of that basic fact in that case will involve elaborate procees such matters being principal function and concern of the Industrial Tribunal, the Labour Court cannot proceed to decide that matter by dubbing the same as “incidental” to the computation of the benefit. This view of ours finds support from the case of Shyamsunder Sahu and Company v. Labour Court, Orissa [1977 — L.L.N 571]. The same view has been taken in the case of Managing Director, the Orissa Agro Industries Corporation, Ltd. v. Labour Court, Orissa [1984 — I L.L.N 596], and later on followed in the case of Chintamani Achary v. Union of India [1989 — I L.L.N 126].
17. This being the position of law as clarified both by the Apex Court and our Court, we find that in the claim petition the claimant claimed to be a “special correspondent.” In the evidence he stated that he was a “part-time correspondent.” The stand of the newspaper authorities was that he was neither a “special correspondent” nor a “part-time correspondent.” He was only getting some honorarium to prosecute his studies in lieu of which he was sending some news items to the editor of “The Samaj.” Though the maintainability of the application under S. 33-C(2) of the Industrial Disputes Act was specifically raised, the Labour Court has not adjudicated regarding maintainability of the application under S. 33-C(2). Therefore, we find that the order of the Labour Court is not sustainable.
18. Question No. C:
In the application, opposite party 2 had asserted that he was a “special correspondent” and prayed for differential amount to which he was entitled basing on Palekar's award. In Palekar's award, a “special correspondent” is defined in Section VI, Schedule I as follows:
“‘Special correspondent’ is a person whose duties regularly include reporting and interpreting all news of parliamentary, political and general importance as an accredited correspondent or otherwise at the headquarters of the Central Government or at a foreign center or who regularly performs similar functions in more than one State or at any other place where he is assigned as such.”
Relying on this definition learned counsel for the petitioners submitted that under no circumstances the opposite 2 could have worked as “special correspondent.” In answer to this Sri Misra learned counsel for opposite party claimant stated that opposite party 2 has used the term ‘special correspondent’ has used the terms “special correspondent” without understanding the real meaning of it. What he meant was that he was a “part-time correspondent” and his principal avocation being journalism, he comes within the definition of “working journalist.” We find that since it was not pleaded in the claim petition that the opposite party 2 was a part time correspondent” whose principal avocation being journalism was a “working journalist”, the petitioner had no opportunity to meet such a point. It is only at the stage of evidence opposite party 2 stated that he was a “part-time correspondent.” Therefore, petitioners never had the opportunity to adduce any evidence as to whether opposite party 2 was a “part-time correspondent” whose principal avocation being journalism was a “working journalist” within the definition of S. 2(f) of Working Journalists Act. In that view of the matter the finding of the Labour Court that opposite party 2 was a “working journalist” is not sustainable.
19. In our opinion, both the sides should get further opportunity to prove their respective cases and put forth the materials before the Labour Court and thereafter the Labour Court has to adjudicate as to whether it has got jurisdiction or not under S. 33-C(2) of Industrial Disputes Act to adjudicate the dispute between the parties and as to whether opposite party 2 was a “working journalist” coming within the scope and ambit of definition of S. 2(f) of the Working Journalists Act.
20. In the result, the writ application is allowed. The order under Annexure 3 is quashed. The matter is remitted to the Labour Court for fresh consideration keeping in view the observations made above.
21. In the circumstances of the case, there shall be no order as to costs.
22. P.C Mishra, J.:— I agree.