D.M Dharmadhikari, J.:— The petitioner United News of India is admittedly a “News Paper Establishment” as defined in Section 2(d) of the Working Journalist and other News Paper Employees (Conditions of Service) and Miscellaneous Provisions Act, 1955 (Hereinafter referred to in short as the “Act of 1955”)

2. By this petition under Article 227 of the Constitution of India the award passed by the Labour Court Jabalpur on a reference under Section 10 of the I.D Act directing re-instatement in service of respondent No. 3. Shri H.S Verma as Bureau Chief with full back wages has been challenged.

3. According to the case of the employee (respondent No. 3) by order issued as back as on 8.11.1967 he came in employment of the petitioner Establishment on the post of stringer. The counsel for the parties explained that' stringer' is a News Reporter and its dictionary meaning is “News Reporter employed on a free lance basis often out of town or foreign locations”. According to the respondent employee he was paid a very meagre honorarium initially of Rs. 30/- increased to Rs. 125/- per month. In the year 1979 the petitioner Establishment deputed one Shri B.N Jha as Bureau Chief at Jabalpur and the services of the respondent employee were discontinued. He, therefore, raised an industrial dispute before the Assistant Commissioner, Jabalpur Division, Jabalpur. According to the employee in the course of conciliation the employer agreed to issue an appointment order in his favour on the post of Bureau Chief on a pay scale of Rs. 850-2020/- with grant of continuity of service, but ultimately the employer backed out and the conciliation resulted in failure. Thereafter reference of industrial dispute concerning termination of his services and his entitlement for the relief's claimed by him was referred for adjudication to the Labour Court under terms of reference contained in the order of reference dated 10.1.84 (Annexure. M). Accepting the case of the workman and holding it to be one of illegal retrenchment contrary to the provision 3 of the Act of 1955 read with the provisions of I.D Act, the Labour Court made award directing reinstatement with back wages of the respondent employee on the post of Bureau Chief.

4. Shri R.K Gupta, learned counsel appearing for the employer assails the award on several grounds of facts and law. Firstly, it is argued that the employee was not covered by the definition of ‘Working Journalist’ under Section 2(f) of the Act. It is submitted that before the Labour Court and in this Court the employee never disputed the fact that even while working as stringer under the petitioner Establishment he continued to be enrolled as an Advocate in the Bar Council of Madhya Pradesh. Such a person who is enrolled as an Advocate cannot be held to be a person “whose principal avocation is that of a journalist”, to be included within the definition of “working journalist”. Reliance is placed on a decision of Supreme Court in the case of State of Punjab v. Gurudarshan Singh Grewal, 1994 Supp (2) SCC 107 , A.I.R 1993 S.C 2482 and a decision of Division Bench of Mysore High Court (as it was called then) reported in News Paper Publishers (Private Ltd.) Mangalore v. Their Workmen (by S.K Press Workers Union), 1965 Vol. II L.L.J 315 Learned counsel appearing for the employer also referred to Rules 144(i)(b) and (ii) of the State Bar Council Rules of M.P framed under the Advocates Act to show that full or part time employment in any other services by an Advocate without permission of the State Bar Council, is prohibited.

5. Shri Ravindra Shrivastava, learned counsel appearing for the employee on the first ground urged in his reply submitted that evidence was recorded of the parties before the Labour Court and it has no where been demonstrated that the respondent employee was not devoting full time to work of the news paper establishment. It is submitted that the employee although continued to be shown on the rolls of Bar Council as an advocate, but he was never in active practice during the period he was working in the ‘establishment’. It is also submitted that the Page: 745alleged breach of the Bar Council Rules may expose the petitioner to a disciplinary action of misconduct as an advocate but the petitioner as an employer cannot be heard to say that the employee was not under its employment.

6. After looking into the relevant part of the evidence on record before the Labour Court, I find that the principal avocation of the employee was of journalist and he was not principally engaged as an Advocate may be that his name continued to be on the rolls of the Bar Council. He is, therefore, clearly included in the definition of ‘working journalist’. A Stringer i.e a News Collector or a correspondent is expressly mentioned in the inclusive definition of ‘working journalist’ under Section 2(f) of 1995 which reads as under:—

“2(f) “working journalist” means a person whose principal avocation is that of a journalist and who is employed as such, either whole-time or part time, in or in relation to, one or more news paper establishment, and includes an editor, a leader, writer, news-editor, sub-editor, feature writer, copy-tester, reporter, correspondent, cartoonist, news-photographer and proof-reader, but does not include any such person who—

(i) is employer mainly in a managerial or administrative capacity; or

(ii) 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;”

7. An employee who is covered by the definition of ‘working journalist’ as defined in Section 2(f) of the Act 1955 is a ‘workman’ and this legal position has not been disputed by the parties. Section 3 of the Act of 1955 makes applicable provisions of Section 25-F of the Industrial Disputes Act to the ‘working journalist’ and the Labour Court was, therefore, fully competent to entertain the dispute and grant the relief.

8. The cases of Supreme Court and of Mysore High Court (supra) relied on behalf of the employer are distinguishable on facts. In the Supreme Court case (supra) a practising Advocate came to be appointed as part time Administrator General and official Trustee-cum-Treasurer and claimed status of a Government Servant within the meaning of Article 311 of the Constitution. Such claim of the workman was negatived. In the instant case the Advocate enrolled was mainly and principally employed in the work of ‘journalist’ and, therefore, he could claim status of the working journalist as defined under the Act of 1955. The decision of the Mysore High Court (supra) is also distinguishable, where status of ‘workman’ as defined under Section 2(s) was denied to a child labour who was employed contrary to the statutory prohibition under the Factories Act. There is no such legal prohibition for an enrolled Advocate to take up full time or part time work of journalist. Any infraction of Bar Council Rules may expose the advocate to disciplinary action but he cannot be denied his status, rights and privileges as a ‘working journalist’ under the Act of 1955 in the absence of any provision to the contrary in the said Act.

9. The next ground urged on behalf of the employer is that in the course of conciliation the dispute had been settled between the parties. On the pleadings before the Labour Court of the parties, it is argued, that the dispute only was with regard to the implementation or the nature of settlement reached during Page: 746conciliation. It is, therefore, submitted that the reference made under Section 10 of the I.D Act as framed was incompetent.

10. The contention advanced has absolutely no basis on facts. The copy of the terms of settlement is placed on record with the petition as Annex, J. It is apparent from the said document that it has been signed only by the employee and it has not been signed on behalf of the employer by anyone. Under Section 12 of the I.D Act in the event of both failure or success of the conciliation proceedings, the appropriate authority as a conciliator has to make a report to the Central Government in the prescribed form specified in the Rules. This Court directed the parties to produce the record of the conciliation. They were unable to do so and submitted in the course of hearing, that the record is reported to have been lost or destroyed. From the order of reference (Annex. M) it is clear that the copy of the reference was also endorsed to Assistant Labour Commissioner, Jabalpur who had acted as the conciliator. The employee in the witness box before the Labour Court stated that the employer offered to give fresh appointment order to the petitioner on the post of Bureau Chief but admittedly the letter of appointment (Annex. X) filed with the petition, was never issued in favour of the petitioner. The employee stated before the Labour Court that the employer made a show of agreeing for settlement but it was nothing but a dodge.

11. There is nothing on record for this Court to come to a conclusion that in the course of conciliation any formal settlement was reached and was reported by the conciliator under Section 12 of the I.D Act. In the absence of a settlement, the dispute existed and the appropriate Government was, therefore, competent to make a reference of the dispute for adjudication to the Labour Court. The decision relied in S.T.P Ltd. v. First Industrial Tribunal W.B, 1995 LIC 1517 of learned Single Judge of Calcutta High Court is of no help to the petitioner for the reasons aforesaid.

12. Lastly, on behalf of the petitioner it is contended that there was no justification for the Labour Court to direct re-instatement of the employee on the post of Bureau Chief. The above argument advanced on behalf of the petitioner has great force. The letter of appointment alleged to have been issued in the Court of conciliation to offer the post of Bureau Chief on a pay scale, was never is fact issued in favour of the petitioner and it is stated by the employee himself that the employer had backed out. In the circumstances, there exists, no order of appointment giving any status of the post of Bureau Chief to the employee. It is likely that he was looking after all the work of the News Paper Establishment at Jabalpur. His letter of appointment, however, is on the post of Stringer and in the absence of any other letter of appointment he throughout continued on that post. The award of the Labour Court directing his re-instatement with back wages is liable to be sustained not on the post of Bureau Chief but only on the post of Stringer.

13. Before concluding his reply, learned counsel for the employer submitted that there was absolutely no justification for the Labour Court to award full back wages without making any enquiry as to whether after termination the employee was making any earning. It is also submitted that in any case back wages cannot be paid to the employee beyond the age of superannuation of 58 years.

14. So far as back wages are concerned, that was one of the terms of reference to the Labour Court. The employee had throughout taken a stand that he worked as whole time journalist although continued to be shown on rolls of Bar Council as an Advocate. The employer has not been able to produce any evidence to show before the Labour Court or in this Court that the employee had any earning from the legal practice. There is also no evidence that after his termination he was gainfully employed elsewhere. There is, therefore, no question of directing any further enquiry into the question of entitlement of back-wages. As a result of the discussion aforesaid, the petition only partly succeeds. The impugned award of the Labour Court directing re-instatement of the respondent employee with back wages is maintained only for the post of stringer and not for the post of Bureau Chief. He shall however, be entitled to arrears of back wages only upto the date he has attained the 58 years of age of superannuation. In the circumstances, I make no order as to costs. The amount of security, if any, in deposit be returned to the petitioner.

15. Petition Partly Allowed.