High Court · 2007

Judgment

1. he interim rates of wages; and Consequential benefits such as Provident fund, bonus, gratuity etc. on t

2. Whether the interim rates of wages w.e.f. will remain fixed or will have incremental effect.

2. So far as 1. above is concerned, it may be stated that the notification dated 24.9.96 fixes interim rates of wages of Working Journalists and Non-journalist Newspaper and News-agency Employees at the rate of 20% of the basic wage and an additional amount of Rs. 100/- per month. Therefore, no additional benefits as s tated in para 1 above would accrue. As regards 2 above, the increase in basic wa ge due to increment has to be taken into account for determination of interim re lief of 20% of the basic wage. \

Inspite of service of notice on the respondent No. 3, there is no respon 5. se from his side. The other respondents have also not filed any counter affidavi t controverting the stand of the petitioner/ management in the writ petition.

6. as Ms. R. Chakraborty, learned State Counsel. I have heard Mr. L.P. Sarma, learned counsel for the petitioner as well

7. Referring to the provisions of the aforesaid Act of 1955 and 1972, Mr. S arma, learned counsel for the petitioner has submitted that the respondent No. 3 himself having applied for payment of gratuity as per the provisions of the Act of 1955 and after receipt of the full amount of the gratuity could not have tak en another stand so as to claim gratuity amount of Rs. 2,23,128.17 and the Contr olling Authority also could not have converted the claim to one under Payment of Gratuity Act. He has placed reliance on the decisions of the Apex Court reporte d in (2004) 11 SCC 526 [Expressed Publications (Madurai) Ltd. Vs. Union of India ]; AIR 1987 SC 1869 (Sri Shamarjit Ghosh Vs. M/s. Bennett Coleman Co.). He has a lso placed reliance on the decision of the Karnataka High Court (DB) reported in 1998 Lab.I.C. 3062, (Management of Indian Express (Madurai) Pvt. Ltd. Vs. J.M. Jeswant).

8. ce to the impugned orders made submissions supporting the same. Ms. R. Chakraborty, learned Addl. Sr. Government Advocate upon a referen

9. Section 2 (c) of the Act of 1955 defines (cid:28)newspaper employee (cid:29) as any wor king journalist and includes any other person employed to do any work in, or in relation to any newspaper establishment. Section 2 (eee) defines (cid:28)wages (cid:29) as all remuneration capable of being expressed in terms of money, which would if the te rms of employment, expressed or implied, were fulfilled, be payable to a newspap er employee in respect of his employment or of worked done in such employment an d would also include the allowances mentioned therein.

10. Section 5 of the Act of 1955 makes provisions of payment of gratuity to any working journalist who has been in continuous service for not less than 3 ye ars in any newspaper establishment. Section 17 of the Act dealing with (cid:28)Recovery of money due from an employer (cid:29) provides that when amount is due to a newspaper employee from an employer, the newspaper employee himself or any person authoriz ed by him in writing in this behalf, or in the case of the death of the employee , any member of his family may, make an application to the State Government for the recovery of the amount due to him. The State Government or the prescribed au thority, if satisfied that any amount is due, it shall issue a certificate for t hat amount to the collector, and the collector shall proceed to recover that amo unt. If, any question arises as to the amount due the State Government may on it s own motion or upon application make to it refer the question to any Labour Cou rt constituted under the Industrial Act, 1947 or under any corresponding law rel ating to investigation and settlement of industrial disputes. Referring to the aforesaid provisions of the Section 17 of the Act, the 11. petitioner has contended that the controlling authority under the Payment of Gra tuity Act, 1972 had no authority to take cognizance of the matter and passed the impugned judgment and order dated 6.3.1998. Admittedly the respondent No. 2 is not the Government and thus, taking note of Section 17 of the Act, it cannot be said that this is authority was empowered to deal with the matter.

12. The respondent No. 3 had applied for gratuity under the provisions of th e Act of 1955 before the respondent No. 2, who converted the representation made by the said respondent to be the one under the provisions of the Payment of Gra tuity Act. He had no authority to do so, more particularly, when the Payment of Gratuity Act, 1972 is not applicable to the case of the respondent No. 3. Both t he Acts i.e. the Act of 1955 and the Act of 1972 are self contained and self suf ficient Acts. No amendment has been brought to the Act of 1955 providing that th e Act of 1972 will be applicable to the newspaper employees. Besides, there is a lso no amendment to the Act of 1955 providing computation of the period of 26 da ys a month as in the case of Payment of Gratuity Act. Accordingly, the computati on of 26 days a month by the respondent No. 2 is contrary to the provisions of t he Act of 1955.

13. Unlike, Section 5 of the Act of 1955 as per which 3 years of service is the minimum requirement for payment of gratuity, under Section 4 of the Payment of Gratuity Act, minimum service is 5 years. The benefit of 2 more years of serv ice has been given to the newspaper employees and as stated above, both the Acts being independent and self contained, the computation of payment of gratuity as per the provisions of Payment of Gratuity Act to the newspaper employee would b e without jurisdiction. Further as per Annexure-III letter dated 17.12.1996, the interim relief amount cannot be computed for the purpose of gratuity and as suc h the computation for payment of gratuity on interim relief amount by the respon dent No. 2 is also without jurisdiction. There is also no reference made by the Government to the Labour Court and in absence of such reference, the respondent No. 2 exercising its power and jurisdiction under the provisions of Payment of G ratuity Act, 1972 could not have computed the gratuity as has been done by the i mpugned judgment dated 6.3.1998. The respondent No. 1 also acted illegally and without jurisdiction in pa 14. ssing the appellate order dated 26.3.2001 without addressing itself to the afore said issues. None of the grounds urged by the petitioner has been discussed by t he appellate authority. It was wrong on the part of the appellate authority to h old that the Act of 1955 having not provided the methodology for working out gra tuity, the Act of 1972 would be applicable. The appellate authority simply brush ed aside the contention relating to Section 17 of the Act of 1955 by observing t hat the same is not a bar for taking recourse to any other mode of recovery.

15. The appellate authority simply referred to an earlier incident in which the gratuity was calculated as per the provisions of Payment of Gratuity Act, 19 72. The matter was clarified according to which the solitary instance was by way of a mistake and that such mistake cannot form the basis of claim made by other employees. If any mistake was committed earlier, same cannot give rise to any r ight. Similarly, the plea of the petitioner/ management regarding limitation was also rejected on the ground that such plea was not raised before the controllin g authority. Limitation being a question of law, could have been decided by the appellate authority.

16. In the judgment of the Karnataka High Court (DB) in J.M. Jeswant (supra) , it has been held that Section 14 of the Act of 1972 does not specifically over ride the provisions of the Act of 1955. It has been held that the question of co nferring more favourable benefit under the Act of 1972 does not arise.

17. In Bennett Coleman (supra), the Apex Court held that upon failure of con ciliation, the Government was empowered to make reference. This decision has bee n referred to emphasis on the point of argument under Section 17 of the Act of 1 955. In Express Publications (supra), the Apex Court held that the exclusion of employees of newspaper establishment from the purview of Employees’ Provident Fu nd Scheme, 1952 is not violative of Article 14 and 19 (1) (a) of the Constitutio n of India. It has been held that the employees of the newspaper establishment, as distinguished from those of other industrial establishments constitute a sepa rate class and the classification has a reasonable relation to the object of ame liorating service conditions of such employees.

18. The respondent No. 3, after retirement from service was paid gratuity am ount of Rs. 1,69,181/- taking into account his last wage of Rs. 8947/-. He recei ved the same without any reservation and thereafter made the representation befo re the respondent No. 2 for payment of enhanced gratuity amount to Rs. 2,23,128. 17. The controlling authority as well as the appellate authority under the Payme nt of Gratuity Act, without addressing themselves to the factual and legal posit ion discussed above, passed the impugned judgment 6.3.1998 and the order dated 2 6.3.2001 respectively.

19. For all the foregoing reasons, I am of the considered view that the calc ulation made by the Controlling Authority i.e. the respondent No. 2 affirmed by the Appellate Authority i.e. the respondent No. 1 as to the entitlement of gratu ity of the respondent No. 3 by the impugned judgment and order is not sustainabl e in law and liable to be interfered with. Consequently, the impugned judgment d ated 6.3.1998 and the impugned order dated 26.3.2001 are set aside and quashed.

20. The writ petition is allowed. Without, however, any order as to costs.