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The Workman, B. Somayajulu, Correspondent Represented by President, Andhra Union of Working Journalists, Eluru Vs. the State of Andhra Pradesh, Hyderabad Represented by Labour Secretary and ors. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtAndhra Pradesh High Court
Decided On
Case NumberWrit Petn. Nos. 677 of 1958 and 587 of 1960
Judge
Reported inAIR1961AP528; (1961)IILLJ265AP
ActsWorking Journalists (Industrial Disputes) Act, 1955 - Sections 2; Working Journalists (Conditions of Service) Miscellaneous Provisions Act, 1955 - Sections 2; Industrial Disputes Act, 1947 - Sections 2; Constitution of India - Article 226
AppellantThe Workman, B. Somayajulu, Correspondent Represented by President, Andhra Union of Working Journali
RespondentThe State of Andhra Pradesh, Hyderabad Represented by Labour Secretary and ors.
Appellant AdvocateP.A. Chowdary, Adv. and ;Adv. General
Respondent Advocate3rd Government Pleader, ;N.V.B. Sankara Rao and ;M.S. Krishnamurthy, Advs.
Excerpt:
labour and industrial - status of workmen - section 2 (b) of working journalists (industrial disputes ) act, 1955 and section 2 (f) of working journalists (conditions of service) miscellaneous provisions act, 1955 - petitioner engaged as correspondent by express newspaper - agency terminated while he remained working as correspondent - request made to respondent to reinstate - on rejection appeal filed - whether newspaper correspondent is working journalist - petitioner had to give his constant attention and time to job - prohibited from working with other newspaper - construing relevant clause, subject matter of statute and object of legislature - definition of 'avocation' in section 2 (f) and 'working journalist' includes petitioner work or correspondents - held, present dispute is an.....chandra reddy, c.j.1. the principal point that culls for decision in both these petitions is whether a newspaper correspondent is a working journalist within the terms oi the working journalists (conditions ol service) and miscellaneous provisions act, 1955.2. these petitions seek the issuance of writs of certiorari to call for the records of the labour courts, andhra pradesh, one situated at guntur and the other at hyderabad. the labour court of hyderabad sitting at guntur decided that a correspondent is a working journalist as defined in the act, while the other court held that a correspondent did not satisfy the definition of 'working journalist' in the act. as the facts of these two cases are similar and as the principle evolved in one would govern the other, it is sufficient to deal.....
Judgment:

Chandra Reddy, C.J.

1. The principal point that culls for decision in both these petitions is whether a newspaper correspondent is a working journalist within the terms oi the Working Journalists (Conditions ol Service) and Miscellaneous Provisions Act, 1955.

2. These petitions seek the issuance of writs of certiorari to call for the records of the Labour Courts, Andhra Pradesh, one situated at Guntur and the other at Hyderabad. The Labour Court of Hyderabad sitting at Guntur decided that a correspondent is a working journalist as defined in the Act, while the other court held that a correspondent did not satisfy the definition of 'working journalist' in the Act. As the facts of these two cases are similar and as the principle evolved in one would govern the other, it is sufficient to deal with one of them.

For this purpose, we will consider the tacts ol W. P. No. 677 of 1958. The petitioner was engaged on 12-2-35 as a correspondent at Guntur by the Express Newspapers Limited and he was being paid remuneration on lineage basis. A year later, he was appointed as selling agent of, the Express Newspapers, Dinamani and Andhra Prabha, Guntur on a deposit of Rs. 6,000/-, In course of time, his remuneration was raised to Rs. 75/- per mensem In June 1955, his agency was terminated but he was continued as a correspondent on the same basis as before. On the 13th of October, 1955, his services as a correspondent were dispensed with.

Meanwhile, the Working Journalists (Industrial Disputes), Act (Act I of 1955) wag passed. It received the assent of the President on 12th March 1955 and it took effect on the 14th of March 1955. This Act was substituted some months later by the Working Journalists (Conditions of Service) and Miscellaneous Provisions Act: 'It was passed to consolidate and better the conditions of service of working journalists. Both the' enactments were designed to confer benefits on working' journalists.

3. Taking advantage of the Working Journalists (Industrial; Disputes) Act, 1955, the Andhra Union of Working Journalists, Eluru, requested the 2nd respondent to reinstate the petitioner. As this did not evoke any response from the 2nd respondent they approached the Government and the Government made this reference under Section 19(1)(c) of the Industrial Disputes Act, 1947. The dispute referred to the Industrial Court was; whether the termination of services of Sri B. Somayajulu, Correspondent of Indian Express Newspapers at Guntur is justified; it not, to what relief is he entitled.

The Labour Court held that the petitioner was not a working journalist within the scope of the Act as he was only a part-time worker as mofussil correspondent of the Indian Express Newspapers and was receiving an honorarium and secondly that the Act, which was passed in December 1955, was not retrospective in effect and as such he could not claim to be governed by the provisions of the Act. This view of the Labour Court is impugned before us.

4. It is urged on behalf of the petitioner that a correspondent of a newspaper is a working journalist so as to entitle him to all the advantages of the Act. On the other hand, the case of the 2nd respondent is that a mofussil correspondent, who is only a part-time worker, contributing news items only occasionally for which he gets honorarium Will not be covered by the definition of 'working journalist' occurring in the Act, that he is tree to indulge in other trades and avocations and as such he could not claim the full benefits of a permanent employee. It is only a journalist, who was a full time employee of a newspaper, that could derive any advantage from that Act and the petitioner, whose principal avocation was distribution of Express Newspapers, Dinamani and Andhra Prabha, could not bo treated as a working journalist.

5. The question for consideration is which of the two contentions is sound. For a decision of this point we have to look at the relevant provisions of both the Acts. At the time of the termination of services of the petitioner, it was the Working Journalists (Industrial Disputes) Act, 1955, that was in operation. The expression 'working journalist' has received statutory recognition in this Act. It is contained in Section. 2(b) of this Act and it may be set out here.

' 'Working journalist' means a person whose principal avocation is that of a journalist and who is employed as such in, or in relation to, any establishment for the production of publication of a newspaper or in or in relation to, any news agency or syndicate supplying material for publication in any newspaper 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 employed mainly in managerial or administrative capacity or

(ii) being employed in a supervisory capacity, exercises, either by the nature of the duties attached to the office or by reason of the powers vested in him, functions mainly of a managerial nature.'

6. In the later Act, i.e., the Working Journalists (Conditions of Service) Miscellaneous Provisions Act, 1955, which is more comprehensive one, this definition has not undergone any change. It is therefore unnecessary to quote it here. It is seen from this definition that a correspondent is enumerated as one of 'working journalists.'

7. The argument presented by the Advocate General on behalf of the newspaper establishment is that a correspondent could not be described as a working journalist unless he fulfils the definition in the first limb of that clause viz., that his principal avocation is that of a journalist. It is urged that the expression 'whose principal avocation is that of a journalist' should govern those enumerated in the second limb also. Having regard to the scheme and the purpose of the Act, the inclusive clause should be regarded as declaratory and as enumerating persons who satisfy the earlier part of the clause, argued the learned Advocate-General.

8. We do not think we can accede to the propositions enunciated by the Advocate-General. We cannot ignore that a correspondent is specifically mentioned as included in that expression. So, in the absence of compelling reasons, we cannot cut down the amplitude of this expression. The legislature, which knew the distinction between individuals whose principal avocation was journalism and others-specified in the second limb of the definition, has purposely included the latter category in the definition.

The clause in the first part, having stated the general meaning of a journalist, procees to recite that it, inter alia, includes a correspondent. This clause has artificially extended the definition to persons enumerated in the latter part, irrespective of whether they fall within the first part or not i. e., whether they possess the attributes of a journalist or not. Thus, while the first limb contains the primary definition of the term, the second part makes an artificial extension of this definition to persons who may not otherwise be described as journalists.

If every one of the persons enumerated therein has to fulfil the primary definition, the inclusive clause becomes otiose. The Legislature has advisedly enlarged the scope of the definition by adding the enumerative definition. 'And includes' is a phrase of extension and not of a restrictive definition. It imports addition and indicates something not comprised in the first part. This expression is a common legislative device used in definitions to show that the enumeration which follows is really in addition to what might be termed the grammatical or the natural meaning of the word defined.

9. We may notice here the meaning of the word 'including' as given in Stroud's Judicial Dictionary at page 945, 2nd edition. Dealing with this expression, it is pointed out.

'Include is very generally used in Interpretation Clauses in order to enlarge the meaning of words or phrases occurring in the body of the statute; and when it is so used, these words and' phrases must be construed as comprehending, not, only such things as they signify according to their natural import but also, those things which the Interpretation clause declares that they shall include.'

10. This is the rule stated by Lord Watson in Dilworth v. Commissioners of Stamps, 1899 AC 99 at p. 105, So understood, a correspondent is comprehended within the expression 'working journalist', whether he conforms to the description of a journalist or not.

10a. In the same page in the 2nd edition of the Dictionary, the author says

' 'shall include' is a phrase of extension and not of restrictive definition.'

At page 1241, a distinction is drawn between 'namely' and 'including'.

'A difference in grammatical sense in strictness exists between the words 'namely' and 'including'. 'Xamely' imports interpretation i.e. indicates what is included in the previous term but 'including' imports addition i.e. indicates something not included.'

11. This makes it clear that the Parliament by adding the words 'and includes' were adding to the- subject-matter already described in the earlier part We are not persuaded that the conditions laid down by the earlier portion are to be satisfied by the employees specifically mentioned in the latter portion and there is no warrant for the view that the second part should be read in the light of the substantive part or to read a restriction into the inclusive definition.

12. There is authority for this position. In The Hindu v. Their Workers, (1957) 2 Lab LJ 275, it was laid down by Rajagopala Ayangar, ), that a proof-reader mentioned in the definition is a 'working journalist' within the ambit of that definition. Dealing with a similar argument, the learned Judge remarked:

'His argument if accepted would only result in the omission of the words proof reader from the definition. The construction suggested that a person whose principal avocation was that of a proof reader would not be working journalist because he was not a journalist and that proof-readers had been brought in into the definition merely for the purpose of making it clear that if an employee who was a journalist falling within the other enumerated categories but rendered some service also as a proof reader, he did not cease to be a working journalist does not give any meaning to , the word proof reader'.

In another place the learned Judge said:

'The definition clause expressly names a class of employees well-known in the newspaper business as proof readers. It includes them within the definition of working journalists. In my judgment in the face of this definition, the Court is precluded from further enquiry as to whether these employees are journalists or 'not'.

13. In A. C. Patel v. Vishwanath, : AIR1954Bom204 in deciding the question whether Bombay Act 57 of 1947 fell within entry 2 of List I of the VII schedule to the Government of India Act or within entry 21 of List II, which conferred upon the Provincial Legislatures the competence to legislate with regard to land, that is to say, rights in or over land, land tenures, including the relation of landlord and tenant and the collection of rents, a Bench of the Bombay High Court had to consider the import ot the expression 'including'. In that context, (he following dictum was erected.

'Including is a term of extension. It imports addition. It adds to the subject matter already comprised in the definition'.

14. We do not think that Bapu Vithal v. Secy, of State, AIR 1932 Bom 370 Contains a contrary rule. The principle which is said to support the, proposition now advanced by the Advocate General is set out in the head note thus:

'Where a term is interpreted in a statute as 'including etc.' the comprehensive, sense is not to be taken as strictly defining what the meaning of the word must be under all circumstances but merely as declaring what things may be comprehended within the term where the circuitstances require' that they should'.

We are unable to understand how this rule is in any way inconsistent with the doctrine stated by us above.

15. In construing the relevant clause, we have to bear in mind the subject matter of the statute, the object of the legislation and the mischief the enactment seeks to remedy, or the declared Intention of the Act. As already stated, these enactments were made to better the conditions of service of working journalists. It was pointed out by the Supreme Court in Express Newspaper (Private) Ltd. v. Union of India, : (1961)ILLJ339SC :

'The working journalist except for the comparative large number that were found concentrated in the big metropolitan cities were scattered all over the country and for the last ten years and more agitated that some means should be found by which those working in the newspaper industry were enabled to have their wages and salaries, their dear-ness allowance and other allowances.' their retirement benefits, their rules of leave and conditions of service enquired into by some impartial, agency or authority who would be empowered to fix just and reasonable terms and conditions of service for working journalists as a whole'.

16. It was to redress the grievances of persons connected with the newspaper industry scattered all over the country that Parliament passed these legislative measures. Thus, the declared intent of the legislature appears to be to benefit as many of the persons employed in the newspaper industry as possible- This being the beneficial legislation, it should be interpreted as widely as possible. If the restricted interpretation were to be accepted, it will exclude the majority of the employees who are outside the centre of production.

Such an intent could not be attributed to the Parliament especially having regard to the time and circumstances in which these legislations came into being. We think that the legislative policy as reflected in the enactment was to benefit the mofusil correspondents as well. In our judgment, this represents, a fair and reasonable construction of the clause. We have given anxious consideration to the language of the definition before we reached this conclusion.

17. For the above reasons, we are of the opinion that a correspondent, though a. part-time worker, falls within the sweep of the inclusive definition even if he does not satisfy the primary definition of a working journalist occurring, in the first part of the clause. The Tribunal obviously overlooked the existence of the Working Journalists (In dustrial Disputes) Act, 1955, and was under the misapprehension that the Petitioner was seeking the benefit of the Working Journalists (Conditions of Service) and Miscellaneous Provisions Act, 1955, which was enacted after the termination of the services of the petitioner. Admittedly, at the time the petitioner's services were dispensed with, the Working Journalists (Industrial Disputes) Act had come into being and consequently he could nave recourse to the provisions of that Act.

18. Assuming that the limited interpretation sought to be put upon it by the Newspaper establishment is permissible, could it be postulated that the petitioner's principal avocation is not that of a journalist? It was argued for the 2nd respondent that the petitioner's principal avocation was the distribution of Express Newspapers and Journalism was only a subsidiary avocation.

The contention pressed is that his main source of living was derived from that agency and not from the correspondentship. According to the Advocate-General for the 2nd respondent in determining what the principal avocation of a person is emphasis should be laid on the financial aspect. His submission is that the occupation of a person has to be ascertained with reference to the income he derives from it and not with reference to the time spent by him in the calling.

19. We are not very much impressed with this contention. At the outset, it must be remembered that the expression used is 'principal avocation' and not 'vocation'. There is a well marked distinction between the two concepts. 'Avocation' is defined in the Oxford Dictionary as that which has the effect of talcing away or withdrawing one from his occupation. A similar meaning is given in the Chamber's 20th Centuary Dictionary : 'a distraction or diversion from one's regular employment'.

20. We cannot assume, that Parliament was not aware of the difference between the two expressions. It would appear from the various provisions of the Indian Income-tax and other cognate statutes that whenever Parliament wanted to convey the notion of a profession or calling, it employed the word 'vocation' and not 'avocation'. This establishes that Parliament knew the difference between, the two words and has advisedly used 'avocation' in the definition. We cannot, therefore, give weight to the argument that avocation was used as connoting a profession or calling.

21. 'Avocation' is a word of wide signification meaning that to which a man passes his life or spends his time. Fowler in Modern English Usage says:

'Avocation, Originally a calling away, an interruption, a distraction, was for some time commonly used as a synonym for vocation or calling, with which it is properly in antithesis. This misuse is now less common and the word is generally used in the plural, a person's avocations being the things he devotes time to, his pursuits or engagements in general, the affairs he has to see to; his vocation as such is neither excluded from, nor necessarily included in, his avocations.'

It is thus abundantly clear that 'avocation' cannot be equated to profession or calling. Therefore, the avocation of a man has to be judged in the light of the time he devotes to it and not with reference to the income derived from it. The financial aspect is not determinative of the question as to a man's' avocation.

22. Assuming that it has the same import as occupation as urged by the learned Advocate General, we do not think it makes any material difference. The meaning of 'occupation' as given in the Concise Oxford Dictionary is what occupies one; means of filling one's time. So, even with regard to the occupation of a person, stress is laid on how a man occupies himself.

23. Bearing this rule in mind if we examine the correspondence that passed between the petitioner and the 2nd respondent, we cannot but reach the conclusion that the petitioner had to give his constant attention and time to the job of reporting news. The best part of his time seems to have been placed at the disposal of and utilised by the 2nd respondent. Some of the letters written by the 2nd respondent to the petitioner would indicate that practically he was a full time employee of the 2nd respondent reporting news of importance or of interest to the public as could be gathered from the letter of the 14th February 1936.

He had to translate speeches delivered in English at public meetings into Telugu lor publication in Andhra Prabha, a daily belonging to the 2nd respondent. He was also expected to cover the tour of dignitaries like Governors or other important persons whenever they visited the District as could be seen from the letter of 8th December 1948. He was often called upon to explain any delay in reporting news or omission to send any item of news as could be gathered from the letters of the second respondent to the petitioner dated 6th March 1935 and 1st August 1935.

At times he was required to ascertain the re actions of readers of Indian Express and Andhra Prabha in regard to the policy the management was pursuing. On 30-4-1950, he was directed to take down to Unnava Lakshminarayana's (who was one of the leading men of the district) dictation some articles for publication in 'Andhra Prabha'. It was stated therein:

'It you succeed in drawing him out proper, I am sure it will be a great, success. And see that this is kept confidential as the idea may be copied by other writers. Write to me as soon as possible on this subject.'

24. Besides this, he was prohibited from serving other newspapers and an instance of this is furnished by a letter of the 2nd respondent to the petitioner dated 20-1-1936:

'Your letter of the 9th and 11th inst The Swarajya being an English half-anna daily is our competitor in the field. Hence, it will not be fair to allow you to act as their correspondent while you continue to serve us.'

He had to cover the news of the whole district and it was not-confined to Guntur Town. To obtain news he had to tour the whole of the District for which he was paid travelling and daily allowances. Further, he was provided with a telephone by the 2nd respondent for being used in connection with his work as a correspondent. Thus, the material.

placed before us firmly establishes that his principal avocation was correspondentship.

25. It is not disputed that a correspondent is a journalist. The expression 'journalist' is not defined in the Act and the word has to he understood in its normal etymological sense. The meaning of 'journalist' as given in the Concise Oxford Dictionary is 'one whose business it is to edit or write for a public journal'. In Funk and Wagnall, the term is defined as 'one who manages, edits, or writes with some regularity, especially one engaged in the literary department.'

26. 'Correspondent' is defined in the Oxford English Dictionary Vol. II as 'one who contributes letters to a newspaper or journal; one employed by a journal to contribute news and other material to its columns from some particular place. It is thus plain that a correspondent like the petitioner is a journalist.' We have indicated above that the petitioner's principal avocation was that of a journalist, the distribution of newspapers being merely secondary. So, even if there are substantial reasons to read the inclusive definition in the list of the primary definition of a 'working journalist', the petitioner is entitled to the benefits of the Act.

27. Finally taking into consideration the fact that at the time when the petitioner's services were terminated he had ceased to be a distributor, his principal avocation must be said to be journalism. We are not disposed to accept the argument of Advocate General that though at the time of the termination of the petitioner's services, he was not the selling agent of the newspapers of the 2nd respondent, still his principal avocation should be regarded as selling agent of newspapers, having regard to the fact that till a few months before he was a distributor of newspapers.

We do not think that the language of the relevant clause warrants such an interpretation. We cannot ignore the clause 'whose principal avocation is that of a journalist': The word 'is' has application only to the state of affairs existing at a given time i.e., to the state of things which prevailed at the time when action was taken against the petitioners. The present tense is indicative of a situation as obtaining at the time when the question as to the avocation falls to be adjudged. Even on this ground, we have to hold that the petitioner was a 'working journalist' within the connotation of the clause at the material time and could claim the advantages of the Act

28. This decision governs W. P. No. 587 of 1960 us the 1st respondent therein is similarly situa-ed as the petitioner in W. P. 677 of 1958. He was employed as a correspondent in the year 1937 on a monthly salary of Rs. 20/- which was subsequently enhanced to Rs. 35/-. He was also granted an allowance of Rs. 10/- per month. In the year 1945, he was entrusted with the distribution agency of Andhra Patrika which continued till it was cancelled with effect from 28-5-1956. His services were dispensed with on 1-10-1956. The considerations that apply to the petitioner in W. P. No. 677 of 1958 are pertinent to this petition also. In fact, arguments addressed in both the petitions arc common. Therefore, the principle formulated in W. P. No. 677 of 1958 applies with equal force to this case also. It follows that the order of the concerned Labour Court is unimpeachable and has to be affirmed.

29. To come back to W. P. No. 677 of 1958, the 2nd respondent has invited us to disagree with the finding of the Tribunal that there was an in-dustrial dispute within the meaning of the Industrial Disputes Act and to dismiss the petition on the ground that it is only an individual dispute for which ho could not invoke the Industrial Disputes Act. According to the 2nd respondent, the petitioner's dismissal was not objected to by the workmen of the establishment but his cause was sponsored by a Union unconnected with its employees and secondly the Andhra Union of Working Journalists was not in existence at the time when the petitioner's services were dispensed with.

30. To deal first with the second branch of the argument, we are unable to give effect to this contention. It appears from the order of the Labour court that the President of the Andhra Union of Working Journalists deposed that at the lime of the termination cf the services of the petitioner, the Andhra Provincial Working Journalists' Association was in existence and this was subsequently converted into the Andhra Pradesh Union of Working Journalists.

The Labour Court has acted on this statement of the President and reached the conclusion that there was a Union of Andhra Provincial Working Journalists Association, the name of which was later on changed into Andhra Pradesh Union of Working Journalists. He opined that since the cause is takes up by this Union, it has ceased to be an individual' dispute and had become an industrial dispute.

31. It is urged by Sri Sankara Rao that the oral evidence of the President is not entitled to any weight and the existence of the Association was not established by Independent evidence. We do not think this argument is admissible. The question, whether there was an association even at the time of the termination of the services of the petitioner, which later on became the Andhra Pradesh Union of Working Journalists is one of fact and it cannot be interfered with in these writ proceedings.

It is urged by Sri Sankara Rao that, since this finding is not based on any material, it should be rejected by this Court. We are unable to give effect to this submission. It could not be postulated that the conclusion of the Labour Court is wholly unsupported by any material. There is the evidence of the President of the Union. It is not for this court to judge whether that evidence is sufficient or not. The sufficiency or otherwise of the evidence in support of a finding could not be considered in writ jurisdiction.

That being the position, it is unnecessary for us to decide whether an error of fact apparent on the face of the record could furnish a ground for quashing an order of the Labour Court. We may mention here incidentally that in Nagendranath Bora v. Commr. of Hills Division, : [1958]1SCR1240 , the Supreme Court remarked that a High Court exercising its powers under Article 226 of the Constitution could not quash an order of an inferior tribunal on the ground of any mistake of fact apparent on the face of the record. Thus, the finding on that issue cannot now be challenged. Hence, we find no justification to differ from the Labour Court on this aspect of the matter.

32. Coming to the first limb of the argument viz., that none of the employees of the 2nd respondent has taken up the present dispute, we cannot permit him to raise this point for the first time before us. This plea was not taken before the Tribunal and the Tribunal was not invited to go into the matter. That being so, it is not open to him to urge such a plea at this stage.

For these reasons we are unable to give effect to the contention of the 2nd respondent that there is no industrial dispute, which would entitle the petitioner to invoke the Industrial Disputes Act. We may observe in passing that Ex. A-13 (as marked before the Labour Court) discloses that several of the correspondents of the Express Newspapers were members of this Union. We hold that the petitioner could claim the benefits of the Working Journalists (Conditions of Services) and Miscellaneous provisions Act and consequently we quash the order of the Labour Court.

33. (In the result, W. P. No. 677 of 195S isallowed with costs and W. P. No. 587 of 1960 isdismissed with costs. Advocate's fee in each isfixed at Rs. 150/-. The petitioner in W. P. No. 677of 1958 will get his costs from the 2nd respondent.


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