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The Proprietors of Associated Publishers, Madras (P) Ltd. Vs. C. theobald and ors. - Court Judgment

LegalCrystal Citation
SubjectService
CourtChennai High Court
Decided On
Case NumberWrit Appeal Nos. 287 to 289 of 1963
Judge
Reported inAIR1965Mad207
ActsPayment of Wages Act, 1936 - Sections 2; Industrial Disputes Act, 1947 - Sections 2; Telegraph Act, 1808; Working Journalists (Conditions of Service) and Miscellaneous Provisions Act, 1955 - Sections 5
AppellantThe Proprietors of Associated Publishers, Madras (P) Ltd.
RespondentC. theobald and ors.
Cases ReferredSkiailes v. Blue Anchor Line Ltd.
Excerpt:
.....the origin of this (travelling) allowance of rs. 30 does it represent a benefit derived by these working journalists. if it does and if it is a regularly awarded benefit, it must undoubtedly from the act. the genesis of the allowance is really irrelevant. if the employee saves the entire sum of rs. 30 or a substantial part thereof, that is a benefit which the management cannot deprive him of. this benefit was being granted even during the periods of leave taken by the employees. the fact that the grant was made even when the employees was (sic) clearly demonstrates that it was a benefit derived by him, and was not merely an (sic) for expenses which had to be actually incurred. hence the wages derived by the working journalist would include the fixed grant allowance or concession and..........court and the learned judge (veeraswami j.) were in error, with regard to the claim of these working journalists for notice, and pay in lieu of notice as provided for by statute, with reference to a particular date-line. the argument is that there was correspondence between the mail and these journalists even earlier, in which correspondence the journalists had been clearly intimated of the intention of the management to retire or superannuate them, or to dispense with their service by way of retrenchment, which may be the more accurate manner of phrasing it in the light of the bench decision, with effect from a particular date. the notice required by law had already been given, and with regard to two of the journalists (messrs. krishnamurthi and desikachari), the argument was that.....
Judgment:
(1) In Desikachari v. Associated Publishers, a Bench of this court consisting of Ramachandra Iyer Officiating C. J., and Ramakrishnan J. dealt with the cases of three Journalists, Messrs. P. S. Desikachari, C. Theobald and A. Krishnamurthi, who were employed by the respondent, the proprietors of the "Madras Mail", and who were retired upon attaining ages considered to be ages of superannuation. The Labour Court, before when the petitions instituted claims for benefits, held that the termination of the services of these journalists was the consequence of voluntary retirement in each case, or of attaining the age of superannuating, and that, in any event, there was no case of retrenchment, attracting the claim to benefits under the relevant statutory provisions. This Bench held that the petitioners were retrenched, and were entitled to retrenchment compensation under S. 2(oo) and S. 25-F of the Industrial Disputes Court was quashed, and the petition was released to the disposed of afresh "as to the precise amount of relief to which to the respective petitioners would be entitled."

(2) The Labour Court again dealt with the matter by means of a fairly lengthy and detailed judgment, and came to certain conclusions with regard to the benefits to which the present appellants, the ex-journalists, would be entitled. W. P. Nos. 832 to 837 of 1962 and 272 to 275 of 1962 were instituted before Veeraswami J. upon the same subject-matter of controversy. The Learned Judge, ultimately, allowed the petitions of the management only upon one restricted aspect, namely, the claim in respect of interest, but dismissed those partitions in other respects. There was also a direction with regard to income-tax deduction, and these tow aspects, namely, claim in respect of t interest and the deductions to be made for income-tax are not in controversy. The other points, which have survived to be pressed before us in these writ appeals by learned counsel on behalf of the management (the Madras Mail)may be tersely set forth as follows:

(3) The first argued is that the labour court and the learned Judge (Veeraswami J.) were in error, with regard to the claim of these working Journalists for notice, and pay in lieu of notice as provided for by statute, with reference to a particular date-line. The argument is that there was correspondence between the Mail and these Journalists even earlier, in which correspondence the Journalists had been clearly intimated of the intention of the management to retire or superannuate them, or to dispense with their service by way of retrenchment, which may be the more accurate manner of phrasing it in the light of the Bench decision, with effect from a particular date. The notice required by law had already been given, and with regard to two of the Journalists (Messrs. Krishnamurthi and Desikachari), the argument was that they were not again entitled to notice from the date-line, namely, 30th September 1956. That it is a short point, of a very restricted scope. The other two grounds are of some importance. The first is that the wages to be determined with regard to these employees, ought not to be inclusive of the travelling allowance of Rs. 30 per mensem granted to them by the management, in the light of the genesis of this allowance or concession, and its convertibility, according to the management, into actual expenses incurred by these Journalists for travel in the course of their duties, which the management had necessarily to reimburse. That is a point upon which considerable argument was addressed before us, and it needs to be dealt with in some detail. The third ground is that, at least as regards gratuity which these employees could claim under the provisions of S. 5 of Act XIV of 1955, in the light of the earlier acquaintances given by these persons, and the area of controversy that survived before the Labour Court after the disposal of , the Labour Court had really no

jurisdiction to proceed into the matter at all, or to award any benefit upon any such basis. The respondents were estopped form claming the benefit, and the Tribunal was inhibited, by a fundamental lack of jurisdiction, form going into the question. The learned Judge, Veeraswami J., was in error in upholding the finding of the Tribunal, with regard to the claim to gratuity benefit.

(4) As we stated earlier, these are the three grounds that have survived to be pressed in the hearing of these appeals, and we shall deal with the first ground quite briefly, before proceeding to the other two grounds.

(5) As regards the first ground, we are totally unable to see any room for difference of opinion, and the conclusion of the learned Judge (Veeraswami J) would appear to be perfectly justified. So far as Mr. Theobald among the Journalists was concerned, the Labour Court gave him two months' notice pay, since he had already been paid a month's pay in lieu of notice. There was no controversy concerning his case. With reference to the other two individuals, Messrs. Krishnamurthi and Desikachari, the point is that these persons continued to be in service for a further term of six months, in the light of the correspondence between the parties. If they wee so continued, it necessarily follows that this was not merely with the acquiescence of the management, but was a measure deliberately sanctioned by the management. It is certainly an extension of service or has the legal consequences of such extension, and the statutory right to notice pay from the date determined by such extension, namely, the new date-line would appear to be incontrovertible. We have therefore no hesitation in holding that the appeals are without substance upon this ground.

(6) We may immediately proceed to the next ground, which is the real ground of difficulty in these appeals. The background of facts is not particularly in dispute. Apparently, these working Journalists had to travel all over Madras City, because of their assignments as Reporters or Working Journalists, and, ordinarily, the management was either providing a motor conveyance for them, or honouring the bills lodged by the employees with regard to the taxi or conveyance charges. At one stage, the management felt that this was both costly, and a procedure admitting only of imperfect control. For that reason figures were taken in a year, and an average was worked out, to which came to Rs. 30 per month. That was thereafter paid, as "travelling allowance", to each working journalist, and it formed part of the emoluments which the journalist derived, subject, of course, to the condition that he should perform his duties faithfully, and himself look to his expenses of travel in Madras City in the course of his duties. It is not disputed that this is the genesis of the concessions,, or allowance, whichever it might be termed. The short question is, does it form an essential ingredient of wages so defined in S. 2(rr), of Act XIV of 1947? Section 2(rr) of Act XIV of 1947 declares that wages means "all remuneration capable of being expressed in terms of money, which would, if the terms of employment, express or implied, were fulfilled, be payable to a workman in respect of his employment or of work done in such employment, and includes (i) such allowances (including dearness allowance) as the workman is for the time being entitled to; (ii) the value of any house accommodation, or of supply of light, water, medical attendance or other amenity or of any service or of any concessional supply of foodgrains or other articles; (iii) any "travelling concession" certain terms of exclusion follows this.

(7) It is instructive to compare this definition with the definition in the Payment of Wages Act, 1936, which earlier statute was undoubtedly referred to, when the legislature framed the provisions of the Industrial Disputes Act XIV of 1947. Under the earlier Act, the scheme of the definition of "wages" is different. The general part is in similar, or almost similar terms. But the elements which are included, by the definition, are different. As is S. 2(rr), the definition also refers to elements which are explicitly excluded, and, significantly enough, two of those elements are Section 2(vi)(e)(2), "the value of any house accommodation, or of the supply of light, water, medical attendance or other amenity.........................." and S. 2(vi)(e)(4) "any travelling allowance or the value of any travelling concession". In this context itself, we may refer to the decision of he Supreme Court in Divisional Engineer G.I.P. Rly. v. Mahadeo, (S) dealt with the definition of wages under

Section 2(vi) of the Payment of Wages Act, 1936. That decision drew a distinction between certain circumstances under which the house rent allowance might become at ingredient of wages, and other circumstances under which it would be excluded, by virtue of the exclusion by definition that we have earlier referred to.

(8) We are now in a position of appreciate the argument of learned counsel (Mr. R. Ramamurthi Iyer) for the employer, on this aspect, and it may be tersely stated in the following form. The genesis of this allowance shows, beyond any doubt, that tit was a converted or consolidated equivalent for expensed incurred by working journalists during the performance of their duties, which expenses were earlier being reimbursed b the management on an ad hoc basis. Sri Ramamurthi Iyer desired to draw a contrast between the working of Section 2(vi)(e)(4) in the Payment of Wages Act, 1936, namely, "any travelling allowance or the value of any travelling concession", and the phraseology of S. 2(rr)(iii), namely, "any travelling concession". According to him, the deliberate use of the word concession implies a different shade of meaning. What the legislature apparently intended was that this should be a benefit derived by the working journalist, in the sense that it was a concession made by an employer for some act or performance, the expenses of which he (the employer) was not ordinarily bound to bear. For instance, this would cover a travelling concession granted by the employer of a period of holiday travel, or nay benefit given for railway travel from the residence of the employee to the work spot. But it would not cover nay equivalent of expenses incurred by the journalist, which the employer was normally bound to reimburse on an ad hoc basis. For this reason, learned counsel strenuously contends that this allowance or concession of Rs. 30 per mensem is no part of wages, and ought not to enter into the computation of gratuity benefit or of retrenchment benefits.

(9) We have very carefully considered this argument, and certainly, it is an argument that deserves to be seriously analysed before rejection and we are satisfied that it is not substantial, and that it cannot represent the true intention of the Legislature. Even Sr. Ramamurthi Aiyar does not dispute the broad proposition that the elements comprising Section 2(rr), which have been specifically included, in contradictions to the earlier definition the Payment of Wages Act, are benefits derived by he employees. Certainly, the value of any house-accommodation is such a benefit, as well as the value of medical attendance, and the argument apples with greater force to the concessional supply of foodgrains. We are unable to see how any logical distinction can be drawn, based on the use of the word concession instead of the use of the word allowance or grant. The simple question is, whatever might be the origin of this allowance of Rs. 30 does it represent a benefit derived by these working journalists? If it does, and it is a regularly awarded benefit, it must undoubtedly form part of wages as defined in the Act.

(10) There are two powerful arguments in support of this view. The first is that the genesis of the allowance is really irrelevant. It is obvious for instance, that the concerned journalist may not employ a taxi at all, after the regular grant of the concession; he may use the car of a friend or use a bicycle, or go on foot; all these procedure are perfectly admissible so long as he maintains the level of efficiency of his duties that he had hitherto maintained. If he adopting any of these procedures, he saves the entire sum f Rs. 30 or a substantial part thereof, that is his business, and that is a benefit which the management cannot deprive him of. The second argument is that we find, as a matter of record, that his benefit was being granted even during periods of leave taken by the employees, when they were not on duty at all. That was no doubt prior to the application of the Industrial Disputes Act, 1947, to this grade of employment, but that is really irrelevant. The fact that the grant was made even when the employee was on leave, clearly demonstrates that was a benefit derived by him, and was not merely an equivalent for expenses which had to be actually incurred.

(11) Fortunately, the point is not entirely bereft of authority, and we have been enabled to scrutinise three English decisions, which are of considerable interest and significance, on the criteria to be applied to facts of this character. The first is the Queen v. Postmaster General, (1875-76) 1 Q B D 658 which was a very interesting case, with regard to the ingredients of the words "annual emoluments" as occurring in the Telegraph Act, 1808. The matter is best exemplified by extracting the following dicta from the concurring judgement of Quain J.

"Surely it cannot be doubted for a moment that, in ascertaining what is the annual profit and advantage that he derived from his office, you must take into consideration the sum paid to him for travelling expenses. and taking the whole of that into consideration, does he derive any annual profit or advantage from it? If he does, hat is what he is entitled to, and that must be taken into consideration calculating the amount of compensation."

It is sufficient here to add that he same matter went unto the Court of Appeal in the Queen v. Postmaster General, (1878) 3 Q B D 428 and that he judgment of the court was affirmed. Cotton L. 1 said:

"I am of opinion that the profit the prosecutor makes by reason of the saving the effects from the allowances must be taken into consideration in ascertaining that which is given as a standard, the annual emolument derived by him from his office." Another very interesting case, both on the facts, and the principle applied, is Skiailes v. Blue Anchor Line Ltd., 1911-1 K. B. 360. That was a case in which the purser of a ship drew, in addition to his regular wages, a bonus, and not merely this, but a regular profit by on sale on board of whisky 'innips'. It was held that no the bonus and the profit on the whisky ought to be taken into account in estimating the purser's remuneration, based upon the criterion of benefit derived by the employee. Hence we are clearly of the view that the wages derived by the working journalists would include the fixed grant, allowance or concession, whichever it might be termed, of Rs. 30 per mensem regularly granted by the employer (Madras Mail) for the past few years, inclusive of period of leave taken by the employee, ad that, hence, the calculation of gratuity and other compensation on this basis was perfectly justified.

(12) We shall deal very briefly with the argument relating to estoppel. It is difficult to see any substance in the argument, and it cannot be considered that the argument has even prima facie force or validity. It is no doubt true that, when the matter came up before the Bench of this court in this was not a ground of controversy at all. That was for the reason that the labour court had earlier taken the view that these persons must either be considered to have voluntarily retired, or to have been superannuated, so that there could be no benefits accruing them under the Industrial Disputes Act. The proceedings were dismissed by the order of the Labour Court, and the writ of certiorari issued by the Bench quashed this order in its entirety, and released the proceedings for being dealt with afresh. We do not think that the scope of this order of release could be possibly interpreted as inhibiting the Labour Court from proceeding into any benefit, whether under the Industrial Disputes Act or the Working Journalists (Conditions of Service) and Miscellaneous Provisions Act, 1955, to which these journalists might be legitimately entitled.

This apart, it is equally impossible to hold that the respondents themselves were restrained by any species of estoppel, from putting forward the contention that they were entitled to increased gratuity benefit, upon the more inclusive interpretation of wages as applicable to them. They had no doubt given acquaintances, in which hey stated that the acquaintances were "without prejudice to my claims for retrenchment benefits pending in the court." The gratuity figure is referred to in these acquaintances and it may be that both the parties were under a mutual mistake as to the correct figure. We are quite unable to see how, assuming that the figure is incorrect, this mutual mistake can restrict the journalists from claiming the proper or legitimate benefit. At the level of the highest consideration for the management, that would only be an admission relevant in the law of evidence, and, as is well known, a party making an admission adverse to his interest, is always entitled to explain it, and he must necessarily be giving an opportunity for such explanation. We see no ground of law or fact upon which the allowance to these persons of extra gratuity, as flowing from a correct computation of the gratuity on an application of the relevant provisions of the Working Journalists Act, could be withheld, or denied. In the instance of one of these Journalists, Mr. Desikachari, the differences considerable, because the parties were at variance upon the total period of service. That became a matter of evidence, and the Labour Court has given a finding on the merits in his favour with which was certainly cannot interfere. This ground of appeal has therefore necessarily to fail.

(13) In the result the appeals fail and are dismissed. We think it will be sufficient, in the interest of justice, to require both the parties to bear their own costs. An argument has been advanced before us by learned counsel for the respondents (Working journalists) that it would be an altogether more satisfactory basis of retrenchment benefit or retirement benefit, whoever it might be termed to grant these persons, who have put in decades of service in a premier journalists institution like the Mail, a pension instead of, or in addition to, he gratuity,. that is not a matter within our competence, and it is not for us to express any view on the propriety of such a request. But this is a matter that may be considered by the establishment, in a proper case, in the light of a long and faithful service rendered by he employees, and may also be taken into consideration by the Legislature, if thought fit, as one of the principles of the award of compensation for working Journalists, in retirement or retrenchment.

14. Appeal dismissed.


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