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TMI Blog1969 (4) TMI 112X X X X Extracts X X X X X X X X Extracts X X X X ..... branch office at Delhi where he worked as a special correspondent. By 1963 the remuneration payable to him came to ₹ 700 as basic pay, ₹ 497 as dearness allowance, ₹ 200 per month as car allowance in addition to a free telephone and free newspapers. On October 8, 1963, while he was on leave, the respondent tendered his resignation. On October 14, 1963 P. K. Roy, the company's General Manager, informed the respondent that his letter of October 8, 1963 could not be considered as one of resignation as under the company's rules he would have first to report on duty and then to give a notice. On October 21, 1963, however, the company accepted the resignation with effect from that date and thereupon the respondent joined the Indian Express on October 23, 1963. Meanwhile, one V. G. Karnik, on behalf of the company, informed the respondent by his letter dated November 19, 1963 that in the absence of a proper notice by him there could be no termination of employment and that "your reported acceptance of another employment in the circumstances is in contravention of the terms and conditions of service of this company". The respondent had, in the meantime, claimed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... But it also shows that no compensation for leave due to him was paid and further that in calculating the gratuity payable to him the monetary value of free telephone and free newspapers and the car allowance were not included as part of his wages. In reply to the respondent's letter of November 21, 1963, the said Roy, by his letter of December 5, 1963, wrote that as the respondent had not taken away the company's letter of acceptance of resignation by the time Karnik addressed the said letter, Kamik was "right on facts" but, in view of the settlement of his affairs and the subsequent settlement of accounts, "it was better to forget the past and part amicably". He also made it clear that the respondent's claim for leave compensation was not admissible under the coinpany's rules. The respondent thereafter applied to the Delhi Administration and the latter, as aforesaid, referred his claim to the Labour Court for adjudication. In his statement of claim before the Labour Court, the respondent claimed that the monthly wages payable to him were ₹ 700 basic, ₹ 497 as dearness allowance, ₹ 200 conveyance allowance and ₹ 50 being the estimated v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and therefore the management was not liable to pay for the balance of 17 days leave. The Labour Court rejected the company's plea that the receipt given by the respondent in full settlement of all his claims estopped him from making these claims on the ground that as these items were claimable under the Act there could be no estoppel against law. In the result, the Labour Court held that the respondent was entitled to claim car allowance at ₹ 200 per month, ₹ 50 per month for telephone and newspapers and compensation for 13 days leave, that the first two were parts of his wages, that his monthly remuneration was, therefore, ₹ 1,447 and gratuity equivalent to 51 months wages would have to be calculated on the basis of ₹ 1,447 being his wages per month and directed the company to pay on the aforesaid calculations ₹ 2,002 over and above ₹ 2,810.47 P. for which the company had issued the said cheque. The first contention raised by counsel for the company against the award was that the respondent, not being in the company's employment at the time he filed his claim in the Labour Court, was not a working journalist, and therefore, was not entitled to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the meaning of the word "workman", yet if he raises a dispute about dismissal and reinstatement, it would be outside the words of the definition "in connection with employment or non-employment " A similar question was canvassed in Central Provinces Transport Services Ltd. vs. Raghunath(11956] S.C.R. 956.) in connection with the C.P. & Berar Industrial Disputes Settlement Act, XXIII of 1947. Section 2 (1 0) of that Act defined an 'employee' in terms identical with those in the Industrial Disputes Act as it stood before the amendment in 1956, i.e., as meaning "any person employed by an employer to do any skilled or unskilled manual or clerical work for contract or hire or reward in any industry and includes an employee discharged on account of any dispute relating to a change-whether before or after the discharge". Section 2(12) defined an 'industrial dispute to mean "any dispute or difference connected with an industrial matter arising between employer and employee or between employers or employees". It was not disputed that the question of reinstatement was an industrial dispute but the controversy was as to whether it was an industrial di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ded into plots which were allotted to the agarias with a sum of ₹ 400 for each plot to meet the initial expenses. Generally the same plot would be allotted to the same agaria every year, but if the plot was extensive in area it would be allotted to two agarias in partnership. After the manufacture of salt these agarias were paid at the rate of -1516 per maund. Accounts would be settled at the end of each season and the agarias would be paid the balance due to them. These agarias worked together with the members of their families and were also free to engage extra labour on their own account, the appellant company having no concern therewith. No hours of work were prescribed, no muster rolls were maintained nor were working hours controlled by the appellant company. There were also no rules as regards leave or holidays and the agarias were free to go out of the factory after making arrangements for the manufacture of salt. On these facts the question was whether the agarias were workmen as defined by s. 2(s) or independent contractors. Bhagwati, J. speaking for the Court, after quoting s. 2(s) of the Industrial Disputes Act, as it stood prior to its amendment, in 1956, said t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act, that therefore his dismissal could not be an industrial dispute as defined in s. 2(k) and the Tribunal could have no jurisdiction to decide whether the management were justified or not in dismissing the Doctor. The Tribunal as also the Labour Appellate Tribunal held, presumably because Dr. Bannerjee, was not in the words of s. 2(s) a person employed in any industry to do any skilled or unskilled manual ,or clerical work, that he was not a workman within the meaning of S. 2(s), that the question of his dismissal was not an industrial dispute, and that therefore, his case was beyond the Tribunal's jurisdiction. The workman thereupon applied for special leave under Art. 136 and though leave was granted, it was limited to the question whether a dispute in relation to a person who is not a workman was an industrial dispute as defined by s. 2(k) of the Industrial Disputes Act, 1947. In view of the special leave being so limited, the Court proceeded on the assumption that Dr. Bannerjee was not "a workman" under the definition of that word as it then stood. The problem was, whether even so, the dispute regarding his dismissal could still be an industrial dispute, the content ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was a gap between a workman and an employee, that though all workmen would be employees, the vice versa would not be correct as the supervisory staff would not fall within the definition of workman and that that gap, was reduced to a certain extent by the Amendment Act of 1956 and that it would not be always correct to say that the workmen would have a direct and substantial interest in questions relating to all kinds of employees. At page 1173 S. K. Das J. observed "The expression 'any person' in the definition clause means, in our opinion, a person in whose employment, or non-employment, or terms of employment, or conditions of labour the workmen as a class have a direct or substantial interest-with whom they have, under the scheme of the Act, a community of interest." While dealing with the decisions in Western India Automobile Association([1949] F.C.R. 321.) and Central Provinces Transport Services Ltd.( [1956] S.C.R.), the learned Judge clearly stated at page 1176 that the problem in those cases was whether an industrial dispute included within its ambit a dispute with regard to reinstatement of certain dismissed workmen, a problem quite different from the one befo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... necessarily be claims arising after termination of service and the claimant would obviously be one in all ,hose cases who would not be presently employed in the establishment of the employer against whom such claims are made. Likewise, the claim for gratuity under s. 17 read with s. 5 of the Act would itself be one which accrues after the termination of employment. These provisions, therefore, clearly indicate that it is not only a newspaper employee presently employed in a particular newspaper establishment who can maintain an application for gratuity. The scheme of all these acts dealing with industrial questions is to permit an ex-employee to avail of the benefits of their provisions, the only requirement being that the claim in dispute must be one which has arisen or accrued whilst the claimant was in the employment of the person against whom it is made. There can, therefore, be no doubt that the definitions of a "newspaper em- made therein. The reason for not doing so seems to be that the respondent had made the claim before one Mitra, the accountant in the Delhi office, and that claim was a matter of dispute. This position emerges from Roy's reply dated December 5, 1963 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hen he passed the said receipt appears to be rebutted by the following facts : (1) though the resignation was accepted on October 21, 1963 the letter of acceptance was not communicated to the respondent till November 21, 1963 when the company obtained from the res- pondent the said receipt; (2) in the meantime, the respondent received Karnik's said letter of November 19, 1963 to the effect that there was no termination of the respondent's service in the absence of a month's notice, and on receipt of which, according to the respondent, he considered it necessary to secure the letter of acceptance of his resignation from the company. If the termination of his service depended on the giving of a month's notice, how was it that the company's Manager, D'Souza, had accepted the resignation and signed the letter of acceptance Ex. W/1 on October 21, 1963; (3) the company was aware, as Karnik's said letter shows, that on the basis that his resignation was accepted with effect from October 21, 1963 the respondent had joined the Indian Express on October 23, 1963. The respondent's case was that it was after he was told that his resignation had been accepted that he joined the Indian Express. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts in the letter Ex. W/4 that the management would not give him the letter of acceptance of his resignation unless he signed the said receipt in full settlement of all his claims. The plea of estoppel made on behalf of the company, therefore, cannot be accepted. The third contention was that the monetary value of the free telephone and newspapers and the car allowance could not be included as part of his wages for calculating gratuity. The value in terms of money of the benefit of free telephone and free newspapers, as estimated by the respondent, was not in question. But the argument was that this benefit as also the car allowance were given to the respondent by way of reimbursement for expenses which as a special correspondent he would otherwise have had to incur for the proper and efficient discharge of his duties. The two items, therefore, were neither an allowance nor an amenity. The facts, however, are that the telephone was installed by the company at the respondent's residence and stood in his and not in the company's name. All payments connected with it, including charges for calls, were made by the company. There was no restriction that he could use the telephone only for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ployment as the use of the car and the telephone was not restricted to the employment, or the work of the respondent as the special correspondent. There was no evidence that the car allowance was fixed after taking into consideration the expenses which he would have ordinarily to incur in connection with his employment or the work done in such employment. Even if the respondent had not sed the car for conveying himself to the office or to other places connected with his employment and had used other alternative r cheaper means of conveyances or none at all, the car allowance would still have had to be paid. So too, the, bills for the telephone and the newspapers whether he used them or not in connection with his employment or his work as the special correspondent therefore, we have to turn to the latter part of the definition and the if the two items properly fall thereunder. So, far as the car allowance is concerned, there was, as aforesaid, nothing to suggest at it was paid to reimburse him of the expenses of conveyance which he would have to incur for discharging his duties as the special correspondent, or that it was anything else than an allowance within the meaning of s. 2(rr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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