ORDER
E. Padmanabhan, J.
1. In W.P. No. 10076 of 1998, the petitioner, R. Varadachari has prayed for the issue of a writ of certiorari to call for the records in I.D. No. 53/91 dated 12.3.97 on the file of the Industrial Tribunal, Chennai, the 3rd respondent herein, and quash the same.
2. In W.P. No. 14576/98, the very same petitioner prays for the issue of a writ of certiorari to call for the records relating to the award dated 15.2.97 made in W.J. No. 3 of 1990 on the file of the Labour Court and quash the same.
CLAIM OF THE PETITIONER IN W.P. NO. 10076/1998
3. The petitioner joined the Press Trust of India, the first respondent on 13.12.1958 and he was superannuated on 31.8.1998 on his completing 60 years. The first respondent is a non-profit making concern, which is headed by a General Manager appointed by the Board of Directors. The first respondent is a news agency entrusted with the collection and distribution of news to its clients. The petitioner joined the first respondent as a Sub-Editor on 13.2.1952. The petitioner was promoted as Chief Sub-Editor and was the Foreign Correspondent in 1963 and posted as Regional Manager for the Southern States on 1.7.1980, which post of Regional Manager he held for eight years. The petitioner held the post till 1.9.1988, the date on which he demitted office on superannuation. The petitioner was superseded and less merited juniors were promoted. The National Union of Journalists (Tamil Nadu) on behalf of the petitioner raised an industrial dispute against the unfair denial and illegal suppression and promotion of eleven less merited junior colleagues between 1984 and 1988. There was a conciliation. The petitioners retirement is not a bar to raise the dispute, as even after retirement, he falls under the classification of workman as defined under Section 2(s) of The Industrial Disputes Act, 1947.
4. The State Government made a reference consequent to the failure of conciliation in G.O. D No. 850 Labour and Employment Department dated 27.8.1991 to the first respondent. The issue referred reads thus :-
'Whether the action of the management in with-holding promotion of Mr. R. Varddachari as Assistant General Manager or as Chief News Editor in preference to Mr. M.D. Prabhu and Mr. Srivatsava and also Mr. Varadachari's subsequent supersession is justified If not, to what relief he is entitled to ?'
5. Respondents 2 and 3 filed a detailed objections, besides raised legal objections as well. Before the first respondent, the writ petitioner examined himself as W.W.1 and marked Exs.W-1 to W-42, while the management has not let in any evidence, either oral or documentary. The first respondent Labour Court framed the following point for consideration :-
'Whether the action of the management in with-holding promotion of Mr. R. Varddachari as Assistant General Manager or as Chief News Editor in preference to Mr. M.D. Prabhu and Mr. Srivatsava and also Mr. Varadachari's subsequent supersession is justified If not, to what relief he is entitled to ?'
The first respondent answered the point against the writ petitioner and dismissed the claim. Being aggrieved by the said award dated 12.3.1997, W.P. No. 10076 of 1998 has been preferred.
CLAIM OF THE PETITIONER IN W.P. NO. 14576/1999
6. In W.P. No. 14576/99, the very same petitioner challenged the rejection of his claim by the first respondent and held that the writ petitioner is not entitled to any relief by way of award dated 15.2.1999. The said rejection of claim in W.J. No. 3 of 1990 is being challenged. According to the petitioner, he was a working journalist as defined under Section 2(f) of The Working Journalists and Other Newspaper Employees (Conditions of Service) and Miscellaneous Provisions Act, 1955, as amended by Act 36 of 1981. The petitioner was working in Chennai Office of the Southern Region as Regional Manager (South) with his principal function as Chief of Southern Region News Bureau.
7. The petitioner started his career as Sub Editor in the year 1952 and he earned promotions. According to the petitioner, the Regional Manager is also a working journalist as his principal function being news management of the designated area. The petitioner attained the age of superannuation on 1.9.1988 on completion of 60 years of age. The petitioner is entitled to gratuity of Rs.1,68,583.38, but he was paid only Rs.92,738.21 and the balance remains. The petitioner is entitled to Rs.75,845.17 as arrears of gratuity from the 2nd respondent under Section 5 (1)(a)(ii) of The Working Journalists and Other Newspaper Employees (Conditions of Service) and Miscellaneous Provisions Act, 1955.
8. The petitioner is also entitled to claim wages, house rent allowance, conveyance allowance, entertainment allowance, telephone reimbursement, cost of free supply of newspaper and leave allowance at the rate of Rs.2,833/= per month. Thus under various heads, the petitioner claimed Rs.75,845.17.
9. The petitioner raised a dispute before the Commissioner of Labour claiming gratuity and other benefits. The Commissioner of Labour reported failure of conciliation. On that the State Government made a reference to the first respondent under Section 17(2) of The Working Journalists and Other Newspaper Employees (Conditions of Service) and Miscellaneous Provisions Act, 1955, in G.O. 2D No. 5 Labour and Employment Dept., dated 23.7.1990 for computation of money value of the claims against respondents 2 and 3.
10. The respondents 2 and 3 resisted the claim by filing detailed objections and contended that factually the petitioner is not entitled to any further claim and all the claims are baseless, without any merits. The first respondent framed the following points for consideration:-
'i) Whether the petitioner is a working journalist and workmen as claimed ?
ii) Whether the petition is maintainable and this Court has jurisdiction to try the petition ?
iii) Whether the petitioner is entitled for computation of monetary benefits as claimed towards arrears of gratuity, foreign allowance, etc., with interest thereon If so, at what rate of interest ?
iv) What relief the petitioner is entitled to ?'
11. Before the first respondent Labour Court, the petitioner examined himself as W.W.1 and marked Exs.W-1 to W-17, while respondents 2 and 3 have not let in any evidence, either oral or documentary. The first respondent Labour Court by award dated 15.2.1997 held that the writ petitioner is not a working journalist, but he worked in a managerial capacity drawing more than Rs.1,600/= per month, that the petitioner is not a working journalist as defined under Sections 2(f)(i) and (ii) of The Working Journalists and Other Newspaper Employees (Conditions of Service) and Miscellaneous Provisions Act, 1955, and not being a workman as defined under Section 2(s)(iii) and (iv) of The Industrial Disputes Act and held that the first respondent has no jurisdiction to entertain the claim of the petitioner.
12. The first respondent also held that the petitioner is not entitled to maintain a claim for gratuity, that the claim of the petitioner is untenable not maintainable and the first respondent has no jurisdiction to try the claims made towards additional gratuity or the balance gratuity or arrears of foreign allowance, etc. All the points framed have been answered against the writ petitioner and the claim of the writ petitioner has been rejected. The reference has been answered against the petitioner and in favour of respondents 2 and 3. Being aggrieved, the present writ petition has been filed.
13. According to the respondent/employer in W.J. No. 3 of 1990, the claim petition is not maintainable since the claimant is not a workman as defined in The Industrial Disputes Act nor he is a working journalist as defined under The Working Journalists and Other Newspaper Employees (Conditions of Service) and Miscellaneous Provisions Act, 1955. The petitioner was working as Regional Manager and he was in-charge of the operation of Press Trust of India in the entire Southern Region. As Regional Manager, the petitioner was in-charge of the overall administration and other responsibilities. All the bureau managers and other senior functionaries were reporting to the petitioner. The petitioner used to allocate/assign responsibilities editorially and otherwise to the bureau managers. The petitioner was in-charge of overall administration, news management and performance.
14. The petitioner was not performing duties of a working journalist, but he was performing functions of managerial or administrative or supervisory cadre. The salary and other perquisites were paid to the petitioner considering his responsibilities as Regional Manager. The petitioner was paid a salary of Rs.5,064.60 apart from conveyance allowance, house rent allowance, telephone charges, newspaper cost reimbursement, etc. The petitioner was sanctioned a gratuity of Rs.1,08,109.73 and after deduction Rs.92,380.71 was paid. All other claims like bonus, commission, retirement allowance, etc., would not form part of the emoluments and they have been paid. The claim of the petitioner that wages would include every payment and gratuity has to be worked out is not sustainable. The petitioner is not entitled to interest claim or arrears or towards foreign allowance.
15. The writ petitioner filed a rejoinder reiterating that he is a 'working journalist' as defined under Section 2(f) of The Working Journalists and Other Newspaper Employees (Conditions of Service) and Miscellaneous Provisions Act, 1955, and a workman as defined under Section 2(s) of The Industrial Disputes Act. The writ petitioner has also stated that he was looking after the administration as subsidiary or secondary function and his primary function being management of news collection and distribution in the designated region.
16. In I.D. No. 53 of 1991, the management of Press Trust of India filed a counter contending that the claim petition is not maintainable, that it is belated, that the claimant was superannuated even on 1.9.1988, that the claimant is not a working journalist nor he is a workman. The claimant was discharging managerial functions, that the National Union of Journalists has no representative character and no locus standi to espouse the cause of the individual employee. The claimant had earned promotions from time to time and he was holding a senior position and it is rather extra-ordinary for him to claim that he is a workman.
17. The claimant is outside the purview of working journalist and he is not entitled to maintain the claim. The complaint with respect to two others being promoted are devoid of merits and as on overall comparative merit, promotions were effected. The promotions were effected during September, 1987, and they were on comparative merits. The claimant remains in Group 1-A. It is not correct to contend that the claimant has been superseded by eleven working journalists junior to him. The grievance of the claimant is imaginary, without merits and deserves no consideration. The claim that the claimant has a bright or better record of service than those who have been promoted is not correct. The contention that injustice has been done to the claimant is imaginary. The claimant was a recipient of a fair treatment and from Sub Editor he came to be promoted as Regional Manager (South). Further promotion is not automatic since they are very senior posts in the organisation. The respondent has not violated the provisions of the Working Journalists Act and no right has accrued to the claimant and the claimant is not entitled to any relief.
18. The claimant filed a rejoinder reiterating his stand and also contending that the promotions to juniors is illegal and denial of promotion to him is equally arbitrary.
19. The pleadings such as claim statement, rejoinder are far lengthy and it is not necessary to extract the entire portion of the pleadings.
20. The claimant filed proof affidavit and he was examined as W.W.1. The claimant also marked Exs.W-1 to W-42. The first respondent Industrial Tribunal, by award dated 12.3.97 held that the claimant is a not workman as defined under Section 2(s) of The Industrial Disputes Act, that the reference by the State Government is competent as the claimant was stationed in Madras, the claim that the claimant Varadachari was victimised has not been substantiated nor the allegation of favouritism has been established nor the entire selection could be held to be wrong. The Labour Court further held that the allegations of victimisation is without any basis and that the claimant is not entitled to any relief. In that view, the Labour Court dismissed the claim petition.
21. The learned counsel for the petitioner in both the petitions advanced identical contentions, namely, that the petitioner is a workman and a working journalist and the findings to the contra by the Tribunals below are erroneous, misdirection and liable to be set aside. As a further consequence, it is contended that all the claims of the petitioner should be sustained. The learned counsel also contended that the denial of promotion is arbitrary.
22. Heard Mr. A.L. Somayaji, learned senior counsel and Ms. Rita Chandrasekaran, learned counsel, who made their submissions on behalf of the writ petitioners and Mr. S. Jayaraman, learned counsel appearing for the contesting respondents in both the writ petitions.
23. One of the objections being that after retirement the claimant cannot maintain a claim under Section 17 of The Working Journalists Act. This petition is no longer res integra, if such a claim falls within the definition of the expression 'working journalist' as has been held by the Superme Court in BENNET COLEMAN & CO. (PRIVATE) LTD. VS. PUNYA PRIAYA DAS GUPTA reported in AIR 1989 SC 554 Even after the individual ceased to be in the employment of the particular newspaper establishment, at the time of his application for gratuity, he could maintain an application under Section 17 of The Working Journalists and Other Newspaper Employees (Conditions of Service) and Miscellaneous Provisions Act, 1955. Therefore, merely because the claimant has retired cannot be a ground to reject the application, but the claimant has to substantiate his claim that he is a working journalist.
24. One other objection that was sought to be advanced being that delay in raising a dispute and in this respect the Apex Court in MAHAVIR SINGH VS. U.P. STATE ELECTRICITY BAORD & OTHERS reported in 1999 (2) LLJ 18 held that if the dispute has been raised belatedly, that could be taken care of by the Labour Court by not awarding full backwages, but only 50% of the backwages throughout from the date of termination till reinstatement, when the termination is held to be illegal.
25. In the industrial dispute, non-promotion was the subject matter of claim, while in the working journalist case, various reliefs have been sought for. The substantial points that arise for consideration being :-
'i) Whether the writ petitioner is a workman as defined under Section 2(s) of The Industrial Disputes Act ?
ii) Whether the writ petitioner is a working journalist as defined under Section 2(f) of The Working Journalists and Other Newspaper Employees (Conditions of Service) and Miscellaneous Provisions Act, 1955 ?'
If these two points are answered against the petitioner, then it may not be necessary to examine any other claim. In respect of the merits of the claim it may not be necessary for this Court to examine once these points are answered in the negative and against the writ petitioner.
26. The expression 'workman' is defined in Section 2(s) of The Industrial Disputes Act and the expression 'working journalist' is defined in Section 2(f) of The Working Journalists and Other Newspaper Employees (Conditions of Service) and Miscellaneous Provisions Act, 1955. Number of contentions are sought to be advanced to substantiate the claim that the petitioner is a workman or a working journalist, which requires to be examined at the threshold.
27. The definition either in Section 2(s) of The Industrial Disputes Act and Section 2(f) of The Working Journalists and Other Newspaper Employees (Conditions of Service) and Miscellaneous Provisions Act, 1955, makes not much of a difference except that workman includes workman employed in every other establishment, while working journalist is a special definition in respect of 'journalists' alone governed by the provisions of the Act.
28. In the present case, concedingly, the claimant was the Regional Manager of the respondent establishment at Madras and he was heading the Southern Region. He was employed in a supervisory capacity and he was drawing more than Rs.1,600/= per month. The first respondent Labour Court on a consideration of the oral and documentary evidence let in by the claimant before it, held that the petitioner is not a working journalist/he is not a workman. The petitioner himself has admitted that he was the Regional Manager in-charge of the entire Southern Region News Division, that he was in-charge of the entire administration of the Madras Regional Office, that he was the authority to sanction casual leave to the employees, that he was in-charge of the southern region comprising of Kerala, Karnataka, Pondicherry and Madras, with the powers of Administrator. The Tribunal found that the petitioner was mainly employed in a managerial or administrative capacity and he was drawing wages more than Rs.1,600/= per month. Admittedly, the claimant was the Regional Manager of Southern region and controlled the entire southern region with number of employees under his control. The claimant was in-charge of the entire administration of the Madras Office, its operations and all persons employed in the southern region in whatever capacity they were employed were under his supervision and control. Therefore, it cannot be contended that the claimant is a workman or a working journalist.
29. The powers which the claimant exercised is not in dispute. He also admits, which is nothing but a managerial function and he is the number one in the entire southern region for all the four States heading the Regional Office. There is no escape for the petitioner and it is too late in the day for the petitioner to contend that he is still a workman or a working journalist.
30. The question as to who is a workman or who is a working journalist was considered by the Apex Court in ANANDA BAZAR PATRIKA (PRIVATE) LTD. VS. ITS WORKMEN reported in 1996 (2) LLJ 670. The Apex Court in that context, held thus :-
'The question whether a person is employed in a supervisory capacity or on clerical work, in our opinion, depends upon whether the main and principal duties carried out by him are those of a supervisory character, or of a nature carried out by a clerk. If a person is mainly doing supervisory work, but incidentally or for a fraction of the time, also does some clerical work, it would have to be held that he is employed in supervisory capacity; and conversely, if the main work done is of clerical nature, the mere fact that some supervisory duties are also carried out incidentally or as a small fraction of the work done by him will not convert his employment as a clerk into one in supervisory capacity.'
31. It is not as if the claimant was entrusted with some supervisory duty incidentally or he was supervising a small fraction of the work. It is not as if it is a mere designation alone as Regional Manager, but in fact he was controlling the entire region as a Regional Manager exercising all the functions of a Manager. The very nature of duties, the functions assigned which are primary and mainly supervisory in nature and, therefore, he is not a workman. But, in this case, concedingly, the claimant was working only in a managerial capacity as a Regional Manager exercising control over all the staff employed in the region.
32. In BURMAH SHELL OIL STORAGE AND DISTRIBUTION CO. OF INDIA LTD. V. BURMA SHELL MANAGEMENT STAFF ASSN., reported in : the Apex Court held thus:-
'5. For an employee in an industry to be a workman under this definition, it is manifest that he must be employed to do skilled or unskilled manual work, supervisory work, technical work or clerical work If the work done by an employee is not of such a nature, he would not be a workman. Mr. Chari on behalf of the Association, however, put forward the argument that this definition is all comprehensive and contemplates that all persons employed in an industry must' necessarily fall in one or the other of the four classes mentioned above and, consequently, the Court should proceed on the assumption that every person is a workman; but he may be taken out of the definition of 'workman' under the four exceptions contained in the definition. The two exceptions with which we are primarily concerned are Exceptions (iii) and (iv). Under Exception (iii), even a workman, who is employed mainly in a managerial or administrative capacity, goes out of the definition of 'workman', while under Exception (iv), persons, who are employed in a supervisory capacity, go out of the definition, provided they either draw wages exceeding Rs.500/- per mensem or exercise, by the nature of the duties attached to the office or by reason of the powers vested in them, functions mainly of a managerial nature.
9. In Ananda Bazar Patrika (Private) Ltd. v. Its Workmen, this Court clearly enunciated the principle by stating:
'The principle which should be followed in deciding the question whether a person is employed in a supervisory capacity or on clerical work is that if a person is mainly doing supervisory work but incidentally or for a fraction of the time also does some clerical work, it would have to be held that he is employed in supervisory capacity, and, conversely, if the main work done is of clerical nature, the mere fact that some supervisory duties are also carried out incidentally or as a small fraction of the work done by him will not convert his employment as a clerk into one in supervisory capacity.' 12. ...... we have to see what is the main or substantial work which they are employed to do? If it is supervisory work, it would be held that they were employed to do supervisory work even though they may also be doing some technical, clerical or manual work. If, on the other hand, the supervisory work be incidental to the main or substantial work of any other type, viz., clerical, manual or technical, the employment would not be in a supervisory capacity.'
33. In the light of the above pronouncement it follows that both the Tribunals are well-founded in holding that the claimant is not a workman/not a working journalist as he was employed as Regional Manager exercising full managerial and supervisory control. By no stretch of imagination the petitioner could claim that he is a workman. The findings recorded by the two Tribunals in both the cases are not liable to be interfered as the said tribunals have recorded valid reasons while recording a finding that the writ petitioner is not a workman/working journalist. The learned counsel for the petitioners in both the writ petitions are unable to point out any error or illegality or perversity in the appreciation of evidence in this respect. Hence, this Court holds that the claimant/writ petitioner is not a workman/working journalist.
34. In RASHTRADOOT V. RAJASTHAN WORKING JOURNALIST UNION, reported in :
11. ....... 'Working journalist', according to this definition, means a person whose principal avocation is that of a journalist and who is employed as such in, or in relation to, any newspaper establishment, and includes an editor, a leader-writer, news editor, sub-editor, feature-writer, copy tester, reporter, correspondent, cartoonist, news-photographers and proof reader but does not include any such person who -
'(i) is employed 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.'
35. In the present case also, on the evidence it is clear that the claimant was employed only in a managerial or administrative capacity and he was being employed in a supervisory capacity performing either by the very nature of the duties attached to his office or by reason of the powers conferred on him and the functions are mainly of a managerial nature.
36. Applying the same tests it follows that the petitioner cannot claim to be a working journalist also. The definition of the expression working journalist also will not take in the petitioner and the findings in this respect also deserves to be sustained and no interference is called for.
37. When once it is confirmed that the petitioner in both the writ petitions is not a workman and not a working journalist, it follows that he is not entitled to claim any reliefs claimed by him before the tribunals below nor he could complain that he has been discriminated and his juniors have been promoted nor he could claim payment of very many benefits, which he has claimed.
38. Assuming that there is delay, yet the petitioner cannot maintain both the disputes, as he is neither a workman nor a working journalist. This Court holds that no interference is called for with the findings recorded by the two tribunals in both the proceedings. In the circumstances, all the points are answered against the petitioner and in favour of the respondents.
39. In the result, both the writ petitions are dismissed. The parties shall bear their respective costs.