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PETITIONER: BENNETT COLEMAN & CO. (P) LTD.

       Vs.

RESPONDENT: PUNYA PRIYA DAS GUPTA

DATE OF JUDGMENT: 02/04/1969

BENCH: SHELAT, J.M. BENCH: SHELAT, J.M. BHARGAVA, VISHISHTHA VAIDYIALINGAM, C.A.

CITATION:  1970 AIR  426            1970 SCR  (1) 181  1969 SCC  (2)   1  CITATOR INFO :  RF         1972 SC1579  (6)  R          1974 SC 844  (4)  R          1990 SC1080  (11,14,15,17)  RF         1991 SC1289  (16)

ACT: Working    Journalists   (Conditions   of    Service)    and Miscellaneous Provisions Act, (45 of 1955), ss. 2(f), (rr) 5 and 17-Ex-employee, if entitled to maintain application  for gratuity-Wages-Car allowance and benefit, of free  telephone and newspapers-If allowances includible in wages. Evidence Act (1 of 1872), s. 115-Scope of.

HEADNOTE: In   October   1963,   the  respondent   was   the   special correspondent  of the appellant company and was entitled  to car  allowance,  free  telephone  and  free  newspapers   in addition  to  his basic salary and dearness  allowance.   On October 8, he tendered his resignation which was accepted on October  21, with effect from the latter date.   On  October 23,  he  accepted  employment  with  another  Newspaper  and thereafter  claimed compensation for leave due to  him.   On November  11,  the  respondent received a  letter  from  the appellant that the appellant company’s rules did not  permit any  such compensation where an employee had resigned,  that in  the absence of a proper notice by the  respondent  there was no termination of his employment and that therefore  his acceptance  of other employment was in contravention of  his conditions  of  service.   On November  21,  therefore,  the respondent  went  to the appellant’s  office,  received  the letter  dated  October  21 accepting  his  resignation,  the statement of his account and a cheque for Rs. 2810.47 P.  in ’full  and final settlement of his claim.  The statement  of account showed 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, free  newspapers and  car allowance were not included as part of  his  wages. The  respondent wrote immediately, on the same day,  to  the appellant setting out the circumstances in which he received the cheque and acceptance of his resignation.  According  to

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him he wanted to specify that the full and final  settlement did not include compensation for one month’s leave; and that the  acceptance of his letter ’of resignation  was  withheld and  given to him only after he accepted the cheque for  Rs. 2810.47 P. ’in full and final settlement of his claims’.  On December   5,  the  appellant  replied  stating   that   the respondent’s claim for leave compensation was not admissible under  the  company’s  rules  and  in  view  of  the   final settlement the matter may be closed.  The respondent’s claim was  thereafter  referred  to  the  Labour  Court.   In  his statement of claim, the respondent claimed, (a) gratuity  on the basis that his monthly wages included the car  allowance and  Rs. 50, being the estimated value of the benefit  of  a free  telephone and newspapers and (b) one month’s wages  as compensation for the month’s leave, in all Rs. 6000.34 P. He did  not deduct the amount of Rs. 2810.47 P. as he  had  not encashed  the  cheque  for that amount.   The  Labour  Court decreed part of the respondent’s claim. In  appeal to this Court, on the question : (1) Whether  the respondent,  not being in the appellant’s employment at  the time  he  filed  his  claim in the  Labour  Court,  was  not entitled  to avail himself of the provisions of the  Working Journalists  (Conditions of Service) and Miscellaneous  Pro- vision Act, 1955; (2) Whether the respondent, having  signed the  receipt  in full settlement of his claim  was  estopped from  making claims in respect of his leave for  one  month, the  car  allowance, and the estimated benefit of  the  free telephone and newspapers; and (3) Whether the monetary value of  the free telephone and newspapers and the car  allowance would be 182 included as part of his wages for calculating gratuity, HELD  :  (1)  Since the definition of ’an  employes  in  the Industrial   Disputes  Act,  1947  and  the  C.P.  &   Berar Industrial  Disputes Settlement Act (23 of 1947),  were,  in language,  similar  to the one used in  Working  Journalists (Conditions  of Service) and Miscellaneous  Provisions  Act, the  decision  in Western India  Automobile  Association  v. Industrial Tribunal, [1949] F.C.R. 321 and Central Provinces Transport  Services  Ltd. v. Raghunath, [1956]  S.C.R.  956, interpreting  the word ’employee,’ in those two Acts,  would be authorities for the view that an ex-employee would  ’also be  a working journalist.  There is no conflict  of  opinion between   these   two   decisions  and   the   decision   in Dharangadhara  Chemical Works Ltd. v. State  of  Saurashtra, [1957] S.C.R. 152 and Workmen v. The Management of Dimakuchi Tea Estate, [1958] S.C.R. 1156.  Even assuming there is some conflict  the  definitions  of a  ’newspaper  employee’  and ’working  journalist’  being  subject to a  context  to  the contrary,  the,  benefit  of ss. 5 and  17  of  the  Working Journalists  Act is available to an ex-employee,  though  he has  ceased  to  be  in the  employment  of  the  particular newspaper  establishment at the time of his application  for gratuity.  The only requirement is 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. Therefore,  the  respondent  was entitled  to  maintain  his application. [189 E-F; 192 B-H] Dharangadhara  Chemical Works Ltd. v. State  of  Saurashtra, [1957] S.C.R. 152 and Workmen v. The Management of Dimakuchi Tea Estate, [1958] S.C.R. 1156, explained. (2)(a) Assuming the technical rule of estoppel set out  in s.  115  of  the Evidence Act is  applicable  to  industrial adjudication,  the  rule could not be  invoked  against  the claim for compensation for the leave period.  The letter  of

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the respondent dated 21st November and the appellant’s reply dated  5th  December  show that the  respondent  was  always making the claim and never gave it up and that the company’s case  was also not that the respondent gave, up  the  claim, but  that the appellant company’s rules did not permit  such compensation.  The appellant did not produce any such  rules before the Labour Court and a belated referernce to any such rule   in  this  Court  could  not  be   permitted   without opportunity to the respondent to controvert it. [193 D;  194 E] (b)Under  s. 115 of the Evidence Act,  the  representation which  estops a person making it from acting contrary to  it is  one on the belief of which the, other person acts  in  a manner he would not have done but for it and on believing it to  be true,.  But such a conclusion could not be  drawn  in face  of the uncontradicted statements in the letter of  the respondent dated 21st November that the management would not give him the letter of acceptance of his resignation  unless he signed the receipt in full settlement of all his  claims. When   he  received  the  letter  dated  November  19,   the respondent  could not rest content without jeopardizing  his interests  on the mere oral intimation of acceptance of  his resignation  and  so be went to the  appellant’s  Office  to secure  the  written acceptance.  He was then told  that  it would  not  be  given unless he passed  a  receipt  in  full settlement of his claim and he signed the receipt under  the stress of circumstances. [195 H-196 B] (3)Under   s.  2(rr)  of  the  Act,  ’wages’   means   all remuneration  capable of being expressed in terms  of  money payable  to a workman in respect of his employment  or  work done  in  such  employment and includes,  inter  alia,  such allowance as the workmen is for the time being entitled  to. The  car  allowance  and  benefit  of  free  telephone   and newspaper cannot be said  183 to be remuneration payable in respect of employment or  work done in, such employment.  Neither the car allowance nor the benefit  of  the telephone was given to  the  respondent  in respect of his employment or work done in such employment as they were not restricted to the employment or the, work done by  him as special correspondent.  He was entitled  to  them whether  he  used  them  or  not  in  connection  with   his employment  or  his work as a special  correspondent.   They would   however  fall  under  the  inclusive  part  of   the definition as ’allowances’.  Since they were allowed to  him to  directly  reduce the expenditure which  would  otherwise have  gone into his family budget, they were items  relevant in the fixation of fair wages and were properly regarded  as part  of the respondent’s wages.  Therefore, they should  be taken  into  consideration for the calculation  of  gratuity payable to him. [196 H; 197 F-H] Hindustan  Antibiotics Ltd. v. Workmen, [1967] 1 S.C.R.  652 674-675, followed.

JUDGMENT: CIVIL  APPELLATE  JURISDICTION : Civil Appeal  No.  1702  of 1966. Appeal  by special leave from the Award dated  February  28, 1966 of the Labour Court, Delhi in W.J. No. 2 of 1964. G.B.  Pal,  O. C. Mathur and J. B.  Dadachanji,  for  the appellant.  M. K. Ramamurthi, Shyamala Pappu, J. Ramamurthi, M.  Mohan, P. S. Khera, B. Thakur and Vineet Kumar, for the respondent.

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The Judgment of the Court was delivered by Shelat,  J.  This  appeal, by  special  leave,  is  directed against the award of the Labour Court, Delhi in a  reference made  to  it  under S. 17 (2)  of  the  Working  Journalists (Conditions  of Service) and Miscellaneous  Provisions  Act, 1955 (referred to hereinafter as the Act. ) The  relevant facts leading to the said reference may  first be stated. By  its letter dated January 16, 1953 the  appellant-company appointed the respondent as a staff correspondent at Gauhati on  a basic salary of Rs. 300 and dearness allowance at  40% thereof  in addition to a fixed conveyance allowance of  Rs. 100  per  month.   Sometime thereafter  the  respondent  was transferred to the company’s branch office at Delhi where he worked as a special correspondent.  By 1963 the remuneration payable  to  him came to Rs. 700 as basic pay,  Rs.  497  as dearness  allowance, Rs. 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 184 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  circum- stances  is in contravention of the terms and conditions  of service  of  this  company".  The  respondent  had,  in  the meantime,  claimed  compensation for leave due  to  him,  to which  claim  the  said letter of Karnik  replied  that  the company’s  rules did not permit any such compensation  where an  employee  had  resigned.   On  November  21,  1963   the respondent  wrote to the said Roy (Ex.  W/4) that (1)  after he  had  tendered  his resignation there  was  a  discussion between  them when the matter of acceptance of his  resigna- tion was amicably settled and that it was thereafter that he joined  the  Indian Express, (2) the letter of  Karnik  that there was no termination of his employment was not  correct, (3)  after  October 21, 1963 he had gone  to  the  company’s office  to settle his accounts and collect the dues  payable to  him as’also the letter of acceptance of his  resignation but he was told that the accounts were not yet ready and  he was not then paid even his salary and dearness allowance due upto  October  20,  1965 although "I  bad  asked  for  these amounts at least", (4) the letter accepting his  resignation was  held  back  until he was prepared to  sign  a  document "purporting to waive all my rights to leave salary" which he had first refused to sign, (5) on receiving the said  letter of  Kamik  he  had  thought  necessary  to  get  a   written acceptance of resignation, that, as apprehended by him, that letter  was  handed over to him on that day  only  after  he accepted  a cheque for Rs. 2810.47 P. and had given  receipt therefor  "in full and final settlement of all  my   claims" and that he wanted to specify in that receipt that full  and final  settlement on his side did not  include  compensation for one month’s leave due to him but the accountant did  not allow  him  to do SO.  The statement of  account  which  was given to the respondent on November 21, 1963 and on which he

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signed the said receipt stated that he had received the said cheque  "in  full  and final settlement  of  all  my  claims against  the  company  subject  to the  bonus  for  1963  if declared  and  payable to me".  The  statement  of  -account mentioned Rs. 901-34 P. only as remuneration for 20 days  of October 1963 on the basis of his monthly remuneration  being Rs. 1,397, comprised of Rs. 700 as basic salary, Rs. 497  as dearness  allowance  and  Rs. 200  as  car  allowance.   The statement of account thus shows that though he was on  leave in  185 October  1963, the company included the car allowance  while calculating  his wages due for these 20 days.  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 Rs.  700 basic,  Rs.  497 as dearness allowance, Rs.  200  conveyance allowance  and  Rs.  50 being the  estimated  value  of  the benefit of a free telephone and newspapers, aggregating  Rs. 1,447  per  month.  He claimed gratuity  computable  on  the basis of Rs. 1,447 as being his monthly wages, Rs. 1,447  as compensation for the month’s leave, in all, Rs. 6,000.34  P. He did not deduct from the said claim the said amount of Rs. 2,810.47  P. as he had not encashed the cheque given to  him against the receipt dated November 21, 1963.  The company in its  written statement denied the claim relying on the  said receipt  and further denied that the car allowance  and  the monetary  value for the free telephone and newspapers  could be included in the wages payable to the respondent either as due  to him or for calculating gratuity.  Before the  Labour Court  the company did not dispute the value of the  benefit of  the  free  telephone and  newspapers  estimated  by  the respondent,  but  it raised the question  whether  the  said value and the car allowance formed part of the  respondent’s wages  and  whether the amount of gratuity  payable  to  him could  be ascertained on the footing of their being part  of his wages.  The Labour Court held that there was no evidence that  the  car allowance was not payable to  the  respondent while he was on leave as was the case in respect of  another working  journalist, C. V. Vishwanath, whose claim also  the Labour  Court was trying along with that of the  respondent. The Labour Court found this difference a significant one and held  that the car allowance had to be taken as part of  the wages.   The Labour Court also held that the  car  allowance and the free telephone and newspapers were an allowance  and an  amenity respectively falling under the definition  L  12 Sup CI/69-13 186 of  s.  2 (rr) of the Industrial Disputes  Act,  1947,  both

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forming the component parts of monthly wages payable to  the respondent,.   As  regards  the leave,  the  respondent  was undoubtedly  entitled to 30 days leave.  But  the  company’s plea   was,   firstly,  that  its  rules  did   not   permit compensation  for such leave and secondly, that it  was  set off  against the period of notice which the  respondent  was required to give.  No rules, however, were produced to  show that   they   contained  any  provision   disallowing   such compensation.   As regards the notice period of  one  month, the Labour Court held that as the resignation dated  October 8, 1963 was accepted with effect from October 21, 1963 there was compliance of 13 days only 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 Rs. 200 per month, Rs. 50 per month for telephone and  news- papers  and compensation for 13 days leave, that  the  first two  were parts of his wages, that his monthly  remuneration was,  therefore,  Rs. 1,447 and gratuity  equivalent  to  51 months wages would have to be calculated on the basis of Rs. 1,447 being his wages per month and directed the company  to pay  on the aforesaid calculations Rs. 2,002 over and  above Rs.  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 avail himself of the provisions of  the Act.   Section  2(c)  provides  that  "unless  the   context otherwise requires" a newspaper employee "means any  working journalist, and includes any other person employed to do any work  in, or in relation to, any  newspaper  establishment". Clause (f) of that section defines a "working journalist" to mean  a  person  whose  principal avocation  is  that  of  a journalist  and "who is employed as such in, or in  relation to  any newspaper establishment".  Clause (g) provides  that all  words and expressions used but not defined in this  Act and defined in the Industrial Disputes Act, 1947 shall  have the  -meanings  respectively assigned to them in  that  Act. Counsel strenuously relied on the words "who is employed" as a   journalist  in,  or  in  relation  to,   any   newspaper establishment in cl. (f) of S. 2, his contention being  that it is only a newspaper employee who is presently employed in a newspaper establishment who can resort to the Act and  not an ex-employee whose employment has come to an end  187 as  a result of acceptance of his resignation.  A  question, similar  to  that raised by counsel, also arose  in  Western India Automobile Association v. Industrial Tribunal(1).  The contention there was that in the light of the definitions of ’industrial dispute’ and ’an employee’ as they stood in  the Industrial Disputes Act, 1947 before the Amending Act 36  of 1956  was  passed,  a  dispute  as  to  reinstatement  of  a discharged  or dismissed workman could not fall  within  the scope   of  an  industrial  dispute.   The  contention   was rejected.   The  Court  observed  that  the  definition   of ’industrial   dispute’   used  the  words   "employment   or nonemployment",  that whereas one was a positive, the  other was a negative act of an employer, that such an act  related to an existing employment or to an existing  non-employment.

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After giving certain examples to illustrate the four  stages when a dispute could arise, the Court at page 330  concluded thus :               "The  failure  to  employ or  the  refusal  to               employ are actions on the part of the employer               which would be covered by the term "employment               or    non-employment".     Reinstatement    is               connected with non-employment and is therefore               within  the words of the definition.  It  will               be a curious result if the view is taken  that               though a person discharged during a dispute is               within 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(2) 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 dispute as defined by s. 2 (12)  of  that Act.   The  argument was that as the workman  concerned  was already dismissed and his employment had thereby come to  an end, he could not be termed an employee (1) [1949] F.C.R. 321. (2) 11956] S.C.R. 956. 188 as the intention of the legislature could not be to  include in  the definition of an employee even those who had  ceased to  be  in service as otherwise there was no  need  for  the further provision in S. 2(10) which included those who  were discharged  from  service on account of  the  dispute.   The Court  dismissed this contention following the  decision  in Western  India  Automobile Association(1) and  held  that  a dispute  between an employer and an employee  regarding  the latter’s dismissal and reinstatement would be an  industrial dispute  within  s. 2(12) of that Act,  that  the  inclusive clause in S. 2(10) was not an indication that dismissed  em- ployees  would not fall within the meaning of ’employee’  or that  the  question of their reinstatement would not  be  an industrial  dispute  and that that clause  was  inserted  ex abundanti  cauiela  to  repel  a  possible  contention  that employees  discharged under ss. 31 and 32 of the  Act  would not   fall  within  the  meaning  of  s.  2(10)  Since   the definitions  of  "ex  employee" in these two  Acts  were  in language  similar to the one used in the present Act,  these decisions  would  be authorities for the view  that  an  ex- employee  would for the purposes of the present  controversy be a working journalist. It was, however, argued that though these two decisions con- sidered a dismissed employee as a workman as defined by  the Industrial Disputes Act and the C.P. & Berar Act, there  are two decisions of this Court which express contrary views and

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that, therefore, there is a conflict of opinion which should be resolved by a larger bench.  The two decisions relied  on in this connection are: Dharangadhara Chemical Works Ltd. v. State  of  Saurashtra(2) and Workmen v.  The  Management  of Dimakuchi  Tea Estate(3).  In Dharangadhara  Chemical  Works Ltd.,  the  appellants were lessees holding  a  licence  for manufacturing  salt  on  the demised lands.   The  salt  was manufactured by a class of professional labourers, known  as agarias,  from  rain  water that got mixed  up  with  saline matter  in  the soil.  The work was seasonal  and  commenced after  the  rains and continued till June when  the  agarias left  for  their villages.  The demised lands  were  divided into plots which were allotted to the agarias with a sum  of Rs.  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 (1) [1949] F.C.R. 321. (2) [1957] S.C.R. 152. (3) [1958] S.C.R. 1156.  189 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 thus :               "The  essential condition of a person being  a               workman within the terms of this definition is               that  he should be employed to do the work  in               that industry, that there should be, in  other               words,  an employment of his by  the  employer               and  that  there should  be  the  relationship               between  the  employer  and  him  as   between               employer  and employee or master and  servant.               Unless a person is thus employed there can  be               no question of his being a workman within  the               definition  of  the term as contained  in  the               Act." Relying in particular on the words "unless a person is  thus employed" counsel argued that this decision was at  variance with  what  was  said in  the  Central  Provinces  Transport Services  Ltd.(1)  and was, besides, an  authority  for  the proposition that as the definition of a workman then  stood, an ex-employee would not be a workman within the meaning  of the  Act.   We are of the view that this decision  does  not warrant  such  a contention or that there  is  any  conflict between  this decision and the two earlier  decisions.   The question  before  the Court was the distinction  between  an employee and an independent contractor and it was only while describing the characteristics of the two relationships that the   learned  Judge  observed  that  unless  there  was   a relationship of master and servant and the person  concerned "is  employed" he could not be regarded as "a  work-man"  as defined  by  the Act.  The Court was not concerned  in  that

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case  with  the question posited in  the  Central  Provinces Transport Services Ltd.(1) whether an employee who has  been discharged  or  dismissed and who claims a  relief  such  as reinstatement  is a workman or not.  Not having to  consider such   a  question  and  being  only  concerned   with   the distinction   between   an  employee  and   an   independent contractor, the observations made by the Court to  delineate the  features  of the two relationships cannot  be  regarded either  as laying down that an ex-employee is not a  workman or as being in conflict with the two earlier decisions which are specific decisions on the defini- (1)  [1956] S.C.R. 956. 190 tion  of "a workman" in the Act.  In the case of Workmen  of Dimakuchi   Tea  Estate(1),  the  dispute  related  to   the dismissal of one Dr. K. P. Bannerjee.  The management in the written  statement  pleaded  that Dr. Bannerjee  was  not  a workman  as  defined by S. 2(s) of the  Industrial  Disputes 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 contention of the workmen being that it  would be so as by the use of the expression ’of any person’ in the third part of s. 2(k) a dispute relating to a person, though not  a  workman,  would  ’be  an  industrial  dispute.    In answering  this problem the Court entered into an  elaborate discussion  of the several provisions and the scheme of  the Act  and  came  to the conclusion  that  though  the  clause defining  ’industrial dispute’ had used the  expression  "of any  person",  that expression must be  given  a  restricted meaning,  namely,  that the dispute must be a  real  dispute between  the  parties  thereto  so  as  to  be  capable   of settlement  or  adjudication  by one party  to  the  dispute giving  necessary  relief  to  the  other  and  the   person regarding  whom the dispute was raised must be one in  whose employment,   non-employment,   terms   of   employment   or conditions of labour the parties to the dispute had a direct or substantial interest.  In the absence of such an interest the dispute ,could not be said to be a real dispute  between the  parties.   At  page  1172 of  the  Report,  the  Court, however,  has  made certain  observations  which  apparently appear  to be in variance with the Western India  Automobile Association(2)  and  in  the  Central  Provinces   Transport Services Ltd.(3). The observations relied on by counsel  are as follows (1)  [1958]  S.C.R. 11 56.                       (2)  [1949] F.C.R. 321. (3)  [1956] S.C.R. 956.

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                           191               "It  is clear enough that prior to  1956  when               the  definition  of ’workman’ in the  Act  was               further widened to include a person dismissed,               discharged  or retrenched in connection  with,               or  as a consequence of the dispute  or  whose               dismissal,  discharge or retrenchment  led  to               the dispute, a workman who had been discharged               earlier  and not during the dispute was not  a               workman within the meaning of the Act.  If the               expression  "any person" in the third part  of               the  definition  clause were  to  be  strictly               equated  with ’any workman’, then there  could               be no industrial dispute, prior to 1956,  with               regard  to a workman who had  been  discharged               earlier  than the dispute.  That seems  to  be               the  reason  why  the  Legislature  used   the               expression  ’any person’ in the third part  of               the  definition clause so as to put it  beyond               any  doubt that the non-employment of  such  a               dismissed workman was also within the ambit of               an industrial dispute." These  observations, however, were made to show that as  the definition  of the workman stood before the  1956  amendment there  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(1)  and  Central  Provinces  Transport  Services Ltd.(2), 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  before  them   and   that   the illustrations  given by Mahajan J. (as he then was)  in  the Western  India  Automobile Association(1), "to  elucidate  a different problem", could not be taken as determinative of a problem  which was not before the Court in that  case.   The problem  in each of these decisions being different  and  in view particularly (1) [1949] F.C.R. 321.                   (2) [1956]   S.C.R. 956. 192 of  the fact that the case proceeded on the assumption  that Dr.  Banerjee was not "a workman", it becomes  difficult  to agree that the observations relied on by counsel were  meant to  be  or  are in fact in variance with those  in  the  two earlier decisions, or that therefore, there is any conflict, of opinion on the question that a workman whose services are terminated  would still be a workman as defined by  S.  2(s) before it was amended in 1956.

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But assuming that there is such a conflict as contended,  we do not have to resolve that conflict for the purposes of the problem  before us.  The definition s. 2 of the present  Act commences  with  the words "In this Act unless  the  context otherwise requires’ and provides that the definitions of the various  expressions  will be those that  are  given  there. Similar  qualifying expressions are also to be found in  the Industrial Disputes Act, 1947, the Minimum Wages Act,  1948, the  C.P. & Berar Industrial Disputes Settlement  Act,  1947 and   certain   other  statutes  dealing   with   industrial questions.  It is, therefore, clear that the definitions  of "a newspaper employee" and "a working journalist" have to be construed  in  the  light  of and  subject  to  the  context requiring  otherwise.  Section 5 of the Act,  which  confers the  right  to gratuity, itself contemplates in cl.  (d)  of sub-s.   1 a case of payment of gratuity to the  nominee  or the  family of a working journalist who dies while he is  in the  service  of a newspaper establishment.   Section  17(1) provides  that  where any amount is due under the Act  to  a newspaper  employee  from  an  employer,  such  an  employee himself  or  a person authorised by him or, in case  of  his death,  any  member  of his family can apply  to  the  State Government  or  other specified authority for  the  recovery thereof.   Similar  provisions are also to be  found  in  S. 33C(1)  of the Industrial Disputes Act.  Claims  under  that section include those for compensation in cases of retrench- ment,  transfer of an undertaking and closure under Ch.   VA of  that  Act,  all of which  would  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- 194 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 to the respondents said letter of  November 21,  1963  wherein  the  stand taken by  Roy  was  that  the respondent was, not entitled to compensation for leave,  not because  he had given up that claim when he had  signed  the said receipt, but because the company’s rules did not permit such  compensation,  It  is, therefore,  manifest  that  the respondent  did not make any representation when  he  signed the  said  receipt that he had waived his  claim  for  leave period  or  that  the  company  did  any  act  on  any  such representation  which otherwise it would not have done.   In spite of the letter Ex.  W/4, the company failed to  produce before  the Labour Court its rules under which it  was  said that such a claim was not permissible.  In its special leave petition  in this Court, the company, however, cited a  rule but  we  could take no notice of it as  no  application  for producing  the rules or proving them as additional  evidence

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was made and it was hardly fair or just to take notice of it it  such  a  late  stage  without  an  opportunity  to   the respondent  to  verify or controvert it.  Roy’s  reply  also indicates  that  the company’s case, that  the  respondent’s claim  for  compensation  for  leave  was  at  the  time  of preparing  his  statement  of account  adjusted  or  set-off against  its  claim  for the notice  period,  could  not  be correct.   For, if that was so, Roy would  have  straightway said so in his said reply, or in any event the company would have  led evidence of its accountant to that  effect  before the  Labour Court.  The rule of estoppel thus could  not  be invoked against the claim for compensation for leave period. We  next  examine the question whether  the  respondent  was precluded from making the rest of his claim.  The burden  of proving  the ingredients of s. 115 of the Evidence Act  lies on the party claiming estoppel.  The representation which is the basis for the rule must be clear and unambiguous and not indefinite,  upon which the party relying on it is  said  to have,  in  good  faith  and in belief  of  it,  acted.   The statement   of  account  prepared  at  the  time  when   the respondent  gave the said receipt appears to  indicate  that the benefit of the free telephone and newspapers and the car arowance were not taken into account and gratuity due to the respondent  was  calculated  on  the  amount  of  pay  being comprised  of basic wages and dearness allowance only.   But the inference that the respondent had given up his aforesaid claims  when  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-  195 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.  But when he  received  Karnik’s  said letter  he  decided that he could not rest  content  without jeopardizing  his interests on the mere oral  intimation  of acceptance  of his resignation, and therefore, went  to  the company’s office to secure a written acceptance when he  was told  that unless he passed a receipt in full settlement  of his claims, the letter of acceptance would not be issued  to him.    There  appear  to  be  two  good  reasons  why   the respondent’s  case  cannot be  easily  discarded.   Firstly, since his resignation was accepted with effect from  October 21, 1963 and even a letter to that effect was made ready and signed  by the company’s manager, it would  ordinarily  have been  communicated  to him.  If the company  had  any  claim against  him  or  if it wanted that his  account  should  be settled  before  the  letter was issued to  him,  surely  an intimation  to  that effect would have been  given  to  him. Secondly,  though  the  respondent had  put  on  record  his

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version as to how the said receipt was obtained from him  as early  as November 21, 1963, i.e., on the very day that  the said  receipt was secured from him, no refutation of any  of the allegations in that letter is to be found in Roy’s reply to  it  dated December 5, 1963 save  that  the  respondent’s claim  for compensation for leave period was not  admissible under the company’s rules.  It is significant that there was no  denial in that reply that he receipt was  obtained  from the  respondent  in the manner alleged in  the  said  letter dated  November  21,  1963.  Even at the  later  stages  the company  did  not examine its accountant before  the  Labour Court to refute the said allegations.  The statements of the respondent in that letter having thus remained unchallenged, the   Labour  Court  could  not  reject  them.    In   these circumstances  it becomes doubtful whether he could be  said to  have- been estopped from making the said claim-, on  the ground  only  of  the  said receipt,  if  that  receipt  was obtained,   as   alleged  by  him,  under  the   stress   of circumstances.  In this connection the fact that he kept the said cheque uncashed is not totally without relevance. 196 Under  S. 115 of the Evidence Act the  representation  which estops a person making it from acting contrary to it is  one on the belief of which the other person acts in a manner  he would  not  have done but for it and on believing it  to  be true.   Such  a  conclusion  is difficult  in  face  of  the uncontradicted  statements 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 his official work or that he could not use it  for personal  calls.  He was not called upon to keep an  account of  personal calls, the payment of which he would be  called upon  to  make.   Nor  was any  estimated  amount  for  such personal  calls either demanded or deducted from his  wages. The  newspapers  were subscribed by the respondent  but  the bills  for  them were paid by the company.  It was  not  the case of the company that the bills for them would be paid by it provided they were made use of by the respondent for  his work  as  a  special  correspondent.   As  regards  the  car allowance,  the car belonged to and stood registered in  his name  but  the company paid him a monthly allowance  of  Rs. 200/-.   There  was  nonevidence  whatsoever,  not  even   a suggestion  in  the  correspondence  that  that  amount  was estimated as being equivalent to the expenses of  conveyance which  the  respondent would incur in the discharge  of  his duties.  No such indication is to be found in the  company’s evidence,  nor was such a suggestion put to  the  respondent

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when he examined himself before the Labour Court. Since wages has not been defined in the Act, its meaning  is the  same as assigned to it in the Industrial Disputes  Act. Under  s. 2(rr) of that Act, ’wages’ means all  remuneration capable  of being expressed in terms of money, which  would, if the terms of  197 employment, expressed 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 food-grains   or  other  articles;  (iii)   any   travelling concession;  but does not include any bonus and other  items mentioned  therein  Mr. Ramamurthi’s argument was  that  the car allowance as. also the benefit of the free telephone and newspapers would fall under the first part of the definition as hey are remuneration capable of being expressed in  terms of  money.   The argument, however, cannot  be  accepted  as neither  of them can be said to be remuneration  payable  in respect  of  employment  or work done  in  such  employment. Neither  the  car  allowance nor the  benefit  of  the  free telephone  was  given to the respondent in  respect  of  his employment  work done in such employment 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)  of that Act.  It would, thereaee, fall under the inclusive part (1)  of  the  definition.   Likewise,  the  benefit  of  the telephone  and newspapers was allowed to the respondent  not merely for the use thereof in connection with his employment or duties connected with it.  Both the car allowance and the benefit of the free telephone and newspapers appear to  have been allowed to him to directly reduce the expenditure which would  otherwise have gone into his family budget  and  were therefore  items  relevant in fixation of fair  wages.  (see Hindustan  anyibiotics  Ltd.v.Workmen(1).  That  being   the position, the two [1967] 1.S.C.R. 652 at 674, 675. 198 items  could on the facts and circumstances of  the  present case be properly regarded as part of the respondent’s  wages and  -had  to  be taken into calculations  of  the  gratuity payable to him. These were the only points raised before us and since in our judgment none of them can be upheld the appeal must fail and

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has to be dismissed with costs. Y.P.        Appeal dismissed. 199