ivil Appeal No 202 of 1562
Appeal from the judgment and order dated March 10 1961 of the Andhra Pradesh High Court in Writ Petition No 677 of 1958
AV Viswanatha Sastri Jayaram and R Ganpathi lyer for the appellant  102 VK Krishna Menon M K Ramamurthi RK Garg section C Agarwal and DP Singh for the respondent No 1
K R Chaudhuri and PD Menon for respondent No 2 1963
April 18
The principal question which arises in this appeal is whether the respondent B Somayajulu is a working journalist under section 2b of the Working Journalists Industrial Disputes Act 1955 No 1 of 1955 hereinafter called the Act 
That question arises in this way
On February 19 1935 the respondent was appointed a Correspondent at Guntur by the appellant the management of the Express Newspapers Ltd He did that work continuously until October 20 1955 on which date his services were terminated
The Andhra Union of Working Journalists Elluru then took up the respondent s cause and alleged that his services had been terminated by the appellant without any justification and that as a working journalist he was entitled to reinstatement and compensation for the period during which he was not allowed to work by the appellant in consequence of the order passed by the appellant terminating his services
This dispute was referred by the Government of Andhra Pradesh for adjudication to the Labour Court Guntur
The question referred for adjudication was whether the termination of services of Mr B Somayajulu Correspondent of Indian Express Newspapers at Guntur was justified If not to what relief was he entitled Before the Labour Court the respondent claimed that in addition to reinstatement compensation should be awarded to him from October 13 1955 to May 1 1956 at Rs 75 per mensem and thereafter up to the 103 date of reinstatement at the rate prescribed by the Wage Board for Working Journalists under the provisions of the Act
The appellant disputed this claim on several grounds
It urged that the Labour Court had no jurisdiction to entertain the reference because the appointment of the respondent had been made at Madras the money due to him was sent from Madras and so the appropriate Government which could have made the reference was the Madras Government and not the Government of Andhra Pradesh
This argument has been rejected by the Labour Court
It was also urged that the reference was invalid since the order of reference in terms did not refer to section 10 1 c 01  the Industrial Disputes Act under which the power to refer had been exercised
The Labour Court repelled this contention as well
Then it was alleged that the dispute referred to the Labour Court for its adjudication was an individual dispute and had not been properly sponsored by any Union
The Labour Court was not impressed even by this plea
That is how the preliminary objections raised by the appellant were all rejected
On the merits the appellant urged that the respondent was not a working journalist under section 2b of the Act
In support of this plea the appellant averted that the respondent was a part time correspondent unattached to any particular newspaper establishment that a year or so later he was appointed as a selling agent of the publications of the appellant such as the Express Newspapers Dinamani and Andhra Pradesh at Guntur which assignment was given to him on his depositing Rs 6000which was later raised to Rs 7000 
According to the appellant as such selling agent the respondent was making on an average about Rs 1500 per mensem as commission whereas as a correspondent he was first paid on lineage basis and later an honorarium was fixed at Rs 50 which was subsequently 104 raised to Rs 75 pm
This latter amount was paid to him until his services were terminated
The appellant therefore contended that the avocation of a moffusil correspondent was not the respondent s principal avocation and so he could not claim the benefit of the status of a working journalist under section 2b of the Act
The Labour Court took the view that parttime workers were outside the purview of the Act
It also referred incidentally to the commission which the respondent received as a selling agent and made some observations to the effect that the payment to the respondent for his work as a correspondent was very much less than the commission which he received from the appellant as its selling agent
It is common ground that some time before the respondent s services as a correspondent were terminated his selling agency had also come to an end
From the award made by the Labour Court it is clear that the Labour Court decided the matter against the respondent solely on the ground that as a part time worker he could not be regarded as a working journalist and it made no finding on the question as to whether his principal avocation at the time when his services were terminated could be said to satisfy the test prescribed by the definition under section 2b
The award made by the Labour Court was challenged by the respondent before the Andhra Pradesh High Court by a writ petition under Articles 226 and 227 of the Constitution
The High Court has held that the respondent is a working journalist under section 2b and so it has set aside the award passed by the Labour Court
There is no specific direction issued by the High Court remanding the proceedings between the parties to the Labour Court for disposal on the merits in accordance with law but that clearly is the effect of the order
It is against this decision that the appellant has come to this Court with a 105 certificate issued by the said High Court and on behalf of the appellant the principal contention raised by Mr Sastri is that the High Court was in error in holding that the respondent was a working journalist under section 9b
The Act which applied to the proceedings between the parties was the Act No 1 of 1955
This Act came into force on March 12 1955
It consists of only 3 sections
Section 1 gave the title of the Act section 2 defined newspaper  and working journalist  by clauses a and b and section 3 made a general provision that the provisions of the applied to or in relation to working journalists as they applied to or in relation to workmen within the meaning of that Act
In other words the scheme of the Act was to define newspaper and working journalist and to make the provisions of the applicable to working journalists
This Act was followed by the working Journalists Condition of Service and Miscellaneous Provisions Act 1955 No 45 of 1955
This Act consists of 21 sections and makes some specific provisions applicable to working journalists different from the relevant provisions of the 
Section 2 f of this Act defines a working journalist
The definition prescribed by section 2 f of this Act is identical with the definition prescribed by section 2 b of the earlier Act and so for the purposes of the present appeal whatever we say about the scope and effect of the definition
of section 2 bin the earlier Act will apply to the definition prescribed by section 2 fof the latter
Section 3 of this latter Act makes the provisions of the  applicable to working
journalists
Sections 4 and 5 make special provisions in respect of retrenchment and gratuity
Section 6 prescribes the hours of work section 7 deals with problem of leave 106 section 8 provides for the constitution of a Wage Board section 9 deals with the fixation of wages section 10 requires  the publication of the decision of the Board and its commencement while section 11 deals with the powers and procedure of the Board
Section 12 makes the decision of the Board binding and section 13 gives power to the Government to fix interim rates of wages
These provisions are contained in Chapter II
Chapter III consists of 2 sections 14 and 15 and they make applicable to the newspaper employees the provisions of the and the Employees  Provident Funds Act 1952
Chapter IV contains miscellaneous provisions such as those relating to the recovery of money due from an employer under section 17 penalty under section 18 and indemnity under section 19
Section 20 confers the rule making power on the Central Government and section 21 repeals the earlier Act
In dealing with the question as to whether the respondent can be said to be a working journalist iris necessary to read the definition prescribed by section 2 b of the Act Working journalist  means a person whose principal avocation is that of a journalist and who is employed as such in or in relation to any establishment for the production or publication of a newspaper or in or in relation to any news agency or syndicate supplying material for publication in any newspaper and includes an editor a leader writer news editor subeditor feature writer copy tester reporter correspondent cartoonist news photographer and proof reader but does not include any such person who i is employed mainly in a managerial or administrative capacity or 107 ii being employed in a supervisory capacity exercises either by the nature of the duties attached to the office or by reason of the powers vested in him functions mainly of a managerial nature
 It is plain that the definition prescribed by s2 bconsists of two parts the first part provides what a working journalist means and the second part brings within its purview by an artificial extension certain specified categories of newspaper employees
It would be noticed that the first part provides for two conditions which must be satisfied by a journalist before he can be held to be a working journalist
The first condition is that he must be a journalist whose principal avocation is that of a journalist and the second condition is that he must be employed as such in or in relation to any establishment as there specified
The first question which arises for our decision is whether the two conditions thus prescribed by the first part of the definition govern the categories of newspaper employees included in the definition by the artificial extention made by the including clause
The High Court has taken the view that the categories of employees who are included in the definition by name need not satisfy the two conditions prescribed by the first part
The argument is that since a correspondent for instance has been named in the second clause the whole object of the legislature was to make him a working journalist without requiring him tO satisfy the two conditions prescribed by the first part
In our opinion this construction is plainly erroneous
The object of the second clause was to make it clear that the employees specified in that clause are journalists and nothing more
The word journalist has not been defined in the Act and the legislature seems to have thought that disputes may arise as to whether a particular newspaper employee was a journalist or not
There Can of course be no difficulty about an editor or 108 a leader writer or a news editor or a sub editor being regarded as a journalist but it was apparentIy apprehended that a difficulty may arise for instance in the case of a correspondent a proof reader a cartoonist a reporter a copy tester or a feature writer and so the legislature took the precaution of providing specifically that the employees enumerated in the latter clause are to be regarded as journalists for the purpose of the definition prescribed by section 9 b
The object of the artificial extension made by the including clause is not to dispense with the two main conditions prescribed by the definition before a journalist can be regarded as a working journalist
There can be no doubt that even the employees falling under the extended meaning must be employed as such
It is thus obvious that the second requirement prescribed by the first clause that the journalist must be employed as such in or in relation to any establishment for the production or publication of a newspaper as therein specified has to be satisfied by the employees falling under the latter clause because unless there was an employment by the newspaper establishment no relationship of employer and employee can arise and the journalists specified in the latter clause could not therefore claim the status of working journalist qua the employer who manages the journal in question
Once it is realised that the test of employment must govern the employees specified in the latter clause it would become clear that the High Court was in error in assuming that the extended artificial definition of the working journalist dispensed with both the conditions prescribed by the first part of the said definition
That is why we think the extension was made by the word includes only for the purpose of removing any doubt as to whether the persons specified in the said clause are journalists or not
What is true about the condition as to employment is equally true about the other condition that a journalist can be a working journalist only where it is 109 shown that journalism is his principal avocation
In other words the position is that whenever an employee working in the newspaper establishment claims the status of a working journalist he has to establish first that he is a journalist and then that journalism is his principal avocation and he has been employed as such journalist
In proving the fact that he is a journalist the employees specified in the latter clause need not prove anything more than this that they fall under one or the other category specified in the said clause
But that only proves their status as journalist they have still further to show that their principal avocation is that of a journalist and that they have been employed as such by the newspaper establishment in question
That takes us to the question as to what is meant by avocation The High Court thought that the dictionary meaning of the word avocation which showed that it meant a distraction or diversion from one s regular employment could be adopted in the context of section 2 b
In support of this view the High Court has cited a passage from Fowler in Modern English Usage
Fowler says Avocation originally a calling away an interruption a distraction was for some time commonly used as a synonym for vocation or calling with which it is properly in antithesis
This misuse is now less common and the word is generally used in the plural a person s avocations being the things he devotes time to his persuits or engagements in general the affairs he has to see to his vocation as such is neither excluded from nor necessarily included m his avocation Applying this
dictionary meaning of the word  avocation the High Court has held that even if the respondent has to satisfy the first condition prescribed by the first part of section 2 b it can be held that he satisfied the said test because the work of a correspondent in his case can be safely said to be his principal avocation in the sense of 110 distraction or diversion from his regular employment
In our Opinion in applying mechanically the dictionary meaning of the word avocationwithout due regard to the context of section 2 b the High Court has adopted a somewhat pedantic approach
One has merely to read the definition to realise the word avocation used in section 2 b cannot possibly mean a distraction or diversion from one s regular employment
On the contrary it plainly means one s vocation calling or profession
The plain idea underlying section 2 b is that if a person is doing the work say of a correspondent and at the same time is pursuing some other calling or profession say that of a lawyer it is only where his calling as a journalist can be said to be his principal calling that the status of a working journalist can be assigned to him
That being the plain object of section 2 b it would think be on the whole inappropriate to adopt the dictionary or the etymological meaning of the word avocation in construing section 2 b
We ought to add that Mr Menon who appeared for the respondent did not attempt to support the approach adopted by the High Court in dealing with this point
Therefore when a question arises as to whether a journalist can be said to be a working journalist it has to be shown that journalism of whatever kind contemplated by section 2 b is the principal avocation of the person claiming the status of a working journalist and that naturally would involve an enquiry as to the gains made by him by pursuing the career of a journalist as compared with the gains made by him by the pursuit of other callings or professions
It is obvious that this test will be merely academic and of no significance in the case of full time journalists because in such cases the obvious presumption would be that their full time employment is their principal avocation and no question of comparing their income from journalism with income from other sources can arise
In fact the status of such full time journalists as 111 working journalists will not be affected even if in some cases the income received by them from such employment may be found to be less than say for instance the income from their ancestral property
This test assumes significance and importance only in the case of journalists who are employed on parttime basis
Reverting to the second requirement of employment which we have already seen must obviously govern the employees failing under the latter part of section 2 b if they seek the status of working journalists it is plain that an employment must be proved because that alone will create a relationship of employer and employee between them and the newspaper establishment
Unless there is an employ ment there can be no conditions of service and there would be no scope for making any claim under the Act
Thus the requirement of employment postulates conditions of service agreed between the parties subject to which the relationship of master and servant comes into existence
In the context employment must necessarily postulate exclusive employment because a working journalist cannot serve two employers for that would be inconsistent with the benefits which he is entitled to claim from his employer under the Act
Take the benefit of retrenchment compensation or gratuity or hours of work or leave how is it possible for a journalist to claim these benefits from two or more employers The whole scheme of the Act by which the provisions of the have been made applicable to working journalists necessarily assumes the relationship of employer and employee and that must mean exclusive employment by the employer on terms and conditions of service agreed between the parties
Normally employment contemplated by section 2b would be full time employment but part time employment is not excluded from section 2b either
Most of the employees 112 falling under the first clause of section 2 b or even under the artificial extension prescribed by the later clause of section 2b would be full time employees
But it is theoretically possible that a news photographer for instance or a cartoonist may not necessarily be a full time employee
The modern trend of newspaper establishments appears to be to have on their rolls full time employees alone as working journalists but on a fair construction of section 2b we do not think it would be possible to hold that a part time employee who satisfies the test prescribed by section 2b can be excluded from its purview merely because his employment is part time
The position therefore is that the Labour Court was m error in making a finding that the respondent was not a working journalist on the ground that he was a part time employee whereas the High Court is in error in holding that the respondent is an employee because he has not to satisfy the test that journalism is his principal avocation
As we have held the respondent can be said to be a working journalist only if he satisfies the two tests prescribed by the first part of section 2b
The test that he should have been employed as a journalist would undoubtedly be satisfied because it is common ground that since 1935 he has been working as a correspondent of the appellant at Guntur and the payment which the appellant made to him by whatever name it was called was also regulated by an agreement between the parties in its pleadings the appellant has however disputed the fact that the respondent was exclusively employed
by it and so that is one question which still remains to be tried
The further question which has to be considered is whether the respondent satisfies the other test was his working as a correspondent his principal avocation at the relevant time The definition requires that the respondent must show that he was a working journalist at the time when his services were terminated 113 and that can be decided only on the evidence adduced by the parties
Unfortunately though the Labour Court has made certain observations on this point it has not considered all the evidence and has made no definite finding in that behalf
That was because it held that as a part time employee the respondent was outside section 2b
The High Court has no doubt purported to make a finding even on this ground in the alternative but in our opinion the High Court should not have adopted this course in dealing with a writ petition under Articles 226 and 227
Even in dealing with this question the High Court appears to have been impressed by the fact that in discharging his work as a correspondent the respondent must have devoted a large part of his time and it took the view that the test that journalism should be the principal avocation of the journalist implied a test as to how much time is spent in doing the work in question The time spent by a journalist in discharging his duties as such may no doubt be relevant but it cannot be decisive
What would be relevant material and decisive is the gain made by the part time journalist by pursuing the profession of journalism as compared to the gain made by him by pursuing other vocations or professions
In dealing with this aspect of the matter it may no doubt be relevant to bear in mind the fact that some months before his services as a correspondent were terminated the respondent s selling agency had come to an end and so the Labour Court may have to hold an enquiry into the question as to whether the respondent proves that the work of correspondent was his principal avocation at the relevant time in the light of the relevant facts
The onus to prove this issue as well as the issue as to whether he was in the exclusive employment of the appellant lies on the respondent because his claim that he is a working journalist on these grounds is disputed by the appellant and it is only if he establishes the fact that he is a working journalist that the 114 question as to determining the relief to which he is entitled may arise
We therefore allow the appeal set aside the order passed by the High Court and remand the case to the Labour Court with a direction that it should deal with the dispute between the parties in accordance with law in the light of this judgment
There would be no order as to costs
Before we part with this appeal however we would incidentally like to refer to the fact that the test of the principal avocation prescribed by section has presumably been adopted by the legislature from the recommendations made by the Press Commission in its report
In paragraph 505 dealing with the question of working journalists the Commission observed that it thought that only those whose professed avocation and the principal means of livelihood is journalism should be regarded as working journalists and it added that we have deliberately included the words professed avocation because we have come across cases where persons belonging to some other professions such as law medicine education have devoted part of their time to the supply of news to and writing articles for newspapers
It may be that in the case of some of them particularly during the earlier years of their professional career income from the practice of their own profession
But it would not on that account be correct to classify them as working journalists
so long as their professed avocation is other than journalism
 It would be noticed that the expression professed avocation has not been adopted by the legislature instead it has used the words principal avocation
That is why we are inclined to take the view that the time taken by a person in pursuing two differentprofessions may not be decisive what would be decisive is the income derived by him from the different professions respectively
It does appear that the legislature was inclined to take the view that if a person following the profession of law in 115 the early years of his career received more money from journalistic work and satisfied the other tests prescribed by section 2b he may not be excluded from the definition merely because he is following another profession
To that extent the provision of section 2b departs from a part of the recommendation made by the Press Commission
In regard to part time employees who as we have held are not necessarily excluded from section 2b the position appears to be that the report by the Wage Committee appointed by the Union Government under the provisions of Act 45 of 1955 shows that the Committee treated some part time employees as working journalists
In paragraph 103 the committee has observed that it had provided a regular scale or retainer for part time correspondents and it has added that the remuneration in accordance with that scale will be available to the part time correspondents only if in accordance with the definition in paragraph 23 Part II of its recommendations their principal avocation is journalism
The Committee noticed the fact that many of the part time correspondents employed by newspaper establishments would not fall within the definition if their principal avocation is something else and journalism is only a side business and it added that the problem of the said class of part time correspondents was not within the purview of its terms of reference and so it made no recommendations in regard to that class
Appeal allowed
Case remanded


Summary:
The reapondent s services as a correspondent at Guntur under the appellant were terminated
The Andhra Union of Working Journalists Elluru took up the respondent s cause and alleged that his services had been terminated by the appellant without any justification and that as a working journalist he was entitled to reinstatement and compensation
the dispute was referred to the Labour Court Gunrut by the Government of Andhra Pradesh
The appellant raised preliminary objections before the Labour Court which were all rejected
On the merits the appellant contended that the avocation of a moffusil correspondent was not the respondent s principal avocation and so he could not claim the benefit of the status of a working journalist under section 2 b of the Act
The Labour Court decided the matter against the respondent solely on the ground that as a part time worker he could not be regarded as a working journalist and it made no finding on the question as to whether his principal avocation at the time when his services were terminated could be said to satisfy the teat prescribed by the definition under section 2 b of the Act
The award was challenged by the respondent by a writ petition before the High Court of Andhra Pradesh
The High Court held that the respondent was a working journalist under section 2 b of the Act and so it set aside the award
On appeal by certificate the appellant s principal contention in this Court was that the High Court was in error in holding that the respondent was a working journalist under section 2 b of the Act
Held that whenever an employee working in a newspaper establishment claims the status of a working journalist 101 he has to establish first that he is a journalist and then that journalism is his principal avocation and he has been employed as such journalist
In proving the fact that he is a journalist the employees specified in the latter clause of section 2 b of the Act need not prove anything more than this that they fail under one or the other category specified in the said clause
But that only proves their status as journalist they have still further to show that their principal avocation is that of a journalist and that they have been employed as such by the newspaper establishment in question
The object of the artificial extention made by the including clause is not to dispense with the two main conditions prescribed by the definition before a journalist can be regarded as a working journalist
Having regard to the context of section 2 b it would be inappropriate to adopt the dictionary or the etymological meaning of the word avocation in construing s 2 bof the Act
Held further that normally employment contemplated by 2 b would be full time employment but part time employment is not excluded from section 2 b either
On a fair construction of section 2 b it would be impossible to hold that a part time employee who satisfies the test prescribed by section 2 b can be excluded from its purview merely because his employment is part time
In the present case the onus to prove the issue as to whether the work of a correspondent was his principal avocation at the relevant time in the light of the relevant facts
as well as the issue as to whether he was in the exclusive employment of the appellant lies on the respondent and it is only if he establishes the fact that he is a working journalist the question as to determining the relief to which he is entitled may arise