Case: The Management Of Express Newspapers Ltd Vs. B. Somayajulu And Others

1. The principal question which arisen in this appeal is whether the respondent B. Somayajulu is a working journalist under S. 2 (b) of the Working Journalists Industrial Disputes Act, 1955 (No. 1 of 1955) (hereinafter called the Act). That question arisen in this way. On the 19th February 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 the 20th of October, 1955 on which date his services were terminated. The Andhra Union of Working Journalists, Elluru, then took up the respondents 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 13th October, 1955 to 1st May, 1956 at Rs. 75/- per mensem and thereafter up to the date of reinstatement at the rate prescribed by the Wage Board for Working Journalists under the provisions of the Act.2. The appellant disputed this calm 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 there 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 S. 10 (1)(c) of 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.3. On the merits, the appellant urged that the respondent was not a working journalist under S. 2 (b) of the Act. In support of this plea the appellant averred 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. 6,000/- which was later raised to Rs. 7,000/-. According to the appellant, as such selling agent, the respondent was making on an average about Rs. 1,500/- 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 raised to Rs. 75/- p. m. 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 respondents principal avocation, and so, he could not claim the benefit of the status of a working journalist under S. 2 (b) of the Act.4. The Labour Court took the view that part time 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 respondents 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 S. 2 (b).5. 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 S. 2(b) 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 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 S. 2 (b)

Reasoning:
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 respondents 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 ground is disputed by the appellant and it is only if he establishes the fact that he is a working journalist that the 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. These would be no order as to costs.12. 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 S. 2(b) 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 past 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 professional. 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 different professions 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 the early years of his career received more money from journalistic work and satisfied the other tests prescribed by S. 2(b) , he may not be excluded from the definition merely because he is following another profession. To that extent, the provision of S. 2 (b) departs from a part of the recommendation made by the Press Commissions.13. In regard to part time employees who, as we have held, are not necessarily excluded from S. 2 (b), 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, Pat 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.