Supreme Court of India

Bennett Coleman & Co. (P) Ltd vs Punya Priya Das Gupta on 2 April, 1969

Equivalent citations: 1970 AIR 426, 1970 SCR (1) 181, AIR 1970 SUPREME COURT 426, 1970 LAB. I. C. 512, 1970 (1) SCR 181, (1970) 1 S C J 401, 1969 2 LABLJ 554, 19 FACLR 32, 37 FJR 498

Author:
J.M. Shelat

Bench:
J.M. Shelat
,
Vishishtha Bhargava
,
C.A. Vaidyialingam

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
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
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
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
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.
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
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
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
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
of s. 2 (rr) of the
Industrial Disputes Act, 1947
, both
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
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.
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.
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
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
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.
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
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.
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.
"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.
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.

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-
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
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-
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
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.
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
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
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.
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
has to be dismissed with costs.

Y.P. Appeal dismissed.