# BENNE1T COLEMAN & CO. (P) LTD v. PUNYA PRIYA DAS GUPTA

- **Citation:** [1970] 1 S.C.R. 181
- **Court:** Supreme Court of India
- **Decided:** 1969-04-02
- **Case number:** ; Civil Appeal No. 1702 of 1966
- **Bench:** J.M. Shblat, V. Bhargava, C. A. Vaidialingam
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/benne1t-coleman-co-p-ltd-v-punya-priya-das-gupta-4739
- **Pages:** 18

## Headnote

Working Journalists (Conditions of Service) and .\ifiscellaneous Pro_ ..
visions Act, (45 of 1955), ss. 2(1),
(rr) 5 and 17-Ex..employee, 1/
,entitled to maintain application for gratuity-Wages-Car allowance and
.benefi£ of free telephone and newspapers-If allowances includible in
wages.
Evidence Act (1 of 1872), s. 115-Scope of.
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 allo\vance . .
On October 8, he tendered his resignation which was aecepted on October
21, with effect from the latter date. On October 23, he accepted employment with another Newspaper and thereafter claimed rompensation 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 acc"eptance of other employment was in contravention of his conditions of service..
On November 21, therefore, the -respon~
dent 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 circumstanoos in which he received
the cheque and
accep!Jnce of his resignation.
According to him he
wanted t<> specify th~1he full and final settlement did not include compensation for one month's leave; and that the acceptance of 'his letter of resig~
nation. was withheld and given to him only afjer 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 niatter 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 an.cl (b) one month's wages
as compematien 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 : (I) 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
t1!e Working Journalists (Conditions of Service) and Miscellaneous ProVlSion Act, 1955; (2) Whether the respondent, having sigll!ld the receipt in
. full settlement of his claim was estopped from making claims in respect
of his leave for o,ne month, the car allowanoe, ~nd 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
SUPREME COURT REPORTS
[ 1970] l s.c.R.
included as part of his wagea for calculatin& gratuity,
HELD : {I) Since the definition of 'an employee' in the lndllllrial
Dilputes Act, 1947 and the C.P. & Berar Industrial Disputes Settlement
Act (23 of 1947), were, in languaae, similar to the one used in Workin&
Journalist a (Conditions of Service) and Miscellaneous Provisions Act, the
deciaion in Wuttrn India Automobile As.scciation v. /nd1Utrlal TribuMI,
(1949] F.C.R. 321

## Text

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BENNE1T COLEMAN & CO. (P) LTD.
v.
PUNYA PRIYA DAS GUPTA
April 2, 1969
181
(J.M. SHBLAT, V. BHARGAVA AND C. A. VAIDIALINGAM, JJ.J
Working Journalists (Conditions of Service) and .\ifiscellaneous Pro_ ..
visions Act, (45 of 1955), ss. 2(1),
(rr) 5 and 17-Ex..employee, 1/
,entitled to maintain application for gratuity-Wages-Car allowance and
.benefi£ of free telephone and newspapers-If allowances includible in
wages.
Evidence Act (1 of 1872), s. 115-Scope of.
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 allo\vance . .
On October 8, he tendered his resignation which was aecepted on October
21, with effect from the latter date. On October 23, he accepted employment with another Newspaper and thereafter claimed rompensation 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 acc"eptance of other employment was in contravention of his conditions of service..
On November 21, therefore, the -respon~
dent 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 circumstanoos in which he received
the cheque and
accep!Jnce of his resignation.
According to him he
wanted t<> specify th~1he full and final settlement did not include compensation for one month's leave; and that the acceptance of 'his letter of resig~
nation. was withheld and given to him only afjer 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 niatter 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 an.cl (b) one month's wages
as compematien 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 : (I) 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
t1!e Working Journalists (Conditions of Service) and Miscellaneous ProVlSion Act, 1955; (2) Whether the respondent, having sigll!ld the receipt in
. full settlement of his claim was estopped from making claims in respect
of his leave for o,ne month, the car allowanoe, ~nd 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
SUPREME COURT REPORTS
[ 1970] l s.c.R.
included as part of his wagea for calculatin& gratuity,
HELD : {I) Since the definition of 'an employee' in the lndllllrial
Dilputes Act, 1947 and the C.P. & Berar Industrial Disputes Settlement
Act (23 of 1947), were, in languaae, similar to the one used in Workin&
Journalist a (Conditions of Service) and Miscellaneous Provisions Act, the
deciaion in Wuttrn India Automobile As.scciation v. /nd1Utrlal TribuMI,
(1949] F.C.R. 321 and
Central Provincu Transport Servic<S Ltd.
v.
Raghunath, (1956] S.C.R. 956, interpretin& the word 'employee' in those
two Acu, would be authorities for the view that an ex-employee would also
be a working journalisL There ii no conflict of opinion between tbeae
two decisions and the tlecision in Dharangadhara Chemical Works Ltd. v.
State of Saurashtra, (1957] S.C.R. 152 and Workmen v. The Manugement
of Dimokuchi Tea Estate, [1958] S.C.R. 1156.
Even asaumina there is
some conllict the definitions of a 'newspaper employee' and 'workin& journa·
lilt' beina aubject to a context to the contrary, tho benefit of ss. 5 and 17
of the Workina Journalists Act is available to an ex-employee, thouah ho
baa ceaaed to be in the employme.nt of the particular newspaper establish·
me.nt at the time of bis application for gratuity. The only requirement is
that the claim in dispute must be one which bas arilen or accrued whilst
the claimant was in the employment of the person apinst whom it is
made. 'Ib«efore, the respondent was entitled to maintain his application.
(189 E.F; 192 B-HJ
Dharangadhara Chemical Works Ltd. v. State of Saurashtra, (1957]
S.C.R.. 152 and Workmen v. The Management of DlmaJ:uchl Tea Estate,
(1958] S.C.R. 1156, explain.ed.
(2) (a) Assumina the technical rule of estoppel set out in s. 115 of
the Evidence Act is applicable to indusrrial adjudication, the rule could not
be invoked aaainst 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 aave it up and that the company's case was also not that
the respondent gave up the claim, but that the appellant company's 1ules
did not permit such compensation.
The appellant did not produce any
auch rules before the Labour Court and a belated reference to any such
rule in this Coun could not be permitted without opportunity Ill the res·
pondent to controvert it. [193 D; 194 E]
(b) Under s. 115 of the Evidence Act, the
representation which
atops a penoo. making it from acting contrary to it is ooe 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 resianation unless he signed the receipt in full
oettlement of all his claims. When he received the letter dalled November
19, the respondent could not rest content without jeopardizina his interests
on the mere oral intimation of acceptance of his resignation and so he
weDt to the appellant's office to accure the written acceptance.
He was
then told that it would not be aiven unless he passed a receipt in full senlement of his claim and he siancd the receipt under the stress of circumstances.
1195 H-196 BJ
(3) Under s. 2(rr) of the Act, 'wages' means all remuneration capable
Of bein& cxpreosed in terms of money payable to a workman in respect of
bis employment or work done in such employment and includes, inter alia,
such allowance aa the workmen is for the time being entitled to.
The
car allowance and benefit of free telephone anJ newspaper cannot be said
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BENNETT COLEMAN & co. v. P. P, DAS GUPTA (Shela/, J.)
183
to be remuneration payable in respect of employment or work liJne in
such employment. Neither the car allowance nor the benefit of the telephone was given to th.e respondent in respect of his employment 01 work
done in such employment as they were not restricted to the employment
or the Work done by him as spe<:ial correspondent. He was entitled to
them whether he used them or not in connection with bis employment or
his' work as a special correspondent. They Would however fall under the
iaclusive 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-HJ
Hindustan Antibiotics Ltd. v. Workmen, [1967) 1 S.C.R. 652 674-675,
followed.
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. Pai, 0. C. MaJhur and J.B. Dadachanji, for the appellant
M. K. Ramamurthi, Shyamala Pappu, J. Rll!11amurthi, M.
Mohary, 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 remunera\ion 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, new~papers. On October 8, 1963, while he was on leave,
the respondent tendered his resignation.
On October 14, 1963
P. K. 'Ro:it, the company's General Manager, informed the respondent that his letter of October '8, 1963 could not be considered
SUPREME COURT REPORTS
[1970] I S.C.R.
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 effec! .
from that date and thereupon the· respondent joined the Indian
Express on October 23, 1963. Meanwhile, one V. G. Karni.k, on
behalf of the company, informed the respondent by his letter
dated November 19, 1963 that in the absence of a proper no:icc
by him there could be no termination of employment and that
"your reported acceptance of another employment in the circumstances 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 resignation was amicably settled and that it was thereafter that he joined
the Indian bitpress, (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 accouul3
and collect the dues payable to him as also the letter of acceptance
of his resignation but he was told tnat the accounts were not yet
ready and he was not then paid even his salary and deame;s
allowance due upto October 20, 1963 although "I had 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. 2810.4 7 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 state-
.ment 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
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BENNETT COLEMAN & CO. V. P, P; DAS GUPTA (She/at, J,) 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 company's
rules.
The respondent thereafter applied to the Delhi Administration
·and the latter, as aforesaid, referred his claim to the Labour Court
for adjuei~~tion. 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 allowa!'ce 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. 1,44 7 as being his monthly wage,, Rs. L44 7 us 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 wage5 payable to
the respondent either as due to him or for calculating grntuity.
Before the Labour Court the company did not dispute the value
of the benefit of the free telephone and n~wspapers 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.
TI1e
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 l\lld held that the car allowance had to be
taken as part of the wages. The Labour Cou:i also held that the
car allowance and the free telephone and newspapers were an
allowance and an amenity respectively falling under the definition
Ll2SupCI/69-l3
.
186
SUPREME COURT !lEPORTS
[ 1970] I S.C.R.
of s. 2 ( rr) of the Industrial Disputes Act, 194 7, 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. Ilut the company's plea was, firstly, that its rures
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 Coun 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 Coun 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
Coun held that the respondent was entitled to claim car allowance
at Rs. 200 per month, R>. 50 per month for telephone and newspapers 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 5t 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 calcula·
tions 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 cm·
ployee "means any working journalist, and includes any other
person employed to do any work in, or in relation to, any news·
paper 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 (~) provides that all word;
and expressions used but not defined in this Act and defined in
t~e Jndus!rial Disputes A.ct, 1947 shall have the meanings respcc-
!Ively assigned to them m 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
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BBNNBTT COLl!MAN a: CO. y, P, P. DAS GtJPTA (Shflat, /,) 187
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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, 194 7 before
the Amending Act 36 of 1956 was passed, a dispute as to reB
instatement 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 non-employment", 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
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to an existing non-employment. After giving certain examples to
illustrate the four stages when a dispute could arise, the Court at
page 3 3 0 concluded thus :
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''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 meauing 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(10) 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 relatiilg · 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 oi reinstatement was an industrial dispute
but the controVllI'Sy was as to whether it was an industrial dispute
as defined bys. 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
{I) [1949] F.C.R. 321.
(2) {1956] S.C.R. 956.
18 8
SUPREME COURT REPORTS
[1970] 1 S.C.R.
as the intention of the legislature could not be to include in the
A
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 thoSc who were discharged from
service on account of the dispute. The Court dismissed this contention following the decision in Western India Automobile Association(') and held 1hat a dispule between an employer and an
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employee regarding the/latter's ·Jismissal and reinstatement would
be an industrial disptHe within s. 2 ( 12) of that Act, that the inclusive clause in s. 2(10) was not an indication that dismissed employees would not fall within the meaning of 'employee' or that
the question of th~ir reinstatement would not be an industrial dispute and that that clause was inserted ex abunda111i cautelc to c
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 dcdsions
would be au.norities for the view that an ex-employee would for
the purposes of the present controwrsy be a working journalist.
D
It was, however, argued that !hough these two decisions considered 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. Sta/1' o.f
Saurashtra(') and Workmen v. The Management of Dima/.:11chi
Tea Estate('). In D/1ara11gadhara Chemical Works Ltd..
the
appellants were lessees holding a licence for manufac:uring 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
a11arias 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 expcn~s. Generally the same plot
would be ~llo:ted to .the same agaria every year, but if the plot
w~s extensive m area 11 would be allotted to two agarias in partnership.
After the manufacture of salt these agarias were paid at
the rate of -/516 per mnund.
Accounts WOl;ld be settled at the
end of each season and the agaria.1· would be paid the balance due
to them.
These agarias worked together with the members of
!I) [1949) F.CR. 321.
0) [1958) S.CR. 1156.
(2) [1957) S.C'.R. m.
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BENNETT COLEMAN & co~ v. P. P. DAS GUPTA (She/at,/.) 18~
their families and were also free to engage extra labour on their
own account, the appellant company having no concern therewi!h·
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 ~olidays and
the agarias were free to go out of the factory after makmg arrange·
ments 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,
alter 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 work·
man 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 tnus 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 workman" 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 Parlier decisions which are specific decisions on the defini-
(1) [1956] S.C.R. 956.
190
SUPREME COURT REPORTS
[1970] l S.C.R.
tion of "a workman" in the Act.
In the case of Workmen of
Dimakuchi Tea Estate('), the dispute related to the dismissal of
one Dr. K. P. Bannerjee. The management in the written 'tatement pleaded that Dr. Bannerjee was not a workman as defined
by s. 2(s) of the Industrial Disputes Act, that therefore his dis-
~
could not be an industrial dispute as defined in s. 2(k) and
the Tribunal could have no jurisdiction to d•cide 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 disput~ 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.
Coun 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 Assoclation(2 ) and in the Central Provinces Transport Services Ltd.('). The observations relied on by
counsel are as follows :
(I) [1958) S.C.R. 1156.
(2) [1949) F.C.R. 321.
(3) [1956] S.C.R. 956.
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BENNETT COLEMAN & co. v. P. P. DAS GUPTA (She/at, J.) 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 "anJl person"
in the third part of the de.finition 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 dis-.
pute. 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 defi.
nition of the workman stood before the 1956 amendment th'!rf>
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 persqn in whose employment, or non-employment, or tern:s 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(') and Central Provinces Transport Services Ltd.(2 ),
the learned Judge clearly stated at page 117 6 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('), "to elucidate a
different problem", could not be taken as detenninative of a problem which was not before the Court in that case. The problem
in each of these decisions being difl'ere'1t and in view particularly
.
'
(I) 11949] F.C.R, 311.
(2) [l 956: S.C.R. 956.
192
SUPREME COURT REPORTS
[1970] 1 S.C.R.
of the fact that the case proceeded on the assumption that
Dr. Banerje~ 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 tt,Jse 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 bys. 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 pment 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 [ndustrial Disputes Act, 1947, the Minimum
Wages Act, 1948, the C.P. & Berar Industrial Disputes Settlement Act, 194 7 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. Sec·
tion 5 of the Act, which confers the right to gratuity, itself contemplates in cl. ( d) of sub-s. I 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 (I) pro·
vides 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 autho·
rity for the recovery thereof.
Similar provisions are also to be
found in s. 33C( I) of the Industrial Disputes Act. Claims .under
that section include those for compensation in cases of retrenchment, transfer of an undertaking and closure under Ch. VA of that
Act, all of which would necessarily be claims arising after tennination of service and the claimant would obviously be one in all those
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 arter the tcnnination 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
pe1111it 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 emc
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BENNETT COLEMAN & CO. v. P. P. DAS GUPTA (She/at,/.) 19:J
ployee" pnd "working journalist" being subject to a context t0o
the contrary, the benefit of ss. 5 and 17 is available to an exemployee though he has ceased to be in the employment of that
particular newspaper establishment at the time of bis applicatiollt
for gratuity. The contention that the respondent was not entitled
to maintain his application as he was not in the service of the
appellant company on the date of his claim before the Labonr
Court cannot be sustained.
The next contention was that the respondent, having signed
the said receipt in full settlement of all his claims and having
thereby induced the company to accept his resignation ·without
insisting on a full month's notice, was estopped from making
claims in respect of hls leave for one month, the car allowance
and the free telephone and newspapers and for including them as
part of his wages for calculating gratuity.
Certain decisions of
this Court seem, however, to have expressed doubt whether technical pleas such as acquiescence, estoppel and waiver suitably apply
to industrial adjudication. But assuming that the rule of estoppel,
as· incorporated in s. 115 of the Evidence Act, were to apply, the·
foundation of that rule is that it is inequitable and unjust to a
person, that if another person by a representation induces him toact as he would not have otherwise acted, the person who made ·
the representation should he allowed to deny the effect of his
former statement to the loss and injury of thd person who has acted'
on it. [see Sarat v. Gopal(') ]. This rule is one of evidence only
and does not create any substantive right or confer any cause of
action on the other. It comes into operation if a statement as to
the existence of a fact has been made with the intention that the
other person to whom it is made should believe and act on it and
that that another person does in fact act upon the faith of it. The
question whether the respondent is estopped from making his said
claims may be looked at firstly, as regards his leave period, and
secondly, as regards his claims for car allowance and free telephone
and newspapers. As to the claim for leave due to him, the record
of the case makes it c:ear that he had been making that Claim
from the very outset. Though the receipt given by him mentions
that it was given in full settlement of all his claims, the respondent on that very day in his letter Ex. W / 4 to the said Roy protested that though he wanted to clarify in that receipt that it was
in full settlement of his salary and dearness allowance for the 20'
days of October 1963 and gratuity only, he was not allowed to
make that reservation although he had already preferred his claim
for compensation for one month's leave due to him.
We must
note that though this letter went in as Ex. W / 4 before the Labour
Court, the company led no evidence to controvert the statemenl8'
(I) l.L.R. 19 I.A. 203.
194
SUPREME COURT REPORTS
[1970] 1 S.C.R
.made therein. The reason for not doing so seems to be that thi:
respondent had made the claim before one Mitra, the accountant
in the Delhi office, and that claim was a matter ol. dispute.
This
position emerges from Roy's reply dated December 5, 1963 to lhe
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 givi:n 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 waivi:d his claim for leave period or that
the company did any act on any such representation which other-
·wise it would not have done.
In spite of the Jetter Ex.