Management of Indian Express (Madurai) (Pvt.) Ltd.Vs. J.M. Jeswant and Ors.
R.P. Sethi, C.J. and M.B. Viswanath, J. 1. The important question of law requiring adjudication in this appeal is as to whether a person who is admittedly a Journalist governed by the Working Journalists and Other Newspaper Employees (Conditions of Service) and Miscellaneous Provisions Act, 1955 (hereinafter called the Journalists Act) is entitled to the payment of gratuity under the general provisions of the Payment of Gratuity Act, 1972 (hereinafter called the Gratuity Act). The Controlling Authority and the Appellate Authority under the Gratuity Act have held respondent No. 1 to be eligible to claim gratuity under the Gratuity Act. The orders passed by the aforesaid two authorities have been confirmed by the learned Single Judge vide the order impugned in this appeal. It has been contended on behalf of the appellant management that the orders passed by the authorities under the Gratuity Act and that of the learned Single Judge being contrary to law are liable to be quashed. It is contended that as the respondent No. 1 was not at all entitled to claim gratuity under the Journalists Act, he could not be given the benefit of its payment under the Gratuity Act on the ground of the provisions being more favourable in terms of Section 16 of the Journalists Act. The eligibility and question of entitlement are stated to be distinct and distinguishable. The question of entitlement to more favourable benefits could be considered only once a person was held otherwise eligible to the payment of gratuity under the law applicable to him.
2. In order to appreciate the rival contentions of the learned counsel for the parties, it is necessary to have a resume of the facts leading to the filing of the present appeal. The respondent No. 1 who was Sub-Editor in the establishment of the appellant establishment submitted his resignation and claimed gratuity under the Journalists Act vide his letter dated March 14, 1986. The payment of the gratuity was denied on the ground that the working journalist who resigns his job in an establishment on account other than his conscience, was not entitled to the gratuity unless he has completed 10 years of service. As the respondent has admittedly worked only a litter over 7 years with the management, he could not claim the grant of gratuity under the provisions of the Act applicable in his case. On receipt of such reply, the respondent No. 1 vide his letter dated April 14, 1986 preferred his claim under the Gratuity Act as according to him the said Act had an overriding effect on all other enactments dealing with the payment of gratuity. This claim of the respondent was also not accepted by the appellant management. Not satisfied with the reply of the management, the respondent filed an application on June 3, 1986 under Section 7 of the Gratuity Act which was resisted by the management on the ground that being a working Journalist, the respondent could not claim the benefits of gratuity under the Gratuity Act. The Controlling Authority under the Gratuity Act while disposing the application No. 48/866-B 3 (Annexure-C) held the respondent entitled to the grant of gratuity amounting to Rs. 6075.70 ps. vide its order dated July 20, 1986. The management preferred the appeal which was rejected by the Appellate Authority vide its order Annexure-A dated October 31, 1986. The writ petition filed by the management was also dismissed as already noticed.
3. Relying upon Section 16 of the Journalists Act, the Controlling Authority, Appellate Authority and the learned Single Judge held respondent No. 1 entitled to the grant of gratuity under the Gratuity Act. Section 16 of the Working Journalists Act provides that:-
"16. Effect of laws and agreements inconsistent with this Act - (I) The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law or in the terms of any award, agreement or contract of service, whether made before or after the commencement of this Act: Provided that where under any such award, agreement, contract of service or otherwise, a newspaper employee is entitled to benefits in respect of any matter which are more favourable to him than those to which he would be entitled under this Act, the newspaper employee shall continue to be entitled to the more favourable benefits in respect of that matter, notwithstanding that he receives benefits in respect of other matters under this Act.
(2) Nothing contained in this Act shall be construed to preclude any newspaper employee from entering into an agreement with an employer for granting him rights or privileges in respect of any matter which are more favourable to him than those to which he would be entitled under this Act."
In this regard while agreeing with the findings of the Controlling Authority the Appellate Authority held:-
"Since there is inconsistency between Working Journalists Act and Payment of Gratuity Act regarding payment of gratuity to working journalists, the Appellant contends that provisions of Payment of Gratuity Act are not applicable. There is no award, agreement or contract or otherwise which provides for better benefits and as such the employee cannot claim gratuity under proviso of Section 16 of Working Journalists Act. The respondent employee on the other hand contends that Payment of Gratuity Act is applicable to the newspaper establishment, as it is an establishment within the meaning of any law for the time being in force as laid down under Section 1(3)(b). of Payment of Gratuity Act. A newspaper establishment is an 'establishment' as defined under Sub-section (d) of Section 2 of Working Journalists Act and there is no specific prohibition from the applicability of the Act either under Working Journalists Act or under Payment of Gratuity Act and therefore, the Payment of Gratuity Act is applicable to newspaper establishments, including the establishment of the appellant. In the case between State of Punjab v. Labour Court Jallundar and Ors., (1981-I-LLJ-354), the Supreme Court has held that the usage "any law for the time being in force in relation to shops and establishments in a State" was taken to mean any law and not merely Shops and Establishments Act. In this case, the newspaper establishment is an industrial establishment not only under Working Journalists Act but also under Industrial Disputes Act etc. Hence, the provisions of Payment of Gratuity Act are undoubtedly applicable to a newspaper establishment. The appellant also admits that Payment of Gratuity Act is applicable to the establishment of the Appellant in respect of all non-working journalists and they are being paid gratuity as per the provisions of Payment of Gratuity Act The working journalists are no doubt, entitled for gratuity under the provisions of Working Journalists Act provided they have put in 10 years of service and not resigned on the ground of conscience. Section 16(1) of the said Act provides that the provisions of the Act shall have effect notwithstanding anything inconsistent therewith contained in any other law. On a perusal of various provisions of the Act, it would be seen that there is no inconsistency between these two Acts but the Payment of Gratuity provides for better benefits such as payment of gratuity for those employees who have resigned after putting in 5 years of service. Payment of Gratuity Act is indeed a special law and enacted in 1972 after passing the Working Journalists Act. Since there is no inconsistency and provides for better benefits, the later special Act shall prevail and I concur with the decision of the CA that the provisions of the Payment of Gratuity Act are applicable to the Appellant-establishment and to employees working therein."
4. It is not disputed that the Gratuity Act is a later enactment dealing generally with the payment of gratuity to employees engaged in factories, mines, oil fields, plantations, ports, railway companies, shops or other establishments. It is also not disputed that a person like respondent No. 1 can be held to mean an employee within the meaning of Section 2(e) of the said Act and the appellant as an establishment to which the Act would be deemed applicable unless specifically excluded. It is equally true that the respondent is a working journalist within the meaning of Section 2(f) and the appellant the newspaper establishment within the meaning of Section 2(d) of the Journalists Act. Under Sub-section (b) of Section 5(1) of the said Act the respondent was admittedly not entitled to the payment of gratuity as admittedly he had not rendered 10 years continuous service before he resigned on the ground other than the ground of conscience. He would be however entitled to the grant of gratuity if he is held to be governed by the provisions of Gratuity Act. Section 14 of the Gratuity Act provides that the provisions of the said Act or the Rules made thereunder shall have effect notwithstanding anything inconsistent therewith contained in any enactment other than the said Act or in any instrument or contract having effect by virtue of any enactment other than the Gratuity Act. Section 16 of the Journalists Act, as noted earlier provides that the provisions of the aforesaid Act shall be effective notwithstanding anything inconsistent therewith contained in any other law or in terms of any award, agreement or contract of service, whether made before or after commencement of this Act (Italicised for emphasis). The proviso of the aforesaid section however makes an exception that where under any such award, agreement, contract of service or otherwise a newspaper employee is entitled to benefits which are more favourable to him than those to which he is entitled under the Journalists Act, a newspaper employee shall continue to be entitled to the more favourable benefits in respect of that matter, notwithstanding that he receives benefits in respect of other matters under the Journalists Act. The Legislature while enacting the Gratuity Act is presumed to be aware of the provisions of Section 16 of the Journalists Act which had made exception in favour of the working journalists even with respect to the laws which were enacted and made enforceable prior to the commencement of the Gratuity Act. The plea raised on behalf of the respondent journalist is that as vide proviso to Section 16 he feels that he was entitled to more favourable benefits under the Gratuity Act, he could not be deprived the claim of payment of gratuity under the Journalists Act. A comparative study of the provisions of the aforesaid two enactments would show that generally the provisions of the Journalists Act are more favourable except the entitlement of a working journalist to the grant of gratuity before the expiry of the period of 10 years of continuous service.
5. A comparative study of the two enactments would show that under the Journalists Act a minimum of only three years continuous service is required for eligibility to gratuity in cases of superannuation, retirement or termination under Section 5(1)(a), whereas under the Gratuity Act the eligibility period prescribed is of 5 years under Section 4(1) of the said Act. In case of voluntary resignation on the ground of conscience, 3 years continuous service is sufficient to claim gratuity under the Journalists Act, whereas under the aforesaid circumstances the periods prescribed under the Gratuity Act is of 5 years continuous service. There is no ceiling on the total amount of gratuity in cases of retirement, superannuation, termination or resignation on the ground of conscience under the Journalists Act and a ceiling of 12 1/2 months average pay has been fixed only in cases of resignation otherwise than on grounds of conscience. However under the Gratuity Act the ceiling of total amount of gratuity payable in all cases has been fixed at Rs. 1 lakh under Section 4(3) of the said Act. No minimum number of working journalists in an establishment is prescribed for being entitled to gratuity whereas a minimum of 10 persons is required to be employed in the establishment in order to claim the benefit of gratuity under the Gratuity Act.
6. Relying upon the proviso to Section 16 of the Journalists Act, the learned counsel appearing for the respondent No. 1 has submitted that as the benefits provided under the Gratuity Act are more favourable, his client was entitled to the grant of the gratuity as was rightly done by the Controlling Officer and confirmed by the Appellate Authority and the learned Single Judge. The counsel for the appellant has however submitted that a joint reading of Sub-section 1 and the proviso would indicate that the benefits contemplated under the proviso relate to only award, agreement, contract of service and not under any other law. Such a bald submission made on behalf of the appellants cannot be accepted in view of the word, "otherwise" used in the proviso which apparently includes other circumstances not referred to in the proviso and the word is wide enough to include the benefits arising out of or under the provision of a law. However, the real question in controversy is not the applicability of the proviso for determining the more favourable benefits but in fact is a question of eligibility to such benefits. If a person is held entitled to the grant to benefits, he may be entitled to claim more favourable benefits under any of the Acts. The question of the grant of favourable benefits has to be distinct from the right and eligibility or entitlement to the grant of benefits. In order to appreciate as to whether the respondent was entitled to the grant of benefits under the grant of benefits of gratuity, reference has to be made to the law applicable in the case and the reliance for such entitlement cannot be placed upon the proviso to Sub-section 1 of Section 16. The authorities under the Gratuity Act and the learned Single Judge appear to have completely ignored this important aspect of the matter while granting relief to the respondent.
7. Relying upon the judgment of the Apex Court in Ajay Kumar v. Union of India, the learned counsel for the respondent No. 1 has submitted that applying the principle of "Generalia specialibus non derogant", it has to be held that a prior special law would yield to a later general law, if either of the two deal with the same subject. According to him both the enactments deal with the grant of gratuity of gratuity and the Gratuity Act being general law, the Journalists Act has to yield and the respondent No. 1 held entitled to the grant of gratuity under the later general enactment. The Apex Court in that case had held that the principle relied upon by the respondent would be applicable only if the following two conditions are satisfied: -
(i) The two are inconsistent with each other.
(ii) There is some express reference in the later to the earlier enactment.
It further held which the learned counsel has failed to notice that the Apex Court specifically provided that the earlier special law can be altered, abrogated or repealed by later general law only by an express provision. Section 14 of the Gratuity Act, as relied upon by the respondent No. 1, does not specifically and expressly over-ride the provisions of the earlier Act. The later general law can be held to over-ride prior special law only in cases where it is established that two are so repugnant to each other that they cannot co-exist even though no express provision in that behalf is found in the general law. The provision of both the enactments deal with different subjects as noticed earlier. The Working Journalists Act is not confined only to the grant of gratuity, whereas the later general law deals with that aspect of the service conditions of an employee. The Journalists Act deals with and prescribes special provisions in respect of certain cases of retrenchment, hours of work and the persons governed by the Acts, their entitlement to get the interim wages fixed. In MAXWELL on the INTERPRETATION OF STATUTES, Eleventh Edition it was held that a general later law does not abrogate an earlier special one by mere application. In Maharaja Pratap Singh Bahadur v. Thakur Manmohan Dey, it was held that general law does not abrogate earlier special law by mere implication. In Justiniano Augusta De Piedade Barreto v. Antonio Vicente Da Fonseca, the Supreme Court observed that "law which is essentially general in nature may contain special provisions on certain matters and in respect of these matters it would be classified as a special law. Therefore unless the special law is abrogated by express repeal or by making provisions which are wholly inconsistent with it, the special law cannot be held to have been abrogated by mere implication." In Reserve Bank of India v. Peerless General Finance and Investment Co. Ltd. AIR 1987 SC 1023 the Court held that "that interpretation is best which makes the textual interpretation match the contextual interpretation." It further held:-
"Interpretation must depend on the text and the context. They are the bases of interpretation. One may well say if the text is the texture, context is what gives the colour. Neither can be ignored. Both are important. That interpretation is best which makes the textual interpretation match the contextual. A statute is best interpreted when we know why it was enacted. With this knowledge, the statute must be read, first as a whole and then section by section, clause by clause, phrase by phrase and word by word". If a statute is looked at, in the context of its enactment, with the glasses of the statute-maker, provided by such context, its scheme, the sections, clauses, phrases and word may take colour and appear different than when the statute is looked at without the glasses provided by the context. With these glasses we must look at the Act as a whole and discover what each section, each clause, each phrase and each word is meant and designed to say as to fit into the scheme of the entire Act. No part of a statute and no word of a statute can be construed in isolation. Statutes have to be construed so that every word has a place and everything is in its place."
In R.S. Raghunath v. State of Karnataka, the Supreme Court ruled that there should be a clear inconsistency between the two enactments before giving an overriding effect to the non-obstante clause but when the scope of the provisions of an earlier enactment is clear the same cannot be cut down by resort of non-obstante clause. Non-obstante clause relied upon by both the learned counsel in two different statutes have to be reconciled and given an interpretation which makes both the enactments workable. This Court can only decode the law and cannot resort to the adventure of coding the law. The same effect is the judgment of the Apex Court in Sanwarmal Kejriwal v. Vishwa Co-operative Housing Society Ltd.. It has to kept in mind that the Supreme Court in Express Newspaper Ltd. v. Union of India, (1961-I-LLJ-339) already held that the Journalists Act was a special law enacted for the benefit of the working journalists who were held to be a group by themselves entitling to special benefits. The Court held that:-
"If this group of working journalists was specially treated in this manner there is no scope for the objection that that group had a special legislation enacted for its benefit or that a special machinery was created, for fixing the rates of its wages different from the machinery employed for other workmen under the Industrial Disputes Act, 1947. The payment of retrenchment compensation and gratuities, the regulation of their hours of work and the fixation of the rates of their wages as compared with those of other workmen in the newspaper establishments could also be enacted without any such disability and the machinery for fixing their rates by way of constituting a wage board for the purpose could be similarly devised."
8. In view of the position of law noticed hereinabove it has to be held that the authorities under the Gratuity Act and the learned Single Judge were not justified in holding the applicability of the Gratuity Act in case of the claim preferred by respondent No. 1 who was admittedly a working journalist and his eligibility for grant of gratuity had to be determined under the special statute namely the Journalists Act. Section 14 of the Gratuity Act do not over-ride the provisions of Section 16 of the Journalists Act. It has further to be noticed that the respondent had not challenged the constitutional validity of Section 16 making the provision of the Journalists Act to be applicable notwithstanding the enactment of any law in future. The respondent No. 1 had only relied upon the provisions of Sub-section 1 of Section 16 which we have found in this appeal was not applicable.
9. Both the enactments referred hereinabove admittedly contain non-obstante clauses which means that despite the provisions of Act mentioned in the non-obstante clause, the law following it was to have full operation or that the provision referred to in the non-obstante clause would not be an impediment for the operation of the document. Non-obstante clauses in two enactments as already held are required to be reconciled and given such meanings which defends the purpose of both the enactments. It has authoritatively been held that non-obstante clause need not necessarily and always be co-extensive with the operative part so as to have the effect of getting down the clear terms of an enactment. If the language of the enactment is clear and capable of only one interpretation on a plain and grammatical construction, the non-obstante clause would not cut down the construction and restrict the scope of its operation. In Dominion of India v. Shrinbai A. Irani, it was held that in such cases the non-obstante clause has to be read as clarifying the whole position and must be understood to have been interpreted in the enactment by the Legislature by way of abundant caution and not by way of limiting the ambit and scope of the operative part of the enactment. The influence of a non-obstante clause in relation to the interpretation of a statute was considered by the Supreme Court in Municipal Corporation, Indore and Ors. v. Smt. Ratnaprabha and Ors., AIR 1977 SC 308, wherein on the facts of that case it was held that the annual letting value under the enactment under reference need not in every case be limited to the standard length. In case of conflict of non-obstante clauses in more than one statute, such conflict has to be resolved on consideration of policy and purpose underlying the enactments and the language used therein as held by the Supreme Court in Sarvan Singh v. Kasturilal. Generally a later enactment would prevail upon the earlier one if both deal specifically with the same subject. However the position would be different if the earlier statute is a special statute and the later though with an obstante clause a general one.
10. The learned counsel for the respondent No. 1 has referred to a host of authorities including the judgment of the Supreme Court in Bakshish Singh v. Darshan Engineering Works and Ors., (1994-I-LLJ-197) (SC) to urge that as the concept of the gratuity has undergone a sea change, the interpretation to the statutes covering the grant of such relief be interpreted in the manner which is more beneficial to the intending beneficiary under statute. However in view of what we have held hereinabove, there is no necessity to go into the details of those judgments because the provisions of the Working Journalists Act have been held to be applicable under which the eligibility of the respondent was to be determined regarding the grant of payment of gratuity. As the respondent was admittedly not eligible for the grant of payment of gratuity under the aforesaid enactment, the question conferring the alleged more beneficial provisions under the Gratuity Act would not arise for consideration. We are therefore of the opinion that the authorities under the Gratuity Act and the learned Single Judge were not justified in allowing the claim of the respondent for payment of gratuity under the Gratuity Act. The orders of the authorities under the Act and that of the learned Single Judge impugned in this appeal is therefore liable to be set aside. The appeal is accordingly allowed by setting aside the impugned orders.
11. The learned counsel for the appellant-management was however fair to concede that the monetary benefits conferred upon under the impugned orders and actually received by respondent No. 1 would not be insisted to be recovered. While disposing of the appeal we record such a concession and hold that despite setting aside of the orders and allowing the appeal, the management is not held to be entitled to recover the amount already paid to respondent No. 1. Costs made easy.
