Management of Express Newspapers Ltd. vs B. Somayajulu and Others

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Civil Appeal No. 202 of 1562

Decision Date: 18 April 1963

Coram: P.B. Gajendragadkar, K.N. Wanchoo, K.C. Das Gupta

The case titled Management of Express Newspapers Ltd. versus B. Somayajulu and Others was decided by the Supreme Court of India on 18 April 1963. The judgment was authored by Justice P. B. Gajendragadkar, with Justices K. N. Wanchoo and K. C. Das Gupta forming the bench. The petition was filed by the Management of Express Newspapers Ltd. against the respondent, B. Somayajulu and others. The official citation of the decision is reported in 1964 AIR 279 and 1964 SCR (3) 100, and it is also referenced in the citator as E 1972 SC1872 (13). The dispute concerned the application of the Industrial Disputes Act, 1955 (1 of 1955), specifically section 2(b), which defines a “working journalist.” The respondent had been employed as a correspondent at Guntur for the appellant and his services were terminated. The Andhra Union of Working Journalists, Elluru, intervened on his behalf, alleging that the termination was unjustified and that, as a working journalist, the respondent was entitled to reinstatement and compensation. The matter was referred by the Government of Andhra Pradesh to the Labour Court at Gunrut. Before the Labour Court, the appellant raised several preliminary objections, all of which were dismissed. On the substantive issue, the appellant argued that the avocation of a moffusil correspondent was not the respondent’s principal avocation, and therefore the respondent could not claim the status of a working journalist under section 2(b) of the Act. The Labour Court ruled against the respondent, basing its decision solely on the finding that, being a part‑time worker, he could not be regarded as a working journalist; the Court did not address whether his principal avocation at the time of termination satisfied the test prescribed by section 2(b). The respondent challenged the award by filing a writ petition in the High Court of Andhra Pradesh, which held that the respondent qualified as a working journalist under section 2(b) and consequently set aside the Labour Court’s award. Upon appeal by certificate to this Court, the appellant contended that the High Court erred in holding the respondent to be a working journalist under the statutory provision. The Supreme Court held that an employee in a newspaper establishment who claims the status of a working journalist must first establish that he is a journalist and then demonstrate that journalism is his principal avocation and that he has been employed in that capacity. In proving the first element, the employee need only show that he does not fall within any of the categories listed in the latter clause of section 2(b); this establishes his status as a journalist. However, he must also satisfy the second element by proving that journalism is his principal avocation. The Court further observed that the purpose of the inclusion clause in section 2(b) is not to dispense with these two essential conditions for a journalist to be regarded as a working journalist. The Court rejected a narrow dictionary or etymological construction of the word “avocation” and noted that, while the provision was primarily intended for full‑time employment, part‑time employment is not excluded. Consequently, a part‑time employee who meets the test prescribed by section 2(b) cannot be excluded merely because his engagement is part‑time. In the present case, the burden of proving whether the work of a correspondent constituted the respondent’s principal avocation at the relevant time rested on the appellant.

The Court explained that a person can be regarded as a working journalist only when two essential requirements are satisfied. First, the individual must actually be a journalist. Second, journalism must be his principal avocation and he must be employed by the newspaper establishment in which the claim is made. The purpose of the clause that expands the definition is not to remove these two fundamental conditions; rather, it merely adds clarification without altering the core criteria. In interpreting section 2(b) of the Act, the Court held that it would be inappropriate to rely on a dictionary or on the etymology of the word “avocation” to determine its meaning in the statutory context. Instead, the term must be understood according to the purpose of the provision and the surrounding circumstances. Moreover, the Court observed that although the employment contemplated by section 2(b) is normally full‑time, the provision does not exclude part‑time workers. A proper construction of the section therefore cannot deny the applicability of the provision to a part‑time employee who otherwise meets the statutory test, merely because his engagement is part‑time. Consequently, the legal burden in the present case rested on the respondent to demonstrate, based on the relevant facts, that the work of a correspondent constituted his principal avocation at the relevant time and that he was in the exclusive employment of the appellant. Only if the respondent succeeds in establishing that he qualifies as a working journalist will the Court then consider the appropriate relief to which he may be entitled.

The matter before the Court arose from a civil appeal numbered 202 of 1562, filed on 18 April 1963, against a judgment and order dated 10 March 1961 of the Andhra Pradesh High Court in writ petition number 677 of 1958. The appellant was represented by counsel for the appellant, while the respondents were represented by counsel for respondent No 1 and counsel for respondent No 2. The central issue in the appeal was whether B. Somayajulu, the respondent, qualified as a working journalist under section 2(b) of the Working Journalists Industrial Disputes Act 1955. According to the record, on 19 February 1935 the respondent was appointed as a correspondent at Guntur by the management of Express Newspapers Ltd. He performed the duties of that post continuously until 20 October 1955, when his services were terminated. Thereafter, the Andhra Union of Working Journalists, based in Elluru, intervened on his behalf, alleging that the termination was without justification and that, as a working journalist, the respondent was entitled to reinstatement and compensation for the period he was prevented from working. The dispute was subsequently referred by the Government of Andhra Pradesh to the Labour Court at Guntur for adjudication, with the specific question being whether the termination of Mr. Somayajulu’s services was justified and, if not, what relief he should receive.

The Labour Court was asked to determine whether the termination of the respondent’s appointment as correspondent of Indian Express Newspapers at Guntur was justified and, if not, what relief he was entitled to. The respondent asserted that, besides reinstatement, he should be awarded compensation for the period from 13 October 1955 to 1 May 1956 at Rs 75 per month. He further claimed that compensation should continue up to his reinstatement at the rate prescribed by the Wage Board for Working Journalists under the Act. The appellant contested the respondent’s claim on several distinct grounds, asserting that the relief sought was unfounded. The appellant first argued that the Labour Court lacked jurisdiction because the respondent’s appointment had been made in Madras and his salary was paid from Madras. Consequently, the appellant claimed that the appropriate government to refer the dispute was the Madras Government, not the Government of Andhra Pradesh. The Labour Court examined the argument and rejected the jurisdictional objection raised by the appellant. The appellant also maintained that the reference order failed to specify section 10(1)(c) of the Industrial Disputes Act, which he claimed was the statutory basis for the power to refer the dispute. The Labour Court also dismissed this contention after finding no legal basis for it. A further allegation by the appellant was that the matter before the Labour Court was an individual dispute that had not been properly sponsored by any union. The Labour Court found no merit in this submission and consequently rejected the appellant’s plea. Having dismissed all preliminary objections, the Labour Court proceeded to consider the substantive issues raised by the parties. On the merits, the appellant contended that the respondent did not qualify as a working journalist within the meaning of section 2(b) of the Act. To support this position, the appellant described the respondent as a part‑time correspondent who was not attached to any specific newspaper establishment. The appellant also noted that about a year later the respondent had been appointed as a selling agent for the appellant’s publications, including the Express Newspapers, Dinamani and Andhra Pradesh, at Guntur, upon depositing Rs 6,000, which was later increased to Rs 7,000. According to the appellant, the respondent earned an average commission of approximately Rs 1,500 per month in his capacity as a selling agent. In contrast, his remuneration as a correspondent began with a per‑article fee and later an honorarium fixed at Rs 50 per month. The honorarium was subsequently raised to Rs 75 per month and this amount was paid to him until his services were terminated. The appellant therefore argued that the activity of a moffusil correspondent was not the respondent’s principal avocation. Consequently, the appellant contended that the respondent could not claim the benefits afforded to a working journalist under section 2(b) of the Act. The Labour Court concluded that part‑time workers fell outside the scope of the Act, and consequently the respondent could not be treated as a working journalist. The Court also observed, in passing, that the commission received by the respondent as a selling agent considerably exceeded the modest payments he obtained for his work as a correspondent. Both parties agreed that the facts regarding the respondent’s earnings as a selling agent and as a correspondent were established.

Some time before the respondent’s duties as a correspondent were terminated, the selling agency through which he operated also ceased to exist. The award rendered by the Labour Court indicated that the Court decided against the respondent solely on the ground that, being a part‑time worker, he could not be classified as a working journalist; the Court did not address whether his main occupation at the time of termination satisfied the definition set out in section 2(b). The respondent challenged that award before the Andhra Pradesh High Court by filing a writ petition under Articles 226 and 227 of the Constitution. The High Court examined the definition in section 2(b) and held that the respondent did qualify as a working journalist; consequently, it set aside the award made by the Labour Court. Although the High Court did not issue an explicit order remitting the matter back to the Labour Court for a merits‑based determination, the effect of its judgment was to require such reconsideration in accordance with law. Dissatisfied with that decision, the appellant approached this Court, attaching the certificate issued by the High Court; counsel for the appellant, identified as Mr Sastri, contended that the High Court erred in concluding that the respondent was a working journalist under section 9(b). The legislation governing the dispute was Act No. 1 of 1955, which came into force on 12 March 1955 and comprised only three sections. Section 1 merely provided the short title of the Act; section 2 defined the terms “newspaper” and “working journalist” in clauses (a) and (b); and section 3 stipulated that the provisions of the Industrial Disputes Act, 1947 would apply to working journalists in the same manner as they applied to workmen defined under that Act. In essence, the purpose of the 1955 Act was to give clear definitions for “newspaper” and “working journalist” and to extend the Industrial Disputes Act’s regime to persons falling within the latter category. Subsequent legislation, namely the Working Journalists (Condition of Service) and Miscellaneous Provisions Act, 1955 (No. 45 of 1955), contained twenty‑one sections that introduced specific provisions for working journalists, differing in certain respects from the corresponding provisions of the Industrial Disputes Act. Section 2(f) of this later Act defined “working journalist,” and its wording was identical to the definition found in section 2(b) of the earlier Act; therefore, for the purposes of the present appeal, any interpretation of the scope and effect of the definition in section 2(b) of the 1955 Act would equally apply to the definition in section 2(f) of the subsequent Act. Section 3 of the later Act likewise incorporated the provisions of the Industrial Disputes Act, thereby ensuring that the same industrial relations framework governed working journalists under both statutes.

In this case, the Court observed that Chapter II of the Working Journalists (Condition of Service) and Miscellaneous Provisions Act makes the Industrial Disputes Act, 1947 applicable to working journalists. Sections 4 and 5 of that chapter contain special provisions dealing respectively with retrenchment and with gratuity payable to the journalists. Section 6 prescribes the normal hours of work for a journalist, while section 7 addresses the problem of leave entitlement. Section 8 provides for the constitution of a Wage Board, and section 9 deals with the fixation of wages for the workers covered by the Act. Section 10 requires the publication of the Board’s decision and specifies when that decision commences to have effect, while section 11 sets out the powers and procedure of the Board. Section 12 makes the Board’s decision binding on the parties, and section 13 empowers the Government to fix interim rates of wages pending final determination. Collectively, these provisions form Chapter II of the Working Journalists (Condition of Service) and Miscellaneous Provisions Act, and they regulate employment conditions for journalists. Chapter III comprises only sections 14 and 15, which extend to newspaper employees the provisions of the Industrial Employment (Standing Orders) Act, 1946 and the Employees’ Provident Funds Act, 1952. Chapter IV contains miscellaneous provisions, including section 17 dealing with recovery of money due from an employer, section 18 prescribing penalties, and section 19 providing indemnity. Section 20 confers on the Central Government the power to make rules necessary for the implementation of the Act, and section 21 expressly repeals the earlier Working Journalists Act. To decide whether the respondent qualifies as a working journalist, the Court found it necessary to read the definition contained in section 2(b) of the Act. The Court reproduced the statutory definition, which reads as follows: “Working journalist means a person whose principal avocation is that of a journalist and who is employed as such in, or in relation to, any establishment for the production or publication of a newspaper or in, or in relation to, any news agency or syndicate supplying material for publication in any newspaper, and includes an editor, a leader‑writer, news editor, sub‑editor, feature‑writer, copy‑tester, reporter, correspondent, cartoonist, news photographer and proof‑reader, but does not include any such person who—(i) is employed mainly in a managerial or administrative capacity, or (ii) being employed in a supervisory capacity, exercises, either by the nature of the duties attached to the office or by reason of the powers vested in him, functions mainly of a managerial nature.” The Court noted that the definition consists of two parts: a primary clause describing what a working journalist is, and a secondary clause that artificially extends the definition to certain named categories of newspaper employees. It further observed that the first part imposes two conditions which must be satisfied by a journalist before he can be held to be a working journalist. The first condition requires that the individual be a journalist whose principal avocation is journalism. The second condition requires that he be employed as a journalist in, or in relation to, an establishment described in the definition. The Court then posed the initial question for determination as to whether these two conditions also govern the categories of newspaper employees that are brought within the definition by the artificial extension.

The Court observed that the High Court had held that employees named in the definition’s including clause need not satisfy the two conditions set out in the first part of the definition. The High Court’s argument was that because a correspondent, for example, is expressly mentioned in the second clause, the legislature intended to deem such a person a working journalist without requiring him to meet the two conditions prescribed by the first part. The Court considered that view to be plainly erroneous. It explained that the purpose of the second clause was simply to clarify that the persons listed in that clause are journalists and nothing beyond that. The term “journalist” itself is not defined in the Act, and the legislature apparently anticipated disputes concerning whether a particular newspaper employee qualified as a journalist. While there is no difficulty in treating an editor, a leader‑writer, a news editor or a sub‑editor as journalists, the legislature foresaw possible difficulty in classifying individuals such as correspondents, proof‑readers, cartoonists, reporters, copy‑testers or feature writers. Consequently, the legislation specifically provided that the employees enumerated in the latter clause shall be regarded as journalists for the purpose of the definition prescribed by section 9(b). The Court stressed that the artificial extension created by the including clause was not meant to remove the two principal conditions that must be satisfied before a journalist can be considered a working journalist. Even employees falling under the extended meaning must be employed as journalists. Accordingly, the second requirement of the first clause—that a journalist must be employed as such in, or in relation to, an establishment engaged in the production or publication of a newspaper—must also be satisfied by the persons covered by the latter clause. Without an employment relationship with the newspaper establishment, no employer‑employee relationship can arise, and therefore the journalists mentioned in the latter clause could not claim the status of a working journalist in relation to the employer who manages the newspaper. Recognising that the test of employment must govern the employees specified in the latter clause makes it clear that the High Court erred in assuming that the extended definition dispensed with both conditions set out in the first part. The Court concluded that the word “includes” was used only to eliminate any doubt about whether the persons named in that clause are journalists. The condition concerning employment applies equally to the other condition, namely that a journalist can be a working journalist only where it is shown that journalism is his principal avocation.

The Court explained that when an employee of a newspaper claims to be a “working journalist,” the employee must first prove that he is a journalist and then demonstrate that journalism is his principal avocation and that he has been employed by the newspaper in that capacity. To establish that he is a journalist, a person falling within the categories listed in the latter clause need only show that he belongs to one of those categories. That proof, however, only confirms his status as a journalist; the employee must also establish that journalism is his principal avocation and that he has been hired by the newspaper in that role. The Court then considered the meaning of the term “avocation.” The High Court had adopted the dictionary definition of “avocation” as “a distraction or diversion from one’s regular employment” and applied that meaning to section 2(b). In support of this interpretation, the High Court quoted Fowler’s Modern English Usage, which observes that “avocation originally a calling away, an interruption, a distraction, was for some time commonly used as a synonym for vocation or calling, with which it is properly in antithesis. This misuse is now less common, and the word is generally used in the plural, a person’s avocations being the things he devotes time to, his pursuits or engagements in general, the affairs he has to see to; his vocation as such is neither excluded from, nor necessarily included in his avocation.” Applying that dictionary meaning, the High Court held that even if the respondent satisfied the first condition of section 2(b), he could also satisfy the test because the work of a correspondent could be described as his principal avocation in the sense of a distraction or diversion from his regular employment. The Court disagreed with that approach, describing the High Court’s reliance on the mechanical dictionary meaning as pedantic and lacking regard for the context of section 2(b). The Court observed that a plain reading shows that “avocation” in section 2(b) cannot mean a mere distraction from regular work; rather, it plainly signifies one’s vocation, calling, or profession. The purpose of section 2(b) is to ensure that a person performing the duties of, for example, a correspondent, who is simultaneously engaged in another profession such as law, will be regarded as a “working journalist” only if his journalistic activity is his principal calling. That plain object of section 2(b) leads the Court to conclude that the term “avocation” must be understood as the primary profession, not a peripheral diversion, and that the correct test requires determining whether journalism is the dominant occupation of the person claiming the status of a working journalist.

The Court observed that it would be inappropriate to rely on the ordinary dictionary or etymological meaning of the word “avocation” when interpreting section 2(b). It noted that the counsel appearing for the respondent, Mr Menon, did not attempt to defend the approach that the High Court had taken on this point. Consequently, the Court held that when a question arose as to whether a journalist could be described as a “working journalist,” the party claiming that status had to demonstrate that journalism, in whatever form contemplated by section 2(b), constituted the principal avocation of that person. To make such a determination, the Court explained, an enquiry into the relative earnings from journalistic activities compared with earnings from any other calling or profession was necessary. The Court further explained that this test would be merely academic and of no practical significance in the case of full‑time journalists, because there existed a clear presumption that a full‑time journalist’s primary occupation was indeed journalism, and therefore no comparison of income from journalism with income from other sources would arise. Even if, in some instances, a journalist’s remuneration from his newspaper work turned out to be less than the income he derived from, for example, ancestral property, the Court said that his status as a working journalist would remain unaffected. The Court emphasized that the test acquired importance only for journalists who were employed on a part‑time basis. Turning to the second requirement of employment, the Court reiterated that any employee seeking the status of a working journalist under section 2(b) first had to prove the existence of an employment relationship, because such a relationship created the employer‑employee connection with the newspaper establishment. In the absence of an employment relationship, there could be no conditions of service and consequently no basis for making a claim under the Act. The Court clarified that employment necessarily implied agreed conditions of service between the parties, which gave rise to a master‑servant relationship. Moreover, the Court stated that employment under the section had to be exclusive, since a working journalist could not simultaneously serve two employers; otherwise the benefits contemplated by the Act, such as retrenchment compensation, gratuity, regulated hours of work, or leave, could not be sensibly claimed from more than one employer. The overall scheme of the Act, by extending the provisions of the Industrial Disputes Act to working journalists, assumed an exclusive employer‑employee relationship based on mutually agreed terms of service. While the Court recognized that the usual form of employment contemplated by section 2(b) was full‑time employment, it also pointed out that the provision did not expressly exclude part‑time employment from its scope.

The Court observed that employees who fall within the first clause of section 2(b) or who are covered by the artificial extension prescribed by the later clause of that section would ordinarily be full‑time employees. Nonetheless, the Court recognized that, in theory, a news‑photographer or a cartoonist might not necessarily be engaged on a full‑time basis. While the prevailing practice among newspaper establishments was to retain only full‑time journalists, the Court held that a fair construction of section 2(b) could not permit the exclusion of a part‑time employee who satisfied the statutory test merely because his employment was part‑time. Accordingly, the Court concluded that the Labour Court had erred in finding that the respondent was not a working journalist on the ground that he was a part‑time employee, and that the High Court had erred in holding that the respondent was an employee without requiring him to satisfy the test that journalism was his principal avocation.

The Court explained that the respondent could be deemed a working journalist only if he fulfilled the two tests prescribed by the first part of section 2(b). The first test—whether he had been employed as a journalist—was satisfied, because it was undisputed that, since 1935, he had acted as a correspondent for the appellant at Guntur and that the remuneration he received, irrespective of its denomination, was governed by an agreement between the parties. However, the appellant contested the proposition that the respondent was employed exclusively by it, and the Court noted that this issue remained to be determined.

The second test required that the respondent’s work as a correspondent constitute his principal avocation at the relevant time. The definition demanded proof that he was a working journalist at the moment his services were terminated, and such proof could be ascertained only from the evidence presented by the parties. The Court pointed out that, although the Labour Court had made certain observations on this point, it had failed to consider the entire body of evidence and had not arrived at a definitive finding, having assumed that a part‑time employee fell outside section 2(b). The High Court, on the other hand, had apparently made a finding on this ground in the alternative, but the Court held that the High Court should not have adopted that approach in a writ petition under Articles 226 and 227. Moreover, the High Court appeared to be influenced by the fact that the respondent had devoted a substantial portion of his time to his duties as a correspondent and had taken the view that journalism should be his principal avocation.

In this case, the Court examined whether a journalist’s principal avocation could be measured solely by the amount of time he spent performing journalistic duties. The Court acknowledged that the time a journalist devoted to his work might be relevant, but it could not be the decisive factor. The decisive consideration, according to the Court, was the income that the part‑time journalist earned from journalism compared with the income he earned from any other occupation. While assessing this issue, the Court noted that, a few months before the respondent’s engagement as a correspondent was terminated, the respondent’s selling agency had ceased operations. Because of that circumstance, the Court held that the Labour Court should investigate whether, in light of the surrounding facts, the respondent could demonstrate that his work as a correspondent constituted his principal avocation at the relevant time. The burden of proving this matter, as well as the burden of showing that the respondent was employed exclusively by the appellant, rested on the respondent. The appellant contested the respondent’s claim that he was a working journalist, and the Court explained that only if the respondent succeeded in establishing his status as a working journalist could the question of the relief to which he might be entitled be considered. Consequently, the Court allowed the appeal, set aside the order of the High Court, and remanded the matter to the Labour Court with a direction that the dispute be resolved in accordance with law, taking into account this judgment. No order as to costs was made. Before concluding, the Court observed that the test of “principal avocation” embodied in the statutory provision appears to have been drawn from the Press Commission’s recommendations. In paragraph 505 of the Commission’s report on working journalists, the Commission stated that only persons whose professed avocation and main source of livelihood was journalism should be regarded as working journalists. The Commission further explained that it deliberately used the term “professed avocation” because it had encountered individuals belonging to other professions—such as law, medicine, or education—who devoted part of their time to supplying news and writing articles for newspapers. The Commission noted that, particularly in the early years of their professional careers, some of these individuals might receive more income from journalistic work than from their primary profession, but it would be incorrect to classify them as working journalists so long as their professed avocation remained a field other than journalism. The Court pointed out that the legislation did not adopt the phrase “professed avocation” but instead employed the expression “principal avocation.” For this reason, the Court was inclined to adopt the view that

The Court observed that the mere length of time a person spends pursuing two different professions was not the decisive factor; rather, the decisive factor was the amount of income that the person derived from each profession. It appeared that the legislature intended that if a person who was, for example, a lawyer in the early stage of his career earned more from journalistic work than from his legal practice and also met the other criteria set out in section 2(b), the person could still be counted as a journalist even though he continued to pursue another profession. In that respect, the provision of section 2(b) diverged from the recommendation of the Press Commission. With respect to part‑time employees, which the Court had previously held were not automatically excluded by section 2(b), the record showed that the Wage Committee appointed by the Union Government under the provisions of Act 45 of 1955 treated certain part‑time employees as working journalists. In paragraph 103 of the Committee’s report, it was noted that a regular scale or retainer had been provided for part‑time correspondents, and that such remuneration would be payable only when, according to the definition in paragraph 23, Part II of the Committee’s recommendations, the correspondent’s principal avocation was journalism. The Committee also observed that many part‑time correspondents employed by newspaper establishments would fail to satisfy that definition if their principal avocation lay elsewhere and journalism was merely a side activity. The Committee further stated that addressing the situation of this class of part‑time correspondents lay outside its terms of reference, and consequently it made no recommendation concerning them. The Court allowed the appeal and remanded the matter for further proceedings.