Gandiv Hindi Daily vs State of U.P. and Others

Surya Prakash Kesarwani, J.—Heard Sri Sunil Tripathi, learned Counsel for the petitioner, Sri S.H. Ojha appears for respondent No. 4 and Sri P.K. Pandey, learned Standing Counsel appears for respondent Nos. 1, 2 and 3. The impugned order dated 15.6.2013 has been passed u/s 7(3A) of the Payment of Gratuity Act, 1972 by the Controlling Authority cum Assistant Labour Commissioner, U.P. Varanasi directing the petitioner to pay gratuity amount of Rs. 1,42,674/- to respondent No. 4 which has not been paid to him on his retirement. The appeal of the petitioner was rejected by the Appellate Authority vide order dated 20.12.2013 u/s 7(7) of the Act due to non-compliance of the condition of pre-deposit. Aggrieved with these two orders, the petitioner has filed this writ petition on the ground that the matter of payment of gratuity to respondent No. 4 is governed by provisions of Working Journalist and other Newspaper Employees (Condition of Service and Miscellaneous Provisions) Act, 1955 which is a special law and not by the Payment of Gratuity Act, 1972 which is a general law and as such the impugned order passed by the authorities concerned are wholly without jurisdiction.

It is the case of respondent No. 4 that he was working in the establishment of the petitioner as special reporter since January, 1973 and he retired on 31.12.2005, but no amount of gratuity was paid by the petitioner to him on his retirement. The case of the petitioner is that the respondent No. 4 was employed since the year 1994. On his retirement, he moved an application for extension of service and it was orally agreed that during the period of extended service he will be paid gratuity along with salary and accounting shall be done later on. The payment has been made accordingly to the respondent No. 4.

Thus, the main dispute between the parties is as to whether the respondent No. 4 being a working journalist shall be governed by the provision of Act of 1955 or the Act of 1972 for the purposes of computation and payment of gratuity. The quantum is also in dispute because of disputed period of service of respondent No. 4 but this Court does not intend to express any opinion on this issue for reasons that the question of jurisdiction goes to the root of the case. From the very beginning the petitioner has been raising the objection that since the respondent No. 4 is a working journalist governed by Special Provision of the Act of 1955, and therefore, no proceedings can be carried under the provision of the Act, 1972 which is a general law. I find that in the case of P. Rajan Sandhi v. Union of India & another, reported in (2010) 10 SC 338 para. 11, Hon''ble Supreme Court held as under:-

It may be seen that there is a difference between the provisions for denial of gratuity in the Payment of Gratuity Act and in the Working Journalists Act. Under the Working Journalists Act gratuity can be denied if the service is terminated as a punishment inflicted by way of disciplinary act, as has been done in the instant case. We are of the opinion that Section 5 of the Working Journalists Act being a special law will prevail over Section 4(6) of the Payment of Gratuity Act which is a general law. Section 5 of the Working Journalists Act is only for working journalists, whereas the Payment of Gratuity Act is available to all employees who are covered by that Act and is not limited to working journalists. Hence, the Working Journalists Act is a special law whereas the Payment of Gratuity Act is a general law. It is well settled that special law will prevail over the general law, vide G.P. Singh''s Principles of Statutory Interpretation, 9th Edn., 2004, pp. 133 and 134.

In the case of P. Rajan Sandhi (supra), Hon''ble Supreme Court has held in no uncertain terms that Working Journalist Act is a special law whereas the Payment of Gratuity Act, 1972 is a general law.

In view of the law so settled by Hon''ble Supreme Court, I am of the opinion that impugned order passed by the Controlling Authority as well as Appellate Authority under the provision of Payment of Gratuity Act, 1972 are wholly without jurisdiction, inasmuch as the respondent No. 4 being a working journalists was governed by the provision of the Working Journalist and other Newspaper Employees (Condition of Service and Miscellaneous Provision) Act, 1955. The respondent No. 4 had taken steps for his claim for payment of gratuity under the Act, 1955 by moving an application dated 30.6.2011 with a prayer to amend the application filed under the Act of 1972, but his application was rejected by the respondent No. 3 vide order dated 30.6.2011 on the ground that for this purpose, the respondent No. 4 has to file a separate application under the Act of 1955.

In view of the facts and circumstances and the law laid down by Hon''ble Supreme Court in the case of P. Rajan Sandhi (supra), I am of the view that the petitioner being a working journalist is governed by the provision of the Act, 1955 with respect to the matters of payment of gratuity which is a special law and not by Act, 1972. Since, the impugned order have been passed by the respondent No. 3 and the appellate authority respectively under the provision of the Act, 1972 and as such the same are held without jurisdiction. This shall, however, not preclude the respondent No. 4 to take appropriate steps under the Act, 1955 for his claim for payment of gratuity.

In result, the impugned orders dated 15.6.2013 and 20.12.2013 are set aside. Liberty is granted to the respondent No. 4 to move appropriate application before the Competent Authority for his claim for payment of gratuity under the provision of Working Journalist and other Newspaper Employees (Condition of Service and Miscellaneous Provision) Act, 1955 and, if such an application is moved by the respondent No. 4, the same shall he considered and decided by the Competent Authority in accordance with law. With the aforesaid observations, the writ petition is disposed of.