P. Rajan Sandhi vs Union Of India & Anr

P. RAJAN SANDHI Appellant (s)

VERSUS

UNION OF INDIA & ANR. Respondent(s)

O R D E R

Heard the learned counsel for the parties.

This Appeal, by special leave, has been filed against

the impugned judgment of the High Court of Kerala dated

29.07.2005 passed in W.A. No. 2131 of 2002.

The facts of the case have already been set out in the

impugned judgment and hence we are not repeating the same

here, except wherever necessary.

The appellant herein was an Assistant Editor in

Mathrubhumami Printing and Publishing Company Limited,

(respondent No. 2 herein) which is a newspaper publishing

company. The appellant was charge-sheeted for making false

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allegations against the Managing Director of respondent No.

2 and of using discourteous language and for other various

misconduct. An enquiry was conducted and, after giving him

opportunity of hearing, the enquiry office found him guilty.

The appellant was ultimately dismissed from service on

20.06.1988. An industrial dispute was raised and the

Industrial Tribunal upheld the order of dismissal. The

appellant challenged the order of the Industrial Tribunal by

filing a Writ Petition which was dismissed. Thereafter, the

appellant unsuccessfully challenged the dismissal of the

Writ Petition by filing a Writ Appeal which was dismissed.

Special Leave Petition filed by the appellant against the

dismissal of the Writ Appeal was also dismissed by this

Court.

In this round of litigation, now the question is about

the appellant's claim for gratuity.

The claim of the appellant for gratuity was rejected by

the Management of respondent No. 2 against whose order the

appellant has filed a Writ Petition which has been allowed

by the learned single Judge of the High Court. However, by

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the impugned judgment passed in Writ Appeal No. 2131 of 2002

the Division Bench of the High Court set aside the judgment

of the learned single Judge. Hence, this appeal by special

leave.

The learned counsel for the appellant relies on

Section 4(6) of the Payment of Gratuity Act, 1972 (39 of

1972) which reads as under :-

"Section 4(6) Notwithstanding anything contained in sub-section (1),-

(a)The gratuity of an employee, whose services have been terminated for any act, wilful omission or negligence causing any damage or loss to, or destruction of, property belonging to the employer shall be forfeited to the extent of the damage or loss so caused;

(b)The gratuity payable to an employee may be wholly or partially forfeited -

(i)If the services of such employee have been terminated for his riotous or disorderly conduct or any other act of violence on his part, or

(ii)If the services of such employee have been terminated for any act which constitutes an offence involving moral turpitude, provided that such offence is committed by him in the course of his employment."

The learned counsel further submits that since

no damage or loss to, or destruction of, property of the

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employer was alleged or proved against the appellant nor was

he alleged to have committed any riotous or disorderly

conduct or any other act of violence or any offence

involving moral turpitude, his claim for gratuity could not

have been denied.

On the other hand, the learned counsel for respondent

No. 2 relies on Section 5(1)(a)(i) of the Working

Journalists and Other Newspaper Employees (Conditions of

Service) and Miscellaneous Provisions Act, 1955 [for short

`the Working Journalists Act']. The relevant part of

Section 5 is as under :-

"Section 5. Payment of gratuity.-(1) Where -

(a)any working journalist has been in continuous service, whether before or after the commencement of this Act, for not less than three years in any newspaper establishment, and -

(i)his services are terminated by the employer in relation to that newspaper establishment for any reason whatsoever, otherwise than as a punishment inflicted by way of disciplinary act, or

X X X

the working journalist or, in the case of his death, his nominee or nominees or, if thee is no nomination in force at the time of the death of the working journalist, his family, as the case may be, shall, without prejudice to any benefits or rights accruing under the Industrial Disputes Act, 1947 (14 of 1947), be paid, on such termination, retirement, resignation or death, by the employer in relation to that establishment gratuity which shall be equivalent to fifteen days' average pay for every completed year of service or any part thereof in excess of six months."

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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', Ninth Edition, 2004

pp. 133, 134.

The special law, i.e., Section 5(1)(a)(i) of the

Working Journalists Act, does not require any allegation of

proof of any damage or loss to, or destruction of, property,

etc. as is required under the general law, i.e., the Payment

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of Gratuity Act. All that is required under the Working

Journalists Act is that the termination should be as a

punishment inflicted by way of disciplinary action, which is

the position in the case at hand. Thus, if the service of an

employee has been terminated by way of disciplinary action

under the Working Journalists Act, he is not entitled to

gratuity.

For the reasons above stated, we see no infirmity in

the impugned judgment of the High Court. The Appeal is

dismissed accordingly. No costs.

....................J. (MARKANDEY KATJU)

.....................J. (T.S. THAKUR)

NEW DELHI SEPTEMBER 21, 2010.

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