Kerala High Court
The Mathrubhumi Printing And ... vs The General Secretary on 24 January, 2025
Author: N.Nagaresh
Bench: N.Nagaresh
2025:KER:5440
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE N.NAGARESH
FRIDAY, THE 24TH DAY OF JANUARY 2025 / 4TH MAGHA, 1946
WP(C) NO. 11745 OF 2024
PETITIONER:
THE MATHRUBHUMI PRINTING AND PUBLISHING
COMPANY LTD.,
MATHRUBHOOMI BUILDING,
K.P. KESHAVA MENON ROAD, KOZHIKODE,
REPRESENTED BY ITS MANAGING DIRECTOR,
M.V. SHREYAMS KUMAR, PIN - 673001
BY ADVS.
P.RAMAKRISHNAN
PREETHI RAMAKRISHNAN (P-212)
C.ANIL KUMAR
PRATAP ABRAHAM VARGHESE
GOKUL KRISHNA
MANOJKUMAR G.
ASHOK MENON
RESPONDENTS:
1 THE GENERAL SECRETARY,
KERALA UNION OF WORKING JOURNALISTS,
KESARI BUILDING, PULIMOOD,
THIRUVANANTHAPURAM, PIN - 695001
2 INDUSTRIAL TRIBUNAL, KOZHIKODE,
CIVIL STATION, ERANHIPALAM,
KOZHIKODE, PIN - 673020
BY ADVS.
MANU GOVIND
A.JAYASANKAR(J-114)
RESMI THOMAS, GOVERNMENT PLEADER
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 14.08.2024, THE COURT ON 24.01.2025 DELIVERED
THE FOLLOWING:
2025:KER:5440
W.P.(C) No.11745/2024
:2:
N. NAGARESH, J.
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W.P.(C) No.11745 of 2024
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Dated this the 24th day of January, 2025
JUDGMENT
~~~~~~~~~ The petitioner, who is printer and publisher of a popular vernacular Daily, is before this Court aggrieved by Ext.P7 preliminary order dated 06.03.2024 in ID No.1/2016 of the Industrial Tribunal, Kozhikode.
2. The petitioner initiated disciplinary proceedings against Sri. C. Narayanan, Chief Sub Editor at Kottakkal Unit of the establishment. The petitioner states that Sri. C. Narayanan abused the News Editor. After a confronted domestic enquiry, the said Sri. C. Narayanan was discharged from service as per order dated 05.06.2015.
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3. The 1st respondent-Trade Union raised an industrial dispute which was referred by the Kerala Government for adjudication under Section 10(1)(d) of the Industrial Disputes Act, 1947 as per order dated 15.03.2016. The issue "whether the denial of employment to Sri. C. Narayanan, employee by the Management of Mathrubhumi Printing and Publishing Company Limited, is justifiable or not? If not, what are the remedies available to him?", was referred to the Industrial Tribunal, Kozhikode. In supersession of the reference order dated 15.03.2016, the Government referred the issue "whether the dismissal of Sri. C. Narayanan, Chief Sub Editor by the Management of Mathrubhumi Printing and Publishing Company Limited is legal and justifiable? If not, what relief he is entitled to?" to the Industrial Tribunal, Kozhikode.
4. The 1st respondent filed Ext.P1 claim statement. The petitioner filed Ext.P2 counter statement. In Ext.P2, the petitioner submitted that the ID is not maintainable 2025:KER:5440 W.P.(C) No.11745/2024 :4: since Sri. C. Narayanan was not a workman as defined under the ID Act and also not a working journalist as defined under the Working Journalists and other Newspaper Employees (Conditions of Service) and Miscellaneous Provisions Act, 1955. The petitioner urged that the question of maintainability of the dispute should be considered as a preliminary issue. The Tribunal agreed to consider the maintainability of the dispute along with the question whether the enquiry conducted was legal or proper.
5. The petitioner examined MW1 and marked Exts.M1 to M3. The Union did not examine any witness or produce any documentary evidence. After examining the witness and perusing the documents, the Tribunal passed Ext.P7 preliminary Award dated 06.03.2024 holding that Sri. C. Narayanan is a workman as defined in the ID Act and that the enquiry conducted is violative of principles of natural justice.
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6. The petitioner states that the 2nd respondent did not appreciate the question of maintainability of the ID and status of the employee as workman or as working journalist. The Tribunal failed to appreciate the fact that the definition of "Workman" in Section 2(s) of the ID Act is different and distinct from the definition of "working journalist" in Section 2(f) of the Newspaper Employees Act. While any person employed in a supervisory capacity drawing wages exceeding ₹10,000/- per mensem is excluded from the definition of workman under the ID Act, a person engaged in a supervisory capacity to be excluded from the definition of working journalist under the Newspaper Employees Act will have to perform functions mainly of a managerial nature. The Tribunal failed to appreciate the distinction between "working journalist" and "workman".
7. The 1st respondent opposed the writ petition. The 1st respondent submitted that Sri. C. Narayanan was not given a fair and reasonable opportunity to defend himself in the 2025:KER:5440 W.P.(C) No.11745/2024 :6: enquiry. His application for defending the enquiry with the assistance of a lawyer was turned down by the enquiry officer. He was permitted to be defended by any co-worker. However, none of the fellow employees came forward to defend him fearing the wrath of the Management.
8. The 1st respondent submitted that the domestic enquiry was totally partisan and one sided. The enquiry was conducted in a manner prejudicing the defence of the employee. The conclusions of the Industrial Tribunal are just and proper.
9. I have heard the learned counsel for the petitioner and the learned counsel appearing for the 1 st respondent. I have also heard the learned Government Pleader representing the 2nd respondent.
10. The dispute referred for adjudication is whether dismissal of Sri. C. Narayanan, Chief Sub Editor by the Management of Mathrubhumi Printing and Publishing Company 2025:KER:5440 W.P.(C) No.11745/2024 :7: Limited is legal and justifiable and if not, what relief he is entitled to. The 1st respondent-Union argued that the disciplinary proceedings were conducted in gross violation of the principles of natural justice. It is the case of the 1 st respondent that since the workman was denied opportunity to defend his case before the Enquiry Officer by engaging a legal practitioner, there is violation of the principles of natural justice, vitiating the enquiry report.
11. The Industrial Tribunal held that the enquiry is vitiated due to denial of legal assistance to the workman. The said finding and conclusion of the Industrial Tribunal contained in Ext.P7 preliminary order is challenged by the petitioner- employer. The petitioner would argue that the employee concerned will not fall within the definition of the term "workman" as defined under Section 2(s) of the Industrial Disputes Act and the workman is not a "working journalist" as defined under Section 2(f) of the Working Journalists and other 2025:KER:5440 W.P.(C) No.11745/2024 :8: Newspaper Employees (Conditions of Service) and Miscellaneous Provisions Act, 1955.
12. The questions arising for consideration therefore are whether the employee concerned is a workman falling within the ambit of Section 2(s) of the Industrial Disputes Act and whether the domestic enquiry conducted by the petitioner against the employee is vitiated by violation of the principles of natural justice.
13. The employee was working as Chief Sub Editor at Kottakkal Unit of the establishment. The main allegation against the employee is that he had abused the News Editor. Section 2(s) of the Industrial Disputes Act defines "workman" as under:
2(s) "workman" means any person (including an apprentice) employed in any industry to do any manual, unskilled, skilled, technical, operational, clerical or supervisory work for hire or reward, whether the terms of employment be express or implied, and for the purposes of any proceeding under this Act in relation to an industrial dispute, includes any such person who has been dismissed, discharged or 2025:KER:5440 W.P.(C) No.11745/2024 :9: retrenched in connection with, or as a consequence of, that dispute, or whose dismissal, discharge or retrenchment has led to that dispute, but does not include any such person-
(i) who is subject to the Air Force Act, 1950 (45 of 1950), or the Army Act, 1950 (46 of 1950), or the Navy Act, 1957 (62 of 1957); or
(ii) who is employed in the police service or as an officer or other employee of a prison, or
(iii) who is employed mainly in a managerial or administrative capacity, or
(iv) who, being employed in a supervisory capacity, draws wages exceeding ten thousand rupees per mensem or 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.
14. From Section 2(s), it is evident that a person who is employed mainly in a managerial or administrative capacity or who, being employed in a supervisory capacity, draws wages exceeding ₹10,000/- per mensem or exercises, either by the nature of duties attached to the office or by reason of the powers vested in him, functions mainly of a managerial nature is excluded from the definition of workman. The Tribunal found that undue importance need not be given to the 2025:KER:5440 W.P.(C) No.11745/2024 : 10 : designation of an employee or the name assigned to the class which he belongs. What is important is what are the primary duties he performs. To bring the person out of the ambit of Section 2(s), it is necessary to prove that there were some persons working under him whose work is required to be supervised. Being in charge of the Section alone, would not answer the test.
15. In Ananda Bazar Patrika (P) Limited v.
Workmen [(1970) 3 SCC 248], the Hon'ble Apex Court held that the question whether a person is employed in a supervisory capacity or on clerical work depends upon whether the main and principal duties carried out by the employee are those of a supervisory character, or of a nature carried out by a clerk. If a person is mainly doing supervisory work but incidentally or for a fraction of the time also does some clerical work, then it would have to be held that he is employed in a supervisory capacity. Conversely, if the main work done is of a clerical nature, the 2025:KER:5440 W.P.(C) No.11745/2024 : 11 : mere fact that some supervisory duties are also carried out incidentally or as a small fraction of the work done by him will not convert his employment as a Clerk into one in supervisory capacity.
16. In this case, the employee was engaged as Chief Sub Editor. A Chief Sub Editor will fall within the first part of the definition of "working journalist" under Section 2(f) of the Working Journalists and other Newspaper Employees (Conditions of Service) and Miscellaneous Provisions Act, 1955. The functional definition of the term "working journalist" has been specifically stated in Schedule I.B of Ext.M3 Notification, according to which "'Chief Sub Editor" or "Content Chief" means a person who takes charge of a shift at the work desk, allocates and supervise the work of one or more Sub Editors and is generally responsible for the determination of news space and the general display of the news in the Newspaper or in a particular edition or part of it.
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17. As rightly found by the Industrial Tribunal, the limited amount of supervision and control conferred on a Chief Sub Editor are common and general in nature and are incidental to the nature of main work as Sub Editor. The term "mainly" used in the definition of workman in the Industrial Disputes Act and Working Journalists Act means the ultimate power of control or supervision in regard to recruitment, promotion, etc. The employee concerned in this writ petition has no such power. The employee would not come within the purview of the exclusionary clause of the definition of workman. Therefore, I do not find any illegality in the findings of the Industrial Tribunal in that regard.
18. The next question is as regards violation of principles of natural justice. The contention of the employee is that he was not given permission to engage a lawyer to defend him in the domestic enquiry proceedings. The request of the petitioner to allow him to be defended by an Advocate in the 2025:KER:5440 W.P.(C) No.11745/2024 : 13 : enquiry proceedings was rejected on the ground that the presenting officer is not a law graduate nor a person trained to conduct enquiry or to prosecute charges in domestic enquiry.
19. The employee submitted that he could not procure the service of a co-worker as none of them were bold enough to help him in the enquiry. The Tribunal noted that the enquiry officer appointed by the petitioner is a senior legal practitioner. The presenting officer is a person holding the post of Regional Manager, having sufficient experience in presenting the case before the enquiry officer.
20. In Ramesh Chandra v. Delhi University [(2015) 5 SCC 549], the Hon'ble Apex Court held that if any person who is or was a legal practitioner, including a retired Hon'ble Judge is appointed as inquiry officer in an inquiry initiated against an employee, the denial of assistance of legal practitioner to the charged employee would be unfair. Taking into account the law laid down by the Hon'ble Apex Court, it has 2025:KER:5440 W.P.(C) No.11745/2024 : 14 : to be held that the petitioner did not extend a fair and reasonable opportunity to the employee to defend the charges. The principles of natural justice are therefore violated.
For the afore reasons, I do not find any illegality in the findings and conclusions of the Industrial Tribunal, Kozhikode in the preliminary order dated 06.03.2024 in ID No.1/2016. The writ petition is therefore dismissed.
Sd/-
N. NAGARESH, JUDGE aks/20.01.2025 2025:KER:5440 W.P.(C) No.11745/2024 : 15 : APPENDIX OF WP(C) 11745/2024 PETITIONER'S EXHIBITS:
Exhibit P-1 TRUE COPY OF CLAIM STATEMENT DATED 8/7/2016 SUBMITTED BY THE 1ST RESPONDENT BEFORE THE 2ND RESPONDENT Exhibit P-2 TRUE COPY OF COUNTER-STATEMENT DATED 14/10/2016 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT.
Exhibit P-3 TRUE COPY OF JUDGMENT DATED 22/12/2023 IN WP (C) NO. 4617/2018 Exhibit P-4 TRUE COPY OF JUDGMENT DATED 10/01/2024 IN WA NO. 47/2024 Exhibit P-5 TRUE COPY OF RELEVANT CHAPTER FROM EXT M-2 MANUAL OF PROCEDURES FOR EDITORIAL DEPARTMENT Exhibit P-6 TRUE COPY OF RELEVANT PAGES FROM GOVERNMENT OF INDIA ORDER DATED 11/11/2021 ISSUED UNDER SECTION 12 OF THE NEWS PAPER EMPLOYEES ACT Exhibit P-7 TRUE COPY OF PRELIMINARY AWARD DATED 6/3/2024 IN I.D.NO. 01/2016 PASSED BY THE 2ND RESPONDENT.
RESPONDENTS' EXHIBITS:
Exhibit R1(a) True copy of the manual of procedure for the editorial department of the petitioner management.
Exhibit R1(b) True copy of the Government Order dated 11.11.2011 issued by the Ministry of Labour and Employment.