Art.32 of constitution of India - Challenging the Working Journalists and Other Newspaper
Employees (Conditions of Service) and Miscellaneous Provisions Act, 1955
(in short ‘the Act’) is ultra vires and for quashing of the notification dated 11.11.2011 issued by the Central Government accepting the recommendations made by Justice Majithia Wage Boards for Working Journalists and Non-Journalist Newspaper and News Agency Employees.- Apex court hold that the recommendations of the Wage Boards are valid in law, based on genuine and acceptable considerations and there is no valid ground for interference under Article 32 of the Constitution of India. and dismissed all writ petitions filed by Management of various News papers =
These writ petitions, under Article 32 of the Constitution of India,
have been filed by the petitioners (management of various newspapers)
praying for a declaration that the Working Journalists and Other Newspaper
Employees (Conditions of Service) and Miscellaneous Provisions Act, 1955
(in short ‘the Act’) is ultra vires as it infringes the fundamental rights
guaranteed under Articles 14, 19(1)(a) and 19(1)(g) of the Constitution of
India. and
for quashing of the notification
dated 11.11.2011 issued by the Central Government accepting the
recommendations made by Justice Majithia Wage Boards for Working
Journalists and Non-Journalist Newspaper and News Agency Employees.=
For the purpose of fixing or
revising the rates of wages of employees in newspaper establishments, the
Central Government is empowered under Sections 9 and 13C of the Act to
constitute two Wage Boards, viz., one for the working journalists and other
for non-journalist newspaper employees respectively.
It is
this recommendation submitted by the Wage Boards, which was subsequently
accepted by the Central Government and notified on 11.11.2011 that is
impugned in the given proceedings.
Discussion
7) In succinct, the petitioners herein, challenged the recommendations
of the Wage Boards and the notification dated 11.11.2011 mainly on the
following grounds:-
i) Constitutional validity of the Act and the Amendment Act, 1974.
ii) Improper Constitution of the Wage Boards
iii) Irregularity in the procedure adopted by Majithia Wage Boards.
iv) Majithia Wage Boards overlooked the relevant aspects and
considered extraneous factors while drafting the recommendations =
We shall examine and deliberate distinctively on each contested point
surfaced by the petitioners herein in the succeeding paragraphs.=
Accordingly, we hold that the recommendations of the Wage Boards are
valid in law, based on genuine and acceptable considerations and there is
no valid ground for interference under Article 32 of the Constitution of
India.
72) Consequently, all the writ petitions are dismissed with no order as
to costs.
73) In view of our conclusion and dismissal of all the writ petitions,
the wages as revised/determined shall be payable from 11.11.2011 when the
Government of India notified the recommendations of the Majithia Wage
Boards. All the arrears up to March, 2014 shall be paid to all eligible
persons in four equal instalments within a period of one year from today
and continue to pay the revised wages from April, 2014 onwards.
74) In view of the disposal of the writ petitions, the contempt petition
is closed.
2014 (Feb. Part)judis.nic.in/supremecourt/filename=41205
P SATHASIVAM, RANJAN GOGOI, SHIVA KIRTI SINGH
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
1
2 WRIT PETITION (CIVIL) NO. 246 OF 2011
ABP Pvt. Ltd. & Anr. .... Petitioner
(s)
Versus
Union of India & Ors. .... Respondent(s)
3
4 WITH
5
6 WRIT PETITION (CIVIL) NO. 382 OF 2011
7 WRIT PETITION (CIVIL) NO. 384 OF 2011
8 WRIT PETITION (CIVIL) NO. 386 OF 2011
9 WRIT PETITION (CIVIL) NO. 408 OF 2011
10 WRIT PETITION (CIVIL) NO. 510 OF 2011
11 WRIT PETITION (CIVIL) NO. 538 OF 2011
12 WRIT PETITION (CIVIL) NO. 514 OF 2011
13 WRIT PETITION (CIVIL) NO. 546 OF 2011
14 WRIT PETITION (CIVIL) NO. 87 OF 2012
15 WRIT PETITION (CIVIL) NO. 264 OF 2012
16 WRIT PETITION (CIVIL) NO. 315 OF 2012
17 WRIT PETITION (CIVIL) NO. 817 OF 2013
18
19 WITH
20 CONTEMPT PETITION (CIVIL) NO. 252 OF 2012 IN
21 WRIT PETITION (CIVIL) NO. 538 OF 2011
22
J U D G M E N T
P.Sathasivam, CJI.
1) These writ petitions, under Article 32 of the Constitution of India,
have been filed by the petitioners (management of various newspapers)
praying for a declaration that the Working Journalists and Other Newspaper
Employees (Conditions of Service) and Miscellaneous Provisions Act, 1955
(in short ‘the Act’) is ultra vires as it infringes the fundamental rights
guaranteed under Articles 14, 19(1)(a) and 19(1)(g) of the Constitution of
India.
The petitioners further prayed for quashing of the notification
dated 11.11.2011 issued by the Central Government accepting the
recommendations made by Justice Majithia Wage Boards for Working
Journalists and Non-Journalist Newspaper and News Agency Employees.
Factual Background:
2) It is pertinent to give a vivid background of the case before we
advent to decide the issue at hand. Way back in 1955, the Government of
India enacted the impugned Act to regulate the conditions of service of
Working Journalists and in 1974 via amendment for other Newspaper Employees
employed in newspaper establishments.
For the purpose of fixing or
revising the rates of wages of employees in newspaper establishments, the
Central Government is empowered under Sections 9 and 13C of the Act to
constitute two Wage Boards, viz., one for the working journalists and other
for non-journalist newspaper employees respectively.
Likewise, the Act also
specifies that the Central Government shall, as and when necessary,
constitute these Wage Boards.
The composition of the Wage Boards is
specified, as mentioned below:-
(a) Three persons representing employers in relation to Newspaper
Establishments;
(b) Three persons representing working journalists for Wage Board
under Section 9 and three persons representing non-journalist
Newspaper Employees for Wage Board under Section 13C of the Act;
(c) Four independent persons, one of whom shall be a person who is, or
has been a Judge of the High Court or the Supreme Court, and who shall
be appointed by the Government as the Chairman thereof.
3) It is relevant to note that since 1955, six Wage Boards have been
constituted for working journalists and four Wage Boards for non-
journalist newspaper employees in order to fix or revise the rates of
wages.
The relevant details of the preceding Wage Boards are as under:-
(i) Divatia Wage Board
|Date of |Date of |Challenge |
|Appointment |Acceptance | |
|02.05.1956 |10.05.1957 |In Express Newspaper (P) Ltd. vs. Union|
| | |of India 1959 SCR 12 the decision of |
| | |the Divatia Wage Board as well as the |
| | |constitutional validity of the Act was |
| | |challenged before this Court. This |
| | |Court set aside the decision of the |
| | |Wage Board dt. 30.04.1957 on the ground|
| | |that it did not take into account the |
| | |capacity of the industry to pay. As a |
| | |result of this decision, an ordinance |
| | |dated 14.06.1958 was promulgated which |
| | |provided for the establishment of a |
| | |Special Committee for making |
| | |recommendations to the Central |
| | |Government in regard to the rates of |
| | |wages to be fixed for working |
| | |journalists. Later, in September 1958,|
| | |the Working Journalists (Fixation of |
| | |Rates of Wages) Act, 1958 was passed by|
| | |the Parliament. |
(ii) Shinde Wage Board
|Date of |Date of |Challenge |
|Appointment |Acceptance | |
|12.11.1963/ |27.10.1967 |In Press Trust of India vs. Union of |
|25.02.1964 | |India & Ors. (1974) 4 SCC 638, this |
| | |Court struck down the recommendations |
| | |of the second Wage Board insofar as |
| | |PTI was concerned as unreasonable and |
| | |far in excess of what the employees |
| | |themselves were demanding and beyond |
| | |the financial capacity of the |
| | |establishment and hence violative of |
| | |the fundamental rights guaranteed |
| | |under Part III of the Constitution. |
(iii) Palekar Wage Board
|Date of |Date of |Challenge |
|Appointment |Acceptance | |
|11.06.1975/ |26.12.1980 |The constitution of Wage Board was |
|06.02.1976 | |challenged on 20.07.1981 on the ground|
| | |of lack of independence. In December |
| | |1977, the employers’ representatives |
| | |wrote to the Central Government that |
| | |they were withdrawing from the Wage |
| | |Board as desired by the organizations.|
| | |The government made several efforts to|
| | |resolve the dead lock. On 28.08.1978,|
| | |Writ Petitions were filed by the |
| | |Indian and Eastern Newspaper Society |
| | |and Others in the High Court at Bombay|
| | |challenging the constitution of the |
| | |Wage Boards. In order to find a |
| | |solution, the President promulgated on|
| | |31.01.1979 the Working Journalists and|
| | |other Newspaper Employees (Conditions |
| | |of Service) and Miscellaneous |
| | |Provisions (Amendment), Ordinance |
| | |1979. This ordinance provided for the|
| | |constitution of a Tribunal consisting |
| | |of a person who is/or has been a Judge|
| | |of the High Court or Supreme Court in |
| | |place of each such Board and the |
| | |abolition of such Boards upon the |
| | |constitution of such Tribunals and for|
| | |the continuance of the interim wages |
| | |notified by the Government after |
| | |taking into account the |
| | |recommendations of such Boards. |
(iv) Bachawat Wage Board
|Date of |Date of |Challenge |
|Appointment |Acceptance | |
|17.07.1985 |31.08.1989 |The award was challenged in Indian |
| | |Express Newspapers (Pvt.) Ltd. and Ors.|
| | |vs. Union of India & Ors. 1995 Supp (4)|
| | |SCC 758. |
(v) Manisana Wage Board
|Date of |Date of |Challenge |
|Appointment |Acceptance | |
|09.09.1994 |5.12.2000/15.|This Wage Board’s award was challenged|
| |12.2000 by |in Karnataka and Delhi High Court. |
| |Notification.|The Court while deciding the challenge|
| | |struck down the award on the ground |
| | |that the proviso to Section 12(2) was |
| | |not followed. However, despite the |
| | |Manisana Award being struck down it |
| | |was implemented by all the newspaper |
| | |establishments. |
(vi) Narayana Kurup Wage Board - Majithia Wage Board from 04.03.2009
|Date of |Date of |Challenge |
|Appointment |Acceptance | |
|24.05.2007 |31.12.2010 |With a slight modification, the |
| | |government notified it on 11.11.2011. |
| | |Its report is accepted and impugned in|
| | |these proceedings on various asserted |
| | |grounds. |
Constitution of Justice Majithia Wage Boards
4) The Government constituted two Boards on 24.05.2007, one for the
Working Journalists and the other for Non-Journalist Newspaper Employees
under Sections 9 and 13C of the Act under the Chairmanship of Dr. Justice
Narayana Kurup. The Chairman and six of the remaining nine members were
common to both the Wage Boards. The remaining three members each
representing the Working Journalists and Non-Journalist Newspaper Employees
had been nominated by their respective Unions. The Wage Boards were given
three years’ duration to submit their Reports to the Central Government.
5) However, due to sudden change of events, Dr. Justice K. Narayana
Kurup, the Chairman of the aforesaid Wage Boards submitted his resignation
effective from 31.07.2008 after completing more than one year’s tenure.
Subsequently, Justice Gurbax Rai Majithia, a retired judge of the High
Court of Mumbai was appointed as the common Chairman of the two Wage Boards
for Working Journalists and other Newspaper Employees who took over the
charge on 04.03.2009. Another significant change in the composition of the
Wage Boards occurred due to sudden demise of Shri Madan Phadnis
representing the All India Newspaper Employees Federation, who was a member
of the Wage Board for Non-Journalist Newspaper Employees. In his place,
Shri M.C. Narasimhan, as nominated by the same Federation, was substituted
as member of the Board for Non-Journalist Newspaper Employees. Since then,
the composition of the two Wage Boards has been as under:-
Wage Board for Working Journalists
|1. |Justice Gurbax Rai Majithia, retired Judge |Chairman |
| |of the High Court of Bombay at Mumbai | |
|2. |Shri K.M. Sahni, Former Secretary, Ministry |Independent |
| |of Labour and Employment |Member |
|3. |Shri B.P. Singh |Independent |
| | |Member |
|4. |Shri P.N. Prasanna Kumar |Independent |
| | |Member |
|5. |Shri Naresh Mohan, representing Indian |Representing |
| |Newspaper Society |Employers |
|6. |Shri Gurinder Singh, representing All India |Representing |
| |Small and Medium Newspapers |Employers |
|7. |Shri Prataprai, Tarachand Shah, representing|Representing |
| |Indian language Newspaper Association |Employers |
|8. |Shri K. Vikram Rao, President, Indian |Representing |
| |Federation of Working Journalists |Working |
| | |Journalists |
|9. |Dr. Nand Kishore Trikha, President, National|Representing |
| |Union of Journalists (India) |Working |
| | |Journalists |
|10. |Shri Suresh Akhouri, President, Indian |Representing |
| |Journalists Union |Working |
| | |Journalists |
Wage Board for Non-Journalist Newspaper Employees
|1. |Justice Gurbax Rai Majithia, retired Judge |Chairman |
| |of the High Court of Bombay at Mumbai | |
|2. |Shri K.M. Sahni, Former Secretary, Ministry |Independent |
| |of Labour and Employment |Member |
|3. |Shri B.P. Singh |Independent |
| | |Member |
|4. |Shri P.N. Prasanna Kumar |Independent |
| | |Member |
|5. |Shri Naresh Mohan, representing Indian |Representing |
| |Newspaper Society |Employers |
|6. |Shri Gurinder Singh, representing All India |Representing |
| |Small and Medium Newspapers |Employers |
|7. |Shri Prataprai, Tarachand Shah, representing|Representing |
| |Indian language Newspaper Association |Employers |
|8. |Shri M.C. Narasimhan, Vice President, All |Representing |
| |India Newspaper Employees Federation |Non-Journalist |
| | |Newspaper |
| | |Employees |
|9. |Shri Uma Shankar Mishra, Vice President, |Representing |
| |National Federation of Newspaper Employees |Non-Journalist |
| | |Newspaper |
| | |Employees |
|10. |Shri M.S. Yadav, General Secretary, |Representing |
| |Confederation of Newspapers and News |Non-Journalist |
| |Agencies Employees’ Organizations. |Newspaper |
| | |Employees |
6) Owing to the unexpected change of the members constituting the Wage
Boards, they could not finalize and submit their reports within the
prescribed period of three years as originally notified i.e., by
23.05.2010. As such, their term was then extended up to 31.12.2010. It is
this recommendation submitted by the Wage Boards, which was subsequently
accepted by the Central Government and notified on 11.11.2011 that is
impugned in the given proceedings.
Discussion
7) In succinct, the petitioners herein, challenged the recommendations
of the Wage Boards and the notification dated 11.11.2011 mainly on the
following grounds:-
i) Constitutional validity of the Act and the Amendment Act, 1974.
ii) Improper Constitution of the Wage Boards
iii) Irregularity in the procedure adopted by Majithia Wage Boards.
iv) Majithia Wage Boards overlooked the relevant aspects and
considered extraneous factors while drafting the recommendations
We shall examine and deliberate distinctively on each contested point
surfaced by the petitioners herein in the succeeding paragraphs.
8) Heard Mr. Anil B. Divan, Mr. K.K. Venugopal, Mr. P.P. Rao, Mr. Aman
Lekhi, Mr. S.S. Ramdas, Mr. Brijender Chahar, learned senior counsel for
the petitioners, Mr. Gopal Jain, Mr. Akhil Sibal, Mr. Nachiket Joshi, Mr.
Anil Shrivastav, Ms. Bina Gupta, Mr. Manoj Goel, Mr. E.C. Agrawala, learned
counsel for the petitioners, Mr. Mohan Parasaran, learned Solicitor General
for the official respondents, Mr. Colin Gonsalves, learned senior counsel
and Mr. Parmanand Pandey and Mr. Thampan Thomas, learned counsel for other
respondents – journalists/non-journalists.
Constitutional validity of the Act and Amendment Act, 1974
9) At the outset, almost all the learned counsel for the petitioners,
challenged the vires of the Act on twin grounds.
Firstly, the Act infringes
the guaranteed fundamental rights under Articles 14 and 19 of the
Constitution.
Secondly, the Act has become obsolete with the passage of
time.
10) It is submitted by learned counsel for the petitioners that misplaced
classification and singling out of a specific business industry being the
Newspaper Industry is violative of Article 14 since the Act only regulates
the print media and not electronic media. Also, in the era of globalization
and liberalization, to shackle one part of the industry with regulations is
unreasonable, unfair and arbitrary and, therefore, violative of Articles
19(1)(a) and 19(1)(g).
11) Learned senior counsel for the petitioners besides objecting to the
constitutionality of the Wage Boards also placed heavy reliance on the fact
that in other industries such as cotton, sugar, tea, coffee, rubber,
cement, jute, all the Wage Boards have been abolished over a period of time
(sugar being the last in 1989). They further emphasized on the fact that
the National Commission on Labour in 2002 also unequivocally recommended
that there was no need for a Wage Board to be constituted for any industry.
12) Likewise, it is the stand of the petitioners that due to significant
socio-economic changes having taken place in the Indian economy after de-
regulation and privatization, the necessity for Wage Boards has eclipsed.
In order to establish this, learned counsel referred to the object and
purpose of the Act i.e. to ameliorate the conditions of service. According
to learned senior counsel, this purpose has been achieved today as
journalists are paid a fair wage and also given a compensation package.
Resultantly, the requirement for controlling and regulating the conditions
of service of newspaper employees that was prevalent in earlier phase (1955
onwards) is no longer required.
13) Precisely, learned counsel for the petitioners stressed on the
ensuing four points to substantiate their claim that there is a complete
change in the scenario since 1955 when the Press Commission was constituted
to go into the conditions of employment of working journalists:
(a) The journalists are an essential and vital part of a newspaper
establishment. As an outcome, newspaper establishments require
skills, qualification and expertise to ensure the best content
as this is necessary for attracting, retaining and increasing
viewership which, in turn, requires the full support of
journalists.
(b) Through bilateral negotiations and discussions, the petitioners
have entered into contracts with a vast majority of journalists
and offered them wages, salaries and compensation package to
retain top class talent.
(c) The newspaper industry itself has undergone a sea change –
people ‘sleep with the news’ (due to the advent of news channels
on television). Further, printing technology has changed as a
consequence and the newspapers now offer a better quality
product. Manpower management has been strengthened to attract
the best talent.
(d) There is greater competition from the internet, digital media in
news channels and from foreign newspapers, therefore, there is
already an obligation on the print media to retain the best
talent by providing fine working conditions.
In brief, it was contended that in the present times of economic
liberalization, the Act has become obsolete.
As a result, Wage Boards have
lost their utility and purpose for which they were set up and the 1955 Act
have become outdated and have outlived its utility especially with the
advent of the electronic media and other avenues.
14) Moreover, learned senior counsel submitted that the track record and
report of the Wage Board is another pointer to this effect. Most of the
decisions of the Wage Board have been quashed. The recommendations of the
first Wage Board were set aside by this Court in Express Newspaper (P) Ltd.
vs. Union of India 1959 SCR 12 and the previous Manisana Wage Board (Vth
Wage Board) was also set aside by the Karnataka High Court and the Delhi
High Court on effective grounds. In view of the above assertions and taking
into account the ground realities, the petitioners prayed that they must be
given a free hand and should not be burdened with an outdated and
antiquated statute. Henceforth, they pleaded for abolishment of the Wage
Boards and to declare the Act unconstitutional.
15) In support of the above proposition, learned counsel for the
petitioners also relied on the decisions of this Court in John Vallamattom
vs. Union of India (2003) 6 SCC 611, Malpe Vishwanath Acharya vs. State of
Maharashtra (1998) 2 SCC 1 and Indian Handicrafts Emporium vs. Union of
India (2003) 7 SCC 589.
16) Mr. Mohan Parasaran, learned Solicitor General and Mr. Colin
Gonsalves, learned senior counsel effectively responded to all the
contentions raised by the petitioners, by relying on Constitution Bench
decisions of this Court and prayed for rejection of their arguments.
17) This is not the first time when the aspect as to the Constitutional
Validity of the Act as being ultra vires the Constitution and violative of
fundamental rights is being encountered by this Court.
It has already been
expressly decided by a Constitution Bench of this Court in Express
Newspaper (P) Ltd. vs. Union of India AIR 1958 SC 578 and has been held to
be intra vires the Constitution. The relevant portions of the said judgment
are extracted hereunder:
Challenge qua Article 19(1)(a):
“153. In the present case it is obvious that the only justification
for the enactment of the impugned Act is that it imposes reasonable
restrictions in the interests of a section of the general public viz.
the working journalists and other persons employed in the newspaper
establishments. It does not fall within any of the categories
specified in Article 19(2) viz.
“In the interest of the security of the State, friendly
relations with foreign States, public order, decency or morality,
or in relation to contempt of court, defamation or incitement to an
offence.”
Article 19(2) being thus out of the question, the only point that
falls to be determined by us is whether the provisions of the impugned
Act in any way take away or abridge the petitioners, fundamental right
of freedom of speech and expression.
154. It was contended before us by the learned Attorney-General that
it was only legislation directly dealing with the right mentioned in
Article 19(1)(a) that was protected by it. If the legislation was not
a direct legislation on the subject, Article 19(1)(a) would have no
application, the test being not the effect or result of legislation
but its subject-matter…”
*** *** ***
“160. …It could therefore hardly be urged that the possible effect of
the impact of these measures in conceivable cases would vitiate the
legislation as such. All the consequences which have been visualized
in this behalf by the petitioners viz. the tendency to curtail
circulation and thereby narrow the scope of dissemination of
information, fetters on the petitioners freedom to choose the means of
exercising the right, likelihood of the independence of the press
being undermined by having to seek government aid; the imposition of
penalty on the petitioner's right to choose the instruments for
exercising the freedom or compelling them to seek alternative media
etc, would be remote and depend upon various factors which may or may
not come into play. Unless these were the direct or inevitable
consequences of the measures enacted in the impugned Act, it would not
be possible to strike down the legislation as having that effect and
operation. A possible eventuality of this type would not necessarily
be the consequence which could be in the contemplation of the
legislature while enacting a measure of this type for the benefit of
the workmen concerned.
161. Even though the impugned Act enacts measures for the benefit of
the working journalists who are employed in newspaper establishments,
the working journalists are but the vocal organs and the necessary
agencies for the exercise of the right of free speech and expression,
and any legislation directed towards the amelioration of their
conditions of service must necessarily affect the newspaper
establishments and have its repercussions on the freedom of press. The
impugned Act can therefore be legitimately characterized as a measure
which affects the press, and if the intention or the proximate effect
and operation of the Act was such as to bring it within the mischief
of Article 19(1)(a) it would certainly be liable to be struck down.
The real difficulty, however, in the way of the petitioners is that
whatever be the measures enacted for the benefit of the working
journalists neither the intention nor the effect and operation of the
impugned act is to take away or abridge the right of freedom of speech
and expression enjoyed by the petitioners.
162. The gravamen of the complaint of the petitioners against the
impugned Act, however, has been the appointment of the Wage Board for
fixation of rates of wages for the working journalists and it is
contended that apart from creating a class of privileged workers with
benefits and rights which were not conferred upon other employees of
industrial establishments, the act has left the fixation of rates of
wages to an agency invested with arbitrary and uncanalised powers to
impose an indeterminate burden on the wage structure of the press, to
impose such employer-employee relations as in its discretion it thinks
fit and to impose such burden and relations for such time as it thinks
proper. This contention will be more appropriately dealt with while
considering the alleged infringement of the fundamental right
enshrined in Article 19(1)(g). Suffice it to say that so far as
Article 19(1)(a) is concerned this contention also has a remote
bearing on the same and need not be discussed here at any particular
length.”
Challenge qua Article 19(1)(g)
“209. This attack of the petitioners on the constitutionality of
the impugned Act under Article 19(1)(g) viz. that it violates the
petitioners' fundamental right to carry on business, therefore fails
except in regard to Section 5(1)(a)(iii) thereof which being clearly
severable from the rest of the provisions, can be struck down as
unconstitutional without invalidating the other parts of the impugned
Act.”
18) In succinct, the Constitution Bench of this Court in the aforesaid
case held that the impugned Act, judged by its provisions, was not such a
law but was a beneficent legislation intended to regulate the conditions of
service of the working journalists and the consequences that were adverted
to in that case could not be the direct and inevitable result of it. It
also expressed the view that although there could be no doubt that liberty
of the press was an essential part of the freedom of speech and expression
guaranteed under Article 19(1)(a) and if the law were to single out the
press to lay prohibitive burdens, it would fall outside the protection
afforded by Article 19(2), the impugned Act which directly affected the
press fall outside the categories of protection mentioned in Article 19(2)
had not the effect of taking away or abridging the freedom of speech and
expression of the petitioners and did not, therefore, infringe Article
19(1)(a) of the Constitution. Nor could it be held to be violative of
Article 19(1)(g) of the Constitution in view of the test of reasonableness
laid down by this Court.
19) Alternative challenge to the constitutionality of the Act was on the
basis that selecting working journalists for giving favored treatment is
violative of Article 14 as it is not a reasonable classification as
permissible in the aforesaid Article. The Constitution Bench dealt with
this aspect in the following terms:
Challenge qua Article 14
“210. Re: Art 14.- The question as formulated is that the impugned
Act selected the working journalists for favoured treatment by giving
them a statutory guarantee of gratuity, hours of work and leave which
other persons in similar or comparable employment had not got and in
providing for the fixation of their salaries without following the
normal procedure envisaged in the Industrial Disputes Act, 1947. The
following propositions are advanced:
1. In selecting the Press industry employers from all industrial
employers governed by the ordinary law regulating industrial relations
under the Industrial Disputes Act, 1947 and Act 1 of 1955 the impugned
Act subjects the Press industry employers to discriminatory treatment.
2. Such discrimination lies in
(a) singling out newspaper employees for differential treatment;
(b) saddling them with a new burden in regard to a section of their
workers in matters of gratuities, compensation, hours of work and
wages;
(c) devising a machinery in the form of a Pay Commission for fixing
the wages of working journalists;
(d) not prescribing the major criterion of capacity to pay to be
taken into consideration;
(e) allowing the Board in fixing the wages to adopt any arbitrary
procedure even violating the principle of audi alteram partem;
(f) permitting the Board the discretion to operate the procedure of
the Industrial Disputes Act for some newspapers and any arbitrary
procedure for others;
(g) making the decision binding only on the employers and not on
the employees, and
(h) providing for the recovery of money due from the employers in
the same manner as an arrear of land revenue.
3. The classification made by the impugned Act is arbitrary and
unreasonable, insofar as it removes the newspaper employers vis-à-vis
working journalists from the general operation of the Industrial
Disputes Act, 1947 and Act 1 of 1955.
*** *** ***
212. We have already set out what the Press Commission had to say in
regard to the position of the working journalists in our country. A
further passage from the Report may also be quoted in this context:
“It is essential to realize in this connection that the work of a
journalist demands a high degree of general education and some kind of
specialized training. Newspapers are a vital instrument for the
education of the masses and it is their business to protect the rights
of the people, to reflect and guide public opinion and to criticize
the wrong done by any individual or organization however high placed.
They thus form an essential adjunct to democracy. The profession must,
therefore, be manned by men of high intellectual and moral qualities.
The journalists are in a sense creative artists and the public rightly
or wrongly, expect from them a general omniscience and a capacity to
express opinion on any topic that may arise under the sun. Apart from
the nature of their work the conditions under which that work is to be
performed, are peculiar to this profession. Journalists have to work
at very high pressure and as most of the papers come out in the
morning, the journalists are required to work late in the night and
round the clock. The edition must go to press by a particular time and
all the news that breaks before that hour has got to find its place in
that edition. Journalism thus becomes a highly specialized job and to
handle it adequately a person should be well-read, have the ability to
size up a situation and to arrive quickly at the correct conclusion,
and have the capacity to stand the stress and strain of the work
involved. His work cannot be measured, as in other industries, by the
quantity of the output, for the quality of work is an essential
element in measuring the capacity of the journalists. Moreover,
insecurity of tenure is a peculiar feature of this profession. This is
not to say that no security exists in other professions but
circumstances may arise in connection with profession of journalism
which may lead to unemployment in this profession, which would not
necessarily have that result in other professions. Their security
depends to some extent on the whims and caprices of the proprietors.
We have come across cases where a change in the ownership of the paper
or a change in the editorial policy of the paper has resulted in a
considerable change in the editorial staff. In the case of other
industries a change in the proprietorship does not normally entail a
change in the staff. But as the essential purpose of a newspaper is
not only to give news but to educate and guide public opinion, a
change in the proprietorship or in the editorial policy of the paper
may result and in some cases has resulted in a wholesale change of the
staff on the editorial side. These circumstances, which are peculiar
to journalism must be borne in mind in framing any scheme for
improvement of the conditions of working journalists.” (para 512).
213. These were the considerations which weighed with the Press
Commission in recommending the working journalists for special
treatment as compared with the other employees of newspaper
establishments in the matter of amelioration of their conditions of
service.
*** *** ***
215. …The working journalists are thus a group by themselves and could
be classified as such apart from the other employees of newspaper
establishments and if the legislature embarked upon a legislation for
the purpose of ameliorating their conditions of service there was
nothing discriminatory about it. They could be singled out thus for
preferential treatment against the other employees of newspaper
establishments. A classification of this type could not come within
the ban of Article 14. The only thing which is prohibited under this
article is that persons belonging to a particular group or class
should not be treated differently as amongst themselves and no such
charge could be levelled against this piece of legislation. 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 of wages by way of constituting a
Wage Board for the purpose could be similarly devised. There was no
industrial dispute as such which had arisen or was apprehended to
arise as between the employers and the working journalists in general,
though it could have possibly arisen as between the employers in a
particular newspaper establishment and its own working journalists.
What was contemplated by the provisions of the impugned Act, however,
was a general fixation of rates of wages of working journalists which
would ameliorate the conditions of their service and the constitution
of a Wage Board for this purpose was one of the established modes of
achieving that object. If, therefore, such a machinery was devised for
their benefit, there was nothing objectionable in it and there was no
discrimination as between the working journalists and the other
employees of newspaper establishments in that behalf…
216. … Even considering the Act as a measure of social welfare
legislation the State could only make a beginning somewhere without
embarking on similar legislations in relation to all other industries
and if that was done in this case no charge could be levelled against
the State that it was discriminating against one industry as compared
with the others. The classification could well be founded on
geographical basis or be according to objects or occupations or the
like. The only question for consideration would be whether there was a
nexus between the basis of classification and the object of the Act
sought to be challenged. In our opinion, both the conditions of
permissible classification were fulfilled in the present case. The
classification was based on an intelligible differentia which
distinguished the working journalists from other employees of
newspaper establishments and that differentia had a rational relation
to the object sought to be achieved viz. the amelioration of the
conditions of service of working journalists.”
20) The above position has been reiterated by this Court in the form of
observations in Express Publications (Madurai) Ltd. vs. Union of India
(2004) 11 SCC 526. The relevant portion of the said judgment is extracted
hereunder:
“29…The observations in the judgment were pressed into service in
support of the contention that freedom of speech and expression would
be adversely affected by continuing the definition of “excluded
employee” in respect of the newspaper industry which has been singled
out for harsh treatment. As can be seen from above, observations have
been made in a different context. In any case, the decision, far from
supporting the contention of the petitioners, in fact, to an extent
lends support to the benefit that was given to the employees of the
newspaper industry in the year 1956 as a result of the impugned
provision. It has to be remembered that in spreading information, the
employees of newspaper industry play a dominant role and considering
the employees of newspaper industry as a “class”, this benefit was
extended almost at the same time when the Working Journalists Act was
enacted. Thus, there can be no question of any adverse effect on the
freedom of press. The financial burden on the employer, on facts as
herein, cannot be said to be a “harsh treatment”. The contention that
now the petitioners are unable to bear the financial burden which they
have been bearing for the last over forty-five years is wholly
irrelevant. It is for the petitioners to manage their affairs if they
intend to continue with their activity as newspaper establishment.
*** *** ***
31. This Court noticed that the journalists are but the vocal
organs and the necessary agencies for the exercise of the right of
free speech and expression and any legislation directed towards the
amelioration of their conditions of service must necessarily affect
the newspaper establishments and have its repercussions on the freedom
of press.
The impugned Act can, therefore, be legitimately
characterised as a measure which affects the press and if the
intention or the proximate effect and operation of the Act was such as
to bring it within the mischief of Article 19(1)(a), it would
certainly be liable to be struck down.
The real difficulty, however,
in the way of the petitioners is that whatever be the measures enacted
for the benefit of the working journalists neither the intention nor
the effect and operation of the impugned Act is to take away or
abridge the right of freedom of speech and expression enjoyed by the
petitioners.
The question of violation of right of freedom of speech
and expression as guaranteed under Article 19(1)(a) in the present
case on account of additional burden as a result of the impugned
provision does not arise.
*** *** ***
34. In the light of the aforesaid principles, in Express Newspaper
the Court considered whether the Act impugned therein violated the
fundamental right guaranteed under Article 14. It was observed that in
framing the Scheme, various circumstances peculiar to the press had to
be taken into consideration. These considerations weighed with the
Press Commission in recommending special treatment for working
journalists in the matter of amelioration of their conditions of
service. The position as prevailing in other countries was also
noticed. In a nutshell, the working journalists were held as a group
by themselves and could be classified as such. If the legislature
embarked upon a legislation for the purpose of ameliorating their
conditions of service, there was nothing discriminatory about it. They
could be singled out for preferential treatment. It was opined that
classification of this type could not come within the ban of Article
14.
Considering the position in regard to the alleged discrimination
between press industry employers on one hand and the other industrial
employers on the other, it was said that even considering the Act as a
measure of social welfare legislation, the State could only make a
beginning somewhere without embarking on similar legislations in
relation to all other industries and if that was done in this case no
charge could be levelled against the State that it was discriminating
against one industry as compared with the others.
The classification
could well be founded on geographical basis or be according to objects
or occupations or the like. The only question for consideration would
be
whether there was a nexus between the basis of classification and
the object of the Act sought to be achieved. Both the conditions of
permissible classification were fulfilled. The classification was held
to be based on an intelligible differentia which had a rational
relation to the object sought to be achieved viz. the amelioration of
the conditions of service of working journalists. The attack on
constitutionality of the Act based on Article 14 was negatived.
35. Though challenge in the aforesaid case was to special treatment
to working journalists but what is to be seen is, that the press
industry was held to be a class by itself. The definition of
“newspaper employee” takes into its fold all the employees who are
employed to do any work in, or in relation to, any newspaper
establishment. The decision in Express Newspaper case amply answers
the main contention about the press industry having been singled out,
against the petitioners. This decision also holds that to provide
social welfare legislation and grant benefit, a beginning had to be
made somewhere without embarking on similar legislation in relation to
other industries. The fact that even after about half a century
similar benefit has not been extended to the employees of any other
industry, will not result in invalidation of benefit given to
employees of press industry. It is not for us to decide when, if at
all, to extend the benefit to others. In view of the aforesaid, we are
unable to accept the contention that the impugned provision is
violative of Article 14 on the ground that it singles out newspaper
industry by excluding income test only in regard to the said industry.
36. Apart from the fact that it may not be always possible to grant
to everyone all benefits in one go at the same time, it seems that the
impugned provision and the enacting of the Working Journalists Act was
part of a package deal and that probably is the reason for other
newspaper establishments not challenging it and the petitioners also
challenging it only after lapse of so many years. Further, Sections
2(i), 4 and Schedule I of the Provident Fund Act show how gradually
the scope of the Act has been expanded by the Central Government and
the Act and Scheme made applicable to various branches of industries.
From whatever angle we may examine, the attack on the constitutional
validity based on Article 14 cannot be accepted.”
Challenge qua Amendment Act, 1974
21) The petitioners herein have also challenged the vires of the
Amendment Act, 1974 on the ground that extending the benefit of the Act to
employees other than working journalists is against the object that was
sought to be achieved by the original Act since the benefits to other
newspaper employees has no rational nexus between the differentia and the
object sought to be achieved. In this regard, as already discussed,
challenge as to the singling out of the newspaper industry per se was
rejected by the Constitution Bench in Express Newspaper (P) Ltd. (supra)
and the newspaper industry was held to be a class by itself. All that the
1974 amendment did was to only bring the other employees of the newspaper
industry (i.e. non-working journalists) into the ambit of the Act and
extend the benefits of the Act to them. Thus, the same is also covered as
per the reasoning of the Constitution Bench decision of this Court.
Therefore, the challenge as to the Amendment Act, 1974 stands disallowed.
22) Although, the aspect of violation of Article 14 was intricately
decided by the Constitution Bench, it is the stand of the petitioners
herein that while there may have been some justification for dealing only
with newspaper establishments in 1955, however, with the revolution in
information technology, there is no justification for confining regulation
only to print media as in the existing scenario persons engaged in the same
avocation (journalism) would be subject to different restrictions and would
be unreasonably hampered in the social and industrial relations with each
other. Further, it is submitted by the petitioners that the classification
between journalists in newspaper establishments and others does not bear
any relationship with the object. Therefore, the continuation of such a
provision would create a disadvantaged class i.e. newspaper establishments
without there being a rational basis for the same and consequently
affecting both the incentive and capacity to achieve the object for which
classification is made. After the very lapse of a long period from the date
of enactment of the Act and the connected change of circumstances during
this period has made the law discriminatory as it is now arbitrarily
confined to a selected group out of a large number of other persons
similarly situated. Henceforth, it is the stand of the petitioners that the
grab of constitutionality that the Act may have possessed earlier has worn
out and its constitutionality is open to a successful challenge.
23) While this argument may be as appealing as it sounds, yet we are not
inclined to interfere on this point of challenge in order to maintain the
equity among parties. It is important that this Court appreciates the realm
of Article 14 of the Constitution in the light of the interest of both
employers and the employees and not in one-sided manner. The argument of
the petitioners that it is violative of Article 14 is one version of the
story i.e. employers grievance, whereas this Court must look into the
perspective of employees also while determining the issue at hand.
24) For the ensuing two reasons, this Court is opting for not to
interfere on this alleged ground of challenge. Firstly, the petitioners
cannot espouse the grievance of those employees working in the electronic
media for non-inclusion and, more particularly, when those employees are
not before this Court. Secondly, the fact that similar benefits are not
extended to the employees of other similar industry will not result in
invalidation of benefit given to the employees of press industry. Recalling
that media industry is still an upcoming sector unlike the press industry,
which is as ancient as our independence itself, the scope for potential
policies in future cannot be overruled. In view of the same, this ground
of challenge is rejected.
25) As regards the second ground of challenge, i.e., the Act over the
passage of time has outlived its utility and the object that was sought to
be achieved originally has become obsolete especially in view of the fact
that Wage Boards for other industries have been abolished, it is our cogent
opinion that mere passage of time by itself would not result in the
invalidation of the Act and its object. The validity once having been
upheld by a Constitution Bench of this Court in Express Newspapers (P) Ltd.
(supra), the same cannot be now challenged saying that it has outlived its
object and purpose and has been worn out by the passage of time. The
principles laid down in Motor General Traders vs. State of Andhra Pradesh
(1984) 1 SCC 222 and Ratan Arya vs. State of Tamil Nadu (1986) 3 SCC 385
are squarely inapplicable as has been held in the context of identical
factual scenario.
26) When this Court was considering the case of a newspaper establishment
qua para 82 of the Employees’ Provident Funds Scheme in Express
Publications (Madurai) Ltd. (supra), the said judgment also puts the
challenge as to the vires of the Act like the one made by the petitioners
in the present case, but beyond pale of any doubt, it consciously
reiterates the spirit of law laid down in Express Newspaper (P) Ltd.
(supra).
27) The petitioners relied on the Report of the Second National
Commission of Labour to contend that the Act has become archaic. In this
regard, it is relevant to note that the aforementioned Report is not
relevant, as the Government has not accepted the said Report insofar as the
Statutory Wage Boards are concerned. Thus, any observation in the said
Report as to the non-requirement of Wage Boards generally, cannot be the
basis for not complying with the statutory obligations under the Act.
Insofar as the 2002 National Commission of Labour Report is concerned, as
stated above, the same has not been accepted by the Government of India, in
respect of the functioning of the Act.
28) In the light of the aforesaid discussion, we are of the opinion that
the challenge as to the vires of the Act on the premise of it being ultra
vires the Constitution and violative of fundamental rights is wholly
unfounded, baseless and completely untenable.
29) It is true that newspaper industry, with the advent of electronic
media, continues to face greater challenges similar to the ones as observed
by the Press Commission as noted in the Express Newspaper (P) Ltd. (supra)
enumerated hereinabove. Thus, the contention of the petitioners that
though the newspaper industry may be growing, the growth of the electronic
media is relatively exponential, in fact, substantiates the very necessity
of why a wage board for working journalists and other newspaper employees
of the newspaper industry should exist.
Improper Constitution of the Wage Boards
30) As reiterated hitherto, the Wage Boards constituted under Sections 9
and 13C of the Act are required to be comprised of 10 members i.e. one
Chairman, three independent members, three representatives for employers
and three representatives for employees. On behalf of the petitioners
herein (newspaper management), it was contended that there was a defect in
the constitution of the Wage Boards as Mr. K.M. Sahani and Mr. Prasanna
Kumar were not independent members thus, it fatally vitiates the
constitution and proceedings of the Majithia Wage Boards. On the other
hand, it was pointed out by learned Solicitor General for the Union of
India and the employees that the constitution of the Wage Boards have been
undertaken strictly in accordance with the Act and the “Independent
Members”, so required, under Sections 9(c) and 13C(c) of the Act have been
appointed in accordance with the law. Let us examine this point of strife
based on the factual matrix.
31) The petitioners’ main ground of challenge to Mr. K.M. Sahni’s
independence is that since at the relevant time he was a former Secretary
of Ministry of Labour and Employment, Government of India and during his
tenure the decision to constitute the Wage Board was taken and, thus, he
cannot be expected to be an independent and free from bias. It is seen from
the materials placed on record by the Union of India that in order to
operationalize the Boards, Shri K.M. Sahni, who had superannuated as
Secretary to Government of India on 31.12.2006 was appointed as Member-
Secretary on 24.01.2007 for a period of three years or till the duration of
the Wage Board, whichever is earlier. Merely because a person was in the
employment of the Government, he does not cease to become “independent” for
the purposes of being an independent member of the Committee to recommend
the fixing of wages.
32) Similar fact underlying this issue has been the subject-matter of
this Court in State of Andhra Pradesh vs. Narayana Velur Beedi
Manufacturing Factory (1973) 4 SCC 178, and it is only necessary to set out
the summary thereof given by A.N. Grover, J.:
“9. In our judgment the view which has prevailed with the majority of
the High Courts must be sustained. The committee or the advisory board
can only tender advice which is not binding on the Government while
fixing the minimum wages or revising the same as the case may be. Of
course, the Government is expected, particularly in the present
democratic set-up, to take that advice seriously into consideration
and act on it but it is not bound to do so. The language of Section 9
does not contain any indication whatsoever that persons in the
employment of the Government would be excluded from the category of
independent persons. Those words have essentially been employed in
contradistinction to representatives of employer and employees. In
other words, apart from the representatives of employers and employees
there should be persons who should be independent of them. It does not
follow that persons in the service or employ of the Government were
meant to be excluded and they cannot be regarded as independent
persons vis-à-vis the representatives of the employers and employees.
Apart from this the presence of high government officials who may have
actual working knowledge about the problems of employers and employees
can afford a good deal of guidance and assistance in formulating the
advice which is to be tendered under Section 9 to the appropriate
Government. It may be that in certain circumstances such persons who
are in the service of the Government may cease to have an independent
character if the question arises of fixation of minimum wages in a
scheduled employment in which the appropriate Government is directly
interested. It would, therefore, depend upon the facts of each
particular case whether the persons who have been appointed from out
of the class of independent persons can be regarded as independent or
not. But the mere fact that they happen to be government officials or
government servants will not divest them of the character of
independent persons. We are not impressed with the reasoning adopted
that a government official will have a bias, or that he may favour the
policy which the appropriate Government may be inclined to adopt
because when he is a member of an advisory committee or board he is
expected to give an impartial and independent advice and not merely
carry out what the Government may be inclined to do. Government
officials are responsible persons and it cannot be said that they are
not capable of taking a detached and impartial view.”
33) Consequently, merely because Shri K.M. Sahni was a part of the
Government that took the decision to set up the Wage Boards, does not
automatically follow that he ceased to be an “independent” member of the
Wage Boards. We are satisfied that Shri K.M. Sahni is an independent member
of the Board and cannot be considered to be “biased” in any manner.
34) The petitioners also allege that Mr. P.N. Prasanna Kumar, as an
experienced journalist and having been associated with various journalistic
institutions in his long journalistic career, cannot be considered to be an
“independent” member and, therefore, was biased in favour of the employees.
Learned Solicitor General has rightly pointed out that only vague and
general allegations have been alleged against him and no specific
allegations that he acted in a manner that was biased against the employers
has been levied by the petitioners.
35) It is well-settled that mere apprehension of bias is not enough and
there must be cogent evidence available on record to come to the
conclusion. Reference may be made to Kumaon Mandal Vikas Nigam Ltd. vs.
Girja Shankar Pant (2001) 1 SCC 182 in the following words:
“10. The word “bias” in popular English parlance stands included
within the attributes and broader purview of the word “malice”, which
in common acceptation means and implies “spite” or “ill-will”
(Stroud’s Judicial Dictionary, 5th Edn., Vol. 3) and it is now well
settled that mere general statements will not be sufficient for the
purposes of indication of ill-will. There must be cogent evidence
available on record to come to the conclusion as to whether in fact
there was existing a bias which resulted in the miscarriage of
justice.”
36) This Court, in State of Punjab vs. V.K. Khanna (2001) 2 SCC 330, has
held as follows:
“8. The test, therefore, is as to whether there is a mere
apprehension of bias or there is a real danger of bias and it is on
this score that the surrounding circumstances must and ought to be
collated and necessary conclusion drawn therefrom. In the event,
however, the conclusion is otherwise that there is existing a real
danger of bias administrative action cannot be sustained. If on the
other hand allegations pertain to rather fanciful apprehension in
administrative action, question of declaring them to be unsustainable
on the basis therefor, would not arise.”
37) The contention of the petitioners alleging bias against independent
members of the Wage Boards, being based merely on their past status, is
entirely baseless in law and amounts to imputing motives. Further, the
petitioners have nowhere established or even averred that the independent
members are guilty of legal bias as expressed in Perspective Publications
vs. State of Maharashtra (1969) 2 SCR 779, that is, making their
recommendations on the basis of wholly extraneous considerations or
personal or pecuniary benefit.
38) On perusal of the materials available, we are satisfied that the Wage
Boards have functioned in a fully balanced manner. Besides, it is a fact
that the petitioners had challenged the constitution of the Wage Board
before the High Court of Delhi, admittedly, the High Court had declined to
grant interim relief. The said order declining/refusing to grant interim
relief attained finality as the petitioners did not choose to challenge it
before this Court. Thereafter, the petitioners have participated in the
proceedings and acquiesced themselves with the proceedings of the Board.
In view of the fact that they have participated in the proceedings without
seriously having challenged the constitution as well as the composition,
the petitioners cannot now be allowed to challenge the same at this stage.
More so, it is also pertinent to take note of the fact that the petitioners
herein opted for challenging the independence of the nominated independent
members only after the recommendations by the Wage Boards were notified by
the Central Government.
39) Hence, the attack of the petitioners on the independence of the
appointed independent members by saying that they were not sufficiently
neutral, impartial or unbiased towards the petitioners herein, is incorrect
in the light of factual matrix and cannot be raised at this point of time
when they willfully conceded to the proceedings. Consequently, we are not
inclined to accept this ground of challenge.
40) Apart from the challenge to the independence of the members, the
petitioners also contended that two separate Wage Boards ought to have been
constituted instead of a common wage board. It is relevant to point out
that ever since the 1974 amendment only a common wage board was being
constituted. The Financial Memorandum accompanying the Working Journalists
(Conditions of Service) and Miscellaneous Provisions (Amendment) Bill, 1974
specifically states that “the intention is to constitute Wage Boards under
the said Section 9 and proposed Section 13C as far as possible at the same
time and to have a common Chairman and a common Secretariat for both the
Boards”. Further, it is brought to our notice that the Palekar Tribunal
(1980), Bachawat Wage Board (1989) and Manisana Wage Board (2000)
constituted after 1974 amendment were all common Boards/Tribunal for both
working journalists and non-journalists. Though the members representing
employers were common, they were not incapacitated in any manner as is
being contended by the petitioners. They were having two votes as they
were representing the employers in both the Boards.
41) In addition, the representatives from the employers’ side are common
in both the Wage Boards as all types of newspaper employees, either working
journalists or non-journalists found to be working under common employers.
Having common representatives of the employers on the two Wage Boards are
expected to be favorable to the employers as they can make a fair
assessment of the requirements of the working journalists and non-
journalist newspaper employees of the newspaper industry as a whole.
However, as the two Wage Boards have separate entities meant for working
journalists and non-journalist newspaper employees, there cannot be common
representatives who can protect the interest and represent working
journalists as well as non-journalist newspaper employees. Therefore,
members representing working journalists were nominated to the Wage Board
for the working journalists. Similarly, members representing non-
journalist newspaper employees were nominated to the Wage Boards for non-
journalist newspaper employees. As aforesaid, for administrative
convenience, four independent members, including the Chairman were common
for both the Wage Boards. In our cogent view, this arrangement in no way
affects the interest of the employers and the challenge of the petitioners
in this regard is unfounded.
Irregularity in the procedure followed by Majithia Wage Boards
42) Learned counsel for the petitioners pointed out to a series of
factual aspects to demonstrate that there existed irregularity in the
decision making process by the Majithia Wage Board which was attacked as
ultra vires the Act and contrary to procedure adopted by the predecessor
Wage Boards. In succinct, the stand of the petitioners is that Majithia
Wage Board Report was prepared in a hasty manner and subsequently, the
recommendations have been accepted by the Central Government without proper
hearing or affording opportunity to all the stakeholders. Whereas the
respondent – Union of India clearly contended otherwise and submitted that
the impugned Wage Boards throughout adopted a fair procedure, which stands
the test of natural justice. Besides, it is the stand of the respondents
that the representatives of the management were not cooperating but were
merely attending the Wage Board proceedings, therefore, the Chairman was
not getting adequate aid and help from the representatives of the newspaper
owners.
43) Broadly, the petitioners’ foremost contention is that the Wage Boards
have not functioned in accordance with the law inasmuch as no questionnaire
was issued to elicit information to determine the capacity to pay and that
principles of natural justice were not followed in conducting the
proceedings and for arriving at the recommendations, which was the
accustomed procedure of previous Wage Boards. At the outset, it is relevant
to point out that under Section 11(1) of the Act, Wage Board has special
powers to regulate its own procedure. It is not obligatory for the Wage
Boards to follow the exact procedure of the earlier Wage Boards and as such
there is no requirement in law to follow a strictly laid down procedure in
its functioning. Besides, as long as it follows the principles of natural
justice and fairness, its functioning cannot be called into question on the
ground of irregularity in the procedure. Now, let us examine the
submissions of the petitioners in this light.
44) It is brought to our notice that detailed questionnaire was issued on
24.07.2007. The petitioners in their opening arguments contended that no
questionnaire was issued. However, the Union of India placed voluminous
documents to demonstrate that a detailed questionnaire was in fact issued
on 24.07.2007 and that this questionnaire was commented upon and it was
corrected also and further respondents also received replies pursuant to
the same. The petitioners in their rejoinder have attempted to make a
feeble argument that the said questionnaire was issued by the secretariat
and not by the Wage Boards, which is fit to be rejected.
45) It is also brought to our notice that several attempts were made by
the Wage Boards to get the relevant information from the employers but many
of the petitioners had not given financial data and abstained from
attending the Board’s proceedings. Records produced show that the
questionnaire was sent to all the subscribers listed in the directory of
newspaper establishments published by INS for the year 2008-09 and the list
supplied by the PTI for sending financial information from 2000-01 to 2009-
10. Regular follow up with the employers was made and series of letters
were issued to collect financial information. Apart from the
questionnaire, notices inviting representation as per Section 10(1) of the
Act were published in 125 newspapers. Further, on 05.07.2010, summons were
issued to around one hundred and forty stake holders and they were given
final chance to submit the information within fifteen days of the summons.
In addition to this, a two page simplified questionnaire was also issued on
02.03.2010.
46) Consequently, the allegation that only 40 establishments have been
used as parameters which is under-representative of the industry is
incorrect. In fact, as has been detailed in the Report, the data from
newspaper establishments was not forthcoming (vide pages 100-101 of
Majithia Wage Board Report). With all these efforts, financial information
could be collected from only sixty-six establishments and after scrutiny,
it was found that financial information received from only forty
establishments was useful in developing an overall view of the financial
status of the newspaper industry. Therefore, it was only upon much effort
and repeated requests that the data in respect of 40 establishments could
be collected by the Wage Board. Besides, these 40 establishments are
representatives of the different class of newspaper establishments that are
carrying on business in the country and in addition detailed submissions by
representative groups such as the Indian Newspaper Society (INS) were also
considered. Thus, it can certainly be construed that these representative
bodies presented an overview of the whole newspaper industry, apart from
the information being collected from the individual establishments.
47) From the records, we furnish the following chronology of events:
| |“Letter dated 28.12.2007 by Mr. Naresh Mohan containing|
| |“Comments on Draft Questionnaire” |
| |Letters dated 14.01.2008 and 18.01.2008 requesting for |
| |extension of time for submission of response to |
| |questionnaire |
| |Letter dated 14.02.2008 extending time limit for |
| |submission of response to questionnaire till 30.06.2008|
| |Response of Hitavada Shramik Sangh, Nagpur dated |
| |23.06.2008 to the questionnaire |
| |Response of the Times of India and Allied Publications’|
| |Employees’ Union to the questionnaire |
| |Letters by various Employees’ Union requesting for |
| |extension of time for submission of response to |
| |questionnaire |
| |Letter dated 14.11.2008 addressed to all the members of|
| |the Wage Boards seeking their views on extending the |
| |last date for submission of completed questionnaire up |
| |to 28.02.2009 |
| |Letter dated 04.12.2008 by Mr. Naresh Mohan expressing |
| |no objection for extending the last date for submission|
| |of completed questionnaire up to 28.02.2009 |
| |Letters dated 17.12.2008, 18.12.2008, 19.12.2008 |
| |addressed to the members of the Wage Board, |
| |stakeholders informing extension of last date for |
| |submission of completed questionnaire up to 28.02.2009 |
| |Letters dated 19.03.2009, 08.06.2009, 09.06.2009 |
| |addressed to the members of the Wage Board, |
| |stakeholders informing extension of last date for |
| |submission of completed questionnaire up to 30.06.2009 |
| |Letter dated 03.07.2009 addressed to the Wage Board |
| |members to prevail upon their constituents to submit |
| |their response to the questionnaire |
| |Response of Lokmat Shramik Sanghatana, Nagpur dated |
| |04.02.2009 to the questionnaire |
| |Response of the Tribune Employees Union, Chandigarh |
| |dated 25.07.2009 to the questionnaire |
| |Response of National Union of Journalists (India) dated|
| |31.08.2009 to the questionnaire |
| |Letter dated 01.09.2009 by Chairman, Wage Boards |
| |requesting the members of the Wage Boards to prevail |
| |upon their constituents to submit their response to the|
| |questionnaire |
| |Response of the Press Trust of India Ltd. dated |
| |29.09.2009 to the submissions dated 30.06.2009 made by |
| |Federation of PTI Employees’ Union and to the |
| |questionnaire |
| |Letter dated 12.05.2010 forwarding copies of responses |
| |to the questionnaire received by the Wage Boards to all|
| |the members. |
| |The notice dated 16.11.2007 issued under Sections 10(1)|
| |and 13D of the Act was published in 125 newspapers |
| |Considering the requests and representations received |
| |from various stakeholders, the time period for making |
| |representation in terms of Sections 10(1) and 13D of |
| |the Act was extended till 30.06.2008 |
| |The time period for making representation in terms of |
| |Sections 10(1) and 13D of the Act was further extended |
| |till 31.10.2008 |
| |The time period for making representation in terms of |
| |Sections 10(1) and 13D of the Act extended till |
| |28.02.2009 |
| |The time period for making representation in terms of |
| |Sections 10(1) and 13D of the Act was extended till |
| |30.06.2009 |
| |The time period for making representation in terms of |
| |Sections 10(1) and 13D of the Act was extended till |
| |06.08.2009 |
| |Notice dated 09.07.2010 was given to all the |
| |stakeholders for final hearing before the Wage Boards |
| |on 26.07.2010 to 01.08.2010” |
48) In addition to the aforesaid chronology of events, a perusal of
Chapter 3 of the Majithia Wage Board recommendations will clearly indicate
that the procedure adopted by the Wage Boards did, in fact, give ample
opportunities to the stakeholders to give representations and financial
data, etc. so that the same may be considered by the Wage Boards for making
their recommendations. However, many of the petitioners have never
bothered to attend the proceedings of the Wage Board and submitted
financial data.
49) The details of the meetings and oral hearings conducted by the Wage
Boards (culled out from the Wage Board proceedings) are as follows:
|“30.06.2007 |First meeting of the wage boards was held. |
|02-04.08.2007 |Second meeting of the wage boards was held. |
|16.11.2007 |Notice under Sections 10(1) and 13D of the Act |
| |was issued to all newspaper establishments, |
| |working journalists, non-journalists newspaper |
| |and news agency employees to make representation|
| |in writing within eight weeks from the date of |
| |notice stating the rates of wages which, in the |
| |opinion of the capacity of the employer to pay |
| |the same or to any other circumstance, whichever|
| |may seem relevant to them. |
|08.01.2008 |Government made a reference to Wage Board for |
| |fixing interim rate of wages in terms of Section|
| |13A of the 1955 Act. |
|12 & 13.06.2008|Third meeting of the Wage Boards held to discuss|
| |interim rates of wages |
|28.06.2008 |Fourth meeting of the Wage Boards was held to |
| |consider the issue of interim rates of wages to |
| |the employees of the newspaper industry and gave|
| |its recommendation fixing the interim rate of |
| |wages @30% of the basic pay w.e.f. 08.01.2008 |
|03.10.2008 |Cabinet approved the proposal to grant interim |
| |rates of wages at the rate of 30% of the basic |
| |wage to newspaper employees w.e.f. 8th January, |
| |2008. |
|24.10.2008 |S.O. 2524(E) and S.O. 2525(E) notification on |
| |interim rates of wages published in the Gazette |
| |of India extraordinary. |
|5-6.05.2009 |Fifth meeting of Wage Boards |
|31.07.2009 |Sixth meeting of Wage Boards |
|07.09.2009 |Seventh meeting of Wage Boards |
| |Oral hearings |
| |6-10.10.2009 – Oral hearing in Jammu & Kashmir |
| |26-27.10.2009 – Oral hearing at Chandigarh |
| |8-9.11.2009 – Oral hearing at Patna |
|14.11.2009 |Eighth meeting of Wage Boards |
| |Oral hearings |
| |11-12.11.2009 – Oral hearing at Lucknow |
| |23-24.11.2009 – Oral hearing at Ahmedabad |
| |8-9.12.2009 – Oral hearing at Hyderabad |
| |11-13.12.2009 – Oral hearing at Chennai |
|18.12.2009 |Ninth meeting of Wage Boards |
| |Oral hearings |
| |29-30.12.2009 – Oral hearing at Bangalore |
|23.02.2010 |Tenth meeting of Wage Boards |
|02.03.2010 |In view of the fact that very few responses were|
| |received to the detailed questionnaire |
| |circulated by the Wage Board, it was decided |
| |that a simplified questionnaire requiring |
| |information about annual turnover, cost, etc. |
| |will be circulated to various newspaper |
| |establishments registered with PTI and INS. |
| |Accordingly, the simplified questionnaire was |
| |sent to various news establishments. |
| |Oral hearings |
| |13-14.03.2010 – Oral hearing at Jaipur |
| |27-28.03.2010 – Oral hearing at Bhopal |
| |8-10.04.2010 – Oral hearing at Mumbai and Pune |
| |27-28.04.2010 – Oral hearing at Bhubaneshwar |
|07.05.2010 |Eleventh meeting of Wage Boards |
|30.06.2010 |Twelfth meeting of Wage Boards |
| |Oral hearings |
| |12-13.07.2010 – Oral hearing at Kolkata |
| |20-21.07.2010 – Oral hearing at Guwahati |
| |26.07.2010 to 01.08.2010 – Oral hearing at Delhi|
| |17-19.08.2010 – Oral hearing at Delhi |
| |06.09.2010 – Oral hearing at Delhi |
|05.07.2010 |Summons dated 05.07.2010 issued under Section |
| |11(3)(b) and Section 11(8) of the Industrial |
| |Disputes Act, 1947 read with Section 3 of the |
| |1955 Act. |
|21.09.2010 |Thirteenth meeting of Wage Boards |
|22.09.2010 |Fourteenth meeting of Wage Boards |
|07.12.2010 |Draft report was circulated to all the members |
| |of the Wage Board for their comments and views |
|20-24.12.2010 |Meeting of the Wage Board to discuss the draft |
| |report |
|30.12.2010 |Notes of dissent were submitted by |
| |Shri K.M. Sahni |
| |Shri N.K. Trikha, Shri Vikram Rao, Shri Suresh |
| |Akhouri (Representatives of working journalists)|
| |Shri Uma Shankar Mishra, Shri M.S. Yadav, Shri |
| |M.C. Narasimhan (Representatives of |
| |non-journalists) |
| |Shri Prasanna Kumar |
|31.12.2010 |Final Report submitted to Government.” |
50) The petitioners’ main ground of challenge vis-à-vis the procedure
adopted by the impugned Wage Boards is that they were not given reasonable
time to reflect on the issues. However, we have carefully examined all the
proceedings of the Wage Boards and we are satisfied that the Wage Boards
conducted a series of meetings and gave ample opportunities to the
employers. The employers were given opportunity of both written and oral
representations to make their point of view known to the Board and
consequently the decision making process stands valid. In this respect, we
are of the view that the petitioners cannot be allowed to take advantage of
their own wrong and impugn the recommendations of the Wage Boards as not
being based on their data when they eluded to submit the said data in the
first place.
51) In respect of the petitioners’ argument that the ‘Classification’ of
newspaper establishments and newspaper agencies adopted by the Wage Boards
is arbitrary and not supported by the majority, it is brought to our notice
that a perusal of the resolution adopted on 21.12.2010 shows that
representatives of employees agreed for 11 classifications and
representatives of employers opposed the said pattern of classification.
Later, the classification of the newspaper establishments was made into
eight classes on the basis of Gross Turnover:
|Class |Gross Revenue |
|I |Rs. 1000 crore and above |
|II |Rs. 500 crore and above but less than Rs. 1000 |
| |crore |
|III |Rs. 100 crore and above but less than Rs. 500 |
| |crore |
|IV |Rs. 50 crore and above but less than Rs. 100 |
| |crore |
|V |Rs. 10 crore and above but less than Rs. 50 crore|
|VI |Rs. 5 crore and above but less than Rs. 10 crore |
|VII |Rs. 1 crore and above but less than Rs. 5 crore |
|VIII |Less than Rs. 1 crore |
Therefore, if at all anybody is aggrieved by the recommendation of the Wage
Board to adopt eight classifications, it is the employees and not the
employers. Further, no prejudice is caused to the employers and they
cannot make this as a ground to challenge the report.
52) The petitioners also contended by relying upon two resolutions passed
by the Wage Board that the Wage Board was not allowed to function
independently and was treated with contempt by the Secretariat of the Wage
Board and the officials of the Wage Board. One of the resolutions relied
upon by the petitioners dealt with an issue pertaining to raising of
exorbitant travel bill. It is brought to our notice that it was in this
context that the Chairman and Members of the Wage Board expressed their
concern that issues pertaining to the Wage Board should not be directly
dealt with by the Ministry and it has to be referred to the Ministry by the
Secretariat after obtaining the permission of the Chairman. The other
resolution/minutes record the proceedings of the meeting with the Minister
for Labour and Employment. These two resolutions cannot be relied upon to
contend that the Board was not allowed to function independently and was
treated with contempt. These two resolutions have no bearing on the
ultimate recommendations made by the Board and, thus, cannot be relied upon
by the petitioners to impugn the recommendations themselves.
53) Numerous such incidental contentions vis-à-vis procedure adopted by
the Wage Boards were alleged which, in our considered view, is not of such
grave nature that it calls for withdrawing the recommendations of Wage
Boards. In this light, after having exhaustively gone through the record of
proceedings and various written communications, we are fully satisfied that
the Wage Boards proceedings had been conducted and carried out in a
legitimate approach and no decision of the Wage Board is perceived to
having been taken unilaterally or arbitrarily. Rather all decisions were
reached in a coherent manner in the presence of all the Wage Board members
after having processed various statistics and we find no irregularity in
the procedure adopted by the impugned Wage Boards.
Majithia Wage Boards overlooked the relevant aspects and considered
extraneous factors while drafting the recommendations
54) It is the view of the petitioners that the recommendation of Justice
Majithia Wage Boards is defective and faulty and deserves to be rejected at
the outset as it overlooked the relevant aspects and considered extraneous
factors while drafting the impugned report. The first ground on which the
report is alleged to be defective is that the members of the Wage Board
failed to consider the crucial element of capacity to pay of the individual
newspaper establishments as it wrongly premised its analysis of the
capacity to pay of ‘gross revenue’ while approving the impugned report.
55) In Express Newspaper (P) Ltd case (Supra), this Court held that the
capacity of the newspaper industry to pay is one of the essential
circumstances to be taken into consideration while fixing rates of wages
under the Act. In that case, the decision of the Wage Board was set aside
on the ground that it failed to consider the capacity of the industry to
pay the revised rates of wages. Consequently, Section 10(2) of the Act was
inserted which gives the statutory recognition to the requirement of taking
into consideration the capacity of the employer to pay.
56) Chapter XIV, titled Capacity to pay of the Newspaper industry (A
Financial Assessment) of the Justice Majithia Report, elaborately discusses
on the aspect of capacity to pay. However, it is the stand of the
petitioners that although the Report purportedly examines the capacity to
pay, such evaluation is directly contrary to the principles and accepted
material factors which the Report itself identifies as governing a legally
sound consideration of the capacity to pay. The relevant portion of the
report in pages 101 to 102 is as under:-
“The gross revenue of newspaper establishments comprises revenue
through advertisements, circulation and other sources relating to
newspaper activities and miscellaneous income accrued from
investments, interests, rent etc. The gross revenue can be taken as
one of the indicators to judge the health of the newspaper
establishments. Strictly speaking several discounted factors are
required to be taken in to consideration from the gross revenues to
make actual assessments of the capacity of the newspaper
establishments. But in absence of such parameters, it was decided to
rely broadly on gross revenue.”
57) The petitioners major point of reliance is surfaced on the
observation in the report which acknowledges that there are other factors
along with gross revenue which need to be considered for determining the
capacity to pay of the establishments which the report did not ultimately
consider thus it will be appropriate to reject the report.
58) On the other hand, it is the stand of the Union of India that in the
absence of availability of such parameters for the assessment of capacity
to pay of the newspaper establishments, it is judicially accepted
methodology to determine the same on the basis of gross revenue and relied
on the observations in Indian Express Newspapers (Pvt.) Ltd. (supra):-
“16…In view of the amended definition of the “newspaper
establishment” under Section 2(d) which came into operation
retrospectively from the inception of the Act and the Explanation
added to Section 10(4), and in view further of the fact that in
clubbing the units of the establishment together, the Board cannot be
said to have acted contrary to the law laid down by this Court in
Express Newspapers case, the classification of the newspaper
establishments on all-India basis for the purpose of fixation of wages
is not bad in law. Hence it is not violative of the petitioners’
rights under Articles 19(1)(a) and 19(1)(g) of the Constitution.
Financial capacity of an all-India newspaper establishment has to be
considered on the basis of the gross revenue and the financial
capacity of all the units taken together. Hence, it cannot be said
that the petitioner-companies as all-India newspaper establishments
are not viable whatever the financial incapacity of their individual
units. After amendment of Section 2(d) retrospectively read with the
addition of the Explanation to Section 10(4), the old provisions can
no longer be pressed into service to contend against the grouping of
the units of the all-India establishments, into one class.”
59) After perusing the relevant documents, we are satisfied that
comprehensive and detailed study has been carried out by the Wage Board by
collecting all the relevant material information for the purpose of the
Wage Revision. The recommendations are arrived at after weighing the pros
and cons of various methods in the process and principles of the Wage
Revision in the modern era. It cannot be held that the wage structure
recommended by the Majithia Wage Board is unreasonable.
60) The other issue in regard to which there was elaborate submission is
the issue pertaining to recommendations of the Wage Board in regard to news
agencies. It is the stand of the petitioners that even though this Court
had expressly held that news agencies, including PTI, stood on a separate
footing from newspapers inter alia because they did not have any
advertisement revenue and, hence, the wages will have to be fixed
separately and independently for the news agencies, the impugned Wage
Boards failed to take note of the said relevant aspect.
61) Learned counsel for the respondent contended by stating that capacity
to pay of news agencies was determined on the basis of the capacity to earn
of the news agencies in every Wage Board. It was further submitted that the
burden of revised wages was met by the news agencies on every occasion by
revising the subscription rate. Thereby submitting that the recommendation
vis-à-vis the news agencies was a reasoned one.
62) This Court has a limited jurisdiction to look into this aspect. The
interference is allowed to a limited extent to examine the question as to
whether the Wage Board has considered the capacity to pay of the News
Agencies. It would be inapposite for this Court to question the decision of
the specialized board on merits especially when the Board was constituted
for this sole purpose.
63) The second point of contention of petitioners is of introducing new
concepts such as ‘variable pay’ in an arbitrary manner. Regarding
variable pay recommended by the Majithia Wage Board, learned counsel for
the petitioners submitted that there is no basis for providing payment of
variable pay and equally there is no basis for providing variable pay as a
percentage of basic pay which makes the payment of variable pay open-ended.
According to them, the recommendation in this regard is totally
unreasonable, irrational and places an extra and unnecessary burden on the
newspaper establishments. Consequently, it was asserted that there is
complete non-application of mind to insert the so-called variable pay
concept (similar to Grade Pay of Sixth Pay Commission) in the Majithia Wage
Board’s recommendation, even though the basic conditions, objectives and
anomalies are absent.
64) However, the stand of the respondents is that there is gradation of
variable pay and allowances according to the size of the establishments
wherein smaller establishments are required to pay at a lower rate compared
to larger establishments. It may be pointed out that in the Manisana Wage
Board, which is the predecessor to the Majithia Board, did recommend a
similar dispensation though it did not specifically call it variable pay.
Manisana Wage Board recommended a certain percentage of basic pay for the
newspaper employees, which is similar to variable pay in the Majithia Wage
Board recommendations. While such dispensation was included in the basic
pay in the Manisana Wage Board instead of being shown separately, the
Majithia Wage Board categorized “basic pay” and “variable pay” separately.
Accordingly, the concept of “variable pay” is not newly introduced, though
the terminology may have differed in Manisana and Majithia Wage Boards.
The Wage Boards have followed well-settled norms while making
recommendations about variable pay. Further, the explanation to Section
2(eee) which defines “wages” specifically includes within the term “wages”
“new allowances”, if any, of any description fixed from time to time.
Therefore, the Wage Board was well within its jurisdiction to recommend
payment of ‘variable pay’.
65) There was also a submission on behalf of the petitioners that
Majithia Wage Board has simply copied the recommendations of the Sixth
Central Pay Commission, which is not correct. We have carefully
scrutinized all the details. It is clear that the recommendations of the
Sixth Central Pay Commission have not been blindly imported/relied upon by
the Majithia Wage Board. The concept of ‘variable pay’ contained in the
recommendations of the Sixth Central Pay Commission has been incorporated
into the Wage Board recommendations only to ensure that the wages of the
newspaper employees are at par with those employees working in other
Government sectors. Such incorporation was made by the Majithia Wage Board
after careful consideration, in order to ensure equitable treatment to
employees of newspaper establishments, and it was well within its rights to
do so.
66) It is further seen that the Wage Board has recommended grant of 100%
neutralization of dearness allowance. Fifth Pay Commission granted the
same in 1996. Since then, public sector undertakings, banks and even the
private sector are all granting 100% neutralization of dearness allowance.
The reference to decisions prior to 1995 is irrelevant.
67) Lastly, the contention of the petitioners that the Wage Boards have
not taken into account regional variations in submitting their
recommendations is also not correct. It is clear from the report that the
Wage Boards have categorized the HRA and Transport Allowance into X, Y and
Z category regions, which reflects that the cost on accommodation and
transport in different regions in the country was considered. Furthermore,
there is gradation of variable pay and allowances according to the size of
the establishments wherein smaller establishments are required to pay those
at a lower rate compared to larger establishments. Hence, we are satisfied
that the Wage Boards followed certain well laid down principles and norms
while making recommendations.
68) It is true that the Wage Boards have made some general suggestions
for effective implementation of Wage Awards which is given separately in
Chapter 21 of the Report of the Majithia Wage Boards of Working Journalists
and Non-Journalists Newspaper and News Agency Employees. It is brought to
our notice that the Government has not accepted all these suggestions
including those pertaining to retirement age, pension, paternity leave,
etc. as these are beyond the main objective for which the Wage Boards were
constituted. Regarding fixation of pay, assured career development, there
have been proposals in the recommendations which are in the manner of
providing higher pay scale after completion of certain number of years
which cannot be treated as time bound promotion. Similarly, the
establishments have also been categorized on the basis of their turnover,
thus, taking into consideration the capacity of various establishments to
pay.
69) It is useful to refer Section 12 of the Act which deals with the
powers of Central Government to enforce recommendations of the Wage Board.
It reads as under:
“12 - Powers of Central Government to enforce recommendations of
the Wage Board
(1) As soon as may be, after the receipt of the recommendations of
the Board, the Central Government shall make an order in terms of the
recommendations or subject to such modifications, if any, as it thinks
fit, being modifications which, in the opinion of the Central
Government, do not effect important alterations in the character of
the recommendations.
(2) Notwithstanding anything contained in sub-section (1), the
Central Government may, if it thinks fit,--
(a) make such modifications in the recommendations, not being
modifications of the nature referred to in sub-section (1), as it
thinks fit:
Provided that before making any such modifications, the Central
Government shall cause notice to be given to all persons likely to be
affected thereby in such manner as may be prescribed, and shall take
into account any representations which they may make in this behalf in
writing; or
(b) refer the recommendations or any part thereof to the Board, in
which case, the Central Government shall consider its further
recommendations and make an order either in terms of the
recommendations or with such modifications of the nature referred to
in sub-section (1) as it thinks fit.
(3) Every order made by the Central Government under this section
shall be published in the Official Gazette together with the
recommendations of the Board relating to the order and the order shall
come into operation on the date of publication or on such date,
whether prospectively or retrospectively, as may be specified in the
order.”
70) Thus, it is the prerogative of the Central Government to accept or
reject the recommendations of the Wage Boards. There is no scope for
hearing the parties once again by the Central Government while accepting or
modifying the recommendations, except that the modifications are of such
nature which alter the character of the recommendations and such
modification is likely to affect the parties. The mere fact that in the
present case, the Government has not accepted a few recommendations will
not automatically affect the validity of the entire report. Further, the
Government has not accepted all those suggestions including those
pertaining to retirement age, etc. as these are beyond the mandate for
which the Wage Boards were constituted. Regarding fixation of pay, assured
career development, there have been proposals in the recommendations which
are in the manner of providing higher pay scale after completion of certain
number of years which cannot be treated as time bound promotion.
71) Accordingly, we hold that the recommendations of the Wage Boards are
valid in law, based on genuine and acceptable considerations and there is
no valid ground for interference under Article 32 of the Constitution of
India.
72) Consequently, all the writ petitions are dismissed with no order as
to costs.
73) In view of our conclusion and dismissal of all the writ petitions,
the wages as revised/determined shall be payable from 11.11.2011 when the
Government of India notified the recommendations of the Majithia Wage
Boards. All the arrears up to March, 2014 shall be paid to all eligible
persons in four equal instalments within a period of one year from today
and continue to pay the revised wages from April, 2014 onwards.
74) In view of the disposal of the writ petitions, the contempt petition
is closed.
……….…………………………CJI.
(P. SATHASIVAM)
..…….……………………………J.
(RANJAN GOGOI)
……….……………………………J.
(SHIVA KIRTI SINGH)
NEW DELHI;
FEBRUARY 07, 2014.
-----------------------
61
Employees (Conditions of Service) and Miscellaneous Provisions Act, 1955
(in short ‘the Act’) is ultra vires and for quashing of the notification dated 11.11.2011 issued by the Central Government accepting the recommendations made by Justice Majithia Wage Boards for Working Journalists and Non-Journalist Newspaper and News Agency Employees.- Apex court hold that the recommendations of the Wage Boards are valid in law, based on genuine and acceptable considerations and there is no valid ground for interference under Article 32 of the Constitution of India. and dismissed all writ petitions filed by Management of various News papers =
These writ petitions, under Article 32 of the Constitution of India,
have been filed by the petitioners (management of various newspapers)
praying for a declaration that the Working Journalists and Other Newspaper
Employees (Conditions of Service) and Miscellaneous Provisions Act, 1955
(in short ‘the Act’) is ultra vires as it infringes the fundamental rights
guaranteed under Articles 14, 19(1)(a) and 19(1)(g) of the Constitution of
India. and
for quashing of the notification
dated 11.11.2011 issued by the Central Government accepting the
recommendations made by Justice Majithia Wage Boards for Working
Journalists and Non-Journalist Newspaper and News Agency Employees.=
For the purpose of fixing or
revising the rates of wages of employees in newspaper establishments, the
Central Government is empowered under Sections 9 and 13C of the Act to
constitute two Wage Boards, viz., one for the working journalists and other
for non-journalist newspaper employees respectively.
It is
this recommendation submitted by the Wage Boards, which was subsequently
accepted by the Central Government and notified on 11.11.2011 that is
impugned in the given proceedings.
Discussion
7) In succinct, the petitioners herein, challenged the recommendations
of the Wage Boards and the notification dated 11.11.2011 mainly on the
following grounds:-
i) Constitutional validity of the Act and the Amendment Act, 1974.
ii) Improper Constitution of the Wage Boards
iii) Irregularity in the procedure adopted by Majithia Wage Boards.
iv) Majithia Wage Boards overlooked the relevant aspects and
considered extraneous factors while drafting the recommendations =
We shall examine and deliberate distinctively on each contested point
surfaced by the petitioners herein in the succeeding paragraphs.=
Accordingly, we hold that the recommendations of the Wage Boards are
valid in law, based on genuine and acceptable considerations and there is
no valid ground for interference under Article 32 of the Constitution of
India.
72) Consequently, all the writ petitions are dismissed with no order as
to costs.
73) In view of our conclusion and dismissal of all the writ petitions,
the wages as revised/determined shall be payable from 11.11.2011 when the
Government of India notified the recommendations of the Majithia Wage
Boards. All the arrears up to March, 2014 shall be paid to all eligible
persons in four equal instalments within a period of one year from today
and continue to pay the revised wages from April, 2014 onwards.
74) In view of the disposal of the writ petitions, the contempt petition
is closed.
2014 (Feb. Part)judis.nic.in/supremecourt/filename=41205
P SATHASIVAM, RANJAN GOGOI, SHIVA KIRTI SINGH
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
1
2 WRIT PETITION (CIVIL) NO. 246 OF 2011
ABP Pvt. Ltd. & Anr. .... Petitioner
(s)
Versus
Union of India & Ors. .... Respondent(s)
3
4 WITH
5
6 WRIT PETITION (CIVIL) NO. 382 OF 2011
7 WRIT PETITION (CIVIL) NO. 384 OF 2011
8 WRIT PETITION (CIVIL) NO. 386 OF 2011
9 WRIT PETITION (CIVIL) NO. 408 OF 2011
10 WRIT PETITION (CIVIL) NO. 510 OF 2011
11 WRIT PETITION (CIVIL) NO. 538 OF 2011
12 WRIT PETITION (CIVIL) NO. 514 OF 2011
13 WRIT PETITION (CIVIL) NO. 546 OF 2011
14 WRIT PETITION (CIVIL) NO. 87 OF 2012
15 WRIT PETITION (CIVIL) NO. 264 OF 2012
16 WRIT PETITION (CIVIL) NO. 315 OF 2012
17 WRIT PETITION (CIVIL) NO. 817 OF 2013
18
19 WITH
20 CONTEMPT PETITION (CIVIL) NO. 252 OF 2012 IN
21 WRIT PETITION (CIVIL) NO. 538 OF 2011
22
J U D G M E N T
P.Sathasivam, CJI.
1) These writ petitions, under Article 32 of the Constitution of India,
have been filed by the petitioners (management of various newspapers)
praying for a declaration that the Working Journalists and Other Newspaper
Employees (Conditions of Service) and Miscellaneous Provisions Act, 1955
(in short ‘the Act’) is ultra vires as it infringes the fundamental rights
guaranteed under Articles 14, 19(1)(a) and 19(1)(g) of the Constitution of
India.
The petitioners further prayed for quashing of the notification
dated 11.11.2011 issued by the Central Government accepting the
recommendations made by Justice Majithia Wage Boards for Working
Journalists and Non-Journalist Newspaper and News Agency Employees.
Factual Background:
2) It is pertinent to give a vivid background of the case before we
advent to decide the issue at hand. Way back in 1955, the Government of
India enacted the impugned Act to regulate the conditions of service of
Working Journalists and in 1974 via amendment for other Newspaper Employees
employed in newspaper establishments.
For the purpose of fixing or
revising the rates of wages of employees in newspaper establishments, the
Central Government is empowered under Sections 9 and 13C of the Act to
constitute two Wage Boards, viz., one for the working journalists and other
for non-journalist newspaper employees respectively.
Likewise, the Act also
specifies that the Central Government shall, as and when necessary,
constitute these Wage Boards.
The composition of the Wage Boards is
specified, as mentioned below:-
(a) Three persons representing employers in relation to Newspaper
Establishments;
(b) Three persons representing working journalists for Wage Board
under Section 9 and three persons representing non-journalist
Newspaper Employees for Wage Board under Section 13C of the Act;
(c) Four independent persons, one of whom shall be a person who is, or
has been a Judge of the High Court or the Supreme Court, and who shall
be appointed by the Government as the Chairman thereof.
3) It is relevant to note that since 1955, six Wage Boards have been
constituted for working journalists and four Wage Boards for non-
journalist newspaper employees in order to fix or revise the rates of
wages.
The relevant details of the preceding Wage Boards are as under:-
(i) Divatia Wage Board
|Date of |Date of |Challenge |
|Appointment |Acceptance | |
|02.05.1956 |10.05.1957 |In Express Newspaper (P) Ltd. vs. Union|
| | |of India 1959 SCR 12 the decision of |
| | |the Divatia Wage Board as well as the |
| | |constitutional validity of the Act was |
| | |challenged before this Court. This |
| | |Court set aside the decision of the |
| | |Wage Board dt. 30.04.1957 on the ground|
| | |that it did not take into account the |
| | |capacity of the industry to pay. As a |
| | |result of this decision, an ordinance |
| | |dated 14.06.1958 was promulgated which |
| | |provided for the establishment of a |
| | |Special Committee for making |
| | |recommendations to the Central |
| | |Government in regard to the rates of |
| | |wages to be fixed for working |
| | |journalists. Later, in September 1958,|
| | |the Working Journalists (Fixation of |
| | |Rates of Wages) Act, 1958 was passed by|
| | |the Parliament. |
(ii) Shinde Wage Board
|Date of |Date of |Challenge |
|Appointment |Acceptance | |
|12.11.1963/ |27.10.1967 |In Press Trust of India vs. Union of |
|25.02.1964 | |India & Ors. (1974) 4 SCC 638, this |
| | |Court struck down the recommendations |
| | |of the second Wage Board insofar as |
| | |PTI was concerned as unreasonable and |
| | |far in excess of what the employees |
| | |themselves were demanding and beyond |
| | |the financial capacity of the |
| | |establishment and hence violative of |
| | |the fundamental rights guaranteed |
| | |under Part III of the Constitution. |
(iii) Palekar Wage Board
|Date of |Date of |Challenge |
|Appointment |Acceptance | |
|11.06.1975/ |26.12.1980 |The constitution of Wage Board was |
|06.02.1976 | |challenged on 20.07.1981 on the ground|
| | |of lack of independence. In December |
| | |1977, the employers’ representatives |
| | |wrote to the Central Government that |
| | |they were withdrawing from the Wage |
| | |Board as desired by the organizations.|
| | |The government made several efforts to|
| | |resolve the dead lock. On 28.08.1978,|
| | |Writ Petitions were filed by the |
| | |Indian and Eastern Newspaper Society |
| | |and Others in the High Court at Bombay|
| | |challenging the constitution of the |
| | |Wage Boards. In order to find a |
| | |solution, the President promulgated on|
| | |31.01.1979 the Working Journalists and|
| | |other Newspaper Employees (Conditions |
| | |of Service) and Miscellaneous |
| | |Provisions (Amendment), Ordinance |
| | |1979. This ordinance provided for the|
| | |constitution of a Tribunal consisting |
| | |of a person who is/or has been a Judge|
| | |of the High Court or Supreme Court in |
| | |place of each such Board and the |
| | |abolition of such Boards upon the |
| | |constitution of such Tribunals and for|
| | |the continuance of the interim wages |
| | |notified by the Government after |
| | |taking into account the |
| | |recommendations of such Boards. |
(iv) Bachawat Wage Board
|Date of |Date of |Challenge |
|Appointment |Acceptance | |
|17.07.1985 |31.08.1989 |The award was challenged in Indian |
| | |Express Newspapers (Pvt.) Ltd. and Ors.|
| | |vs. Union of India & Ors. 1995 Supp (4)|
| | |SCC 758. |
(v) Manisana Wage Board
|Date of |Date of |Challenge |
|Appointment |Acceptance | |
|09.09.1994 |5.12.2000/15.|This Wage Board’s award was challenged|
| |12.2000 by |in Karnataka and Delhi High Court. |
| |Notification.|The Court while deciding the challenge|
| | |struck down the award on the ground |
| | |that the proviso to Section 12(2) was |
| | |not followed. However, despite the |
| | |Manisana Award being struck down it |
| | |was implemented by all the newspaper |
| | |establishments. |
(vi) Narayana Kurup Wage Board - Majithia Wage Board from 04.03.2009
|Date of |Date of |Challenge |
|Appointment |Acceptance | |
|24.05.2007 |31.12.2010 |With a slight modification, the |
| | |government notified it on 11.11.2011. |
| | |Its report is accepted and impugned in|
| | |these proceedings on various asserted |
| | |grounds. |
Constitution of Justice Majithia Wage Boards
4) The Government constituted two Boards on 24.05.2007, one for the
Working Journalists and the other for Non-Journalist Newspaper Employees
under Sections 9 and 13C of the Act under the Chairmanship of Dr. Justice
Narayana Kurup. The Chairman and six of the remaining nine members were
common to both the Wage Boards. The remaining three members each
representing the Working Journalists and Non-Journalist Newspaper Employees
had been nominated by their respective Unions. The Wage Boards were given
three years’ duration to submit their Reports to the Central Government.
5) However, due to sudden change of events, Dr. Justice K. Narayana
Kurup, the Chairman of the aforesaid Wage Boards submitted his resignation
effective from 31.07.2008 after completing more than one year’s tenure.
Subsequently, Justice Gurbax Rai Majithia, a retired judge of the High
Court of Mumbai was appointed as the common Chairman of the two Wage Boards
for Working Journalists and other Newspaper Employees who took over the
charge on 04.03.2009. Another significant change in the composition of the
Wage Boards occurred due to sudden demise of Shri Madan Phadnis
representing the All India Newspaper Employees Federation, who was a member
of the Wage Board for Non-Journalist Newspaper Employees. In his place,
Shri M.C. Narasimhan, as nominated by the same Federation, was substituted
as member of the Board for Non-Journalist Newspaper Employees. Since then,
the composition of the two Wage Boards has been as under:-
Wage Board for Working Journalists
|1. |Justice Gurbax Rai Majithia, retired Judge |Chairman |
| |of the High Court of Bombay at Mumbai | |
|2. |Shri K.M. Sahni, Former Secretary, Ministry |Independent |
| |of Labour and Employment |Member |
|3. |Shri B.P. Singh |Independent |
| | |Member |
|4. |Shri P.N. Prasanna Kumar |Independent |
| | |Member |
|5. |Shri Naresh Mohan, representing Indian |Representing |
| |Newspaper Society |Employers |
|6. |Shri Gurinder Singh, representing All India |Representing |
| |Small and Medium Newspapers |Employers |
|7. |Shri Prataprai, Tarachand Shah, representing|Representing |
| |Indian language Newspaper Association |Employers |
|8. |Shri K. Vikram Rao, President, Indian |Representing |
| |Federation of Working Journalists |Working |
| | |Journalists |
|9. |Dr. Nand Kishore Trikha, President, National|Representing |
| |Union of Journalists (India) |Working |
| | |Journalists |
|10. |Shri Suresh Akhouri, President, Indian |Representing |
| |Journalists Union |Working |
| | |Journalists |
Wage Board for Non-Journalist Newspaper Employees
|1. |Justice Gurbax Rai Majithia, retired Judge |Chairman |
| |of the High Court of Bombay at Mumbai | |
|2. |Shri K.M. Sahni, Former Secretary, Ministry |Independent |
| |of Labour and Employment |Member |
|3. |Shri B.P. Singh |Independent |
| | |Member |
|4. |Shri P.N. Prasanna Kumar |Independent |
| | |Member |
|5. |Shri Naresh Mohan, representing Indian |Representing |
| |Newspaper Society |Employers |
|6. |Shri Gurinder Singh, representing All India |Representing |
| |Small and Medium Newspapers |Employers |
|7. |Shri Prataprai, Tarachand Shah, representing|Representing |
| |Indian language Newspaper Association |Employers |
|8. |Shri M.C. Narasimhan, Vice President, All |Representing |
| |India Newspaper Employees Federation |Non-Journalist |
| | |Newspaper |
| | |Employees |
|9. |Shri Uma Shankar Mishra, Vice President, |Representing |
| |National Federation of Newspaper Employees |Non-Journalist |
| | |Newspaper |
| | |Employees |
|10. |Shri M.S. Yadav, General Secretary, |Representing |
| |Confederation of Newspapers and News |Non-Journalist |
| |Agencies Employees’ Organizations. |Newspaper |
| | |Employees |
6) Owing to the unexpected change of the members constituting the Wage
Boards, they could not finalize and submit their reports within the
prescribed period of three years as originally notified i.e., by
23.05.2010. As such, their term was then extended up to 31.12.2010. It is
this recommendation submitted by the Wage Boards, which was subsequently
accepted by the Central Government and notified on 11.11.2011 that is
impugned in the given proceedings.
Discussion
7) In succinct, the petitioners herein, challenged the recommendations
of the Wage Boards and the notification dated 11.11.2011 mainly on the
following grounds:-
i) Constitutional validity of the Act and the Amendment Act, 1974.
ii) Improper Constitution of the Wage Boards
iii) Irregularity in the procedure adopted by Majithia Wage Boards.
iv) Majithia Wage Boards overlooked the relevant aspects and
considered extraneous factors while drafting the recommendations
We shall examine and deliberate distinctively on each contested point
surfaced by the petitioners herein in the succeeding paragraphs.
8) Heard Mr. Anil B. Divan, Mr. K.K. Venugopal, Mr. P.P. Rao, Mr. Aman
Lekhi, Mr. S.S. Ramdas, Mr. Brijender Chahar, learned senior counsel for
the petitioners, Mr. Gopal Jain, Mr. Akhil Sibal, Mr. Nachiket Joshi, Mr.
Anil Shrivastav, Ms. Bina Gupta, Mr. Manoj Goel, Mr. E.C. Agrawala, learned
counsel for the petitioners, Mr. Mohan Parasaran, learned Solicitor General
for the official respondents, Mr. Colin Gonsalves, learned senior counsel
and Mr. Parmanand Pandey and Mr. Thampan Thomas, learned counsel for other
respondents – journalists/non-journalists.
Constitutional validity of the Act and Amendment Act, 1974
9) At the outset, almost all the learned counsel for the petitioners,
challenged the vires of the Act on twin grounds.
Firstly, the Act infringes
the guaranteed fundamental rights under Articles 14 and 19 of the
Constitution.
Secondly, the Act has become obsolete with the passage of
time.
10) It is submitted by learned counsel for the petitioners that misplaced
classification and singling out of a specific business industry being the
Newspaper Industry is violative of Article 14 since the Act only regulates
the print media and not electronic media. Also, in the era of globalization
and liberalization, to shackle one part of the industry with regulations is
unreasonable, unfair and arbitrary and, therefore, violative of Articles
19(1)(a) and 19(1)(g).
11) Learned senior counsel for the petitioners besides objecting to the
constitutionality of the Wage Boards also placed heavy reliance on the fact
that in other industries such as cotton, sugar, tea, coffee, rubber,
cement, jute, all the Wage Boards have been abolished over a period of time
(sugar being the last in 1989). They further emphasized on the fact that
the National Commission on Labour in 2002 also unequivocally recommended
that there was no need for a Wage Board to be constituted for any industry.
12) Likewise, it is the stand of the petitioners that due to significant
socio-economic changes having taken place in the Indian economy after de-
regulation and privatization, the necessity for Wage Boards has eclipsed.
In order to establish this, learned counsel referred to the object and
purpose of the Act i.e. to ameliorate the conditions of service. According
to learned senior counsel, this purpose has been achieved today as
journalists are paid a fair wage and also given a compensation package.
Resultantly, the requirement for controlling and regulating the conditions
of service of newspaper employees that was prevalent in earlier phase (1955
onwards) is no longer required.
13) Precisely, learned counsel for the petitioners stressed on the
ensuing four points to substantiate their claim that there is a complete
change in the scenario since 1955 when the Press Commission was constituted
to go into the conditions of employment of working journalists:
(a) The journalists are an essential and vital part of a newspaper
establishment. As an outcome, newspaper establishments require
skills, qualification and expertise to ensure the best content
as this is necessary for attracting, retaining and increasing
viewership which, in turn, requires the full support of
journalists.
(b) Through bilateral negotiations and discussions, the petitioners
have entered into contracts with a vast majority of journalists
and offered them wages, salaries and compensation package to
retain top class talent.
(c) The newspaper industry itself has undergone a sea change –
people ‘sleep with the news’ (due to the advent of news channels
on television). Further, printing technology has changed as a
consequence and the newspapers now offer a better quality
product. Manpower management has been strengthened to attract
the best talent.
(d) There is greater competition from the internet, digital media in
news channels and from foreign newspapers, therefore, there is
already an obligation on the print media to retain the best
talent by providing fine working conditions.
In brief, it was contended that in the present times of economic
liberalization, the Act has become obsolete.
As a result, Wage Boards have
lost their utility and purpose for which they were set up and the 1955 Act
have become outdated and have outlived its utility especially with the
advent of the electronic media and other avenues.
14) Moreover, learned senior counsel submitted that the track record and
report of the Wage Board is another pointer to this effect. Most of the
decisions of the Wage Board have been quashed. The recommendations of the
first Wage Board were set aside by this Court in Express Newspaper (P) Ltd.
vs. Union of India 1959 SCR 12 and the previous Manisana Wage Board (Vth
Wage Board) was also set aside by the Karnataka High Court and the Delhi
High Court on effective grounds. In view of the above assertions and taking
into account the ground realities, the petitioners prayed that they must be
given a free hand and should not be burdened with an outdated and
antiquated statute. Henceforth, they pleaded for abolishment of the Wage
Boards and to declare the Act unconstitutional.
15) In support of the above proposition, learned counsel for the
petitioners also relied on the decisions of this Court in John Vallamattom
vs. Union of India (2003) 6 SCC 611, Malpe Vishwanath Acharya vs. State of
Maharashtra (1998) 2 SCC 1 and Indian Handicrafts Emporium vs. Union of
India (2003) 7 SCC 589.
16) Mr. Mohan Parasaran, learned Solicitor General and Mr. Colin
Gonsalves, learned senior counsel effectively responded to all the
contentions raised by the petitioners, by relying on Constitution Bench
decisions of this Court and prayed for rejection of their arguments.
17) This is not the first time when the aspect as to the Constitutional
Validity of the Act as being ultra vires the Constitution and violative of
fundamental rights is being encountered by this Court.
It has already been
expressly decided by a Constitution Bench of this Court in Express
Newspaper (P) Ltd. vs. Union of India AIR 1958 SC 578 and has been held to
be intra vires the Constitution. The relevant portions of the said judgment
are extracted hereunder:
Challenge qua Article 19(1)(a):
“153. In the present case it is obvious that the only justification
for the enactment of the impugned Act is that it imposes reasonable
restrictions in the interests of a section of the general public viz.
the working journalists and other persons employed in the newspaper
establishments. It does not fall within any of the categories
specified in Article 19(2) viz.
“In the interest of the security of the State, friendly
relations with foreign States, public order, decency or morality,
or in relation to contempt of court, defamation or incitement to an
offence.”
Article 19(2) being thus out of the question, the only point that
falls to be determined by us is whether the provisions of the impugned
Act in any way take away or abridge the petitioners, fundamental right
of freedom of speech and expression.
154. It was contended before us by the learned Attorney-General that
it was only legislation directly dealing with the right mentioned in
Article 19(1)(a) that was protected by it. If the legislation was not
a direct legislation on the subject, Article 19(1)(a) would have no
application, the test being not the effect or result of legislation
but its subject-matter…”
*** *** ***
“160. …It could therefore hardly be urged that the possible effect of
the impact of these measures in conceivable cases would vitiate the
legislation as such. All the consequences which have been visualized
in this behalf by the petitioners viz. the tendency to curtail
circulation and thereby narrow the scope of dissemination of
information, fetters on the petitioners freedom to choose the means of
exercising the right, likelihood of the independence of the press
being undermined by having to seek government aid; the imposition of
penalty on the petitioner's right to choose the instruments for
exercising the freedom or compelling them to seek alternative media
etc, would be remote and depend upon various factors which may or may
not come into play. Unless these were the direct or inevitable
consequences of the measures enacted in the impugned Act, it would not
be possible to strike down the legislation as having that effect and
operation. A possible eventuality of this type would not necessarily
be the consequence which could be in the contemplation of the
legislature while enacting a measure of this type for the benefit of
the workmen concerned.
161. Even though the impugned Act enacts measures for the benefit of
the working journalists who are employed in newspaper establishments,
the working journalists are but the vocal organs and the necessary
agencies for the exercise of the right of free speech and expression,
and any legislation directed towards the amelioration of their
conditions of service must necessarily affect the newspaper
establishments and have its repercussions on the freedom of press. The
impugned Act can therefore be legitimately characterized as a measure
which affects the press, and if the intention or the proximate effect
and operation of the Act was such as to bring it within the mischief
of Article 19(1)(a) it would certainly be liable to be struck down.
The real difficulty, however, in the way of the petitioners is that
whatever be the measures enacted for the benefit of the working
journalists neither the intention nor the effect and operation of the
impugned act is to take away or abridge the right of freedom of speech
and expression enjoyed by the petitioners.
162. The gravamen of the complaint of the petitioners against the
impugned Act, however, has been the appointment of the Wage Board for
fixation of rates of wages for the working journalists and it is
contended that apart from creating a class of privileged workers with
benefits and rights which were not conferred upon other employees of
industrial establishments, the act has left the fixation of rates of
wages to an agency invested with arbitrary and uncanalised powers to
impose an indeterminate burden on the wage structure of the press, to
impose such employer-employee relations as in its discretion it thinks
fit and to impose such burden and relations for such time as it thinks
proper. This contention will be more appropriately dealt with while
considering the alleged infringement of the fundamental right
enshrined in Article 19(1)(g). Suffice it to say that so far as
Article 19(1)(a) is concerned this contention also has a remote
bearing on the same and need not be discussed here at any particular
length.”
Challenge qua Article 19(1)(g)
“209. This attack of the petitioners on the constitutionality of
the impugned Act under Article 19(1)(g) viz. that it violates the
petitioners' fundamental right to carry on business, therefore fails
except in regard to Section 5(1)(a)(iii) thereof which being clearly
severable from the rest of the provisions, can be struck down as
unconstitutional without invalidating the other parts of the impugned
Act.”
18) In succinct, the Constitution Bench of this Court in the aforesaid
case held that the impugned Act, judged by its provisions, was not such a
law but was a beneficent legislation intended to regulate the conditions of
service of the working journalists and the consequences that were adverted
to in that case could not be the direct and inevitable result of it. It
also expressed the view that although there could be no doubt that liberty
of the press was an essential part of the freedom of speech and expression
guaranteed under Article 19(1)(a) and if the law were to single out the
press to lay prohibitive burdens, it would fall outside the protection
afforded by Article 19(2), the impugned Act which directly affected the
press fall outside the categories of protection mentioned in Article 19(2)
had not the effect of taking away or abridging the freedom of speech and
expression of the petitioners and did not, therefore, infringe Article
19(1)(a) of the Constitution. Nor could it be held to be violative of
Article 19(1)(g) of the Constitution in view of the test of reasonableness
laid down by this Court.
19) Alternative challenge to the constitutionality of the Act was on the
basis that selecting working journalists for giving favored treatment is
violative of Article 14 as it is not a reasonable classification as
permissible in the aforesaid Article. The Constitution Bench dealt with
this aspect in the following terms:
Challenge qua Article 14
“210. Re: Art 14.- The question as formulated is that the impugned
Act selected the working journalists for favoured treatment by giving
them a statutory guarantee of gratuity, hours of work and leave which
other persons in similar or comparable employment had not got and in
providing for the fixation of their salaries without following the
normal procedure envisaged in the Industrial Disputes Act, 1947. The
following propositions are advanced:
1. In selecting the Press industry employers from all industrial
employers governed by the ordinary law regulating industrial relations
under the Industrial Disputes Act, 1947 and Act 1 of 1955 the impugned
Act subjects the Press industry employers to discriminatory treatment.
2. Such discrimination lies in
(a) singling out newspaper employees for differential treatment;
(b) saddling them with a new burden in regard to a section of their
workers in matters of gratuities, compensation, hours of work and
wages;
(c) devising a machinery in the form of a Pay Commission for fixing
the wages of working journalists;
(d) not prescribing the major criterion of capacity to pay to be
taken into consideration;
(e) allowing the Board in fixing the wages to adopt any arbitrary
procedure even violating the principle of audi alteram partem;
(f) permitting the Board the discretion to operate the procedure of
the Industrial Disputes Act for some newspapers and any arbitrary
procedure for others;
(g) making the decision binding only on the employers and not on
the employees, and
(h) providing for the recovery of money due from the employers in
the same manner as an arrear of land revenue.
3. The classification made by the impugned Act is arbitrary and
unreasonable, insofar as it removes the newspaper employers vis-à-vis
working journalists from the general operation of the Industrial
Disputes Act, 1947 and Act 1 of 1955.
*** *** ***
212. We have already set out what the Press Commission had to say in
regard to the position of the working journalists in our country. A
further passage from the Report may also be quoted in this context:
“It is essential to realize in this connection that the work of a
journalist demands a high degree of general education and some kind of
specialized training. Newspapers are a vital instrument for the
education of the masses and it is their business to protect the rights
of the people, to reflect and guide public opinion and to criticize
the wrong done by any individual or organization however high placed.
They thus form an essential adjunct to democracy. The profession must,
therefore, be manned by men of high intellectual and moral qualities.
The journalists are in a sense creative artists and the public rightly
or wrongly, expect from them a general omniscience and a capacity to
express opinion on any topic that may arise under the sun. Apart from
the nature of their work the conditions under which that work is to be
performed, are peculiar to this profession. Journalists have to work
at very high pressure and as most of the papers come out in the
morning, the journalists are required to work late in the night and
round the clock. The edition must go to press by a particular time and
all the news that breaks before that hour has got to find its place in
that edition. Journalism thus becomes a highly specialized job and to
handle it adequately a person should be well-read, have the ability to
size up a situation and to arrive quickly at the correct conclusion,
and have the capacity to stand the stress and strain of the work
involved. His work cannot be measured, as in other industries, by the
quantity of the output, for the quality of work is an essential
element in measuring the capacity of the journalists. Moreover,
insecurity of tenure is a peculiar feature of this profession. This is
not to say that no security exists in other professions but
circumstances may arise in connection with profession of journalism
which may lead to unemployment in this profession, which would not
necessarily have that result in other professions. Their security
depends to some extent on the whims and caprices of the proprietors.
We have come across cases where a change in the ownership of the paper
or a change in the editorial policy of the paper has resulted in a
considerable change in the editorial staff. In the case of other
industries a change in the proprietorship does not normally entail a
change in the staff. But as the essential purpose of a newspaper is
not only to give news but to educate and guide public opinion, a
change in the proprietorship or in the editorial policy of the paper
may result and in some cases has resulted in a wholesale change of the
staff on the editorial side. These circumstances, which are peculiar
to journalism must be borne in mind in framing any scheme for
improvement of the conditions of working journalists.” (para 512).
213. These were the considerations which weighed with the Press
Commission in recommending the working journalists for special
treatment as compared with the other employees of newspaper
establishments in the matter of amelioration of their conditions of
service.
*** *** ***
215. …The working journalists are thus a group by themselves and could
be classified as such apart from the other employees of newspaper
establishments and if the legislature embarked upon a legislation for
the purpose of ameliorating their conditions of service there was
nothing discriminatory about it. They could be singled out thus for
preferential treatment against the other employees of newspaper
establishments. A classification of this type could not come within
the ban of Article 14. The only thing which is prohibited under this
article is that persons belonging to a particular group or class
should not be treated differently as amongst themselves and no such
charge could be levelled against this piece of legislation. 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 of wages by way of constituting a
Wage Board for the purpose could be similarly devised. There was no
industrial dispute as such which had arisen or was apprehended to
arise as between the employers and the working journalists in general,
though it could have possibly arisen as between the employers in a
particular newspaper establishment and its own working journalists.
What was contemplated by the provisions of the impugned Act, however,
was a general fixation of rates of wages of working journalists which
would ameliorate the conditions of their service and the constitution
of a Wage Board for this purpose was one of the established modes of
achieving that object. If, therefore, such a machinery was devised for
their benefit, there was nothing objectionable in it and there was no
discrimination as between the working journalists and the other
employees of newspaper establishments in that behalf…
216. … Even considering the Act as a measure of social welfare
legislation the State could only make a beginning somewhere without
embarking on similar legislations in relation to all other industries
and if that was done in this case no charge could be levelled against
the State that it was discriminating against one industry as compared
with the others. The classification could well be founded on
geographical basis or be according to objects or occupations or the
like. The only question for consideration would be whether there was a
nexus between the basis of classification and the object of the Act
sought to be challenged. In our opinion, both the conditions of
permissible classification were fulfilled in the present case. The
classification was based on an intelligible differentia which
distinguished the working journalists from other employees of
newspaper establishments and that differentia had a rational relation
to the object sought to be achieved viz. the amelioration of the
conditions of service of working journalists.”
20) The above position has been reiterated by this Court in the form of
observations in Express Publications (Madurai) Ltd. vs. Union of India
(2004) 11 SCC 526. The relevant portion of the said judgment is extracted
hereunder:
“29…The observations in the judgment were pressed into service in
support of the contention that freedom of speech and expression would
be adversely affected by continuing the definition of “excluded
employee” in respect of the newspaper industry which has been singled
out for harsh treatment. As can be seen from above, observations have
been made in a different context. In any case, the decision, far from
supporting the contention of the petitioners, in fact, to an extent
lends support to the benefit that was given to the employees of the
newspaper industry in the year 1956 as a result of the impugned
provision. It has to be remembered that in spreading information, the
employees of newspaper industry play a dominant role and considering
the employees of newspaper industry as a “class”, this benefit was
extended almost at the same time when the Working Journalists Act was
enacted. Thus, there can be no question of any adverse effect on the
freedom of press. The financial burden on the employer, on facts as
herein, cannot be said to be a “harsh treatment”. The contention that
now the petitioners are unable to bear the financial burden which they
have been bearing for the last over forty-five years is wholly
irrelevant. It is for the petitioners to manage their affairs if they
intend to continue with their activity as newspaper establishment.
*** *** ***
31. This Court noticed that the journalists are but the vocal
organs and the necessary agencies for the exercise of the right of
free speech and expression and any legislation directed towards the
amelioration of their conditions of service must necessarily affect
the newspaper establishments and have its repercussions on the freedom
of press.
The impugned Act can, therefore, be legitimately
characterised as a measure which affects the press and if the
intention or the proximate effect and operation of the Act was such as
to bring it within the mischief of Article 19(1)(a), it would
certainly be liable to be struck down.
The real difficulty, however,
in the way of the petitioners is that whatever be the measures enacted
for the benefit of the working journalists neither the intention nor
the effect and operation of the impugned Act is to take away or
abridge the right of freedom of speech and expression enjoyed by the
petitioners.
The question of violation of right of freedom of speech
and expression as guaranteed under Article 19(1)(a) in the present
case on account of additional burden as a result of the impugned
provision does not arise.
*** *** ***
34. In the light of the aforesaid principles, in Express Newspaper
the Court considered whether the Act impugned therein violated the
fundamental right guaranteed under Article 14. It was observed that in
framing the Scheme, various circumstances peculiar to the press had to
be taken into consideration. These considerations weighed with the
Press Commission in recommending special treatment for working
journalists in the matter of amelioration of their conditions of
service. The position as prevailing in other countries was also
noticed. In a nutshell, the working journalists were held as a group
by themselves and could be classified as such. If the legislature
embarked upon a legislation for the purpose of ameliorating their
conditions of service, there was nothing discriminatory about it. They
could be singled out for preferential treatment. It was opined that
classification of this type could not come within the ban of Article
14.
Considering the position in regard to the alleged discrimination
between press industry employers on one hand and the other industrial
employers on the other, it was said that even considering the Act as a
measure of social welfare legislation, the State could only make a
beginning somewhere without embarking on similar legislations in
relation to all other industries and if that was done in this case no
charge could be levelled against the State that it was discriminating
against one industry as compared with the others.
The classification
could well be founded on geographical basis or be according to objects
or occupations or the like. The only question for consideration would
be
whether there was a nexus between the basis of classification and
the object of the Act sought to be achieved. Both the conditions of
permissible classification were fulfilled. The classification was held
to be based on an intelligible differentia which had a rational
relation to the object sought to be achieved viz. the amelioration of
the conditions of service of working journalists. The attack on
constitutionality of the Act based on Article 14 was negatived.
35. Though challenge in the aforesaid case was to special treatment
to working journalists but what is to be seen is, that the press
industry was held to be a class by itself. The definition of
“newspaper employee” takes into its fold all the employees who are
employed to do any work in, or in relation to, any newspaper
establishment. The decision in Express Newspaper case amply answers
the main contention about the press industry having been singled out,
against the petitioners. This decision also holds that to provide
social welfare legislation and grant benefit, a beginning had to be
made somewhere without embarking on similar legislation in relation to
other industries. The fact that even after about half a century
similar benefit has not been extended to the employees of any other
industry, will not result in invalidation of benefit given to
employees of press industry. It is not for us to decide when, if at
all, to extend the benefit to others. In view of the aforesaid, we are
unable to accept the contention that the impugned provision is
violative of Article 14 on the ground that it singles out newspaper
industry by excluding income test only in regard to the said industry.
36. Apart from the fact that it may not be always possible to grant
to everyone all benefits in one go at the same time, it seems that the
impugned provision and the enacting of the Working Journalists Act was
part of a package deal and that probably is the reason for other
newspaper establishments not challenging it and the petitioners also
challenging it only after lapse of so many years. Further, Sections
2(i), 4 and Schedule I of the Provident Fund Act show how gradually
the scope of the Act has been expanded by the Central Government and
the Act and Scheme made applicable to various branches of industries.
From whatever angle we may examine, the attack on the constitutional
validity based on Article 14 cannot be accepted.”
Challenge qua Amendment Act, 1974
21) The petitioners herein have also challenged the vires of the
Amendment Act, 1974 on the ground that extending the benefit of the Act to
employees other than working journalists is against the object that was
sought to be achieved by the original Act since the benefits to other
newspaper employees has no rational nexus between the differentia and the
object sought to be achieved. In this regard, as already discussed,
challenge as to the singling out of the newspaper industry per se was
rejected by the Constitution Bench in Express Newspaper (P) Ltd. (supra)
and the newspaper industry was held to be a class by itself. All that the
1974 amendment did was to only bring the other employees of the newspaper
industry (i.e. non-working journalists) into the ambit of the Act and
extend the benefits of the Act to them. Thus, the same is also covered as
per the reasoning of the Constitution Bench decision of this Court.
Therefore, the challenge as to the Amendment Act, 1974 stands disallowed.
22) Although, the aspect of violation of Article 14 was intricately
decided by the Constitution Bench, it is the stand of the petitioners
herein that while there may have been some justification for dealing only
with newspaper establishments in 1955, however, with the revolution in
information technology, there is no justification for confining regulation
only to print media as in the existing scenario persons engaged in the same
avocation (journalism) would be subject to different restrictions and would
be unreasonably hampered in the social and industrial relations with each
other. Further, it is submitted by the petitioners that the classification
between journalists in newspaper establishments and others does not bear
any relationship with the object. Therefore, the continuation of such a
provision would create a disadvantaged class i.e. newspaper establishments
without there being a rational basis for the same and consequently
affecting both the incentive and capacity to achieve the object for which
classification is made. After the very lapse of a long period from the date
of enactment of the Act and the connected change of circumstances during
this period has made the law discriminatory as it is now arbitrarily
confined to a selected group out of a large number of other persons
similarly situated. Henceforth, it is the stand of the petitioners that the
grab of constitutionality that the Act may have possessed earlier has worn
out and its constitutionality is open to a successful challenge.
23) While this argument may be as appealing as it sounds, yet we are not
inclined to interfere on this point of challenge in order to maintain the
equity among parties. It is important that this Court appreciates the realm
of Article 14 of the Constitution in the light of the interest of both
employers and the employees and not in one-sided manner. The argument of
the petitioners that it is violative of Article 14 is one version of the
story i.e. employers grievance, whereas this Court must look into the
perspective of employees also while determining the issue at hand.
24) For the ensuing two reasons, this Court is opting for not to
interfere on this alleged ground of challenge. Firstly, the petitioners
cannot espouse the grievance of those employees working in the electronic
media for non-inclusion and, more particularly, when those employees are
not before this Court. Secondly, the fact that similar benefits are not
extended to the employees of other similar industry will not result in
invalidation of benefit given to the employees of press industry. Recalling
that media industry is still an upcoming sector unlike the press industry,
which is as ancient as our independence itself, the scope for potential
policies in future cannot be overruled. In view of the same, this ground
of challenge is rejected.
25) As regards the second ground of challenge, i.e., the Act over the
passage of time has outlived its utility and the object that was sought to
be achieved originally has become obsolete especially in view of the fact
that Wage Boards for other industries have been abolished, it is our cogent
opinion that mere passage of time by itself would not result in the
invalidation of the Act and its object. The validity once having been
upheld by a Constitution Bench of this Court in Express Newspapers (P) Ltd.
(supra), the same cannot be now challenged saying that it has outlived its
object and purpose and has been worn out by the passage of time. The
principles laid down in Motor General Traders vs. State of Andhra Pradesh
(1984) 1 SCC 222 and Ratan Arya vs. State of Tamil Nadu (1986) 3 SCC 385
are squarely inapplicable as has been held in the context of identical
factual scenario.
26) When this Court was considering the case of a newspaper establishment
qua para 82 of the Employees’ Provident Funds Scheme in Express
Publications (Madurai) Ltd. (supra), the said judgment also puts the
challenge as to the vires of the Act like the one made by the petitioners
in the present case, but beyond pale of any doubt, it consciously
reiterates the spirit of law laid down in Express Newspaper (P) Ltd.
(supra).
27) The petitioners relied on the Report of the Second National
Commission of Labour to contend that the Act has become archaic. In this
regard, it is relevant to note that the aforementioned Report is not
relevant, as the Government has not accepted the said Report insofar as the
Statutory Wage Boards are concerned. Thus, any observation in the said
Report as to the non-requirement of Wage Boards generally, cannot be the
basis for not complying with the statutory obligations under the Act.
Insofar as the 2002 National Commission of Labour Report is concerned, as
stated above, the same has not been accepted by the Government of India, in
respect of the functioning of the Act.
28) In the light of the aforesaid discussion, we are of the opinion that
the challenge as to the vires of the Act on the premise of it being ultra
vires the Constitution and violative of fundamental rights is wholly
unfounded, baseless and completely untenable.
29) It is true that newspaper industry, with the advent of electronic
media, continues to face greater challenges similar to the ones as observed
by the Press Commission as noted in the Express Newspaper (P) Ltd. (supra)
enumerated hereinabove. Thus, the contention of the petitioners that
though the newspaper industry may be growing, the growth of the electronic
media is relatively exponential, in fact, substantiates the very necessity
of why a wage board for working journalists and other newspaper employees
of the newspaper industry should exist.
Improper Constitution of the Wage Boards
30) As reiterated hitherto, the Wage Boards constituted under Sections 9
and 13C of the Act are required to be comprised of 10 members i.e. one
Chairman, three independent members, three representatives for employers
and three representatives for employees. On behalf of the petitioners
herein (newspaper management), it was contended that there was a defect in
the constitution of the Wage Boards as Mr. K.M. Sahani and Mr. Prasanna
Kumar were not independent members thus, it fatally vitiates the
constitution and proceedings of the Majithia Wage Boards. On the other
hand, it was pointed out by learned Solicitor General for the Union of
India and the employees that the constitution of the Wage Boards have been
undertaken strictly in accordance with the Act and the “Independent
Members”, so required, under Sections 9(c) and 13C(c) of the Act have been
appointed in accordance with the law. Let us examine this point of strife
based on the factual matrix.
31) The petitioners’ main ground of challenge to Mr. K.M. Sahni’s
independence is that since at the relevant time he was a former Secretary
of Ministry of Labour and Employment, Government of India and during his
tenure the decision to constitute the Wage Board was taken and, thus, he
cannot be expected to be an independent and free from bias. It is seen from
the materials placed on record by the Union of India that in order to
operationalize the Boards, Shri K.M. Sahni, who had superannuated as
Secretary to Government of India on 31.12.2006 was appointed as Member-
Secretary on 24.01.2007 for a period of three years or till the duration of
the Wage Board, whichever is earlier. Merely because a person was in the
employment of the Government, he does not cease to become “independent” for
the purposes of being an independent member of the Committee to recommend
the fixing of wages.
32) Similar fact underlying this issue has been the subject-matter of
this Court in State of Andhra Pradesh vs. Narayana Velur Beedi
Manufacturing Factory (1973) 4 SCC 178, and it is only necessary to set out
the summary thereof given by A.N. Grover, J.:
“9. In our judgment the view which has prevailed with the majority of
the High Courts must be sustained. The committee or the advisory board
can only tender advice which is not binding on the Government while
fixing the minimum wages or revising the same as the case may be. Of
course, the Government is expected, particularly in the present
democratic set-up, to take that advice seriously into consideration
and act on it but it is not bound to do so. The language of Section 9
does not contain any indication whatsoever that persons in the
employment of the Government would be excluded from the category of
independent persons. Those words have essentially been employed in
contradistinction to representatives of employer and employees. In
other words, apart from the representatives of employers and employees
there should be persons who should be independent of them. It does not
follow that persons in the service or employ of the Government were
meant to be excluded and they cannot be regarded as independent
persons vis-à-vis the representatives of the employers and employees.
Apart from this the presence of high government officials who may have
actual working knowledge about the problems of employers and employees
can afford a good deal of guidance and assistance in formulating the
advice which is to be tendered under Section 9 to the appropriate
Government. It may be that in certain circumstances such persons who
are in the service of the Government may cease to have an independent
character if the question arises of fixation of minimum wages in a
scheduled employment in which the appropriate Government is directly
interested. It would, therefore, depend upon the facts of each
particular case whether the persons who have been appointed from out
of the class of independent persons can be regarded as independent or
not. But the mere fact that they happen to be government officials or
government servants will not divest them of the character of
independent persons. We are not impressed with the reasoning adopted
that a government official will have a bias, or that he may favour the
policy which the appropriate Government may be inclined to adopt
because when he is a member of an advisory committee or board he is
expected to give an impartial and independent advice and not merely
carry out what the Government may be inclined to do. Government
officials are responsible persons and it cannot be said that they are
not capable of taking a detached and impartial view.”
33) Consequently, merely because Shri K.M. Sahni was a part of the
Government that took the decision to set up the Wage Boards, does not
automatically follow that he ceased to be an “independent” member of the
Wage Boards. We are satisfied that Shri K.M. Sahni is an independent member
of the Board and cannot be considered to be “biased” in any manner.
34) The petitioners also allege that Mr. P.N. Prasanna Kumar, as an
experienced journalist and having been associated with various journalistic
institutions in his long journalistic career, cannot be considered to be an
“independent” member and, therefore, was biased in favour of the employees.
Learned Solicitor General has rightly pointed out that only vague and
general allegations have been alleged against him and no specific
allegations that he acted in a manner that was biased against the employers
has been levied by the petitioners.
35) It is well-settled that mere apprehension of bias is not enough and
there must be cogent evidence available on record to come to the
conclusion. Reference may be made to Kumaon Mandal Vikas Nigam Ltd. vs.
Girja Shankar Pant (2001) 1 SCC 182 in the following words:
“10. The word “bias” in popular English parlance stands included
within the attributes and broader purview of the word “malice”, which
in common acceptation means and implies “spite” or “ill-will”
(Stroud’s Judicial Dictionary, 5th Edn., Vol. 3) and it is now well
settled that mere general statements will not be sufficient for the
purposes of indication of ill-will. There must be cogent evidence
available on record to come to the conclusion as to whether in fact
there was existing a bias which resulted in the miscarriage of
justice.”
36) This Court, in State of Punjab vs. V.K. Khanna (2001) 2 SCC 330, has
held as follows:
“8. The test, therefore, is as to whether there is a mere
apprehension of bias or there is a real danger of bias and it is on
this score that the surrounding circumstances must and ought to be
collated and necessary conclusion drawn therefrom. In the event,
however, the conclusion is otherwise that there is existing a real
danger of bias administrative action cannot be sustained. If on the
other hand allegations pertain to rather fanciful apprehension in
administrative action, question of declaring them to be unsustainable
on the basis therefor, would not arise.”
37) The contention of the petitioners alleging bias against independent
members of the Wage Boards, being based merely on their past status, is
entirely baseless in law and amounts to imputing motives. Further, the
petitioners have nowhere established or even averred that the independent
members are guilty of legal bias as expressed in Perspective Publications
vs. State of Maharashtra (1969) 2 SCR 779, that is, making their
recommendations on the basis of wholly extraneous considerations or
personal or pecuniary benefit.
38) On perusal of the materials available, we are satisfied that the Wage
Boards have functioned in a fully balanced manner. Besides, it is a fact
that the petitioners had challenged the constitution of the Wage Board
before the High Court of Delhi, admittedly, the High Court had declined to
grant interim relief. The said order declining/refusing to grant interim
relief attained finality as the petitioners did not choose to challenge it
before this Court. Thereafter, the petitioners have participated in the
proceedings and acquiesced themselves with the proceedings of the Board.
In view of the fact that they have participated in the proceedings without
seriously having challenged the constitution as well as the composition,
the petitioners cannot now be allowed to challenge the same at this stage.
More so, it is also pertinent to take note of the fact that the petitioners
herein opted for challenging the independence of the nominated independent
members only after the recommendations by the Wage Boards were notified by
the Central Government.
39) Hence, the attack of the petitioners on the independence of the
appointed independent members by saying that they were not sufficiently
neutral, impartial or unbiased towards the petitioners herein, is incorrect
in the light of factual matrix and cannot be raised at this point of time
when they willfully conceded to the proceedings. Consequently, we are not
inclined to accept this ground of challenge.
40) Apart from the challenge to the independence of the members, the
petitioners also contended that two separate Wage Boards ought to have been
constituted instead of a common wage board. It is relevant to point out
that ever since the 1974 amendment only a common wage board was being
constituted. The Financial Memorandum accompanying the Working Journalists
(Conditions of Service) and Miscellaneous Provisions (Amendment) Bill, 1974
specifically states that “the intention is to constitute Wage Boards under
the said Section 9 and proposed Section 13C as far as possible at the same
time and to have a common Chairman and a common Secretariat for both the
Boards”. Further, it is brought to our notice that the Palekar Tribunal
(1980), Bachawat Wage Board (1989) and Manisana Wage Board (2000)
constituted after 1974 amendment were all common Boards/Tribunal for both
working journalists and non-journalists. Though the members representing
employers were common, they were not incapacitated in any manner as is
being contended by the petitioners. They were having two votes as they
were representing the employers in both the Boards.
41) In addition, the representatives from the employers’ side are common
in both the Wage Boards as all types of newspaper employees, either working
journalists or non-journalists found to be working under common employers.
Having common representatives of the employers on the two Wage Boards are
expected to be favorable to the employers as they can make a fair
assessment of the requirements of the working journalists and non-
journalist newspaper employees of the newspaper industry as a whole.
However, as the two Wage Boards have separate entities meant for working
journalists and non-journalist newspaper employees, there cannot be common
representatives who can protect the interest and represent working
journalists as well as non-journalist newspaper employees. Therefore,
members representing working journalists were nominated to the Wage Board
for the working journalists. Similarly, members representing non-
journalist newspaper employees were nominated to the Wage Boards for non-
journalist newspaper employees. As aforesaid, for administrative
convenience, four independent members, including the Chairman were common
for both the Wage Boards. In our cogent view, this arrangement in no way
affects the interest of the employers and the challenge of the petitioners
in this regard is unfounded.
Irregularity in the procedure followed by Majithia Wage Boards
42) Learned counsel for the petitioners pointed out to a series of
factual aspects to demonstrate that there existed irregularity in the
decision making process by the Majithia Wage Board which was attacked as
ultra vires the Act and contrary to procedure adopted by the predecessor
Wage Boards. In succinct, the stand of the petitioners is that Majithia
Wage Board Report was prepared in a hasty manner and subsequently, the
recommendations have been accepted by the Central Government without proper
hearing or affording opportunity to all the stakeholders. Whereas the
respondent – Union of India clearly contended otherwise and submitted that
the impugned Wage Boards throughout adopted a fair procedure, which stands
the test of natural justice. Besides, it is the stand of the respondents
that the representatives of the management were not cooperating but were
merely attending the Wage Board proceedings, therefore, the Chairman was
not getting adequate aid and help from the representatives of the newspaper
owners.
43) Broadly, the petitioners’ foremost contention is that the Wage Boards
have not functioned in accordance with the law inasmuch as no questionnaire
was issued to elicit information to determine the capacity to pay and that
principles of natural justice were not followed in conducting the
proceedings and for arriving at the recommendations, which was the
accustomed procedure of previous Wage Boards. At the outset, it is relevant
to point out that under Section 11(1) of the Act, Wage Board has special
powers to regulate its own procedure. It is not obligatory for the Wage
Boards to follow the exact procedure of the earlier Wage Boards and as such
there is no requirement in law to follow a strictly laid down procedure in
its functioning. Besides, as long as it follows the principles of natural
justice and fairness, its functioning cannot be called into question on the
ground of irregularity in the procedure. Now, let us examine the
submissions of the petitioners in this light.
44) It is brought to our notice that detailed questionnaire was issued on
24.07.2007. The petitioners in their opening arguments contended that no
questionnaire was issued. However, the Union of India placed voluminous
documents to demonstrate that a detailed questionnaire was in fact issued
on 24.07.2007 and that this questionnaire was commented upon and it was
corrected also and further respondents also received replies pursuant to
the same. The petitioners in their rejoinder have attempted to make a
feeble argument that the said questionnaire was issued by the secretariat
and not by the Wage Boards, which is fit to be rejected.
45) It is also brought to our notice that several attempts were made by
the Wage Boards to get the relevant information from the employers but many
of the petitioners had not given financial data and abstained from
attending the Board’s proceedings. Records produced show that the
questionnaire was sent to all the subscribers listed in the directory of
newspaper establishments published by INS for the year 2008-09 and the list
supplied by the PTI for sending financial information from 2000-01 to 2009-
10. Regular follow up with the employers was made and series of letters
were issued to collect financial information. Apart from the
questionnaire, notices inviting representation as per Section 10(1) of the
Act were published in 125 newspapers. Further, on 05.07.2010, summons were
issued to around one hundred and forty stake holders and they were given
final chance to submit the information within fifteen days of the summons.
In addition to this, a two page simplified questionnaire was also issued on
02.03.2010.
46) Consequently, the allegation that only 40 establishments have been
used as parameters which is under-representative of the industry is
incorrect. In fact, as has been detailed in the Report, the data from
newspaper establishments was not forthcoming (vide pages 100-101 of
Majithia Wage Board Report). With all these efforts, financial information
could be collected from only sixty-six establishments and after scrutiny,
it was found that financial information received from only forty
establishments was useful in developing an overall view of the financial
status of the newspaper industry. Therefore, it was only upon much effort
and repeated requests that the data in respect of 40 establishments could
be collected by the Wage Board. Besides, these 40 establishments are
representatives of the different class of newspaper establishments that are
carrying on business in the country and in addition detailed submissions by
representative groups such as the Indian Newspaper Society (INS) were also
considered. Thus, it can certainly be construed that these representative
bodies presented an overview of the whole newspaper industry, apart from
the information being collected from the individual establishments.
47) From the records, we furnish the following chronology of events:
| |“Letter dated 28.12.2007 by Mr. Naresh Mohan containing|
| |“Comments on Draft Questionnaire” |
| |Letters dated 14.01.2008 and 18.01.2008 requesting for |
| |extension of time for submission of response to |
| |questionnaire |
| |Letter dated 14.02.2008 extending time limit for |
| |submission of response to questionnaire till 30.06.2008|
| |Response of Hitavada Shramik Sangh, Nagpur dated |
| |23.06.2008 to the questionnaire |
| |Response of the Times of India and Allied Publications’|
| |Employees’ Union to the questionnaire |
| |Letters by various Employees’ Union requesting for |
| |extension of time for submission of response to |
| |questionnaire |
| |Letter dated 14.11.2008 addressed to all the members of|
| |the Wage Boards seeking their views on extending the |
| |last date for submission of completed questionnaire up |
| |to 28.02.2009 |
| |Letter dated 04.12.2008 by Mr. Naresh Mohan expressing |
| |no objection for extending the last date for submission|
| |of completed questionnaire up to 28.02.2009 |
| |Letters dated 17.12.2008, 18.12.2008, 19.12.2008 |
| |addressed to the members of the Wage Board, |
| |stakeholders informing extension of last date for |
| |submission of completed questionnaire up to 28.02.2009 |
| |Letters dated 19.03.2009, 08.06.2009, 09.06.2009 |
| |addressed to the members of the Wage Board, |
| |stakeholders informing extension of last date for |
| |submission of completed questionnaire up to 30.06.2009 |
| |Letter dated 03.07.2009 addressed to the Wage Board |
| |members to prevail upon their constituents to submit |
| |their response to the questionnaire |
| |Response of Lokmat Shramik Sanghatana, Nagpur dated |
| |04.02.2009 to the questionnaire |
| |Response of the Tribune Employees Union, Chandigarh |
| |dated 25.07.2009 to the questionnaire |
| |Response of National Union of Journalists (India) dated|
| |31.08.2009 to the questionnaire |
| |Letter dated 01.09.2009 by Chairman, Wage Boards |
| |requesting the members of the Wage Boards to prevail |
| |upon their constituents to submit their response to the|
| |questionnaire |
| |Response of the Press Trust of India Ltd. dated |
| |29.09.2009 to the submissions dated 30.06.2009 made by |
| |Federation of PTI Employees’ Union and to the |
| |questionnaire |
| |Letter dated 12.05.2010 forwarding copies of responses |
| |to the questionnaire received by the Wage Boards to all|
| |the members. |
| |The notice dated 16.11.2007 issued under Sections 10(1)|
| |and 13D of the Act was published in 125 newspapers |
| |Considering the requests and representations received |
| |from various stakeholders, the time period for making |
| |representation in terms of Sections 10(1) and 13D of |
| |the Act was extended till 30.06.2008 |
| |The time period for making representation in terms of |
| |Sections 10(1) and 13D of the Act was further extended |
| |till 31.10.2008 |
| |The time period for making representation in terms of |
| |Sections 10(1) and 13D of the Act extended till |
| |28.02.2009 |
| |The time period for making representation in terms of |
| |Sections 10(1) and 13D of the Act was extended till |
| |30.06.2009 |
| |The time period for making representation in terms of |
| |Sections 10(1) and 13D of the Act was extended till |
| |06.08.2009 |
| |Notice dated 09.07.2010 was given to all the |
| |stakeholders for final hearing before the Wage Boards |
| |on 26.07.2010 to 01.08.2010” |
48) In addition to the aforesaid chronology of events, a perusal of
Chapter 3 of the Majithia Wage Board recommendations will clearly indicate
that the procedure adopted by the Wage Boards did, in fact, give ample
opportunities to the stakeholders to give representations and financial
data, etc. so that the same may be considered by the Wage Boards for making
their recommendations. However, many of the petitioners have never
bothered to attend the proceedings of the Wage Board and submitted
financial data.
49) The details of the meetings and oral hearings conducted by the Wage
Boards (culled out from the Wage Board proceedings) are as follows:
|“30.06.2007 |First meeting of the wage boards was held. |
|02-04.08.2007 |Second meeting of the wage boards was held. |
|16.11.2007 |Notice under Sections 10(1) and 13D of the Act |
| |was issued to all newspaper establishments, |
| |working journalists, non-journalists newspaper |
| |and news agency employees to make representation|
| |in writing within eight weeks from the date of |
| |notice stating the rates of wages which, in the |
| |opinion of the capacity of the employer to pay |
| |the same or to any other circumstance, whichever|
| |may seem relevant to them. |
|08.01.2008 |Government made a reference to Wage Board for |
| |fixing interim rate of wages in terms of Section|
| |13A of the 1955 Act. |
|12 & 13.06.2008|Third meeting of the Wage Boards held to discuss|
| |interim rates of wages |
|28.06.2008 |Fourth meeting of the Wage Boards was held to |
| |consider the issue of interim rates of wages to |
| |the employees of the newspaper industry and gave|
| |its recommendation fixing the interim rate of |
| |wages @30% of the basic pay w.e.f. 08.01.2008 |
|03.10.2008 |Cabinet approved the proposal to grant interim |
| |rates of wages at the rate of 30% of the basic |
| |wage to newspaper employees w.e.f. 8th January, |
| |2008. |
|24.10.2008 |S.O. 2524(E) and S.O. 2525(E) notification on |
| |interim rates of wages published in the Gazette |
| |of India extraordinary. |
|5-6.05.2009 |Fifth meeting of Wage Boards |
|31.07.2009 |Sixth meeting of Wage Boards |
|07.09.2009 |Seventh meeting of Wage Boards |
| |Oral hearings |
| |6-10.10.2009 – Oral hearing in Jammu & Kashmir |
| |26-27.10.2009 – Oral hearing at Chandigarh |
| |8-9.11.2009 – Oral hearing at Patna |
|14.11.2009 |Eighth meeting of Wage Boards |
| |Oral hearings |
| |11-12.11.2009 – Oral hearing at Lucknow |
| |23-24.11.2009 – Oral hearing at Ahmedabad |
| |8-9.12.2009 – Oral hearing at Hyderabad |
| |11-13.12.2009 – Oral hearing at Chennai |
|18.12.2009 |Ninth meeting of Wage Boards |
| |Oral hearings |
| |29-30.12.2009 – Oral hearing at Bangalore |
|23.02.2010 |Tenth meeting of Wage Boards |
|02.03.2010 |In view of the fact that very few responses were|
| |received to the detailed questionnaire |
| |circulated by the Wage Board, it was decided |
| |that a simplified questionnaire requiring |
| |information about annual turnover, cost, etc. |
| |will be circulated to various newspaper |
| |establishments registered with PTI and INS. |
| |Accordingly, the simplified questionnaire was |
| |sent to various news establishments. |
| |Oral hearings |
| |13-14.03.2010 – Oral hearing at Jaipur |
| |27-28.03.2010 – Oral hearing at Bhopal |
| |8-10.04.2010 – Oral hearing at Mumbai and Pune |
| |27-28.04.2010 – Oral hearing at Bhubaneshwar |
|07.05.2010 |Eleventh meeting of Wage Boards |
|30.06.2010 |Twelfth meeting of Wage Boards |
| |Oral hearings |
| |12-13.07.2010 – Oral hearing at Kolkata |
| |20-21.07.2010 – Oral hearing at Guwahati |
| |26.07.2010 to 01.08.2010 – Oral hearing at Delhi|
| |17-19.08.2010 – Oral hearing at Delhi |
| |06.09.2010 – Oral hearing at Delhi |
|05.07.2010 |Summons dated 05.07.2010 issued under Section |
| |11(3)(b) and Section 11(8) of the Industrial |
| |Disputes Act, 1947 read with Section 3 of the |
| |1955 Act. |
|21.09.2010 |Thirteenth meeting of Wage Boards |
|22.09.2010 |Fourteenth meeting of Wage Boards |
|07.12.2010 |Draft report was circulated to all the members |
| |of the Wage Board for their comments and views |
|20-24.12.2010 |Meeting of the Wage Board to discuss the draft |
| |report |
|30.12.2010 |Notes of dissent were submitted by |
| |Shri K.M. Sahni |
| |Shri N.K. Trikha, Shri Vikram Rao, Shri Suresh |
| |Akhouri (Representatives of working journalists)|
| |Shri Uma Shankar Mishra, Shri M.S. Yadav, Shri |
| |M.C. Narasimhan (Representatives of |
| |non-journalists) |
| |Shri Prasanna Kumar |
|31.12.2010 |Final Report submitted to Government.” |
50) The petitioners’ main ground of challenge vis-à-vis the procedure
adopted by the impugned Wage Boards is that they were not given reasonable
time to reflect on the issues. However, we have carefully examined all the
proceedings of the Wage Boards and we are satisfied that the Wage Boards
conducted a series of meetings and gave ample opportunities to the
employers. The employers were given opportunity of both written and oral
representations to make their point of view known to the Board and
consequently the decision making process stands valid. In this respect, we
are of the view that the petitioners cannot be allowed to take advantage of
their own wrong and impugn the recommendations of the Wage Boards as not
being based on their data when they eluded to submit the said data in the
first place.
51) In respect of the petitioners’ argument that the ‘Classification’ of
newspaper establishments and newspaper agencies adopted by the Wage Boards
is arbitrary and not supported by the majority, it is brought to our notice
that a perusal of the resolution adopted on 21.12.2010 shows that
representatives of employees agreed for 11 classifications and
representatives of employers opposed the said pattern of classification.
Later, the classification of the newspaper establishments was made into
eight classes on the basis of Gross Turnover:
|Class |Gross Revenue |
|I |Rs. 1000 crore and above |
|II |Rs. 500 crore and above but less than Rs. 1000 |
| |crore |
|III |Rs. 100 crore and above but less than Rs. 500 |
| |crore |
|IV |Rs. 50 crore and above but less than Rs. 100 |
| |crore |
|V |Rs. 10 crore and above but less than Rs. 50 crore|
|VI |Rs. 5 crore and above but less than Rs. 10 crore |
|VII |Rs. 1 crore and above but less than Rs. 5 crore |
|VIII |Less than Rs. 1 crore |
Therefore, if at all anybody is aggrieved by the recommendation of the Wage
Board to adopt eight classifications, it is the employees and not the
employers. Further, no prejudice is caused to the employers and they
cannot make this as a ground to challenge the report.
52) The petitioners also contended by relying upon two resolutions passed
by the Wage Board that the Wage Board was not allowed to function
independently and was treated with contempt by the Secretariat of the Wage
Board and the officials of the Wage Board. One of the resolutions relied
upon by the petitioners dealt with an issue pertaining to raising of
exorbitant travel bill. It is brought to our notice that it was in this
context that the Chairman and Members of the Wage Board expressed their
concern that issues pertaining to the Wage Board should not be directly
dealt with by the Ministry and it has to be referred to the Ministry by the
Secretariat after obtaining the permission of the Chairman. The other
resolution/minutes record the proceedings of the meeting with the Minister
for Labour and Employment. These two resolutions cannot be relied upon to
contend that the Board was not allowed to function independently and was
treated with contempt. These two resolutions have no bearing on the
ultimate recommendations made by the Board and, thus, cannot be relied upon
by the petitioners to impugn the recommendations themselves.
53) Numerous such incidental contentions vis-à-vis procedure adopted by
the Wage Boards were alleged which, in our considered view, is not of such
grave nature that it calls for withdrawing the recommendations of Wage
Boards. In this light, after having exhaustively gone through the record of
proceedings and various written communications, we are fully satisfied that
the Wage Boards proceedings had been conducted and carried out in a
legitimate approach and no decision of the Wage Board is perceived to
having been taken unilaterally or arbitrarily. Rather all decisions were
reached in a coherent manner in the presence of all the Wage Board members
after having processed various statistics and we find no irregularity in
the procedure adopted by the impugned Wage Boards.
Majithia Wage Boards overlooked the relevant aspects and considered
extraneous factors while drafting the recommendations
54) It is the view of the petitioners that the recommendation of Justice
Majithia Wage Boards is defective and faulty and deserves to be rejected at
the outset as it overlooked the relevant aspects and considered extraneous
factors while drafting the impugned report. The first ground on which the
report is alleged to be defective is that the members of the Wage Board
failed to consider the crucial element of capacity to pay of the individual
newspaper establishments as it wrongly premised its analysis of the
capacity to pay of ‘gross revenue’ while approving the impugned report.
55) In Express Newspaper (P) Ltd case (Supra), this Court held that the
capacity of the newspaper industry to pay is one of the essential
circumstances to be taken into consideration while fixing rates of wages
under the Act. In that case, the decision of the Wage Board was set aside
on the ground that it failed to consider the capacity of the industry to
pay the revised rates of wages. Consequently, Section 10(2) of the Act was
inserted which gives the statutory recognition to the requirement of taking
into consideration the capacity of the employer to pay.
56) Chapter XIV, titled Capacity to pay of the Newspaper industry (A
Financial Assessment) of the Justice Majithia Report, elaborately discusses
on the aspect of capacity to pay. However, it is the stand of the
petitioners that although the Report purportedly examines the capacity to
pay, such evaluation is directly contrary to the principles and accepted
material factors which the Report itself identifies as governing a legally
sound consideration of the capacity to pay. The relevant portion of the
report in pages 101 to 102 is as under:-
“The gross revenue of newspaper establishments comprises revenue
through advertisements, circulation and other sources relating to
newspaper activities and miscellaneous income accrued from
investments, interests, rent etc. The gross revenue can be taken as
one of the indicators to judge the health of the newspaper
establishments. Strictly speaking several discounted factors are
required to be taken in to consideration from the gross revenues to
make actual assessments of the capacity of the newspaper
establishments. But in absence of such parameters, it was decided to
rely broadly on gross revenue.”
57) The petitioners major point of reliance is surfaced on the
observation in the report which acknowledges that there are other factors
along with gross revenue which need to be considered for determining the
capacity to pay of the establishments which the report did not ultimately
consider thus it will be appropriate to reject the report.
58) On the other hand, it is the stand of the Union of India that in the
absence of availability of such parameters for the assessment of capacity
to pay of the newspaper establishments, it is judicially accepted
methodology to determine the same on the basis of gross revenue and relied
on the observations in Indian Express Newspapers (Pvt.) Ltd. (supra):-
“16…In view of the amended definition of the “newspaper
establishment” under Section 2(d) which came into operation
retrospectively from the inception of the Act and the Explanation
added to Section 10(4), and in view further of the fact that in
clubbing the units of the establishment together, the Board cannot be
said to have acted contrary to the law laid down by this Court in
Express Newspapers case, the classification of the newspaper
establishments on all-India basis for the purpose of fixation of wages
is not bad in law. Hence it is not violative of the petitioners’
rights under Articles 19(1)(a) and 19(1)(g) of the Constitution.
Financial capacity of an all-India newspaper establishment has to be
considered on the basis of the gross revenue and the financial
capacity of all the units taken together. Hence, it cannot be said
that the petitioner-companies as all-India newspaper establishments
are not viable whatever the financial incapacity of their individual
units. After amendment of Section 2(d) retrospectively read with the
addition of the Explanation to Section 10(4), the old provisions can
no longer be pressed into service to contend against the grouping of
the units of the all-India establishments, into one class.”
59) After perusing the relevant documents, we are satisfied that
comprehensive and detailed study has been carried out by the Wage Board by
collecting all the relevant material information for the purpose of the
Wage Revision. The recommendations are arrived at after weighing the pros
and cons of various methods in the process and principles of the Wage
Revision in the modern era. It cannot be held that the wage structure
recommended by the Majithia Wage Board is unreasonable.
60) The other issue in regard to which there was elaborate submission is
the issue pertaining to recommendations of the Wage Board in regard to news
agencies. It is the stand of the petitioners that even though this Court
had expressly held that news agencies, including PTI, stood on a separate
footing from newspapers inter alia because they did not have any
advertisement revenue and, hence, the wages will have to be fixed
separately and independently for the news agencies, the impugned Wage
Boards failed to take note of the said relevant aspect.
61) Learned counsel for the respondent contended by stating that capacity
to pay of news agencies was determined on the basis of the capacity to earn
of the news agencies in every Wage Board. It was further submitted that the
burden of revised wages was met by the news agencies on every occasion by
revising the subscription rate. Thereby submitting that the recommendation
vis-à-vis the news agencies was a reasoned one.
62) This Court has a limited jurisdiction to look into this aspect. The
interference is allowed to a limited extent to examine the question as to
whether the Wage Board has considered the capacity to pay of the News
Agencies. It would be inapposite for this Court to question the decision of
the specialized board on merits especially when the Board was constituted
for this sole purpose.
63) The second point of contention of petitioners is of introducing new
concepts such as ‘variable pay’ in an arbitrary manner. Regarding
variable pay recommended by the Majithia Wage Board, learned counsel for
the petitioners submitted that there is no basis for providing payment of
variable pay and equally there is no basis for providing variable pay as a
percentage of basic pay which makes the payment of variable pay open-ended.
According to them, the recommendation in this regard is totally
unreasonable, irrational and places an extra and unnecessary burden on the
newspaper establishments. Consequently, it was asserted that there is
complete non-application of mind to insert the so-called variable pay
concept (similar to Grade Pay of Sixth Pay Commission) in the Majithia Wage
Board’s recommendation, even though the basic conditions, objectives and
anomalies are absent.
64) However, the stand of the respondents is that there is gradation of
variable pay and allowances according to the size of the establishments
wherein smaller establishments are required to pay at a lower rate compared
to larger establishments. It may be pointed out that in the Manisana Wage
Board, which is the predecessor to the Majithia Board, did recommend a
similar dispensation though it did not specifically call it variable pay.
Manisana Wage Board recommended a certain percentage of basic pay for the
newspaper employees, which is similar to variable pay in the Majithia Wage
Board recommendations. While such dispensation was included in the basic
pay in the Manisana Wage Board instead of being shown separately, the
Majithia Wage Board categorized “basic pay” and “variable pay” separately.
Accordingly, the concept of “variable pay” is not newly introduced, though
the terminology may have differed in Manisana and Majithia Wage Boards.
The Wage Boards have followed well-settled norms while making
recommendations about variable pay. Further, the explanation to Section
2(eee) which defines “wages” specifically includes within the term “wages”
“new allowances”, if any, of any description fixed from time to time.
Therefore, the Wage Board was well within its jurisdiction to recommend
payment of ‘variable pay’.
65) There was also a submission on behalf of the petitioners that
Majithia Wage Board has simply copied the recommendations of the Sixth
Central Pay Commission, which is not correct. We have carefully
scrutinized all the details. It is clear that the recommendations of the
Sixth Central Pay Commission have not been blindly imported/relied upon by
the Majithia Wage Board. The concept of ‘variable pay’ contained in the
recommendations of the Sixth Central Pay Commission has been incorporated
into the Wage Board recommendations only to ensure that the wages of the
newspaper employees are at par with those employees working in other
Government sectors. Such incorporation was made by the Majithia Wage Board
after careful consideration, in order to ensure equitable treatment to
employees of newspaper establishments, and it was well within its rights to
do so.
66) It is further seen that the Wage Board has recommended grant of 100%
neutralization of dearness allowance. Fifth Pay Commission granted the
same in 1996. Since then, public sector undertakings, banks and even the
private sector are all granting 100% neutralization of dearness allowance.
The reference to decisions prior to 1995 is irrelevant.
67) Lastly, the contention of the petitioners that the Wage Boards have
not taken into account regional variations in submitting their
recommendations is also not correct. It is clear from the report that the
Wage Boards have categorized the HRA and Transport Allowance into X, Y and
Z category regions, which reflects that the cost on accommodation and
transport in different regions in the country was considered. Furthermore,
there is gradation of variable pay and allowances according to the size of
the establishments wherein smaller establishments are required to pay those
at a lower rate compared to larger establishments. Hence, we are satisfied
that the Wage Boards followed certain well laid down principles and norms
while making recommendations.
68) It is true that the Wage Boards have made some general suggestions
for effective implementation of Wage Awards which is given separately in
Chapter 21 of the Report of the Majithia Wage Boards of Working Journalists
and Non-Journalists Newspaper and News Agency Employees. It is brought to
our notice that the Government has not accepted all these suggestions
including those pertaining to retirement age, pension, paternity leave,
etc. as these are beyond the main objective for which the Wage Boards were
constituted. Regarding fixation of pay, assured career development, there
have been proposals in the recommendations which are in the manner of
providing higher pay scale after completion of certain number of years
which cannot be treated as time bound promotion. Similarly, the
establishments have also been categorized on the basis of their turnover,
thus, taking into consideration the capacity of various establishments to
pay.
69) It is useful to refer Section 12 of the Act which deals with the
powers of Central Government to enforce recommendations of the Wage Board.
It reads as under:
“12 - Powers of Central Government to enforce recommendations of
the Wage Board
(1) As soon as may be, after the receipt of the recommendations of
the Board, the Central Government shall make an order in terms of the
recommendations or subject to such modifications, if any, as it thinks
fit, being modifications which, in the opinion of the Central
Government, do not effect important alterations in the character of
the recommendations.
(2) Notwithstanding anything contained in sub-section (1), the
Central Government may, if it thinks fit,--
(a) make such modifications in the recommendations, not being
modifications of the nature referred to in sub-section (1), as it
thinks fit:
Provided that before making any such modifications, the Central
Government shall cause notice to be given to all persons likely to be
affected thereby in such manner as may be prescribed, and shall take
into account any representations which they may make in this behalf in
writing; or
(b) refer the recommendations or any part thereof to the Board, in
which case, the Central Government shall consider its further
recommendations and make an order either in terms of the
recommendations or with such modifications of the nature referred to
in sub-section (1) as it thinks fit.
(3) Every order made by the Central Government under this section
shall be published in the Official Gazette together with the
recommendations of the Board relating to the order and the order shall
come into operation on the date of publication or on such date,
whether prospectively or retrospectively, as may be specified in the
order.”
70) Thus, it is the prerogative of the Central Government to accept or
reject the recommendations of the Wage Boards. There is no scope for
hearing the parties once again by the Central Government while accepting or
modifying the recommendations, except that the modifications are of such
nature which alter the character of the recommendations and such
modification is likely to affect the parties. The mere fact that in the
present case, the Government has not accepted a few recommendations will
not automatically affect the validity of the entire report. Further, the
Government has not accepted all those suggestions including those
pertaining to retirement age, etc. as these are beyond the mandate for
which the Wage Boards were constituted. Regarding fixation of pay, assured
career development, there have been proposals in the recommendations which
are in the manner of providing higher pay scale after completion of certain
number of years which cannot be treated as time bound promotion.
71) Accordingly, we hold that the recommendations of the Wage Boards are
valid in law, based on genuine and acceptable considerations and there is
no valid ground for interference under Article 32 of the Constitution of
India.
72) Consequently, all the writ petitions are dismissed with no order as
to costs.
73) In view of our conclusion and dismissal of all the writ petitions,
the wages as revised/determined shall be payable from 11.11.2011 when the
Government of India notified the recommendations of the Majithia Wage
Boards. All the arrears up to March, 2014 shall be paid to all eligible
persons in four equal instalments within a period of one year from today
and continue to pay the revised wages from April, 2014 onwards.
74) In view of the disposal of the writ petitions, the contempt petition
is closed.
……….…………………………CJI.
(P. SATHASIVAM)
..…….……………………………J.
(RANJAN GOGOI)
……….……………………………J.
(SHIVA KIRTI SINGH)
NEW DELHI;
FEBRUARY 07, 2014.
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