Court : Supreme Court of India
Brief : The bench comprising of Chief Justice P. Sathasivam, Justice Ranjan Gogoi and Justice Shiva Kirti Singh upheld the recommendations of Justice Majithia Wage Board for journalists and non-journalists in the print media on their pay structure and directed that the revised salaries to be granted to the employees.
The revised wages will 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 will be paid in four equal instalments within a period of one year.
Citation : Express Newspaper (P) Ltd. vs. Union of India 1959 SCR 12
John Vallamattom vs. Union of India (2003) 6 SCC 611
Malpe Vishwanath Acharya vs. State of Maharashtra (1998) 2 SCC 1
Indian Handicrafts Emporium vs. Union of India (2003) 7 SCC 589.
Motor General Traders vs. State of Andhra Pradesh (1984) 1 SCC 222
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
WRIT PETITION (CIVIL) NO. 246 OF 2011
ABP Pvt. Ltd. & Anr. .... Petitioner (s)
Versus
Union of India & Ors. .... Respondent(s)
WITH
WRIT PETITION (CIVIL) NO. 382 OF 2011
WRIT PETITION (CIVIL) NO. 384 OF 2011
WRIT PETITION (CIVIL) NO. 386 OF 2011
WRIT PETITION (CIVIL) NO. 408 OF 2011
WRIT PETITION (CIVIL) NO. 510 OF 2011
WRIT PETITION (CIVIL) NO. 538 OF 2011
WRIT PETITION (CIVIL) NO. 514 OF 2011
WRIT PETITION (CIVIL) NO. 546 OF 2011
WRIT PETITION (CIVIL) NO. 87 OF 2012
WRIT PETITION (CIVIL) NO. 264 OF 2012
WRIT PETITION (CIVIL) NO. 315 OF 2012
WRIT PETITION (CIVIL) NO. 817 OF 2013
WITH
CONTEMPT PETITION (CIVIL) NO. 252 OF 2012 IN
WRIT PETITION (CIVIL) NO. 538 OF 2011
J U D G M E N T
REPORTABLE
P.Sathasivam, CJI.
1) These writ petitions, under Article 32 of the Constitution of
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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
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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:-
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(i) Divatia Wage Board
Date of
Appointmen
t
Date of
Acceptanc
e
Challenge
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
Appointment
12.11.1963/
25.02.1964
Date of
Acceptanc
e
Challenge
27.10.1967 In Press Trust of India vs. Union
of 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.
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(iii) Palekar Wage Board
Date of
Appointment
11.06.1975/
06.02.1976
Date of
Acceptanc
e
Challenge
26.12.1980 The constitution of Wage Board was
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
Appointme
Date of
Acceptanc
Challenge
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nt e
17.07.1985 31.08.1989 The award was challenged in Indian
(v) Manisana Wage Board
Date of
Appointmen
t
Date of
Acceptanc
e
09.09.1994 5.12.2000/1
5.12.2000
by
Notification.
Express Newspapers (Pvt.) Ltd.
and Ors. vs. Union of India & Ors.
1995 Supp (4) SCC 758.
Challenge
This Wage Board’s award was
challenged in Karnataka and Delhi
High Court. 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
Appointmen
t
Date of
Acceptanc
e
Challenge
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
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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
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of the two Wage Boards has been as under:-
Wage Board for Working Journalists
1. Justice Gurbax Rai Majithia, retired Judge of the High
Court of Bombay at Mumbai
2. Shri K.M. Sahni, Former Secretary, Ministry of Labour
and Employment
3. Shri B.P. Singh Independent
Member
4. Shri P.N. Prasanna Kumar Independent
Member
5. Shri Naresh Mohan, representing Indian Newspaper
Society
6. Shri Gurinder Singh, representing All India Small and
Medium Newspapers
7. Shri Prataprai, Tarachand Shah, representing Indian
language Newspaper Association
8. Shri K. Vikram Rao, President, Indian Federation of
Working Journalists
9. Dr. Nand Kishore Trikha, President, National Union of
Journalists (India)
10. Shri Suresh Akhouri, President, Indian Journalists
Union
Chairman
Independent
Member
Representing
Employers
Representing
Employers
Representing
Employers
Representing
Working
Journalists
Representing
Working
Journalists
Representing
Working
Journalists
Wage Board for Non-Journalist Newspaper Employees
1. Justice Gurbax Rai Majithia, retired Judge of the High
Court of Bombay at Mumbai
2. Shri K.M. Sahni, Former Secretary, Ministry of Labour
and Employment
3. Shri B.P. Singh Independent
Member
4. Shri P.N. Prasanna Kumar Independent
Member
5. Shri Naresh Mohan, representing Indian Newspaper
Society
6. Shri Gurinder Singh, representing All India Small and
Medium Newspapers
7. Shri Prataprai, Tarachand Shah, representing Indian
language Newspaper Association
8. Shri M.C. Narasimhan, Vice President, All India
Newspaper Employees Federation
9. Shri Uma Shankar Mishra, Vice President, National
Federation of Newspaper Employees
10. Shri M.S. Yadav, General Secretary, Confederation of
Newspapers and News Agencies Employees’
Chairman
Independent
Member
Representing
Employers
Representing
Employers
Representing
Employers
Representing
Non-Journalist
Newspaper
Employees
Representing
Non-Journalist
Newspaper
Employees
Representing
Non-Journalist
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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
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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
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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
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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
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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
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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
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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
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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 AttorneyGeneral
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
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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
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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:
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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
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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
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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
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Page 21
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
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Page 22
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
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Page 23
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
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Page 24
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
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Page 25
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
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Page 26
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.
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Page 27
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
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Page 28
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.
29
Page 29
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
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Page 30
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
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Page 31
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
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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
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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.”
34
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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
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Page 35
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
36
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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
37
Page 37
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
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Page 38
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
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Page 39
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
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Page 40
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
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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
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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
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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
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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. 8
th
January,
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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
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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
1. Shri K.M. Sahni
2. Shri N.K. Trikha, Shri Vikram Rao, Shri
Suresh Akhouri (Representatives of
working journalists)
3. Shri Uma Shankar Mishra, Shri M.S. Yadav,
Shri M.C. Narasimhan (Representatives of
non-journalists)
4. Shri Prasanna Kumar
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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
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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.
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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
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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
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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
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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):-
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“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
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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
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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
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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
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‘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
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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,
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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 subsection
(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
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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
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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)
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NEW DELHI;
FEBRUARY 07, 2014.
..…….……………………………J.
(RANJAN GOGOI)
……….……………………………J.
(SHIVA KIRTI SINGH)
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