Express Newspapers (Private) Ltd.
& ANR Vs. The Union of India & Ors  INSC 1 (8 January 1958)
Working journalists-Regulation of Conditions
of ServiceConstitutional validity of enactment-Decision of Wage Board fixing
rates of wages-Validity-Working journalists (Conditions of Service) and
Miscellaneous Pro visions Act, 1955 (45 of 1955), SS. 3(2), 4. 5(1) (a)(iii),
9(1), 11, 12, 17, 20(d)(2)-Constitution of India, Arts. 19(1) (a), 19(1)(g),
These petitions on behalf of certain
newspaper establishments challenged the constitutional validity of the Working
journalists (Conditions of Service) and Miscellaneous Provisions Act, 1955, and
the legality of the decision of the Wage Board, constituted there under,
purporting to act under s. 9 of the Act. The impugned Act, which was passed in
order to implement the recommendations of the Press Commission and had for its
object the regulation of the conditions of service of working journalists and
other persons employed in newspaper establishments, provided, inter alia, for
the payment of gratuity to a working journalist who had been in continuous
service, whether before or after the commencement of the Act, for not less than
three years, even when he voluntarily resigned from service, regulated hours of
work and leave, provided for the payment of retrenchment compensation with
retrospective effect in certain cases and by s. 9(1) laid down the principles
that the Wage Board was to follow in fixing the rates of wages of working journalists.
Under those principles the Wage Board was to have regard to the cost of living,
the prevalent rates of wages for comparable employments, the circumstances
relating to the newspaper industry in different regions of the country and to
any other circumstances which it might consider relevant. The petitioners
contended on various grounds that the provisions of the impugned Act violated
their fundamental rights under Arts. 19(1)(a), 19(1)(g), 14 and 32 Of the
Constitution and that the decision of the Wage Board fixing the rates and
scales of wages, which was arrived at without any consideration whatsoever as
to the capacity of the newspaper industry to pay the same, imposed too heavy a
financial burden on the industry and spelled its total ruin, was vitiated by a
wrong approach and non-application of the proper criteria and transgressed the
principles of natural justice and was, therefore, illegal and void:
Held, that the constitutional validity of the
impugned Act, with the sole exception of s. 5(1)(a)(iii) of the Act which
infringed 13 Art. 19(1)(g) of the Constitution, was beyond question and as that
section, severable as it was from the rest of the Act, must alone be declared
Section 9(1) of the Act, properly construed,
made it incumbent on the Wage Board to take into consideration the capacity of
the newspaper industry to pay the rates and scales of wages recommended by it
and as there was nothing to indicate that it bad done so, its decision was void
Held, further, that there could be no doubt,
in view of the interpretation put upon Art. 19(1)(a) of the Constitution by
this Court, that liberty of the press was an essential part of the freedom of
speech and expression guaranteed by that Article and the press had there under
the right of free propagation and free circulation without any previous
restraint on publication.
Ramesh Thaper v. The State of Madras, 
S.C.R. 594 and Brij Bhushan v. The State of Delhi,  S.C.R. 605, referred
It was legitimate and proper to refer in this
connection to the decisions of the Supreme Court of the United States of
America, since Art. 19(1)(a) of the Constitution was based on Amendment 1 of
the Constitution of that country, and the rules that could be deduced therefrom
made it clear that although freedom of the press included freedom from
restriction in respect of employment in the editorial staff, the press was not
immune from ordinary forms of taxation or from the application of general laws
relating to industrial relations or laws regulating payment of wages.
Case law reviewed.
But if a law were to single out the press for
laying prohibitive burdens on it that would restrict the circulation, penalise
its freedom of choice as to personnel, prevent newspapers from being started
and compel the press to seek Government aid, it would be violative of Art.
19(1)(a) and would fall outside the
protection afforded by Art. 19(2) of the Constitution.
The impugned Act, judged by its provisions,
was not such a law but was a beneficent legislation intended to regulate the
conditions of service of the working journalists and the consequences aforesaid
could not be the direct and inevitable result of it. Although there could be no
doubt that it directly affected the press and fell outside the categories of
protection mentioned in Art. 19(2), it had not the effect of taking away or
abridging the freedom of speech and expression of the petitioners and did not,
therefore, infringe Art. 19(1)(a) of the Constitution.
A.K. Gopalan v. The State of Madras, 
S.C.R. 88, Ram Singh v. The State of Delhi,  S.C.R. 45I Minnesota Ex Rel.
Olson, (1930) 283 U.S. 697 ; 75 L. Ed. 1357 and Dwarkadas Shrinivas of Bombay
v. The Sholapur Spinning and Weaving Co., Ltd.,  S.C.R. 674, considered.
14 Nor could the impugned Act be held to be
violative of Art.
19(1)(g) of the Constitution in view of the
test of reasonableness laid down by this Court.
Chintaman Rao v. The State of Madhya Pradesh,
 S.C.R. 759, The State of Madras v. V. G. Rao,  S.C.R. 597, a State
of West Bengal v. Subodh Gopal Bose,  S. C. R. 587 and Virendra v. State
of Punjab,  S.C.R. 308, referred to.
It was not correct to say that s. 9(i) of the
Act did not lay down the relevant criteria for the fixation of rates of wages.
On a true construction of that section it must be held that the criterion of
prevalent rates of wages for comparable employment could be consistent only
with the wages higher than the bare subsistence or minimum wages and, since rates
of wages must be held to include scales of wages as well, it was essential that
the Wage Board should take into consideration the capacity of the newspaper
industry to pay before it could fix the rates of wages. Although the Act did
not specifically say so, it was possible to hold that the third criterion laid
down by the section, namely, the circumstances relating to the newspaper
industry in different regions of the country, included such a consideration.
The provisions of the section were not, therefore, unreasonable and violative
of Art. 19(1)(g) of the Constitution.
The provisions of s. 9(1) of the impugned Act
did not vest uncontrolled power in the Wage Board. The last criterion of that
section which empowered the Board to take into consideration any other
circumstances that it might think relevant, must be read ejusdem generis with
the other criteria that preceded it and as they laid down with sufficient
clarity and particularity the principles for the guidance of the Board, the
Legislature was perfectly justified in leaving such considerations as might
arise in course of the enquiry to the subjective satisfaction of the Board
constituted, as it was, of equal number of representatives of both the
employers and employees.
Thakur Raghbir Singh v. Court of Wards,
Ajmer,  S.C.R. 1049, considered.
It was not correct to say, having regard to
the provisions of ss. 11 and 20(2)(d) of the impugned Act, that the Act did not
lay down any procedure for the Board to follow or that it was open to the Board
to follow any arbitrary procedure violating the principles of natural justice.
There could be no substance in the contention
of the petitioners that the provisions of the impugned Act relating to
proofreaders, whom it included within the definition of working journalists,
period of notice under s. 3(2), retrospective operation in cases specified by
s. 4 and hours of work, imposed unreasonable restrictions on their fundamental
right to carry on business.
Gratuity, however, was a reward for good,
efficient and faithful service rendered for a considerable period and there
could be 15 no justification for awarding the same when an employee voluntarily
resigned, except in certain exceptional circumstances. The award of -gratuity,
therefore, to an employee who voluntarily resigned from service after a period
of only three years, under s. 5(1)(a)(iii) of the Act, must be held to be
unreasonable and wholly unjustified.
The impugned Act was not discriminatory in
character and did not violate Art. 14 of the Constitution. Working journalists
formed a separate class by themselves and could be classified apart from the
rest of the newspaper employees on a perfectly intelligible differentia
rationally related to the object which the Act had in view. Nor could the provisions
of either s. 12 or s. 17 of the Act, therefore, be said to be discriminatory in
Budhan Choudhary v. The State of Bihar,
 1 S.C.R. 1045, applied.
The impugned Act contained no prohibition nor
did it in any way prevent the Wage Board from giving reasons for its decision
and thus passing a speaking order where it chose to do so, and it could not,
therefore,-be said to have violated the fundamental right of a citizen to move
the Supreme Court for a writ of certiorari under Art. 32 of the Constitution.
Rex v. Northumberland Com. Appeal Tribunal,
Ex Parte Shaw,  1 K. B. 711 and Rex v. Northumberland Compensation Appeal
Tribunal, Ex Parte Shaw,  1 K. B. 338, held inapplicable.
A.K. Gopalan v. The State of Madras, 
S.C.R. 88, relied on.
The question whether a particular body was
exercising legislative, administrative or judicial or quasi judicial functions
has to be determined in the light of the statute under which it was constituted
and an administrative body functioning as such can also be acting in a
quasi-judicial capacity. The test would be whether it had to decide on evidence
and decide judicially. So judged, there could be no doubt that the Wage Board
under the impugned Act was functioning in a quasi-judicial capacity.
Nagendra Nath Bora v. Commissioner of Hills
Division and Appeals, Assam,  S.C.R. 1240, referred to.
Although this Court would not normally enter
into questions of fact, in this case the Wage Board had wholly ignored an essential
condition for the exercise of its function and imposed a very heavy financial
burden on the newspaper industry. Although the Classification of the newspaper
industry on the basis of grossrevenue, fixation of scales of wages, provisions
as to the, hours of work, leave, retrospective operation in specified cases,
and grouping of newspapers into chains or multiple units could not be said to
be improper or unjustified, they made the burden heavier still.
16 The Board made no enquiry whatsoever as to
the ability of the industry to pay either as a whole or region-wise and did not
call for or hear representations from them before finalising its decision. Its
decision was, therefore, ultra vires the Act and contrary to the principles of
ORIGINAL JURISDICTION: Petitions Nos. 91, 99,
100, 101, 103
Petitions under Article 32 of the
Constitution of India for the enforcement of Fundamental Rights.
AND & CIVIL APPELLATE JURISDICTION: Civil
Appeals Nos. 699-703 of 1957.
Appeals by special leave from the decision of
the Wage Board for Working Journalists published in the Gazette of India
Extraordinary (Part IT, Section 3) dated May 11, 1957.
1957. Dec. 3, 4, 5, 6, 10, 11, 12, 13, 17,
18, 19, 20.
1958. Jan. 8, 9, 10, 14, 15, 16, 17, 21, 22,
23, 24, 28.
M. K. Nambiar and G. Gopalakrishnan, for the
petitioners in Petition No. 91 of 1957. -The Working Journalists Act, 1955, is
ultra vires as it infringes the fundamental rights of the Petitioners
guaranteed by the Constitution under Arts. 19 (1) (a), 19 (1) (g), 14 and 32.
Article 19 (1) (a) which guarantees freedom of speech and expression includes
the freedom of the employment of means to exercise those rights and
consequently comprehends the freedom of the Press. The guarantee of an abstract
freedom of expression would be meaningless unless it contemplated and included
in its ambit all the means necessary for the practical application of the
freedom. (Freedom of the Press-A Framework of Principles-Report of the
Commission on Freedom of Press in the United States of America, 1947; Report of
the Royal Commission for the Press in the United Kingdom 1949; Ramesh Thapar v.
The State of Madras,  S. C. R.
594; Brij Bhusan v. State of Delhi,  S.
C. R. 605; Ex parte Jackson, 96 U. S. 727; Lovell v, City of Griffin, 303 U. S.
444; Orosjean v. American Press Co., 80 L; Ed. 660;
Schneider v. Irvington, 84 L. Ed. 155.
17 Constitution of the United States of
America, Revised and Annotated (1952), U. S. Govt. Printing Office pp. 792,
988). If the impugned Act is viewed as a whole it will appear that it
authorised the fixation of salary of working journalists at a level which
disables the running of the press. The impugned Act thus, impedes, controls and
prohibits the free employment of the agencies of expression on that section of
the Press which form its vocal chord and therefore the Act infringes the
freedom contemplated under Art. 19 (1) (a) and is not saved by Art. 19 (2). In
judging the validity of the enactment it must be tested by its operation and
effect (Dwarkadas Srinivas of Bombay v. The Sholapur Spinning and Weaving Co.
Ltd.,  S. C. R. 674, 683; Minnesota Ex Rel. Olson, 75 L. Ed. 1357).
The Act also violates the right guaranteed by
Art. 19 (1) (g) of the Constitution as it places unreasonable restraint on the
petitioners' freedom to carry on business (Chintaman Rao v. The State of Madhya
Pradesh,  S. C. R. 759;
cited with approval in Dwarka Prasad Laxmi
Narain v. The State of Uttar Pradesh,  S. C. R. 803 and Ch. Tika Ramjidas
v. State of U. P.  S. C. R. 393; The State of Madras v. V. G. Row, 
S. C. R. 597, 606-607; The State of West Bengal v. Subodh Gopal Bose,  S.
(C. R. 587; Virendra v. State of Punjab, A. 1. R. 1957 S. C. 896). The law
imposing restrictions on fundamental rights must be reasonable not only in its
substantive content but in its procedural content as well (Dr. N. B. Khare v.
State of Delhi,  S. C. R. 519; Ourbachan v. State of Punjab,  S. C.
R. 737). The relevant criteria for the fixation of wages were not laid down in
s. 9 (1) of the Act.
The criteria for the fixation of wages laid
down in the Act were only relevant for fixing minimum rates of wages, though
the word " minimum" used in the Bill 13 of 1955 as introduced in the
Rajya Sabha was subsequently dropped before the Bill became the Act. It was not
made incumbent on the Wage Board to consider the capacity of industry to pay as
an essential criterion or a major factor in 3 18 fixing wages. The other
circumstances, viz., " any other circumstances which to the Board may seem
relevant " mentioned in s. 9 (1) of the Act was left to be determined by
the Board on its subjective satisfaction which could not be controlled by any
higher authority. The Act thus enables the Board to exercise arbitrary powers
in regard to the same and that is unreasonable by itself (Thakur Raghbir Singh
v. Court of Wards, Ajmer,  S. C. R. 1049; R. M. Seshadri v. District
Magistrate, Tanjore,  1 S. C. R. 686).
The procedure to be followed by the Wage
Board was not laid down in the Act (c. f. The Bombay Industrial Relations Act,
1946, as amended) and it Was open to the Board to follow any arbitrary
procedure disregarding the principle of audi alteration parted and as such the
Act is unreasonable. The Wage Board was not exercising legislative functions
but functions, which were quasi-judicial in character. The intention of the
Legislature was to assimilate the Wage Board as much as possible to an
Industrial Tribunal constituted under the Industrial Disputes Act, 1947. If it is held that s. 11 of the Act is an enabling
provision, and gave the Board the arbitrary discretion whether to exercise the
same powers and follow the same procedure of an Industrial Tribunal or any
procedure it liked, it is unreasonable.
The provisions of ss. 2 (f), 3, 4, 5, 8 to
11, 12, 14, 15 and 17 place restraints on newspaper establishments which would
have the effect of destroying the business of the petitioners. The right to
impose restrictions on the right to carry on business under Art. 19 (6)
conferred no power on the Legislature to destroy the business itself (Stone v.
Farmers Loan and Trust Co., 29 L. Ed. 636;
Municipal Corporation of the City of Toronto, v. Virgo, 1896 A. C. 88;
A. G.,for Ontario v. A. G. for the Dominion,
 A. C. 348).
The Act is discriminatory in character and
violates Art. 14 of the Constitution. It gives the working journalists a more
favoured treatment as compared to other employees in several ways, statutory
benefits by ,way of retrenchment compensation, gratuity, limitation of the
hours of work and leave, not enjoyed by 19 others in comparable employments. It
is restricted in its scope to a selected section of newspaper employees. it
gives them the benefit of the wage fixation by devising machinery in the form
of a Pay Commission without the existence of any industrial dispute, without
prescribing the major criterion of capacity to pay to be taken into consideration;
(Britannia Bldg. and Iron Co. Ltd., (1954) 1
L. L. J. 651, 654; Union Drug Co. Ltd., (1954) 1 L. L. J. 766, 767; Report of
the Committee on Fair Wages, pp. 13-15, paras. 21, 23 and 24); or following the
procedure prescribed by the Industrial Disputes Act, 1947, even in disregard of principles of audi alteram partem.
The employers of the newspaper establishments are subjected to discriminatory
treatment by the Act in that (1) they are singled out from all other industrial
employers who are covered by the ordinary law regulating industrial relations
under the Industrial Disputes Act, 1947 ; (ii) they have been saddled with new burdens in regard
to a section of their workers in matters of gratuity, compensation, hours of
work and wages; (iii) s.
12 of the Act makes the decision of the Wage
Board binding only on the employers and not on the employees and(iv) s. 17
provides for recovery of money from employers only and not from employees in
the same manner as an arrear of land revenue.
The classification made by the impugned Act
is arbitrary and unreasonable in so far as it removes the newspaper employers
vis-a-vis the working journalists from the general operation of the Industrial Disputes
The right to apply to Supreme Court for
enforcement of a fundamental right under Art. 32 is itself a fundamental right
guaranteed by the Constitution (Ramesh Thapar V. The State of Madras,  S.
C. R. 594, 597). The right to claim a writ of certiorari against a decision is
dependent on the fact that the impugned decision on its face is a "
speaking order ". (Rex v. Northumberland Compensation Appeal Tribunal, Ex
parte Shaw,  1 K. B. 71 1, affirmed by the Court of Appeal in  1 K.
B. 338 ; A. K. Gopalan v. The State of Madras,  S. C. R. 88, 243). The
Act 20 contravenes Art. 32 of the Constitution because it does not provide for
giving any reasons for the decision to be made by the Wage Board.
Decision of the Wage Board is illegal and
void because (1) the Act under which it is made was ultra vires (Mohd Yasin v.
Town Area Committee of Jalalabad,  S. C. R. 572;
Himatalal Harilal Mehta v. State of U. P.,
 S. C.R.
1122); (ii) the decision itself infringes the
fundamental rights of the petitioners (Bidi Supply Co. v. Union of India,
 S. C. R 267 and (iii) the decision is ultra vires the Act) Pandit Ram
Narain v. State of U. P.,  S. C. R. 664). The reconstitution of the Board
oil the retirement of one of its members was ultra vires and unauthorised by
the Act as it stood at the time, the Rules having been published on July 10,
1956. The procedure as to decision by majority is not warranted by the Act, and
the Rule which sanctioned such a procedure is ultra vires the Act. The
procedure followed by the Board offended the principles of natural justice and
is therefore invalid. It did not follow the procedure of ail Industrial
Tribunal even though on two occasions, viz., when the questionnaire was issued
and when a number of newspapers failed to reply to the questionnaire, the Board
asserted that it had the powers of an Industrial Tribunal. Neither in the
questionnaire nor at any time thereafter were concrete proposals submitted by
the Board to the newspaper establishments. Its decision is invalid as no
reasons are given for it nor does it indicate what considerations prevailed
with the Board in arriving at it.
The classification of newspapers on the basis
of gross revenue is contrary to the provisions of the Act. In the gross revenue
which is earned by newspaper establishments advertisement revenue ordinarily
forms a large bulk of such revenue and unless the proportion of advertisement
revenue to the gross revenue were taken into consideration it would not be
possible to form a correct estimate of the financial status of a newspaper
establishment with a view to its classification. Profit and loss of newspaper
establishment should. be the proper test and if that 21 test were adopted it would
give an altogether different picture.
Until now whenever the wage had to be fixed
for an industry the relevant consideration had always been the capacity of the
industry to pay. The wages which are normally fixed after a general inquiry'
applicable to the whole industry have always been minimum wages. Assessment of
a wage level and scale only by reference to gross revenue was erroneous.
The decision suffers from another major
defect in computing gross revenue not for each newspaper but collectively for
the Organization which might be running a number of papers.
The result of this mode of calculation was
that an organisation publishing a large number of papers might well fall within
the top class by virtue of its gross revenue although each one of the papers
taken individually might be running at a loss. This process of considering the
multiple units or a chain of newspapers as one establishment has affected the
petitioners adversely and is unauthorised by the Act. The Wage Board was not
authorised by the Act to fix the wages of working journalists in relation to
the whole industry but could do so only in respect of individual establishments
as will appear from the definition of a " newspaper establishment "
given in s. 2(d) of the Act. An establishment can only mean " an
establishment " and not a group of them, even though such an individual
establishment may produce or publish one or more newspapers. (Pravat Kumar v.
W. T. C. Parker, A. 1. R. 1950 Cal. 116, 118; S. R. V. Service Co. Ltd. v.
State of Madras,A. 1. R. 1956 Mad. 115, 121-122).
The decision of the Wage Board is illegal as
it does not disclose that the capacity to pay of the individual establishment
was ever taken into consideration. There is nothing on record to suggest that
both as regard rates of wages and the scales of pay the Wage Board ever took
into account as to what the impact of its decision would be on the capacity of
the industry to pay either as a whole or region-wise. Even as regards the
fixation of wages the Wage Board does 22 not seem to have taken into account
the other provisions of the Act which conferred upon the working journalists
other benefits which would affect the paying capacity of the newspaper
establishments. Furthermore the working Journalists constitute only 1/5 of the
total staff employed by various newspaper establishments. If the conditions of
service of working journalists were to be improved by the Wage Board the other
employees who form 85% were bound to be restive and likely to raise industrial
disputes for betterment of their conditions of service. This would impose an
additional financial burden on the newspaper establishments and would
substantially affect their capacity to pay. The retrospective operation of the
decision of the Wage Board was also calculated to impose financial burden on
the newspaper establishments.
The Wage Board exceeded its power in giving
retrospective operation to its decision. The Wage Board had acted illegally in
fixing scales of pay for a period of three years when the Act does not give it
such authority. Further the Wage Board was handicapped for want of Cost of
K. M. Munshi, L. K. Jha, S. S. Shukla,
Balbhadra Prasad Sinha and R. J. Joshi, for the petitioners in Petitions Nos. 99
to 101 of 1957. The freedom of the Press is a fundamental personal right of the
petitioners. It rests on the assumption that the widest possible dissemination
of information from diverse and antagonistic sources is essential to the
welfare of the public. Such freedom is the foundation of a free government and
as such enjoys a preferential position among the constitutional guarantees.
This is a " preferred right ".
The purpose of the constitutional guarantee
of free speech is to prevent public authority from assuming the guardianship of
the public mind (Thomas v. Collins, 89 L. Ed. 430; The Supreme Court and the
right of Free Speech and Press-Annotation in 93 L. Ed. 1151 ; Beauhairnais v. Illinois,
96 L. Ed. 919, 943dissenting opinion of Douglas, J.). While the Press enjoys no
immunity from the application of the general laws relating to industrial
relations, an Act or any 23 of its provision would violate the right of free
speech and expression if it lays a direct and preferential burden on the
freedom of the Press ; if it has a tendency to curtail circulation and thereby
narrow the scope of disseminating information; if it fetters the petitioners'
freedom to choose the means of exercising' their right to freedom of expression
and if it is likely to undermine the independence of the Press by having to
seek Government aid. The Act singles out the Press for levying upon it a direct
burden which is excessive and so restrictive as to be prohibitive.
It begets a class of workers whose benefits
and rights are given a preferential enforceability parallel to that of a public
debt. The impugned Act by s. 9 leaves, in violation of the Constitution, the
fixation of wages to an agency invested with arbitrary and uncannily power to
impose an indeterminate burden on the wage structure of the Press, such
employer and employee relations at its discretion as it thinks fit, and such
burden and restrictions for such time as it thinks fit. The Act and the
decision of the Wage Board, which under the Act becomes enforceable as a part
of it, have imposed an excessive and prohibitive burden which will have a
tendency to curtail the revenue and restrict circulation which is the means of
imparting information and giving free expression to speech, impose a penality
on the petitioners' right to choose the instruments for its exercise or to seek
alternative media of expression, drive the Press to seek Government aid in
order to survive and prevent newspapers from being started. The Act has created
an impossible situation in which the petitioner could only say " I cannot live,
I cannot die and I cannot commit suicide ". Even if the petitioners were
to close down their business and dispose of all their assets they would not be
in a position to meet all the liabilities.
The Constitution does not permit any
abridgment of the fundamental right of freedom of speech and expression unless
it falls within the categories of restrictions mentioned in Art. 19(2). When
the permitted restrictions were incorporated special care was taken by the
framers of the Constitution to see that 24 freedom of speech was protected and
that the right should not be at the mercy of the legislature which might want
to impose excessive burden on the Press. It is for this reason that the "
Public interest " restriction in Art. 19(6) appearing against the fundamental
right in Art. 19(1)(g) is not to be found in Art. 19(2).A distinction has to be
drawn between the Constitution of U. S. A. and India. What is known as the
" due process of law " in America has been specifically omitted from
the Constitution of India. In U. S. A. the " due process " clause
enabled the Supreme Court to read into the Constitution any doctrine
restrictive of the fundamental right, e. g., in the 1930's the U. S. Supreme
Court had held that statutory fixation of minimum wage in the newspaper
industry was violation of fundamental rights of free speech, but after some
years the same Court acting under the discretion given by the due process
clause took cognizance of altered circumstances in labour relations and held
that the imposition of a minimum wage on the Press did not violate the
fundamental right (Constitution of the United States of America, Revised and
Annotated (1952), U.
S. Govt. Printing Office, pp. 792, 988). The
Indian Constitution does not permit restriction of freedom of speech except
under the limitation set by Art. 19(2).
Restrictions that could be held intra vires
in respect of other industries would still be ultra vires under Art.
19(1)(a) of the Constitution in respect of
the Press industry because of the special privilege of right of free speech.
Any direct restriction placed by Government on the Press would be violation of
Art. 19(1)(a), and therefore even if the Government had sought to impose a
minimum wage for the Press by direct legislation it would have been equally
unconstitutional. This illegality, however, would not attach to the finding of
an adjudicatory machinery such as was contemplated under the Industrial Disputes
Where Government provided a media for the
settlement of disputes and claims between citizen,,, and citizens there was no
question of any contravention of fundamental rights which were protected
against governmental encroachment.
25 The various sections of the Act have the
effect of placing restrictions on the press which would in evitably have the
effect of restricting the freedom of speech and expression in contravention of
Art. 19 (1) (a). The Act has created a privileged class of working journalists
above the other workers either in this country or anywhere also, above contract
and above the law of the land.
The Wage Board has exceeded its authority and
has arrived at conclusions and findings which restricts the fundamental rights
of the petitioners. The Act authorizes the Central Government to constitute a
Wage Board for fixing rates of wages. This does not authorize the Board to
enter into the wider question of determination of scales of pay. Fixing could
only mean fixing with reference to a point of time.
The Legislature did not contemplate that
single wage should determine the wage scales, for all time to come The whole
framework of the Act was based on minimum wage and the sudden removal of the
word " minimum " has caused all these difficulties. " Rates of
wages " and not " scales of wages", the Wage Board was to
consider. The term " rates of wages applies only to a particular point of
time. [Sinha, J.-Section 9 (2) of the Act says that the Board may fix
"rates of wages for time work and for piece work ". They cannot have
any reference to scales. The same words in the statute mean the same thing.
They cannot mean different things in different sections.] Yes. These words are
used again and again in the Act. In the Minimun Wages Act, the Payment of Wages
Act, etc., where the same expression " rates of wages " is used to
indicate a wage fixed in time and amount. The Wage Board has exceeded its power
in fixing the scales of wages and increments and thereby places a fetter on the
Press, not contemplated by the Act.
The Act and the Wage Board have disregarded
all considerations which according to authority and law were germane to the
proper fixation of wages without 4 26 placing restrictions on fundamental
rights. Even the Minimum Wages Act provides for periodical reviews, and
proposals for minimum wages should be notified for inviting the opinions.
The decision of the Wage Board has been
arrived at in violation of the procedure prescribed by s. 11 of the impugned
Act and in violation of the rules of natural justice and is thus illegal.
The Wage Board has been unreasonable in
basing wages on revenue from all sources rather than on the revenue which the
working journalists contributed by their labour.
Classification of newspapers on the basis of
the gross revenue of all papers run by an Organisation and fixation of wages on
such classification has led to results which are absurd and discriminatory in
effect and ignore the principle enunciated by the Act itself. As an example,
take the case of a paper with small circulation in Kutch which is placed in a
higher category than a paper in Bombay simply because the former is part of a
The Wage Board has not taken care to remain
within the terms of the impugned Act, namely, that the wages should be based on
The Wage Board has given its decision in
complete disregard of the newspapers' capacity to pay. it did not take proper
care in framing its decision. Lack of such care in framing its decision makes
it unreasonable and hence restrictive of fundamental rights.
The Wage Board has exceeded its authority by
giving retrospective effect to the wage structure devised by it.
This is invalid and ultra vires the Act.
Section 12 of the Act creates one-sided
obligation by making decision of the Board binding only on the employers. Such
one sided obligation can be appropriate when a minimum subsistence wage is
fixed but cannot attach to payment of wages at luxury levels. This unilateral
obligation on the employer leaves it open to the journalists to agitate for an
increase in wages before an industrial tribunal, but it precludes the employer
from seeking any alteration under any circumstances. The Act has provided no
machinery 27 for a review or revision of the wage structure even if circumstances
Restrictions on fundamental right to do
business arise because the Act and the decision of the Wage Board have the
effect, firstly, of considerably increasing the operating cost and, secondly,
of fettering the conditions of service or the terms of the contract of service
between the employer and the employee.
By disregarding the disparity in regional
conditions the Wage Board has discriminated between paper and paper, employer
and employer and employee and employee.
S. P. Sinha, Gurbachan Singh, Harbans Singh
and R. Patnaik, for the petitioners in Petition No. 103 of 1957.
S. S. Shukla, for the petitioners in
Petitions Nos. 116 to 118 of 1957.
M. C. Setalvad, Attorney-General for India,
B. Sen and R. H. Dhebar, for respondent No. I (The Union of India) in all the
Petitions. Before going into the merits of the case it is necessary to examine
the background and the perspective in which the Act was enacted, the careful
inquiry which preceded its enactment and the conditions which the Act was
designed to meet. (Report of the Press Commission, dated July 14, 1954; Report
of the Inquiry Committee constituted in 1947; Report of the C. P. and Berar
Press Inquiry Committee constituted on March 27, 1948).
The Act does not infringe any of the fundamental
rights of the petitioners guaranteed under Arts. 19(J) (a), 19(1)(g), 14 and 32
of the Constitution. The functions of the Wage Board constituted tinder s. 8 of
the Act were not judicial or quasi-judicial in character; the fixation of the
rates of wages by the Wage Board was a legislative act and not a judicial one;
the Wage Board arrived at its decision on a consideration of all the criteria
laid down in s. 9(1) of the Act for fixation of wages and the material as well
as the evidence placed before it; a large number of the decisions of the Wage
Board was unanimous; under the Act the Wage Board has the power and authority
to fix the 28 scales of wages also and to give retrospective operation to its
decision. The financial position of the petitioners was not such as to lead to
their collapse as a sequel to the enactment of the provisions of the Act and
the decision of the Wage Board.
Regarding alleged infringement of Art.
19(1)(a), I submit that the legislation should be examined in order to determine
whether it is legislation directly in respect to the fundamental rights
mentioned in the Constitution. The principle enunciated by the Supreme Courtney
several decisions is that when a legislation is attacked on the round of
contravention of a fundamental right, the Court must first examine whether it
directly deals with the fundamental right. If the legislation is not one
directly with respect to a fundamental right no further question arises, (A. K.
Gopalan v. The State of Madras,  S. C. R. 88, per Kania, C. J., Ram Singh
v. State of Delhi,  S.C.R. 451, 455). The Supreme Court has also in this
connection invoked the doctrine of "pith and substance ".
The fact that a legislation, directed in its
path and substance to regulate gambling, incidentally placed certain
restrictions on business was held not to make the law violative of the
fundamental right to carry on business.
(State of Bombay v. R. M. D. Chamarbaugwala,
 S. C. R. 874). The provisions of the Act are clearly designed to regulate
the conditions of service of journalists and not the freedom of expression or
speech, and therefore no question of the infringement of fundamental right
19(1)(a) arises. The contention of the
petitioners based on American decisions, e. g., Minnesota Ex Rel. Olson (75 L.
Ed. 1357) cannot be sustained. First, the
provisions of the American Constitution are substantially different; secondly,
the American Courts have adopted the same view as our Supreme Court in A. K.
Gopalan v. The State of Madras,  S. C. R. 88, and other cases. (The
Associated Press v. The National Labour Relations Board, 81 L. Ed. 953,960966;
Mabee v. White Plains Publishing Co., 90 L. Ed. 607, 613-where application of
U. S. Fair Labour Standards Act, 1938, to newspaper undertakings was held not
to 29 infringe freedom of speech; Oklahoma Press Publishing Co. v. Walling, 90
L. Ed. 614, 621; Murdock v. Pennsylvania, 87 L. Ed. 1292).
The restrictions under Art. 19(6) on the
freedom to carry oil business under Art. 19(1)(g) will not cease to be
reasonable even if such restrictions resulted in prohibition of carrying on
business in certain cases. Such restrictions can be imposed if they are in the
interest of the general public. Having regard to the Report of the Committee on
Fair Wages appointed by the Government of India and the practice prevailing in
other countries, the Act has not adopted any unusual procedure in constituting
a Wage Board for the determination of rates of wages of working journalists.
The Act follows the recommendations of the Press Commission for the most part.
The only important deviation it has made is that whereas the Press Commission
had recommended fixation of a minimum wage, the Act provides for fixation of
all wages. Under the directive principles of State Policy (Art. 43 of the
Constitution) the goal was not merely a minimum wage but a fair wage and a
We have to march to that goal.
[Gajendragadkar, J.-True, but in marching to
that goal we have to consider the capacity to pay.] Yes, capacity to pay
region-wise and capacity to pay country-wise but not capacity to pay unit-wise,
that is, according to each newspaper's capacity.
The Court has to consider what the
The term " minimum wage" has been
understood in two different senses, the first being an " industrial
minimum wage " and the second a " statutory minimum wage ". Is
it an " industrial minimum ", or is it a " statutory minimum
" ? An " industrial minimum " is a subsistence wage that has to
be paid by any unit if it wishes to exist; a " statutory minimum " is
someting more than a subsistence level wage and may be any level which the
Legislature thinks fit to impose.
The statutory minimum wage need not be
confined to fixing a single determinate amount but can legitimately include the
fixing of a scale of wage. " Wages " has been defined 30 very
comprehensively in s. 2(rr) of the Industrial Disputes Act, 1947, and in the Third and Fourth Schedule to that Act wages
are stated to include the period and mode of payment.
[Sinha, J. Does it refer to scales ?] Wages
include in its ambit the scales. It was on this basis that various Industrial
Tribunals have fixed scales. Even the Supreme Court decided that way.
[Sinha, J. My point is whether the question
has been raised and decided or has it been only assumed ?] The matter, so far
as I know, has not been raised and decided. It has only been assumed.
" Wages " in ss. 9 and 8 of the Act
has been used in a comprehensive sense. The correct approach is to see what the
term " wages " means and to see whether the word " rates "
cuts down that meaning. In order to construe the section.
it will not be legitimate to see what
happened in the Legislature, what was said in the Bill and how the word "
Minimum " was dropped. One of the criteria specified in s.
9(1) of the Act is the prevalent rates of
wages for comparable employments. This has no reference to minimum wage
(Nellimarla Jute Mills, (1953) 1 L. L. J. 666). It shows that s. 9(1)
contemplates fixation of rates of wages which are higher than the bare
subsistence or industrial minimum wage. The criterion " the circumstances relating
to newspaper industry in different regions of the country " in s. 9(1) can
have no other meaning than the capacity to pay region-wise. The discretion
given to the Wage Board to consider " any other circumstances which to the
Board may seem relevant" is no doubt subjective. It is the Board which has
to decide what is relevant and what is not. Such power is neither unreasonable
nor arbitrary. The general policy with regard to the Wage Board was that they
were given the widest discretion and there was no question of their discretion
being fettered. Even if the Legislature left the fixation of wage to the Board
without laying down any criteria it would have been a competent legislative Act
because of the nature of the 31 Board. In fact, three criteria have been laid
down in s. 9(1) of the Act. Having regard to the variety and complexity of the
matters involved it was not possible for the Legislature itself to visualise or
indicate the various circumstances which might be relevant.
There is nothing unusual or arbitrary in
leaving to the Wage Board a wide discretion in the matter of its procedure. In
U. K. the Central Co-ordinating Committee under the Wage Councils Act, 1945,
and the Agricultural Wages Board under the Agricultural Wages Regulation Act,
1924, are authorised to regulate their own proceedings. No formal procedure has
been prescribed for Wage Boards in Australia.
The inclusion of proofreaders in the
definition of "Working Journalist" in s. 2(1) of the Act is not
unreasonable. Proof-readers occupy a very important position in the editorial
staff of a newspaper (KemsleyManual of Journalism, p. 337, B. Sen
Gupta-Journalism as a Career (1955 Edn.). There is nothing unreasonable in the
period of notice for retrenchment in s. 3(2) of the Act.
(Halsbury's Laws of England, 2nd Edn., Vol.
22, p. 150, para. 249 foot-note (e)). The retrospective operation of
compensation in certain cases given by s. 4 of the Act is designed to meet the
few cases of retrenchment by the management anticipating the implementation of
the recommendation of the Press Commission and cannot be said to be
unreasonable. There is nothing unusual in s. 5 of the Act which provides for a
gratuity. Gratuity is recognised by Industrial Tribunals (Ahmedabad Municipal
Corporation,  L. A. C. 155, 158; Nundydroog Mines Ltd.,  L.
A. C. 265, 267). Under the law of various
countries payment of indemnity to an employee who voluntarily resigns is
provided for (Legislation for Press, Film and Radio in the World Today (1957)
UNESCO publication at p. 404 ; Collective Agreement between the Geneva Press
Association and the Geneva Union of Newspaper Publishers dated April 1, 1948).
Even in India Labour Courts have awarded
gratuity on voluntary resignation (Cipla Ltd., (1955) 11 L. L. J. 355, 358;
Indian Oxygen and Acetylene Co. Ltd., (1956) 1 L. L. J.
435). The hours of work provided in s. 6 of
32 the Act cannot be said to be unreasonable having regard to the nature of
work to be done by a working journalist. Such hours of work are fixed by s. 54
of the Factories Act, 1948, (See also, Mines Act, 1952;
Shops and Establishments Acts of different States in -India). Sections 8 to II
deal with the constitution of the Wage Board and the fixation of rates of wages
by the Board. The Wage Board was to consist of an equal number of
representatives of employers and employees and an independent chairman. There
is nothing unreasonable in the constitution of the Board. The principles for
the guidance of the Wage Board in the matter of fixation of wages have been
laid down by the Act. It cannot, therefore, be said that these provisions are
unreasonable. Section 17 of the Act relates only to the mode of recovery of
money from an employer and does not impose any financial burden;
therefore it could not be said that it
infringes Art. 19(1)(g).
Article 14 of the Constitution does not
forbid reasonable classification for the purpose of legislation (Budhan
Choudhry v. The State of Bihar,  1 S. C. R. 1045, 1048). The work of a
journalist is peculiar and demands a high degree of general education and some
kind of specialised training (Report of the Press Commission, para.
512; Legislation for Press, Film and Radio in
the World Today (1951) UNESCO publication at p. 403). The working journalists
are a class by themselves apart from the other employees of the newspaper
establishments and also employees in other industries. They can be singled out
for the purpose of -ameliorating their conditions of service. There would be no
discrimination if special. legislation is enacted for the benefit of this class
and a special machinery is created for fixing the rates of its wages different
from the machinery for other workmen. Even if the Act be considered as a social
welfare measure the State can only make a beginning somewhere. Such a measure
need not be all embracing. There is nothing unreasonable in s. 12 of the Act
which makes the decision of the Board binding on the employers only. A
provision which has for its object the protection of 33 employees cannot be
said to be repugnant to Art. 14 on the ground that it discriminates against the
employers (South Bank Ltd. v. Pichuthayappan, A. 1. R. 1954 Madras 377).
Section 17 of the Act is for the benefit of
the working journalists It enables him to realise the money due from an
employer under the Act. Similar provision is to be found in s. 33C of the Industrial Disputes
Act. There is
nothing discriminatory in a provision which governs employees in other
industries being extended to working journalists. The object sought to be
achieved by the Act is the amelioration of the conditions of service of working
journalists. The classification is based on intelligible differentiate which
distinguish them from other employees of the newspaper establishments and also
in other industries. These differentiae have a rational basis. The legislation
amply fulfils the conditions of permissible classification.
It is " fantastic " to contend that
the Act infringes Art.
32 of the Constitution. The Act does not
prohibit the Wage Board from giving a reason for its decision. No question
therefore arises of the infringement of the fundamental right of the
petitioners under Art. 32.
Assuming any provision of the Act is void
then the question will be whether it is severable. If it is severable then the
whole Act will not be void but only the section.
Similarly, if the court finds that the Act is
constitutional but a decision of the Wage Board is ultra vires the Act or
unconstitutional the Court will strike down such decision.
That will not affect the validity of the Act.
(State of Bombay v. F. N. Balsara,  S. C. R. 682; State of Bombay v. The
United Motors (India) Ltd.,  S. C. R.
1069 and R. M.,D. Chamarbaugwala v. The Union
of India,  S. C. R. 930).
In regard to the decisions of the Wage Board
the Court has to consider first, whether the decisions are intra vires the
Act-since an authority to whom the power of subordinate legislation is
delegated cannot act contrary to the statute, and secondly, do the decisions
being a part of the Act in any way contravene the Constitution. These are the
only questions which 34 arise in regard to the decisions of the Wage Board. No
question arises of its procedure being in accordance with the principles of the
natural justice nor of the application of audi alteram partem.
[Bhagwati, J.-They say it is contrary to the
principles of natural justice-audi alteram partem.] That is a maxim about which
we have heard so much. It has, no application to this case of delegated
[Bhagwati, J.-Can it not be urged, having
regard to s. 11, that the Legislature did not contemplate that the Wage Board
was to function as delegated authority because it gives the choice of the
provisions of the Industrial
Disputes Act being followed by the Board ?] No, even
for a subordinate legislative authority there are procedures to be followed for
arriving at certain conclusions.
[Kapur, J.-Is it not necessary to hear
everybody who may be affected by the decisions of the Board ?] No question of
hearing arises. It is a question of a subordinate legislative authority gathering
such information as it wants and it is obliged to take into consideration all
the relevant circumstances.
Certiorari and prohibition lie only in
respect of judicial or quasi-judicial acts. (Halsbury's Laws of England, 3rd
Edn. Vol. 11, p. 55, para. 114). The principle audi alteram partem also applies
only to judicial or quasijudicial proceedings. (Patterson v. Dist. Commr. of
Accrator,  A. C. 341). For a distinction between judicial and legislative
functions, See Cooley's Constitutional Limitations, 8th Edn. Vol. 1, p. 185;
Prentis v. Atlantic Coast Co. Ltd., 211 U.S.
210, 226-227, Per Holmes J.; Mitchell Coal Co. v. Pennsylvania, 57 L. Ed. 1479,
1482; Louisville and Nashville Railroad Co. v. Green Garrett, 58 L. Ed. 229,
239). The functions of the Wage Board in the United Kingdom have been
characterised by writers as legislative in character. (Robson's Justice and
Administrative Law, 3rd Edn. p. 608; Griffith's Principles of Administrative
Law, p. 39; Barbara Wootton, Social Foundations of Wage Policy, Modern methods
of 35 Wage determination, p. 88). This is also the case in Australia.
(Federated Saw Mills Case, 8 C. L. R. 465;
Australian Boot Trade Employees Federation v.
Whybrow and Co., 10 C. L. R. 266, 289, 317, per Isaacs, J.). The Labour and
Industry Act, 1953, of Victoria (Australia) in s. 39 (2) gives statutory
recognition to the decisions in 8 C. L. R. 365 and 10 C. L. R. 266, by
providing that every determination shall have force, validity and effect as if
enacted in the Act. The very constitution of the Wage Board under the impugned
Act, with an equal number of representatives of employers and employees with an
independent chairman is against its being judicial or quasijudicial in
character, for, no man should be judge in his own cause. (Franklin v. Minister
of Town and Country Planning,  A. C. 87, 103).
It is incorrect to infer that once the Wage
Board is constituted under s. 8 of the Act the power of the Government under
the Act is exhausted and nothing more can be done. The power to constitute the
Board can by virtue of s. 14 of the General Clauses Act, 1897, be used from time to time as the occasion demands. There
was nothing wrong in the Central Government reconstituting the Board on the
resignation of Shri K. P. Keshava Menon. The decision by majority is provided
by Rules framed by the Central Government under s. 20 of the Act which became a
part of the Act. Hence a decision by a majority in conformity with the Rules
under the Act cannot be impeached.
In examining the decisions of the Wage Board
the Court will attach to them the same consideration and weight as to a
decision by a legislature. (Pacific States Box and Basketing Co. v. White, 80
L. Ed. 138; 296 U. S. 170).
Under s. II of the Act the Wage Board
"may" exercise the powers and follow the procedure laid down under the Industrial
Disputes Act, 1947. There is nothing to warrant the provision being read as
obligatory or mandatory. The provisions of the Industrial Disputes Act are
basically enacted for the adjudication of disputes between two parties and they
are on 36 their face inapplicable to the Wage Board. That is precisely why the
Board was given the option to exercise some of the powers conferred by the Industrial
Disputes Act or to follow procedures prescribed in
It is not incumbent under the Act on the Wage
Board to give any reasons for its decisions. The Board would be perfectly
within its right if it chose not to give any reasons.
While judging the reasonableness of the wage
structure for the whole industry it would be entirely fallacious to see how it
hit a particular newspaper or a unit. Multiple units or chains could be
classified on the basis of the total gross revenues of all the constituent
units because economies would be possible in group operations resulting in the
reduction of the cost of production. There is nothing in the Act which
prohibits the Wage Board from grouping into chains or multiple units. Further,
there is nothing in the Act to prohibit the treating of several newspaper
establishments publishing one or more newspapers though in different parts of
the country as one establishment for fixing rates of wages.
Some sort of classification was inevitable
when the newspaper establishments all over the country had to be considered for
fixing the rates of wages. If the Wage Board adopted gross revenue as a
workable basis for classification there was nothing wrong and that fact could
not vitiate its decision. Profits of newspaper establishments were vague and
difficult to ascertain as many things are mixed up in calculating profit. It
would be dangerous to go by the profit and loss of individual concerns to
ascertain their capacity to pay. Even the Bank Award has taken the
"turnover" or the aggregate resources as the basis of the
classification. The basis of gross revenue was the only proper and convenient
method of ascertaining the actual status of a newspaper establishment for
fixing a wage structure.
Wage-structure recommended by the Board would
show that compared with the scales and salaries obtaining now in many of the
newspaper establishments the scales given by the Board were not exorbitant or
37 unreasonable. What is to be considered is the industry region-wise and not
individual units. It may be that individual units may suffer hardship or even
go out of existence but that would not be a relevant consideration.
[Gajendragadkar, J.-If the decisions are to
be attacked effectively under Art. 19(1)(g), petitioners have to show that A or
B or C class of paper will cease to exist, or, taken as a class they cannot
bear the burden.] That is the way the matter should be approached. The figures
in individual statements of the petitioners furnish no evidence whatsoever of
the unreasonableness of the wage fixation.
The decision is given retrospective effect
from the date of constitution of the Board. The Act itself in s. 13
contemplates interim relief. Instead of granting any interim relief the Board
decided to give retrospective effect to its decision.
A.V. Viswanatha Sastri, S. Viswanathan, B. R.
L. lyengar, J. B. Dadachanji, S. N. Andley and Rameshwar Nath, for respondent
No. 3 in Petition No. 91 of 1957. The balance sheets and profit and loss
accounts of the petitioner company for several years when analysed show that
with normally prudent management the earnings of the Indian Express group of
newspapers admit of payment to working journalists on the scale fixed by the
Wage Board and the decision of the Wage Board was legally valid and just having
regard to the several factors to be taken into consideration in fixing a fair
N. C. Chatterjee, A. S. R. Chari, S.
Viswanathan,A. N. Sinha, J. B. Dadachanji, S. N. Andley and Rameshwar Nath, for
the Indian Federation of Working Journalists in all the Petitions, and for the
]Delhi Union of Journalists in Petition No. 103 of 1957. It is open to
Parliament to delegate to the Wage Board the power to legislate with regard to
certain subjects. The so-called decision of the Wage Board was a valid exercise
of such power by a subordinate legislative body functioning under specified
conditions under Parliamentary mandate with the limits prescribed by the
38 Even if the Wage Board is held to be a
quasijudicial body, it acted according to the principle of audi alteram partem
and no prerogative writ should be issued to disturb findings arrived at by such
M. K. Nambiar, in reply. The Wage Board was
not intended to exercise powers of legislation but those of a judicial nature.
Under s. 10 of the Working Journalist,-, Act the Board has to make a
"decision", and this term has been used in several enactments to
indicate a determination by a judicial tribunal. Under s. 8 the decision of the
Board has to be made in accordance with the provisions of the Act and therefore
the Board had the function of applying the law and not making a law. The Wage
'Board is required under s. 11 to adopt the law procedure as is adopted by
Industrial Tribunal.-,. The decision of the Board is declared to be binding
only on some persons and not all. It can be executed in the same manner as the
award of an Industrial Tribunal. Its character is identical to that of an award
made by an industrial tribunal and the Supreme Court has held that a tribunal
does not exercise legislative functions. Parliament did not intend to confer
any powers of subordinate legislation on the Board. This is clear from the
rules of business of the Lok Sabha read with the Statement of Objects and
Reasons to the Bill. In, the memorandum regarding delegated legislation
appended to the Bill the constitution of the Wage Board in the matter of
fixation of wages had not been shown as a piece of delegated legislation. (The
Rules of Procedure and Conduct of Business in Lok Sabha (1957)-Rule 70). The
decision of the Wage Board was not to be laid before both the Houses of
Parliament. This would have been so had the fixation of wages by the Board was
a delegated legislation (laid Rule 317). The Wage Board was not constituted as
sub-legislative authority. The question is not what the legislature could have
enacted but whether by virtue of powers of the Wage Board under the Act as
enacted, it is a legislative body or a tribunal with adjudicators functions The
Board does not possess any powers of delegated legislation, It has been given
all the trappings which 39 were necessary to characterize it as a judicial
body. In interpreting the Act the Court is entitled to take into consideration
the surrounding circumstances, the object of the legislation and also whether a
particular term used in legislation was considered by the legislature at the
time of enactment. The court ought to take into consideration the entire
background and the effect of dropping of the term "minimum" from the
enactment. The Press Commission had directed its attention exclusively to the
question of fixing minimum wage and the Act in s. 9 followed the pattern and
purported to implement the recommendations of the Press Commission. The Press
Commission in considering minimum wage ignored the capacity to pay. The Act,
similarly, being based on the Report of the Press Commission has made no
provision for considering the capacity to pay. This omission which was
appropriate with regard to minimum wages rendered the fixation of wages at a
different level unreasonable and therefore void. The content of the term
"minimum wage" would not be changed by merely calling it a
Section 14 of the General Clauses Act,
1897, can apply if the enactment does not rule it out
by necessary implication.
The entire scheme of the impugned Act shows
that only one Wage Board and one decision is contemplated. It is not open to
the Government to reconstitute the Wage Board as and when they desire.
Munshi, in reply. The doctrine of "pith
and substance" can be applied only to determine the jurisdiction of the
legislature to enact a certain legislation. Whether or not the Act imposes a
direct burden, the Court should see if the Act is a special law singling out an
industry for laying the burden on it. If it does so, as in the present Act, it
will amount to a direct burden. If it is a general law it would not be a direct
The Act stands alone in being arbitrary and
excessive and is without parallel in any other country. The Act is unique in
that (1) it provides for gratuity even on voluntary resignation. (2) it gives
power to the Wage Board to fix indeterminate wages investing them with
attributes of minimum wages, and (3) it confers on the Board power to fix wages
(i) without specifying 40 essential standards, (ii) without casting a duty to
follow a reasonable procedure, (iii) without any control by an appellate
tribunal or court, and (iv) without providing any opportunity to the parties
concerned to be heard on the merits of the proposal it makes. In other
countries there are various safeguards and checks against arbitrary wage
decisions. (U. K. Wage Councils Act, 1945; U. S. Fair Labour Standards Act,
1938; Factories and Shops Act, 1905, new Act of 1928 of Victoria, Australia).
[Sinha, J. All these criticisms would be out
of place if it is held that the work of the Wage Board was legislative and not
No. If the mechanism of the Act itself is
such that it is unreasonably restrictive of rights to trade then the Act has to
be struck down as void under Art. 19 (1)(g).
Even if it is held that there was no
excessive delegation, it is still open to the Court to see whether the
restrictions impinged on the Constitutional safeguards tinder Art. 19 (1)(g).
Fixation of scales of wages on the basis of
gross revenue without taking into account the liability of newspapers is a
devastating doctrine in industrial relations.
The Wage Board is not a sub-legislative body;
but even if it is, it has to act judicially and is subject to writs of
certiorari. Even if its decisions become assimilated in the Act it must be
considered to be a quasi-judicial body, since it is expected to carry out a
preliminary investigation before recording its findings.
The functions of the Wage Board cannot be
characterised either exclusively legislative or exclusively judicial. The
functions performed by administrative agencies do not fall in water tight
compartments. They may be partly legislative, partly judicial and partly administrative
(Stason and Cooper, Cases and other Materials on Administrative Tribunals). The
Court has to consider whether the administrative agency performs a
predominantly legislative or judicial function and determine its character
accordingly (Village of Saratoga Springs v. Saratoga Gas Electric Light and
Power Co., (1908) 191 New York 123 People 41 ex rel. Central Park North and
East River Co. v. Willcox, (1909) 194 New York 383). In the United Kingdom the
decisions of the Wage Councils in the shape of wage regulations proposal
acquires legislative character from the order made by the Minister giving
effect to the proposals.
In Australia the Factories and Shops Act,
1905, and the Labour and Industry Act, 1953, Section 39(2) of Victoria by
express provision invests the determination of the Special Board with the
characteristics of a legislative act. Under the Fair Labour Standards Act,
1938, of U. S. A. the Wage orders ultimately approved by the Administrator are
subject to judicial review. In India under the Minimum Wages Act, 1948, the recommendations of the Committees are forwarded to
the appropriate Government who by notification as a token of approval, in the
official Gazette, fix minimum wages in respect of each scheduled employment.
Under the recent amendment of the Bombay Industrial Relations Act, 1946, the
Wage Boards constituted under the Act are to follow the procedure of the
Industrial Court in respect of arbitration proceedings and it cannot be said
that they perform any legislative function. The Wage Board under the impugned
Act, in spite of its being an administrative body or sublegislative body may
nevertheless be exercising quasijudicial functions if certain conditions are
fulfilled (Halsbury's Laws of England, 3rd Edn., Vol. 11, pp. 55-56;
Rex v. Manchester Legal Aid Committee,
Ex-parte R. A. Brand and Co. Ltd.,  2 Q. B. 413, 428; Rex v. The London
County Council, Ex-parte the Entertainments Protection Association Ltd., 
2 K. B. 215, 233-234; Board of Education v. Rice,  A. C. 179,182; Allen
C. K. Law and Order 1956 Edn., pp. 102, 256, 257).
The Wage Board has not given any attention to
the paramount consideration of capacity to pay as it should, in reason, have
done. At no time was any question asked as to the wage burden the Wage Board's
scales would impose on the industry as a ,whole or on a particular unit. The
specific burden which the Board proposed to impose has never been 6 42 put even
indirectly. At no time has it been considered what would be the potential
burden on the industry if the nonjournalists in newspaper establishments made
similar demands. No consideration has ever been given about the effect on the
industry or on a unit of the retrospective operation of the wage scales.
A. S. R. Chari, S. Viswanathan, B. R. L.
Iyengar,J. B. Dadachanji and S. N. Andley, for the Federation of Press Trust of
India Employees' Union, Bombay Union of Journalists and Gujrat Working
R. Ganapathy Iyer and G. Gopalakrishnan, for
the' appellants in C. A. No. 699 of 1957.
L. K. Jha, S. S. Shukla and R. J. Joshi, for
the appellants in C. A. Nos. 700 to 702 of 1957.
S. P. Sinha, Harbans Singh and R. Patnaik,
for the appellants in C. A. No. 703 of 1957.
B. Sen and R. H. Dhebar, for respondent No. I
in all the appeals.
N. C. Chatterjee, J. B. Dadachanji and S. N.
Andley, for the Indian Federation of Working Journalists in all appeals,
respondent No. 2 in C. A. No. 700 of 1957 and respondent No. 3 in C. A. No. 703
B. R. L. Iyengar, J. B. Dadachanji, S. N.
Andley and Rameshwar Nath, for respondent No. 3 in C. A. 699 of 1957.
1958. March 19. The Judgment of the Court was
delivered by BHAGWATI J.-These petitions under Art. 32 of the Constitution
raise the question as to the vires of the Working Journalists (Conditions of
Service) and Miscellaneous Provisions Act, 1955 (45 of 1955), hereinafter
referred to as "the Act" and the decision of the Wage Board
constituted there under. As they raise common questions of law and fact they
can be dealt with under one common judgment.
In order to appreciate the rival contentions
of the parties it will be helpful to trace the history of the events which led
to the enactment of the impugned Act.
The newspaper industry in India did not
originally start as an industry, but started as individual 43 newspapers
founded by leaders in the national, political, social and economic fields.
During the last half a century, however, it developed characteristics of a
profit making industry in which big industrialists invested money and combines
controlling several newspapers all over the country also became the special
feature of this development. The working journalists except for the
comparatively large number that were found concentrated in the big metropolitan
cities, were scattered all over the country and for the last ten years and more
agitated that some means should be found by which those working in the
newspaper industry were enabled to have their wages and salaries, their
dearness allowance and other allowances, their retirement benefits, their rules
of leave and conditions of service, enquired into by some impartial agency or
authority, who would be empowered to fix just and reasonable terms and
conditions of service for working journalists as a whole.
Isolated attempts were made by the Uttar
Pradesh and Madhya Pradesh Governments in this behalf. On June 18, 1947, the
Government of Uttar Pradesh appointed a committee to enquire into the
conditions of work of the employees of the newspaper industry in the Uttar
On March 27, 1948, the Government of Central
Provinces & Berar also appointed an Inquiry Committee to examine and report
on certain questions relating to the general working of the newspaper industry
in the province, including the general conditions of work affecting the
editorial and other staff of newspapers, their emoluments including dearness
allowance, leave, provident fund, pensionary benefits, etc.
The Committees aforesaid made their reports
on the respective dates March 31, 1949, and March 27, 1948, making certain
recommendations. The All-India problem, however, remained to be tackled and
during the debate in Parliament on the Constitution (First Amendment) Bill,
1951, the Prime Minister said that he was prepared to appoint a committee or a
commission, including representatives of the Press, to examine 44 the state of
the Press and its content. He elaborated the idea further on June 1, 1951, when
he indicated that an enquiry covering the larger issue of the Press, such as
had been carried out in the United Kingdom by the Royal Commission, might be
productive of good for the Press and the development of this very important
aspect of public affairs. The idea was further discussed during the debate in
Parliament on the Press (Incitement to Crimes) Bill, later named the Press
(Objectionable Matter) Act, 1952. At its session held in April, 1952, at
Calcutta, the Indian Federation of Working Journalists adopted a resolution for
the appointment of a Commission to enquire into the conditions of the Press in
India with a view to improving its place, status and functioning in the new
democratic set up.
The appointment of the Press Commission was
thereafter announced in a Communique issued by the Govt. of India, Ministry of
Information and Broadcasting, on September 23, 1952, under the Chairmanship of
Shri Justice G. S. Rajadhyaksha.
The terms of reference inter alia were:"2.
The Press Commission shall enquire into the state of the Press in India, its
present and future lines of development and shall in particular
(iv) the method of recruitment, training,
scales of remuneration, benefits and other conditions of employment of working
journalists settlement of disputes affecting them and factors which influence
the establishment and maintenance of high professional standards The Commission
completed its enquiry and submitted its report on July 14, 1954. Amongst other
things it found that out of 137 concerns about whom information was available
only 59 were returning profits and 68 showed losses. The industry taken as a
whole had returned a profit of about 6 lakhs of rupees on a capital investment
of about 7 crores, or less than I per cent. per annum. It found that proofreaders
as a class could not be regarded as working journalists, for there were
proof-readers even in presses doing job work. It came to the conclusion that if
a person had been 45 employed as a proof-reader only for the purpose of making
him a more efficient sub-editor, then it was obvious that even while he was a
proof-reader, he should be regarded as a working journalist but in all other
instances, he would not be counted as a journalist but as a member of the press
staff coming within the purview of the Factories Act.
The question of the emoluments payable to
working journalists, was discussed by it in paragraphs 538 and 539 of its
538:-"SCALES TO BE SETTLED BY COLLECTIVE
BARGAINING OR ADJUDICATION:-It has not been possible for us to examine in
detail the adequacy of the scales of pay and the emoluments received by the
working journalist having regard to the cost of living in the various centers
where these papers are published and. to the capacity of the paper to make
adequate payment............ In this connection it may be stated that the
Federation of Working Journalists also agreed, when it was put to them, that
apart from suggesting a minimum wage it would not be possible for the
Commission to undertake standardisation of designations or to fix scales of pay
or other conditions of service for the different categories of employees for
different papers in different regions. They have stated that these details must
be left to be settled by collective bargaining or where an agreement is not
possible the dispute could be settled by reference to an industrial court or an
adjudicator with the assistance of a Wage Board, if necessary. The All India
Newspaper Editors' Conference and Indian Language Newspapers' Association have
also stated that it would not be possible to standardise designations and that
any uniformity of salaries as between one newspaper and another would be
impossible. The resources of different newspapers vary and the conditions of
service are not the same. We agree in principle that there should be uniformity
as far as possible, in the conditions of service in respect of working
journalists serving in the same area or locality.
But this can be achieved only by a settlement
or an adjudication to which the employers, and the employees collectively are
parties." 46 539:-DEARNESS ALLOWANCE:.......... This again, is a matter
which would require very detailed study of the rise in the index numbers of the
cost of living for various places where the newspapers are published. We do not
know of any case where a uniform rate has been prescribed for dearness
allowance applicable all over the country irrespective of the economic
conditions at different centres and the paying capacity of the various units.
This must be a matter for mutual adjustment between the employers and the
employees and if there is no agreement, some machinery must be provided by which
disputes between the parties could be resolved." The position of a
journalist was thus characterised by the Commission:
" A journalist occupies a responsible
position in life and has powers which he can wield for good or evil. It is he
who reflects and moulds public opinion. He has to possess a certain amount of
intellectual equipment and should have attained a certain educational standard
without which it would be impossible for him to perform his duties efficiently.
His wage and his conditions of service should therefore be such as to attract
talent. He has to keep himself abreast of the development in different fields
of human activity-even in such technical subjects as law, and medicine. This
must involve constant study, contact with personalities and a general
acquaintance with world's problems." It considered therefore that there
should be a certain minimum wage paid to a journalist. The possible impact of
such a minimum wage was also considered by it and it was considered not
unlikely that the fixation of such a minimum wage may make it impossible for
small papers to continue to exist as such but it thought that if a newspaper
could not afford to pay the minimum wage to the employee which would enable him
to live decently and with dignity, that newspaper had no business to exist. It
recommended division of localities for taking into account the differential
cost of living in different parts of India, and determining what should be the
reasonable 47 minimum wage in respect of each area. It endorsed the concept of
a minimum wage which has been adopted. by the Bank Award: Though the living
wage is the target, it has to be tempered, even in advanced countries, by other
considerations, particularly the general level of wages in other industries and
the capacity of the industry to pay............ In India, however, the level of
the national income is so low at present that it is generally accepted that the
country cannot afford to prescribe a minimum wage corresponding to the concept
of a living wage. However, a minimum wage even here must provide not merely for
the bare subsistence of living, but for the efficiency of the worker. For this
purpose, it must also provide for some measure of education, medical
requirements and amenities." and suggested that the basic minimum wage all
over India for a working journalist should be Rs. 125 with Rs. 25 as dearness
allowance making a total of Rs. 150. It also suggested certain dearness
allowance and City allowance in accordance with the location of the areas in
which the working journalists were employed.
It compared the minimum wage recommended by
it with the recommendations of the Uttar Pradesh and Madhya Pradesh Committees
and stated that its recommendations were fairly in line with the
recommendations of those Committees particularly having regard to the rise in
the cost of living which bad taken place since those reports were made.
It then considered the applicability of the Industrial Disputes Act to the
working journalists and after referring to the award of the Industrial Tribunal
at Bombay in connection with the dispute between " Jam-e-Jamshed "
and their workman and the decision of the Patna High Court in the case of V. N.
N. Sinha v. Bihar Journals Limited (1), it came to the conclusion that the
working journalists did not come within the definition of workman as it stood
at that time in the Industrial
Disputes Act nor could a question with regard to them
be raised by others who were admittedly governed by the Act. It thereafter con(1)
(1953) 1. L. R. 32 Pat. 688.
48 sidered the questions as to the tenure of
appointment and the minimum period of notice for termination of the employment
of the working journalists, hours of work, provision for leave, retirement
benefits and gratuity, made certain recommendations and suggested legislation
for the regulation of the newspaper industry which should embody its
recommendations with regard to (i) notice period; (ii) bonus; (iii) minimum
wages; (iv) Sunday rest; (v) leave, and (vi) provident fund and gratuity.
Almost immediately after the Report of the
Press Commission, Parliament passed the Working Journalists (Industrial
]Disputes) Act, 1955 (I of 1955) which received the assent of the President on
March 12, 1955. It was an Act to apply the Industrial Disputes Act, 1947, to working journalists.
" Working Journalist " was defined
in s. 2 (b) of the Act to mean " a person whose principal avocation is
that of a journalist and who is employed as such in, or in relation to, any
establishment for the production or publication of a newspaper or in, or in
relation to, any news agency or syndicate supplying material for publication in
any newspaper, and includes an editor, a letter-writer, news editor,
sub-editor, feature writer, copy-taster, reporter, correspondent, cartoonist,
news-photographer and proof reader but does not include any such person who:
(i)is employed mainly in a managerial or
administrative capacity, or (ii)being employed in a supervisory capacity, exercises,
either by the nature of the duties attached to the office or by reason of the
powers vested in him, functions mainly of a managerial nature. Section 3 of
that Act provided that the provisions of the Industrial Disputes Act, 1947, shall apply to, or in relation to, working journalists as
they apply to or in relation to workmen within the meaning of that Act.
The application of the Industrial Disputes
Act, 1947, to the working journalists was not,
however, deemed sufficient to meet the requirements of the situation. There was
considerable agitation in Parliament for the implementation of the
recommendations 49 of the Press Commission, and on November 30, 1955, the Union
Government introduced a Bill in the Rajya, Sabha, being Bill No. 13 of 1955. It
was a Bill to regulate conditions of service of working journalists and other
persons employed in newspaper establishments. The recommendations of the Press
Commission in regard to minimum period of notice, bonus, Sunday rest, leave,
and provident fund and gratuity, etc., were all incorporated in the Bill; the
fixation of the minimum rates of Wages however was left to a minimum wage Board
to be constituted for the purpose by the Central Government. The provisions of
the Industrial Employment (Standing Orders) Act, 1946 (20 of 1946) and the
Employees' Provident Funds Act, 1952 (19 of 1952) were also sought to be
applied in respect of establishments exceeding certain minimum size as
recommended by the Commission.
It appears that during the course of
discussion in the Rajya Sabha, the word " minimum " was dropped from
the Bill wherever it occurred, the Minister for Labour having been responsible
for the suggested amendment. The reason for dropping the same was stated by him
" Let the word " minimum " be
dropped and let it be a proper wage board which will look into this question in
all its aspects. Now, if that is done, I believe, from my own experience of the
industrial disputes with regard to wages, in a way it will solve the question
of wages to the working journalists for all time to come." The Act as
finally passed was entitled " The Working Journalists (Conditions of
Service) and Miscellaneous Provisions Act, 1955 (45 of 1955) and received the
assent of the President on December 20, 1955.
The relevant provisions of the Act may now be
It was an Act to regulate certain conditions
of service of working journalists and other persons employed in newspaper
establishments. Newspaper establishment " was defined in s. 2 (d) to mean
" an establishment under the control of any person or body of persons,
whether incorporated or not, for the production or publication of one or more
50 newspapers or for conducting any news agency or syndicate ".
The definition of " working journalist
" was almost in the same terms as that in the Working Journalists
(Industrial Disputes) Act, 1955, and included a proof reader. All words and
expressions used but not defined in this Act and defined in the Industrial Disputes
Act, 1947, were under s. 2 (g) to have the meanings
respectively assigned to them in that Act.
Section 3 applied the provisions of the Industrial Disputes Act, 1947, as it was in force for the time being, to working
journalists as they applied to, or in relation to workmen within the meaning of
that Act subject to the modification that s. 25 (F) of that Act in its
application to working journalists in regard to the period of notice in
relation to the retrenchment of a workman was to be construed as substituting
six months in the case of the retrenchment of an editor and three months, in
the case of any other working journalist. The period which lapsed between the
publication of the report and the enactment of the Working Journalists (Industrial
Disputes) Act, 1955, viz., from July 14, 1954, to March 12, 1955, was sought to
be bridged over by s. 4 enacting special provisions in respect of certain cases
of retrenchment during that period. Section 5 provided for the payment of
gratuity, inter alia, to a working journalist who had been in continuous
service, whether before or after the commencement of the Act, for not less than
three years in any newspaper establishment even when he voluntarily resigned
from service of that newspaper establishment.
Section 6 laid down that no working
journalist shall be required or allowed to work in any newspaper establishment
for more than one hundred and forty-four hours during any period of four
consecutive weeks, exclusive of the time for meals. Every working journalist
was under s. 7 entitled to earned leave and leave on medical certificate on the
terms therein specified without prejudice to such holidays, casual leave or
other kinds of leave as might be prescribed. After thus providing for
retrenchment compensation, payment of gratuity, hours of work, and leave, ss. 8
to 1 1 of the Act provided 51 for fixation of the rates of wages in respect of
working journalists. Section 8 authorised the Central Government by
notification in the Official Gazette to constitute a Wage Board for fixing
rates of wages in respect of the working journalists in accordance with the
provisions of the Act, which Board was to consist of an equal number of persons
nominated by the Central Government to represent employers in relation to the
newspaper establishments and working journa lists, and an independent person
appointed by the Central Government as the Chairman thereof. Section 9 laid
down the circumstances which the Wage Board was to have regard to in fixing
rates of wages and these circumstances were the cost of living, the prevalent
rates of wages for comparable employments, the circumstances relating to the
newspaper industry in different regions of the country and to any other
circumstance which to the Board may seem relevant. The decision of the Board
fixing rates of wages was to be communicated as soon as practicable to the
Central Government and this decision was under s. 10 to be published by the
Central Government in such manner as it thought fit within a period of one
month from the date of its receipt by the Central Government and the decision
so published was to come into operation with effect from such date as may be
specified, and where no date was so specified on the date of its publication.
Section 11 prescribed the powers and procedure of the Board and stated that
subject to any rules of procedure which might be prescribed the Board may, for
the purpose of fixing rates of wages, exercise the same powers and follow the
same procedure as an Industrial Tribunal constituted under the Industrial Disputes
Act, 1947, exercised or followed for the purpose of adjudicating an
industrial dispute referred to it. The decision of the Board under s. 12 was
declared to be binding on all employers in relation to newspaper establishments
and every working journalist was entitled to be paid wages at a rate which was
to be in no case less than the rate of wages fixed by the Board. Sections 14
and 15 applied the provisions of the Industrial Employment (Standing Orders) 52
Act, 1946, as it was in force for the time being and also the provisions of the
Employees' Provident Funds Act, 1952, as it was in force for the time being, to
every newspaper establishment in which twenty or more persons were employed.
Section 17 provided for the recovery of money
due from an employer and enacted that where any money was due to a newspaper
employee from an employer under any of the provisions of the Act, whether by
way of compensation, gratuity or wages, the newspaper employee might, without
prejudice to any other mode of recovery, make an application to the State
Government for the recovery of the money due to him, and if the State
Government or such authority as the State Government might specify in this
behalf was satisfied that any money was so due, it shall issue a certificate
for that amount to the collector and the collector shall proceed to recover
that amount in the same manner as an arrear of land revenue. Section 20
empowered the Central Government by. notification in the Official Gazette to
make rules to carry out the purposes of the Act and in particular and without
prejudice to the generality of the foregoing power, such rules were to provide
inter alia for the procedure to be followed by the Board in fixing rates of
wages. All rules made under this section, as soon as practicable after they
were made were to be laid before both Houses of Parliament. The Working
Journalists (Industrial Disputes) Act, 1955, was repealed by s. 21 of the Act.
In pursuance of the power given under s. 20
of the Act the Central Government published by a notification in the Gazette of
India-Part II-Section 3, dated July 30,1956, The Working Journalists Wage Board
Rules, 1956 Rule 8 provided that every question considered at a meeting of the
Board was to be decided by a majority of the votes of the members present and
voting. In the event of equality of votes the Chairman was to have a casting
vote. Rule 13 provided for the resignation of the Chairman or any member from
his office or membership, as the case may be. The seat held by them was to be
deemed to have fallen vacant with effect from the date the 53 resignation of
the Chairman or the member was accepted by the Central Government. When a
vacancy thus arose in the office of the Chairman or in the membership of the
Board, the Central Government was to take immediate steps to fill the vacancy
in accordance with the Act and the proceedings might' be continued before the
Board so reconstituted from the stage at which the vacancy was so filled.
By a notification dated May 2, 1956, the
Central Government constituted a Wage Board under s. 8 of the Act for fixing
rates of wages in respect of working journalists in accordance with the
provisions of the Act, consisting of equal representatives of employers in
relation to newspaper establishments and working journalists and appointed Shri
H. V. Divatia, Retired Judge of the High Court of Judicature, Bombay, as the
Chairman of the Board. The three members of the Board who were nominated to
represent employers in relation to newspaper establishments were (1) Shri G.
Narasimhan, Manager, The Hindu, Madras and
President, Indian and Eastern Newspaper Society; (2) Shri A. R. Bhat, M.L.C.,
who had been a member of the Press Commission and was the President of the
Indian Language Newspapers Association, as also the Chairman of the Minimum
Wages Inquiry Committee for the Printing Industry in Bombay and, (3) Shri -K.
P. Kesava Menon, Editor, Mathrubhumi, Calicut. The other three members of the
Board who were nominated to represent working journalists were: (1) Shri G.
Venkataraman, M. P., (2) Shri C. Raghavan, Secretary-General, Indian Federation
of Working Journalists, and (3) Shri G. N. Acharya, Assistant Editor, Bombay
Shri H. V. Divatia, the Chairman of the
Board, had wide and considerable experience as Chairman of the Textile Labour
Enquiry Committee, Bombay, had been the President of the First Industrial Court
to be set up in India in 1938, and had worked as an Industrial Tribunal dealing
with several disputes as between several banks and employees, as well as
between several insurance companies and their employees.
54 The first meeting of the Board was held on
May 26, 1956, in the Bharatiya Vidya Bhavan at Bombay. Sri Kesava Menon and
Shri G. Narasimhan were not present at this meeting. It was a preliminary
meeting at which the Board set up a subcommittee consisting Of Shri A. R. Bhat
and Shri G. N.
Acharya to draft a questionnaire for issue to
the various journals and organisations concerned, with a view to eliciting
factual data and other relevant information required for the fixation of wages
for the working journalists. The sub-committee was requested to hear in mind,
while framing the questionnaire the need for: (1) obtaining detailed accounts
of newspaper establishments; (2) proper evaluation of the nature of and the
work of various categories of working journalists; and (3) proper
classification of the country into different areas on the basis of certain
criteria like population, cost of living, etc. The questionnaire drafted by the
sub-committee was to be finalised by the chairman and circulated to all
concerned by the end of June, 1956.
The questionnaire was accordingly drawn up
and was sent to Universities and Governments, etc., and several other
organisations and individuals interested in the inquiry of the Board, and to
all newspapers individually. It was divided into three parts. Part "
A" was intended to be answered by newspapers, news agencies, organisations
of employers and of workinly Journalists and any individuals who might wish to
do so. Part " B " was meant to be answered by all newspapers and Part
" C " by all news agencies.
At the outset the Board pointed out that
except where the question itself indicated a different period or point of time,
the reporting period for purposes of parts " B " and " C "
of the questionnaire was the financial years (April I to March 31)1952-53,
1953-54, and 1954-55, or in any establishments which followed a different
accounting year, a period of three years as near thereto as possible. It
further pointed out that tinder s. 11 of the Act the Board had the powers of an
Industrial Tribunal constituted under the Industrial Disputes Act. In Part "A" of the questionnaire under the
heading " Cost of Living cost of living 55 index for the respective
centres were called for and a special question was addressed whether the basic
minimum wage, dearness allowance and metropolitan allowance in the table
attached to paragraph 546 of the Press Commission was acceptable to the party
questioned and, if not, what variations would the: party suggest. and why.
Comparable employment suggested included (a) Higher secondary school teachers;
(b) College and university teachers; (c) Journalists employed as publicity and
public relations officers in the information departments of the Central and
State Governments; (d) Journalistic employees of the news service division of
All India Radio and (e) Research personnel of the economic and social research
departments of Central Government ministries like finance, labour and commerce.
Under the heading " Special Circumstances", the only question
addressed was question No. 7: " Are there in your region any special
conditions in respect of the newspaper industry which affect the fixing of
rates of wages of working journalists ? If so, specify the conditions and
indicate how they affect the question of wages. " As regards the
principles of wage fixation the party questioned was to categorise the
different newspaper establishments and in doing so consider the following
factors, among others:
(a) Invested capital; (b) Gross revenue; (c)
Advertisement revenue; (d) Circulation; (e) Periodicity of publication;
(f) The existence of chains, multiple units
and (g) Location.
In part B " which was to be answered by
newspapers were included under the heading Accounts :(1)Balance sheets and (2)
Trading and profit and loss accounts of the newspapers as in the specimen forms
attached thereto for the reporting period. Questions were also addressed in
regard to the revenue of the newspapers inter alia from the press, a process
studio, outside work, foundry, etc., and subscriptions as also the expenditure
incurred on postage, distribution/sale, commission and rebate to advertisers,
etc., and other items.
56 All information which was considered
necessary by the Wage Board for the purposes of fixation of the rates of wages
was thus sought to be elicited by the questionnaire.
It appears that Shri K. P. Kesava Mellon sent
in his resignation on or about June 21, 1956, and by a notification dated July
14, 1956, the Central Government accepted the said resignation and appointed in
his place Shri K. M. Cherian, member of the executive committee of the Indian
and Eastern Newspapers Association, one of the directors of the Press Trust of
India and the Chief Editor, Malayala Manorama, Kottayam, as a member of the
Out of 5,465 newspapers, journals, etc., to
whom the questionnaire was sent only 381 answered the same; and out of 502
dailies only 138 answered it. The Board had an analysis made of those who had
replied to the questionnaire and also of their replies thereto in regard to
each of the questions contained in the questionnaire. It also got statements
prepared according to the gross revenue of the newspapers, the population of
the centres, circulation of the papers, the cost of living index, scales of
dearness allowance in certain States, figures of comparable employments, pay
scales of important categories of journalists, etc., the total income, break up
of expenditure in relation to total income and total expenses, total income in
relation to net profits, and net losses and net profits in relation to
circulation of the several newspapers which had sent in the replies to the
Further meetings of the Board were held oil
August 17, and August 26, 1956, in Bombay. Tile Chairman informed the members
that response from journals, organisations, etc., to whom 'questionnaire was
sent was unsatisfactory and it was decided to issue a Press Note requesting the
papers and journals to send their replies, particularly to Part " B "
of the questionnaire, as soon as possible, inviting their attention to the fact
that the Board had powers of an Industrial Tribunal under the Act, and if
newspapers failed to send their replies, the Board would be compelled to take
further steps in the matter. It was decided that for purposes 57 of taking oral
evidence, the country be divided into 5 zones, namely, Trivandrum, Madras,
Delhi, Calcutta and Bombay and the Secretary was asked to summon witnesses to
the nearest and convenient centre. It was further decided that one hour should
normally be allotted to each newspaper, 3 hours for regional units and 2 hours
for smaller units for oral evidence. The Board also discussed the question as
to the number of persons who might ordinarily be called for oral evidence from
each newspaper or Organisation. It thought that one of the important factors
Governing the findings of the Board would be the circulation of each newspaper,
and as such it was decided that the figures with the Audit Bureau of
Circulation Ltd., might be obtained at once. The Board also decided to ask
witnesses, if necessary, to produce books of accounts, income-tax assessment
orders or any other document which in its opinion was essential.
Meetings of the Board were held at Trivandrum
from September 7, to September 10, 1956, in Madras from September 15, to
September 20, 1956, in New Delhi from October 19, to October 26, 1956, in
Calcutta from November 25, to December 4,1956, and in Bombay from January 4, to
January 10, 1957, from January 20, to February 6, 1957, from March 25 to March
31, 1957 and finally from April 22 to April 24, 1957.
Evidence of several journalists and persons
connected with the newspaper industry was recorded at the respective places and
at its meeting in Bombay from March 25, to March 31, 1957, the Board entered
upon its final deliberations. At this meeting the chairman impressed upon the
members the desirability of arriving at unanimous decisions with regard to the
fixation of wages, etc. He further stated that he would be extremely happy if
representatives of newspaper industry and of working journalists could come to
mutual agreement by direct discussions and he assured his utmost co-operation
and help in arriving at decisions on points on which they could not agree.
Members welcomed this suggestion and decided to 58 discuss various issues among
themselves in the afternoon and on the following days.
After considerable discussion on March 25,
1957, and March 26, 1957, in which the representatives of the newspapers and of
working journalists had joint Sittings, unanimous decisions were arrived at on
(i) classification of newspapers, (ii) classification of centres and (iii)
classification of employees, except on one point, namely, classification of
group, multiple units and chains on the basis of their total gross revenue.
This was agreed to by a majority decision. The chairman and the representatives
of the working journalists voted in favour while the representatives of the
employers voted against. Regarding scales of pay, the chairman suggested at the
meeting of March 27, 1957, that pending final settlement of the issue the
parties should submit figures of scales based on both assumptions, namely,
consolidated wages and basic scales with separate dearness allowance. Both
sides agreed to submit concrete suggestions on the following day. At the
Board's meeting on March 28, 1957, the representatives of the employers stated
that the term CC rates of pay " did not include scales of pay ; there
fore, the Board was not competent to fix scales of working journalists and they
submitted a written statement signed by all of them to the chairman in support
of their contention. The representatives of the working journalists argued that
the Board was competent to fix scales of pay. The chairman adjourned the
sitting of the Board to study this issue. A copy of the written statement
submitted by the representatives of the employers was given to the
representatives of the working journalists and they submitted a written reply
the same afternoon contending that the Board was competent to fix scales of pay
of various categories of working journalists.' At its meeting on March 29,
1957, the Board discussed its own competency to fix scales of pay. The chairman
expressed his opinion in writing, whereby he held that the Board was competent
to fix scales of pay. On a vote being taken according to r. 8 of the Working
Journalists Wage Board Rules, 1956, the chairman 59 and the representatives of
the working journalists voted in favour of the competence of the Board to fix
scales of pay, while the representatives of the employers voted against it.
Thereafter, several suggestions were made on
this question, but since there was no possibility of any agreement on this
issue, the chairman suggested that members should submit their specific scales
to him for his study to which the members agreed. It was also decided that the
chairman would have separate discussions with representatives of working
journalists in the morning and with representatives of employers in the
afternoon of March 30, 1957. It was also decided that the Board should meet
again on March 31, 1957, for further discussions. No final decision was however
arrived at in the meeting of the Board held on March 31, 1957, on scales of
pay, allowances, date of operation of the decision, etc. It was decided that
the Board should meet again on April 22, 1957, to take final decisions.
A meeting of the Board was accordingly held
from April 22 to 24, 1957, in the office of the Wage Board at Bombay. It was
unanimously agreed that the word "decision" should be used wherever
the word " report" occurred. The question of the nature of the
decisions which should be submitted to the Government was then considered. It
was agreed that reasons need not be given for each of the decisions, and that
it would be sufficient only to record the decisions. The members then requested
the chairman to study the proposals regarding scales of pay, etc., submitted
by, both the parties and to give his own proposals so that they may take a
final decision. Accordingly, the chairman circulated to all the members his
proposals regarding pay scales, dearness allowance, location allowance and
The following were the decisions arrived at
by the Board on the various points under consideration and they were unanimous
except where otherwise stated. The same may be set out here so far as they are
relevant for the purposes of the inquiry before US.
1. For the purpose of fixation of wages of
working 60 journalists, newspaper, establishments should be grouped under
2. Except in the case of weeklies and other
periodicals expressly provided for hereinafter, newspaper establishments should
be classified on the basis of their gross revenue.
3. For purposes of classification, revenue
from all sources of a newspaper establishment, should be taken for ascertaining
4. Classification of Newspaper
DailiesNewspaper Establishments should be
classified under the following five classes:Class Gross Revenue " A"
over Rs. 25 lakhs " B" over Rs. 12-1/2 to 25 lakhs " C"
over Rs. 5 to 12-1/2 lakhs " D" over Rs. 2-1/2 to 5 lakhs "
E" Rs. 2-1/2 lakhs and below
5. Classification of newspaper establishments
should be based on the average gross revenue of the three-year period, 1952,
1953 and 1954.
6. It shall be open to the parties to seek
re-classification of the newspaper establishments on the basis of the average
of every three years commencing from the year 1955.
11. Groups, multiple units and chains should
be classified on the basis of the total gross revenue of all the constituent
units. (This was a majority decision, the chairman and the representatives of
the working journalists voting for and the representatives of the employers
12. A newspaper establishment will be
classified as:(i) A group, if it publishes more than one newspaper from one
(ii) A multiple unit, if it publishes the
same newspaper from more than one centre;
(iii) A chain, if it publishes more than one
newspaper from more than one centre.
20. Working journalists employed in newspaper
establishments should be grouped as follows:
(a) Full time employees:
Group I: Editor Group II: Assistant Editor,
Leader Writer, News Editor, Commercial Editor, Sports Editor, Film or Art
Editor, Feature Editor, Literary Editor, Special Correspondent, Chief Reporter,
Chief Sub-Editor and Cartoonist.
Group III: Sub-Editors and Reporters of all
kind and full time correspondents not included in Group(II); news photographers
and other journalists not covered in the groups.
Group IV: Proof Reader(b) Part time
Correspondents who are part time employees of
a newspaper establishment and whose principal avocation is that of journalism.
An employee should be deemed to be a full
time employee if under the conditions of service such employee is not allowed
to work for any other newspaper establishments.
23.The wage scales and grades recommended by
the chairman were agreed to by a majority decision. The chairman and the
representatives of the working journalists voted for and the representatives of
the employers voted against. Shri That suggested that wage scales should be
conditional on a newspaper establishment making profits in any particular year
and also that time should be given to the newspaper establishments for bringing
the scales into operation.
These suggestions, however, were not
acceptable to the majority.
Wages, scales and grades: (as agreed to by
the majority) were as under: Working journalists of different groups employed
in different classes of newspaper establishments should be paid the following
basic wages per mensem.
62 1. Dailies.
Class of Group of Starting Scale News Employees
Pay papers E IV 90 No Scale III II 150 No Scale I D IV 100100-5-165 (13 Yrs.)
EB-7-200-(5 Yrs.) III 115115-7-1/2--205 (12 Yrs.) EB-15-295 (6 Yrs.) II
200200-20-400 (10 Yrs.) I C IV 100100-5-165 (13 Yrs.) EB-7-200(5 Yrs.) III
125125-10-245 (12 Yrs.) EB-12J-320 (6 Yrs.) II 225225-20-385 (8 Yrs.) EB-30-445
(2 Yrs.) I 350350-25-550 (8 Yrs.) -40-630 (2 Yrs.) B IV 100100-5-165 (13 Yrs.)
EB-7-200 (5 Yrs.) III 150150-12J-300 (12 Yrs.) EB-20-420 (6 Yrs.) II
350350-20-510 (8 Yrs.) EB-30-570 (2 Yrs.) I 500500-30-740 (8 YrS.) -40-820 (2 Yrs.)
A IV 125125-7-1/2--215 (12 Yrs.) EB-10-275 (6 Yrs.) III 175175-20-415 (12 Yrs.)
EB-25-515 (4 Yrs.) II 500500-40-820 (8 Yrs.) EB-50-920 (2 Yrs.) I
10001000-50-1300 (6 Yrs.) -75-1600 (4 Yrs.) Dearness allowance, location
allowance and part time employees remuneration were also majority decisions. The
chairman and the representatives of the working 63 journalists voting for and
the representatives of the employers voting against.
28. Other allowances:-In view of the paucity
of evidence on the subject, the Board decided that the fixation of conveyance
and other allowances should be left to collective bargaining between the
working journalists and the newspaper establishments concerned.
29. Fitment of employees:-For fitment of the
present employees into the new scales, service in a particular grade and
category and in the particular newspaper establishment alone should be taken
30. In no case should the present emoluments
of the employees be reduced as a; result of the operation of this decision.
35. When a newspaper establishment is
re-classified as per para. 6 supra, the existing pay of the staff should be
protected. But future increments and scales should be those applicable to the
class of paper into which it falls.
38. Date of operation:-The Board's decision
should be operative from the date of constitution of the Board (i.e., 2-5-1956)
in respect of newspaper establishments coming under Class " A ",
" B " and " C " and from a date six months from the date of
appointment of the Board (i.e., 1-11-1956) in the case of newspaper
establishments under Class " D " & " E" (This was also
a majority decision. The chairman and the representatives of the working
journalists voted for and the representatives of the employers voted against).
41. The Government of India should constitute
a Wage Board under the Act, to review the effect of the decisions of the Board
on the newspaper establishments and the working journalists, after the expiry
of 3 years but not later than 5 years from the date of the publication of the
decisions of the Board.
These decisions were recorded on April 30,
1957, but the representatives of the employers thought fit to append a minute
of dissent and the chairman also put on record a note on the same day
explaining the 64 reasons for the decisions thus recorded. These documents are
of vital importance in the determination of the issues before us.
In the minute of dissent recorded by the
representatives of the employers they started with an expression of regret that
the conditions in the newspaper industry did not Permit them to accept the
majority view. They expressed their opinion that the fixation of rates of wages
should be governed by the following criteria:
(i) normal needs of a worker;
(ii) capacity of the industry to pay;
(iii) nature of the industry; and (iv) effect
on the development of the industry and on employment. They pointed out that:
(a) The newspaper industry was a class by
itself. The selling price of its product was ordinarily below its cost of
production. Further, the cost of production specially that of newsprint, went
on varying and the frequent rises in newsprint price made it difficult to plan
and undertake any long term commitment of an increasing expenditure.
(b) The income of the newspaper industry was
principally derived from two main sources: sales of copies and advertisement.
While sales depended on public acceptance, income from advertisement depended
upon circulation, prestige and purchasing power of readers. All those factors
made publishing of newspapers a hazardous undertaking and the hazard continued
throughout it-, existence with the result that it was obligatory that the rates
of wages or scales ,should be fixed at the minimum level, leaving it to the
employees to share the prosperity of the units through bonuses.
(c) It was not ordinarily easy for newspapers
to increase the selling price and it had been the experience of some
established newspapers that such a course, when adopted, had invariably brought
about a reduction in circulation. The fall in circulation had in turn an
adverse effect on the advertisement revenue. The sales or advertisement income
of a newspaper was not responsive to a progressive increase in expenditure.
65 (d) In any fixation of wages of a section
of employees, its effect on other sections had to be taken into consideration.
Editorial employees were one section of a
newspaper establishment and any increase in their emoluments would have its
inevitable repercussions on the wages of other sections. The salaries of working
Journalists would roughly be one-fifth of the total wage bill. The factory
staff had a great bargaining power and as such any increase in the salaries and
introduction of scales in the editorial department would have to be followed by
an increase in the wages and introduction of time scales in the factory side.
(e) It was the advertisement revenue that
principally decided the capacity to pay of a newspaper industry. It was not
enough to take into consideration the gross revenue of a newspaper alone but
also the proportion of advertisement revenue in it. This meant that minimum
salaries and scales to be fixed on an All-India basis would perforce have to be
low if the newspapers in language of regions with a low purchasing power such
as Kerala and Orissa were not to be handicapped. It would therefore be fair
both to the industry and employees if wages were fixed region wise.
(f) The proposals, which the majority had
made, clearly showed that, according to it the dominating principle of wage
fixation wag the need of the worker as conceived by them, irrespective of its
effect on the industry. The Board had not before it sufficient data needed for
the proper assessment of the paying capacity of the industry. The profit and
loss statements of the daily newspaper establishments for the year 19.54-55 as
submitted to the Board revealed that while 43 of them had shown profits 40 had
incurred losses. The. condition of the newspaper industry in the country as a
whole could not be considered satisfactory. The proposals embodied in the
decision made by the majority were therefore unduly high. They would
immediately throw a huge burden on many papers, a burden which would
progressively grow for some 66 years, and would be still bigger when its impact
takes place on the wages of employees of its other sections. All this will in
its turn add to the burden of provident fund, gratuity, etc., when the full
impact of the burden took place and the wages of the entire newspaper
establishments went up, it would throw out of gear the economy of most of the
newspapers. It might be that there may not be many closures immediately,
because many of the newspapers would not be in a position to meet the liability
of retrenchment compensation, gratuity, etc., resulting from such a step, newspapers
would try to meet the liability by borrowing to the extent possible and when
their credit was exhausted, they must close down. So far as new newspaper
promotions were concerned, they would be few and far between, with the result
that after a few years it would be found that the number of daily newspapers in
the country had not increased but had gone down. Such an eventuality was not in
the interests of the country both from the point of view of employment as well
as of freedom of expression.
(g)As regards chains and groups the criterion
for classification adopted by the majority was unfair and unnatural. The total
gross revenue of all the units in a chain or a group gave an unreal picture of
its capacity to pay.
(h)Giving of retrospective effect, would help
only to aggravate the troubles of the newspaper industry which had been already
called upon to devise ways and means of meeting the burden of retrospective
(i) As regards the prevalent rates of wages
for comparable employments the nature of work of the working journalists in
newspaper establishments could not be compared with other avocations or
professions and the rates of wages of working journalists should be fixed only
in the context of the financial condition of the newspaper industry.
Comparison, could, however, be made within limits, namely with respect to
alternative employments available to persons with similar educational
qualifications in particular regions or localities. From that point of view the
salaries paid to secondary school teachers, college and university 67 teachers
and employees in commercial firms and banks should be taken into consideration,
but the majority had rejected this view.
The note of the chairman was meant to explain
the reasons of the decisions which he stated he at least had in view and some
of which were accepted unanimously and others were accepted by some members and
thereby became majority decisions. At the outset the chairman explained that
most of the recommendations of the Press Commission were intended for the
betterment of the economic condition of small and medium newspapers, such as
price page schedule, telescopic rates for Government advertisements and their
fair distribution among newspapers, statutory restrictions on malpractices so
as to eliminate cutthroat competition and fixation of news agency tariff,-,
which still remained to be implemented and there had been no stability in the
prices of newsprint which constituted a considerable proportion of the
expenditure of a newspaper. These circumstances had necessitated the fixing of
a minimum wage lower than that recommended by the Press Commission.
As regards fixation of the rates of wages,
the chairman observed:
"In fixing the rates of wages, we have
based them on the condition of the newspaper industry as a whole and not on the
effect which they will produce on a particular newspaper. We can only proceed
on the average gross income of a newspaper falling under the same class and not
on the lowest unit in that class. Otherwise, there will be no improvement in
any unit of the same class, and the status quo might remain. With the extremely
divergent conditions obtaining in both English as well as Indian language
newspapers, it is impossible to try to avoid any small or medium newspaper
being adversely affected. When the tone and condition of journalism in India
has to be brought on a higher level it is inevitable that in doing so, more or
less burden will fall on several newspapers ; I realise that in cases where
wages are very low and dearness allowance is also low or even non-existent and
there are no scales 68 at all, the reaction to our wage schedule will be one of
resentment by the proprietors. Some anomalies may also be pointed out; but it
must be remembered that we had no data of all the newspapers before us and
where we had, it was in many cases not satisfactory. Under these circumstances,
we cannot satisfy all newspapers as well as journalists.
However, we have tried to proceed on the
basis of accepted principles also keeping in view the recommendations of the
Press Commission and not on the editorial expenditure of each newspaper. I am
also of the opinion that by rational management there is great scope for
increasing the income of newspapers and we have evidence before us that the
future of the Indian language newspapers is bright, having regard to increasing
literacy and the growth of political consciousness of the reading public. When
there are wide disparities, there cannot be any adjustment which might satisfy
all persons interested. We hope no newspaper is forced to close down as a
result of our decision. But if there is a good paper and it deserves to exist,
we hope the Government and the public will help it to continue." The
chairman then proceeded to observe:
" We do not consider it a matter of
regret if our decisions discourage the entry into this industry of persons
without the necessary resources required for the payment of a reasonable
minimum wage. While we are anxious to promote and encourage the growth of small
newspapers, we also feel strongly that it should not be at the expense of the
working journalists. The same applies, in our view, to newspapers started for
political, religious or any other propaganda." The reason for grouping all
the constituent units of the same group or chain in the same class in which
they would fall on the basis of the total gross income of the entire
establishment was given by the chairman as under:" One of the difficult
tasks before us was to fix the wages of Journalists working in newspapers which
have recently come to exist in our country. All the 69 accounts of the
constituent units in the same group or chain are merged together with the
result that the losses of the weaker units are borne from the high income of
prosperous units. There is considerable disparity in the wages of journalists
doing the same kind of work in the various constituent units situated in
different centres. The Press Commission has strongly criticised the methods of
such chains and groups and their adverse effects on the employees. We have
decided to group all the constituent units of the same group or chain in the
same class in which they would fall on the basis of the total gross income of
the entire establishment. We are conscious that as a result of this decision,
some of the journalists in the weak units of the same group or chain may get
much more than those working in its highest income units. If however, our
principle is good and scientific, the inevitable result of its application
should be judged from the stand-point of Indian Journalism as a whole and not
on the burden it casts on a particular establishment. It may be added that in
our view, the principle on which we have proceeded is one of the main steps to
give effect to the views expressed by the chairman then referred to the points
which the representatives of the newspaper employers had urged as to the
-burden which might be cast as a result of the decisions and expressed himself
" I sympathise with their view point and
in my opinion, looking to all the circumstances, especially the fact that this
is the first attempt to fix rates of wages for journalists, it is probable that
some anomalies may result from the implementation of our decisions. We are,
therefore, averse to imposing a wage schedule of all classes of newspapers on a
permanent basis. It is, thus important that the wage rates fixed by us should
be open to review and revision in the light of experience gained within a
period of 3 to 5 years. This becomes necessary especially in view of the fact
that the data available to us have not been as complete as we would have wished
them to be, and also because it is difficult for us at this stage to 70 work
out with any degree of precision, the economic and other effects of our
decisions on the newspaper industry as a whole." The chairman suggested as
a palliative the creation by the Government of India immediately of a standsing
administrative machinery "which could also combine in itself the functions
of implementing and administering our decisions and that of preparing the
ground for the review and revision envisaged after 3 to 5 years. This machinery
should collect from all newspaper establishments in the country on systematic
basis detailed information and data such as those on employment, wage rates,
and earnings, financial condition of papers, figures of circulation, etc.,
which may be required for the assessment of the effects of our decisions at the
time of the review." The above decision of the Wage Board was published by
the Central Government in the Gazette of India Extraordinary dated May 11,
1957. The Commissioner of Labour, Madras, issued a circular on May 30, 1957,
calling upon the managements of all newspaper establishments in the State to
send to him the report of the gross revenue for the three years, i. e., 1952,
1953 and 1954, within a period of one month from the date of the publication of
the Board's decision, i. e., not later than June 10, 1957. Writ Petition No. 91
of 1957 was thereupon filed on June 13, 1957, by the Express Newspapers
(Private) Ltd., against the Union of India & others and this petition was
followed up by similar petitions filed on August 9, 1957, by the Press Trust of
India Ltd., the Indian National Press (Bombay) Private Ltd., and the Saurashtra
Trust, being Petitions Nos. 99, 100, and 101 of 1957 respectively. The
Hindustan Times Ltd., New Delhi filed on August 23, 1957, a similar petition,
being Petition No. 103 of 1957, and three more petitions, being Petitions Nos.
116, 117 and 118 of 1957, were filed by the Loksatta Karyalaya, Baroda, Sandesh
Ltd.' Ahmedabad and Jan Satta Karyalaya, Ahmedabad, respectively, on September
The Express Newspapers (Private) Ltd., the
petitioners in Petition No. 91 of 1957, otherwise termed 71 the " Express
Group ", are the biggest chain in the newspaper world in India. They
publish (i) Indian Express, an English Daily, from Madras, Bombay, Delhi and
Madurai, (ii) Sunday Standard, an English Weekly, from three centresMadras,
Bombay and Delhi, (iii) Dinmani, a Tamil Daily from Madras and Madurai, (iv)
Dinmani Kadir, a Tamil Weekly from Madras, (v) Lokasatta, a Maratha Daily, and
Sunday Lokasatta, a Maratha Weekly, from Bombay, (vi) Screen, an English Weekly
from Bombay and (vii) Andhra Prabha, a Telugu Daily and Weekly. The total
number of working journalists employed by them are 331, out of whom there are
123 proof readers, as against 1570 who form the other members of the staff. The
present emoluments of the working journalists in their employ amount to Rs.
9,77,892, whereas if the decision of the Wage Board were given effect to they
would go up to Rs. 15,21,282-12 thus increasing the wage bill of the working
journalists annually by Rs. 5,43,390-12. They would also have to pay
remuneration to the part-time correspondents on the basis of retainer as well
as payment for news items on column basis. That would involve an additional
burden of about Rs. 1 lakh a year. The retrospective operation of the Wage
Board's decision with effect from May 2, 1956, in their case would further
involve a payment of Rs. 5,16,337-20. This would be the extra burden not taking
account the liability for past gratuity and the recurring gratuity as awarded
under the provisions of the Act and also the increased burden which would have
to be borne by reason of the impact of the provisions in regard to reduced
hours of working, increase in leave, etc., provided therein. If, moreover, the
members of the staff who are not included in the definition of working
journalists made similar demands for increasing their emoluments and bettering
their conditions of service then there would be an additional burden which is
estimated at Rs. 9,92,443-68.
The Press Trust of India Ltd., the
petitioners in Petition No. 99 of 1957, are a non-profit making cooperative
organization of newspaper proprietors. They 72 employ 820 employees in all, out
of whom 170 are working journalists and 650 do not come within that definition.
Their total wage bill is Rs. 21,00,000 per
year (approximately) out of which the annual salary of the working journalists
is Rs. 9,00,000. The ,increase in their wage bill due to increase in the salary
of the working journalists as per the decision of the. Wage Board would come to
Rs. 4,05,600 and they would have to pay by way of arrears by reason of the
retrospective operation of the decision another sum of Rs. 4,05,600 to the
working journalists. There would also be an additional financial burden of Rs.
60,000 every year by reason of the recurring increments in the monthly salaries
of the working journalists employed by them. If the benefits of the Wage Board
decision were extended to the other members of the staff who are not working
journalists within the definition of that term but who have also made similar
demands on them, a further annual burden would be imposed on the petitioners
which is estimated at Rs. 3,90,000. If perchance the petitioners not being able
to run their concern except at a loss intended to close down the same, the
amount which they would have to pay to the working journalists under the provisions
of the Act and the decision of the Wage Board would be Rs. 23,68,500 as against
the old scale liability of Rs. 11,62,500 and the other members of the staff who
do not fall within the category of working journalists would have to be paid a
further sum of Rs. 15,50,000. The total liability of the petitioners in such an
event would amount to Rs. 39,18,000 as against the old liability of Rs.
The Indian National Press (Bombay) Private
Ltd., otherwise known as the Free Press Group, are petitioners in Petition No.
100 of 1957. They publish (i) Free Press Journal, a morning English Daily (ii)
Free Press Bulletin, an evening English Daily (iii) Bharat Jyoti, an English
Weekly (iv) Janashakti, a morning Gujarati Daily and (v) Navashakthi, a Marathi
Dailyall from Bombay. They employ 442 employees including part-time
correspondents out of whom 65 are working journalists and 21 are proof readers
and the 73 rest form members of the other staff not falling within the category
of working journalists. The effect of the decision of the Wage Board would be
that there would have to be an immediate payment of Rs. 1,73,811 by reason of
the retrospective operation of the decision and there will also be an annual
'increase in the wage bill to the same extent, i. e., Rs. 1,73,811. There will
also be a yearly recurring increase to the extent of Rs. 22,470 and also
corresponding increase for contribution to the provident fund on account of
increase in salary. Under the provisions of the Act in regard to reduced hours
of work, and increase in leave, moreover, there will be an increase in
liability to pay Rs.
90,669 and Rs. 29,806 respectively, in the
case of working journalists, besides the liability for past gratuity in another
sum of Rs. 1,08,534 and recurring annual liability for gratuity in a sum of Rs.
17,995. If similar benefits would have to be given to the other members of the
staff who do not fall within the definition of working journalists the annual
burden would be increased by a sum of Rs. 1,80,000.
This would be the position by reason of the
petitioners being classified and treated as a chain of newspapers and having
been classified as " A " class newspaper establishment on a total
computation of the gross revenue of all their units. If they were not so
treated and the component units were classified on their individual gross
revenue the result would be that the Free Press Journal, the Free Press
Bulletin and the Bharat Jyoti would fall within class " A ", and
Navashakti would fall within class " C " and Janashakti would fall
within class "D" thus minimising the burden imposed upon them by the
impact of the Wage Board decision.
The Saurashtra Trust, the petitioners in
Petition No. 101 of 1957, are another chain of newspapers and they publish (i)
Janmabhoomi, a Gujrati Daily from Bombay, (ii) Janmabhoomi and Pravasi, a
Gujrati Weekly from Bombay, (iii) Lokmanya, a Marathi Daily from Bombay, (iv)
Vyapar, a Gujrati Weekly commercial paper from Bombay, (v) Fulchhab, a Gujrati
Daily from Rajkot, (vi) Pratap, a Gujrati 10 74 Daily from Surat, (vii)
Cuttccha Mitra, a Gujrati Daily from Bhuj (Cutch) and, (viii) Nav Bharat, a
Gujrati Daily from Baroda. They employ 445 employees out of whom 60 are working
journalists and 12, proof readers and the rest belong to the other members of
the staff. The effect of the Wage Board decision on them would be to impose on
them a burden of Rs. 1,59,528 by reason of the retrospective operation of the
decision and an annual increase in the wage bill of Rs. 1,59,528 for the first
year and an annual recurring increase of Rs. 22,000. The operation of ss. 6 and
7 of the Act in regard to reduced hours of work and provision for increased
leave would impose an additional burden of Rs. 42,000 per year. The liability
for pastgratuity would be Rs. 93,376 and the recurring annual increase in
gratuity would be Rs. 11,000. If similar benefits were also given to the other
members of the staff who were not working journalists the annual burden will
increase by Rs. 5,18,964, by reason of their classification as "A"
class newspaper establishment on a chain basis, all the component units have
got to be treated as "A" class newspapers, whereas if they were
classified on a computation of the gross revenue of their component units
Vyapar would fall within Class "B" the Janmabhoomi and Lokmanya would
fall within Class "C" and the Cutccha Mitra, Fulchhab and Pratap
would fall within Class "E". The inequity of this measure is,
moreover, sought to be augmented by their pointing out that whereas the
Janmabhoomi from Bombay is placed in the "A" Class, Bombay Samachar
(Bombay), a morning Gujrati Daily from Bombay, which has a larger gross revenue
than Janmabhoomi taken as a single unit is placed in Class B. Similarly, the
Pratap from Surat is placed in Class A, whereas the Gujrat Mitra from Surat
which has a larger gross revenue than the Pratap is placed in Class
"B" because of its being treated as a unit by itself; and the
Fulchhab from Rajkot is also placed in Class "A", whereas the Jaihind
from Rajkot, which has a larger gross revenue than the Fulchhab, is placed in
Class "C" for an identical reason. The total cost of closing down the
concern, if perchance 75 the petitioners have to so close down owing to their
inability to carry on the business except at a loss, is worked out at Rs.
6,13,921 for the working journalists as against the old basis of Rs. 1,00,890.
The figure for the rest of the staff who are not working journalists is
computed at Rs. 3,08,112 with the result that the total cost of closing down on
the new basis under the provisions of the Act and the decision of the Wage
Board would be Rs. 9,22,033 as against what otherwise would have been a sum of
The Hindustan Times Ltd., New Delhi, the
petitioners in Petition No. 103 of 1957, otherwise called "the Hindustan
Times Group", publish (i) Hindustan Times, an English (morning) Daily,
(ii) Hindustan Times (Evening News) an English (evening) Daily, (iii) Overseas
Hindustan Times, an English Weekly, (iv) Hindustan, a Hindi Daily, and (v)
Saptahik Hindustan, a Hindi Weekly-all from Delhi. They employ a total number
of 695 employees out of whom 79 are working journalists, 14 are proof readers
and the rest, viz., 602 are other members of the staff. The wages paid to the
working journalists absorb about one-third of the total wage bill as against
602 other members of the staff whose wage bill constitutes the remaining
two-thirds. If the decision of the Wage Board is given effect to the
petitioners would be subjected to the following additional liabilities in
respect of working journalists alone : (i) Increase in the annual wage bill Rs.
2,16,000 (Approx.) (ii) Arrears of payments from May 2, 1956, to April 30,1957,
Rs. 1,89,000 (iii) Past liability in respect of gratuity as on March 31, 1957,
Rs. 2,65,000 (iv) Recurring annual liability of gratuity Rs. 28,000. The total
liability thus comes to Rs. 6,98,000. The above figures do not include
increased liability on account of the petitioners' contribution towards
provident fund, leave rules and payment to part-time correspondents. There
would also be a further recurring increase in the wage bill by reason of the
increments which would have to be given to the various categories of working
journalists on the scales of wages prescribed by the Wage Board. If other
members of the staff (who are not working journalists") were to be
considered for 76 increase in their emoluments, etc., there will be a further
burden on the petitioners computed as under:
(a)Increase in the annual wage bill, Rs. 5,02,000
(Approx.), (b) arrears of payments from May 2, 1956, to April 30, 1957, Rs.
4,51,000 (Approx.), (c) Past liability in respect of gratuity as on March 31,
1957, Rs. 5,50,000 (Approx.), (d) Recurring annual liability for gratuity Rs.
60,000 (Approx.). The total comes to Rs. 15,63,000.
The petitioners in Petition No. 116 of 1957
are the Loksatta Karyalaya, Baroda, which publish the Loksatta, a Gujarati
Daily from Baroda. They employ 15 working journalists. The annual wage bill of
working journalists would have to be increased by reason of the decision of the
Wage Board by Rs. 10,800; the burden of payment of retrospective liability
being Rs. 9,600. Moreover, there will be a recurring annual burden of Rs. 6,340
inclusive of the expenditure involved by reason of the provisions as to (i)
Notice pay, (ii) Gratuity, (iii) Retrenchment compensation and (iv) Extra
burden of reduced hours of work and increased leave.
The Sandesh Ltd., the petitioners in Petition
No. 117 of 1957, otherwise styled, the Sandesh Group, Ahmeda bad, publish (i)
Sandesh, a morning Gujarati Daily, (ii) Sevak, an evening Gujarati Daily, (iii)
Bal Sandesh, a Gujarati Weekly, and (iv) Aram, and (v) Sat Sandesh, Gujarati
Monthlies-all from Ahmedabad. They employ a total staff of 205 employees out of
whom there are 11 working journalists, 7 proof readers and the rest 187
constitute the other members of the staff. The increase in the wage bill of the
working journalists under the provisions of the Act would be Rs. 24,807 per
year besides a similar liability for Rs. 24,807 by reason of the retrospective
operation of the decision. There will be an increase in expenditure to the tune
of Rs. 30,900 by reason of the reduced working hours and increase in leave and
holidays, a liability of Rs. 31, 597 for past gratuity and Rs. 24,807 every
year for recurring gratuity as also Rs. 1,530 for recurring increase in wages
of the working journalists. The financial burden in the case of proof-readers
who 77 are included in the definition of working journalists tinder the terms
of the Act would be Rs. 5,724 per year. If similar benefits were to be given to
the other members of the staff who are not working journalists the annual
increase in the burden will be Rs. 1,89,816. The total costs of closing down if
such an eventuality' were contemplated would be Rs. 1,08,997 for the working
journalists only as against a liability of Rs. 22,755 on the old basis. The
other members of the staff would have to be paid Rs. 1,46,351 and the total
cost of closing down the whole concern would thus conic to Rs. 2,55,349 under
the new dispensation as against Rs. 1,69,106 as of old.
The Jansatta Karyalaya, Ahmedabad,
petitioners in Petition No. 118 of 1957 bring out (i) Jansatta, a Gujarati
Daily and (ii) Chandni a Gujarati Monthly from Ahmedabad. They employ 15
working journalists, 6 proof-readers and 87 other members of the staff thus
making a total number of 108 employees.
The increase in the wage-bill of the working
journalists would come to Rs. 29,808. The liability for past gratuity would be
Rs. 6,624 and the recurring annual gratuity would be Rs. 2,303 and the annual
recurring increase in wages would come to Rs. 2,280. The financial burden in
case of proof-readers would be Rs. 6,480 per year as per the decision of the Wage
Board. If similar benefits had to be given to the other members of the staff
who are non-working journalists the annual burden will increase by Rs. 48,720.
The total cost of closing down, if such a
contingency ever arose, would come to Rs. 1,00,798 under the provisions of the
Act and the Wage Board decision as against Rs. 45,206 on the old basis.
All these petitions filed by the several
petitioners as above followed a common pattern. After succinctly reciting the
history of the events narrated above which led to the enactment of the impugned
Act and the decision of the Wage Board, they challenged the vires of the Act
and the decision of the Wage Board. The vires of the Act was challenged on the
ground that the provisions thereof were violative of the fundamental rights
guaranteed by the Constitution under Art.
19(1)(a), 78 Art. 19(1)(g), and Art. 14 ; but
in the course of the arguments before us another Article, viz., Art. 32 was
also added as having been infringed by the Act. The decision of the Wage Board
was challenged on various grounds which were in pari materia with the
objections that had been urged by the representatives of the employers in the
Wage Board in their minute of dissent above referred to. It was also contended
that the implementation of the decision would be beyond the capacity of the
petitioners and would result in their titter collapse. The reply made by the
respondents was that none of the fundamental rights guaranteed under Art.
19(1)(a), Art. 19(1)(g), Art. 14 and/or Art. 32 were infringed by the impugned
Act, that the functions of the Wage Board were not judicial or quasijudicial in
character, that the fixation of the rates of wages was a legislative act and
not a judicial one, that the decision of the Wage Board bad been arrived at
after taking into consideration all the criteria for fixation of wages under s.
9(1) of the Act and the material as well as the evidence led before it, that a
considerable portion of the decisions recorded by the Wage Board were
unanimous, that the Wage Board had the power and authority also to fix the
scales of wages and to give retrospective operation to its decision, and that
the financial position of the petitioners was not such as to lead to their
collapse as a result of the impact of the provisions of the impugned Act and
the decision of the Wage Board.
The petitioners in Petitions Nos. 91 of'
1957, 99 of 1957, 100 of 1957, 101 of 1957 and 103 of 1957 also filed petitions
for special leave to appeal against the decision of the Wage Board being Petitions
Nos. 323, 346, 347, 348 and 359 of 1957 respectively and this Court granted the
special leave in all these petitions under Art. 136 of the Constitution subject
to the question of the maintainability of the appeals being open to be urged at
the hearing. Civil Appeals arising out of these special leave petitions were
ordered to be placed along with the Writ Petitions aforesaid for hearing and
final disposal and Civil Appeals Nos. 699 of 1957, 700 of 1957, 701 of 1957,
702 of 1957 and 703 of 1957 79 arising there from thus came up for hearing and
final disposal before us along with the Writ Petitions under Art.
32 mentioned above. We took up the hearing of
the Writ Petitions first as they were more comprehensive in scope than the
Civil Appeals filed by the respective parties and heard counsel at considerable
length on the questions arising for our determination therein.
Before we discuss the vires of the impugned
Act and the decision of the Wage Board, it will be appropriate at this juncture
to clear the ground by considering the principles of wage fixation and the
machinery employed for the purpose in various countries. Broadly speaking wages
have been classified into three categories, viz., (1) the living wage, (2) the
fair wage and (3) the minimum wage.
The concept of the living wage:
"The concept of the living wage which
has influenced the fixation of wages, statutorily or otherwise, in all
economically advanced countries is an old and well established one, but most of
the current definitions are of recent origin. The most expressive definition of
the living wage is that of Justice Higgins of the Australian Commonwealth Court
of Conciliation in the Harvester case.
He defined the living wage as one appropriate
for " the normal needs of the average employee, regarded as a human being
living in a civilized community ". Justice Higgins has, at other places,
explained what he meant by this cryptic pronouncement. The living wage must
provide not merely for absolute essentials such as food, shelter and clothing
but for " a condition of frugal comfort estimated by current human
standards." He explained himself further by saying that it was a wage
" sufficient to insure the workmen food, shelter, clothing frugal comfort,
provision for evil days, etc., as well as regard for the special skill of an
artisan if he is one ". In a subsequent case he observed that "
treating marriage as the usual fate of adult men, a wage which does not allow
of the matrimonial condition and the maintenance of about five persons in a home
would not be treated as a living wage". According to the South Australian
Act of 1912, the living wage means " a sum 80 sufficient for the normal
and reasonable needs of the average employee living in a locality where work
under consideration is done or is to be done." The Queensland Industrial
Conciliation and Arbitration Act provides that the basic wage paid to an adult
male employee shall not be less than is " sufficient to maintain a
well-conducted employee of average health, strength and competence and his wife
and a family of three children in a fair and average standard of comfort,
having regard to the conditions of living prevailing among employees in the
calling in respect of which such basic wage is fixed, and provided that in
fixing such basic wage the earnings of the children or wife of such employee
shall not be taken into account ". In a Tentative Budget Inquiry conducted
in the United States of America in 1919 the Commissioner of the Bureau of
Labour Statistics analysed the budgets with reference to three concepts, viz.,
(i) the pauper and poverty level, (ii) the minimum of subsistence level, and,
(iii) the minimum of health and comfort level,and adopted the last for the
determination of the living wage.
The Royal Commission on the Basic Wage for
the Commonwealth of Australia approved of this course and proceeded through
norms and budget enquiries to ascertain what the minimum of health and comfort
level should be. The commission quoted with approval the description of the
minimum of health and comfort level in the following terms:
" This represents a slightly higher
level than that of subsistence, providing not only for the material needs of
food, shelter, and body covering but also for certain comforts, such as
clothing sufficient for bodily comfort, and to maintain the wearer's instinct
of selfrespect and decency, some insurance against the more important
misfortunes-death, disability and fire--good education for the children, some
amusement, and some expenditure for self development." Writing practically
in the same language, the United Provinces Labour Enquiry Committee classified
level of living standard in four categories, viz., (i) the poverty level,81
(ii) the minimum subsistence level, (iii)the subsistence plus level and (iv)
the comfort level, and chose the subsistence plus. level as the basis of what
it called the "minimum living wage". The Bombay Textile Labour
Inquiry Committee, 1937, considered the living wage standard at considerable
length and, while accepting the concept of the living wage as described above,
observed as follows:
"....... what we have to attempt is not
an exact measurement of a well-defined concept. Any definition of a standard of
living is necessarily descriptive rather than logical. Any minimum, after all, is
arbitrary and relative. No completely objective and absolute meaning can be
attached to a term like the living wage standard " and it has necessarily
to be judged in the light of the circumstances of the particular time and
country." The Committee then proceeded through the use of norms and
standard budgets to lay down what the basic wage should be, so that it might
approximate to the living, wage standard " in the light of the
circumstances of the particular time and country." The Minimum Wage-Fixing
Machinery published by the 1. L. O.
has summarised these views as follows:
" In different countries estimates have
been made of the amount of a living wage, but the estimates vary according to
the point of view of the investigator. Estimates may be classified into at
least three groups:
(1) the amount necessary for mere
subsistence, (2) the amount necessary for health and decency and (3) the amount
necessary to provide a standard of comfort." It will be seen from this
summary of the concepts of the living wage held in various parts of the world
that there is general argument that the living wage should enable the male
earlier to provide for himself and his family not merely the bare essentials of
food, clothing and shelter but a measure of frugal comfort including education
for the children, protection against ill-health, 11 82 requirements of
essential social needs, and a measure of insurance against the more important
misfortunes including old age. " (1) Article 43 of our Constitution has
also adopted as one of the Directive Principles of State Policy that:
The State shall endeavour to secure, by
suitable legislation or economic Organisation or in any other way, to all
workers, agricultural, industrial or otherwise, work, a living wage, conditions
of work ensuring a decent standard of life and full enjoyment of leisure and
social and cultural opportunities................" This is the ideal to
which our social welfare State has to approximate in an attempt to ameliorate
the living conditions of the workers.
The concept of the minimum wage:
" The International Convention of 1928
prescribes the setting up of minimum wage-fixing machinery in industries in
which " no arrangements exist for the effective regulation of wages by
collective agreement or otherwise and wages are exceptionally
" As a rule, though the living wage is
the target, it has to be tempered, even in advanced countries, by other
considerations, particularly the general level of wages in other industries and
the capacity of industry to pay. This view has been accepted by the Bombay
Textile Labour Inquiry Committee which says that " the living wage basis
affords an absolute external standard for the determination of the minimum
" and that " where a living wage criterion has been used in the
giving of ail award or the fixing of a wage, the decision has always been
tempered by other considerations of a practical character." " In
India, however, the level of the national income is so low at present that it
is generally accepted that the country cannot afford to prescribe by law a
minimum wage which would correspond to the concept of the living wage as
described in the preceding paragraphs. What then should be the level of minimum
wage which call be sustained by the present stage of the country's economy?
Most employers and some.
(1) Report of the Committee on Fair Wagss
(1947 to 1949), pp5-7,paras. 6& 7.
83 Provincial Governments consider that the
minimum wage can at present be only a bare subsistence wage. In fact, even one
important All-India Organisation of employees has suggested that " a
minimum wage is that wage which is sufficient to cover the bare physical needs
of a worker and his family." Many others,'; however.......... consider
that a minimum wage should also provide for some other essential requirements
such as a minimum of education, medical facilities and other amenities. We
consider that a minimum wage must provide not merely for the bare sustenance of
life but for the preservation of the efficiency of the worker.
For this purpose, the minimum wage must also
provide for some measure of education, medical requirements, and amenities.
This is the concept of the " minimum
wage " adopted by the Committee on Fair Wages. There are however
variations of that concept and a distinction has been drawn, for instance, in
Australian industrial terminology between the basic wage and the minimum wage."
The basic wage there approximates to a bare minimum subsistence wage and no
normal adult male covered by an award is permitted to work a full standard
hours week at less than the assessed basic wage rate. The basic wage is
expressed as the minimum at which normal adult male unskilled workers may
legally be employed, differing from the amounts fixed as legal minima for
skilled and semiskilled workers, piece workers and casual workers
The minimum wage is the lowest rate at which
members of a specified grade of workers may legally be employed. " (2)
There is also a distinction between a bare subsistence or minimum wage and a
statutory minimum wage. The former is a wage which would be sufficient to cover
the bare physical needs of a worker and his family, that is, a rate which has
got to be paid to the worker irrespective of the capacity of the industry to
(i) Report of the Committee on Fair Wages, PP. 7-9, paras, 8-10.
(2) O.D.R. Feenander Industrial Regulation in
Australia (1947), Ch. XVII, P. 155.
84 pay. If an industry is unable to pay to
its workmen at least a bare minimum wage it has no right to exist. As was
observed by us in Messrs. Crown Aluminium Works v. Their Workmen (1):
" It is quite likely that in
underdeveloped countries, where unemployment prevails on a very arge scale,
unorganised labour may be available on starvation wages, but the employment of
labour on Starvation wages cannot be encouraged or favored in a modern
democratic welfare state.
If an employer cannot maintain his enterprise
without cutting down the wages of his employees below even a bar(, subsistence
or minimum wage, he would have no right to conduct his enterprise on such
terms." The statutory minimum wage however is the minimum which is
prescribed by the statute and it may be higher than the bare subsistence or
minimum wage, providing for some measure of education, medical requirements and
amenities, as contemplated above. (Cf. also the connotation of " minimum
rate of wages " in s. 4 of the Minimum Wages Act, 1948 (XI of 1948)).
The concept of the fair wage:
" The payment of fair wages to labour is
one of the cardinal recommendations of the Industrial Truce
Resolution.................. Marshall would consider the rate of wages
prevailing in an occupation as " fair " if it is " about on
level with the average payment for. tasks in other trades which are of equal
difficulty and disagreeableness, which require equally rare natural abilities
and an equally expensive training." Prof Pigou would apply two degrees of
fairness in judging a wage rate, viz., "fair in the narrower sense"
and " fair in the wider sense ". A wage rate, in his opinion, is
"fair in the narrower sense" when it is equal to the rate current for
similar workmen in the same trade and neighborhood and "fair in the wider
sense" when it is equal to the predominant rate for similar work throughout
the country and in the generality of trades. " " The Indian National
Trade Union Congress......
(1)  S.C.R 651.
85 agreements, arbitrators, and adjudicators
could at best be treated, like the minimum wage, as the starting point and that
wherever the capacity of an industry to pay a higher wage is established, such
a higher wage should be deemed to be the fair wage. The minimum a wage should
have no regard to the capacity of an industry to pay and should be based solely
on the requirements of the worker and his family. " A fair wages "
is, in the opinion of the Indian National Trade Union Congress, " a step
towards the progressive realization of a living wage ". Several employers
while they are inclined to the view that fair wages would, in the initial
stages, be closely related to current wages, are prepared to agree that the
prevailing rates could suitably be enhanced according to the capacity of an
industry to pay and that the fair" age would in time progressively
approach the living wage. It is necessary to quote one other opinion, viz.,
that of the Government of Bombay, which has had considerable experience in the
matter of wage regulation. The opinion of that Government is as follows:
" Nothing short of a living wage can be
a fair wage if under competitive conditions an industry can be shown to be
capable of paying a full living wage. The minimum wage standards set up the
irreducible level, the lowest limit or the floor below which no workers shall
be paid............ A fair wage is settled above the minimum wage and goes
through the process of approximating towards a living wage. " While the
lower limit of the fair wage must obviously be the minimum wage, the upper
limit is equally set by what may broadly be called the capacity of industry to
pay. This will depend not only on the present economic position of the industry
but on its future prospects. Between these two limits the actual ",-ages
will depend on a consideration of the following factors and in the light of the
comments given below:
(i) the productivity of labour;
(ii) the prevailing rates of wages in the
same or 86 similar occupations in the same or neighbouring localities;
(iii) the level of the national income and
its distribution ;and (iv) the place of the industry in the economy of the
It will be noticed that the " fair wage
" is thus a mean between the living wage and the minimum wage and even the
minimum wage contemplated above is something more than the bare minimum or
subsistence wage which would be sufficient to cover the bare physical needs of
the worker and his family, a wage which would provide also for the preservation
of the efficiency of the worker and for some measure of education, medical
requirements and amenities.
This concept of minimum wage is in harmony
with the advance of thought in all civilised countries and approximates to the
statutory minimum wage which the State should strive to achieve having regard
to the Directive Principle of State Policy mentioned above.
The enactment of the Minimum Wages Act,
1948, affords an illustration of an attempt to
provide a statutory minimum.
wage. It was an Act to provide for fixing
minimum rates of wages in certain employments and the appropriate Government
was thereby empowered to fix different minimum rates of wages for (i) different
scheduled employments; (ii) different classes of work in the same scheduled
(iii) adult-,, adolescents, children and
apprentices; and (iv) different localities; and (v) such minimum rates of wages
could be fixed by the hour, by the day or by any larger period as may be
prescribed It will also be noticed that the content of the expressions minimum
wage fair wage " and " living wage is not fixed and static. It varies
and is bound to vary from time to time.
With the growth and Development of national
economy, living standards Would improve and so would our notions about the
respective categories of wages expand and be more progressive.
(1) Report of the Committee on Fair Wages,
PP. 4, 9-11, paras, 11-15.
87 It must however be remembered that whereas
the bare minimum or subsistence wage would have to be fixed irrespective of the
capacity of the industry to pay, the minimum wagg thus contemplated postulates
the capacity of the industry to pay and no fixation of wages which ignores this
essential factor of the capacity of the industry to pav could ever be
Fixation of Scales of Wages:A question arises
as to whether the fixation of rates of wages would also include the fixation of
scales of wages.
The rates of wages and scales of wages are
two different expressions with two different connotations. " Wages "
have been defined in the Industrial
Disputes Act, 1947, to mean "all remuneration
capable of being expressed in, terms of money, which would, if the terms of
employment, express or implied, were fulfilled, be payable to a workman in
respect of his employment or of work done in such employment." Similar
definition of " wages " is to be found in the Minimum Wages
Act, 1948, also. They would therefore include all
payments made from time to time to a workman during the course of his
employment as such and not merely the starting amount of wages at the beginning
of his employment. The dictionary meaning of the term in the Concise Oxford
]Dictionary is also the same, viz., " Amount paid periodically, especially
by the day or week or month, for time during which workman or servant is at
employer's disposal ".
The use of the word " rate " in the
expression " rates of wages" has not the effect of limiting the
connotation of the term. "Rate" is described in the Concise Oxford
Dictionary as " a statement of numerial proportion prevailing or to
prevail between two sets of things either or both of which may be unspecified
amount, etc., mentioned in one case for -application to all similar ones, standard
or way of reckoning (measure of) value, etc." In Chambers' Twentieth
Century Dictionary its meaning is given as: estimated amount or value
(Shakespeare), and also " amount 88 determined according to a rule or
basis; a standard; a class or rank; manner or mode".
"Rates of wages" therefore mean the
manner, mode or standard of the payments of remuneration for work done whether
at the start or in the subsequent stages. Rates of wages would thus include the
scales of wages and there is no antithesis between the, two expressions, the
expression being applicable both to the initial as well as subsequent amounts
of wages. It is true that in references made to Industrial Tribunals fixing of
scales of pay has been specifically mentioned, e. g., in the Industrial dispute
between certain banking companies and their workers. But that is not sufficient
to exclude the " scales of wages " from being comprised within the
larger connotation of the expression "rates of wages " which is
capable of including the scales of wages also within its ambit. Even without
the specific mention of the scales of wages it would be open to fix the same in
an inquiry directed towards the fixation of the rates of wages.
It is also true that Industrial Tribunals
have laid down that the increments of wages or scales of remuneration could
only be fixed having due regard to the capacity of the industry to pay. In the
case of the Britannia Building & Iron Co. Ltd.(1):
" As time scales increase the wage bill
year after year which is reflected in the cost of production, such Scales
should not, in our opinion, be forced upon the employer of industrial labour
unless it is established that the employer has the present capacity to pay and
its financial capacity can be counted upon in future. Thus, both financial
ability and stability are requisite conditions." Similar observations were
made in the case of the Union Drug Co. Ltd.(1):
" For before incremental scales can be
imposed by adjudication, it is essential to see whether employer would be able
to bear its burden. The financial condition of the Company must be such as to
lead to the conclusion that it would be able to pay the increments year by year
for an appreciable number of (1) (1954] 1 L. L. J. 651, 654.
(2)  1 L.L.J. 766, 767.
89 years, for wage scales when settled are
intended to be long termschemes." This consideration however of the
capacity of the industry to pay does not militate against the construction
adopted above that rates of wages do comprise within their scope the scales of
wages also and it therefore follows that the fixation of rates of wages would
also include the fixation of scales of wages. As a matter of fact, the
provisions in regard to the statutory minimum wages in Queensland, Western
Australia, and Tasmania prescribe scales of wages which are graduated according
to age and experience.
The capacity of the industry to pay being
thus one of the essential ingredients in the fixation of wages, it is relevant
to consider the different methods of measuring such capacity.
The capacity of the industry to pay:
The capacity of industry to pay can mean one
of three things, viz :
(i)the capacity of a particular unit
(marginal, representative or average) to pay, (ii)the capacity of a particular
industry as a whole to pay or (iii)the capacity of all industries in the
country to pay.
" Ideas on this subject have varied from
country to country.
In New Zealand and Australia, the capacity to
pay is calculated with reference to all industries in the country and no
special concessions are shown to depressed industries. In Australia the
Arbitration Court considered that " in view of the absence of clear means
of measuring the general wage-paying capacity of total industry, the actual
wage upon which well-situated labourers were at the time maintaining the
average family unit could justifiably be taken as the criterion of what
industry could probably pay to all labourers ". This is at best a
secondary definition of capacity, for it could only serve to show that certain
industries or units could afford to pay as much as certain others." The
Bombay Textile Labour Inquiry Committee 12 90 came to the conclusion that it
was not possible to define the term "capacity to pay" in -a precise
manner and observed as follows:
"The capacity to pay a wage cannot
obviously be determined merely by the value of production. ,There is the
important question of determining the charges that have to be deducted before
arriving at the amount that can be paid in wages.
The determination of each of a large number
of charges involves difficulties, both theoretical and practical.
Interest charges, remuneration to salaried
staffs and managing agents, sales commissions, profits, all these cannot for
any large organised industry be taken as predetermined in a fixed manner.
Neither is it to be expected that representatives of Labour would accept
without challenge the current levels of expenditure on these items apart from
the consideration whether the industry has been reasonably well managed or
not." " That Committee was, however, of the opinion that capacity
should not be measured in terms of the individual establishment and that "
the main criterion should be the profit making capacity of the industry in the
" In determining the capacity of an
industry to pay it would be wrong to take the capacity of a particular unit or
the capacity of all industries in the country. The relevant criterion should be
the capacity of a particular industry in a specified region and, as far as
possible, the same wages should be prescribed for all units of that industry in
that region. It will obviously not be possible for the wage fixing board to
measure the capacity of each of the units of an industry in a region and the
only practicable method is to take a fair cross-section of that
industry."(1) It is clear therefore that the capacity of an industry to
pay should be gauged on an industry-cum-region basis after taking a fair
cross-section of that industry. In a given case it may be even permissible to
divide the industry into appropriate classes and then deal with the capacity of
the industry to pay class wise.
(1) Report of the Committee on Fair Wages,
pp. 13-15, paras. 21& 23.
91 As regards the measure of the capacity
again there are two points of view in regard to the same:
" One view is that the wage-fixing
machinery should, in determining the capacity of industry to pay, have regard
to (i) a fair return on capital and remuneration to management; and (ii)a fair
allocation to reserves and depreciation so as to keep the industry in a healthy
The other view is that the fair wage must be
paid at any cost and that industry must go on paying such wage as long as it
does not encroach on capital to pay that wage.........
The objective is not merely to determine
wages which are fair in the abstract, but to see that employment at existing
levels is not only maintained but, if possible, increased.
From this point of view, it will be clear
that the level of wages should enable the industry to maintain production with
efficiency. The capacity of industry to pay should, therefore, be assessed in
the light of this very important consideration. The wages board should also be
charged with the duty of seeing that fair wages so fixed for any particular
industry are not very much out of line with wages in other industries in that
region. Wide disparities would inevitably lead to movement of labour, and
consequent industrial unrest not only in the industry concerned but in other
industries." (1) The main consideration which is to be borne in mind
therefore is that the industry should be able to maintain production with
efficiency and the fixation of rates,of wages should be such that there are no
movements from one industry to another owing to wide disparities and employment
at existing levels is not only maintained, but if possible, increased.
Different tests have been suggested for
measuring the capacity of the industry to pay: viz:
(1) The selling price of the product;
(2) The volume of the output;
(3) the profit and loss in the business;
(1) Report of the Committee on Fair Wages, p.
14, para. 24.
92 (4) the rates which have been agreed to by
a, large majority of the employers;
(5) the amount of unemployment brought about
or likely to be brought about by the imposition of the increased wage, etc.
They are however not quite satisfactory. The
real measure of the capacity of the industry to pay has been thus laid down in
" Wage.-, & the State " by E.M. Burns at p. 387:
" It would be necessary to inquire inter
alia into the elasticity of demand for the product, for on this depends the
extent to which employers could transfer the burden of the increased wage to
consumers. It would also be necessary to inquire how far the enforced payment
of a higher wage would lead employers to tighten up Organisation and so pay the
higher wage without difficulty.
Similarly it frequently happens that an
enhanced wage increases the efficiency of the lowest paid workers; the
resulting increase in production should be considered in conjunction with the
elasticity of demand for the commodity before the ability of a trade to pay can
fairly be judged.
Again unless what the trade can bear be held
to imply that in no circumstances should the existing rate of profit be
reduced, there is no reason why attempts should not be made to discover how far
it is possible to force employers to bear the burden of an increased rate
without driving them out of business. This would involve an investigation into
the elasticity of supply of capital and organization ability in that particular
trade, and thus an inquiry into the rate of profits in other industries, the
ease with which transferences might be made, the possibility of similar wage
regulation extending to other trades, and the probability of the export of
capital and organising ability etc." The principles which emerge from the
above discussion are:
(1) that in the fixation of rates of wages
which 93 include within its compass the fixation of scales of wages also, the
capacity of the industry to pay is one of the essential circumstances to be
taken into consideration except in cases of bare subsistence or minimum wage
where the employer is bound to pay the same irrespective of such capacity;
(2) that the capacity of the industry to pay
is to be considered on an industry-cum-region basis after taking a fair cross
section of the industry; and (3) that the proper measure for gauging the
capacity of the industry to pay should take into account the elasticity of
demand for the product, the possibility of tightening up the Organisation so
that the industry could pay higher wages without difficulty and the possibility
of increase in the efficiency of the lowest paid workers resulting in increase
in production considered in conjunction with the elasticity of demand for the
product-no doubt against the ultimate background that the burden of the
increased rate should not be such as to drive the employer out of business.
These are the principles of fixation of rates
of wages and it falls now to be considered what is the machinery employed for
The machinery for fixations of wages:
The fixation of wages may form the subject
matter of reference to industrial tribunals or similar machinery under the
Labour Relations Law. But this machinery is designed for the prevention and
settlement of industrial disputes which have either arisen or are apprehended,
disputes relating to wages being one of such disputes. The ensuring of an
adequate wage is however a distinctive objective and it requires the setting up
of some kind of wage fixing board, whether they be trade boards or general
boards. It is seldom that legislative enactments themselves fix the rates of
wages, though a few such instances are known. This method of regulation of
wages has now become obsolete in view of its inflexibility. " (1) "
The Constitution of Boards falls naturally into two main groups. On the one
hand, there are those not representatives of one but of all trades, workers in
(1) The Report of the Committee on Fair Wages. P. 26, para. 49.
94 general and employers in general being
represented. This group includes among others the Industrial Welfare Commission
of Texas, consisting of the Commissioner of Labour, the representative of
employers of labour on the Industrial Accidents Board and the State
Superintendent of Public Instruction; the Minimum Wage Board of Manitoba,
composed of two representatives of employers, and two of workers (one of each
to be a woman) and one disinterested person; and the South Australian Board of
Industry, consisting of a President and four Commissioners, two of whom are to
be nominated by the South Australian Employers' Federation and two by the
United Trades and Labour Council of the State. On the other hand are those
Boards representative of one trade only or of part of a trade, or of a group of
allied trades. An attempt is made to obtain a body of specialists and the
membership of the Board reflects this intention. It will contain an equal
number of representatives of employers and workers, together with an impartial
chairman, and in some cases members of the public as well. Of this type are the
British Trade Boards; the South Australian, Victorian and Tasmanian Wages
Boards; and the Advisory or Wages Boards set up by many of the Central
Commissioners in the United States and Canada. " (1) The following is a
brief description of the composition and working of wages boards in the United
" In the United Kingdom where trade
boards, and not general boards, have been set up, the Minister of Labour
appoints a board if lie is satisfied that no adequate machinery exists in a
particular trade or industry for effectively regulating the waves and that it
is necessary to provide such machinery. The trade board is a fairly large body
consisting of an equal number of representatives of employers and workers with
a few independent members including the Chairman. Although appointments are
made by the Minister, the representatives of employers and workers (1)
"Wages & The State" by E. M. Burns at p. 187.
95 are appointed on the recommendation of the
associations concerned. The trade board publishes a notice announcing its
tentative proposals for the fixation or revision of a wage rate and invites objections
or comments. After a two months' notice the board takes a final decision and
submits a report to the Minister who must confirm the rate unless, for any
special reasons, he returns the recommendations to the board for further
consideration." (1) The Wage Council Act, 1945 (8 & 9 Geo. VI, ch. 17)
provides for the establishment of Wage Councils. The Minister of Labour and
National Service has the power to make a wages council order after considering
objections made with respect to the draft order on behalf of any person
appearing to him to be affected. The Wage Council makes such investigation as
it thinks fit and publishes notice of the wage regulation proposals and parties
affected are entitled to make written representations with respect to these proposals
which representations the Wage Council considers. The Wage Council can make
such further enquiries as it considers necessary and thereafter submit the
proposals to the Minister either without amendment or with such amendments as
it thinks fit in regard to the same. The Minister considers these wage
regulations proposals and makes an order giving effect to the proposals from
such date as may be specified in the order. Remuneration fixed by the wage
regulation orders is called statutory minimum remuneration.
There are also similar provisions under the
Agricultural Wage Regulation Act, 1924 (14 & 15 Geo. V, ch. 37) in regard
to the regulation of wages by Agricultural Wages Committees and the
Agricultural Wages Board.
In Canada and Syria a board consists of
generally 5 members, but in China the size of the board varies from 9 to 15. In
all these countries employers and workers obtain equal representation. In
Canada the boards are required to enquire into the conditions of work and
wages. In some provinces the boards are authorised to issue orders or decrees
while in others (1) The Report of the Committee on Fair Wages, pp. 25-26, para.
96 the recommendations have to be submitted
to the Lieutenant Governor who issues orders.
" In the United States of America some
state laws prescribe that the representatives of employers and workers should
be elected, but in the majority of States the administrative authorities are
authorised to make direct appointments. The boards so set up are empowered to
make enquiries, to call for records, to summon witnesses and to make
recommendations regarding minimum wages. Some of the American laws lay down a
time-limit for the submission of proposals. The administrative authority may
accept or reject a report and refer it back for reconsideration, or form a new
board for considering the matter afresh. Some of the laws provide that if the
report is not accepted, the matter must be submitted again to the same wages
board or a new wages board." (1) The whole procedure for the determination
of wages in the United States of America is described in two decisions of the
Supreme Court: (i) Interstate Commerce Com. v. Louisville & M. R. (2) and
(ii) Opp. Cotton Mills Inc. v. Administration (3).
The Fair Labour Standards Act of 1938 in the
U.S.A. provides for convening by the Administrator of industry committees for
each such industry which from time to time recommend the minimum rate or rates
of wages to be paid by the employers.
The committee Recommends to the administrator
the highest minimum wage rates for the industry which it determines, having due
-regard to economic and competitive conditions, will not substantially curtail
employment in the industry.
Wage orders can there upon be issued by the
administrator after due notice to all interested persons and giving them an
opportunity to be heard.
In Australia, also there are provisions in
various states for the appointment of wage boards the details of which we need
not go into. We may only refer to the wage board system in Victoria which was
established (1) Report of the Committee on Fair Wages, p. 26, para. 50.
(2) (1912) 227 U.S. 88; 57 L. Ed. 431.
(3) (1940) 312 U-S126; 85 L. Ed. 624.
97 in 1896 as a means of directly regulating
wages -and working conditions in industries subject to " sweating ",
and was not intended to control industrial relations as such.
" Under the Factories and Shops Act,
1924, wage boards are set up for the various industries with a' court of
Industrial Appeals to decide appeals from a determination of a wage board..
Industries for which there is no special wage board are regulated by the
General Wages Board, which consists of two employers' representatives nominated
by the Victorian Chamber of Manufacturers, two employees' representatives nominated
by the Melbourne Trade Hall Council, and a chairman, agreed upon by these four
members or nominated by the minister for labour."(1) It may be noted that
in the majority of cases these wage boards are constituted of equal number of
representatives of employers and employees and one or more independent persons,
one of whom is appointed the chairman.
The position in India has been thus
" The history of wage-fixation in India
is a very recent one. There was practically no effective machinery until the
last war for the settlement of industrial disputes or the fixation of wages.
The first important enactment for the settlement of disputes was the Bombay
Industrial Disputes Act, 1938 which created an Industrial Court. The Act had
limited application and the Court was not charged with the responsibilities of
fixing and regulating wages. During the war State intervention in the
settlement of industrial disputes became necessary, and numerous adjudicators
were appointed to adjudicate on trade disputes under the Defence of India
Rules. The Industrial
Disputes Act, 1947, is the first effective measure of
All-India applicability for the settlement of industrial disputes. Under this
Act various Tribunals have passed awards regulating wages in a number of
" The first enactment specifically to
regulate wages in this country is the Minimum Wages Act, 1948.
(1) Kenneth F. Walker, "Industrial
Relations in Australia".
13 98 This Act is limited in its operation to
the so-called sweated industries in which labour is practically unorganised and
working conditions are far worse than in organised industry. Under that Act the
appropriate Government has either to appoint a Committee to hold enquiries and
to advise it in regard to the fixation of minimum rates of wages or, if it
thinks that it has enough material on hand, to publish its proposals for the
fixation of wages in the official gazette and to invite objections.
The appropriate Government finally fixes the
minimum rates of wages on receipt of the recommendations of the Committee or of
objections from the public. There is no provision for any appeal. There is an
advisory board in each province to co-ordinate the work of the various
committees. There is also a Central Advisory Board to co-ordinate the work of
provincial boards. Complaints of non-payment of the minimum rates of wages
fixed by Government may be taken to claims authorities. Breaches of the Act are
punishable by criminal courts." (1) It is worthy of note that these
committee, subcommittees, advisory board and central advisory board are to
consist of persons to be nominated by the Central Government representing
employers and employees in the scheduled employments, who shall be equal in
number, and independent persons not exceeding one-third of its total number of
members; one of such independent persons shall be appointed the chairman by the
" Under a recent amendment to the Bombay
Industrial Relations Act, 1946, wage boards can be set up in the Province of
Bombay either separately for each industry or for a group of industries. The
wage board is to consist of an equal number of representatives of employers and
employees and some independent persons including the Chairman, all of whom are
nominated by the Government. The board decides disputes relating to reduction
in the number of persons employed, rationalisation or other efficiency, systems
of work, wages and the period and mode of payment, hours of work and leave with
or without (1) Report of the Committee on Fair Wages, pp. 26-27, para. 51, 52.
99 pay. When a matter has been referred to a
wages board, no proceedings may be commenced or continued before a conciliator,
conciliation board, labour court or industrial court. The wages boards are
authorised to form committees for local areas for the purpose of making
enquiries. It is obligatory on" Government to declare the decisions of the
wages boards binding, but where Government feel that it will be inexpedient on
public grounds to give effect to the whole or any part of the decision, the
matter has to be placed before the Provincial Legislature, the decision of which
will be binding. There is provision for the filing of appeals from the
decisions of the wages boards to the Industrial Court." (1) Those wage
boards moreover are under the superintendence of the Industrial Court.
We may also notice here Recommendation 30,
being the recommendation concerning the application of Minimum WageFixing
Machinery made by the International Labour Office, 1949 (2):
(1) The minimum wage-fixing machinery
whatever form it may take (for instance, trade board for individual trades, tribunals),
should operate by way of investigation into the relevant conditions in the
trade or part of trade concerned and consultation with the interests primarily
and principally affected, that is to say, the employers and workers in the
trade or part of trade, whose views on all matters relating to the fixing of
the minimum rate of wages should in any case be solicited and be given full and
" (2) (a) To secure greater authority
for the rates that may be fixed, it should be the general policy that the
employers and workers concerned through representatives equal in number or
having equal voting strength, should jointly take a direct part in the
deliberations and decisions of the wage-fixing body; in any case, where
representation is accorded to one side, the other side should be represented on
the same footing. The wage-fixing body should also include one or more
independent persons whose votes can ensure (1) Report of the Committee on Fair
Wages, P. 27, para. 52.
(2) Extracts from Conventions &
Recommendations, 1919-49, published by International Labour Office (1949).
100 effective decisions being reached in the
event of the votes of the employers' and workers' representatives being equally
divided. Such independent persons should, as far as possible, be selected in
agreement with or after consultation with the employers' and workers'
representatives on the wage fixing body.
(b)In order to ensure that the employers' and
workers' representatives shall be persons having the confidence of those whose
interests they respectively represent, the employers and workers concerned
should be given a voice as far as is practicable in the circumstances in the
selection of their representatives, and if any organisations of the employers
and workers exist these should in any case be invited to submit names of
persons recommended by them for appointment on the wage-fixing body.
(c)The independent person or persons
mentioned in paragraph (a) -should be selected from among men or women
recognised as possessing the necessary qualifications for their duties and as
being dissociated from any interest in the trade or part of trade concerned
which might be calculated to put their impartiality in question. " The
following appraisement of the system of establishing trader boards by the
committee on fair wages may be noted in this context:
" A trade board has the advantage of
expert knowledge of the special problems of the trade for which it has been set
up and is, therefore, in a position to evolve a scheme of wages suited to the
conditions obtaining in the trade. The system, however, suffers from the
limitation that there is no one authority to co-ordinate the activities of the
various boards with the result that wide disparities may arise between the
scales sanctioned for similar industries.
A general board ensures due co-ordination but
is far less competent than a trade board to appreciate the special problems of
each trade. The Bombay Textile Labour Inquiry Committee have stated in their
report that the trade board system is the best suited to Indian conditions,
particularly because the very manner of 101 functioning of trade boards is such
that wages are arrived at largely by discussion and conciliation and that it is
only in exceptional cases that the deciding votes of the Chairman and of the
independent members have to be given." (1) It is clear therefore that a
wage board relating to a, particular trade or industry constituted of equal
number of representatives of employers and employees, with an independent
member or members one of whom is appointed a chairman, is best calculated to
arrive at the proper fixation of wages in that industry.
Principles for guidance.
If a wage board is thus appointed it is
necessary that the principles for its guidance in wage fixation should also be
laid down by the appointing authority. The following passage from "Minimum
Wage-An International Survey-I.L.O.
Geneva, 1939, summarises the position as it
obtains in various countries:
" As will be clear from the analysis of
legislation given earlier in this monograph, the fundamental principle of the
Australian system, both in the Commonwealth and in the State sphere, is that of
the living wage. Even in those cases where the law contains no reference to
this principle its importance is in practice great............ As a criterion
of wage regulation the principle of the living wage is however no more than a
vague and general indication of the purpose of the legislation. It leaves the
broadest possible discretion in practice to the wage fixing tribunals. In the
case of the Commonwealth laws indeed the Court is left completely free to
determine the principles on which the basic or living wage is to be assessed.
Under certain of the State laws specific, though limited, directions are given.
Thus in Queensland there is a statutory definition of the family unit on whose
requirements the basic wage is to be calculated. In certain cases the general
emphasis on the criterion of the workers' needs is supplemented by directions
to fix wage rates that will be " fair and reasonable " and in doing
so to take into account the average standard (1) Report of the Committee on
Fair Wages, P. 27, para. 53, 102 of comfort being enjoyed by workers in the
same locality or in similar occupations. Such references, it may be noted,
involve at least an indirect allusion to general economic conditions and the
capacity of industry to pay, since the standards currently enjoyed are closely
related to these factors. In at least one case (in Queensland) the Court is
specifically directed to examine the probable effects of its decisions upon
industry and the community in general." In the United States of America
the Fair Labour Standards Act of 1938 enunciates certain principles for the
guidance of the industry committees which are convened by the Administrator
under the Act:
" The committee shall recommend to the
Administrator the highest minimum wage rates for the industry which it
determines, having due regard to economic and competitive conditions, will not
substantially curtail employment in the industry " and further " in
determining whether such classifications should be made in any industry in
making such classification, and in determining the minimum wage rates for such
classification, no classification shall be made, and no minimum wage rate shall
be fixed, solely on a regional basis, but the industry committee and the Administrator
shall consider among other relevant factors the following.
(1) competitive conditions as affected by
transportation, living, and production cost;
(2) the wages established for work of like or
comparable character by collective labour agreements negotiated between
employers and employees by representatives of their own choosing; and (3) the
wages paid for work of like or comparable character by employers who
voluntarily maintain minimum wage standards in the industry.
No classification shall be made under this
section on the basis of age or sex." The normal rule however is to leave a
wide discretion to the tribunals responsible for the fixation of wages inasmuch
as they being constituted of equal numbers of representatives of the employers
and the 103 employees are best calculated to appreciate the whole position and
arrive at correct results.
Procedure to be followed :
The procedure to be followed by the wage
boards is equally fluid. The wage councils and the central coordinating
committees appointed under the Wages Council Act, 1945, as also the
agricultural wages committees and the agricultural boards appointed under the
Agricultural Wages Regulation Act, 1924, in the United Kingdom each of them
subject, of course, to the regulations which might be made by the minister as
to the meetings and procedure of these bodies including quorum, etc., is
entitled to regulate its procedure in such manner as it thinks fit.
The wage boards in Australia " are
called together informally by the chairman upon request of either party., No
legal formalities or procedures need be complied with.
Meetings of wage boards are held in the
offices of the Department of Labour an officer of the department acting as
secretary." (1) The wage boards thus constituted are left to regulate
their procedure in such manner as they think fit and it is not necessary that
any regulation should be made in regard to the procedure to be adopted by them
in the conduct of the enquiry before them.
There are, however, a number of safeguards
which have been provided in order to protect the interests of the parties
concerned. The wages councils established by the Minister of Labour and
National Services in the United Kingdom are so established after considering
objections from persons appearing to be affected thereby and wage regulation
orders are also recommended by these councils after considering the written
representations in regard to their proposals which are duly published in the
manner prescribed. These recommendations are again in their turn considered by
the minister and it is only after the minister is satisfied that these wage
regulation orders are promulgated, the minister having the power in proper
cases to send the same back for reconsideration by the wage (1) Kenneth F.
Walker " Industrial Relations in Australia ", P. 24.
104 councils. When these proposals are again
submitted by the wage council the same -procedure is followed as in the case of
original proposals made by them.
The reports of the industry committees
convened by the administrator in the United States of America are subject to
scrutiny by the administrator who gives notice to all interested persons and
gives them an opportunity of being heard in regard to the same. it is only
after this is done that he approves and carries into effect the recommendations
in these reports on his being fully satisfied that they are proper and if he
disapproves of these recommendations he again refers the matter to such
committees for further considerations and recommendations. The orders of the
administrator are again subject to review in the Circuit Court of Appeals in
the United States and further revision in the U. S. Supreme Court upon
certiorari or certification.
As regards the determinations of the special
boards in some of the States of the Commonwealth of Australia appeals lie
against the same to the court of industrial appeals and they are also
challengeable before the High Court.
Such safeguards are also provided in our Minimum Wages Act, 1948. Here the work of the committees, sub-committees and
advisory committees is coordinated by advisory boards and the work of the
advisory boards is coordinated by the central advisory board which advises the
Central Government in the matter of the fixing of the minimum rates of wages and
other matters under the Act and it is after the receipt of such advice from the
Central advisory board by the appropriate Government that the latter takes
action in the matter of fixation or revision of minimum rates of wages. Where,
however, the appropriate Government propose to fix the minimum rates of wages
without reference to the various committees, or sub-committees, it publishes
its proposals by notification in the Official Gazette for the information of
persons likely to be affected thereby and fixes the minimum rates of wages only
after considering the representations received by it from the interested
105 The wage boards appointed by the amended
Bombay Industrial Relations Act, 1946, are subject to the appellate
jurisdiction as well as supervisory jurisdiction of the industrial courts in
the State and parties affected by their decisions are entitled to file appeals
against the same in the industrial courts.
If these safeguards are provided against the
determinations of the wage boards, it will be really immaterial what procedure
they adopt in the course of the proceedings before them. They would normally be
expected to adopt all procedure necessary to gather sufficient data and collect
sufficient materials to enable them to come to a proper conclusion in regard to
the matters submitted to them for their determination' If however at any time
they flouted the regulations prescribed in regard to the procedure to be
followed by them or in the absence of any such regulations adopted a procedure
-which was contrary to the principles of natural justice their decision would
be vitiated and liable to be set aside by the appropriate authority.
Charactero the functions performed:
There is considerable divergence of opinion
in regard to the character of the functions performed by these wage boards and
a controversy has arisen as to whether the functions performed by them are
administrative, judicial or quasijudicial or legislative in character. The
question assumes importance on two grounds: viz., (i) whether the decisions of
the wage boards are open to judicial review and (ii) whether the principle of
audi alteram partem applies to the proceedings before the wage boards. If the
functions performed by them were administrative or legislative in character
they would not be subject to judicial review and not only would the not be
amenable to the writs of certiorari or prohibition under Arts. 32 and 226 of
the' Constitution, they would also not be amenable to the exercise of special
leave jurisdiction under Art. 136.
Their decisions moreover would not be
vulnerable on the ground that the principle of audi alteram partem, i. e., no
man shall be condemned unheard, was not followed in the course of the
proceedings before them I4 106 and the procedure adopted by them was contrary
to the principles of natural justice.
It is well settled that writs of certiorari
and prohibition will lie only in respect of judicial or quasijudicial acts:
" the orders of certiorari and
prohibition will lie to bodies and persons other than courts stricto sensu. Anybody
of persons having legal authority to determine questions affecting the rights
of subjects, and having the duty to act judicially, is subject to the
controlling jurisdiction of the High Court of justice, exercised by means of
these orders." (1).
The principle of audi alteram partem also
applies only to judicial or quasi-judicial proceedings: As was observed by the
Judicial Committee of the Privy Council in Patterson v. District Commissioner
of Accra (2):"On this part of the case, counsel suggested that the
provisions of s. 9 were in the nature of a " mass punishment " of the
inhabitants of the proclaimed district and he relied on the well-known passage
from the judgment of the court in Bonaker v. Evans (3), " no proposition
can be more clearly established than that a man cannot incur the loss of
liberty or property for an offence by a judicial proceeding until he has had a
fair opportunity of answering the charge against him, unless indeed the
legislature has expressly or impliedly given an authority to act, without that
necessary preliminary. This is laid down in there a number of cases are
mentioned] and many other cases, concluding with that of Capel v. Child (4) in
which Bayley B. says he knows of no case in which you are to have a judicial
proceeding, by which a man is to be deprived of any part of his property,
without his having an opportunity of being heard............
Their Lordships have already indicated that,
in their view, the section does not contemplate any judicial proceeding, and
thus a decision against the appellant does not infringe the principles stated
in Bonaker v. Evans." (3) (1) Halsbury's Laws of England, 3rd Edn., Vol.
11, at p. 55,para.
(2) A.C. 341. 350.
(4) (1832) 2 C.
(3) 16 Q.B. 162, 171.J. 558.
107 The distinction between a legislative and
a judicial function is thus brought out in Cooley's Constitutional Limitations,
8th Edn., Vol. 1, ch. V under the caption of " the powers which the
legislative department may exercise ", at p. 185:" On general
principles, therefore, those inquiries, deliberations, orders, and decrees,
which are peculiar to such a department, must in their nature be judicial acts.
Nor can they be both judicial and
legislative; because a marked difference exists between the employment of
judicial and legislative tribunals. The former decide upon the legality of
claims and conduct, and the latter make rules upon which, in connection with
the constitution, those decisions should be founded. It is the province of
judges to determine what is the law upon; existing cases. In fine, the law is
applied by one, and made by the other. To do the first, therefore, is to
compare, the claims of parties with the law of the land before established-is
in its nature judicial act. But to do the last-to pass new rules for the
regulation of new controversies-is in its nature a legislative act; and if
these rules interfere with the past, or the present, find do not look wholly to
the future, they violate the definition of a law as " a rule of civil
conduct " because no rule of conduct can with consistency operate upon
what occurred before the rule itself was promulgated.
" It is the province of judicial power,
also to decide private disputes between or concerning persons; but of
legislative power to regulate public concerns, and to make laws for the benefit
and welfare of the State. Nor does the passage of private statutes, when'
lawful, are enacted on petition, or by the consent of all concerned; or else
they forbear to interfere with past translations and vested rights." The
following classic passage from the opinion of Holmes, J., in Prentis v.
Atlantic Coast Line Co. Ltd., (1), is very apposite in this context:
" A judicial inquiry investigates,
declares, and enforces liabilities as they stand on present or past facts and
under laws supposed already to exist. That is its purpose and end. Legislation,
on the other hand (1) (1908) 211 U.S. 210, 226-227 ; 53 L. Ed. 15o, 158, 159.
108 looks, to the future and changes existing
conditions by making a new rule, to be applied thereafter to all or some part
of those subject to its power. The establishment of a rate is the making of a
rule for the future, and therefore, is an act legislative not judicial in
That question depends not upon the character
of the body, but upon the character of the proceedings.
The nature of the final act determines the
nature of the previous enquiry." (See also Mitchell Coal & Coke Co. v.
Pennsylvania R. Co. (1) and Louisville & Nashville Railroad Company v.
Green Garrett (2) A practical difficulty however arises in thus characterising
the functions as legislative or judicial because the functions performed by
administrative agencies do not fall within watertight compartments. Stason and
Cooper in their treatises on " Cases and other materials on Administrative
Tribunals" point out:
One of the great difficulties of properly
classifying a particular function of ail administrative agency is that
frequently --and, indeed; typically-a single function has three aspects. It is
partly legislative, partly judicial and partly administrative. Consider, for
example, the function of rate-making. It has sometimes been characterised as
legislative, sometimes as judicial. In some aspects, actually, it involves
merely executive or administrative powers. For example, where the Interstate
Commerce Commission fixes a tariff of charges for any railroad, its function is
viewed as legislative. But where the question for decision is whether a
shipment of a mixture of coffee and chicory should be charged the rate
established for coffee or the lower rate established for chicory, the question
is more nearly judicial. On the other hand, where the problem is merely the calculation
of the total freight charges due for a particular shipment, the determination
can fairly be described as an administrative act." (1) (1913) 230 U.S.
247; 571. Ed. 1472, 1482.
(2) (1913) 231 U.S. 298 ; 58 L. Ed. 229, 239.
109 This difficulty is solved by the Court
considering I in a proper case whether the administrative agency performs a
predominantly legislative or judicial or administrative function and
determining its character accordingly. (Vide:
Village of Saratoga Springs v. Saratoga Gas,
Electric Light & Power Co. (1), and People ex rel. Central Park, North ((.,
East River R. Co. v.Willcox (2).
The function of the wage board in the United
Kingdom had been characterised as legislative in character by various text-book
Robson's Justice and Administrative Law, 3rd
Edn., states at p. 608 (foot-note):
" An example of a subordinate body of
this type is a Wage Council, which is not an administrative tribunal but a
subordinate legislative authority." Griffith's Principles of Administrative
Lam, contains the following passage at p. 39:
" The subordinate legislation which
occupies more space than any other subject relates to Wages Councils. By the
Wages Councils Act, 1945, the Minister of Labour and National Service was
empowered to establish by order Wages Councils to operate in industries and
trades. Six such orders were made in 1947. Wages Councils, under the Act, may
submit to the Minister detailed "wages regulations proposals" for
fixing remuneration and making provisions for holidays. The Minister then makes
orders embodying and giving effect to these proposals. In 1947, fifty-five such
orders were made, covering thirty-one different trades." Barbare Wootton
in " Social Foundations of Wage Policy;
Modern Methods of Wage Determination makes
the following observations at p. 88:
" Both arbitration tribunals and courts
of inquiry share with-one important difference-the tripartite structure of
statutory wage councils; they are composed of equal numbers of representatives
of employers and of workers under an independent chairman together with (in
some cases) additional independent members. The essential difference between
their structure and that of statutory wage authorities is that the (1) (1908)
191 New York 123.
(2) (1909) 194 New York 383.
110 representative members of the latter are
chosen from within the industry concerned, whereas employers and workers on
arbitration tribunal come from outside the industry whose disputes they have to
resolve; if in any case technical knowledge of a particular industry is
required, this is normally supplied by the help of assessors who take no part
in the final award. This difference between the constitution of wage boards and
that of arbitration tribunals clearly implies a corresponding distinction
between the legislative function of the former and the judicial function of the
latter. The wages board drafts laws for its own industry, whereas the
arbitration court gives judgment on matters submitted by others. The choice of
industrial arbitrators unconnected with the industries the merits of whose
claims they must pledge, is evidently intended as a guarantee that they, like
other judges, will be free from bias arising from personal interest ".
The High Court of the Commonwealth of
Australia has taken a similar view in Australian Boot Trade Employees
Federation v. Whybrow & Co. (1), in discussing an award made by the wages
board empowered by a State statute to fix minimum rates of wages. The test
applied for determining the character of that function may be stated in the
words of Issacs J. at p. 318:
" If the dispute is as to the relative
rights of parties as they rest on past or present circumstances, the award is
in the nature of a judgment, which might have been the decree of an ordinary
judicial tribunal acting Linder the ordinary judicial power. There the law
applicable to the case must be observed. If, however, the dispute is as to what
shall in the future be the mutual rights and responsibilities of the partiesin
other words, if no present rights 'are asserted or denied, but a future rule of
conduct is to be prescribed, thus creating new rights and obligations, with
sanctions for non-conformity-then the determination that so prescribes, call it
an award, or arbitration, determination, or decision or what you will, is
essentially of a legislative character, and limited only by the law which
authorises it. If, again, there are neither present (1)(1910) 10 C. L. R. 266,
111 rights asserted, nor a future rule of
conduct prescribed, but merely a fact ascertained necessary for the practical
effectuation of admitted rights, the proceeding, though called an arbitration,
is rather in the nature of an appraisement or ministerial act. " As
against this trend of opinion it has been urged that the decisions of the Wage
Councils in the shape of wage regulation proposals submitted to the minister in
Great Britain under the Wage Councils Act derive their sanction from the orders
made by the minister giving effect to these proposals; but for such orders of
the minister they would merely remain the determinations of the Wage Councils
and would not acquire any legislative character. In regard to the
determinations of the wage boards empowered by the statutes to fix the minimum
rates of wages in the Commonwealth of Australia also it is pointed out that
under the provisions of the Factories and Shops Act, 1905, of Victoria
"Every determination of any Special Board shall unless and until so
quashed......... have the like force, validity and effect as if such determination
had been enacted in this Act.............. thus investing the determination of
the boards with the characteristics of a legislative act.
Reference is made to the provisions of the
Fair Labour Standards Act of 1938 in the United States of America, where the
wages orders ultimately approved by the Administrator are subject to judicial
review in the Circui Courts of Appeals or in the United States courts of
appeals of the particular ]District and also subject to further review by the
Supreme Court of the United States of America on certification.
The Minimum Wages Act, 1948, in our country also provides for the committees,
sub-committees, advisory sub-committees, advisory boards and central advisory
boards for fixing minimum rates of wages and the recommendations of these
committees are forwarded to the appropriate Government who by notification in
the official gazette fix minimum rates of wages in respect of each scheduled
employment. The notification is a token of the approval by the appropriate
Government 112 of these recommendations of the Committees and invests them with
The recent amendment of the Bombay Industrial
Relations Act, 1946, empowers the State Government by notification in the
official Gazette to constitute for one or more industries a wage board for the
State and enjoins these wage boards to follow the same procedure as the
Industrial Court in respect of arbitration proceedings before it and appeals from
the decisions of these wage boards lie to the Industrial Courts which has
powers of superintendence and control over these wage boards and it cannot,
under the circumstances be urged that these wage boards perform any legislative
These are the two opposite points of view
which have been pressed before us and it is impossible to state that the
functions performed by the wage boards are necessarily of a legislative
character. It is no doubt true that their determinations bind not only the employers
and the employees in the present, but they also operate when accepted by the
appropriate government or authorities and notified in accordance with law, to
bind the future employers and employees in the industry. If that were the only'
consideration the dictum of Justice Holmes cited above would apply and the
functions performed by these wage boards would be invested with a legislative
character. This is however not all, and regard must be had to the provisions of
the statutes constituting the wage boards. If on a scrutiny of the provisions
in regard thereto one can come to the conclusion that they are appointed only
with a view to determine the relations between the employers and the employees
in the future in regard to the wages payable to the employees there would be
justification for holding that they were performing legislative functions. If,
however, on a consideration of all the relevant provisions of the statutes
bringing the wage boards into existence, it appears that the powers and
procedure exercised by them are assimilated to those of Industrial Tribunals or
their adjudications are subject to judicial review at the hands of higher
Tribunals exercisingjudicial or quasi-judicial 113 functions, it cannot be
predicated that these wage boards are exercising legislative functions. Whether
they exercise these functions or not is thus to be determined by the relevant
provisions of the statutes incorporating them and it would be impossible to lay
down any universal rule which would help in the' determination of this
Even if on the construction of the relevant
provisions of the statute we come to the conclusion that the functions
performed by a particular wage board are not of a legislative character, the
question still remains whether the functions exercised by them are
administrative in character or judicial or quasi-judicial in character, because
only in the latter event would their decision be amenable to the writ
jurisdiction or to the special leave jurisdiction above referred to.
There is no doubt that these wage boards are
not exercising purely judicial functions. They are not courts in the strict
sense of the term and the functions which they perform may at best be
quasi-judicial in character. The fact that they are administrative agencies set
up for the purpose of fixation of wages do not necessarily invest their
functions with an administrative character and in spite of their being
administrative bodies they can nevertheless be exercising quasi-judicial
functions if certain conditions are fulfilled.
The position in law has been thus summarised
in Halsbury's Laws of England, 3rd Ed., Vol. 11, at pp. 55-56:" The orders
of certiorari and prohibition will lie to bodies and persons other than courts
stricto sensu. Anybody of persons having legal authority to determine questions
affecting the rights of subjects, and having the duty to act judicially, is
subject to the controlling jurisdiction of the High Court of Justice, exercised
by means of these orders. It is not necessary that it should be a court; an
administrative body in ascertaining facts or law may be under a duty to act
judicially notwithstanding that its proceedings have none of the formalities
of, and are not in accordance 15 114 with the practice of, a court of law. It
is enough if it is exercising, after hearing evidence, judicial functions in
the sense that it has to decide on evidence between a proposal and an
opposition. A body may be under a, duty, however, to act judicially (and
subject to control by means of these orders) although there is no form of lies
inter parties before it; it is enough that it should have to determine a
question solely on the facts of the particular case, solely on the evidence
before it, apart from questions of policy or any other extraneous considerations."
" Moreover an administrative body, whose decision is actuated in whole or
in part by questions of policy, may be under a duty to act judicially in the
course of arriving at that decision. Thus, if in order to arrive at the
decision, the body concerned had to consider proposals and objections and
consider evidence, if at some stage of the proceedings leading up to the
decision there was something in the nature of a lies before it, then in the
course of such consideration and at that stage the body would be under a duty
to act judicially. If, on the other hand, an administrative body in arriving at
its decision has before it at no stage any form of lis and throughout has to
consider the question from the point of view of policy and expediency, it cannot
be said that it is under a duty at any time to act judicially." (See also
the decision of this Court in Nagendra Nath Bora v. Commissioner of Hills
Division and Appeals, Assam (1).
In order therefore to determine whether an
administrative body is exercising a quasi-judicial function, it would be
necessary to examine in the first instance, whether it has to decide on
evidence between a proposal and an opposition and secondly, whether it is under
a duty to act judicially in the matter of arriving at its decision.
" The duty to act judicially may arise
in widely differing circumstances which it would be impossible to attempt to
define exhaustively. The question whether or not there is a duty to act
judicially must be decided (1)  S.C.R. 1240.
115 in each case in the light of the
circumstances of the particular case and the construction of the particular
statute, with the assistance of the general principles already set out."
(Ibid, para. 115).
The decision in R. v. Manchester Legal Aid
Committee Ex parte R. A. Brand & Co. Ltd. (1), lays down when an
administrative body can be said to have a duty to act judicially:
" The true view, as it seems to us, is
that the duty to act judicially may arise in widely different circumstances
which it would be impossible, and, indeed, inadvisable, to attempt to define
exhaustively. Where the decision is that of a court, then, unless, as in the
case, for instance, of justices granting excise licences, it is acting in a
purely ministerial capacity, it is clearly under a duty to act judicially.
When, on the other hand, the decision is that of an administrative body and is
actuated in whole or in part by questions of policy, the duty to act judicially
may -arise in the course of arriving at that decision. Thus, if, in order to
arrive at the decision, the body concerned had to consider proposals, and
objections and consider evidence, then there is the duty to act judicially in
the course of that inquiry. That, as it seems to us, is the true basis of the
decision in Errington v. Minister of Health
(See also Rex v. The London Country Council:
Ex parte Entertainments Protection Association Ld. (3)...............
" Further, an administrative body in
ascertaining facts or law may be under a duty to act judicially notwithstanding.
that its proceedings have none of the formalities of and are not in accordance
with the practice of a court of law." Vide Board of Education v. Rice (4)
" More recently it has been held by this Court on ,many occasions that
certiorari will lie to quash the decision of rent control tribunals, and this
not with(1)  2 Q.B. 413, 428, 429, 430.
(2)  1 K.B. 249.
(3)  2 K.B. 215, 233-4.
(4)  A.C. 179, 182.
116 standing that such a tribunal is entitled
to act on its own knowledge and information, without evidence unless submitted,
and without a hearing except on notice from a party; see Rex v. Brighton. and
Area Rent Tribunal (1).
" If, on the other hand, an
administrative body in arriving at its decision at no stage has before it any
form of lis and throughout has to consider the question from the point of view
of policy and expediency, it cannot be said that it is under a duty at any
stage to act judicially: Compare Franklin v. Minister of Town and Country
It is strenuously urged before us by learned
counsel for the petitioners that if the functions which the wage boards perform
in the matter of fixation of the rates of wages are considered in the light of
the principles cited above, it would appear that as between the employers, on
the one hand, and the employees, on the other, there is a proposition and
opposition. The employees demand that a particular statutory minimum wage
should be fixed and the scales of wages should also be determined in a
particular manner. The employers on their part would maintain that the status
quo should continue or that, in any event, much less than the statutory minimum
wage demanded by the employees should be fixed and also that the scales of wages
should be fixed on a gradation which is much less than or in any event,
different from that suggested by the employees. The employees may say that
certain factors which are material in the fixation of wages and which affect
the employees should be considered as determinative of the rates of wages while
the importance of these factors may be sought to be minimized by the employers
who might put forward certain other factors affecting them, in their turn, as
determinative of those rates, the importance of which may be sought to be
minimized by the employees on the other hand. All these would create
proposition and opposition on both sides with the result that a lis would arise
between them. The determination of these (1)  2 K.B410.
(2)  A.C. 87, 102.
117 points at issue would have to be' arrived
at by the wage boards and the wage boards could only do so after collecting
proper data and materials and hearing evidence in that behalf. If the functions
performed by the wage board would thus consist of the determination of the
issues as between a proposition and an opposition on data and materials
gathered by the board in answers to the questionnaire issued to all parties
interested and the evidence led before it, there is no doubt that there would
be imported in the proceedings of the wage board a duty to act judicially and
the functions performed by the wage board would be quasijudicial in character.
It has been on the other hand urged before us by the learned counsel for the
respondents that the very constitution of the wage boards is against the
fundamental principle of jurisprudence which postulates that no man should be a
judge in his own cause. It was laid down by the House of Lords in Franklin v.
Minister of Town and Country Planning (1) at p. 103:
" My Lords, I could wish that the use of
the word bias " should be confined to its proper sphere. Its proper
significance, in my opinion, is to denote a departure from the standard of
even-handed justice which the law requires from those who occupy judicial
office, or those who are commonly regarded as holding a quasi-judicial office,
such as an arbitrator. The reason for this clearly is, that having to
adjudicate as between two or more parties, he must come to his adjudication
with an independent mind, without any inclination or bias towards one side or
other in the dispute." The representatives of the employers and the
representatives of the employees who are appointed on the wage board along with
an independent chairman and some other members, it is submitted, would
necessarily have a bias in favour of those whom they represent and therefore
would not be competent to be judges and the wage board thus constituted could
hardly be called a judicial body.
There is considerable force in these contentions,
but (1)  A.C. 87,102.
118 we do not feel called upon to express our
final opinion on this question in view of the conclusion which we have
hereafter reached in regard to the ultra vires character of the decision of the
Wage Board itself. We are however bound to observe that whatever be the
character of the functions performed by the wage boards whether they be
legislative or quasi-judicial, if proper safeguards are adopted of the nature
discussed earlier, e. g., provision for judicial review or the adopting of the
procedure as in the case of the recommendations of the wage councils in the
United Kingdom, or the reports of the advisory committees which come to be
considered by the administrator under the Fair Labour Standards Act of 1938 in
the United States of America, no objection could ever be urged against the
determinations of the wage boards thus arrived at on the score of the
principles of natural justice having been violated.
We now proceed to consider how far the
impugned Act violates the fundamental rights of the petitioners.
Re : Article 19 (1) (a).
Art. 19 (1) (a) guarantees to all citizens
the right to freedom of speech and expression. it has, however, got to be read
along with Art. 19 (2) which lays down certain constitutionally permissible
limitations on the exercise of that right. Art. 19 (2) as substituted by the
Constitution (First Amendment) Act, 1951, with retrospective effect reads as
" Nothing in sub-clause (a) of clause
(1) shall affect the operation of any existing law, or prevent the State from
making any law, in so far as such law imposes reasonable restrictions on the
exercise of the right conferred by the said sub-clause in the interests 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." If any limitation on the exercise of the
fundamental right under Art. 19 (1) (a) does not fall within the four corners
of Art. 19 (2) it cannot be upheld.
Freedom of speech and expression includes
within its scope the freedom of the press and it would be 119 apposite here to
refer to the following passages from " Freedom of the Press-A Framework of
Principles " (Report of the Commission on Freedom of Press in the United
States of America).
The General Meaning of Freedom:
To be free is to have the use of one's powers
of action (i) without restraint or control from outside and (ii) with whatever
means or equipment the action requires.
" The primary suggestion of the term
" freedom is the negative one, the absence of external interference
whether to suppress or to constrain. To be free is essentially to be free from
something-some arbitrary impediment to action, some dominating power or authority.
And so long as it can be taken for granted that the unhindered person has all
he needs to act with which is usually the case the negative meaning remains the
chief element of the conception.
" But since freedom is for action, and
action is for an end, the positive kernel of freedom lies in the ability to
achieve the end; to be free means to be free for some accomplishment. And this
implies command of the means to achieve the end. Unless the equipment necessary
for effective action is at hand, unrestraint may be a mockery of
freedom.................. Unrestraint without equipment is not liberty for any
end which demands equipment." (pp. 5455).
Resulting Conception of Freedom of the Press:
" The emerging conception of freedom of
the press may be summarised as follows,% As with all freedoms, press freedom
means freedom from and freedom for. A free press is free from compulsions from
whatever source, governmental or social, external or internal. From
compulsions, not from pressures; for no press can be free from pressures except
in a moribund society empty of contending forces and beliefs. These pressures,
however, if they are persistent and distorting-as financial, clerical, popular,
institutional pressures may become-approach compulsion; and something is then lost
from effective 120 freedom which the press and its public must unite to
restore., " A free press is free for the expression of opinion in all its
phases. It is free for the achievement of those goals of press service on which
its own ideals and the requirements of the community combine and which existing
techniques make possible. For these ends it must have full command of technical
resources, financial strength, reasonable access to sources of information at
home and abroad, and the necessary facilities for bringing information to the
national market. The press must grow to the measure of this market."(p.
There is paucity of authority in India on the
nature, scope and extent of this fundamental right to freedom of speech and
expression enshrined in Art. 19 (1) (a) of the Constitution. The first case
which came up for decision before this court was that of Ramesh Thaper v. The
State of Madras (1). It was a case of a ban on the entry and circulation of the
appellant's journal in the State of Madras under the provisions of section 9
(1-A) of the Madras Maintenance of Public Order Act, 1949, and it was observed
by Patanjali Sastri J.
(as he then was) at p. 597:
" There can be no doubt that freedom of
speech and expression includes freedom of propagation of ideas, and that
freedom is ensured by the freedom of circulation. " Liberty of circulation
is as essential to that freedom as the liberty of publication. Indeed, without
circulation the publication would be of little value.": Ex parte Jackson
(2). See also Lovell V. City of Griffin (3).
Brij Bhushan & Anr. v. The State, of
Delhi (4) was the next case which came up for decision before this Court and it
concerned the constitutionality of section 7 (i) (e) of the East Punjab Public
Safety Act, 1949. It was a provision for the imposition of pre-censorship on a
journal. Patanjali Sastri J. (as he then was) (1)  S.C.R594, 597.
(2) (1877)96 U-S727 ; 24 L. Ed. 877.
(3) (1937) 303 U-S444 ; 82 L. Ed. 949.
(4)  S.C.R. 605, 6o8.
121 who delivered the majority judgment
observed at p. 608:" There can be little doubt that the imposition of
precensorship on a journal is a restriction on the liberty of the press which
is an essential part of the right to freedom of speech and expression declared
by Art. 19 (1) (a). As pointed out by Blackstone in his Commentaries " the
liberty of the Press consists in laying no previous restraint upon
publications, and not in freedom from censure for criminal matter when
published. Every freeman has an undoubted right to lay what sentiments he
Pleases before the public; to forbid this, is to destroy the freedom of the
press. (Blackstone's Commentaries, Vol. IV, pp. 151, 152)." These are the
only two decisions of this Court which involve the interpretation of Art. 19
(1) (a) and they only lay down that the freedom of speech and expression
includes freedom of propagation of ideas which freedom is ensured by the
freedom of circulation and that the liberty of the press is an essential part
of the right to freedom of speech and expression and that liberty of the press
consists in allowing no previous restraint upon publication.
There is however, a considerable body of
authority to be found in the decisions of the Supreme Court of the United
States of America bearing on this concept of the freedom of speech and
expression. Amendment I of that Constitution lays down:
" Congress shall make no
law.................. abridging the freedom of speech or of the press
............" It is trite to observe that the fundamental right to the
freedom of speech and expression enshrined in Art. 19(1)(a) of our Constitution
is based on these provisions in Amendment I of the Constitution of the United
States of America and it would be therefore legitimate and proper to refer to
those decisions of the Supreme Court of the United States of America in order
to appreciate the true nature, scope and extent of this right in spite of the
warning administered by this Court against the use of American and other cases,
(Vide State of Travancore-Cochin & Ors. v. Bombay Co.
16 122 Ltd. (1) and State of Bombay v. R.M.D.
Grosjean v. American Press Co. (3), was a
case where a statute imposed a license tax on the business of publishing
advertisements and it was observed at p. 668:
" The evils to be prevented were not the
censorship of the press merely, but any action of the Government by means of
which it might prevent such free and general discussion of public matters as
seems absolutely essential to prepare the people for an intelligent exercise,
of their rights as citizens." (Vide Cooley's Constitutional Limitations,
8th Edn., Vol. 11, p. 886).
The statute was there struck down as
unconstitutional because in the light of its history and of its present setting
it was seen to be a deliberate and calculated device in the guise of a tax to
limit the circulation of information to which the public was entitled in virtue
of the constitutional guarantees.
The following passage from the dissenting
opinion in The Associated Press v. The National Labour Relations Board (4) is
" If the freedom of the press does not
include the right to adopt and pursue a policy without governmental
restriction, it is a misnomer to call it freedom. And we may as well deny at
once the right to the press freely to adopt a policy and pursue it, as to
concede that right and deny the liberty to exercise an uncensored judgment in
respect of the employment and discharge of the agents through whom the policy
is to be effectuated." It was also observed there at p. 965:
" Due regard for the constitutional
guarantee requires that the publisher or agency of the publisher of news shall
be free from restraint in respect of employment in the editorial force."
Schneider v. Irvingtor (5) was concerned with the effect of the Municipal
Regulations against littering of (1)  S.C. R. I I 12, I 120. (2) 
S. C. R. 87 4, 918.
(3) (1935) 297 U.S. 233, 249; go L. Ed. 66o,
(4) (1936) 30I U.S. 103. 136; 81 L. Ed. 953.
(5) (1939) 308 U-S147; 84 L. Ed. 155, 164.
123 streets. In the course of its decision
the Court made the following observations at p. 164:
" This court has characterized the
freedom of speech and that of the press as fundamental personal rights and
liberties. The phrase is not an empty one and was not lightly used. It reflects
the belief of the framers of the Constitution that exercise of the rights lies
at the foundation of free government by free press. It stresses, as do many
opinions of this court, the importance of preventing the restriction of
enjoyment of these liberties." Non-interference by the State with this
right was emphasized in Thomas v. Collins (1) at p. 448:" But it cannot be
the duty, because it is not the right, of the State to protect the public
against false doctrine. The very purpose of the First Amendment is to foreclose
public authority from I assuming a guardianship of the public mind through
regulating the press, speech, and religion. In this field every person must be
his own watchman for truth, because the forefathers did not trust any
Government to separate the true from the false for us...........
In 93 L. Ed. at p. 1151 is given a summary of
the decisions of the Supreme Court of the United States of America on this
subject under the heading " The Supreme Court and the right of Free Speech
and Press " and it contains at p. 1153 the following passage under the
caption " Right in General :
Freedom from Censorship and Punishment
" The freedom of speech and of press are
fundamental personal rights & liberties, the exercise of which lies at the
foundation of free Government by free men............
The very purpose of the first Amendment is to
foreclose public authority from assuming a guardianship of the public mind
through regulating the press, speech, and religion; it rests on the assumption
that the widest possible dissemination of information from diverse and
antagonistic sources is essential to the welfare of the public." The
dissenting opinion of Douglas J. in Beauharnais v.
Illinois(2) contains the following at p. 943:
(1) (1944) 323 U-S516, 545 ; 89 L. Ed430,
(2) (1951) 313 U.S. 250, 285; 96 L. Ed. 919,
124 There is room for regulation of the ways
and means of invading privacy. No such leeway is granted the invasion of the
right of free speech guaranteed by the First Amendment.
Until recent years that had been the course
and direction of constitutional law. Yet recently the Court in this and other
cases has engraved the right of regulation onto the First Amendment by placing
in the hands of the legislative branch the right to regulate " within
reasonable limits " the right of free speech. This to me is an ominous and
alarming trend. The free trade in ideas which the framers of the Constitution
visualised disappears. In its place there is substituted a new orthodoxy-an
orthodoxy that changes with the whims of the age or the day, an orthodoxy which
the majority by solemn judgment proclaims to be essential to the safety,
welfare, security, morality, or health of Society. Free speech in the
constitutional sense disappears. Limits are drawn-limits dictated by
expediency, political opinion, prejudices or some other desideratum of
legislative action." It is clear from the above that in the United States
(a) the freedom of speech comprehends the
freedom of press and the freedom of speech and press are fundamental personal
rights of the citizens;
(b)the freedom of the press rests on the
assumption that the widest possible dissemination of information from diverse
and antagonistic sources is essential to the welfare of the public;
(c) Such freedom is the foundation of free
Government of a free people;
(d)the purpose of such a guarantee is to
prevent public authorities from assuming the guardianship of the public mind
and (e)freedom of press involves freedom of employment or nonemployment of the
necessary means of exercising this right or in other words, freedom from
restriction in respect of employment in the editorial force.
This is the concept of the freedom of speech
and expression as it obtains in the United States of America 125 and the
necessary corollary thereof is that no measure can be enacted which would have
the effect of imposing a precensorship, curtailing the circulation or
restricting the choice of employment or unemployment in the editorial force.
Such a measure would certainly tend to
infringe the freedom of speech and expression and would therefore be liable to
be struck down as unconstitutional.
The press is however, not immune from. the
ordinary forms of taxation for support of the Government nor from the
application of the general laws relating to industrial relations. It was
observed in Grosjean v. American Press Co. (1):
" It is not intended by anything we have
said to suggest that the owners of newspapers are immune from any of the
ordinary forms of taxation for support of the Government;
But this is not an ordinary form of tax but
one single in kind with a long history of hostile misuse against the freedom of
" The predominant purpose of the grant
of immunity here invoked was to preserve an untrammeled press as a vocal source
of public information. The newspapers, magazines and other journals of the
country, it is safe to say, have shed and continue to shed, more light on the
public and business affairs of the nation than any other instrumentality of
publicity; and since informed public opinion is the most patent of all
restraints upon misgovernment, the suppression or abridgment of the publicity
afforded by a free press cannot be regarded otherwise than with gave concern.
The tax here involved is bad not because it takes money from the pockets of the
appellees. If that were all, a wholly different question would be presented. It
is bad: Because, in the light of its history and of its present setting, it is
seen to be a deliberate and calculated device in the guise of a tax to limit
the circulation of information to which the public is entitled in virtue of the
constitutional guarantees. A free press stands as one of the great interpreters
between the Government and the people. To allow it to be fettered is to fetter
ourselves." (1) (1935) 297 U-S233, 249; 80 L. Ed. 660, 668.
126 In The Associated Press v. National
Labour Relations Board (1), it was held that the freedom of the press safeguarded
by the First Amendment was not abridged by the application in the case of an
editor employed by the Associated Press to determine the news value of the
items received and to rewrite them for transmission to members of the
association throughout the United States who must function without bias and
prejudice, of the provisions of the National Labour Relations Act which
inhibited an employer from discharging an employee because of union activities.
It was further observed at p. 960:
" So it is said that any regulation
protective of union activities, or the right collectively to bargain on the
part of such employees, is necessarily an invalid invasion of the freedom of
the press. We think that the contention not only has no relevance to the
circumstances of the instant case but is an unsound, generalization."
Murdock v. Pennsylvania (2), was a case of a license fee for the sale of
religious books and Mr. Justice Frankfurter in his dissenting opinion at p.
" A tax upon newspaper publishing is not
invalid simply because it falls upon -the exercise of a constitutional right.
Such a tax might be invalid if it invidiously singled out newspaper publishing
for bearing the burden of taxation or imposed upon them in such ways as to
encroach on the essential scope of a free press. If the Court could justifiably
hold that the tax measures in these cases were vulnerable on that ground, I
would unreservedly agree. But the Court has not done so, and indeed could not.
" In Oklahoma Press Publishing Co. v. Walling (1), and in Mabee v. White
Planis Publishing Co. (4) the Federal Fair Labour Standards Act was held
applicable to the press and it was observed in the former case at p. 621:
" Here there was no singling out of the
press for treatment different from that accorded other business in general.
Rather the Act's purpose was to place (1)
(1936) 301 U.S. 103,136; 81 L. Ed. 953, 963.
(2) (1942) 319 U-S105, 136 ; 87 L. Ed. 1292,
(3) (1945) 327 U. S. 186. 194; go L. Ed. 614,
(4) (1945) 327 U. S. 178; 90 L. Ed. 607.
127 publishers of newspapers upon the same
plane with other businesses and the exemption for small newspapers had the same
object. Nothing in the Grosjean case (1), forbids Congress to exempt some
publishers because of size from either a tax or a regulation which would be
valid if applied to all." The Constitution of the United States of
America--Analysis and Interpretation-Prepared by the Legislative Reference
Service, Library of Congress, summarises the position thus at p. 792 :
" The Supreme Court, citing the fact
that the American Revolution " really began when............... that
Government (of England) sent stamps for newspaper duties to the American
colonies " has been alert to the possible uses of taxation as a method of
suppressing objectionable publications. Persons engaged in the dissemination of
ideas are, to be sure, subject to ordinary forms of taxation in like manner as
other persons. With respect to license or privilege taxes, however, they stand
on a different footing.
Their privilege is granted by the
Constitution and cannot be withheld by either State or Federal Government.
" The application to newspapers of the
Anti-Trust Laws, the National Labour Relations Act, or the Fair Labour
Standards Act, does not abridge the freedom of the press." The Laws
regulating payment of wages have similarly been held as not abridging the
freedom of speech and expression and the following observations in the same
publication (at p. 988) in regard to the Minimum Wage Laws are apposite:
"MINIMUM WAGE LAWS: The theory that a
law prescribing minimum wages for women and children violates due process by
impairing freedom of contract was finally discarded in 1937 (West Coast Hotel
Co. v. Parrish, 300 U. S. 379). The current theory of the Court, particularly
when labor is the beneficiary of legislation, was recently stated by Justice
Douglas for a majority of the Court, in the following terms:
" Our recent decisions make plain that
we do not sit as a super-legislature to weigh the wisdom of legislation nor (1)
(1935) 297 'U-S. 233. 249; 89 L. Ed. 660, 668.
128 to decide whether the policy which it
expresses offends the public welfare............ But the state legislatures
have constitutional authority to experiment with new techniques;
they are entitled to their own standard of
the public welfare; they may within extremely broad ,limits control practice;
in the business-labor field, so long as specific constitutional prohibitions
are not violated and so long as conflicts with valid and controlling federal
laws are avoided (Day-Brite Lighting, Inc. v. Missouri, 342 U. S.
421, 423 (1952) )." While therefore no
such immunity from the general laws can be claimed by the press it would
certainly not be legitimate to subject the press to laws which take away or
abridge the freedom of speech and expression or which would curtail circulation
and thereby narrow the scope of dissemination of information, or fetter its
freedom to choose its means of exercising the right or would undermine its
independence by driving it to seek Government aid. Laws which single out the
press for laying upon it excessive and prohibitive burdens which would restrict
the circulation, impose a penalty on its right to choose the instruments for
its exercise or to seek an alternative media, prevent newspapers from being
started and ultimately drive the press to seek Government aid in order to
survive, would therefore be struck down as unconstitutional.
Such laws would not be saved by Art. 19(2) of
the Constitution. This Court had occasion to consider the scope of Art. 19(2)
in Brij Bhushan & Anr. v. The State of Delhi (1), where Fazl Ali J. in his
dissenting judgment observed at p. 619.
" It must be recognized that freedom of
speech and expression is one of the most valuable rights guaranteed to a
citizen by the Constitution and should be jealously guarded by the Court. It
must also be recognised that free political discussion is essential for the
proper functioning of a democratic government, and the tendency of the modern
jurists is to deprecate censorship though they all agree that " liberty of
the press " is not to be confused with its " licentiousness (1)
[1950) S.C.R. 605, 608.
129 But the Constitution itself has
prescribed certain limits and this Court is only called upon to see whether a
particular case comes within those limits. " Unless, therefore, a law
enacted by the Legislature comes squarely within the provisions of Art. 19 (2)
it would not be saved and would be struck down as' unconstitutional on the
score of its violating the fundamental right of the petitioners under Art. 19
In the present case it is obvious that the
only justification for the enactment of the impugned Act is that it imposes
reasonable restrictions in the interests of a section of the general public,
viz., the working journalists and other persons employed in the newspaper
It does not fall within any of the categories
specified in Art. 19 (2), viz., " In the interests 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.
It was contended before us by the learned
Attorney-General that it was only legislation directly dealing with the right
mentioned in Art. 19 (1) (a) that was protected by it. If the legislation was
not a direct legislation on the subject " Art. 19 (1) (a) would have no
application, the test being not the effect or result of legislation but its
subjectmatter. In support of his contention he relied upon the following
observations of Kania C. J. in A. K. Gopalan v.
The State of Madras (1).
" As the preventive detention order
results in the detention of the applicant in a cell it was contended on his
behalf that the rights specified in article 19 (1), (a), (b), (c), (d), (e) and
(g) have been infringed. It was argued that because of his detention he cannot
have a free right to speech as and where he, desired and the (1) S.C.R.
17 130 same argument was urged in respect of
the rest of the rights mentioned in sub-clauses (b), (c), (d), (e) and (g).
Although this argument is advanced in a case
which deals with preventive detention, if correct, it should be applicable in
the case of punitive detention also to any one sentenced to a term of
imprisonment Linder the relevant section of the Indian Penal Code. So
considered, the argument must clearly be rejected In spite of the saving
clauses (2) to (5), permitting abridgement of the rights connected with each of
them punitive detention under several sections of the Penal Code, e. g., for
theft,, cheating, forgery and even ordinary assault, will be illegal. Unless
such conclusion necessarily follows front the article, it is obvious that such
construction should be avoided. In my opinion, such result is clearly not the
outcome of the Constitution. The article has to be read. without any proconceived
notions. So read, it clearly means that the legislation to be examined must be
directly in respect of one of the rights mentioned in the sub-clauses. -If
there is a legislation directly attempting to control a citizen's freedom of
speech or expression, or his right to assemble peaceably and without arms,
etc,, the question whether that legislation is saved by the relevant saving
clause of article 19 will arise. If, however, the legislation is not directly
in respect of any of these subjects, but as a result of the operation of other
legislation, -for instance, for punitive or preventive detention, his right
under any of these sub-clauses is abridged, the question of the application of
article 19 does not arise. The true approach is only to consider the directness
of the legislation and not what will be the result of the detention otherwise
valid, on the mode of the detent's life. On that short ground, in my opinion,
this argument about the infringement of the rights mentioned in article 19 (1)
generally must fail. Any other construction put on the article, it seems to me,
will be unreasonable." This opinion was expressed by Kania C. J. alone,
the other learned judges forming the Bench not expressing themselves on this
question. This passage was, however cited, with approval by a Bench of this 131
Court in Ram Singh & Ors. v. The State of Delhi (1). It was held by the
Full Court in that case that though personal liberty is sufficiently
comprehensive to include the freedoms enumerated in Art. 19 (1) and its
deprivation would result in the extinction of these freedoms, the Constitution
his treated these constitutional liberties as distinct fundamental rights and
made separate provisions in Arts. 19, 21 and 22 ,is to the limitations and
conditions subject to which alone they could be taken away or abridged.
Consequently, even though a law which
restricts the freedom of speech and expression is not directed solely against
the, undermining of security of the State or its overthrow but is concerned
generally in the interests of public order may not fait within the reservation
of cl. (2) of Art. 19 and may therefore be void, an order of preventive
detention cannot be held to be, invalid merely because:
" the detention is made with a view to
prevent the making of speeches prejudicial to the, maintenance of public
order................." This was also a case of detention under the
Preventive Detention Act and the detention of the detenu had been ordered with
a view to prevent him from making speeches prejudicial to the maintenance of
public order. Public order was not one of the categories mentioned in Art. 19
(2) as it then stood, and any restriction imposed upon the freedom of speech
and expression could nit be justified on that ground, the only relevant ground
in that connection then being undermining of the security of the State or its
overthrow. A restriction on the freedom of speech and expression ill the maintenance
of public order would therefore not have been justified under Art. 19 (2) and
if the Court had come to the conclusion that there was an infringement of the
right of freedom of speech and expression the order could not have been saved
under Art. 19 (2). The Court however, took the view that the direct object of
the order was preventive detention and not the infringement of the right of
freedom of speech and expression, which was merely (1) S.C.R.451, 455.
132 consequential upon the detention of the
detenu and therefore upheld the validity of the order. It was, therefore, urged
by the learned Attorney-General that the object of the impugned Act was only to
regulate certain conditions of service of working journalists and other persons
employed in the newspaper establishments and not to take away or abridge the
right of freedom of speech and expression enjoyed by the petitioners and that
therefore the impugned Act could not come within the prohibition of Art. 19 (1)
(a) read with.
Art. 13 (2) of the Constitution.
It was contended, on the other hand, on
behalf of the petitioners that the Court has got to look at the true nature and
character of the legislation and judge its substance and not its form, or in
other words, its effect and operation. It was pointed out that the impugned Act
viewed as a whole was one to regulate the employment of the necessary organs of
newspaper publications and therefore related to the freedom of the Press and as
such came within the prohibition. Reliance was placed in this behalf on the
following passage in Minnesota Ex Rel. Olson (1):
" With respect to these contentions it
is enough to say that in passing upon constitutional questions the Court has
regard to substance and not to mere matters of form, and that, in accordance
with familiar principles, the statute must be tested by its operation and
effect." The following observations of Mahajan J. (as he then was) in
Dwarkadas Shrinivas of Bombay v. The Sholapur Spinning and Weaving Co., Ltd.
(2) were also relied upon:
" In order to decide these issues it is
necessary to examine with some strictness the substance of the legislation for
the purpose of determining _what it is that the legislature has really done;
the Court, when such questions arise, is not overpersuaded by the mere
appearance of the legislation.
In relation to Constitutional prohibitions
binding a legislature it is clear that the legislature cannot disobey the
prohibitions merely (1)(1930) 283 U.S. 697, 708; 75 L. Ed. 1357, 1363.
(2) S.C.R. 674, 683.
133 by employing indirect method of achieving
exactly the same result. Therefore, in all such cases the court has to look
behind the names, forms and appearances to discover the true character and
nature of the legislation." The impugned Act is as its long title shows an
act to regulate certain conditions of service of working journalists and other
persons employed in newspaper establishments and in the very forefront of the
Act, the Industrial
Disputes Act, 1947, is by s. 3 made applicable to working journalists with
certain modification in connection with the application of s. 25F of that Act.
The rest of the provisions contained in ch. II concerned themselves with the
payment of gratuity, hours of work and leave and fixation of wages of the
-working journalists. The regulation of the conditions of service is thus the
main object which is sought to be achieved by the impugned Act.
Chapter III of the Act applies the provisions
of the Industrial
Employment (Standing Orders) Act, 1946, and the Employees' Provident Funds Act, 1952, to all the employees
of the newspaper establishments wherein twenty or more newspaper employees are
employed and covers working journalists as well as other employees in the
employ of the newspaper establishments. The miscellaneous provisions contained
in ch. IV are designed merely to implement or to carry out the provisions of
the main part of. the Act and they do not make any difference so far as the
effect and operation of the Act is concerned. If this is the true nature of the
Act, it is impossible to say that the Act was designed to affect the freedom of
speech and expression enjoyed by the petitioners or that was its necessary
effect and operation. It was conceded in the course of the arguments that if a
general law in regard to the industrial or labour relations had been applied to
the press industry as a whole no exception could have been taken to it. If the
matter had rested with the application of the Industrial Disputes
Act, 1947, to the working journalists or with the application of the Industrial
Employment (Standing Orders) Act, 1946, or the Employees' Provident Fund,% Act, 1952, to them no
exception could have been taken to this 134 measure. It was, however, urged
that apart from the application of these general laws to the working
journalists, there are provisions enacted in the impugned Act in relation to
payment of gratuity, hours of work, leave and fixation of the rates of wages
which are absolutely special to the press industry qua the working journalists
and they have the effect of singling out the press industry by creating a class
of privileged workers with benefits and rights which have not been conferred
upon other employees and the provisions contained therein have the effect of
laying a direct and preferential burden on the press, have a tendency to
curtail the circulation and thereby narrow the scope of dissemination of
information, fetter the petitioner's freedom to choose the means of exercising
their right and are likely to undermine the independence of the press by having
to seek Government aid.
It is obvious that the enactment of this
measure is for the amelioration of the conditions of the workmen in the
newspaper industry. It would not be possible for the State to take up all the
industries together and even as a matter of policy it would be expedient to
take the industries one by one. Even in regard to the workmen employed it would
be equally expedient to take a class of employees who stand in a separate
category by themselves for the purpose of benefiting them in the manner
contemplated. This circumstance by itself would therefore not be indicative of
any undue preference or a prejudicial treatment being meted out to that
particular industry, the main object being the amelioration of the conditions
of those workmen. It could not also be said that there was any ulterior motive
behind the enactment of such a measure because the employers may have to share
a greater financial burden than before or that the working of the industry may
be rendered more difficult than before. These are all incidental disadvantages
which may manifest themselves in the future working of the industry, but it
could not be said that the Legislature in enacting that measure was aiming at
these disadvantages when it was trying to ameliorate the 135 conditions of the
workmen. Those employers who are favourably situated, may not feel the strain
at all while those of them who are marginally situated may not be able to bear
the strain and may in conceivable cases have to disappear 'after closing down
their establishments. That, however, would be a consequence. which would be
extraneous and not within the contemplation of the Legislature. 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 petitioners' 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.
Even though the impugned Act enacts measures
for the benefit of the working journalists who are employed in newspaper
establishments, the working journalists are but the vocal organs and the
necessary agencies for the exercise of the right of free speech and expression,
and any legislation directed towards the amelioration of their conditions of
service must necessarily affect the newspaper establishments and have its
repercussions on the freedom of Press. The impugned Act can therefore be
legitimately characterized as a measure which affects the press, and if the
intention or the proximate effect and operation of the Act was such 136 as to
bring it within the mischief of Art. 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 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
relation-, 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 Art. 19(1) (g). Suffice it to say that so far as
Art. 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.
Re: Article (19(1) (g).
The fundamental right of the petitioners
herein is the right to carry on any occupation, trade or business.
This freedom also is hemmed in by limitations
which are to be found in Art. 19(6), which in so far as it is relevant for our
" Nothing in sub-clause (g) of the said
clause shall affect the operation of any existing law in so far as it imposes,
or prevent the State from making any law imposing, in the interests of the
general public, reasonable restrictions on the exercise of the right, conferred
by the said subclause," 137 The contention under this head is thus
elaborated on behalf of the petitioners:
1.The impugned Act imposes unreasonable
restrictions on the freedom to carry on business:
(a) in empowering the fixation of rates of
wages on criteria relevant only for fixation of minimum, wages;
(b)in empowering fixation of wages, grant of
gratuity and compensation without making it incumbent on the Board to consider
the major factor of the capacity of the industry to pay;
(c)in authorizing the Board to have. regard
to not what is relevant for such fixation but to what the Board deems relevant
for the purpose; and (d)in providing for a procedure which does not compel the
Board to conform to the rules under the Industrial Disputes Act, 1947, thus permitting the Board to follow any arbitrary
procedure violating the principle of audi alteram partem.
2.The restrictions enumerated above in so far
as they affect the destruction of the petitioners' business exceed the bounds
of permissible legislation under Art. 19(1)(g).
The unreasonableness of the restriction is
further sought to be emphasized by pointing out that under s. 12 of the
impugned Act, the decision of the Board is declared binding on all employers,
though the working journalists are not bound by the same and are entitled, if
they are dissatisfied with it, to agitate for further revision by raising
industrial disputes between themselves and their employers and having them
adjudicated under the Industrial
Disputes Act, 1947.
The test of reasonable restrictions which can
be imposed on the fundamental right enshrined in Art. 19(1)(g) has been laid
down by this Court in two decisions:
In Chintaman Rao v. The State of Madhya
Pradesh(1) Mahajan J. (as he then was) observed at p. 763 :
"The phrase "reasonable
restriction" connotes that the limitation imposed on a. person in
enjoyment (1)  S.C.R. 759, 763.
138 of the right should not be arbitrary or
of an excessive nature, beyond what is required in the interests of the public.
The word " reasonable " implies intelligent care and deliberation,
that is, the choice of a course which reason dictates. Legislation which
arbitrarily or excessively invades the right cannot be said to contain the
quality of reasonableness and unless it strikes a proper balance between the
freedom guaranteed in article 19(1)(g), and the social control permitted by
clause (6) of article 19, it must be held to be wanting in that quality."
[cited with approval in Dwarka Prasad Laxmi Narain v. The State of Uttar
Pradesh & Ors. (1) and in Ch. Tika Ramji v. State of' Uttar Pradesh &
Ors. (2) ].
The State of Madras v. V. G. Rao (3) was the
next case in which this phrase came to be considered by this Court and
Patanjali Sastri C. J. observed at p. 606:" This Court had occasion in Dr.
Khare's case (4) to define the scope of the judicial review under clause (5) of
Art. 19 where the phrase " imposing reasonable restrictions on the
exercise of the right " also occurs and four of the five judges
participating in the decision expressed the view (the other judge leaving the
question open) that both the substantive and the procedural aspects of the
impugned restrictive law should be examined from the point of view of
reasonableness: that is to say, the Court should consider not only factors such
as the duration and the extent of the restrictions but also the circumstances
under which and the manner in which their imposition has been authorised. It is
important in this context to bear in mind that the test of reasonableness,
where-ever prescribed, should be applied to each individual statute impugned,
and no abstract standard, or general pattern, of reasonableness can be laid
down as applicable to all cases. The nature of the right alleged to have been
infringed, the underlying purpose of the restrictions imposed, the extent and
urgency of the evil sought to be remedied thereby, the disproportion (1) 
S.C.R. 803, 811.
(3)  S.C.R. 597, 606, 607.
(2)  S.C.R. 393, 446.
(4)  S.C.R. 519.
139 of the imposition, the prevailing
conditions at the time, should all enter into the judicial verdict." This
criterion was approved of in State of West Benqal v. Subodh Gopat Bose &
Others (1) where the present Chief Justice further expressed his opinion that
the fact of the statute being given retrospective operation may also be
properly taken into consideration in determining the reasonableness of the
restriction imposed in the interest of the general public [see also a recent
decision of this Court in Virendra v. State of Punjab (2)].
The appointment of a wage board for the
purposes of fixing rates of wages could not be and was not challenged as such
because the constitution of such wage boards has been considered one of the
appropriate modes for the fixation of rates of wages. The Industrial Disputes
Act, 1947, can only apply when an industrial dispute
actually arises or is apprehended to arise between the employers and the
employees in a particular industrial establishment. Though under the amendment
of that Act by the Industrial Disputes (Amendment and Miscellaneous Provisions)
Act, 1956, (36 of 1956), there is a provision for the appointment of a National
Tribunal by the Central Government for the adjudication of industrial disputes
which in the opinion of the Central Government involve questions of national
importance or are of such a nature that industrial establishments situated in
more than one State are likely to be interested in, or affected by, such
dispute (Vide s. 7-B) the condition precedent, however, is the existence of an
industrial dispute or the apprehension of one. If the wages for the employees
of a particular industry have got to be fixed without such an industrial
dispute having arisen or being apprehended to arise, the only proper mode of
such fixation would be the appointment of wage boards for the purpose. They
take the place of Industrial Tribunals or National Industrial Tribunals and are
generally constituted of equal number of representatives of the employers and
the employees in that particular industry along with a quota of independent
member or (1)  S.C.R. 587, 626.
(2)  S.C.R. 308.
140 members one of whom is appointed the
chairman of the Board.
The main grievance of the petitioners,
however, has been that the relevant criteria for the fixation of rates of wages
were not laid down in s. 9(1) of the Act. Section 8 empowered the Central
Government to constitute a wage board for fixing rates of wages in respect of
working journalists in accordance with the provisions of the Act and s. 9(1)
directed that in fixing such rates of wages the Board &hall have regard to
the cost of living, the prevalent rates of wages for comparable employments,
the circumstances relating to the newspaper industry in different regions of
the country and to any other circumstances which to the Board may seem
relevant. These criteria, it was contended, were only relevant for fixing
minimum rates of wages,' though the word " minimum " which had been
used in the Bill No. 13 of 1955 as introduced in the Rajya Sabha was deleted
when the Act actually came to be passed and it was further contended that the
capacity of the Industry to pay which was an essential circumstance to be taken
into consideration in the fixation of wages was not set out as one of the
circumstances to be taken into consideration by the Board in fixing rates of
wages. It was also contended that the other circumstances which the Board was
directed to consider in addition to those specifically enumerated in s. 9(1)
were such as to the Board may seem relevant thus relegating these circumstances
to the subjective determination of the Board with the necessary consequence
that no Court or other authority could scrutinize the same objectively.
We do not propose to enter into any elaborate
discussion on the question whether it would be competent to us in arriving at a
proper construction of the expression " fixing rates of wages " to
look into the Statement of Objects and Reasons attached to the Bill No. 13 of
1955 as introduced in the Rajya Sabha or the circumstances under which the word
" minimum " came to be deleted from the provisions of the Bill
relating to rates of wages and the Wage Board and the fact of such deletion
when the Act came to be passed in its present 141 form. There is a consensus of
opinion that these are not aids to the construction of the terms of the Statute
which have of course to be given their plain and grammatical meaning [See:
Ashvini Kumar Ghosh & Anr. v. Arabinda Bose & Anr. (1) and Provat Kumar
Kar and others v. William Trevelyan' Curtiez Parkar It is only when the terms
of the statute are ambiguous or vague that resort may be had -to them for the
purpose of arriving at the true intention of the legislalature. No such
reference is, however, necessary in the case before us, even though perchance,
the expression " fixing rates of wages " be considered ambiguous in
so far as it does not specify whether the " wages there are meant to be
" living wages ", " fair wages or " minimum wages ".
We have already stated in the earlier part of
this judgment that the Act was passed with a view to implement the recommendations
of the Press Commission's Report and we have already seen that the concept of
minimum wage, as adopted by the Press Commission was not that of a bare
subsistence or minimum wage but what it termed a minimum wage was meant to
provide for not merely the bare subsistence of living, but for the efficiency
of the worker, making provision also for some measure of education, medical
requirements and amenities. If this was the concept of a minimum wage which the
Legislature set about to implement, that minimum was certainly higher than the
bare subsistence or minimum wage, and, in any event, required a consideration
by the Wages Board of the capacity of the industry to pay, even though the
Press Commission itself did not think it necessary, to do so, it having
expressed the opinion that if a newspaper industry could not afford to pay to
its employees a minimum wage, which would enable them to live decently and with
dignity, that newspaper had no right to exist.
This was the concept of a minimum wage which
was sought to be implemented by the legislature and for that purpose the
capacity of the industry to pay was an essential circumstance to be taken into
consideration and the deletion of the word " minimum ", if at (1)
 S.C.R. I.
(2) A.I.R. 1950 Cal. 116.
142 all, had the effect of widening the scope
of the enquiry before the Wage Board. if the word " minimum " had
been used in relation to the -rates of wages and the Wage Board in the impugned
Act, the wage Board in its deliberations would have been necessarily confined
(to a consideration of that aspect alone. But, by the deletion of that word from
the context the Wage Board was invested with a power to determine the question
of the fixation of rates of wages unfettered by any such limitations and to fix
the rates of wages in any proper manner having regard to the circumstances of
the case, whether the resultant wages would be a statutory minimum wage or
would approximate to a standard of wage, though having regard to the economic
conditions of our country at present they could not find it within their power
to fix living wages for the working journalists. The criteria which were
specified in s. 9(1) of the Act comprised also the prevalent rates of wages for
This criterion had no relation whatever to
Reference may be made in this connection to a
decision of the Industrial Court in the case of Nellimarla Jute Mills (1),
where it was held that the comparison with rates of waves in other concerns
could be undertaken for determining fair wage and the upper limit of wages but
not for determining the minimum or floor level of wages which should depend on
the minimum requirements of the workers' family consisting of three consumption
units. This criterion was no doubt taken into consideration by the members of
the Committee on Fair Wages as also by the Press Commission and even though the
Press Commission considered that to be an essential ingredient of the minimum
wage as contemplated by it, we are not inclined to stress that circumstance so
much and come to the conclusion that what was contemplated in s.
9(1) was merely a minimum wage and no other.
If, therefore, the criterion of the prevalent
rates of wages for comparable employments can on a true construction of s.
9(1)be considered consistent only with the
fixation of rates of wages which are higher than (1)  1 L.L.J. 666, 143
the bare subsistence or minimum wage whether they be statutory minimum wage or
fair wage or even living wage, it could not be urged that the criteria
specified in s. 9(1) of the Act were relevant only for fixation of minimum
The capacity of the industry to pay was
therefore one of the essential circumstances to be taken into consideration by
the Wage Board whether it be for the fixation of rates of wages or the scales
of wages which, as we have observed before, were included within the expression
" rates of wages ". This was by no means an unimportant circumstance
which could be assigned a minor role. It was as important as the cost of
living, and the prevalent rates of wages for comparable employments and ought
to have been specifically mentioned in s. 9(1). The Legislature however, was
either influenced in not mentioning it as such by reason of the view taken by
the Press Commission in that behalf or thought that the third criterion which
was specified in s. 9(1), viz., the circumstances relating to the newspaper
industry in different regions of the country was capable of including the same.
Even here, there is considerable difficulty in reconciling oneself to this mode
of construction. The capacity of the industry to pay, can only be considered on
an industry -cumregion basis and this circumstance from that point of view
would be capable of being included in this criterion, viz., the circumstances
relating to the newspaper industry in different regions of the country.
Even if it were thus capable of being
included, the minor role assigned to it along with literacy of the population,
the popularity of the newspapers, predilections of the population in the matter
of language and other circumstances of the like nature prevailing in the
different regions of the country would make it difficult to imagine that this
circumstance of the capacity of the industry to pay was really in the mind of
the Legislature, particularly when it is remembered that the Press Commission
attached no significance to the same. From that point of view, the criticism of
the petitioners would appear to be justified viz., :-that it was not made
incumbent on the Board to consider the major factor of the capacity of the 144
industry to pay as an essential circumstance in fixing the rates of wages. It
is, however, well-recognized that the Courts would lean towards the
constitutionality of an enactment and if it is possible to read this
circumstance as comprised within the category of circumstances relating to the
newspaper industry in different regions of the country, the court should not
strike down the provisions as in any manner whatever unreasonable and violative
of the fundamental right of the petitioners.
We are therefore of opinion that s. 9(1) did
not eschew the consideration of this essential circumstance, viz., the capacity
of the industry to pay and it was not only open but incumbent upon the Wage Board
to consider that essential circumstance in order to arrive at the fixation of
the rates of wages of the working journalists.
The last criterion enumerated in s. 9(1) of
the Act was " any other circumstance which to the Board may seem relevant
" and it was urged that this was left merely to the subjective
determination of the Board and the Board was at liberty to consider the
circumstances, if any, falling within this category in its own absolute
discretion which could not be Controlled by any higher authority. If the
matters were left to be objectively determined then it would certainly be
enquired into and the existence or otherwise of such circumstances would be
properly scrutinized in appropriate proceedings. The manner in which, however,
this criterion was left to be determined by the Board on its subjective
satisfaction was calculated to enable the Board to exercise arbitrary powers in
regard to the same and that was quite unreasonable in itself. The case of
Thakur Raghubir Singh v. Court of Wards, Ajmer & Ors. (1), was pointed out
as an illustration of such an arbitrary -power having been vested in the Court
of Wards which could in its own discretion and on its subjective determination
assume the superintendence of the property of a landed proprietor who
habitually infringed the rights of his tenants. The provision was there struck
down because such subjective (1) S. C. R. 1049,1052.
145 determination which resulted in the
superintendence of the property of a citizen being assumed could, not be
scrutinized and the propriety thereof investigated by higher authorities.
This argument, however, does not help the
petitioners because this criterion is on a par with or ejusdem generis with the
other criteria which have been specifically enumerated in the earlier part of
the section. The major and important criteria have been specifically enumerated
and if would be impossible for the Legislature exhaustively to enumerate the
other circumstances which would be relevant to be considered by the Board in
arriving at the fixation of the rates of wages. In the course of the enquiry
the Board might come across other relevant circumstances which would weigh with
it in the determination of the rates of wages and it would not be possible for
the Legislature to think of them or to enumerate the same as relevant
considerations and it was therefore, and rightly in our opinion, left to the
Board to determine the relevancy of those circumstances and take them into
consideration while fixing the rates of wages. If the principles which should
guide the Board in fixing the rates of wages were laid down with sufficient
clarity and particularity and the criteria so far as they were of major
importance were specifically enumerated there was nothing wrong in leaving
other relevant considerations arising in the course of the enquiry to the
subjective satisfaction of the Board. The Board was, after all, constituted of
equal numbers of representatives of employers and the employees and they were
best calculated to take into account all the relevant circumstances apart from
those which were, specifically enumerated in the section.
It was, however, contended that the procedure
to be followed by the Board for fixing the rates of wages was not laid down and
it was open to the Board to follow any arbitrary procedure violating the
principle of audi alteram partem and as such this also was unreasonable.
Section 20 (2) (d) of the impugned Act gave power to the Central Government to
make rules 19 146 inter alia in regard to the procedure to be followed by the
Board in fixing rates of wages and s. 11 provided that subject to any rules
which might be prescribed the Board may, for the purpose of fixing rates of
wages, exercise the same powers and follow the same procedure as an Industrial
Tribunal constituted under the Industrial Disputes Act, 1947, exercises or follows for the purpose of adjudicating an industrial
dispute referred to it. This was, however, an enabling provision which vested
in the Board the discretion whether to exercise the same powers and follow the
same procedure as an Industrial Tribunal. The Board was at liberty not to do so
and follow its own procedure which may be arbitrary or violative of the
principle of audi alteram partem.
It has to be remembered, however, that in the
United Kingdom the Wage Councils and the Central Co-ordinating Committees under
the Wages Councils Act, 1945, and the Agricultural Wages Board under the
Agricultural Wages Regulations Act, 1924, also are empowered to regulate their
proceeding in such manner as they think fit. The Wage Boards in Australia have
also no formal procedure prescribed for them, though the Wage Boards which are
established under the amended Bombay Industrial Relations Act, 1946, are
enjoined to follow the same procedure as an industrial court in respect of
industrial proceedings before it. It would not therefore be legitimate to hold
that the procedure to be followed by the wage board for fixing rates of wages
must necessarily be prescribed by the statute constituting the same. It is no
doubt contemplated in each of these statutes that rules of procedure may be
prescribed; but even though they, may be so prescribed, it is left to the
discretion of the wage boards to regulate their procedure in such manner as
they think fit, subject of course to the rules thus prescribed. A wide
discretion is thus left with the wage boards to prescribe their own rules of
procedure, but it does not therefore follow that they are entitled to follow
any arbitrary rules of procedure. The wage boards are responsible bodies
entrusted with the task of gathering data and materials relevant for the 147
determination of the issues arising before them and even though they are not
judicial tribunals but administrative agencies they would elicit all relevant
information and invite answers to the questionnaire or representations from the
parties concerned, hear evidence and arrive at their determination after
conforming to the principles of natural justice. Even though they may perform,
quasi-judicial functions, the exercise of arbitrary powers by them would not be
countenanced by, any court or higher authority.
In the present case, however, we have in, the
forefront of the impugned Act a provision as to the application of the Industrial Disputes
Act 1947, to working journalists. No doubt certain
specific provisions as to payment of gratuity, hours of work and leave are
specifically enacted, but when we come to the fixation of rates of wages we
find that a wage board has been constituted for the purpose. The principles to
be followed by the Wage Board for fixing rates of wages are also laid down and
the decision of the Board is to be published in the same manner as awards of
industrial courts under the Industrial Disputes Act. Then follows s. 11 which talks of the powers and
procedure of the Board and there also, subject to any rules of procedure which
may be prescribed by the Central Government, the Board is empowered to exercise
the same powers and follow the same procedure as an Industrial Tribunal
constituted under the Industrial Disputes Act. If regard be had to this provision it is abundantly clear
that the intention of the Legislature was to assimilate the Wage Board thus
constituted as much as possible to an Industrial Tribunal constituted: under
the Industrial Disputes Act, 1947, and it was
contemplated that the Board may for fixing rates. of wages, exercise the same
powers and follow the same procedure. The decision of the Board was to be
binding on all the employers, though the working journalists were at liberty to
further agitate the, question under the Industrial Disputes Act if they were not satisfied with the decision of the Wage
Board and wanted a further increase in their rates of wages, thus determined.
All these 148 circumstances point to the
conclusion that even though the Board was not bound to exercise the same powers
and follow the same procedure as an industrial tribunal constituted under the Industrial Disputes
Act, the Board was, in any event, not entitled to
'adopt any arbitrary procedure violating the principles of natural justice.
If on the construction of the relevant
sections of the statute the functions which the Wage Board was performing would
be tantamount to laying down a law or rule of conduct for the future so that
all the employers and the employees in the' industry not only those who were
participating in it in the present but also those who would enter therein in the
future would be bound by it, the dictum of Justice Holmes would apply and the
functions performed by the wage board could be characterized as legislative in
character. Where, however, as in the present case, the constitution of the Wage
Board is considered in the background of the application of the provisions of
Disputes Act to the working journalists and the
provisions for the exercise of the same powers and following the same procedure
as an industrial tribunal constituted under the Industrial Disputes Act, it would be possible to argue that the Wage Board was not
exercising legislative functions but was exercising functions which were
quasi-judicial in character.
In this connection, it was also pointed out
that the Legislature itself while enacting the impugned Act did not consider
these functions as legislative at all. The Rules of Procedure and Conduct of
Business in Lok Sabha (1957) provide in Rule No. 70 for a Bill involving
proposals for the delegation of legislative power shall further be accompanied
by a memorandum explaining such proposals and drawing attention to their scope
and stating also whether they are of normal or exceptional character. There is
also a committee on subordinate legislation which is established for
scrutinizing and reporting to the House; whether the powers to make
regulations, rules, sub-rules, by-laws, etc., conferred by the Constitution or
delegated by Parliament are being properly exercised within 'such 149
delegation (vide Rule 317 ibid). The constitution by the Legislature of the
Wages Board in the matter of the fixation of rates of wages was not considered
as a piece of delegated legislation in the memorandum regarding -delegated
legislation appended to the draft Bill No. 13, of 1955 introduced in the Rajya
Sabha on September 28, 1955, and the only reference that was made there was to
Cl. 19 of the Bill which empowered the Central Government to make rules in
respect of certain matters specified therein and it was stated that these were
purely procedural matters of a routine character and related inter alia to
prescribing hours of work, payment of gratuity, holidays, earned leave or other
kinds of leave and the procedure to be followed by the Minimum Wager, Board in
fixing minimum wages and the manner in which its decisions may be published.
Clause 19 (3) of the Bill further provided that all rules made under this
section shall as soon as practicable after they are made, be laid before both
Houses of Parliament. These clauses were ultimately passed as s. 20 of the
impugned Act but they were the only piece of delegated legislation contemplated
by the Legislature and were covered by the memorandum regarding the same which
was appended to the Bill. The decision of the Wage Board was not to be laid
before both the Houses of Parliament which would have been the case if the
fixation of rates of wages was a piece of delegated legislation. It was only to
be published by the Central Government after it/ was communicated to it by the
Wage Board in such manner as the Central Government thought fit, a provision which
was akin to the publication of award,,; of the Industrial Tribunals by the
appropriate Government under the provisions of the Industrial Disputes Act, 1947. This circumstance also was pointed out as indicative of
the intention of the Legislature not to constitute the Wage Board a
While recognizing the force of these
contentions we may observe that it is not necessary for our purposes to
determine the nature and character of the functions performed by the Wage Board
here. It is sufficient to say that the Wage Board was not empowered or 150
authorised to adopt any arbitrary, procedure and flout the principles of,
It was next contended that the restrictions
imposed on newspaper establishments under the terms of the impugned Act were
unreasonable in so far as they would have the effect of destroying the business
of the petitioners and would therefore exceed the bounds of permissible
legislation under Art. 19(6). It was urged that the right to impose reasonable
restrictions on the petitioners' right to carry on business did not empower the
legislature to destroy the business itself and reliance was placed in support
of this proposition on Stone v. Farmers Loan and Trust Co. (1), where it was
observed:" From what has thus been said it is not to, be inferred that
this power of limitation or regulation is itself without limit. This power to
regulate is not a power to destroy, and limitation is not the, equivalent of
confiscation." Similar observations of the Judicial Committee of the Privy
Council in-the Municipal Corporation of the City of Toronto v. Virgo (2) and
the Attorney General for Ontario v.
Attorney General for the Dominion (3) were
also relied upon and particularly the following observations in the former
case:" But their Lordships think there is a marked distinction to be drawn
between the prohibition or prevention of a trade and the regulation or
governance of it and indeed a power to regulate and govern seem,,; to imply the
continued existence of that which is sought to be, regulated or governed."
These observations were considered by this Court in Saghir Ahmed v. State of U.
P. & Ors. (4) and after considering the various cases which Were cited by
both sides, this Court observed:
" Be that as it may,, although in our
opinion the normal use of the word " restrictionseems to be in the sense
of I., limitation" and notextraction ", we would on this occasion
prefer not toexpress any final (1)  116 U. S. 307, 331; 29 L. Ed. 636,
(2)  A.C. 88, 93(J-C) (4)  1
(3)  A.C. 348, 363.
151 opinion on this matter" and the
Court ultimately wound up by saving that ,whether the restrictions are
reasonable or not would depend to a large extent on the nature of the trade and
the conditions prevalent in it." Even if the provisions of the impugned
Act would not necessarily have the effect of destroying the business of the
petitioners but of crippling it and making it impossible for the petitioners to
continue the same except under onerous conditions, they would have the effect
of curtailing their circulation and drive them to seek government aid and
thereby impose an unreasonable burden on their right to carry on business and
would come within the ban of Art.
19(1) (g) read with Art. 13(2) of the
Several provisions of the impugned Act were
referred to in this context. Section 2(f) of the Act which defines working
journalist " so as to include " proofreader was pointed out in this
connection and it was urged that even though the Press Commission Report
recommended the exclusion of certain class of proof-readers from the definition
of working journalists the Legislature went a step further and included all
proof-readers within that definition thereby imposing upon the newspaper
establishments an unreasonable burden far in excess of what they were expected
to bear. The provision as to the notice in relation to the retrenchment of
working journalist was also extended beyond the limitations specified in s. 25F
of the Industrial
Disputes Act, 1947, and was extended to six months in
the case of an Editor and three months in the case of any other working
The provision with regard to retrenchment was
also made applicable retrospectively to all cases of retrenchment which had
occurred between July 14, 1954, and March 12, 1955 ; so also the payment of
gratuity was ordered not only in the cases usually provided for but also in
cases where a working journalist who had been in continuous service for not
less than three years voluntarily resigned from service from a newspaper
establishment. The hours of work prescribed were 144 hours only during any
period of four consecutive weeks and they were 152 far less in number than the
hours of work recommended by the Press Commission Report. The fixation of rates
of wages was entrusted to the Wage Board which could fix any wages which it
thought proper irrespective of the capacity of the industry to pay and might be
such as the industry could not bear. These provisions taken each one by itself
may not have the effect of destroying the petitioners' business altogether or
even crippling it in the manner indicated but taken cumulatively along with the
provisions contained in ss. 14 and 15 of the impugned Act which applied the
provisions of the Industrial
Employment (Standing Orders) Act, 1946, and, the Employees' Provident funds Act, 1952, to
newspaper establishments would certainly bring about that result and would
therefore constitute an unreasonable restriction on the, petitioners' right to
carry on business.
We shall deal with these contentions one by
There is no doubt that " proof-readers
" were not all recommended by the Press Commission to be included in the
definition of working journalists, but it has to be remembered that
proof-readers occupy a very important position in the editorial staff of a
newspaper establishment. B. Sen Gupta in his " Journalism as a Career
" (1955) talks of the position of the proof-reader as follows:
" The proof-reader is another important
link in the production of a newspaper. On him depends, not to a small extent,
the reputation of a paper. He has to be very careful in correcting mistakes and
pointing out any error of fact or grammar that has crept into any news item or
article through oversight or hurry on the part of the sub-editor.
He has not only to correct mistakes but also
to see that corrections are carried out ", and the Kemsley Manual of Journalism
has the following passage at p. 337:
" Having thus seen the proof-reader in
action, lot us consider in detail what proof-reading denotes. It is primarily
the art and practice of finding mistakes in printed matter before publication
and of indicating the needed corrections. It includes the detection of
variations between the type and the copy from which it was 153 set,
misstatements of facts, figures or-dates, errors in grammar, inaccuracies in
quotations, and other defects.
Often, too, it happens that, though the
proof-reader does not feel justified in himself making a correction, he takes
other action. If he thinks there is a mistake but is not sure, he must query
the -proof so that the editorial staff may decide. He may spot a libel, or
think he has. In either case it is important that the matter shall be queried
and passed back to editorial authority.
" It is obvious from this that
proof-readers should be men of exceptional knowledge and sound-judgment. They
should be conversant with current affairs, familiar with names of public men
and quite sure how they should be spelled. Some specialize in different
branches of sport, others in theatre, the cinema, music and so on. This saves
much time in looking up books of reference, though, of course, the books are
there." As a matter of fact, the Wage Board in the Schedule to its
decision defines "proof reader" as " a person who checks up
printed matter or " Proof " with edited copy to ensure strict
conformity of the former with the latter. Factual discrepancies, slips of
spelling, grammar and syntax may also be discovered by him and either corrected
or get them corrected." If this is the important role played by the
proofreaders then no wonder that the Legislature in spite of the
recommendations of the Press Commission included them also in the definition of
working journalist. No doubt they would be entitled to higher wages by reason
of the fixation of rates of wages by the Wage Board but that would by itself be
no ground for holding the inclusion of proof-readers within the definition of
working journalist an unreasonable burden on newspaper establishments.
The provisions in regard to notice cannot be
said to be per se unreasonable. Apart from the recommendations of the Press
Commission in that behalf, Halsbury's Laws of England, Vol. 22, 2nd Edn., p.
150, 20 154 para. 249, foot note (e), contains the following statement in
regard to the periods of reasonable notice to which persons of various
employments have been found entitled:Newspaper editor, from six months
(Fox-Bourne v. Vernon & Co. Ltd., (1894) 10 T. L. R. 647); to twelve months
(Grundy v. Sun Printing and Publishing Association, (1916) 33 T. L. R. 77, C.
Sub-editor of a newspaper, six months
(Chamberlain v. Bennett, (1892) 8 T. L. R. 234).
Foreign correspondent to The Times, six
months period (Lowe v. Walter, (1892) 8 T. L. R. 358).
The Press Commission also recommended that
the period of notice for the termination of services should be based on the
length of the service rendered and the nature of the appointment. There could
be no hard and fast rule as to what the notice period should be. The practice
upheld by law or by collective bargaining varies from country to country. In
England the practice established by some judicial decisions is that the editor
is entitled to a year's notice and an assistant editor to six months' notice.
After examining the provisions in regard to
notice which are in vogue in England, the Commission also noticed a decision in
Bombay (Suit No. 735 of 1951 in the City Civil Court) where the judge concerned
held that in the circumstances of the particular case the plaintiff, an
assistant editor was entitled to a notice of four months although in normal
times, he said, the rule adopted in England of six months should be the correct
rule to adopt in India and a longer period of notice was suggested for editors
because it was comparatively much more difficult to secure another assignment
for a journalist of that seniority and standing in the profession.
The period of six months, in the case of an
editor, and three months, in the case of any other working journalists
prescribed under s. 3(2) of the impugned Act was therefore not open to any
The retrospective operation of this provision
in regard to the period between July 14, 1954, and March 12, 1955, was designed
to meet the few cases of those employees in the editorial staff of the
newspaper 155 establishments who had been retrenched by the managements
anticipating the implementation of the recommendations of the Press Commission.
There was nothing untoward in that provision also.
When we come however to the provision in
regard to the payment of gratuity to working journalists who voluntarily
resigned from service from newspaper establishments, we find that this was a
provision which was not at all reasonable.
A gratuity is a scheme of retirement, benefit
and the conditions for its being awarded have been thus laid down in the Labour
Court decisions in this country.
In the case of Ahmedabad Municipal
Corporation it was observed at p. 158 :" The fundamental principle in
allowing gratuity is that it is a retirement benefit for long services, a
provision for old age and the trend of the recent authorities as borne out from
various awards as well as the decisions of this Tribunal is in favour of double
benefit We are, therefore, of the considered opinion that Provident Fund
provides a certain measure of relief only and a portion of that consists of the
employees' wages, that he or his family would ultimately receive, and that this
provision in the present day conditions is wholly insufficient relief and two
retirement benefits when the finances of the concern permit ought to be
allowed." (See also Nundydroog Mines Ltd. (2).
These were cases however of gratuity to be
allowed to employees on their retirement. The Labour Court decisions have
however awarded gratuity benefits on the resignation of an employee also. In
the case of Cipla Ltd. (3), the Court took into consideration the capacity of
the concern and other factors therein referred to and directed gratuity on full
scale which included (2) on voluntary retirement or resignation of an employee
after 15 years continuous service.
Similar considerations were imported in the
case of (1) (1955) L.A.C. 55, 58.
(2) (1956) L.A.C. 265, 267.
(3)  2 L.L.J. 355, 358.
156 the Indian Oxygen & Acetylene Co.,
Ltd. where it was observed:
" It is now well-settled by a series of
decisions of the Appellate Tribunal that where an employer company has the
financial capacity the workmen would be entitled to the benefit of gratuity in
addition to the benefits of the Provident Fund. In considering the financial
capacity of the concern what has to be seen is the general financial stability
of the concern. The factors to be considered before granting a scheme of
gratuity are the broad aspects of the financial condition of the concern, its
profit earning capacity, the profit earned in the past, its reserves and the
possibility of replenishing the reserves, the claim of capital put having
regard to the risk involved, in short the financial stability of the concern.
There also the court awarded gratuity underground
No. 2, viz., on retirement or resignation of an employee after 15 years of
continuous service and 15 months' salary or wage.
It will be noticed from the above that even
in those cases where gratuity was awarded on the employee's resignation from
service, it was granted only after the completion of 15 years continuous
service and not merely on a minimum of 3 years service as in the present case.
Gratuity being a reward for good efficient and faithful service rendered for a
considerable period (Vide Indian Railway Establishment Code, Vol. 1 at p.
614-Ch. XV, para. 1503), there would be no justification for awarding the same
when an employee voluntarily resigns and brings about a termination of his
service, except in exceptional circumstances.
One such exception is the operation of what
is termed " The conscience clause ". In Fernand Terrou and Lucion
Solal's Legislation for Press, Film and Radio in the World to-day (a series of
studies published by UNESCO in 1951) the following passage occurs in relation
to " Journalists' Working Conditions and their Moral Rights ", at p.
(1)  1 L.L.J435.
157 Among the benefits which the status of
professional journalist may confer (whether it stems from the law or from an
agreement) is one of particular importance, since it goes to the very core of
the profession. It concerns freedom of information. It is intended to safeguard
the journalist's independence, his freedom of thought and his moral rights.
It constitutes what has been called in France
the " conscience clause ". The essence of this clause is that when a
journalist's integrity is seriously threatened, he may break the contract
binding him to the newspaper concern, and at the same time receive all the
indemnities which are normally payable only if it is the employer who breaks
the contract. In France, accordingly, under the law of 1935, the indemnity for
dismissal which, as we have seen, may be quite substantial, is payable even
when the contract is broken by a professional journalist, in cases where his
action is inspired by " a marked change in the character or policy of the
newspaper or periodical, if such change creates for the person employed a
situation prejudicial to his honour, his reputation, or in a general way his
" This moral right of a journalist is
comparable to the moral right of an author or artist, which the law of 1935 was
the first to recognize, has since been acknowledged in a number of countries.
It was stated in the collective contract of January 31, 1938, in Poland in this
form: " The following are good and sufficient reasons for a journalist to
cancel hip, contract without warning; (a) the exertion of pressure by an
employer upon a journalist to induce him to perform an immoral action; (b) a
fundamental change in the political outlook of the journal, proclaimed by
public declaration or otherwise made manifest, if the journalist's employment
would thereafter be contrary to his political opinions or the dictates of his
conscience." A similar clause is to be found in Switzerland, in the
collective agreement signed on April 1, 1948, between the Geneva Press
Association and the Geneva Union of Newspaper Publishers:
If a marked change takes place in the
character 158 or fundamental policy of the newspaper, if the concern no longer
has the same moral, political or religious character that it had at the moment
when an editorial employee was engaged and if this change is such as to
prejudice his honour, his reputation or, in a general way, his moral interests,
he may demand his instant release. In these circumstances he shall be entitled
to an indemnity............ This indemnity is payable in the same manner as was
the salary." The other exception is where the employee has been in
continuous service of the employer for a period of more than 15 years.
Where however an employee voluntarily resigns
from service of the employer after a period of only three years, there will be
no justification whatever for awarding him a gratuity and any such provision of
the type which has been made in s. 5(1)(a)(iii) of the Act would certainly be
unreasonable. We hold therefore that this provision imposes an unreasonable
restriction on the petitioners' right to carry on business and is liable to be
struck down as unconstitutional.
The provision in regard to the hours of work
also cannot be considered unreasonable having regard to the nature and quality
of the work to be done by working journalists.
That leaves the considerations of fixation of
rates of wages by the Wage Board. As we have already observed, the Wage Board
is constituted of equal numbers of representatives of the newspaper
establishments and the working journalists with an independent chairman at its
head and principles for the guidance of the Wage Board in the fixation of such
rates of wages directing the Wage Board to take into consideration amongst
other circumstances the capacity of the industry to pay have also been laid
down and it is impossible to say that the provisions in that behalf are in any
manner unreasonable. It may be. that the decision of the Wage Board may be
arrived at ignoring some of these essential criteria which have been laid down
in s. 9(1) of the Act or that the procedure followed by the Wage Board may be
contrary to the principles of natural justice. But that would 159 affect the
validity of the decision itself and not the constitution of the Wage Board
which as we have seen cannot be objected to on this ground.
The further provision contained in s. 17 of
the Act in regard to the recovery of money due from an employer empowering the
State Government or any such authority appointed in that behalf to issue a
certificate for that amount to the collector in the same manner as an arrear of
land revenue was also impeached by the petitioners on this ground. That
provision, however, relates only to the mode of recovery and not to the
imposition of any financial burden as such on the employer. We shall have
occasion to deal with this provision in connection with the alleged
infringement of the fundamental right under Art. 14 hereafter. We do not
subscribe to the view that such a provision infringes the fundamental right of
the petitioners to carry on business under Art. 19(1)(g).
This attack of the petitioners on the
constitutionality of the impugned Act under Art. 19(1)(g), viz., that it
violates the petitioners' fundamental right to carry on business, therefore,
fails except in regard to s. 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.
Re. Article 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 I 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
(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, in so far as it removes the newspaper employers
vis-a-vis working journalists from the general operation of the Industrial Disputes
Act, 1947, and Act I of 1955.
The principle underlying the enactment of
Art. 14 has been the subject-matter of various decisions of this Court and it
is only necessary to set out the summary thereof given by Das J. (as be then
was) in Budhan Choudhry & Others v. The State of Bihar (I)." The
provisions of article 14 of the Constitution have come up for discussion before
this Court in a number of cases, namely, Chiranjit Lal Chowdhuri v. The Union
of India (2), The State of Bombay v. F. N. Balsara (3), The State of West
Bengal v. Anwar Ali (1) I S.C.R. 1045, 1048.
(2)  S.C.R. 869.
(3)  S.C.R. 682.
161 Sarkar (1), Kathi Raning Rawat v. The
State of Saurashtra (2), Lachmandas Kewalram Ahuja v. The State of Bombay (3),
Quasim Razvi v. The State of Hyderabad (1), and Habeeb Mohamad v. The State of
Hyderabad (5). It is, therefore, not necessary to enter upon any lengthy
discussion as to the meaning, scope and effect of the' article in question. It
is now well established that while article 14 forbids class legislation, it
does not forbid reasonable classification for the purposes of legislation. In
order, however, to pass the test of permissible classification two conditions
must be fulfilled, namely, (i) that the classification must be founded on an
intelligible differentia which distinguishes persons or things that are grouped
together from others left out of the group and (ii) that differentia must have
a rational relation to the object sought to be achieved by the statute in
question. The classification may be founded on different bases; namely,
geographical, or according to objects or occupations or the like. What is
necessary is that there must be a nexus between the basis of classification and
the object of the Act under consideration. It is also well-established by the
decisions of this Court that article 14 condemns discrimination not only by a
substantive law but also by a law of procedure." It is in the light of
these observations that we shall now proceed to consider whether the impugned
Act violates the fundamental right of the petitioners guaranteed under Art.
14 of the Constitution.
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
" It is essential to realise in this
connection that the work of a journalist demands a high degree of general
education and some kind of specialised 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 (1)  S.C.R. 284. (2)
(1952) S.C.R. 435.
(3)  S.C.R. 710.(5)  S.C.R. 661.
(4)  S.C.R. 581.
21 162 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 insecurity 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
cages where a change in the ownership of the paper or a, change in the
editorial policy of the paper has-resulted in a considerable change in the
editorial staff. In the case of other industries a change in the proprietorship
does not normally entail a change in the staff. But as the essential purpose of
a newspaper is not only to give news but to educate &. d guide public
opinion, a change in the proprietorship or in the editorial policy of the paper
may result 163 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).
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 We may also in this
connection refer to the following passage from the Legislation for Press, Film
and Radio in the world to-day (a series of studies published by UNESCO in 1951)
(supra) at p. 403:" Under certain systems, special advantages more
extensive than those enjoyed by ordinary employees are conferred upon
journalists. These may be sanctioned by the law itself.
For instance, certain Latin American
countries have enacted legislation in favour of journalists which is in some
cases very detailed and far-reaching and offers special benefits, more
particularly in the form of protection against the risk of sickness or
disability, dismissal or retirement. In Brazil, professional journalists, who
must be of Brazilian birth and nationality, enjoy very considerable tax
" In France, the law of 29 March, 1935,
conferred on journalists substantial advantages which at the time were far in
advance of general social legislation. Thus, for example, this law gives all
professional journalists the right to an annual holiday with pay. One month's
holiday is granted to journalists who have been working for a newspaper or
periodical for at least one year, and five weeks to journalists whose contract
has been in force for 10 years at least. Should a contract of indefinite
duration be terminated, the journalist is entitled to one or two month's notice
and also to an indemnity for dismissal which may not be less than one month's
salary per year or part of a year of service, at the most recent rate of pay.
However, if the period of service exceeds 15 years, the 164 amount of the
indemnity is fixed, as we have seen, by an arbitral committee." 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 Art. 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 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 how. ever, was a general fixation of rates of wages of working
journalists which would ameliorate the conditions of their service and the
constitution of a wage board for this purpose was one of the established modes
of achieving that object. If, therefore, such a 165 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. The capacity of the industry to pay
was certainly to be taken into consideration by the Wage Board, as we have
already seen before, and the procedure of the Board also was assimilated to
that adopted by an industrial tribunal under the Industrial Disputes
Act, 1947, or was, in any event, to be such as would
not be against the principle of audi alteram partem or the principles of
natural justice. There was no occasion, if the Wage Board chose to exercise the
same powers and follow the same procedure as the Industrial Tribunal under the
Industrial -Disputes Act, 1947, for it to discriminate between one set of
newspaper establishments and others. If it in fact assumed unto itself the
powers of the Industrial Tribunal it would be bound to follow the procedure
prescribed under the Industrial Disputes Act, 1947, and if it were thus to follow the same, no discrimination
could ever be made in the manner suggested.
The decision of the Wage Board was no doubt
made binding only on the employers and the working journalists were at liberty
to agitate the question of increase in their wages by raising an industrial
dispute in regard thereto. Once the rates of wages were fixed by the Wage
Board, it would normally follow 'that they would govern the relationship
between the employers and the working journalists, but if liberty was reserved
to the working journalists for further increase in their wages under the
provisions of the Industrial
Disputes Act there was nothing untoward in that
provision and that did not by itself militate against the position that what
was done for the benefit of the working journalists was a, measure for the
amelioration of their conditions of service as a group by themselves. There
could not be any question of discrimination between the employers on the one
hand and the working journalists on the other.
They were two contesting parties ranged on
opposite sides and the fact that one of them was treated in a different manner
from the other in the 166 matter of the amelioration of the conditions of
service of the weaker party would not necessarily vitiate the decision of the
Wage Board. The weaker of the two parties could certainly be treated as a class
by itself and the conferment of special benefits in the matter of trying to
ameliorate their conditions of service could certainly not be discriminatory.
The provisions contained in s. 17 of the Act
in regard to the recovery of money due from the employers in the same manner as
an arrear of land revenue also was not discriminatory. In the conflict between
the employers and the employees it very often came about that the employers did
not implement the measures which had been enacted for the benefit of the
employees and the employees
were thus hard put to realise and cash those benefits. Even the Industrial
Disputes Act, 1947, contained a like provision in s. 33C thereof (vide the
amendment incorporated therein by Act 36 of 1956) which in its turn was a
reproduction of the old s. 25-1 which had been inserted therein by Act 43 of
1953. It may be remembered that if the provisions of the Industrial Disputes
Act, 1947, which was a general Act, had been made applicable to the working
journalists there would have been no quarrel with the same. Much less there
could be any quarrel with the introduction of s. 17 into the impugned Act when
the aim and object of such provision was to provide the working journalists who
were a group by themselves from amongst employees employed in the newspaper
establishments with a remedy for the recovery of the monies due to them in the
same manner as the workmen under the Industrial Disputes Act, 1947. We do not
see anything discriminatory in making such a provision for the recovery of
monies due by the employers to these working journalist's.
Similar is the position in regard to the
alleged discrimination between -Press industry employers on the one hand and
the other industrial employers on the other. The latter would, certainly be
governed by the ordinary law regulating industrial relations under the Industrial Disputes Act, 1947.
Employers qua the working journalists again would be a class by them167 selves
and if a law was enacted to operate as between them in the manner contemplated
by the Act that could not be treated as discriminatory. If measures have got to
be devised for the amelioration of the conditions of working journalists who
are employed in the newspaper establishments, the only way in which it could be
done was by directing this piece of legislation against the Press Industry
employers in general. 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.
This attack on the constitutionality of the
Act also therefore fails.
Re. Article 32:In regard to the infringement
of Art. 32, the only ground of attack ha,-, been that the impugned Act did not
provide for the giving of the reasons for its decision by the Wage Board and
thus rendered the petitioners' right to approach the Supreme Court for
enforcement of their fundamental right nugatory. It is contended that the right
to apply to the Supreme Court for a writ of certiorari required an order
infringing a fundamental right, that such a right was itself a fundamental
right and any legislation which attempted to restrict or defeat this right was
an infraction of 168 Art. 32 and was as such void. It is further contended that
a writ of certiorari could effectively be directed only against a speaking
order, i. e., an order disclosing reasons, and if a statute enabled the passing
of an order that need give no reasons such statute attempted ,to sterilize the
powers of this Court from investigating the validity of the order and was
therefore violative of Art.
Learned Counsel for the petitioners has
relied upon a decision of the English Court in Rex v. Northumberland
Compensation Appeal Tribunal, Ex parte Shaw where Lord Goddard C. J. observed
at p. 718:" Similarly anything that is stated in the order which an
inferior court has made and which has been brought up into this court can be
examined by the court, if it be a speaking order, that is to say, an order
which sets out the grounds of the decision. If the order is merely a statement
of conviction that there shall be a fine of 40s., or an order of removal or
quashing a poor rate, there is an end of it, this court cannot examine further.
If the inferior court tells this court why it had done what it has and makes it
part of its order, this court can examine it." This decision was affirmed
by the Court of Appeal (and the decision of the Court of Appeal is reported in
Northumberland Compensation Appeal Tribunal,
Ex parte Shaw (2) and while doing so Denning L. J. (as he then was) discussed
at p. 352, what was it that constituted the record :" What, then, is the
record?...... Following these cases I think the record must contain at least
the document which initiates the proceedings; the pleadings if any; and the
adjudication; but not the evidence, nor the reasons, unless the tribunal
chooses to incorporate them. If the tribunal does state its reasons, and these
reasons are wrong in law, certiorari lies to quash the decision." This
decision only affirmed that certiorari could lie only if an order made by the
inferior tribunal was a speaking order. It did not lay down any duty on the
inferior tribunal to set out the reasons for its order but (1)  1 K. B.
(2)  1 K. B. 338.
169 only pointed out that if no reasons were
given it would be impossible for the High Court to interfere by exercising its
prerogative jurisdiction in the matter of certiorari.
A more relevant decision on this point is
that of this Court in A. K. Gopalaa v. The State of Madras and, Anr. (1). In
that case the provision of law which was impugned amongst others was one which
prevented the detenu on pain of prosecution from disclosing to the Court the
grounds of his detention communicated to him by the detaining authority.
This provision was struck down as ultra vires
and void. The reason given by Mahajan J. (as he then was) is stated at p. 243:
" This Court would be disabled from
exercising its functions under article 32 and adjudicating on the point that
the grounds given satisfy the requirements of the sub-clause if it is not open
to it to see the grounds that have been furnished. It is a guaranteed right of
the person detained to have the very grounds which are the basis of the order
of detention. This Court would be entitled to examine the matter and to see
whether the grounds furnished are the grounds on the basis of which he has been
detained or they contain some other vague or irrelevant material. The whole
purpose of furnishing a detained person with the grounds is to enable him to
make a representation refuting these grounds and of proving his innocence. In
order that this Court may be able to safeguard this fundamental right and to
grant him relief it is absolutely essential that the detenu is not prohibited
under penalty of punishment to disclose the grounds to the Court and no
injunction by law can be issued to this Court disabling it from having a look
at the grounds. Section 14 creates a substantive offence if the grounds are
disclosed and it also lays a duty on the Court not to permit the disclosure of
such grounds. It virtually amounts to a suspension of a guaranteed right
provided by the Constitution inasmuch as it indirectly by a stringent provision
makes administration of the law by this Court impossible and at the same (1)
 S.C.R. 88, 100.
22 170 time it deprives a detained person
from obtaining justice from this Court. In my opinion, therefore, this section
when it prohibits the disclosure of the grounds contravenes or abridges the
rights given by Part III to a citizen and is ultra vires the powers of
Parliament to that extent." It is no doubt true that if there was any
provision to be found in the impugned Act which prevented the Wage Board from
giving reasons for its decision, it might be construed to mean that the order
which was thus made by the Wage Board could not be a speaking order and no writ
of certiorari could ever be available to the petitioners in that behalf.
It is also true that in that event this Court
would be powerless to redress the grievances of the petitioners by issuing a
writ in the nature of certiorari and the fundamental right which a citizen has
of approaching this Court under Art. 32 of the Constitution would be rendered
The position, however, as it obtains in the
present case is that there is no such provision to be found in the impugned
Act. The impugned Act does not say that the Wage Board shall not give any
reason for its decision. It is left to the discretion of the Wage Board whether
it should give the reasons for its decision or not. In the absence of any such
prohibition it is impossible for us to hold that the fundamental right
conferred upon the petitioners under Art.
32 was in any manner whatever sought to be
infringed. It may be noted that this point was not at all urged in the
petitions which the petitioners had filed in this Court but was taken up only
in the course of the arguments by the learned Counsel for the petitioners. It
appears to have been a clear after-thought; but we have dealt with the same as
it was somewhat -strenuously urged before us in the course of the arguments. We
are of the opinion that the Act cannot be challenged as violative of the
fundamental right enshrined in Art. 32 of the Constitution.
In regard to the constitutionality of the Act
therefore we have come to the conclusion that none of the provisions thereof is
violative of the fundamental 171 rights enshrined in Arts. 19(1)(a), 19(1), 14
and/or 32 save the provision contained in s.5(1)(a)(iii) of the Act which is
violative of the fundamental right guaranteed under Art.
19(1)(g) of the Constitution and is therefore
unconstitutional and should be struck down.
Apart from challenging the vires of the Act
dealt with above, the -petitioners contend that the decision of the Wage Board
itself is illegal and void because:
(1) Reconstitution of the Board was ultra
vires and unauthorised by the Act as it stood at the time, the rules having
been published only on July 30, 1956.
(2)The decision by a majority was unwarranted
by the Act and since there was no provision in the Act, the Rules providing for
the same went beyond the Act and were therefore ultra vires.
(3)The procedure followed by the Board
offended the principles of natural justice and was therefore invalid;
(4) The decision was invalid, because (a) no
reasons were given, (b) nor did it disclose what considerations prevailed with
the Board in arriving at its decision;
(5) Classification on the basis of gross revenue
was illegal and unauthorised by the Act.
(6)Grouping ;into chains or multiple units
was unauthorised by the Act.
(7)The Board was not authorised by the Act to
fix the salaries of journalists except in relation to a particular industrial
establishment and not on an All India basis of all newspapers taken together;
(8)The decision was bad as it did not
disclose that the capacity to pay of any particular establishment was ever
taken into consideration.
(9) The Board had no authority to render a
decision which was retrospective in operation.
(10) The Board had no authority to fix scales
of pay for a period of 3 years (subject to review by the Govt.by appointing
another Wage Board at the end of these 3 years) and (11) The Board was
handicapped for want of Cost of Living Index.
172 The position in law is that the decision
would be illegal on any of the following three grounds, viz., (A)Because the
Act under which it was made was ultra vires; [ See Mohammad Yasin v. Town Area
Committee, Jalalabad & anr. (1) and Himmatlal Harilal Mehta v. State of
Madhya Pradesh (2) ].
(B)Because the decision itself infringed the
fundamental rights of the petitioners. [ See Bidi Supply Co.v. Union of India
& ors. (3) ].
(C) Because the decision was ultra vires the
Act. See Pandit Ram Narain v. State of Uttar Pradesh & ors. (4) ].
The decision of the Wage Board before us
cannot be challenged on the grounds that the impugned Act under which the
decision is made is ultra vires or that the decision itself infringes the
fundamental rights of the petitioners.
In the circumstance&, the challenge must
be confined only to the third ground, viz., that the decision is ultra vires
the Act itself.
The first ground of attack is based on the
circumstance that Shri K. P. Kesava Menon who was originally appointed a member
of the Wage Board resigned on or about June 21, 1956, which resignation was
accepted by the Central Government by a notification dated July 14, 1956, and
by the same notification the Central Government appointed in his place Shri K.
M. Cherian and thus reconstituted the Wage Board.
There was no provision in the Act for the
resignation of any member from his membership or for the filling in of the
vacancy which thus arose in the membership of the Board. A provision in this
behalf was incorporated only in the Working Journalists Wage Board Rules, 1956,
which were published by a notification in the Gazette of India Part 11Section 3
on date July 31, 1956. It was, therefore, contended that such reconstitution of
the Board by the appointment of Shri K. M. Cherian in place of Shri K. P.
Kesava Menon was unauthorised by the Act as
it then stood (1)  S.C.R. 572, 578.
(2)  S.C.R. 1122, 1127.
(3)  S.C.R.267.
(4)  S.C.R. 664.
173 and the Board which actually published
the decision in question was therefore not properly constituted.
It is necessary to remember in this
connection that s. 8 of the Act empowered the Central Government by
notification in the Official Gazette to constitute a Wage Board. This power of
constituting the Wage Board must be construed having regard to s. 14 of the General Clauses Act,
1897, which says that where by any Central Act or
Regulation made after the commencement of the Act, any power is conferred then,
unless a different intention appears that power may be exercised from time to
time as occasion arises. If this is the true position there was nothing
objectionable in the Central Government reconstituting the Board on the
resignation of Shri K. P. Kesava Menon being accepted by it. The Wage Board can
in any event be deemed to have been constituted as on that date, viz., July 14,
1956, when all the 5 members within the contemplation of s. 8(2) of the Act
were in a position to function. Shri K. P. Kesava Menon had not attended the
preliminary meeting of the Board which had been held on May 26, 1956, and the
real work of the Wage Board was done after the appointment of Shri K. M.
Cherian in his place and stead and it was only after July 14, 1956, that the
Wage Board as a whole constituted as it was on that date really functioned as
such. The objection urged by the petitioners in this behalf is too technical to
make any substantial difference in regard to the constitution of the Wage Board
and its functioning.
This ground ignores the fact that the Working
Journalists Wage Board Rules, 1956, which were published on July 31, 1956, were
made by the Central Government in exercise of the power conferred upon it by s.
20 of the Act. That section empowered the Central Government to make rules to
carry out the purposes of the Act, in particular to provide for the procedure
to be followed by the Board in fixing rates of wages. Rule 8 provided that
every question considered at a meeting of the Board was to be decided by a
majority of the votes of the members present and 174 voting. In the event of
equality of votes the Chairman was to have a casting vote............... This
Rule therefore prescribed that the decision of the Board could be reached by a
majority and this was the rule which was followed by the Board in arriving at
its decision. The rule was framed by the Central Government by virtue of the
authority vested in it under s. 20 of the Act and was a piece of delegated
legislation which if the rules were laid before both the Houses of Parliament
in accordance with s.
20(3) of the Act acquired the force of law.
After the publication of these rules, they became a part of the Act itself and
any decision thereafter reached by the Wage Board by a majority as prescribed
therein was therefore lawful and could not be impeached in the manner
This ground has reference to the alleged
violation by the Wage Board of the principles of natural justice. It is urged
that the procedure established under the Industrial Disputes
Act was not in terms prescribed for the Wage Board, the Board having been given
under s. 11 of the Act the discretion for the purpose of fixing rates of wages
to exercise the same powers and follow the same procedure as an Industrial
Tribunal constituted under the Industrial Disputes
Act, 1947, while adjudicating upon an industrial dispute referred to it. On two
distinct occasions, however, the Wage Board definitely expressed itself that it
had the powers of an Industrial Tribunal constituted under the Industrial
Disputes Act' The first occasion was when the questionnaire was issued by the
Wage Board and in the questionnaire it mentioned that
it had such powers under s.
11 of the Act. The second occasion arose when
a number of newspapers and journals to whom the questionnaire was addressed
failed to send their replies to the same and the Wage Board at its meeting held
on August 17, 1956, reiterated the position and decided to issue a Press Note
requesting the newspapers and journals to send their replies as soon as
possible, inviting their attention to the fact that the Board had powers of an
Industrial Tribunal under the 175 Act and if newspapers failed to send their
replies, the Board would be compelled to take further steps in the matter. This
is clearly indicative of the fact that the Wage Board did seek to exercise the
powers under the terms of s. 11 of the Act. Even though, the exercise of such
powers was discretionary with the Board, the, Board itself assumed these powers
and assimilated its ,position to that of an Industrial Tribunal constituted
under the Industrial Disputes
Act, 1947. If, then, it assumed those powers, it only
followed that it was also bound to follow the procedure which an Industrial
Tribunal so constituted was bound to follow.
It is further urged that in the whole of the
questionnaire which was addressed by the Wage Board to the newspaper
establishments, there was no concrete proposal which was submitted by the Wage
Board to them for their consideration.
The only question which was addressed in this
behalf was Question No. 4 in Part "A" which asked the newspaper
establishments whether the basic minimum wage, dearness allowance and
metropolitan allowance suggested by the Press Commission were acceptable to
them and if not, what variations would they suggest and why. The question as
framed would not necessarily focus the attention of the newspaper
establishments to any proposal except the one which was the subject-matter of that
question, viz., the -proposal of the Press Commission in that behalf and the
newspaper establishments to whom the questionnaire was addressed would
certainly not have before them any indication at all as to what was the wage
structure which was going to be adopted by the Wage Board. Even though the Wage
Board came to the conclusion, as a result of its having collected the requisite
data and gathered sufficient materials, after receiving the answers to the
questionnaire and examining the witnesses, that certain wage structure was a
proper one in its opinion, it was necessary for the Wage Board to communicate
the proposals in that regard to the various newspaper establishments concerned
-and invite them to make their -representations, if any, within a specified
period. It was only after such representations were received from the
interested parties 176 that the Wage Board should have finalized its proposals
and published its decision. If this procedure had been adopted the decision of
the Wage Board could not have been challenged on the score of its being
contrary to the principles of natural justice.
It would have been no doubt more prudent for
the Wage Board to have followed the procedure outlined above. The ground No. 8
is, in our opinion, sufficiently determinative of the question as to the ultra
vires character of the Wage Board decision and in view of the 'conclusion
reached by us in regard to the same, we refrain from expressing any opinion on
this ground of attack urged by the Petitioners.
This ground is urged because no reasons were
given by the Wage Board for its decision. As a matter of fact, the Wage Board
at its meeting dated April 22, 1957, agreed that reasons need not be given for
each of the decisions and it was only sufficient to record the same and
accordingly it did not give any reasons for the decision which it published. In
the absence of any such reasons, however, it was difficult to divine what
considerations, if any, prevailed with the Wage Board in arriving at its
decision on the various points involved therein. It was no doubt not incumbent
on the Wage Board to give any reasons for its decision. The Act made no
provision in this behalf and the Board was perfectly within its rights if it
chose not to give any reasons for its decision. Prudence should, however, have
dictated that it gave reasons for the decision which it ultimately reached
because if it had done so, we would have been spared, the necessity of trying
to probe into its mind and find out whether any particular circumstance
received due consideration at its hands in arriving at its decision. The fact
that no reasons are thus given, however, would not vitiate the decision in any
manner and we may at once say that even though no reasons are given in the form
of a regular judgment, we have sufficient indication of the Chairman's mind in
the note which he made on April 30, 1956, which is a contemporaneous record explaining
the reasons for the decision of the majority.
177 This note of the Chairman is very
revealing and throws considerable light on the question whether particular
circumstances were at all taken into consideration by the Wage Board before it
arrived at its decision.
This ground concerns the classification of
newspaper establishments on the basis of gross revenue. Such classification was
challenged as illegal and unauthorised by the Act. The Act certainly says
nothing about classification and could not be expected to do so. What the Act
authorised it to do was to fix the rates of wages for working journalists
having regard to the principles laid down in s. 9(1) of the Act. In fixing the
wage structure the Wage Board constituted under the Act was perfectly at
liberty if it thought necessary to classify the newspaper establishments in any
manner it thought proper provided of course that such classification was not
irrational. If the newspaper establishments all over the country had got to be
considered in regard to fixing of rates of wages of working journalists
employed therein it was inevitable that some sort of classification should be
made having regard to the size and capacity of newspaper establishments.
Various criteria could be adopted for the purpose of such classification, viz.,
circulation of the newspaper, advertisement revenue, gross revenue, capital
invested in the business, etc., etc. Even though the proportion of
advertisement revenue to the gross revenue of newspaper establishments may be a
relevant consideration for the purpose of classification, we are not, prepared
to say that the Wage Board was not justified in adopting this mode of
classification on the basis of gross revenue. It was perfectly within its
competence to do so and if it adopted that as the proper basis for
classification it cannot be said that the basis which it adopted was radically
wrong or was such as to vitiate its decision. If the need for classification is
accepted, as it should be, having regard to the various sizes and capacities of
newspaper establishments all over the country it was certainly necessary to
adopt a workable test for such classification and if the Wage Board 23 178 had
adopted classification on the basis of the gross revenue, we do not see any
reason why that decision of its was in any manner whatever unwarranted.
It may be remembered in this connection that
the Newspaper Industry Inquiry Committee in U. P. had suggested in its report
dated March 31,1949, classification of newspapers in the manner following:"A
" Class-Papers with (1) a circulation of 10,000 copies or above or (2) an
invested capital of rupees 3 lakhs or more :
(3) an annual income between rupees one lakhs
and 3 lakhs or more:
"B " Class-Papers with (1) a
circulation below 10,000 but above 5,000 copies or (2) an invested capital
between rupees one lakh and 3 lakhs or (3)an annual income between rupees one
lakh and 3 lakhs;
"C " Class-Papers with (1)a
circulation below 5000 copies or (2) an invested capital below rupees one lakh
or (3) an annual income below rupees one lakh.
The classification on the basis of gross
revenue was attacked by the petitioners on the ground that in the gross revenue
which is earned by the newspaper establishments, advertisement revenue
ordinarily forms a large bulk of such revenue and the revenue earned by
circulation of newspapers forms more often than not a small part of the same,
though in regard to language newspapers the position may be somewhat different.
Unless, therefore, the proportion of advertisement revenue in the gross revenue
of newspaper establishments were taken into consideration, it would not be
possible to form a correct estimate of the financial status of that newspaper
establishment with a view to its classification. The petitioners on the other
hand suggested that the profit and loss of the newspaper establishments should
be adopted as the proper test and if that were adopted a different 179 picture
altogether would be drawn. The balancesheets and the profit and loss accounts
of the several newspaper establishments would require to be considered and it
was contended that even if the gross revenue of a particlar newspaper
establishment were so large as to justify its inclusion on the basis of gross
revenue in Class " A " or Class " B " it might be working
at a loss and its classification as such would not be justified.
We have already referred in the earlier part
of this judgment to the unsatisfactory nature of the profit and loss test. Even
though the profit and loss accounts and the balance-sheets of the several
limited companies may have been audited by their auditors and may also have
been accepted by the Income-tax authorities, they would not afford a
satisfactory basis for classification of these newspaper establishments for the
reasons already set out above.
As a matter of fact, even before us attempts
were made by the respondent, the Indian Federation of Working Journalists to
demonstrate that the profit and loss accounts and the balance-sheets of several
petitioners were manipulated and unreliable. We are not called upon to decide
whether the profit and loss test is one which should be accepted; it is
sufficient for our purpose to say that if such a test was not accepted by the
Wage Board, the Wage Board was certainly far from wrong in doing so.
This ground relates to grouping into chains
or multiple units and the ground of attack is that such grouping is
unauthorised by the Act.
The short answer to this contention is that
if such grouping into chains or multiple units was justified having regard to
the conditions of the newspaper industry in the country, there was nothing in
the Act which militated against such grouping. The Wage Board was authorised to
fix the wage structure for working journalists who were employed in various
newspaper establishments all over the country. If the chains or multiple units
existed in the country the newspaper establishments which formed' such chains
180 or multiple units were well within the purview of the inquiry before the
Wage Board and if the Wage Board thus chose to group them together in that
manner such grouping by itself could not be open to attack. The Act could not
have expressly authorized the Wage Board to adopt such grouping.
It was up to the Wage Board to consider
whether such grouping was justified under the circumstances or not and unless
we find something in the Act which prohibits the Wage Board from doing so, we
would not deem any such grouping as unauthorised. The real difficulty, however,
in the matter of grouping into chains or multiple units arises in connection
with the capacity of the industry to pay, a topic which we shall discuss
hereafter while discussing the ground in connection therewith.
This ground is based on the definition of
" newspaper establishment" found in Sec. 2 (d) of the Act. "
Newspaper establishment" is there defined as " an establishment under
the control of any person or body of persons, whether incorporated or not, for
the production or publication of one or more newspapers or for conducting any
news agency or syndicate." So, the contention put forward is that "
an establishment " can only mean " an establishment " and not a
group of them, even though such an individual establishment may produce or
publish one or more newspapers. The definition may comprise within its scope
chains or multiple units, but even so, the establishment should be one
individual establishment producing or publishing a chain of newspapers or
multiple units of newspapers. If such chains or multiple units were, though
belonging to some person or body of persons whether incorporated or not,
produced or published by separate newspaper establishments, common control
would not render. the constitution of several newspaper establishments as one
establishment for the purpose of this definition, they would none the less be
separate newspaper establishments though under common control.
Reliance was placed in support of this
contention on a decision of the Calcutta High Court in Pravat Kumar 181 v. W.
T. C. Parker (1), where the expression which came up for construction before
the Court was " employed in an industrial establishment " and it was
observed that:" Employed in an industrial establishment " must mean
employed in some particular place, that place being the place used for
manufacture or an activity amounting to industry, as that term is used in the
Act." A similar interpretation was put on the expression industrial
establishment " by the Madras High Court in S. R. V. Service Ltd. v. State
of Madras (2), where it was observed at p. 12:" They referred only to a
dispute between the workers and the management of one industrial establishment,
the Kumbakonam branch of the S. R. V. S. Ltd. I find it a little difficult to
accept the contention of the learned counsel for the Madras Union, that the
Kumbakonam branch of the S. R. 'V. S. Ltd., is not an industrial establishment
as that expression has been used in the several sections of the
Act............................... I need refer only to section 3 of the Act to
negative the contention of the learned counsel for the Madras Union, the S. R.
V. S. Ltd., with all -its branches should betaken as one industrial
establishment." These decisions lend support to the contention that a
newspaper establishment like an industrial establishment should be located in
one place, even though it may be carrying on its activities of production or
publication of more newspapers than one. If these activities are carried on in
different places, e. g., in different towns or cities of different States, the
newspaper establishments producing or publishing such newspapers cannot be
treated as one individual establishment but should be treated as separate
newspaper establishments for the purpose of working out the relations between
themselves and their employees. There would be no justification for including
these different newspaper establishments into. one chain or multiple unit and
treating them, as if they were one (1) A. I. R. 1950 Cal. 116, 118, para. 20.
(2) A. I. R. 1956 Mad. 115, 122.
182 newspaper establishment. Here again, the
petitioners are faced with this difficulty that there is nothing in the Act to
prohibit such a grouping. If a classification on the basis of gross revenue
could be legitimately adopted by the Wage Board then the grouping into chains
or multiple units could also be made by it. There is nothing in the Act to
prohibit the treating of several newspaper establishments producing or
publishing one or more newspapers though in different parts of the country as
one newspaper establishment for the purpose of fixing the rates of wages.
It would not be illegitimate to expect the same
standard of employment and conditions of service in several newspaper
establishments under the control of any person or body of persons, whether
incorporated or not; for an employer to think of employing one set of persons
on higher scales of wages and another set of workers on lower scales of wages
would by itself be iniquitous, though it would be quite legitimate to expect
the difference in scales having regard to the quality of the work required to
be done, the conditions of labour in different regions of the country, the
standard of living in those regions and other cognate factors.
All these considerations would necessarily
have to be borne in mind by the Wage Board in arriving at its decision in
regard to the wage structure though the relative importance to be attached to
one circumstance or the other may vary in accordance with the conditions in
different areas or regions where the newspaper establishments are located.
We now come to the most important ground,
viz., that the decision of the Wage Board has not taken into consideration the
capacity to pay of any particular newspaper establishment. As we have already
seen, the fixings: of rates of wages by the Wage Board did not prescribe
whether the wages which were to be fixed were minimum wages, fair wages, or
living, wages and it was left to the discretion of the Wage Board to determine
the same. The principles for its guidance were, However, laid down and they
prescribed the circumstances which were to be taken into consideration before 183
such determination was made by the Wage Board. One of the essential
considerations was the capacity of the industry to pay and that was comprised
within the category " the circumstances relating to newspaper industry in
different regions of the country ". It remains to consider, however,
whether the Wage Board really understood this category in that sense and in
fact applied its mind to it. At its preliminary meeting held on May 26, 1956,
the Board set up a SubCommittee to draft a questionnaire to be issued to the
various journals and organisations concerned, with a view to eliciting factual
data and other relevant information required for the fixation of wages. The
Sub-committee was requested to bear in mind the need inter alia for 'proper
classification of the country into different areas on the basis of certain
criteria like population, cost of living, etc. This was the only reference to
this requirement of s.
9(1) and there was no reference herein to the
capacity of the industry to pay which we have held was comprised therein. The
only question in the questionnaire as finally framed which had any reference to
this criterion was Question No. 7 in Part " A " under the heading
" Special Circumstances " and that question was: " Are there in
your regions any special conditions in respect of the newspaper industry which
affect the fixing of rates of wages of working journalists ? If so, specify the
conditions and indicate how they affect the question of wages." But here
also it is difficult to find that the capacity of the industry to pay was
really sought to be included in these special conditions. The Wage Board no
doubt asked for detailed accounts of newspaper establishments and also required
information which would help it in the proper evaluation of the nature and
quality of work of various categories of working journalists, but the capacity
of the industry to pay which was one of the essential considerations was
nowhere prominently brought in issue and no information on that point was
sought from the various newspaper establishments to whom the questionnaire was
going to be addressed. The answers to Question No. 7 as summarized by the Wage
Board no doubt referred in some cases to the capacity 184 of the industry to
pay but that was brought in by the newspaper establishments themselves who
answered the question in an incidental manner and could not be said to be
prominent in the minds of the parties concerned.
It is pertinent to observe that even before
the Press Commission the figures had disclosed that out of 127 newspapers 68
had been running into loss and 59 with profits and there was an overall profit
of about 1% on a capital investment of seven crores. The -profit and loss
accounts and the balance sheets of the various companies owning or controlling newspaper
establishments were also submitted before the Wage Board but they had so far as
they went a very sorry tale to tell. The profit and loss statements for the
year 1954-55 revealed that while 43 of them showed profits 40 had incurred
losses. Though no scientific conclusion could be drawn from this statement it
showed beyond doubt that the condition of the newspaper industry as a whole
could not be considered satisfactory. Under these circumstances, it was all the
more incumbent upon the Wage Board even though it discounted these profit and
loss statements as not necessarily reflecting the true financial position of
these newspaper establishments, to consider the question of the capacity of the
industry to pay with greater vigilance.
There was again another difficulty which
faced the Wage Board in that behalf and it was that out of 5,705 newspapers to
whom the questionnaire was addressed only 312 or at best 325 had responded and
the Wage Board was in the dark as to what was the position in regard to other
newspaper establishments. As a matter of fact, the chairman in his note dated
April 30, 1957, himself pointed out that the Wage Board had no data before it
of all the newspapers and where it had, that was in many cases not
satisfactory. This aspect was again emphasized by him in his note when he
reiterated that the data available to the Wage Board had not been as complete
as it would have wished them to be and therefore recommended in the end the
establishment of a standing administrative machinery which would collect from
all newspaper 185 establishments in the country on a systematic basis detailed
information and data such as those on employment, wage rates and earnings,
financial condition of papers, figures of circulation, etc., which may be required
for the assessment of the effects of the decision of the Wage Board at the time
of the review. The Wage Board, in fact, groped in the dark in the absence of
sufficient data and information which would enable it to come to a proper
conclusion in regard to the wage structure which it was to determine. In the
absence of such data and materials the Board was not in a position to work out
what would be the impact of its proposals on the capacity of the industry to
pay as a whole or even region-wise and the chairman in his note stated that it
was difficult for the Board at that stage to work out with any degree of
precision, the economic and other effects of its decision on the newspaper
industry as a whole. Even with regard to the impact of these proposals on individual
newspaper establishments the chairman stated that the future of the Indian
language newspapers was bright, having regard to increasing literacy and the
growth of political consciousness of the reading public, and by rational
management there was great scope for increasing the income of newspapers and
even though there was no possibility of any adjustment which might satisfy all
persons interested, it was hoped that no newspaper would be forced to close
down as a result of its decision; but that if there was a good paper and it
deserved to exist, the Government and the public would help it to continue.
This was again a note of optimism which does not appear to have been justified
by any evidence on the record.
Even though, the Wage Board classified the
newspaper establishments into 5 classes from " A " to " E "
on the basis of their gross revenue the proportion of the advertisement revenue
to the gross revenue does not appear to have been taken into consideration nor
was the essential difference which subsisted between the circulation and the
paying capacity of the language newspapers as compared with newspapers in the
24 186 English language taken into account. If this had been done, the basis of
gross revenue which the Wage Board adopted would have been modified in several
The grouping of the newspapers into chains or
multiple units implied that the weaker units in those groups were to be treated
as on a par with the stronger units and it was stated that the loss in the
weaker units would be more than compensated by the profits in the more
The impact of these proposals on groups of
newspapers was only defended on principle without taking into consideration the
result which they would have on the working of the weaker units. Here also the
Chairman expressed the opinion that the Board was conscious that as a result of
its decision, some of the journalists in the weaker units of the same group or
chain may get much more than those working in its highest income units. He however
stated that if the principle was good and scientific, the inevitable result of
its application should be judged from the stand-point of Indian Journalism as a
whole and not the burden it casts on a particular establishment. It is clear
therefore, that this principle which found favour with the Wage Board was
sought to be worked out without taking into consideration the burden which it
would impose upon the weaker units of a particular newspaper establishment.
The representatives of the employers objected
to the fixation of scales of wages on the plea that fixation of rates of wages
did not include the fixation of scales of wages. This contention was negatived
by the representatives of the employees as also by the Chairman and the Wage
Board by its majority decision accepted the position that it could, while
fixing the rates of wages also fix the scales of wages. The Press Commission
itself had merely suggested a basic minimum wage for the consideration of the
parties concerned but had suggested that so far as the scales of wages were
concerned they were to be settled by collective bargaining or by adjudication.
Even though the Wage Board took upon itself the burden of fixing scales of
wages as really comprised within the terms of their reference, it was incumbent
upon it to consider what the impact of 187 the scales of wages fixed by it
would be on the capacity of the industry to pay. There is nothing on the record
to suggest that both as regards the rates of wages and the scales of wages
which it determined the Wage Board ever took into account as to what the impact
of its decision would be on the capacity of the industry to pay either as a
whole or region-wise.
There is, however, a further difficulty in
upholding the decision of the Wage Board in this behalf and it is this that
even as regards the fixation of the rates of wages of working journalists the
Wage Board does not seem to have taken into account the other provisions of the
Act which conferred upon the working journalists the benefits of retrenchment
compensation, payment of gratuity, hours of work and leave. These provisions
were bound to have their impact on the paying capacity of the newspaper
establishments and if these had been borne in mind by the Wage Board it is
highly likely that the rates of wages including the scales of wages as finally
determined might have been on a lesser scale than what one finds in its
This difficulty becomes all the more
formidable when one considers that the working journalists only constituted at
best one-fifth of the total staff employed in the various establishments. The
rest of the 80% comprised persons who may otherwise be described as factory
workers who would
be able to ameliorate their conditions of service by having resort to the
machinery under the Industrial Disputes Act.
If the conditions of service of the working journalists
were to be improved by the Wage Board the other employees of newspaper
establishments were bound to be restive add they would certainly, at the very
earliest opportunity raise industrial disputes with a view to the betterment of
their conditions of service. Even though the Industrial Courts established
under the Industrial Disputes Act, 1947, might not
give them relief commensurate with the relief which the Wage Board gave to the
working journalists, there was bound to be an improvement, in their conditions
of service which the Industrial Court would certainly determine having regard
to the benefits which the working journalists 188 enjoyed and this would indeed
impose an additional financial burden on the newspaper establishments which
would substantially affect their capacity to pay. This consideration also was
necessarily to be borne in mind by the Wage Board in arriving at its final
decision and one (foes not find anything on the record which shows that it was
actually taken into consideration by the Wage Board.
The retrospective operation of the. decision
of the Wage Board was also calculated to impose a financial burden on the
newspaper establishments. Even though this may be a minor consideration as
compared with the other considerations above referred to, it was none the less
a circumstance which the Wage Board ought to have considered in arriving at its
decision in regard to the fixing of rates of wages.
The financial burden which was imposed by the
decision of the Wage Board was very vividly depicted in the statements furnished
to us on behalf of the petitioners in the course of the hearing before us.
These statements showed that the wage bill of these newspaper establishments
was going to be considerably increased, that the retrospective operation of the
decision was going to knock off a considerable sum from their reserves and that
the burden imposed upon the newspaper establishments by the joint impact of the
provisions of the Act in regard. to retrenchment compensation, payment of
gratuity, hours of work and leave as well as the decision of the Wage Board in
regard to the fixing of rates of wages and the scales of wages would be such as
would cripple the resources of the newspaper establishments, if not necessarily
lead to their complete extinction. The statements also showed what extra burden
was imposed upon the newspaper establishments, if they wanted to discharge the
working journalists from their employ which burden was all the greater, if per
chance, the newspaper establishments, even though reluctantly came to a decision
that it was worth their while to close down their business rather than continue
the same with all these financial burdens imposed upon them. These figures have
been given by us in the earlier 189 part of our judgment and we need not repeat
the same. The conclusion, however, is inescapable that the decision of the Wage
Board imposed a very heavy financial burden on the newspaper establishments,
which burden was augmented by the classification on the basis of gross-revenue,
fixation of scales of wages, provisions as, regards the hours of work and
leave, grouping of newspapers into chains or multiple units and retrospective
operation given to the decision of the Wage Board as therein mentioned.
If these proposals had been circulated,
before being finalized, by the Wage Board to the various newspaper
establishments so that these newspaper establishments could, if they so
desired, submit their opinions thereupon and their representations, if any, in
regard to the same to the Wage Board for its consideration and if the Wage
Board had after receiving such opinions and representations from the newspaper
establishments concerned finalised it decision, this attack on the ground of
the Wage Board not having taken into consideration the capacity of the industry
to pay as a whole or region-wise would have lost much of its force. The Wage
Board, however, did nothing of the type. Proposals were exchanged between the
representatives of the employers and the representatives of the employees. The
discussion that the chairman had with each set of representatives did not bear
any fruit and the chairman himself by way of mediation, as it were, submitted
to them his own proposals presumably having regard to the different points of
view which had been expressed by both these parties. The decision in regard to
the scales of wages, was, as we have seen before, a majority decision which was
not endorsed by the representatives of the employers. The proposals of the
chairman also were not acceptable to the representatives of the employers but
the representatives of the employees accepted them and they thus became the
majority decision of the Wage Board. The ultimate decision of the chairman on
those points does not appear to have been the result of any consideration of
the capacity of the industry to pay as a whole or region-wise but reflects a
compromise 190 which he brought about between the diverse views but which also
was generally accepted only by the representatives of the employees and not the
representatives of the employers.
Nowhere can we find in the instant case any
genuine consideration of the capacity of the industry to pay either as a whole
or region-wise. We are supported in this conclusion by the observations of the
chairman himself in the note which he made simultaneously with the publication
of the decision on April 30, 1957, that it was difficult for the Wage Board at
that stage to work out with any degree of precision, the economic and other
effects of the decision on the newspaper industry as a whole.
An attempt was made on behalf of the
respondents in the course of the hearing before us to shew that by the
conversion of the currency into naye pyse and the newspapers charging to the
public higher price by reason of such conversion, the income of several
newspapers had appreciably increased. These figures were, however, controverter
on behalf of the petitioners and it was pointed out that whatever increase in
the revenue was brought about by reason of this conversion of price into naye
pyse was more than offset by the fall in circulation, ever rising price of
newsprint and the higher commission, etc., which was payable by the newspaper
establishments to their commission agents.
The figures as worked out need not be
described here in detail; but we are satisfied that the conversion of the price
into naye pyse had certainly not the effect which was urged and did not add to
the paying capacity of the newspaper establishments.
The very fact that the Wage Board thought it
necessary to express a pious hope that if there is a good paper and it deserves
to exist, the Government and the public will help it to continue, and also
desired the interests which it felt had been hit hard by its decision not to
pass judgment in haste, but to watch, the effects of its decision in actual working
with patience for a period of 3 to 5 years, shows that, the Wage Board was not
sure of its own ground and was publishing its decision merely by way of an
experiment. The chairman urged upon the Government of India 191 the
desirability of creating immediately a standing administrative machinery which
could also combine in itself the functions of implementing and administering
its decision and that of preparing the ground for the review and revision
envisaged after 3 to 5 years. This was again a, pious hope indulged in by the
Wage Board. It was not incumbent on the Government to fulfill that expectation
and there was no knowing whether the Government would ever review or revise the
decision of the Wage Board at the expiration of such period.
We have carefully examined all the
proceedings of the Wage Board and the different tables and statements prepared
by them. Neither in the proceedings nor in any of the tables do we see
-satisfactory evidence to show that the capacity of the industry to pay was
examined by the Board in fixing the wage structure. As we have already
observed, it was no doubt open to the Board not to attach undue importance to
the statements of profit and loss accounts submitted by various newspaper
establishments, but, since these statements prima facie show that the trade was
not making profit it was all the more necessary for the Board to satisfy itself
that the different classes of the newspaper establishments would be able to
bear the burden imposed by the wage structure which the Board had decided to
Industrial adjudication is familiar with the
method which is usually adopted to determine the capacity of the employer to
pay the burden sought to be imposed on him.. If the industry is divided into
different classes it may not be necessary to consider the capacity of each
individual unit to pay but it would certainly be necessary to consider the
capacity of the respective classes to-bear the burden imposed on them. A
cross-section of these respective classes may have to be taken for careful
examination and all relevant factors may have to be borne in mind in deciding
what burden the class considered as a whole can bear. If possible, an attempt
can also be made, and is often made, to project the burden of the wage
structure into two or three succeeding years and determine how it affects the
financial position of the employer. The whole of the 192 record before the
Board including the chairman's note gives no indication at all that an attempt
was made by the Board to consider the capacity of the industry to pay in this
manner. Indeed, the proceedings show that the demands made by the
representatives of the employees and the concessions made by the employers'
representatives were taken as rival contentions and the Chairman did his best to
arrive at his final decision on the usual basis of give and take. In adopting
this course, all the members of the Board seem to have lost sight of the fact
that the essential prerequisite of deciding the wage structure was to consider
the capacity of the industry to pay and this, in our opinion, introduces a
fatal infirmity in the decision of the Board. If we had been satisfied that the
Board had considered this aspect of the matter, we would naturally have been
reluctant to accept any challenge to the validity of the decision on the ground
that the capacity to pay had not been properly considered.
After all, in cases of this kind where
special Boards are set up to frame wage structures, this Court would normally
refuse to constitute itself into a court of appeal on questions of fact; but,
in the present case, an essential condition for the fixation of wage structure
has been completely ignored and so there is no escape from the conclusion that
the Board has contravened the mandatory requirement of s. 9 and in consequence
its decision is ultra vires the Act itself.
This ground, viz., that the Board had no
authority to render a decision which was retrospective in operation in also
untenable. The Wage Board certainly had the jurisdiction and authority to
pronounce a decision which could be retrospective in effect from the date of
its appointment and there was no legal flaw in the Wage Board prescribing that
its decision should be retrospective in operation in the manner indicated by
it. The retrospectivity may have its repercussions on the capacity of the
industry to pay and we need not say anything more in regard to the same. We
have already dealt with it above.
193 Be. 10.
Ground No. 10 talks of the authority of the
Wage Board to fix scales of pay for a period of 3 years, subject to review by
the Government by appointing another Wage Board at the end of that period. We
are not concerned with such fixation of the period for the' simple reason that
the Board has not in terms done so. The only authority which it had was to fix
the rates of wages and submit its decision in respect thereof to the
Government. Any pious hope expressed that the decision should be subject to
review or revision by the Government by appointment of another Wage Board after
the lapse of 3 or 5 years was not a part of its decision and we need not pause
to consider the effect of such fixation of the period, if any, because it has
in fact not been done.
The last ground talks of the Wage Board being
handicapped for want of Cost of Living Index. This ground also cannot avail the
petitioners for the simple reason that the decision of the Wage Board itself
referred in Clause 24 thereof to the all India cost of living index number
published by the Labour Bureau of the Government of India 0 Base 1944: 100 and
fixed the dearness allowance in relation to the same. These statistics were
available to the Wage Board and it cannot be said that the Wage Board was in
any manner whatever handicapped in that respect.
On a consideration of all the grounds of
attack thus levelled against the validity and the binding nature of the
decision of the Wage Board, we have, therefore, come to the conclusion that the
said decision cannot be sustained and must be set aside.
The petitions will, therefore, be allowed and
the petitioners will be entitled to an order declaring that s. 5 (1) (a) (iii)
of the Working Journalists (Conditions of Service) and Miscellaneous Provisions
Act, 1955, is ultra vires the Constitution of India and that the decision of the
Wage Board dated April 30, 1957, is illegal and void.
As regards the costs, in view of the fact
that the 25 194 petioners have failed in most of their contentions in regard to
the constitutionality of the Act, the fairest, order would be that each party should
bear and pay its own costs of these petitions.
Civil Appeals Nos. 699-703 of 1957.
These Civil Appeals are directed against the
decision of the Wage Board and seek to set aside the same as destroying the
very existence of the newspaper establishments concerned and infringing their
fundamental rights. Special leave under Art. 136 of the Constitution was
granted by this Court in respect of each of them, subject to the question of
maintainability of the appeals being open to be urged.
These appeals are also covered by the
judgment just delivered by us in Petition No. 91 of 1957 & Ors., and the
appellants would be entitled to a declaration in each one of them that the
decision of the Wage Board is ultra vires the Working Journalists (Conditions of
Service) and Miscellaneous Provisions Act, 1955, and therefore void and
In view of the conclusion thus reached, we
feel it unnecessary to consider whether the appeals would be maintainable under
Art. 136 of the Constitution. The appellants having substantially succeeded in
their respective petitions under Art. 32 of the Constitution, the question has
now become purely academic and we need not spend any time over the same.
The result therefore is that there will be no
orders save that all the parties thereto shall bear and pay their own costs
Appeals disposed of accordingly.