Indian Express Newspapers (Bombay)
(Pvt.) Ltd. & ANR Vs. Indian Express Newspapers (Bombay) Employees Union
& Ors  INSC 63 (10 March 1978)
CITATION: 1978 AIR 1137 1978 SCR (3) 473 1978
SCC (3) 188
Constitution of India, 1950, Art.
136-Interference by Supreme Court on the merits in an appeal against an
industrial award-Construction of the language of a reference whether the
reference in the instant case, included the pronouncement upon gratuity"
to non-journalists by the Tribunal.
The Central Government made a reference to
the Industrial Tribunal in the following terms :
"Whether, the recommendations of the
Wage Board for non-journalist employees as accepted by Government by its
Resolution No. WB-17(7)
67. dated the 18th November, 1967, are unfair
or unreasonable and if so, what modifications are required therein to ensure a
fair and just wage structure for the non-journalists, having due regard to the
paying capacity of the respective newspaper establishment, the employer's
agreement and the emoluments of employees engaged in comparable
establishments." The National Tribunal gave an award covering many topics
including gratuity. All the newspaper establishments, but one namely, the
appellant, had fallen in line and left the award unchallenged. The appellant,
however, challenged the very jurisdiction of the Tribunal to pronounce upon
"gratuity", on the ground 'that it falls outside the reference
Dismissing the appeal, the Court
HELD : 1. Industrial jurisprudence is not
static, rigid or textually cold, but dynamic, burgeoning and warm with life.
It answers in emphatic negative the biblical
"what man is there of you, who if his
son ask bread, will give him a stone?" The Industrial Tribunal of India in
areas unoccupied by precise black letter law, go by the Constitutional mandate
of social justice in the claims of the 'little people'. [475 D-F-] 2.It is not
as if the Supreme Court of India shall not go back upon what was throughout
understood by all before the Tribunal. The jurisdictional justification must be
found in the Reference itself, not in the brooding, perhaps blundering,
consciousness of litigants, liberality, not, pedantry, guiding the construction
of the language of the references [476 B-C] .
Management of Express Newspapers Ltd. v.
Workers and Staff  3 SCR P. 540 @ 555 followed.
3. This Court lends no countenance to
submission on the merits in the absence o flagrant violation of principles
gross travesty of justice and like extreme grounds, especially when the appeal
is against an Award by an Indus- trial Tribunal. [481 B-C]
4. 'Gratuity' and its quantum, like other
retirement benefits, has a bearing on the wage structure and vice versa. It is
true that the wage structure relates to the emoluments during service, while
gratuity is a terminal benefit or, rather, a retirement benefit. Although these
two fall into different compartments they are inter- connected. A heavy wage
scale, may have same impact on the gratuity rate and a large provision for
gratuity nay have its retroactive effect upon the wage structure. It is
composite equity writ on the economic life of the worker.
[477 G-H. 478 A] 474 in the instant case:-
5. (a) It is proved beyond reasonable doubt
that the parties can both sides at the level of pleadings, at the stage of
arguments and in the rival process of contest, desiderated a decision on a
gratuity scheme for non-journalists. Item 1 of the Schedule of the Reference,
the proceedings before the Tribunal and the reasoning in the Award converge to
the only conclusion reasonably available that the gratuity scheme for
non-journalist workmen was covered by the reference. [478 H, 480 E-F, 481 A]
(b) The Tribunal was well within its jurisdiction in deciding on 'gratuity'.
The Wage Board has made recommendations on gratuity (paragraph 4.28). Indeed,
item 2 of the reference to the Wage Board which covers non- journalist
employees involves gratuity. The management in its written statement before the
Tribunal has contended that there was no justification for the Wage Board to
apply the gratuity scheme as applicable to working journalists, to all the
non-journalist employees. All these lead to the only conclusion that the scheme
of gratuity recommended by the Wage Board was before the Tribunal for revision
or modification. [478 B-C-G] (d) The Tribunal's duty to decide a 'matte
referred to it, could not be repelled merely because there was no separate plea
by one of the many workmen's groups about gratuity; and [478 G] (e) The
recommendations made by the Wage Board and accepted by the Government
admittedly include gratuity. The Tribunal has, ex-necessitate, to decide
whether this recommendationon gratuity is unjust and unreasonable. This is what
it has done. Secondly,it has to examine what modifications,if any, are justly
necessary therein,i.e., in the Wage Board gratuity. This, again is what has
been undertaken by the Tribunal. [477 C-E]
CIVIL APPELLATE JURISDICTION : Civil Appeals
Nos. 530-32/71 (Appeals from the Award dt. the 15th of July, 1970 of the
National Tribunal Calcutta in References Nos. NIT-1 of 1968, NIT-2 of 1968 and
NIT-1 of 1969 published in the Gazette of India Extraordinary dt. the 3-8-70)
G. B. Pai, O. C. Mathur & D. N. Mishra For the Appellant M. K. Ramamurthi,
J. Ramamurthi & R. Vaigai For Respondent No. 1(a) in both the Appeals.
O. P. Rana : For Respondent No. 1, in CA No.
The Judgment of the Court KRISHNA IYER, J.-A
free pass can summon by its flaming vigor only if its journalistic and
non-journalistic wings go into full swing with courage and contentment to make
printed end product that issues daily from the machine, so that the office of
education and information the Fourth Estate must perform does not suffer. The
community itself has vital concern in the working conditions of the dual human
groups whose invisible work is crystallised daily and moved into mass
circulation. In a democracy,news media and the men behind have a special value.
Therefore, a few legislative and non-legislative measures have taken care
of.the working conditions of the 475 journalists and the non-journalists. We
are concerned here with non'journalists and that portion of an award which has
conferred standardised gratuity benefit on them.
The importance of the enthusiasm, integrity
and thoroughness of the silent army, which speaks daily in every issue of a
newspaper, once underscored, the necessity for a square economic deal to these
hands argues itself. A Free Press serves the nation successfully when it serves
its family fairly. Even an army marches on its stomach. And retirement benefits
bear upon anxiety for the aging future in this mortal world and impact upon
contentment in the working life. Such is the law of the tenses and the human lot.
Pressmen are no exception.
This national concern quickened the
Government to make a reference to the Industrial Tribunal of certain questions
of economic justice concerning non-journalist employees. The issues between
leading members of the Press Proprietariat and the non-journalist Proletariat
were spelt out for adjudication in a Reference and lack of clarity in its
drafting has led to the bone of convention. in this appeal.
Perfunctory draftsmanship has a great
potential for creating disputes even where there are none. This is Government's
unwitting contribution to the present litigation. The National Tribunal.
assisted by considerable submissions from learned' counsel, produced a massive
award covering many topics, including gratuity, and all but one establishment
viz., the appellant, have fallen in line and left the award unchallenged. The
broad approach of the Tribunal vis-a-vis gratuity is colored by social justice
and informed by indicia gathered from this Court's dicta. Industrial
jurisprudence is not static, rigid or textually cold but dynamic, burgeoning-
and warm with life. It answers in emphatic negative the biblical interrogation
: "What man is there of you who if his son ask bread, will give him a
stone ?" The Industrial Tribunals of India, in areas unoccupied by precise
black letter law, go by the constitutional mandate of social justice in the
claims of the 'little people'.
That touchstone led to the award which inter
alia, granted gratuity to non-journalists altho' the positive evidence was
little and the guidelines faint. The compass of the acute dispute in this
appeal is the very jurisdiction of the tribunal to pronoun upon 'gratuity', the
ground urged being that it falls outside the reference itself.
We may now set out the relevant reference to
the National Tribunal "Whether the recommendation s of the Wage Board for
non-journalist employees as accepted by Government by its Resolution No. WB-
17(7)/67, dated the 18th November, 1967, are unfair or unreasonable and if so,
what modifications are required therein to ensure a fair and just wage
structure for the non- journalists, having due regard to the paying capacity of
the respective newspaper establishments, the employer's agreement and the
emoluments of employees engaged in comparable establishments.'' 476 Mr. G. B.
Pai in his very persuasive and pointed submission, rightly 'stressed that the
Tribunal had only a limited jurisdiction, trammeled by the terms of
reference-not beyond, and in his view the question of gratuity was outside the
reference altogether. Were it- so that part of the award was an exercise in
gratuitous futility, being an ultra-jurisdictional generosity. Notwithstanding
Sri M. K. Ramamurthy's assertion that this Court shall not go back upon whit
was throughout understood by all before the Tribunal., we have to find
jurisdictional justification in the Reference itself, not in the brooding,
perhaps blundering, consciousness of litigants. But we agree with Sri
Ramamurthy that liberality, not pedantry, must guide the construction of the
language of the reference, (vide Management of Express News Papers v. Workers
& Staff (1) Once the real controversy is clear, the verbal walls cannot
narrow the natural ambit of the subject-matter; especially in an equitable
jurisdiction unbound by processual blinkers and niceties of pleading.
Let us therefore face the only issue in the
appeal-no, other argument was urged-whether the reference embraces gratuity If
it does not, no, more arguments can salvage; If it does, no more submission can
scuttle. So the forensic focus must turn on the first term of reference which,
on a closer look, calls into three parts. This trichotomy once grasped, the
riddle of the case stands resolved.
The pre-amble to the reference sets the tone
and lends the key and so a relevant excerpt may lead kindly light "Whereas
the Central Government is of the opinion that an industrial dispute exist
between the employers and workmen in the newspapers establishment mentioned in
the Anexure, in respect of the implementation of the recommendations of the
Wage Board for non- journalist employees, as accepted by the Central Government
by the Resolution No. WR- 17(7)/67, dated the 18th November, 1967, in regard to
the matter mentioned in the Schedule." It is plain that the Central
Government was anxious to have the industrial dispute between the employers and
non- journalist employees settled. What the industrial dispute that existed and
needed solution was, could be dimly gathered from the 'Whereas' clause
extracted above. The dispute was 'in respect of the implementation of the
recommendations of the Wage Board for non-journalist employees' as accepted by
the Central Government by its resolution of November 18, 1967, in regard to
matters mentioned in the Schedule'. So, the area of the dispute is prima facie,
co-extensive with the recommendations of the Wage Board for non-journalist
employees and the topics covered thereby, particularised in the Schedule to the
Reference. It is common ground that the recommendations of the 'wage Board for
non-journalist list employees did cover gratuity. Of course, the 'Whereas
clause is not conclusive but suggestive. We have actually to go to the Schedule
which specificates the actual dispute referred for adjudication. The (1) 
3 S.C.R. 540 555.
477 anatomy of item 1 of the Schedule has now
to be X-rayed-.
We have earlier quoted it, and its triple
components may now be separated. The first and the second parts are substantive
and read thus :
(a) Whether the recommendations of the Wage
Board for non- journalist employees as accepted by Government by its
Resolution.......... are unfair or unreasonable; and (b) If so, what
modifications are required therein ? The third part is not a point for
adjudication but a goal- setter, a delineation of the overall objective or
rather the parameter which must be kept in view. That is to say, the Tribunal
must first adjudicate on the unfairness or unreasonableness of the
recommendations of the Wage Board, as accepted by the Government. It must
further adjudicate on what modifications are required in these recommendations,
if it holds them unfair or unreasonable. To sum up the essentials of the first
term of reference and its scope,' we think that the jurisdictional sweep of the
Tribunal is governed by the two parts we have set out. The recommendations made
by the, Wage Board and accepted by the Government admittedly include gratuity.
The Tribunal has, ex necessitate, to decide whether this recommendation on
gratuity is unjust or unreasonable. This is what it has done. Secondly, it has
to examine what modifications, if any, are justly necessary therein, i.e., in
the Wage Board gratuity. This, again, is what has been undertaken by the
Tribunal. In this view the next question is, what the purpose of the third limb
of the reference can be. This is the bone of contention, in one sense, between
the two advocates.
Certainly, it is not otiose and has a role.
In our view, it merely supplies the social objective of the adjudication on
parts 1 & 2. It surely obligates the Tribunal, while deciding points 1
& 2, to have a specific perspective. That perspective is that the
non-journalist: employees must be ensured a fair and just wage structure,
having due regard to the paying capacity of the establishment, the emoluments
of employees in comparable concerns etc. "A fair and just wage structures
is not what the Tribunal is asked to decide under the first term of reference.
Under this head it is called upon to decide only two matters, namely, the
fairness/reasonableness or otherwise of the Wage Board's recommendations
regarding gratuity and, in the event of those recommendations being found to be
unfair or unreasonable, to decide what modifications are required 'therein'?
These modifications are geared .to a certain goal, are calculated to sub serve
certain purpose, are in- tended to be oriented on a certain wet ire ground
What is that goal, that objective, that perspective?
This is 'supplied by the last part of reference No. 1. That is to by, the
Tribunal will adjudicate on the first two items, remembering that the end is
the securing of a fair and just wage structure. Indeed, gratuity and its
quantum, like other retirement benefits. has a bearing on the wage structure
and vice versa. It is true that the wage structure relates to the emoluments
during service, while gratuity is a terminal benefit or, rather, a retirement
benefit. Although these two fall into different compartments, 478 they are
inter-connected. A heavy wage scale may have some impact on the gratuity rate
and a large provision for gratuity may have its retroactive effect upon the
wage structure. It is composite equity writ on the economic life of the worker.
We have said enough to indicate that the Tribunal was well within its
jurisdiction in deciding on 'gratuity', the function of the last limb, fair and
just wage structure', being to shape the size, of the gratuity, not to exclude
gratuity from adjudication, to tailor it, not to throw it out.
This construction receives considerable
confirmation from certain other aspects of the case. For instance, the wage
Board has made recommendations on gratuity (paragraph 4.28).
Indeed, item 2 of the reference to the Wage
Board which covers non-journalist employees involves gratuity. The vital
documents which impregnate the reference with content and meaning are the
reference to the Wage Board and the recommendations that followed, and both of
them deal with gratuity. We have more internal evidence to substantiate the
soundness of our conclusion. The management in its Written Statement before the
Tribunal, has contended that "there was no justification for the Wage
Board to apply the gratuity scheme as applicable to working journalists, to all
the *on- journalist employees. The special benefits conferred upon the Working
Journalists under Act 45 of 1955 are highly excessive and unreasonable and in
fact, the Working Journalists have been treated as a favored class. There is no
other class of employees in the country for whom such a legislation has been
enacted. It should have been left to each newspaper establishment to evolve its
own Scheme of gratuity`, if the circumstances so permit and in accordance with
its financial position and a scheme of gratuity applicable to a particular
highly paid class of employees should not have been extended to all
non-journalist employees." Why did the management contend before the
Tribunal that the Wage Board recommendation of gratuity scheme for
non-journalist employees was unjustified ? Why did they plead that those
special benefits were excessive and unreasonable ? Why should they have urged
that it should have been left to each newspaper establishment to evolve its own
scheme of gratuity and that such a scheme should not have been extended to
non-journalist employees since they were highly paid ? There is no explanation
for this stance except that the management was trying to convince the Tribunal
that the Wage Board recommendation of gratuity was 'unjust' and 'unreasonable,
which means that they also understood that the scheme of gratuity recommended
by the Wage Board was before the Tribunal for revision or modification.
Shri G. B. Pai urged that the workmen's
statement contained no reference to gratuity. Maybe, they did not separately
set up such a plea because others of their ilk in other newspaper establishment
had pleaded it. The Triunars duty to decide a matter referred to it could not
be repelled merely because here was no separate plea by one of the many
workmen"s groups about gratuity.
There is other telling testimony that all the
parties had proceeded on the clear footing that gratuity was covered by the
terms of reference. Shri M. K. Ramamurthy took us meticulously through the 479
bulky award which covered six leading Newspaper establishments of India and the
workmen under them.
Paragraph 16, for example, while quoting the
Wage Board recommendations, refers to gratuity to non-journalist employees.
Similarly we find in paragraph 95, a :specific plea by the workmen, represented
by The Hindustan Times Employees Union, having a bearing on the gratuity
Again in paragraph 114 the Tribunal refers to
the contention of Mr. Sen, representing one of the newspaper establishment,
criticising the gratuity recommendation of the Wage Board as unfair and Mr.
Ramamurthy's contrary stand that the gratuity scheme should apply to
journalists and non-journalists alike. Many other such references to arguments
by counsel before the Tribunal, with pointed reference to the application of
gratuity scheme to non-journalist employees were spotlighted. We may mention a
Paragraph 121 refers to the Written Statement
of certain newspaper establishment giving reasons why payment of gratuity
should not be made applicable to non-journalist employees. Kindly look likewise
at paragraph 140. It is interesting that on behalf of the workmen i.e., (Indian
Ex- press Employees Union) : it is stated : "Moreover, no fringe benefits
are also available to the workmen of the Indian Express in Delhi. Even gratuity
which has been unanimously recommendable by the Wage Board and was never a
point of dispute, is being denied to the workmen." The award in paragraph
163 and in paragraph 170, proceeds on the footing that the management also made
common cause against the gratuity scheme for non-journalist employees.
Such doubts as may exist on this question are
cleared by the Tribunal in paragraph 186, which reads, thus "Having thus
cleared the grounds of the preliminary ,objections, I now proceed to deliver my
award on merits. I first take up for consideration the first item of dispute in
the reference, dated September 17, 1968, which again is the first item of
dispute in the schedule of the Reference, dated October 7, 1968, and also the
first item of dispute in the schedule to the order of reference dated March 7,
1969. The following may be taken to be the broad lines of criticism by the
management against the recommendations of 'Wage Board:
(vii) Gratuity should not have been left to
the decision of the Supreme Court in the pending appeal regarding gratuity
scheme applicable to Working Journalists 480 as per the provisions contained in
the Working Journalists (Condition of Service) and Miscellaneous Provisions
Act,1955, because in that appeal the present disputants are not parties.
So no remonstrance against consideration of
the issue of gratuity as a jurisdictional issue is raised there.
Having discussed the arguments of counsel on
both sides and having dealt with various points of reference, the learned
Presiding, Officer went on to consider the scheme of gratuity. Of course, he
mentioned the lack of evidence, for a precise judgment and the absence of help
from either side to reach a reasoned conclusion "My task is made more
difficult because little evidence was led as to what should be the gratuity
scheme for non-journalist workmen.
It was not to the interest of the management
to lead evidence because they would like very much to await the final decision
of the Supreme Court on the point. The workmen had no concrete suggestion to
offer.- I have, therefore, to essay into un-surveyed expanse with neither a
compass nor a guide All that I can do is to bear in mind the observations by
the Supreme Court, on this topic. from time to time made and to attempt a
gratuity scheme within the framework of those observations." Naturally,
and, if we may say so rightly, the Tribunal sought guidance from the principles
laid down by this Court on a blue-print for gratuity.
This longish discussion on gratuity *Ad, not
have been a fruitless excursion and proves beyond reasonable doubt that the
parties on both sides, at the level of pleadings, at the stage of argument and
in the rival processes of contest, desiderated a decision on a gratuity scheme
for non- journalists. This bone of contention was included' in the terms of
reference (item 1). The long submissions by many counsel on behalf of the employers
an(. employees were not idle debate. The plea for a full scheme of gratuity by
the advocate for the workmen under the various other newspaper establishments
was not submissions in supererogation. There is no hint in the Tribunal
proceedings that a scheme of gratuity was outside the pale of the Tribunal. No
such objection was ever raised. Indeed, a tired Tribunal, confronted by
enormous evidence and marathon arguments, would not have painstakingly sifted
the grounds, sorted the evidence, cited the rulings and recorded the verdict s
without being sure that all parties concerned and he himself understood the
reference to include the matters contested before him, discussed by him and
decided in his award. The gratuity scheme for non-journalist workmen was one
such and it is bafflement to accept the submission that the learned Tribunal, a
retired judge of the High Court had ventured into an irrelevant terrain.
481 Thus, our understanding of item in the
Schedule of Reference, ,Our study of the proceedings before the Tribunal and
the reasoning in the Award converge to the only conclusion reasonably available
that the gratuity scheme for non-journalist workmen was covered by the
reference. No other point on the merits was argued although there was a feeble
suggestion that the Award was more liberal than should reasonably have been. In
fairness, we must state that barring a passing reference to this aspect, no
serious contention was raised or, indeed, could be raised on the merits of the
matter. This court lends no countenance to submissions on the merits in the
absence of flagrant violation of principles, gross travesty of justice and like
extreme grounds, especially when the appeal is against an Award by an
Industrial Tribunal. In short, Sri. G.B. Pai would not and could not canvass
the finding. The appeals are dismissed with costs of Respondent 1A.- The order
dated 30-3-1971 regarding payment of interest will be made part of this
S.R. Appeals dismissed.