Exp.
Publications (Madurai) Ltd. & Anr Vs. Union of India & Anr [2004] Insc 157 (11 March 2004)
Y.K.
Sabharwal & D.M. Dharmadhikari Y.K. Sabharwal, J.
In
this petition filed under Article 32 of the Constitution of India challenge is
to the constitutionality of paragraph 80(2) of the Employees' Provident Fund
Scheme, 1952. The effect of the impugned paragraph is that the employees of
newspaper industry, for the purposes of provident fund scheme, do not fall in
the category of excluded employees despite their pay being above prescribed
amount as notified by Government of India from time to time.
In
order to appreciate the question involved, it is necessary to examine certain
provisions of the Employees' Provident Funds and Miscellaneous Provisions Act,
1952 (for short, 'the PF Act').
The PF
Act was passed by the Parliament in the year 1952 to, inter alia, provide for
the institution of provident fund for employees in factories and other
establishments. Sub-section (3) of Section 1, inter alia, provides that the Act
applies to every establishment which is a factory engaged in any industry
specified in Schedule I and in which twenty or more persons are employed and to
any other establishment employing twenty or more persons or class of such
establishments which the Central Government may, by notification in the
Official Gazette, specify in this behalf. The expression "basic
wages" is defined in Section 2(b) and the expression "scheme" in
Section 2(l). 'Scheme' means the Employees' Provident Fund Scheme framed under
Section 5 of the PF Act. The Central Government has been empowered to add to
Schedule-I any other industry in respect of the employees whereof it is of
opinion that a provident fund scheme should be framed under the Act and
thereupon the industry so added shall be deemed to be an industry specified in
Schedule I for the purposes of the Act.
Section
5, inter alia, provides that the Central Government may, by notification in the
Official Gazette, frame a Scheme to be called the Employees' Provident Fund
Scheme for the establishment of provident funds under the Act for employees or
for any class of employees and specify the establishments or class of
establishments to which the said Scheme shall apply and there shall be
established as soon as may be after the framing of the Scheme, a Fund in
accordance with the provisions of the Act and the Scheme.
In
exercise of the powers conferred by Section 5 of the PF Act, the Central
Government framed the Employees' Provident Fund Scheme, 1952 (for short, 'the
Scheme'). The employees to whom the provisions of the Scheme and the Act would
not apply are defined as "excluded employee" in paragraph 2(f) of the
Scheme. The said paragraph to the extent relevant for present purposes reads as
under :
"2(f)
'excluded employee' means (i) ...
(ii) an
employee whose pay at the time he is otherwise entitled to become a member of
the Fund, exceeds six thousand and five hundred rupees per month;
Explanation.'Pay' includes basic wages with
dearness allowance, retaining allowance (if any) and cash value of food
concessions admissible thereon;
The
income ceiling mentioned in paragraph 2(f)(ii) has been substituted and
suitably increased from time to time by issue of notification by the Central
Government having regard to the fall in money value and increase in wages. The
ceiling of Rs.6,500/- per month was fixed by notification dated 4th May, 2001 w.e.f. 1st June, 2001. Earlier to 1st June, 2001, it was Rs.5,000/- per month.
Originally,
an employee whose pay exceeded Rs.300/- per month was placed into the category
of an 'excluded employee'. In 1957, the pay ceiling was increased to Rs.500/-
per month; in 1962,it was increased from Rs.500/- to Rs.1,000/-; in 1976, it
was increased from 1,000/- to Rs.1,600/-; in 1985, it was increased from
1,600/- to Rs.2,500/-; in 1990, it was increased from Rs.2,500/- to Rs.3,500/-,
in 1994, it was increased from Rs.3,500/- to Rs.5,000/-; and lastly to
Rs.6,500/- in the year 2001.
In so
far as the employees of the newspaper industries are concerned, they have not
been included in the category of 'excluded employee' for the last more than 47
years. By notification dated 4th December, 1956 issued by the Central Government, Chapter X was inserted in the scheme
incorporating therein special provisions in the case of newspaper
establishments and newspaper employees.
Paragraph
80 thereof, substituted the definition of expression 'excluded employee' in
relation to its application to newspaper establishments and newspaper
employees. The relevant part of Paragraph 80 reads as follows :
"80.
Special provisions in the case of newspaper establishment and employees.The
Scheme shall, in its application to newspaper establishments and newspaper
employees, as defined in Section 2 of the Working Journalists (Conditions of
Service) and Miscellaneous Provisions Act, 1955, come into force on the 31st
day of December, 1956 and be subject to the modifications mentioned below:
(1) In
Chapters I to IX, references to 'industry', 'factories' and 'employees' shall
be construed as references to 'newspaper industry', 'newspaper establishments'
and 'newspaper employees', respectively:
(2) 'excluded
employee' means,
(i) an
employee who, having been a member of the Fund, has withdrawn the full amount
of his accumulations in the Fund under clause (a) or (c) of sub-paragraph (1)
of paragraph 69;
(ii) an
apprentice.
Explanation.'Apprentice' means a person who,
according to the standing orders applicable to the newspaper establishment
concerned, is an apprentice or who is declared to be an apprentice by the
authority specified in this behalf by the appropriate Government." The
aforesaid paragraph came into force on 31st December, 1956.
Therefore,
since the said date, instead of paragraph 2(f), the employees of the newspaper
establishments have a separate and distinct definition. The effect of
definition as contained in the impugned paragraph 80(2) is that since 1956, the
income ceiling has not been applied to the employees of newspaper
establishments. The result is that newspaper establishments and newspaper
employees do not come in the category of 'excluded employee'. In other words,
irrespective of pay, all such employees are entitled to the benefit of the
scheme.
The
main attack of the petitioners to the constitutional validity of Paragraph
80(2) is that only in case of employees of newspaper industry, the test of
income has been excluded by keeping the newspaper establishments and employees
as a class apart which is wholly discriminatory. There is no rationale or valid
basis for artificially treating newspaper establishments and employees as a
distinct class so as to make them ineligible on the basis of income ceiling.
The impugned definition of 'excluded employee' in paragraph 80(2) suffers from
the vice of arbitrariness and offends Article 14 of the Constitution of India
apart from imposing a serious financial burden only on newspaper
establishments. According to the petitioners, there is no valid basis to single
out newspaper establishments for additional burden.
The
petitioners have tried to explain that though the impugned provision came into
effect in 1956, they tried to bear the burden with equanimity and with a
certain sense of rectitude but, with passage of years, there has been severe
setback to the newspaper industry in general and the petitioners' organization
in particular and, therefore, this challenge at this stage. In this regard, it
has been pointed out that the recent trends have witnessed a recession of
several financial crises in newspaper industry as a result of decline in their
revenue from advertisements because of diversion of advertisements to
electronic media. The inroads made by Television is said to have taken the
sheen off the print media. In any case, delay in such matters, when
constitutional validity is in issue, cannot be of any consequences, is the
submission of Anil Dewan, Senior Advocate appearing for the petitioners. It has
been further submitted that the mere fact that other newspaper organizations
have not challenged the impugned provision is also of no consequence.
In
order to appreciate the challenge in question, it is also necessary to examine
certain provisions of the Working Journalists and Other Newspaper Employees
(Conditions of Service) and Miscellaneous Provisions Act, 1955 (for short, 'the
Working Journalists Act').
The
Working Journalists Act was enacted to regulate certain conditions of service
of working Journalists and other persons employed in the newspaper
establishments. "Newspaper Employee" means any working journalist,
and includes any other person employed to do any work in, or in relation to,
any newspaper establishment [Sec.2(c)]. The expression 'newspaper
establishment' is defined in Section 2(d). The expression 'non-journalist
newspaper employee' is defined in Section 2(dd). The working journalists and
those who are not journalists but are employed to do any work in, or in
relation to, any newspaper establishment, are newspaper employees. Chapter II
of the Working Journalists Act, inter alia, deals with conditions of service of
working journalists, incorporating therein special provisions in respect of
certain cases of retrenchment, payment of gratuity, hours of work, leave,
fixation or revision of rates of wages, constitution of a Wage Board, Tribunal
etc. Chapter IIA, inter alia, provides for fixation or revision of rates of
wages of non-journalist newspaper employees, constitution of Wage Board for
fixing or revising their rates of wages, constitution of Tribunal etc. Section
15 of the Working Journalists Act, inter alia, stipulates that the PF Act, as
in force for the time being, shall apply to every newspaper establishment in
which twenty or more persons are employed on any day, as if such newspaper
establishment were a factory to which the aforesaid Act had been applied by a
notification of the Central Government under sub-section (3) of Section 1
thereof, and as if a newspaper employee were an employee within the meaning of
that Act. The applicability of the PF Act to the employees of the newspaper
establishments is not in issue. The issue here is about not subjecting the
employees of the newspaper establishments to income ceiling whereas employees
of all other establishments and industries to which the PF Act is applicable,
are subjected to income ceiling.
The
Constitutional validity of certain provisions of the Working Journalists Act
was examined in the celebrated decision of the Constitution Bench in Express
Newspapers (Private) Ltd. & Anr. v. The Union
of India & Ors. [(1959) SCR 12], and one of the questions was about
violation of equality clause. We will revert to the said decision a little
later.
The
contention is that the impugned provision which applies exclusively to the
employees of newspaper industry suffers from the vice of arbitrariness because
there is no rational or distinctive basis for culling out a separate class
called "newspaper establishment and newspaper employees" and to
provide for a harsher and more financially crippling measure by providing a
special definition thereby totally eliminating the income test. There is no
valid classification to split the employers into newspaper organizations and
non-newspaper organizations for different and discriminatory treatment in the
matter of Provident Fund Contribution. It has also been contended that as a matter
of fact the extent of financial power available to newspaper industry is much
less than many other industries like Steel, Heavy Engineering and other cash
rich industries and if, at all, there is a case for providing a lesser burden
it is newspaper industry which deserves it as a class. Instead of that, a heavy
burden has been imposed upon a weaker section of the industries, viz., newspaper
industry. The petitioners have also faintly suggested violation of right of
freedom of speech and expression as guaranteed under Article 19(1)(a)
contending that in view of additional burden, it becomes very difficult to
maintain price line by keeping the price of the newspaper at certain level
without increasing it and even a marginal increase would affect the number of
readers, particularly, in a country like India with a large number of
economically weaker sections. This reduction in the access of newspapers to the
members of the public is a matter that is fraught with serious consequences
because it not merely affects the fundamental rights of the petitioners to
disseminate the news freely but it also affects the right of the members of the
public to know, which is the essence of democracy. The contention is that any
action which has effect of increasing the price of newspaper has very serious
ramifications. It is claimed that the effect of the impugned provision is to
place additional financial burden which is hardly conducive to the furtherance
of the freedom of press and there is no warrant for providing harsh special
impositions which are not applicable to other business organizations. The
continuation of such a definition year after year would result in petitioners'
totally going out of business since the amount involved have become
astronomical.
The
stand of the respondent in brief is that having regard to various considerations
concerning newspaper establishments, the Government has distinguished the said
establishments from non-newspaper establishments. The impugned provision is a
welfare legislation made for the welfare of the employees of the newspaper
establishments so as to cover a wider range of employees and grant to them the
benefit of the beneficial legislation. Such a legislation is in furtherance of
the freedom of press enshrined in Article 19(1)(a) of the Constitution of
India. The Journalist and the persons working in the newspaper establishments
form as much integral part of freedom of press as the establishment itself and
it is to promote and protect the journalist and other employees of newspaper
establishments who also form the bed rock of freedom of speech and expression
that the benefit of Provident Fund to even those who draw higher pay has been
extended.
Undoubtedly,
the employees of the newspaper establishments are in a better position than the
employees of other establishments and industries since the newspaper employees,
without any income ceiling limit, are entitled to the benefits the PF Act and
the Scheme. That has been the position for the last nearly half a century. On
the other hand, right since inception of the PF Act, the benefit of the Scheme
has been denied to those employees who have more than specified income. The
benefit has been extended to weaker sections of employees of other
establishments and industries and not to all sections. The income ceiling has
been amended by notifications issued from time to time as already noticed.
The
question for determination also is whether this benefit given to the employees
of newspaper industry in the year 1956 and continuing till date can be
challenged at this stage after lapse of so many years by only one of the
newspaper establishments in the country.
The
principles under Article 14 of the Constitution are well settled. It is not
necessary to burden this judgment with various decisions on the subject of
arbitrariness and the classification, except to notice the principles laid In
Re The Special Courts Bill, 1978 [(1979) 1 SCC 381] as under :
"(5)
By the process of classification, the State has the power of determining who
should be regarded as a class for purposes of legislation and in relation to a
law enacted on a particular subject. This power, no doubt, in some degree is
likely to produce some inequality; but if a law deals with the liberties of a
number of well-defined classes, it is not open to the charge of denial of equal
protection on the ground that it has no application to other persons.
Classification thus means segregation in classes which have a systematic
relation, usually found in common properties and characteristics. It postulates
a rational basis and does not mean herding together of certain persons and
classes arbitrarily.
(6)
The law can make and set apart the classes according to the needs and
exigencies of the society and as suggested by experience. It can recognise even
degree of evil, but the classification should never be arbitrary, or evasive.
(7)
The classification must not be arbitrary but must be rational, that is to say,
it must not only be based on some qualities or characteristics which are to be
found in all the persons grouped together and not in others who are left out
but those qualities or characteristics must have a reasonable relation to the
object of the legislation. In order to pass the test, two conditions must be
fulfilled, namely,
(1) that
the classification must be founded on an intelligible differentia which
distinguishes those that are grouped together from others and
(2) that
differentia must have a rational relation to the object sought to be achieved
by the Act.
(8)
The differentia which is the basis of the classification and the object of the
Act are distinct things and what is necessary is that there must be a nexus
between them. In short, while Article 14 forbids class discrimination by
conferring privileges a imposing liabilities upon persons arbitrarily selected
out of a large number of other persons similarly situated in relation to the
privileges sought to be conferred or the liabilities proposed to be imposed, it
does not forbid classification for the purpose of legislation, provided such
classification is not arbitrary in the sense above mentioned." We will now
examine other cases on which reliance has been placed by Mr. Anil Dewan in
support of challenge to the impugned provision.
Motor
General Traders & Anr. v. State of Andhra Pradesh & Ors. [(1984) 1 SCC 222] has been relied in support of
the contention that the mere fact that the discrimination is allowed to be
continued for a long time is not a ground to dispel the attack and also that
what may have been once a non-discriminatory piece of legislation, in course of
time, can become discriminatory. Motor General Traders' case is a case under
Rent Laws where challenge was to the constitutional validity of clause (b) of
Section 32 of Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act,
1960 which exempts all buildings constructed on and after 26th August, 1957 from the operation of the Act. The
provision was enacted to provide an incentive to the house building activity to
meet the shortage of accommodation and encourage new constructions. The effect
of the impugned provision was that the Act was not to apply to any building
constructed on and after 26th
August, 1957. Earlier,
when the constitutionality of the said provision was questioned before the High
Court of Andhra Pradesh on the ground that it violated Article 14 of the
Constitution, the petition was dismissed by the High Court [Chintapalli Achaiah
v. P. Gopalakrishna Reddy [AIR 1966 AP 51] observing that the hardship caused
to the tenants by the exemption given in the case of buildings constructed
after 26th August, 1957 was short-lived and the concession should be tolerated
for a short while. This Court noticed that the exemption had continued for more
than a quarter of a century and the landlords who earned their exemption under
Section 32(b) had continued to enjoy for a long number of years the freedom to
indulge in malpractices which the Act intended to check while others are
governed by the Act.
In
view of Section 32(b) of the Andhra Pradesh Act, there were to sets of
buildings in every area in which the Act applied
(1) those
to which the Act applied; and
(2) those
which are exempted under Section 32(b).
It was
noticed that the buildings to which the Act was applicable are aged more than
26 years and those to which it was not applicable are aged about 26 years or
less.
During
these 26 years from August
26, 1957, thousands of
buildings may have been constructed and all of them are continuing to enjoy the
immunity from the provisions of the Act. It was contended in that case that the
result was that there were two class of landlords one class governed by the
Act and the other not.
There
were also two class of tenants as well one having the protection of the
remedial provision of the Rent Act and the other not having such protection.
The contention that was urged in support of challenge to the constitutional
validity of Section 32 (b) was that whatever may have been the position in the
first few years, after the Act was passed, there is no justification for
continuing the exemption for all time to come. It was observed that the object
of granting exemption was only to provide an incentive to the building activity
and also that even the State Government was not quite satisfied with the
existing law. The question of discrimination was determined having regard to
these factors. The classification of buildings for purposes of Section 32(b)
was held not to have satisfied the true tests of classification. It was
observed that while it may be that there is some justification for exempting
new buildings say which are five, seven or ten years old from the Act, in order
to provide an incentive to builders of new buildings, there is hardly any
justification to allow buildings which were constructed more than ten years ago
to remain outside the scope of the Act. The landlords of such buildings, it was
noticed, must have realized a large part of investment made on such buildings
by way of rents during all these years. The Court took into account that owing
to continuous influx of population into urban areas in recent years the rates
of rents have gone up everywhere and that the landlords of such buildings have
been able to take advantage of the situation created by the shortage of urban
housing accommodation which is now a universal phenomenon. Under these
circumstances, it was held that there was no longer any need to continue the
exemption. It was said that there cannot be any valid justification to apply
the Act to a building which was 27 years old and not to apply it in the case of
a building which is 26 years old. It was held that the classification of
buildings into two classes for purposes of Section 32(b) of the Act, therefore,
does not any longer bear any relationship to the object, since the buildings
which are exempted have already come into existence and their owners have realised
a major part of their investment.
In
Motor General Traders' case, two answers were given to the contention that
since the impugned provision has been in existence for over 23 years and its
validity has once been upheld by the High Court, this Court should not
pronounce upon its validity at this late stage. First, the very fact that
nearly 23 years are over from the date of enactment and the discrimination is
allowed to be continued unjustifiably for such a long time is a ground of
attack pointing out that what should have been just an incentive has become a
permanent bonanza in favour of those who constructed building subsequent to
August 26, 1957; there being no justification for the continuance of the
benefit to a class of persons without any rational basis whatsoever, the evil
effects flowing from the impugned exemption have caused more harm to the
society than one could anticipate. What was justifiable during a short period
has turned out to be a case of hostile discrimination by lapse of nearly a
quarter of century. The second answer given was that mere a lapse of time does
not lend constitutionality to a provision which is otherwise bad.
Rattan
Arya & Ors. v. State of Tamil Nadu
& Anr. [(1986) 3 SCC 385] again is a decision in which a provision of the
Rent Act exempting from protection of the Act residential buildings paying
monthly rent exceeding Rs.400/- whereas no such restriction was imposed in
respect of tenants of non-residential buildings was struck down being violative
of Article 14, following the Motor General Traders' case (supra).
In Malpe
Vishwanath Acharya & ors. v. State of Maharashtra & Anr. [(1998) 2 SCC
1] challenge was to the validity of certain provisions of the Bombay Rents,
Hotel and Lodging House Rates Control Act, 1947 insofar the same provided that
the landlords cannot charge rent in excess of the standard rent.
It was
held that there is considerable judicial authority for the proposition that
with the passage of time, a legislation which was justified when enacted may
become arbitrary and unreasonable with the change of circumstances. A three
Judge Bench said that :
"It
is true that whenever a special provision, like the Rent Control Act, is made
for a section of the society it may be at the cost of another section, but the
making of such a provision or enactment may be necessary in the larger interest
of the society as a whole but the benefit which is given initially if continued
results in increasing injustice to one section of the society and an
unwarranted largess or windfall to another, without appropriate corresponding
relief, then the continuation of such a law which necessarily, or most likely,
leads to increase in lawlessness and undermines the authority of the law can no
longer be regarded as being reasonable. Its continuance becomes
arbitrary." None of the aforesaid decisions, in our view, have any
applicability to the case in hand for various reasons. The aforesaid decisions
were concerned with validity of provisions which intended to grant only a
temporary benefit having regard to the prevailing conditions but were continued
for long number of years without review of change of conditions and as purpose
had been achieved, the provisions were held to be violative of equality clause.
Further, after coming to the conclusion as above that the impugned provisions
have become discriminatory, this Court rejected the contention that since the
provisions had been unsuccessfully challenged earlier and held the field for a
long time, the same do not deserve to be invalidated. In the present case it is
not the contention that only temporary relief was granted to the employees of
the newspaper industry.
Apart
from this, the employees of newspaper industry have always been treated as a
class apart, an aspect which we have dealt in later part of the judgment..
Moreover,
the mere fact that the similar benefit even after lapse of about half a century
has not been given to the employees of other industries will not make the
benefit given to the newspaper industry discriminatory. The principle that a
provision which may be constitutional when enacted may become unconstitutional
later due to changed scenario, has no applicability whatsoever to the present
case.
Undoubtedly,
the classification cannot be arbitrary. It has to be rational and must have a
reasonable relation to the object sought to be achieved. The classification
must be founded on an intelligible differentia. There is no difficulty in
accepting these principles relied upon by Mr. Dewan. The difficulties generally
do not arise in formation of principles under Article 14. But at times,
difficulties do arise in the application of such principles to concrete cases.
We may
also notice the aspect of long delay in laying challenge to the validity of the
impugned provisions. No hard and fast principle can be laid down that under no
circumstances delay would be a relevant consideration in judging constitutional
validity of a provision. It has to be remembered that the constitutional remedy
under Article 32 is discretionary. In one case, this Court may decline
discretionary relief if person aggrieved has slept over for long number of
years. In another case, depending upon the nature of violation, court may
ignore delay and pronounce upon the invalidity of a provision. It will depend
from case to case. In Rabindra Nath Bose & Ors. . v. Union of India & Ors. [(1970) 2 SCR 697], the extreme
proposition that this court has no discretion and cannot dismiss a petition
under Article 32 on the ground that it has been brought after inordinate delay,
was not accepted by the Constitution Bench. The plea to reconsider law laid
down in M/s.Tilokchand and Motichand & Ors. v. H.B.Munshi & Anr.
[(1969) 1 SCC 110] did not succeed. It was held that:
"But
after carefully considering the matter, we are of the view that no relief
should be given to petitioners who, without any reasonable explanation,
approach this Court under Article 32 of the Constitution after inordinate
delay. The highest Court in this land has been given Original Jurisdiction to
entertain petitions under Article 32 of the Constitution. It could not have
been the intention that this Court would go into stale demands after a lapse of
years.
It is
said that Article 32 is itself a guaranteed right. So it is, but it does not
follow from this that it was the intention of the Constitution makers that this
Court should discard all principles and grant relief in petitions filed after
inordinate delay." In Ramachandra Shankar Deodhar & Ors. v. The State
of Maharashtra & Ors. [(1974) 1 SCC 317] on aspect of belated and stale
claims, the Bench said that it is not a rule of law, but a rule of practice
based on sound and proper exercise of discretion. In Tilokchand (supra) Chief
Justice Hidayatullah pointed out that the question "is one of discretion
for this Court to follow from case to case. There is no lower limit and there
is no upper limit..... It will depend on what the breach of the Fundamental
Right and remedy claimed are and how the delay arose" In the present case,
there is no satisfactory explanation for delay of over forty five years. The
petition can be rejected by declining to exercise discretion in favour of
petitioners only on this count. Further, as already noticed, a provision though
constitutional when enacted, may with passage of time become unconstitutional,
but the said principle has no applicability to the present case.
The
contention here is that the impugned provision was unconstitutional from its
inception in the year 1956 since there was never any legal basis for
classification of newspaper establishments as a separate class. We have, also
examined hereafter this contention as well.
Mr.Dewan
contends that newspaper industry cannot be singled out for harsh treatment. Reliance
is placed upon observation made in Indian Express Newspapers (Bombay) Private
Ltd. & Ors. v. Union of India & Ors. [(1985) 1 SCC 641 at 685 para 66]
to the effect that levy of tax on newspaper industry should not be overburden
on newspapers which constitute the Fourth Estate of the country which should
not be singled out for harsh treatment. One of the questions that came to be
considered was whether newspapers have immunity from taxation.
Considering
the earlier decisions, namely, Sakal Papers (P) Ltd. & Ors. v. The Union of
India [(1962) 3 SCR 842] and Bennett Coleman & Co. & Ors. v. Union of
India & Ors. [(1972) 2 SCC 788], the first being concerned with the
newspaper price page policy and in the second the challenge being to the
newsprint policy imposed by the Government, it was held that none of these two
decisions were concerned with the power of the Parliament to levy tax on any
goods used by the newspaper industry. Holding that taxes have to be levied for
the support of the Government and newspapers which derive benefit from the
public expenditure cannot disclaim their liability to contribute a fair and
reasonable amount to the public exchequer, the above observations were made
about not singling out newspaper industries for harsh treatment. It was further
observed that a wise administrator should realize that the imposition of a tax
like the customs duty on newsprint is an imposition of knowledge and would
virtually amount to a burden imposed on a man for being literate and for being
conscious of his duty as a citizen to inform himself about the world around
him. It was further said that the fundamental principle involved was the
people's right to know. Freedom of speech and expression should, therefore,
receive a generous support from all those who believe in the participation of
people in the administration. It is on account of this special interest which
society has in the freedom of speech and expression that the approach of the
Government should be more cautious while levying taxes on matters concerning
newspaper industry than while levying taxes on others. This Court held that
while the contention that no tax can be levied on newspaper industry cannot be
accepted, it had to be held that any such levy is subject to review by courts
in the light of the provisions of the Constitution. The observations in the
judgment were pressed into service in support of the contention that freedom of
speech and expression would be adversely affected by continuing the definition
of 'excluded employee' in respect of the newspaper industry which has been
singled out for harsh treatment. As can be seen from above, observations have
been made in a different context. In any case, the decision, far from
supporting the contention of the petitioners, in fact, to an extent lends
support to the benefit that was given to the employees of the newspaper
industry in the year 1956 as a result of the impugned provision. It has to be
remembered that in spreading information, the employees of newspapers industry
play dominant role and considering the employees of newspaper industry as a
'class', this benefit was extended almost at the same time when the Working
Journalist Act was enacted.
Thus,
there can be no question of any adverse effect on the freedom of press. The
financial burden on employer, on facts as herein, cannot be said to be a 'harsh
treatment'. The contention that now the petitioners are unable to bear the
financial burden which they have been bearing for the last over forty five
years is wholly irrelevant. It is for petitioners to manage their affairs if
they intend to continue with their activity as newspaper establishment.
In
Express Newspapers (Private) Ltd. & Anr. v. The Union of India & Ors.
[(1959) SCR 12], the question as to the vires of the Working Journalists
(Conditions of Service) and Miscellaneous Provisions Act, 1955 came up for
consideration. Tracing the history of the events which led to the enactment of
the said Act, it was noticed that newspaper industry in India did not
originally start as an industry but started as individual newspapers founded by
leaders in 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 combined 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 able 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. The Government of India appointed a Press Commission to, inter alia,
enquire into the state of press in India, its present and future lines of
development and in particular to examine 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 also considered that there should be 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 also considered the applicability of the
Industrial Disputes Act to the Working Journalists and 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,
therefore, considered the question 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 notice period, bonus, minimum wages, Sunday rest, leave and
provident fund and gratuity.
Almost
immediately after the report of the Press Commission, Parliament passed the
Working Journalists (Industrial Disputes) Act, 1955 (1 of 1955). It was an Act
to apply the Industrial Disputes Act, 1947 to the working journalists. The
application of the Industrial Disputes Act, 1947 to the working journalist was
not, however, deemed sufficient to meet the requirements of the situation.
There was considerable hesitation in Parliament for the implementation of the
recommendations of the Press Commission. Ultimately, the Government introduced
a Bill on 30th November, 1955 in 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 the minimum wages and other aspects, above noticed, was
left to the Minimum Wages Board to be constituted for the purpose by the
Central Government. Finally, the Working Journalist (Conditions of Service) and
Miscellaneous Provisions Act, 1955 (45 of 1955) was passed and received the
assent of the President on 20th December, 1955. The Act was challenged on the
ground that it violates the fundamental right under Article 19(1)(a) of the
Constitution guaranteeing to all citizens the right to freedom of speech and
expression. Pointing out that the regulations of the conditions of service is
the main object which is sought to be achieved by the impugned Act, it was
considered that if a general law in regard to industrial or labour relation had
been applied to press industry as a whole, no exception could have been taken
to it. Further, if the matter had rested with the application of the Industrial
Disputes Act, 1947 to the working journalist 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 measure. The
contention urged was that apart from application of these general laws to the
working journalists, there are provisions enacted in the impugned Act in
relation to payments 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 petitioners' 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.
This
Court noticed that the journalist are but the vocal organs and the necessary
agencies for the exercise of the right of free speech and expression and any
legislation directed towards the amelioration of their conditions of service
must necessarily affect the newspaper establishments and have its repercussions
on the freedom of press. The impugned Act can, therefore, be legitimately
characterized as a measure which affects the press and if the intention or the
proximate effect and operation of the Act was such as to bring it within the
mischief of Article 19(1)(a), it would certainly be liable to be struck down.
The real difficulty, however, in the way of the petitioners is that whatever be
the measures enacted for the benefit of the working journalists neither the
intention nor the effect and operation of the impugned Act is to take away or
abridge the right of freedom of speech and expression enjoyed by the
petitioners. The question of violation of right of freedom of speech and
expression as guaranteed under Article 19(1)(a) in the present case on account
of additional burden as a result of impugned provision does not arise.
An
attack was also made in the said case to the constitutional validity of the Act
on the ground that it selected the working journalists for favoured treatment
by giving them additional benefits 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 were 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 partem;
(f) permitting
the Board the discretion to operate the procedure of the Industrial Disputes
Act for some newspapers and any arbitrary procedure for others;
(g) making
the decision binding only on the employers and not on the employees, and
(h) providing
for the recovery of money due from the employers in the same manner as an
arrear of land revenue.
3. The
classification made by the impugned Act is arbitrary and unreasonable, 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 aforesaid propositions were considered in the light of the
principles laid down in various decision on the aspect of Article 14. The well
established principle to be always borne in mind is that while Article 14
forbids class legislation, it does not forbids reasonable classification. In Budhan
Choudhry & Ors. v. State of Bihar [(1955) 1 SCR 1045] Das, J. (as His
Lordship then was) speaking for the court said:
"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 [(1950) S.C.R. 869], The State of Bombay v. F. N. Balsara [(1951)
S.C.R. 682], The State of West Bengal v. Anwar Ali Sarkar [(1952) S.C.R. 284], Kathi
Raning Rawat v. The State of Saurashtra [(1952) S.C.R. 435], Lachmandas Kewalaram
Ahuja v. The State of Bombay [(1952) S.C.R. 710], Quasim Razvi v. The State of
Hyderabad [(1953) S.C.R. 581], and Habeeb Mohamad v. The State of Hyderabad
[(1953) S.C.R. 661]. 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
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." In the light of the aforesaid principles, in
Express Newspapers (supra) the Court considered whether the Act impugned
therein violated the fundamental right guaranteed under Article 14. It was
observed that in framing the scheme, various circumstances peculiar to the
press had to be taken into consideration. These considerations weighed with the
Press Commission in recommending special treatment for working journalists in
the matter of amelioration of their conditions of service. The position as
prevailing in other countries was also noticed. In nutshell, the working
journalists were held as a group by themselves and could be classified as such.
If the Legislature embarked upon a legislation for the purpose of ameliorating
their conditions of service, there was nothing discriminatory about it. They
could be singled out for preferential treatment. It was opined that
classification of this type could not come within the ban of Article 14.
Considering
the position in regard to the alleged discrimination between press industry
employers on one hand and the other industrial employers on the other, it was
said that even considering the Act as a measure of social welfare legislation,
the State could only make a beginning somewhere without embarking on similar
legislations in relation to all other industries and if that was done in this
case no charge could be levelled against the State that it was discriminating
against one industry as compared with the others. The classification could well
be founded on geographical basis or be according to objects or occupations or
the like. The only question for consideration would be whether there was a
nexus between the basis of classification and the object of the Act sought to
be achieved. Both he conditions of permissible classification were fulfilled.
The classification was held to be based on an intelligible differentia which
had a rational relation to the object sought to be achieved, viz., the
amelioration of the conditions of service of working journalists. The attack on
constitutionality of the Act based on Article 14 was negatived.
Though
challenge in the aforesaid case was to special treatment to working journalists
but what is to be seen is, that the press industry was held to be a class by
itself. The definition of 'newspaper employee' takes into its fold all the
employees who are employed to do any work in, or relation to, any newspaper
establishment. The decision in Express Newspaper's case amply answers the main
contention about the Press Industry having been singled out, against the
petitioners. This decision also holds that to provide social welfare
legislation and grant benefit, a beginning had to be made somewhere without
embarking on similar legislation in relation to other industries. The fact that
even after about half a century similar benefit has not been extended to the
employees of any other industry, will not result in invalidation of benefit
given to employees of press industry. It is not for us to decide when, if at
all, to extend the benefit to others.
In
view of aforesaid, we are unable to accept the contention that the impugned
provision is violative of Article 14 on the ground that it singles out
newspaper industry by excluding income test only in regard to the said
industry.
Apart
from the fact that it may not be always possible to grant to everyone all
benefits in one go at the same time, it seems that the impugned provision and
the enacting of the Working Journalists Act was part of a package deal and that
probably is the reason for other newspaper establishments not challenging it
and petitioners also challenging it only after lapse of so many years. Further
Section 2(i), 4 and Schedule I of Provident Fund Act shows how gradually the
scope of the Act has been expanded by the Central Government and the Act and
Scheme made applicable to various branches of industries. From whatever angle
we may examine, the attack on the constitutional validity based on Article 14
cannot be accepted.
In
view of the aforesaid discussion, we find no merit in the contentions urged on
behalf of the petitioners. The petition is accordingly dismissed.
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