TMI Blog1974 (4) TMI 104X X X X Extracts X X X X X X X X Extracts X X X X ..... recommendations in respect of the wages, scales of pay etc. of the working journalists was subject to certain minor modifications therein specified, being modifications which in the opinion of the Central Government did not effect important alterations in the character of the recommendations. The second respondent is the Indian Federation of Working Journalists. At the outset a preliminary objection was raised on behalf of the first respondent, which was also supported by the second respondent, that the appeal is not maintainable under Art. 136 of 'the Constitution, inasmuch as the Central Government which passed the order dated October 27, 1967 is neither a Court nor a Tribunal, and the order passed by it is not a judicial order but a statutory order a piece of subordinate legislation. It may here be mentioned that caveats were entered into at the time when special leave petitions came for hearing on September 26, 1968, and this Court granted leave on that day subject to the right to urge the preliminary objection as to the maintainability of the appeals. So far as the Writ petitions are concerned, an objection has also been raised that as the second petitioner A. B. Nair in, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Julie 10, 1957. Thereafter writ petitions were filed by Express Newspapers (Private Ltd. etc. challenging the vires of the Act on the ground that the provisions of the Act were violative of the fundamental rights guaranteed by Arts. 19(1)(a), 19(1)(g) and 14 of the Constitution. 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 minutes of dissent which they had appended and it was contended that the implementation of the decision would be beyond the capacity of the petitioners and' would result in. their total collapse. This Court had in Express Newspapers (Private) Ltd. Anr. v. The Union of India and others(1) held certain provisions of the Act to be ultra vires and so far as s. 9(1) of the Act was concerned, it held that that section when properly construed made it incumbent on the Wage Board to take into consideration the capacity of the newspaper industry to pay the rates, a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tribunals or the Boards as such had been considered, this Court expressed the view that it was not possible to hold that the functions performed by the Wage Boards are necessarily of a, legislative character. The test for determining these controversies was stated thus at pp. 112 113: :...... 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 as the future in regard to the wages payable in 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 exercising judicial or quassijudicial functions, it cannot be predicated that these wage boards are exercising legislative functions. Whether they exercise t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 8 to 12 provide for a judicial determination of a right, not did they lay down any Principles to be applied to the facts for determining the rights of the parties. On the other hand. these provisions, according to him, are in general terms which indicate the policy and provide merely a general guidance leaving it to the delegated authority, viz. the Government, a substantial scope for a policy decision which can only result in the order being a legislative order. On this aspect he submitted the propositions (i) in the case of a parent law which provides for a judicial determination of a right it must lay down the necessary principles to be applied to the facts so that the rights of the parties could be determined; and (ii) if the parent law in the general terms enunciates the policy and provides merely for general guidance which leaves to the delegated authority a substantial scope for a Policy decision, then the order is a piece of subordinate legislation and not a judicial order in support of these propositions he has cited the decisions in' The Edward Mills, Co. Ltd., Beawar and Ors. v. The State of Ajmer and Anr(1) dealing with the Minimum Wages Act. 1948; M/s. Bhikusa Ya ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ises in the matter of enforcement of fundamental rights. It is also submitted that even otherwise a shareholder can enforce only his rights under the law and no such infringement can arise in this case. It appears to us that though it may be that no specific mention hadbeen made in the petitions of any of the Articles which are allegedto have been infringed by the impugned order the facts stated and the contentions urged in the petition entitle the petitioners to invoke also Art. 19. A shareholder can challenge the order if the restriction on his right under Art. 19(1) (f) is unreasonable. If the impugned order places a heavy burden on the resources of the company or the wage has been fixed without taking into consideration the capacity to pay. or where the higher wage than what the journalists asked for is fixed without hearing the employer. then that burden will effect the shareholders also. in such a case it will not be valid to contend that the right of a shareholder is not infringed. We think the petitioners can validly challenge the order under Art. 19. Even it we reject the prayer in the second petition (C.M.P. No. 1034 of 1974 in Writ Petition No. 40 of 1968) as there is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gainst the petitioner in the matter of assessment of gross revenue for the purposes ,of classification as also in including it without any evidence in Class 11 instead of in Class III. It is further submitted that the Board has acted in excess of its jurisdiction by awarding to the employees wages higher than what were demanded by them both in respect of the scales of pay and increments, that it has not fixed a rational wage structure dependent on relevant considerations, nor was it based on the capacity of the industry to pay and that it has erred in classifying differently the P.T.I. and the United News of India-hereinafter called 'the U.N.I.'-both national agencies, instead of putting them in the same' category It may be mentioned that the Press Commission in its report Part I published in 1954 pointed out that there are two major news agencies, the P.T.I. and the United Press of India. It was said that there was a third news agency, namely, Hindustan Samachar, which is not really comparable to the other two. It was further pointed out that the P.T.I. provides three categories of services 'A', 'B', and 'C'which are intended to meet the specifi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate is that the P.T.I. has been singled out for higher categorization and put in a separate category which is not founded on any intelligible differentia which distinguishes the P.T.T. from other news agencies or newspapers. Nor has the differentia any rational relation to the objects sought to be achieved by the Act under which the Wage Board is constituted, because under the Act there is only one class of newspaper establishments and there is one definition of the term which under s. 2(d) of the Act means an establishment under the control of any person or body of persons, whether incorporated or not, for the production of publication of one of one or more newspapers or for conducting any news agency or syndicate. We do trot think that the, definition of newspaper establishment can be drawn on for the Purposes of justifying only one classification of all the establishment included in that definition. The definition of the term newspaper establishment is provided for on understanding of the statutory provisions to facilitate brevity and to avoid all that is mentioned in the definition being repeated over and over again. If the Act itself provides for the basis of classific ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it is said that the P.T.I. has built a building by taking loan from the Government 18- 18--423SCI/75 and has been earning revenue from rents. Even this income which has nothing to do with news agency business has been taken into consideration. At any rate, the classification of the newspapers and news agencies which were being based on average revenues of the three accounting years 1963, 1964 and 1965 (see para 4-3) has not been kept in view by the Wage Board in the case of the P.T.I thus discriminating it from other newspapers and news agencies to which the above criteria laid by it was applied. It was admitted by the Wage Board in para 3.9 that, although the classification of the news agencies. is the same as that of the daily newspapers, on account of the special position enjoyed by P.T.I., as a national agency it is placed in class H. Although its present revenue at the end of 1965 is about ₹ 85 lakhs, as a national agency, P.T.I. has to cater even for top class papers. Besides the aspects of objectivity, speed, accuracy and integrity are the special characteristics which mark the work of Working journalists in a news agency . Again, in para 3.33 although it is shown t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... down as an instance of discrimination : (see Ameerunnissa Begum and' other v. Mahbood Begum and others; (1) Ram Prasad Narayan Sashi and another v. The State of Bihar and others;(i2) Shri Ram Krishna Dalmia v. Shri Justice S. R. Tendolkar others(8). It is clear that taking into consideration the capacity or the gross revenue which has been made the basis of classification, there is sub-stance in the sub: mission of the learned Advocate for the petitioners that the P.T.I. has been singled out without any reasonable basis. It is however, contended by the learned Advocate for the second respondent that the P.T.I. being a consumer co-operative, i.e., where the shareholders themselves are the main consumers, there is no incentive or scope for the agency to show any substantial profits and in fact by keeping the subscription low, the payment of the low subscription by these shareholders who are also newspapers result in their getting back in due course the capital they have invested. In this connection the learned Advocate has referred us to the award of Salim M. Merchant, Presiding Officer, National- Industrial Tribunal, in a dispute between the P.T.I. and their workmen published ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dations as can be discerned from the following Our recommendations for the revision of tariffs of the Press Trust of India, the transfer of the responsibility for purchase and maintenance of teleprinters to Government, a concession in respect of reception charges, and an increase in the subscriptions paid by All India Radio, should all be taken together along with our recommendations for the reconstitution of the Press Trust of India as a public Corporation managed by a Board of Turstees. It is therefore, pointed out that the recommendations were to be taken together and had not to. be singled out. None of these recommendations have been accepted by the. Government except the price-page schedule in respect of which the Newspapers (Price Page) Act, 1956, was enacted. The Act was, however, struck down by this Court in Sakal Papers Private Ltd. and others v. Union of India(1). The P T Department refused to take over the teleprinters. The All India Radio refused to increase the subscription to the extent recommended by the Press Commission. The Press Commission even went to the ,extent of saying that the P.T.I. should offer three categories of service, Class I, Class II and t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her than pay a higher subscription. It does not appear to what extent the Wage Board has considered the relevant materials either of the Press Commission, Salim Merchant's Award or the circumstances adverted to by the learned advocate for the petitioners in,the light of any representations made, to them. Whether the financial potentiality of the P.T.I. was, considered as the basis for including it in Class II category instead of in Class III category, contrary, to the criteria prescribed by the Wage Boad itself, is also not evident from the recommendations of the Board. All that is discernible is that because the P.T.I. has the status of a national news agency which enters even for top class papers, it should be placed in Class II category. How the position of the P.T.I. as a national news agency has any relevance to the criteria relatable to its gross revenue has not been specified, nor are we able to as certain as to how the catering to the top class papers would increase its gross revenue. On the other hand, the P.T.I. has been placed in the category of Class II instead of Class III to which it admittedly belongs, and that it was required to continue to be in that class as l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urged by the learned Advocate for the second respondent that the burden of, Rs, '7.78 lakhs per annum referred to in para 3.33 of Wage Board's recommendations is not really such a heavy burden as is sought to be made out. In fact the amount shown in the above referred paragraph is the estimated annual burden on the basis of implementation of the recommendations of the Wage Board for both working journalists and non-working journalists. In so far as the working journalists are concerned, the burden as from 1st July 1967 at the rate of ₹ 29,000/- per month will amount to only ₹ 3.48 lakhs which is less than the average profit of ₹ 3.67 lakhs. The financial burden, therefore, according to the learned Advocate for the second respondent, is not heavy. He further contends that the wage bill has to come out of the revenues and net profits arise only after deductions are made from the gross revenue of any particular year. Accordingly, the argument that the increased, wage burden has to come out of the net profit has been described as wholly without basis and unsound in law. In our view, whether the burden of ₹ 6.78 lakhs is in respect of the working journali ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the decision on the ground that their capacity' to 'pay had not been properly considered. That was, however, a case where the essential conditions for fixation of wage structure, namely, the capacity to, pay had been completely ignored. But if it had not been, would this Court have, held the recommendation to be valid, even where on the very face of it it came to the conclusion ,that the wage structure would, having regard to the average income of three years, impose a heavy financial burden. We do not understand the observations to which our attention has been drawn as supporting the proposition that as soon as it is apparent that the Board in some way or other has touched upon the matter no challenge can be entertained. Apart from this, there is one other infirmity in the impugned order which has accepted the recommendations of the Wage Board and that is in prescribing a wage higher than that asked for by the employees of the P.T.I. The employers (the P.T.I.) could only meet the claim of the employees. but could not meet the recommendation for a higher wage than asked for. The Wage Board has thus not complied with the principles of natural justice which have been inco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y for Wage Board's proposed scale working journalists. of pay for the P.T.I. Group I- Net less than ₹ 1600/-p.m. Group I-A-Rs. 800-75-1100-125-1600 (8 years) Group I-B-Rs. 750-78-1140-120-1500 (8 years) Group If- ₹ 650-50-1000- Group II ₹ 650-40-850-17-1200 75-1600 (15 year) 100-1400 (12 year) Group IIA-RS. 550-50-1000- Group IIA-Rs. 375-34-345-55- 60-1300 (14 years) 1095-85-1350 (18 year) Group IIB- ₹ 400-30-610-40- 810-50-900(14 years) Group III-Rs. 250-25-450-30- GroupIII- ₹ 375-30-525- 600-40-800(18 years) 45-975-1200 (18 years) It is apparent from the above table that in the recommendations for each of the groups, the Wage Board has proposed a higher scale than what has been asked for by the Federation of the P.T.I. Employees Union. The P.T.I. points out that the Wage Board has gone beyond the scales suggested by the Federation which, as an employees organization, will always demand the maximum. Not only the Wage Board has raised the minimum and maximum over the Federation's demand, but also increased the quantum of annual increment and enlarged the classification of the working journalists. Similarly, for Group 11-A, correspondi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... edural safeguard would affect its recommendations. A law providing reasonable restrictions in the exercise of the right conferred by Art. 19 may contain substantive provisions as well as procedural provisions. The reasonableness of the restriction whether substantively or procedurally has to be judged from the point of view of the right that has been in fact restricted. In Dr. N. B. Khare v. The State of Delhi, Kania; C.J., at p.524 said; The, law providing reasonable restrictions of the exercise of the right conferred by Article 19 may contain substantive provisions as well as procedural provisions. While (1) [1950] S. C. R. 521. the reasonableness of the restrictions has to be considered with regard to the exercise of the right, it does not necessarily exclude from the consideration of the Court the question of reasonableness of the procedural part of the law. It is obvious that, if the law prescribes five years externment or ten years exterment, the question whether such period of externment is reasonable, being the substantive part, is necessarily for the consideration of the Court under clause (5). Similarly, if the law provides the procedure under which the exercise of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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