Ananda Bazar Patrika, Ltd. v. Union Of India And Others

JUDGMENT

1. By this writ application the petitioners have challenged two notifications issued by the Government of India, one S.O No. 312(E), dated 30 May, 1986, and the other being S.O No. 313(E) also dated 30 May, 1986. By the Notification No. 312(E), dated 30 May, 1986, issued in exercise of the powers conferred by Sub-sec. (1) of S. 13A of the Working Journalists and Other Newspaper Employees (Conditions of Service) and Miscellaneous Provisions Act, 1955 (45 of 1955) (hereinafter referred to as the said Act), the Central Government after consultation with the Wage Board has fixed the interim rates of wages in respect of working journalists at the rate of 15 per cent of the existing basic wages subject to a minimum of Rs. 90 per month. The said interim rates of wages shall be effective from 1 June, 1986.

2. By another similar notification being S.O No. 313(E), dated 30 May, 1986, the Central Government has fixed the interim rates of wages in respect of non-journalist newspaper employees at the rate of 15 per cent of the basic wages subject to the minimum of Rs. 90 per month.

3. Petitioner 1 is the well-known newspaper establishment carrying on business at Calcutta. Petitioner 2 is the Director of petitioner 1.

4. The Central Government, by notification being S.O No. 527(E), dated 17 July, 1985, issued in exercise of powers under S. 9 of the Act, constituted a Wage Board for the purpose of fixation and revising the rates of wages in respect of working journalists. By another similar notification bearing the same date, i.e 17 July, 1985, being S.O No. 528(E), the Central Government constituted a Wage Board for the purpose of fixing or revising the rates of wages in respect of non-journalist newspaper employees.

5. The Government of India received certain representations from various associations of newspaper employees requesting for immediate grant of interim relief. There was a claim for interim relief ranging from Rs. 200 per month to Rs. 400 per month. In view of such over whelming demand for such interim relief from the various associations of newspaper employees, the Central Government was of opinion that the question of granting such relief may be examined and the recommendations of the Wage Board may be made available to the Government in accordance with the provisions of Ss. 13A and 13D of the said Act.

6. By a communication, dated 29 August, 1985, the Chairman of the Wage Board was informed of such representations and the desire of the Central Government for consideration of granting some interim reliefs.

7. By the said impugned notifications as aforesaid, the Central Government in consultation with the Wage Board fixed the interim rate of wages at the rate of 15 per cent of the existing basic wages subject to a minimum of Rs. 90 per month in respect of both working journalists and non-journalists.

8. Each of the said two notifications, inter alia, provided that:

(i) the interim relief shall be taken as part of the basic wages for all purposes including determination of admissible benefits such as contribution to providen??? fund, Employees' State Insurance, gratuity, bonus, etc.,

(ii) where any newspaper establishment had, either as a result of negotiation with its employees or otherwise, agreed to pay interim relief to working jounalists and non-journalist newspaper employees employed as such in or in relation to such newspaper establishment, and such interim relief is related to the basic wages or to the dearness allowance, it shall be permissible to adjust the amount of such relief against increases in the rates of wages made above; and

(iii) provided that where the interim relief agreed to be paid by any newspaper establishment in respect of any employee is in excess of the increase in the rates of wages made above, such interim relief agreed to by the newspaper establishment shall continue to be paid (i.e, shall not be reduced) in respect of such newspaper employees and they shall not be entitled, in addition, to the increase in rates of wages recommended above.

9. It is the grievance of the petitioners that by the said two impugned notifications the Central Government had arbitrarily and without assigning any reasons purported to fix the interim rates of wages at 15 per cent and without any upper ceiling limit, and against the recommendation of the Wage Board of 7½ per cent. The Central Government in issuing the impugned notifications apparently did not apply its mind to the relevant factors and, in breach of all principles of natural justice and fair play, doubled the quantum of interim rates of wages unreasonably and irrationally. According to the petitioner the effect of the said two impugned notifications are highly prejudicial to the interest of the petitioners and would have a serious impact on the business and financial liability of petitioner 1.

10. It is contended by the petitioners that under Ss. 13A and 13D of the said Act the power of the Central Government to fix interim rates of wages can only be exercised after consultation with the Wage Board and such consultation must be an effective consultation and not merely a formality or a sham consultation. It is the allegation of the petitioners that the Central Government in the Instant case before issuing the said two impugned notifications did not consider at all the relevant factors which were taken into consideration by the Wage Board in making the recommendation. The Central Government had totally ignored without any rational basis the relevant recommendations of the Wage Board.

11. It is the further contention of the petitioners that it was incumbent upon the Central Government before issuing the said two impugned notifications to give a hearing to all persons affected including the petitioners and it was also incumbent upon the Central Government to give reasons, if any for differing from the recommendations made by the Wage Board which were arrived at upon an application of mind on relevant factors. It is further contended on behalf of the petitioners that requirement of compliance with the principles of natural justice is inherent in the said Act and also must be read into S. 13A of the Act. Unless this is done, the said section would suffer from the vice of arbitrariness and would be utra vires Art. 14 of the Constitution.

12. It is also the contention on behalf of the petitioners that there were no materials before the Central Government and no materials, in fact, exist on which the Central Government would have formed the opinion as contemplated by S. 13A of the said Act.

13. Respondents 1 and 2 have also filed an affidavit in this proceeding. The affidavit filed on behalf of the respondents 1 and 2 was affirmed by one A.K Luthra, Deputy Secretary, to the Government of India, Ministry of Labour, on 13 November, 1986, at New Delhi.

14. By this affidavit, respondents 1 and 2 have disputed the aforesaid contentions of the petitioners. It has been stated on behalf of the said respondents that before issuing the said two impugned notifications the Government after considering the recommendation of the Wage Board and other relevant factors in the matter fixed the said interim wage as mentioned in the said two notifications. It has further been stated by the said respondents that prior to the issuance of the said two notifications the Central Government had consulted the Wage Board. It has also been stated by the said respondents in the said affidavit that the interim rates of wages were fixed by the said two notifications for the working journalists and non-journalists keeping in mind the relevant provisions of the Act. It has further been stated by the said respondents that the said two notifications have been issued pending final recommendations of the Wage Board and the order under S. 12 of the Act, by the Central Government. The said respondents have also taken a plea of non-joinder, as, according to the said respondents, the working journalists and non-journalists newspaper employees for whose benefits such notifications have been issued are not made parties in this proceeding. The other respondents have not entered appearance.

15. Sri Sudipta Sarkar with Sri Asim Banerjee, appearing on behalf of the petitioners, has argued that the recommendation of the Wage Board with regard to interim relief for working journalists and non-journalists newspaper employees was that the interim relief for working journalists and non-journalists should be fixed at the rate of 7½ per cent of the basic wage subject to the minimum of Rs. 45 per month. It is the submission of Sri Sarkar that after hearing the parties concerned and after considering the submissions made by the respective parties, the Wage Board had come to the conclusion that it should be reasonable to grant such interim relief at such rate to the working journalists as well as to the non-journalist newspaper employees including employees of news agencies and part-time correspondents. It has been submitted by Sri Sarkar that the Central Government arbitrarily raised the rate to 15 per cent without giving any heating to the parties to be affected. According to Sri Sarkar, it is not in dispute that petitioner 1, being a newspaper establishment, would have to bear such liability of interim relief at the rate fixed by the Central Government by the said two notifications, and the decision of the Central Government in fixing the interim relief at such a high rate will affect the business interest of the newspaper establishment, financially or otherwise. In such a context, as submitted by Sri Sarkar, it is incumbent upon the Central Government to ascertain the views of the newspaper establishments and also the concerned working journalists and non-journalists or the employees of the newspaper agency and part-time correspondents before fixing the interim relief at the rate as mentioned in the said two impugned notifications. Sri Sarkar has argued, it is clear from the scheme of the Act and in particular Ss. 12, 13 and 13A of the said Act, that the Central Government before making an order finally fixing the rate of wages should consider carefully the recommendation of the Wage Board and after considering the said recommendation of the Wage Board may fix the rates of wages subject to such modifications as the Central Government thinks fit, provided such modifications do not effect important alterations in the character of the recommendations. It is further submitted by Sri Sarkar that S. 12 of the Act specifically provides that as soon as may be after the receipt of the recommendations of the Board, the Central Government shall make an order in terms of the recommendations or subject to such modification, if any, as it things fit being modifications, which in the opinion of the Central Government, do not effect important alterations in the character of the recommendations. Further, before making such modifications, it is incumbent on the Central Government in terms of the provisions of S. 12 of the Act to cause notice to be given to all persons likely to be affected thereby and shall take into account any representations that may be made by the concerned parties. Therefore, according to Sri Sarkar, considering the scheme of the Act, in particular S. 12 of the Act, the said two notifications are bad and illegal.

16. It is the further contention of Sri Sarkar that taking into consideration the provisions of the Act and in particular, S. 12 of the Act, the recommendations of the Wage Board, which is an expert body and which applies its mind to all relevant factors before making any recommendations, are normally to be accepted by the Central Government and if any alteration thereto is proposed by the Central Government then the same can only be made either by referring the matter back to the Wage Board or upon an opportunity of being heard given to all the persons likely to be affected by the modifications proposed to be made. According to Sri Sarkar, the principle of natural justice is embodied in S. 12 of the Act.

17. Sri Sarkar also argues that if such principle of natural justice is embodied in S. 12 of the Act, it is equally applicable in case of fixation of interim rates of wages under S. 13A or S. 13D of the Act.

18. Sri Sarkar has also argued that the entire scheme of the Act would indicate that the statute provides effective machinery for ascertaining the views of all concerned, namely, the newspaper establishment, the working journalists, non-journalists and other persons interested in the matter. The said statute also empowers the Central Government to fix the rates of wages, interim or final, after consultation with the Wage Board. It is submitted by Sri Sarkar that Central Government in fixing the rates of wages, interim or final, should give hearing to the affected parties before making any proposal for fixation of the rates of wages, be they interim or final and in doing so the Central Government should also give due consideration to the recommendations of the Wage-board.

19. Sri Sarkar has submitted that the Act does not give any arbitrary power to the Central Government in fixing the rates of wages whether the interim or the final relief. Sri Sarkar further submits that “consultation” as mentioned in the various sections of the Act should be meaningful or effective “consultation.”

20. Sri Sarkar, however, fairly submits that, it is not wholly incumbent upon the Central Government to accept whatever recommendation that may be made by the Wage Board in respect of a fixation of rates of wages, interim or final. The Central Government can make its own recommendation but such recommendation, according to Sri Sarkar, should conform to the principles of natural justice and the interests of both the parties, the employer and the employee. He also submits that the Central Government before disagreeing with the view of the Wage Board should indicate the reasons as to why the Central Government does not accept the recommendation of the Wage Board. Sri Sarkar has also argued that when the interests of the parties are likely to be affected, the norms of justice require that the order making the fixation of the rates of wages, interim or final, should state the reasons indicating the basis of the fixation of rates of wages.

21. Regarding the question of hearing to be given to the party affected. Sri Sarkar has cited a Supreme Court decision in Press Trust of India v. Union of India, [1974 — II L.L.N 88]. There also the Supreme Court had occasion to consider the scope and effect of S. 12 and other provisions of the Act.

22. On the question of consultation Sri Sarkar has relied on a decision of the Supreme Court, which is known as Judges' case in S.P Gupta v. President of India [1981 Supp SCC 87 : A.I.R 1982 S.C 149].

23. Sri Sujit Sinha, appearing for respondents 1 and 2, submits that the provision for giving hearing as contemplated in s. 12 of the Act is at the stage of final recommendation by the Wage Board. Sri Sinha has submitted that S. 12 does not contemplate any interim recommendation either by the Central Government or the Wage Board.

24. Sri Sinha submits that considering the scheme of the Act, in particular S. 13A of the Act, the only requirement as contemplated by S. 13A of the Act is that where the Central Government is of the opinion that it is necessary to fix interim rates of wages, it may do so after consultation with the Wage Board. It has been argued by Sri Sinha that S. 13A starts with a non-obstante clause. Section 13 A of the Act reads that

“notwithstanding any thing contained in this Act, where the Central Government is of the opinion that it is necessary so to do, it may, after consultation with the Board, by notification in the Official Gazette fix interim rates of wages.”

25. Sri Sinha argues that this is not the final stage of recommendation nor the final order of fixation of rates of wages. According to Sri Sinha, S. 13A of the Act only contemplates fixation of interim rates of wages and such fixation by the Central Government can only be done, first, if it is of opinion that it is necessary to do so and, secondly, fix the interim rates after consultation with the Board. Sri Sinha submits that “consultation” cannot be equated with “concurrence.” In support of this submission he also relies on the same decision of the Supreme Court in S.P Gupta v. President of India [1981 Supp SCC 87 : A.I.R 1982 S.C 149], cited by Sri Sarkar appearing for the petitioner.

26. Regarding the points of recording of reasons and giving a hearing, it is the submission of Sri Sinha that such requirement is only contemplated by S. 12 of the Act. Sri Sinha submits that a fixation of the rate of wages by way of interim measure is only contemplated in S. 13A of the Act. This fixation, according to Sri Sinha, is by way of interim measure and it is not final. Whatever decision taken bv the Central Government or whatever recommendation made by the Wage Board with regard to the fixation of interim rates of wages is by way of interim measure or in the nature of interlocutory order subject to the final recommendation of the Wage Board and subject to the final decision of the Central Government after taking into consideration the recommendations of the Wage Board.

27. Sri Sinha submits that the decision of the Supreme Court in Press Trust of India v. Union of India, [1974 — II L.L.N 88] (vide supra), is a case under S. 12 of the Act and there the recommendation was the final recommendation and not any recommendation of interim relief. Sri Sinha submits that it is true that S. 12 contemplates a hearing, if any modification is proposed by the Central Government. This is what is considered and decided by the Supreme Court in the said decision in Press Trust of India v. Union of India (vide supra). Sri Sinha submits that this decision has no application to the present case.

28. Sri Sinha further submits that there is no question of referring back the matter to the Wage Board for further consideration while fixing interim rates of wages. According to Sri Sinha this recommendation is always subject to the final recommendation of the Wage Board and also final decision, that may be taken by the Central Government after taking into consideration the final recommendation of the Wage Board. This fixation of the interim rates of wages is purely in the nature of interim relief subject to further recommendation or further decision of the Wage Board and the Central Government respectively.

29. Sri Sinha has also taken a preliminary point that this writ application is bad for non-joinder inasmuch as the journalists and non-journalists to be affected by the decision of this Court in this proceeding are not impleaded in this proceeding.

30. In order to appreciate the respective submissions of the parties, it would be convenient to refer to the relevant provisions of the Act.

31. Section 9 of the Act indicates the procedure for fixing and revising rates of wages, section 9 of the Act reads as follows:

“9. For the purpose of fixing or revising rates of wages in respect of working journalists under this Act, the Central Government shall, as and when necessary, constitute a Wage Board which shall consist of—

(a) two persons representing employers in relation to newspaper establishments:

(b) two persons representing working journalists;

(c) three independent persons, one of whom shall be a person who is, or has been, a Judge of a High Court or the Supreme Court and who shall be appointed by the Government as the Chairman thereof.”

32. Section 10 provides for recommendation by the Board:

“10. (1) The Board shall, by notice published in such manner as it thinks fit, call upon newspaper establishments and working journalists and other persons interested in the fixation or revision of rates of wages of working journalists to make such representations as they may think fit as respects the rates of wages which may be fixed or revised under this Act in respect of working journalists.

(2) Every such representation shall be in writing and shall be made within such period as the Board may specify in the notice and shall state the rates of wages which, in the opinion of the person making the representation, would be reasonable, having regard to the capacity of the employer to pay the same or to any other circumstances, whichever may seem relevant to the person making the representation in relation to his representation.

(3) The Board shall take into account the representations aforesaid, if any, and after examining the materials placed before it make such recommendations as it thinks tit to the Central Government for the fixation or revision of rates of wages in respect of working journalists; and any such recommendation may specify, whether prospectively or retrospectively, the date from which the rates of wages should take effect.

(4) In making any recommendations to the Central Government the Board shall have regard to the cost of living, the prevalent rates of wages for comparable employment, the circumstances relating to the newspaper industry in different regions of the country and to any other circumstances which to the Board may seem relevant.”

33. Section 12 deals with powers of Central Government to enforce recommendations of the Wage Board.

34. Section 12 reads as follows:

“12.(1) As soon as may be after the receipt of the recommendations of the Board, the Central Government shall make an order in terms of the recommendations or subject to such modifications, if any, as it thinks fit, being modifications which, in the opinion of the Central Government, do not effect important alterations in the character of the recommendations.

(2) Notwithstanding anything contained in Sub-sec. (1), the Central Government may, if it thinks fit—

(a) make such modifications in the recommendations not being modifica tions of the nature referred to in Sub-sec. (1) as it thinks fit:

Provided that before making any such modifications, the Central Government shall cause notice to be given to all persons likely to be affected thereby in such manner as may be prescribed, and shall take into account any representations which they may make in this behalf in writing; or

(b) refer the recommendations or any part thereof to the Board, in which case, the Central Government shall consider its further recommendations, and make an order either in terms of the recommendations, or with such modifications of the nature referred to in Sub-sec. (1), as it thinks fit.

(3) Every order made by the Central Government under this section shall be published in the Official Gazette, together with the recommendations of the Board relating to the order and the order shall come into operation on the date of publication or on such date whether prospectively or retrospectively, as may be specified in the order.”

35. Section 13A deals with power of the Government to fix interim rates of wages.

36. Section 13A of the Act is in the following terms:

“13A. (1) Notwithstanding anything contained in this Act, where the Central Government is of opinion that it is necessary so to do, it may, after consultation with the Board, by notification in the Official Gazette, fix interim rates of wages in respect of working journalists.

(2) Any interim rates of wages so fixed shall be binding on all employees in relation to newspaper establishments and every working journalist shall be entitled to be paid wages at a rate which shall, in no case, be less than interim rates of wages fixed under Sub-sec. (1).

(3) Any interim rates of wages fixed under Sub-sec. (1) shall remain, in force until the order of the Central Government under S. 12 conies into operation.”

37. It appears from S. 12 of the Act that the Central Government is required to make an order finally fixing the rates of wages, in terms of the recommendations of the Wage Board or subject to such modifications as it thinks fit provided such modifications do not effect important alterations in the character of the recommendations. If any other modification is contemplated, then before making the same it is obligatory for the Central Government to cause notice to be given to all persons likely to be affected thereby. The Central Government may also refer the recommendation or any part thereof to the Wage Board for further consideration.

38. So there are three requirements contained in S. 12 of the Act.

First, the Central Government shall make an order in terms of the recommendations or subject to such modifications which do not effect important alterations in the character of the recommendations.

Secondly, where the Central Government make any modifications in the recommendations not being the modifications of the natured referred to in Sub-sec. (1), i.e, the modifications effecting important alterations in the character of the recommendations, the Central Government shall cause notice to be given to all persons likely to be affected thereby.

Thirdly, the Central Government will refer the recommendation or any part thereof to the Board in which case the Central Government shall consider its further recommendation and make an order in terms of the recommendation or with such modification of the nature referred to in Sub-sec. (2) as it may think fit.

39. I think, it has been rightly contended by Sri Sinha that S. 12 contemplates recommendation in the nature of final recommendation and the decision of the Central Government is also in the nature of final decision and in making such decision, as pointed out by Sri Sinha, certain norms as prescribed in S. 12 are to be fulfilled.

40. In my view, S. 13A of the Act contemplates the fixation of interim rates of wages by way of interim measure. It would appear from S. 13A of the Act that it requires consultation with the Wage Board to fix interim rates of wages. Section 13A does not prescribe the elaborate procedure as indicated in S. 12 of the Act. In my view, there are reasons therefor. Section 13A provides for procedure by way of interim arrangement pending the final decision that may be taken by the Board or the Central Government alter considering the recommendation of the Wage Board. 1 could not read in S. 13A of the Act any requirement of giving any personal hearing to the parties affected. Whatever recommendation that may be made by the Wage Board or whatever decision that may be taken by the Central Government alter taking into consideration the interim report of the Wage Board is always subject to the final recommendation of the Wage Board or the final decision of the Central Government. There is a good reason for providing such elaborate machinery as contemplated by S. 12 of the Act. Whatever recommendation that may be made by the Wage Board at the final stage or whatever decision that may be taken by the Central Government pursuant to such recommendation or in modification thereof is final and binding on the parties. Such a decision, unlike a decision under S. 13A of the Act, is not subject to any other final decision of any oilier authority. In view of such a finality to decision to be taken by the Central Government under S. 12 of the Act, such safeguards are provided therein. In my view, Ss. 12 and 13A stand on two different footings.

41. In my view, these impugned notifications are not the final decisions as to the fixation of rates of wages. 1 he parties concerned can make further and effective representation to the Wage Board which is going into the question of fixation of rates of wages of both working journalists and non-journalists or other persons such as part-time correspondents or the employees of the news agencies. After considering the representation of all the parties concerned the Wage Board may make fresh recommendation and Central Government may also accept the recommendation of the Wage Board in its entirety. If, however, the Central Government do not agree with the recommendation of the Wage Board then whatever modification that may be suggested by the Central Goverment can only be effected after hearing the views of the respective parties to be affected by the decision of the Central Government. By the said two impugned notifications, no final decisions as to the fixation of the rates of wages have been taken.

42. I, therefore, do not accept the contention of the learned counsel for the petitioner that it is incumbent upon the Central Government in making a decision as to interim relief to give hearing to the parties affected. I also do not agree with the submission of the learned counsel for the petitioner that at the stage of fixation of interim rates of wages as well, the parties should be given hearing or the Central Government should conform to the procedure as prescribed in S. 12 of the Act.

I have already indicated, the parties will have adequate opportunity of ventilating their grievances before the Wage Board when the Wage Board would be considering the case foe fixation of rates of wages. The parties will also have further opportunities of being heard before the Central Government if any modification is suggested by the Central Government before taking a decision as to the fixation of rates of wages of working journalists as also non-journalists.

43. I do not see any reason to interfere with the impugned orders and I am not inclined to grant any relief to the petitioners in this proceeding.

44. For the reasons aforesaid, this writ application fails and is dismissed. The rule is discharged.

45. In the facts and circumstances of the case, there will be no order as to costs.