Trust of India and Anr. v. Union of India & Anr.

Judgment

The Judgment of the Court was delivered by JAGANMOHAN REDDY, J.-The appeal and the writ petVion No. 40 of 1968 are by the Press Trust of India, while writ petition No. 37 of 1968 is by the Indian National Press (Bomb2y) Ltd. The appeal and the writ petitions challenge the order datal October 27, issued by the first respondent-the Union of India, Ministry of SUl'REME COURT REPORTS Labour, Employment and Rehabilitation (Department of Labour and Employment) accepting the recommendations of the Wage Board constituted under s. 9 or the Worlcin~ Journalists (Conditions of Service) and Miscellaneous Provisions Act, 1956 (45 of 1955)- herein-after referred to as 'the Act'-as violatirrg Arts. 14, 19 and 21 of the Constitution of India.

The order accepting the recomm(mdations in respect of the wages, scales of pay etc. of the working journalisis was subji~ct 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. T11e second respondent is the · Indian Federation of Working Journalists. At .he outset a preliminary objection was rais~ on behalf of the first respondent, whid1 was also supported by the second respondent, that the appeal is not maintainable under Art. 136 of :the Constitution, in:ismuch as the Central Government which passed the order dated October 27, 1967 is neither a Court nor a Tribunal1 and the order passed by it is not a judicial order but a statutory ord1!r-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 Cour:t 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, aii objection has also been raised that as the second petitioner A. B. Nair in writ petition No. 37 of 1968 ha1 died during the pendency of the petition. ·and as 1U1 application had been filed in1 writ petition No. 40 of 1968 to delete the name of the second petitioner Uma Shankar Dikshit, the first petitioner in both the petitions being limited companies, the reliefs claimed could only bf:. confined to Arts. 14 and 31 of the Constitution and not to Art. 19 under which the guarantee of fundamental rights is only available to a citizen of India, which the limited companies are not.

In ordE~r to appreciate tr.c~e objecitions it is necessary to set cut certain provisions of law and indisputable facts. Under s. 9 of the Act, there is power to constitute a Wage Board for fuing or revising rates of wages in respect of working journalists. Once the Board is consfituted it shall, by a 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 n18Y think fit (s. 10(1)); every such representation shall be in writing and shall be made within such period as the Board may specify in the notice and shalt state the rates of wages which in the opinion of the person making the representation, would be reasonable ( s. 10(2)).

Af1'.er taking into account the representatiom: and · after examining the materials, the Board shall make such recommendations as it· thinks fit to the Central Government for th1.: fixation or revision of rates of wages with .. effect from a date as mav be specified by the Board (s. 10(3)).-It is further provided ins. 10(4) that in making any recommendations to the Central Govemme11t, the P. T. I. v. UNION (Jaganmohan Reddy,!.) Board shall have regard to the cost of living, the prevalent rates of wa~es for comparabi" employment, ,the circumstances relating to the newspaper inidustry in ditterent regions of the country and to any other cJTcumstances which to the Board may seem relevant. The Central Government had, i!li exercise of the powers conferred uuder s. 9 of the Act, constituted a Wage Board and after receiving the recommendations of that Board published them in the Gazette ot India Extra-ordinary dated May 11, 1957.

The Commissioner of Labour, Madras, issued a circular on May 30, 1957, calling upon the management of all newspaper establishments in the State to send to him the report of the ~ross revenue for the three years, i.e. 1952, 1953 and 19:i4, within a period of one month from the date of the publication of the Board's decisio!li, i.e. not later than June 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 Ac.t 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 mauria with the objections that had been urged by the representatives of the employers in the minutes of dissenlt which they had appended and it was contended that the implementation of the decision would be beyond the capacity of the petitioners and would resul1t in their total collapse. This Court had in Express News- ·papers (Private) Ltd. & Anr. v. The Vinion 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 pro- 1 perly construed made it incumbent on lthe Wage Boa.rd to take into consideration the capacity of the newspaper industry to pay the rates ankl scales of wages recommended by it and as there wa~ nothing to indicate that it had done so, Ms decision was void and inoperative.

It further held that the impugned Act, judged by its provisions, was not such a . law but was beneficient legislation intended to regulate the conditions of service of the working journalists and the consequences that were adverted to in that case could not be the direct and inevitable -result of it. It also expressed the view that although there could be no doublt that 1 liberty of the press was an essential part of the freedom of speech and expression guaranteed under Art. 19(1) (a) and if the law were to single out the press to lay prohi· bitive burdens it would fall outside the protection afforded by Art. 19(2), tl).e impugned act which directly affected the press and fail outside the categories of protection mentioned in Art. 19(2) had not the effect of taking away or abridging the freedom of speech and expression of tho petitioners and did not, therefore, injfringe Art. 19(1) (a) of the Constitution. Nor could it be held to be violative of Art. 19 (1)

( g) of tho Constitution in view of the test of reasonableness laid down by \this Court. The question whether the functions performed by the Wage Board are administrative, judicial or quasi-judicial, or legislative in character (1) [1959] S.C.R. 12. SUPR-£ME COURT REPORTS was also raised before this Court in thl! Express Newspapers case. (supra) This question was said to assume importance on two g1:ou~1~s, viz., (i) whether the decisions of the wage boards are open to :iud1cial review, and (ii) whether the principle of audi alteram partem applies to the proceedings before the Wage Boards. If the functions performed hy them were administrative or legislative in character, they would not be subject to judicial review, and not only would they not be amenable to writs of certiorari or prohibition under Arts. 32 and 226 of the Constitution, they would also not be amenable to the exercise of special leave jurisdiction under Art. 136.

Their decisions, moreover, wr:ild not be vulnerable· on the ground thait the principle of audi alteram vartem, i.e. no man shall be condemned unheard, was not followed in the course of the proceedings before them and the procedun: adopted by them was contrary to the principles of natural justice. Afte: examining the principles and :the cases in which the character of the functions of the Tribunals or the Boards as such had been considered, this Court expressed the view that it was not possible to hoid thalt the functions performed by the Wage Hoards 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 emplgyers 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 brini;ing the -.vage 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 jucJkial review at the hands c..f higher Tribunals exercising judicial or quassijudicial functions. it cannot be predicated that these wage boards are exercising legisl.ative functions.

Whether thev exercise these functions or not is thus to be determined , by !the relevant provisions of the statutes incorporating them and it would be impossible to !av down anv universal rule which would help in the determination of this question." Havig s:tated that even if on the cons1ruction of the relevant provisions of the statute the functions performed bv a particular wage board are nDt of a legislative character. this Court nonetheless observed that ."the question still remains whether the functions exerci~l'd by them are administrative in character or judicial or quasi-judicial in character, because only in the !utter event would their decisinr1 be amenable to the writ iurisdidtion or to the "special leave jurisdiction above referred to." After examining this aspect at pp. 117-118 the Court said : p. r. r. v. UNION (Jaganmohan Reddy, /,) 5 o 5.

"There is considerable force in these contentions, but we do not feel called upon Ito express our final opinion on this question in view of the conclusions which we have hereafter reached in regard to the ultra vires character of the decision of .the Wage Board itself. We are however bound to observe that whatever be the character of the functions performed by the Wage Boards .whether they be legislative or quasi-judicial, if proper safeguards are adopted of the nature discussed earlier, e.g., provisions for judicial review or the adopting of the procedure as in the·case of the ,recommendations of the wage councils in the United King· dam, or the reports of the advisory committees which come to be considered by the administrator under the Fair Labour Standards Act of 1938 in the United States of Amerka, no objection could ever be urged against the determinations of the wage boards thus arrived at on the score of the prin• ciples of natural justice having been violated."

After the decision in the Express Newspapers' case (supra), Parliament, having regard to the observations made therein, amended the provisions of ;he Act, and b_Y Act 65 of 1962 substituted ss. 8, 9, 101 11, 12 and 13 by new sections 8, 9, 10, 11, 12, 13 and 3-A. The learned Solicitor General contends that after these amendments every person affected was . given an opportunity of hearing. The Government was not required to give reasons where it was varying the recommendations; nor was it ne~essary for it to give reasons where it was accepting the recommendations of the Wage Board, nor did any of the provisions in ss. 8 to 12 provide for a judicial determination of a right, nor 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 in the case of a parent law which provides for a judicial determina· tion 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 guitlance 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 deci~ions in The Edward Mills Co. Ltd., Beawar and Ors. v. The State of Ajmer a11d Anr(l) dealing with the Minimum Wages Act.

1948; Mis. Bhikusa Yamasa Kshatriya v. Seminar Ako/a Taluka Bidi Kamgar Union,( 2 ) and the observations of this Court, in the Express Newspapers' case (supra) at pp. 164 & 165. It is contended that the investigation Ie1ding , upto the order does not involve a decision in terms of the existing law. (I) [!965] I S.C.R. 735. (2) [1963] Supp. 1 S.C.R. 324. SUPllEME COURT REPOIUS nor is there any requirement of \ietermination of existin~ ri~hts, nor is the existence of a dispute a condition of the exercise of jurisdiction. All that is reouired by the Central Government is for it to make an order in terms of the recommendations or subject to such modifications which the Central Government thinks fit. It is not a di:cision between any contending parties, but is largely a policy decision made within the framework and in the light of the guidance provided by .the Act.

The learned Advocate for the petitioners on the other hand contends that the procc:dure laid down in the Act for fixation of the wages is similar to that laid do!'fn under the Industrial Disputc:s Act, the award under which Act has been held by this Court to be aq award of a Tribunal within the meaning of Art. 136 of the Consti· tution, accordingly an order made· on the recommendations cou1d be challenged by an aggrieved party in an appeal to this Court by way of a special leave. In so far as the contention that no relief in the writ petition is available under Art. 19 is concerned, it is urged that the prayer for substitution of Shri .Tai Kumar Karmani a shareholder in the first petitioner company in place of the deceased A. B. Nair in writ petition No. 27 of 1968 and of Shri K. Narenl'.lra a shareholder in the first petitioner company in place of Shri Uma Shankar Dikshit in writ p~tition No. 40 of 1968 being manifestly just should be granted.

If these prayers are granted, the second petitioners in the respective two writ petitions can also challenge the impugned order under Art. 19. lt may be mentioned that in the first petition the substitution is necessitated by the death of the second respondent and in the <;econd as Shri Uma Shankar Dikshit had been appointed a Central Minister, another shareholder is sought to be substituted. It is contended on behalf of the second respondent that the those petitions should not be allowed, nor shoul\:l the petitioners' Advocate be permitted to raise any question of infringement of the right<; conferred under Art. 19. nor is it riclit to say that no question of limitation arises in the matter of enforcement of fundamental rights. It is also submitted that even otherwise a shareholder can enforce only his rights under fhe law and no such infringement can arise in this case.

It appears to us that though it may be that no specific mention had been made in the petitions of any of the Articles which are alleged to have been infringed bv the impugned order the facts stated and the contentions urgecl in the petition entille the petitioners ·to invoke also Art. 19 A shareholoer 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 capacitv to pay. or where the higher wage than\ what the iournalists asked for is fixed without hearing the employer. then that burden will effect the shareholders also. In such a case it w111 not be valid to contend that the right of a shareholder is not infringed. ~~ think the peti•ioners can valirlly challenge the orl:ler under Art. P. T. I. v. UNION (Jagannwh11n Reddy,].) 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 nothing to debar a Central Minister from continuing to be a petitioner and the petitioners cannot. be denied rel_i~f under.

Art.. ~9. Similarly, if we reject the prayer m the first petition (Wnt Petition .No. ?7 of 196.8) on a technical plea that the second respondent havmg died no rehef can be granted under Art. 19, there is nothing to prevent another writ petition being filed by a shareholder of the first petitioner company, challengini the impugned order under Art. 19. The rejection of the prayer, therefor~" will merely prolong the .lit.iga!ion. The argument that such a, pet1t10n would be barred by hmttat1on cannot be considered unless the circumstances under which a fresh petition has been filed and the question whether the petitioner has been guilty of lachcs or triCd to purpose his remedy dili~ently are examined. It may be that the circumstances: urged for filling the petition late may justify it being entertained.

In our· view, as the prayer for the sul:>sti· tution in each of the Writ petitions will further interests o~ justice and as the balance of convenience would justify granting the petitions, we accordingly direct the persons named above to be brought on record in the respective writ petitions as second petitioners. . Now coming to the merits of the case, the petitioners in writ petiti0n filed by the Press Trust of India (hereinafter ref'crred to as 'the P. T.I.') complain of violation of Arts. 14, 19 and 31 of the Constitution inasmuch as the P.T.I. has been discriminated against both in respect of the classification and in the fixation o! wages based op_ that classification. As regards the classification of jobs, and grouping of journalists with functional definitions, it is contended that the recommendations were mad(l by the Wage Board without the matters being referred to it, nor were they based on any case urged by any of the parties appearing before it.

It is also contended that the recommendations of the Wage Board and the consequent decision of the Central Government are invalid, as the Wage Board has acted totally against the provisions of s. 10 of the Act by not' taking into consideration the representations of the P.T.I. either in respect to its capacity to pay or with reference to the other circumstances relevant to such wage fixation a& are mentioned in the representations. This apart, the Wage Board has arbitrarily discriminated against 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 II instead of in Class Ill.

It is further submitted that the Board has acted in excess of its jurisdiction by awarding to the employees wa11es 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 differentlv 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, (1975] 3 .!l.C.R. 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 specific requirements of newspapers of different classes. Tbe 'A' service is the fullest service they provide. The 'B' service is considerably shorter and is intended to carry 50 per cent. of the 'A' service, and the 'C' service is abbreviated service and carries only about 25 per cent.

In the case of the United Press •of India the classification of services does not appear to be regulated by any well-defined lines of demarcation and the main distinction would. appear tcj be between those papers (mainly located in Calcutta) which take the full "local" coverage that the United Press, of India provides and others which do not require this special service. ·Another special feature of the United Press of Inilia service h that it can be taken with or without the inclusion of foreign news, the latter apparently being intended for the convenience of those papers which take the P.T.I. service and are satisfied with Reuter's coverage of international events. The three categories of the P. T.I. service are charged for on the basis set out below :-- 'A' Service 'B' Service Rs. 3,600 per month. Rs. 2,000 per month. 'C' Servico Rs. 1,200 per month.

These rates apply to newspapers published in English, the subscription for Indian language newspapers is ham that for the same category of service for English papers. The Press Commission after examining the working of the P.T.I. and other news agencies made certain recommendations for an increase in the rate of subscription. This recommendation, it has .been urged, was made the basis for special classification by the Wage Board as far as the P.T.I. is concerned. This has been challenged beforn us. According to the learned Advocate for the petitioners, the P.T.I. should have been placed in Class III even if the criteria laid down by the Wage Board was applied.

The Wage Board has, without any justification or any evidence, put the P.T.I. in a higher classification, namely, Class ~I.· It is, according to the learned Advocate, idle: to draw upon the Press Commission's recommendations that the F'.T.I. should increase its rates of subscription or to say that if it increases its subscription it will have the capacity to pay the wages of the. higher category of Oass II in which it was placed. The contention of the learned Advocate is that the P.T.I. has been singled out for higher categorisation and put in a separate category which is not founded on any intelligible differentia which distinguishes the P.T.L from other news agencies or newspapers. Nor has the differentia any rational relation to the objects sought to be achieved by the. Act m1der which the Wage Board is constituted, because under the Act there is only one class of "newspaper establishmer.ts" and there is one definition of the term which under s.

2(d) of the Act means "an establisl\ment und(~r the control of any person or body of persi:ms, 1'. T. l. v. UNiON (Jagu11111ulia11 Reddy,!.) whether incorporated or not, for the production of publication of one or more newspapers or for conducting any news agency or syndicate." We do nut think that the definition of "newspaper establislum~nt" can be drawn on for the purposes of justifying on! y one classification of all the establishment included in that definition. The definiti'on 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 classification, namely, the takin,g into consideration the capacity to pay or to any other circumstances which may seem relevant to the person making the representation in relation to· his representation as has been specifically provided for in s.

10(2), the recomendations and the order made thereon alone indicate the criteria to be adopted by the Hoard for classifying the various catergories of news media specified in the definition. Obviously newspapers and news agencies have different functions. They have different sources ofl revenue and the services rendered by each are different. This broad classification between the two categories may again be sub-divided and sub-classified according to the capacity of each of the categories. The Wage Board in its recommendations has stated that for the purpose> of, fixation of wages for working journalists, newspapers and news agencies should be classified in the manner therein provided and that such classificati'im should be based on the gross revenues for the accounting years 1963, 1964 and 1965. The gross revenues of the seven classes into which the respective news media, that is, both for newspapers and for news agency have been divided are as follows :

Class and Gross Revenue : l Rs. 200 !akhs and above. ll Rs. 100 lakhs and above and Jess than Rs. 200 Jakhs. l ll Rs. Rs. 50 lakhs and above and less than Rs. 100 lakhs. IV. Rs. 25 lakhs and above and less than Rs. 50 Iakhs. Rs. 12 Jakhs and above and less than Rs. 25 lakhs . Vl. Rs. 5 lakhs and above and jess than Rs. J 2 lakhs. Vil Rs. Less than Rs. 5 Iakhs. Gross revenue in the case of newspaper has been defined by the Buard as the entire revenue earned by the establishment front one centre, and 1n the case of a group the entire revenue of a unit is to consist 0£ its circulation and advertisement revenue and that part of the rest of the revenue which is proportionate to its circulation and advertisement revenue. In the case of news agency the entire revenue of the establishment by whatever sources earned by the establish- · mcnts has to be taken as the gross revenue.

It is submitted that there is discrimination between newspapers and news agencies because even the earning& which have n·othing to do with the· activities of the news agency as such under the. above criterhi is incl.uded in the gross revenue. In this connection it is said that the P.T.T. has built a buil<l'ing by taking loan from the Government t 8:--.423SCI I 75 .. 510 and has been earnin~~ revenu:: from rent~. 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 (sec para 4.3) has not been kept in view by the Wage Board in the case ofl the P.T.I., thus discriminating it from other newspapers and news agencies to which the above crit1:ria 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 o:f the special position enjoyed by P.T.L, as a national agency it is placed in class 11. Alth'Ough its pres'ent revenue at the end of 1965 is about Rs. 85 lakhs, as a national agency, P,T.1. has to cater even for top clas.s papers. Besides the aspects of objectivity, speed, accuracy and integrity urc the speci.ul characteristics which mark the work of working journalists in. a news agency". Again, in para 3.33 although i,t is shown that the average net profit of the P.T.I. for three years, i.e. 1963-1965 is Rs. 3.87 lakhs, the financial burden on aecomlt of the implementation of the final pl'oposals of the Wage Board would be Rs. 6.78 lakhs which would clearly indicate that it has not the ~:apa­ city to bear the burden of the Wage Board's recommendation.

The Wage Board, however, in para 3.34 has given the reas·ons why it is treating the U.N.I. differently from the P.T.I. because that is a new concern hardly 8 years: old and has still got to build up its business. As far as the P.T.I. is concerned, it observed that there is recurring burden of Rs. 7 lakhs, and havir.g regard to the aver[lge profit for 1963, 1964 and 1965 being Rs. 3.87 lakhs, the deficit on account of arrears would be t:o the tune of Rs. 3.5 lakhs. In spite of this recognition, the Board says that "it should not be difficult for the P.T.I. to make up this deficiency by increasing the rate of subscription and also by tightening up the organisation". It is this classification of the P.T.J. that has been attacked as being discriminatory and arbitrary and is said to be without any basis. In so far as the U.N.I. is concerned, there is no doubt that it fats under Class V but, as stated already, there can be no doubt that the service rendered by the P.T.I. is certainly higher.

Similarly, newspapers and news agencies arc in a different class. In these circumstances there can be no question of any discrrmination among unequals. The classification is based on un intelligible dilferentia, namely, the capacity :of each news agency to pay and between newspapers and news agencies, on the nature of the service rendered, the sources of income and the manner in which that service is rendered. The criteria for classi· fication also bears a rational relationship to the object to be achieved, namely, wages to be fixed.

The only question will be whether even \111 the criteria laid down by the Board, arc its recommendations in respect of the P.T.I. arbitrary arid do they single it out for discri- 1mination? lt is \\'ell established that even where legislative action or any action taken is under any law against a single individual or thing or several i'.1dividual persons or things where no reasomtblc basis for classification may appear in the face of it or dedueiblc fram the surrounding circumstances, that action is liable to be struck down 1'. T. I. v. UNION (laganmohan Reddy, J.) as an instance of discrimination : (see Ameerunnissa Begum and other v. Mahbood Begum and others; (') Ram Prasad Narayan Sashi and another v. The State of Bihar and others;e) Shri Ram Krishna Dalmia v. Shri Justice S. 'R. Tendolkar & otherse).

It is clear that takmg into consideration the capacity or the gross revenue which. has been made the basis of classitication, there i.s substance in the sub- 111ission 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 ~or 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 subscripfron 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, Pre~ siding Officer, National lndustdal Tribunal, in a dispute between the P.T.I. and their workmen published in the Gazette of India, Part II, Section 3(Il), at p. 3565. ln that award, in paragraph 62 ·a reference was made, t·o the observations made by the Press Commission which in paragraph 419 had observed: \.'The Press Trust of India has in the course of its working! incurred losses amounting to a substantial proportion of its capital.

We would like to emphasise in this connection that the losses we refer to are n'Ot really losses in the usual sense of the term. The newspapers themselves are the shareholders, and if the agency has been recovering from them, a.s subscriptions, less than what it cost the agency to provide the service, the shareholders have had the benefit each year of the amount that is now shown as an accumulated loss. j3ach year, they have paid for the services less than in equity ,they sh·ould have, and thus got their money back in instal- ;'ments. The loss, i£ any, is only to these shareholders (pub- , lishers of monthlies and periodicals) who did not take a news service and could not therefore get their capital back in this manner." After discussing the various aspects, the award 'Of Salim M. Merchant sets out the foll'Owing conclusions in paragraph 62 as und.er :

"The conclusion to be drawn from this discussion is that I am more than satisfied that the P .T.I. has the capacity to meet the financial burden of the more favourable terms 0£ employment for both its. working journalists and non-working journalists in respect of the various matters referred to in the schedule to the order of reference which I propose to grant by this award, and that if necessary it can easily raise the requisite funds by increasing its rates of subscriptions." The recommendati'Ons of Press Commission Report of 1954 which formed the basis of Salim Merchant's Award of 1960 and which is (l) [1953] S.C.R. 404. (3) [ 1959] S. C. R. 279 at 299. 19-423SCI[75 (2) [1953] S. C.R. 1129. ll975]

3 S.C.R. now being pressed into service by the respondents to justify _the Wag~ Board recommendations in placing the P.T.L in Class 11 mstead of Class III have been described by the petitioners' learned Advocate :JS fallacious and the approach of the Wage Board as totally opposed to the provisions of the Act. It is submitted that the Press Commission's recommendations were based on certain premises which ceased to exist since they have not been accepted by the Government or "overnmental agencies. The rcC'ommendations of the Press Cornmis- ·~ion, it is pointed out, wer~ a c:omposite recommendations as can be discerned from the following :

"Our recommendations for the revision of' tariff,, of the Press Trust of India, the transfer of the responsibility for purchase and mainte1iance of teleprinters to Govern mer,' a concession in respect of reception charges, "and an increase in the subscripfo:ins paid by All India Racli,i, 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 Turstccs.'' lt 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 ~.chcdule in respect of which the Newspapers (Price & Page) Act, 'l 956, was enacted. The Act was, however, struck down by this Cow t in Sakal Papers Private Ltd. and others v. Union of India('). The P & T Department refused to take over the teleprinters.

The All India Radio refused to increase the subcription to the extent recommended by the Press Commission. The Press Commission even went to t!1c "extent of saying that the P.T.I. should offer three categories of service, Class I, Class 1I and the Summary Servicc The Summary Service ohould be taken by the newspapers not exceeding twenty-four pages per wee)c of standard size ;md having less than 5,000 circulc,tion; those publishing a larger number of pages but not exceeding thirtytwo pages per week should take the Class II service, and others publishing mJre pages per week should take the Class I Service. It also ptovides for reduction of ?5 per cent. On the royalties to any newspaper that subscribes also to a service from the United Press of India (see paragraph 392).

While so, in paragraph 413 the Press Commission observed that "a public corporation forced ·otherwise than oa ·the basis of a co-operative effect by the newspapers may be open to the danger of newspapE:rs not taking a service from them. The corporation has, therefore,, to be built up on the present foundations, whatever may be the changes in its control and opcation.'' ln view of this conclusion, it is submitted by the learned Au'hlcatc for the petitioners that the Press Commission itself has reali';cd the futility of its recommendations in jacking up subscriptions in that no legal compulsion can be exercised in this behalf and has accord- 1in):!ly recommended the continuance of the present system of a cooperative proprietary ownership by newspapers of thl" P.T.J. It is (!) [1962] 3 S. C.R. 842. n 1 u II !'.

T.]. \'.UNION (Jaga111nohw1 Reddy,!.) the case of the petitioners that the P.T.I. !las •made consistent efforts during the pas! years lo increase the subscriptions and that out of the total subscription revenue, only roughly 30 per cent is contributed by the shareholders, i.e. out of total number of 170 newspapers subscribers, only 90 are shareholders. All these shareholders arc not 'fl rst class newspapers. Apart from the newspapers, the All India Radio and governmental agencies and commercial ,houses and embassies also subscrib~ to the -news service of tl1e P.T.I. and contribute in a large mcasur~ t·D its revenue. The P.T.I. has no legal means available to cornpc\ any increase. lt has found in the past that the revenues d(i not p1;oportionately increase with increase in subscription. bccau>c the newspapers either refuse to continue subscriptions ur >.witch over to lower class of service. The Press Commission j[sclf noticed in para2.raph 402 of its report that the representative of:

All India Radio candidly obs·erved that it is better for them to start a news service of their own rather than pay a higher subscription. 1t does not aprear t·o what extent the Wage Board has considered the relevant niaterials either of the Press Commission, Salim Merchant's Aw:ircl or the circumstances adverted to by the learned advocate for 1hc 1-ictitioners in the light of any representations made to them. Whclhe.ithe financin,l potentiality of the P.T.I. was considered as the basis for includjng it in Class JI category instead of in Class l;I category, c01itrary, to the criteria prescribed by the War>;e Boacl itself, is also not evident from the recommendations of . the Bo;ircl. All that is discernable is that becm1se the P.T.T. has the status of a national news arrcncy which enters even f.or top class papers. it should be placed in Class II category.

How the p0sition of the P.T.I. ;1' a national news agency has any relevance to the criteria relatable to its rross revenue has not been specified, ll'llr are we able to as cert:1;11 a, to how 1hc catering to the top class papers would increase its pross revenue. On the other hand, the P.T.J. has been placed in the category of Class IT instead of Class ITT, to which it admittedly beloncs, and that it was required to continue to be in that class as long ns it satisfies the criteria for Class III. namely .so long as its gross revenue is less than Rs. 100 Iakhs. This, in our view, is arbitrary and singles 011t the P.T.T. for discrimination. The two dissenting members of the Board. Mr. K. K. j\1athew and Mr. K. Nattakalappa indeed ;1dverted to this aspect when they sa.id : "We cannot ar.ree with the recommendations that P.T.I.'s position shoulcf be raised and placed in class 11 even though, as per its revenue it should really fall in class III.

We cannot a!D.'Ce with the recommendati'<m as it involves certain fundnlncntal points and is discriminatory. Having decidt'.'cl 011 classification of news agency on the basis of revenues, the majority of Wage Board chose to elevate P.T.I. by one class withou, any .sound argument. In our opinion such a. decision to elevate P.T.I. is not correct and is utterly irrational and discriminatory." Certain st1temcnts of profits and loss for the yec>.rs 1962 to 1972 11;wc been pbccd before us to show that th·ough there was a heavy increase of subscription in the years 1966, 1968 and 1971, it did not produce commer.surate profits. In 1966, there was a loss of Rs. 291--00; in 1968 Rs. 3.l 9,449-00 and in the year 1971 there was .:; meagre profit of Rs. 1,86,597-00 and this in spite of the enormous 'rent revenue received by the P .Tl. from its own building.

This apart, a statement has been filed to show that the increase in the burden of the Wage Board recommendations would increase from 6.69 in 1966 to 12.29 lakhs in 1968 and 16.78 lakhs in 1969 which is a burden far in excess of its capacity each year. On the other hand, on behalf of the second re:spondent figures of subscription were sought to be placed before us fur the years 1971, 1972 and 1973 to meet the argument that a substantial portion of the revenue of the P.T.J. rnme t'rom the AH India Radio, Government agencies and embassies and commercial services though no facts and figures were given. As is clear, most of the data, whether produced by the petitioners or by the second resp·ondent has not been accepted by one or the other. Each one of the parties has drawn its own conclusions from that data and has not accepted even the figures. In our view, yield from subscription for the years 1971, 1972 and 1973 are not relevant for fixation of the wages in 1967.

These may justify a wage revision by another Hoard. It was urgc:d 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'~ 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 lioth working journalists and non-working journalists. In so flar as the working journalists are concerned, the burden as from 1st July 1967 at the rate of Rs. 29,000/- per month will amount to only Rs. 3.48 fakhs which is less than the average profit of Rs. 3.67 lakhs. The financial burden, therefore, accordin,g to the learned Advocate for the second respondent, is not heavy. He further contends that the wage bill has t'O 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 Rs. 6.78 lakhs is in respect of 13 the working j'Ournalists or in respect of both the working and nonworking journalists, it is none-the-less the burden which the P .T.I. has to bear. In judging the financial capacity of the employer we have to look at the burden as D, whole and that is what the Wage Board has done when it recognised that the burden is a heavy one. It cannot be said that the establishment should pay the working journalists first the recommended wages and utilise whatever balance remains for payment to the non-working journalists irrespective of whether they can be paid the wage recommended or not. This is · H not what is envisaged in the term capacity to pay. No doubt the wage increases will have to be met from the revenue and only tht~reafter the profits can be computed.

Merely because the Wage Board p. T, r. V, l)N10N (Jagllnmohan Reddy, J.) has stated that th~ average burden for three years is Rs. 6.78 lak~s and the rccurrin2 delkit is about Rs. 3.5 lakhs, that cannot be s~ud that it has dedu.cted the average profits of Rs. 3.67 lakhs from the annual reC'Jrring financial burden cif Rs. 6.78 lakhs. In fact, if this is what it has done, the financial burden will be only Rs. 3.11 1akh~ and not Rs. 3.5 lakhs. We, therefore, presume thet the Wage BoarJ were aware of the method of computation suggested by the learn~d Advocate for the second respondent when they gave Rs. 6.78 1akns as the re.currinu: financial burden which would have to be born~ by the P.T.1. on account of the implementation of their final proposals. At any rate, we cannot, say that it has not done so. W~1ilc · rccognisin2 that the burden was heavy, the Wage Board assumed without anv discussion that the P.T.I. could increase its subscription and tighten .. its organisation.

But assumptions are not enough. What the Act says is, ascertain the financial capacity and fix the wage acconling to that capacity. The observations. in the Express Newspapers case (supra) at p. 192 arc apt in their application to this case. This Court in that case said, " .... all the members of the Board seem to have lost sight of the fact that the essential pre-requisite of deciding the wage structure was to consider the capacity of the industry to pay and this in our opinion introduces fatal infirmity in that decision of the B'oard." No doubt, in that case it was observed that if the Board had considcrccl this aspect they would have been reluctant to accept any challenge to the validity of the decision on the ground that their capacity 1-cJ 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 igno~·ed.

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 conclusi'un 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 proP'osition that as soon as it is apparent that the Board in some wav or other has touched upon the matter no challenge can be entertained. Apart from· this, there is one other infir;nity in the impugned order which h\1s 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 clai 111 of the employees. but could not meet the recommendation for a. hi~her wage than asked for. The Wage Board has thus not complied with the principle3 of natural justice which have been incorporated in s.10 of the Act.

The provisions of this section are as imrlcr : "10. (I). The Board shall by J1'otice published in such manner as it thinks fit, call upon newspaper establishment and working journalists and other persons interested in the fucation or revision of rates of wa!!es of workin11; journalists to make such representations as thev may think fit as regards the rates of wages which may be fixed or revi~ecl under this Act in respect of wcrking journalists. SUPREM!! COURT R!lPORTS " ( 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 tht: opinion of the person making the representation, would be reasonable, having regard to the capacity of the empioyer to pay the same or to any other circumstance, whici1cvcr may seem relevant to the person making the representation in rcln-· t ion to his representation. (3)

The Board shall take into account t11e rcprc:,entations aforesaid, if' any, and after the materials placed before it make such recommendations as it thinks fit to the Ccnlral 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." Suh-section (3) enjoins on the Board to' take into account the representations of those mentioned in sub-s. (1) and after considering the m;itcrials, to make recommendations to the Central Government for the fixation or revision of rates of wages. Sub-section (2) requires the Board to take the capacity of the employer to pay Into consideration.

When. as we have noticed, the recurring linancial capacity of the P.T.I. is itself according to the Wage Board not sufficient to bear t!1c burden placed by it, the recommendations of the Wage Board of a wage higher than what has been asked for by the employees without notice to the employers, shows how unreasonable and arbitrary the rccommencb.- tions of the Board are. The Federation of the P.T.I. employees union in ils reply to Part I ancl TT of the questionnaire issued by the Wage Board suggested the followin,g scales of pay for Class 'A' news agency having a gross revenue of Rs. 'iO lakhs and over as against which is given the recommendation of the Wage Board : Fedcmtion's scale or pay for working journalists. Wage Bonn1's prnpo~ed fC~le nf Jl•'S fo1 the P.T.I. Group J. Net less than R~. l 6110.'-p.m, Group I-A- Rs. 800-75-1100-125-1600 (8 ya~rs) Group I-B· Rs. 750-78-1140-1 ~0-1500 (8 years) Group If- Rs. 650-50-1000-75-1600 Group JI. Rs. 650-40 .. f'.'0-70-1200- (15 year~)

100-1400- (12 yc1r>) Grot:p llA-Rs. 550-50-1000.60-1300 Group IlA- Rs. 375-34-345-55-1.095-~5- (14 years) 1350 (IS y-:1rs) Group 1 IB- Rs. 400-30-610-40-810-50-900 (14 years) Group JJI. Rs. 250-25-450-30-600-40-800 Group III- Rs. 375-30-525-45-975- (18 Years) 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 ti~hcr scale than !'. r. r. v. UNION (i{Jganmoiian Reddy, i.) what has been asked for by the Federation of the P.T.I. Employees union. The P.T.l. points out that the Wage Board ha.; gone oeyond 1 he: scales suggested oy the Federation which, !ii an employees organisation, will always demand the maximum. Not only Lhe Wage Hoard has ra.isi:d ;h..: minimum and maximum over the Federation's demand, btoc also increased the quantum of annual increment und enlarged the classilication of the working journalists.

Similarly, for Group ll~A, co1wspolllling to Group 11-li of the Federation, the Board has recomrncnded the maximum of Rs. 1350/- starting from Rs. 375/- as against the Federation's demand of Rs. 900/- starting from Rs. 400/-, a differ· cncc of Rs. 450/- in the maximum. For·Group II, correspondin~ to group H-A of the Federation, the Wage lioanrs proposal is Rs. 6.)0/- to Rs. 1400/-as against the Federation'~ of Rs. 550/- to Rs. 1300/- and for Group 1-B, corresponding to the Federation\ Group II, the Board's propesal is Rs. 750/- to Rs. 1500/- against the Federation's of Rs. 650;- to Rs. 1600/-. The learned Advocate for the second :·espondent challenges the submission that the proposal of scales of pay is higher than what was as]j:ed for. It is pointed out thal the wage fixation by the Central Government under s.

12 of the Act is' not based tipnn the dispute or demand, and if the wages are fixed according to what has been asked for by the Union, a pnnciple,.if accepted, would make the scheme of wage fixation under the Act either wholly impossible or unworkable. Even factually it is denied that the Employee .Federation had wanted to confine themselves to the payscales specified in the questionnaire. No doubt, they did state in thcit supplementary mem·orandurn that ha,ving regard tc>'the status of .the P.T.l., the total emoluments for varjous categories' may be awarded for the highest dass of newspapers, together with the provision for progressively increasing their emoluments in line with the rise in gross revenue above · Rs. 50 lakhs both in the ·case of ·Class 'A' newspaper ar.d Class 'A' news agency.

While this was a general statement askin~ for higher · wages, the wages asked for by the employees of this premier . news dgcncy which was the only one of its kind was one shown in the statement given earlier. As we have seen, s. 10 confers a right of repi:cscn- '; · talion on both employers and employees and has pres.;ribed a procedurc for calling upon the. newspapers establishments and working journalists and other persons interested in the fixation or revision of wages. for working journalists to make representations and thereafter it is incumbent upon the Board to _take into account these representations and examine the material placod before it in. the light of, those representations for making its recommendations. Any infringement of this pro~cdural safeguard wourd affect its rec~mmcndations. A Jaw providing reasonable restrictions i•a the exercise of the right conkrrc(f by Art. 19 may contain substantive provisions as well as procedural provisions.

The reasonable~ess of the restricti?n whet?er substantively or procedurally has to be 1udged from the pomt of view of the right that has been i.1 fact restricted. In Dr. N. B. Khare v. The Stare of Delhi, Kania; CJ., at p.524 said; "The law providing reasonable restrictions of the exercise of the right co•;lferred by Article 19 may contain substantive provisions as well as procedural provision~. While (I) [19501 S. C, R. 521. [1975] 3 s.c.lt the reasonableness of the restrktions 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 th~ law prescribes five years externment or tc'.1 years cxternment, the question whether such period of ex.ternment is reasonable, being the substantive p•art, is , necessarily for the consideration of the Court under clause ( 5) .

Similarly, if the law provides the procedure under which the exercise of the right may be restricted, the same is also for the consideration of the Court, as it has to determine if the exercise of the right has been reasonably restricted. I do not think by this interpretation the scope and >ambit of word "reasonable" as applied to restrictions on the exercise of the right, is in any way unjustifiably enlarged." In our view, the recommendations of the Wage Board, in so far as the P .T.I. is conec:rned, are unreasonable. They are far in excess of what the employees themselves demanded and arc beyond the finnncial capacity of the establishment. The order, in so far as the P.T.I. is concerned,. is, therefore, violative of the fundamental rights guaranteed to the petitioner and must be struck down. It is, however, submitted O'J. behalf of the P. T. I. that it has entered into an agreement with its employees represented by tht;, Federation of the P.T.I. Employees Union which gives them a wage higher than was recommended for Class III and somewhat less than that recommended for Class II.

In accordance with that agreement, the working journafo.ts are being paid during the pendency of those proceedi•ags. It has been stated before us that the P.T.I. is prepared to pay all its employees the wages agreed to by the very Fedemtion which had made representation before the Wage Board from the date directed by the order and will continue to do so till the wages are refixed by another Wage Bear .. fr ... case of the Indian National Press the only objection urged was that there is a deficit of Rs. 50,000 /- between the average net profits and the yearly. burden. We do not think any case hM been made out that this petitioner has not the capacity to meet th() wage . increase, particularly when it has eecn placed in the oappropriat1~ class in which is should b~ placed, having regard to its gross profits. No other objection was raised and accordingly Writ Petitio>,1 No. 37 of 1968 is dismissed. No orders in Civil Appeal No. 2102 of 1968i Writ Petition No. 40 of 1968 is allowed, the order of .the Central Government in S.O. 3883 dated October 27, 1967, in so far as the petitioner P.TJ. is concerned, is struck down, and it is directed that thC' petitioner will pay the wages agreed to between the petitio•,1er, the P.T.I., and the Federation of the P.T.I. Employees Union as from the date when the recommendations o.f the ~age Board were payable and will contiriue to P'ay them accordmgly till they are refixed by the Central Go~ernment on the recommendations of another Wage Board constituted uader that Act.

There will be no order as to costs. V. P. S. 423SCI/75-GIPF.