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PETITIONER: EXPRESS NEWSPAPERS (PRIVATE) LTD.,AND ANOTHER

       Vs.

RESPONDENT: THE UNION OF INDIA AND OTHERS(and connected petitions and ap

DATE OF JUDGMENT: 08/01/1958

BENCH:

ACT: Working  journalists-Regulation  of Conditions  of  Service- Constitutionl  validity of enactment-Decision of Wage  Board fixing    rates   of   wages-Validity-Working    journalists (Conditions  of Service) and Miscellaneous Pro visions  Act, 1955 (45 of 1955), SS. 3(2), 4. 5(1) (a)(iii), 9(1), 11, 12, 17,   20(d)(2)-Constitution  of  India,  Arts.  19(1)   (a), 19(1)(g), 14, 32.

HEADNOTE: These    petitions   on   behalf   of   certain    newspaper establishments challenged the constitutional validity of the Working    journalists   (Conditions   of    Service)    and Miscellaneous Provisions Act, 1955, and the legality of  the decision   of  the  Wage  Board,   constituted   thereunder, purporting to act under s. 9 of the Act.  The impugned  Act, which  was passed in order to implement the  recommendations of  the  Press  Commission  and  had  for  its  object   the regulation   of  the  conditions  of  service   of   working journalists   and  other  persons  employed   in   newspaper establishments,  provided,  inter alia, for the  payment  of gratuity to a working journalist who had been in  continuous service,  whether  before or after the commencement  of  the Act, for not less than three years, even when he voluntarily resigned  from service, regulated hours of work  and  leave, provided  for the payment of retrenchment compensation  with retrospective  effect in certain cases and by s.  9(1)  laid down  the  principles that the Wage Board was to  follow  in fixing  the  rates of wages of working  journalists.   Under those  principles the Wage Board was to have regard  to  the cost of living, the prevalent rates of wages for  comparable employments,  the  circumstances relating to  the  newspaper industry  in  different regions of the country  and  to  any other  circumstances which it might consider relevant.   The petitioners contended on various grounds that the provisions of the impugned Act violated their fundamental rights  under Arts. 19(1)(a), 19(1)(g), 14 and 32 Of the Constitution  and that  the  decision of the Wage Board fixing the  rates  and scales   of  wages,  which  was  arrived  at   without   any consideration whatsoever as to the capacity of the newspaper industry  to  pay the same, imposed too  heavy  a  financial burden  on  the  industry and spelled its  total  ruin,  was vitiated  by  a wrong approach and  non-application  of  the proper  criteria and transgressed the principles of  natural justice and was, therefore, illegal and void: Held, that the constitutional validity of the impugned  Act, with the sole exception of s. 5(1)(a)(iii) of the Act  which infringed 13

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Art.  19(1)(g) of the Constitution, was beyond question  and as  that section, severable as it was from the rest  of  the Act, must alone be declared ultra vires. Section 9(1) of the Act, properly construed, made it  incum- bent  on  the  Wage Board to  take  into  consideration  the capacity  of  the newspaper industry to pay  the  rates  and scales  of wages recommended by it and as there was  nothing to  indicate that it bad done so, its decision was void  and inoperative. Held, further, that there could be no doubt, in view of  the interpretation put upon Art. 19(1)(a) of the Constitution by this Court, that liberty of the press was an essential  part of  the freedom of speech and expression guaranteed by  that Article  and  the  press had thereunder the  right  of  free propagation  and  free  circulation  without  any   previous restraint on publication. Ramesh Thaper v. The State of Madras, [1950] S.C.R. 594  and Brij  Bhushan  v.  The State of Delhi,  [1950]  S.C.R.  605, referred to. It was legitimate and proper to refer in this connection  to the  decisions of the Supreme Court of the United States  of America,  since Art. 19(1)(a) of the Constitution was  based on Amendment 1 of the Constitution of that country, and  the rules  that  could be deduced therefrom made it  clear  that although   freedom  of  the  press  included  freedom   from restriction in respect of employment in the editorial staff, the press was not immune from ordinary forms of taxation  or from the application of general laws relating to  industrial relations or laws regulating payment of wages. Case law reviewed. But  if  a  law  were to single out  the  press  for  laying prohibitive   burdens   on  it  that  would   restrict   the circulation, penalise its freedom of choice as to personnel, prevent  newspapers from being started and compel the  press to  seek  Government  aid, it would  be  violative  of  Art. 19(1)(a)  and would fall outside the protection afforded  by Art. 19(2) of the Constitution. The  impugned Act, judged by its provisions, was not such  a law  but was a beneficent legislation intended  to  regulate the conditions of service of the working journalists and the consequences   aforesaid  could  not  be  the   direct   and inevitable  result of it.  Although there could be no  doubt that  it  directly affected the press and fell  outside  the categories of protection mentioned in Art. 19(2), it had not the effect of taking away or abridging the freedom of speech and  expression of the petitioners and did  not,  therefore, infringe Art. 19(1)(a) of the Constitution. A.K.  Gopalan v. The State of Madras, [1950] S.C.R. 88,  Ram Singh v. The State of Delhi, [1951] S.C.R. 45I Minnesota  Ex Rel.  Olson,  (1930)  283  U.S. 697 ; 75  L.  Ed.  1357  and Dwarkadas Shrinivas of Bombay  v. The Sholapur Spinning  and Weaving Co., Ltd., [1954] S.C.R. 674, considered. 14  Nor could the impugned Act be held to be violative of  Art. 19(1)(g) of the Constitution in view of the test of  reason- ableness laid down by this Court. Chintaman Rao v. The State of Madhya Pradesh, [1950]  S.C.R. 759, The State of Madras v. V. G. Rao, [1952] S.C.R. 597,  a State  of West Bengal v. Subodh Gopal Bose, [1954] S. C.  R. 587  and  Virendra v. State of Punjab,  [1958]  S.C.R.  308, referred to. It  was not correct to say that s. 9(i) of the Act  did  not lay down the relevant criteria for the fixation of rates  of wages.   On a true construction of that section it  must  be held  that  the criterion of prevalent rates  of  wages  for

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comparable  employment  could be consistent  only  with  the wages higher than the bare subsistence or minimum wages and, since rates of wages must be held to include scales of wages as  well, it was essential that the Wage Board  should  take into consideration the capacity of the newspaper industry to pay  before it could fix the rates of wages.   Although  the Act  did  not specifically say so, it was possible  to  hold that  the third criterion laid down by the section,  namely, the  circumstances  relating to the  newspaper  industry  in different   regions   of  the  country,  included   such   a consideration.   The  provisions of the  section  were  not, therefore,  unreasonable and violative of Art.  19(1)(g)  of the Constitution. The  provisions of s. 9(1) of the impugned Act did not  vest uncontrolled power in the Wage Board.  The last criterion of that  section  which  empowered  the  Board  to  take   into consideration  any other circumstances that it  might  think relevant,  must  be  read ejusdem  generis  with  the  other criteria  that  preceded  it  and as  they  laid  down  with sufficient clarity and particularity the principles for  the guidance  of  the  Board,  the  Legislature  was   perfectly justified  in leaving such considerations as might arise  in course of the enquiry to the subjective satisfaction of  the Board   constituted,   as  it  was,  of  equal   number   of representatives of both the employers and employees. Thakur Raghbir Singh v. Court of Wards, Ajmer, [1953] S.C.R. 1049, considered. It  was not correct to say, having regard to the  provisions of ss. 11 and 20(2)(d) of the impugned Act, that the Act did not  lay down any procedure for the Board to follow or  that it  was open to the Board to follow any arbitrary  procedure violating the principles of natural justice. There  could be no substance in the contention of the  peti- tioners that the provisions of the impugned Act relating  to proofreaders,  whom  it included within  the  definition  of working  journalists,  period  of  notice  under  s.   3(2), retrospective operation in cases specified by s. 4 and hours of   work,  imposed  unreasonable  restrictions   on   their fundamental right to carry on business. Gratuity,  however,  was a reward for  good,  efficient  and faithful  service  rendered for a  considerable  period  and there could be 15 no  justification  for awarding the same  when  an  employee voluntarily   resigned,   except  in   certain   exceptional circumstances.   The  award of -gratuity, therefore,  to  an employee  who  voluntarily  resigned from  service  after  a period  of  only three years, under s. 5(1)(a)(iii)  of  the Act, must be held to be unreasonable and wholly unjustified. The impugned Act was not discriminatory in character and did not   violate   Art.  14  of  the   Constitution.    Working journalists formed a separate class by themselves and  could be classified apart from the rest of the newspaper employees on  a perfectly intelligible differentia rationally  related to  the  object which the Act had in view.   Nor  could  the provisions  of either s. 12 or s. 17 of the Act,  therefore, be said to be discriminatory in character. Budhan Choudhary v. The State of Bihar, [1955] 1 S.C.R. 1045, applied. The impugned Act contained no prohibition nor did it in  any way  prevent  the  Wage Board from giving  reasons  for  its decision and thus passing a speaking order where it chose to do so, and it could not, therefore,-be said to have violated the fundamental right of a citizen to move the Supreme Court for a writ of certiorari under Art. 32 of the Constitution.

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Rex  v. Northumberland Com. Appeal Tribunal, Ex Parte  Shaw, [1951]  1 K. B. 711 and Rex v.  Northumberland  Compensation Appeal  Tribunal,  Ex Parte Shaw, [1952] 1 K. B.  338,  held inapplicable. A.K.  Gopalan  v.  The State of Madras,  [1950]  S.C.R.  88, relied on. The  question  whether  a  particular  body  was  exercising legislative,  administrative or judicial or  quasi  judicial functions  has to be determined in the light of the  statute under  which it was constituted and an  administrative  body functioning  as such can also be acting in a  quasi-judicial capacity.   The  test would be whether it had to  decide  on evidence  and decide judicially.  So judged, there could  be no  doubt  that the Wage Board under the  impugned  Act  was functioning in a quasi-judicial capacity. Nagendra  Nath  Bora v. Commissioner of Hills  Division  and Appeals, Assam, [1958] S.C.R. 1240, referred to. Case-law reviewed. Although this Court would not normally enter into  questions of  fact, in this case the Wage Board had wholly ignored  an essential  condition  for the exercise of its  function  and imposed  a  very  heavy financial burden  on  the  newspaper industry.   Although  the Classification  of  the  newspaper industry on the basis of grossrevenue, fixation of scales of wages,   provisions  as  to  the,  hours  of  work,   leave, retrospective operation in specified cases, and grouping  of newspapers  into chains or multiple units could not be  said to be improper or unjustified, they made the burden  heavier still. 16 The  Board made no enquiry whatsoever as to the  ability  of the industry to pay either as a whole or region-wise and did not  call  for  or hear  representations  from  them  before finalising its decision.  Its decision was, therefore, ultra vires  the  Act and contrary to the  principles  of  natural justice. ORIGINAL JURISDICTION: Petitions Nos. 91, 99, 100, 101,  103 JUDGMENT: Petitions under Article 32 of the Constitution of India  for the enforcement of Fundamental Rights.                             AND

& CIVIL APPELLATE JURISDICTION: Civil Appeals Nos. 699-703  of 1957. Appeals by special leave from the decision of the Wage Board for  Working Journalists published in the Gazette  of  India Extraordinary (Part IT, Section 3) dated May 11, 1957. 1957.   Dec.  3, 4, 5, 6, 10, 11, 12, 13, 17,  18,  19,  20. 1958.  Jan. 8, 9, 10, 14, 15, 16, 17, 21, 22, 23, 24, 28. M.   K.  Nambiar and G. Gopalakrishnan, for the  petitioners in  Petition No. 91 of 1957. -The Working  Journalists  Act, 1955, is ultra vires as it infringes the fundamental  rights of  the  Petitioners guaranteed by  the  Constitution  under Arts. 19 (1) (a), 19 (1) (g), 14 and 32. Article 19 (1)  (a) which  guarantees freedom of speech and expression  includes the  freedom  of the employment of means to  exercise  those rights  and  consequently  comprehends the  freedom  of  the Press.   The guarantee of an abstract freedom of  expression would be meaningless unless it contemplated and included  in its  ambit  all  the  means  necessary  for  the   practical application   of  the  freedom.  (Freedom  of  the   Press-A Framework of Principles-Report of the Commission on  Freedom

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of  Press in the United States of America, 1947;  Report  of the  Royal  Commission for the Press in the  United  Kingdom 1949; Ramesh Thapar v. The State of Madras, [1950] S. C.  R. 594; Brij Bhusan v. State of Delhi, [1950] S. C. R. 605;  Ex parte Jackson, 96 U. S. 727; Lovell v, City of Griffin,  303 U.  S. 444; Orosjean v. American Press Co., 80 L;  Ed.  660; Schneider v. Irvington, 84 L. Ed. 155. 17 Constitution  of the United States of America,  Revised  and Annotated  (1952),  U. S. Govt.  Printing  Office  pp.  792, 988).   If  the impugned Act is viewed as a  whole  it  will appear that it authorised the fixation of salary of  working journalists  at  a level which disables the running  of  the press.   The  impugned  Act  thus,  impedes,  controls   and prohibits the free employment of the agencies of  expression on that section of the Press which form its vocal chord  and therefore  the Act infringes the freedom contemplated  under Art. 19 (1) (a) and is not saved by Art. 19 (2).  In judging the  validity  of  the enactment it must be  tested  by  its operation  and effect (Dwarkadas Srinivas of Bombay  v.  The Sholapur Spinning and Weaving Co. Ltd., [1954] S. C. R. 674, 683; Minnesota Ex Rel.  Olson, 75 L. Ed. 1357). The  Act also violates the right guaranteed by Art.  19  (1) (g) of the Constitution as it places unreasonable  restraint on the petitioners’ freedom to carry on business  (Chintaman Rao  v.  The State of Madhya Pradesh, [1950] S. C.  R.  759; cited  with  approval in Dwarka Prasad Laxmi Narain  v.  The State  of Uttar Pradesh, [1954] S. C. R. 803 and  Ch.   Tika Ramjidas v. State of U. P. [1956] S. C. R. 393; The State of Madras v. V. G. Row, [1952] S. C. R. 597, 606-607; The State of West Bengal v.   Subodh  Gopal  Bose, [1954] S.  (C.   R. 587; Virendra v.    State  of  Punjab, A. 1. R. 1957  S.  C. 896).   The law imposing restrictions on fundamental  rights must  be reasonable not only in its substantive content  but in its procedural content as well (Dr.  N. B. Khare v. State of Delhi, [1950] S. C. R. 519; Ourbachan v. State of Punjab, [1952]  S.  C.  R.  737).  The  relevant  criteria  for  the fixation of wages were not laid down in s. 9 (1) of the Act. The criteria for the fixation of wages laid down in the  Act were only relevant for fixing minimum rates of wages, though the  word  "  minimum"  used  in the  Bill  13  of  1955  as introduced  in  the  Rajya Sabha  was  subsequently  dropped before  the Bill became the Act.  It was not made  incumbent on  the Wage Board to consider the capacity of  industry  to pay as an essential criterion or a major factor in 3 18 fixing  wages.  The other circumstances, viz., "  any  other circumstances  which  to  the  Board  may  seem  relevant  " mentioned  in s. 9 (1) of the Act was left to be  determined by the Board on its subjective satisfaction which could  not be controlled by any higher authority.  The Act thus enables the Board to exercise arbitrary powers in regard to the same and that is unreasonable by itself (Thakur Raghbir Singh  v. Court of Wards, Ajmer, [1953] S. C. R. 1049; R. M.  Seshadri v.  District  Magistrate, Tanjore, [1955] 1 S. C.  R.  686). The procedure to be followed by the Wage Board was not  laid down in the Act (c. f. The Bombay Industrial Relations  Act, 1946, as amended) and it Was open to the Board to follow any arbitrary  procedure  disregarding  the  principle  of  audi alteration parted and as such the Act is unreasonable.   The Wage  Board  was not exercising  legislative  functions  but functions,  which  were quasi-judicial  in  character.   The intention  of  the Legislature was to  assimilate  the  Wage Board  as  much  as  possible  to  an  Industrial   Tribunal

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constituted under the Industrial Disputes Act, 1947.  If  it is held that s. 11 of the Act is an enabling provision,  and gave the Board the arbitrary discretion whether to  exercise the  same  powers  and  follow  the  same  procedure  of  an Industrial  Tribunal  or  any  procedure  it  liked,  it  is unreasonable. The  provisions of ss. 2 (f), 3, 4, 5, 8 to 11, 12,  14,  15 and  17 place restraints on newspaper  establishments  which would  have  the effect of destroying the  business  of  the petitioners.  The right to impose restrictions on the  right to carry on business under Art. 19 (6) conferred no power on the  Legislature  to destroy the business itself  (Stone  v. Farmers  Loan  and  Trust  Co., 29  L.  Ed.  636;  Municipal Corporation of the City of Toronto, v. Virgo, 1896 A. C. 88; A.  G.,for Ontario v. A. G. for the Dominion, [1896]  A.  C. 348). The Act is discriminatory in character and violates Art.  14 of  the  Constitution.  It gives the working  journalists  a more  favoured treatment as compared to other  employees  in several  ways,  statutory benefits by ,way  of  retrenchment compensation, gratuity, limitation of the hours of work  and leave, not enjoyed by 19 others  in comparable employments.  It is restricted in  its scope to a selected section of newspaper employees. it gives them the benefit of the wage fixation by devising  machinery in the form of a Pay Commission without the existence of any industrial dispute, without prescribing the major  criterion of   capacity  to  pay  to  be  taken  into   consideration; (Britannia  Bldg. and Iron Co. Ltd., (1954) 1 L. L. J.  651, 654; Union Drug Co. Ltd., (1954) 1 L. L. J. 766, 767; Report of the Committee on Fair Wages, pp. 13-15, paras. 21, 23 and 24); or following the procedure prescribed by the Industrial Disputes Act, 1947, even in disregard of principles of  audi alteram   partem.    The   employers   of   the    newspaper establishments are subjected to discriminatory treatment  by the  Act  in that (1) they are singled out  from  all  other industrial  employers  who are covered by the  ordinary  law regulating   industrial  relations  under   the   Industrial Disputes  Act, 1947 ; (ii) they have been saddled  with  new burdens  in regard to a section of their workers in  matters of gratuity, compensation, hours of work and wages; (iii) s. 12  of the Act makes the decision of the Wage Board  binding only on the employers and not on the employees and(iv) s. 17 provides for recovery of money from employers     only   and not  from employees in the same manner as an arrear of  land revenue. The classification made by the impugned Act is arbitrary and unreasonable in so far as it removes the newspaper employers vis-a-vis the working journalists from the general operation of the Industrial Disputes Act, 1947. The  right  to apply to Supreme Court for enforcement  of  a fundamental  right  under Art. 32 is  itself  a  fundamental right  guaranteed by the Constitution (Ramesh Thapar V.  The State  of Madras, [1950] S. C. R. 594, 597).  The  right  to claim  a writ of certiorari against a decision is  dependent on  the fact that the impugned decision on its face is  a  " speaking order ". (Rex v. Northumberland Compensation Appeal Tribunal,  Ex parte Shaw, [1951] 1 K. B. 71 1,  affirmed  by the Court of Appeal in [1952] 1 K. B. 338 ; A. K. Gopalan v. The State of Madras, [1950] S. C. R. 88, 243).  The Act 20 contravenes Art. 32 of the Constitution because it does  not provide  for giving any reasons for the decision to be  made by the Wage Board.

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Decision  of the Wage Board is illegal and void because  (1) the  Act under which it is made was ultra vires (Mohd  Yasin v.  Town Area Committee of Jalalabad, [1952] S. C.  R.  572; Himatalal  Harilal Mehta v. State of U. P., [1954]  S.  C.R. 1122);  (ii) the decision itself infringes  the  fundamental rights  of  the  petitioners (Bidi Supply Co.  v.  Union  of India,  [1956] S. C. R 267 and (iii) the decision  is  ultra vires  the Act) Pandit Ram Narain v. State of U. P.,  [1956] S.  C.  R. 664).  The reconstitution of the  Board  oil  the retirement  of  one  of  its members  was  ultra  vires  and unauthorised  by the Act as it stood at the time, the  Rules having been published on July 10, 1956.  The procedure as to decision  by majority is not warranted by the Act,  and  the Rule  which sanctioned such a procedure is ultra  vires  the Act.   The  procedure  followed by the  Board  offended  the principles of natural justice and is therefore invalid.   It did not follow the procedure of ail Industrial Tribunal even though  on two occasions, viz., when the  questionnaire  was issued  and when a number of newspapers failed to  reply  to the questionnaire, the Board asserted that it had the powers of an Industrial Tribunal.  Neither in the questionnaire nor at any time thereafter were concrete proposals submitted  by the Board to the newspaper establishments.  Its decision  is invalid as no reasons are given for it nor does it  indicate what considerations prevailed with the Board in arriving  at it. The  classification  of  newspapers on the  basis  of  gross revenue  is contrary to the provisions of the Act.   In  the gross  revenue which is earned by  newspaper  establishments advertisement revenue ordinarily forms a large bulk of  such revenue  and unless the proportion of advertisement  revenue to the gross revenue were taken into consideration it  would not be possible to form a correct estimate of the  financial status  of  a  newspaper establishment with a  view  to  its classification.  Profit and loss of newspaper  establishment should. be the proper test and if that 21 test were adopted it would give an altogether different picture. Until now whenever the wage had to be fixed for an  industry the  relevant consideration had always been the capacity  of the  industry  to pay.  The wages which are  normally  fixed after  a general inquiry’ applicable to the  whole  industry have always been minimum wages.  Assessment of a wage  level and scale only by reference to gross revenue was erroneous. The decision suffers from another major defect in  computing gross  revenue not for each newspaper but  collectively  for the Organization which might be running a number of  papers. The  result  of  this  mode  of  calculation  was  that   an organisation publishing a large number of papers might  well fall  within  the top class by virtue of its  gross  revenue although each one of the papers taken individually might  be running at a loss.  This process of considering the multiple units  or  a chain of newspapers as  one  establishment  has affected  the petitioners adversely and is  unauthorised  by the  Act.  The Wage Board was not authorised by the  Act  to fix  the  wages of working journalists in  relation  to  the whole industry but could do so only in respect of individual establishments  as  will appear from the definition of  a  " newspaper  establishment " given in s. 2(d) of the Act.   An establishment  can only mean " an establishment " and not  a group of them, even though such an individual  establishment may produce or publish one or more newspapers. (Pravat Kumar v.  W. T. C. Parker, A. 1. R. 1950 Cal. 116, 118; S.  R.  V. Service Co. Ltd. v. State of Madras,A.  1. R. 1956 Mad. 115,

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121-122). The  decision  of the Wage Board is illegal as it  does  not disclose  that  the  capacity  to  pay  of  the   individual establishment  was ever taken into consideration.  There  is nothing  on record to suggest that both as regard  rates  of wages  and the scales of pay the Wage Board ever  took  into account  as to what the impact of its decision would  be  on the  capacity  of the industry to pay either as a  whole  or region-wise.  Even as regards the fixation of wages the Wage Board does 22 not seem to have taken into account the other provisions  of the  Act which conferred upon the working journalists  other benefits  which  would  affect the paying  capacity  of  the newspaper    establishments.    Furthermore   the    working Journalists constitute only 1/5 of the total staff  employed by  various newspaper establishments.  If the conditions  of service  of working journalists were to be improved  by  the Wage Board the other employees who form 85% were bound to be restive   and  likely  to  raise  industrial  disputes   for betterment  of  their  conditions of  service.   This  would impose  an  additional  financial burden  on  the  newspaper establishments and would substantially affect their capacity to pay.  The retrospective operation of the decision of  the Wage Board was also calculated to impose financial burden on the newspaper establishments. The  Wage Board exceeded its power in  giving  retrospective operation  to  its  decision.   The  Wage  Board  had  acted illegally  in  fixing scales of pay for a  period  of  three years when the Act does not give it such authority.  Further the  Wage Board was handicapped for want of Cost  of  Living Index. K.   M.  Munshi, L. K. Jha, S. S. Shukla,  Balbhadra  Prasad Sinha and R. J. Joshi, for the petitioners in Petitions Nos. 99  to  101  of  1957.   The  freedom  of  the  Press  is  a fundamental personal right of the petitioners.  It rests  on the  assumption  that the widest possible  dissemination  of information   from  diverse  and  antagonistic  sources   is essential to the welfare of the public.  Such freedom is the foundation  of  a  free  government and  as  such  enjoys  a preferential  position among the constitutional  guarantees. This is a " preferred right ". The  purpose of the constitutional guarantee of free  speech is   to   prevent  public  authority   from   assuming   the guardianship  of the public mind (Thomas v. Collins,  89  L. Ed. 430; The Supreme Court and the right of Free Speech  and Press-Annotation  in  93  L.  Ed.  1151  ;  Beauhairnais  v. Illinois,  96 L. Ed. 919, 943dissenting opinion of  Douglas, J.). While the Press enjoys no immunity from the application of the general laws relating to industrial relations, an Act or any 23 of its provision would violate the right of free speech  and expression  if it lays a direct and preferential  burden  on the  freedom of the Press ; if it has a tendency to  curtail circulation  and thereby narrow the scope  of  disseminating information;  if  it  fetters the  petitioners’  freedom  to choose  the means of exercising’ their right to  freedom  of expression and if it is likely to undermine the independence of  the  Press by having to seek Government  aid.   The  Act singles  out the Press for levying upon it a  direct  burden which is excessive and so restrictive as to be  prohibitive. It  begets a class of workers whose benefits and rights  are given  a preferential enforceability parallel to that  of  a public debt.  The impugned Act by s. 9 leaves, in  violation

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of  the  Constitution, the fixation of wages  to  an  agency invested  with  arbitrary and uncannily power to  impose  an indeterminate  burden  on the wage structure of  the  Press, such employer and employee relations at its discretion as it thinks  fit, and such burden and restrictions for such  time as  it  thinks fit.  The Act and the decision  of  the  Wage Board, which under the Act becomes enforceable as a part  of it,  have imposed an excessive and prohibitive burden  which will  have  a tendency to curtail the revenue  and  restrict circulation which is the means of imparting information  and giving  free expression to speech, impose a penality on  the petitioners’  right  to  choose  the  instruments  for   its exercise  or to seek alternative media of expression,  drive the  Press  to seek Government aid in order to  survive  and prevent newspapers from being started.  The Act has  created an  impossible situation in which the petitioner could  only say  "  I  cannot live, I cannot die  and  I  cannot  commit suicide ". Even if the petitioners were to close down  their business  and dispose of all their assets they would not  be in a position to meet all the liabilities. The  Constitution  does  not permit any  abridgment  of  the fundamental right of freedom of speech and expression unless it falls within the categories of restrictions mentioned  in Art.   19(2).    When  the   permitted   restrictions   were incorporated  special care was taken by the framers  of  the Constitution to see that 24 freedom  of speech was protected and that the  right  should not  be at the mercy of the legislature which might want  to impose excessive burden on the Press.  It is for this reason that  the  "  Public interest " restriction  in  Art.  19(6) appearing against the fundamental right in Art. 19(1)(g)  is not to be found in Art. 19(2).A distinction has to be  drawn between  the  Constitution of U. S. A. and India.   What  is known  as  the " due process of law " in  America  has  been specifically omitted from the Constitution of India.  In  U. S.  A. the " due process " clause enabled the Supreme  Court to  read into the Constitution any doctrine  restrictive  of the  fundamental  right,  e. g., in the  1930’s  the  U.  S. Supreme  Court had held that statutory fixation  of  minimum wage in the newspaper industry was violation of  fundamental rights  of free speech, but after some years the same  Court acting under the discretion given by the due process  clause took cognizance of altered circumstances in labour relations and held that the imposition of a minimum wage on the  Press did  not violate the fundamental right (Constitution of  the United  States of America, Revised and Annotated (1952),  U. S.  Govt.   Printing  Office, pp.  792,  988).   The  Indian Constitution  does  not  permit restriction  of  freedom  of speech  except  under  the limitation  set  by  Art.  19(2). Restrictions  that could be held intra vires in  respect  of other  industries  would  still be ultra  vires  under  Art. 19(1)(a)  of  the  Constitution  in  respect  of  the  Press industry  because of the special privilege of right of  free speech.  Any direct restriction placed by Government on  the Press  would  be violation of Art. 19(1)(a),  and  therefore even  if the Government had sought to impose a minimum  wage for  the  Press  by direct legislation it  would  have  been equally  unconstitutional.  This illegality, however,  would not attach to the finding of an adjudicatory machinery  such as was contemplated under the Industrial Disputes Act, 1947. Where  Government  provided a media for  the  settlement  of disputes  and claims between citizen,,, and  citizens  there was  no question of any contravention of fundamental  rights which were protected against governmental encroachment.

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25 The  various sections of the Act have the effect of  placing restrictions  on the press which would in evitably have  the effect  of restricting the freedom of speech and  expression in contravention of Art. 19 (1) (a).  The Act has created  a privileged  class  of working journalists  above  the  other workers  either  in  this country or  anywhere  also,  above contract and above the law of the land. The Wage Board has exceeded its authority and has arrived at conclusions  and  findings which restricts  the  fundamental rights  of the petitioners.  The Act authorizes the  Central Government  to constitute a Wage Board for fixing  rates  of wages.  This does not authorize the Board to enter into  the wider  question of determination of scales of  pay.   Fixing could  only mean fixing with reference to a point  of  time. The Legislature did not contemplate that single wage  should determine  the wage scales, for all time to come  The  whole framework  of  the  Act was based on minimum  wage  and  the sudden removal of the word "  minimum " has caused all these difficulties.   "  Rates  of wages " and  not  "  scales  of wages", the Wage Board was to consider.  The term " rates of wages  applies only to a particular point of  time.  [Sinha, J.-Section  9  (2) of the Act says that the  Board  may  fix "rates  of  wages for time work and for piece work  ".  They cannot have any reference to scales.  The same words in  the statute  mean  the same thing.  They cannot  mean  different things in different sections.] Yes.   These words are used again and again in the Act.   In the Minimun Wages Act, the Payment of Wages Act, etc., where the same expression " rates of wages " is used to indicate a wage fixed in time and amount.  The Wage Board has  exceeded its  power in fixing the scales of wages and increments  and thereby  places a fetter on the Press, not  contemplated  by the Act. The   Act   and  the  Wage  Board   have   disregarded   all considerations  which  according to authority and  law  were germane to the proper fixation of wages without 4 26 placing  restrictions  on  fundamental  rights.   Even   the Minimum  Wages  Act  provides for  periodical  reviews,  and proposals for minimum wages should be notified for  inviting the opinions. The  decision  of  the Wage Board has  been  arrived  at  in violation  of  the  procedure prescribed by  s.  11  of  the impugned  Act  and  in violation of  the  rules  of  natural justice and is thus illegal. The  Wage  Board has been unreasonable in  basing  wages  on revenue  from all sources rather than on the  revenue  which the working journalists contributed by their labour. Classification  of  newspapers  on the basis  of  the  gross revenue of all papers run by an Organisation and fixation of wages  on such classification has led to results  which  are absurd and discriminatory in effect and ignore the principle enunciated by the Act itself.  As an example, take the  case of  a paper with small circulation in Kutch which is  placed in  a higher category than a paper in Bombay simply  because the former is part of a larger Organisation. The Wage Board has not taken care to remain within the terms of the impugned Act, namely, that the wages should be  based on regional consideration. The Wage Board has given its decision in complete  disregard of  the newspapers’ capacity to pay. it did not take  proper care in framing its decision.  Lack of such care in  framing its decision makes it unreasonable and hence restrictive  of

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fundamental rights. The  Wage  Board  has  exceeded  its  authority  by   giving retrospective  effect to the wage structure devised  by  it. This is invalid and ultra vires the Act. Section 12 of the Act creates one-sided obligation by making decision  of the Board binding only on the employers.   Such one  sided  obligation  can be appropriate  when  a  minimum subsistence  wage is fixed but cannot attach to  payment  of wages  at luxury levels.  This unilateral obligation on  the employer leaves it open to the journalists to agitate for an increase  in  wages before an industrial  tribunal,  but  it precludes the employer from seeking any alteration under any circumstances.  The Act has provided no machinery 27 for  a  review  or revision of the wage  structure  even  if circumstances changed. Restrictions  on  fundamental  right to  do  business  arise because the Act and the decision of the Wage Board have  the effect,  firstly, of considerably increasing  the  operating cost  and, secondly, of fettering the conditions of  service or the terms of the contract of service between the employer and the employee. By  disregarding  the disparity in regional  conditions  the Wage  Board  has  discriminated  between  paper  and  paper, employer and employer and employee and employee. S.   P. Sinha, Gurbachan Singh, Harbans Singh and R.   Patnaik, for the petitioners in Petition No. 103 of 1957. S.   S. Shukla, for the petitioners in Petitions Nos. 116 to 118 of 1957. M.   C. Setalvad, Attorney-General for India, B. Sen and  R. H. Dhebar, for respondent No. I (The Union of India) in  all the Petitions.  Before going into the merits of the case  it is  necessary to examine the background and the  perspective in  which  the Act was enacted, the  careful  inquiry  which preceded its enactment and the conditions which the Act  was designed  to  meet. (Report of the Press  Commission,  dated July  14, 1954; Report of the Inquiry Committee  constituted in  1947;  Report  of  the C. P.  and  Berar  Press  Inquiry Committee constituted on March 27, 1948). The  Act does not infringe any of the fundamental rights  of the petitioners guaranteed under Arts. 19(J) (a),  19(1)(g), 14  and 32 of the Constitution.  The functions of  the  Wage Board  constituted tinder s. 8 of the Act were not  judicial or quasi-judicial in character; the fixation of the rates of wages  by  the Wage Board was a legislative act  and  not  a judicial  one; the Wage Board arrived at its decision  on  a consideration  of all the criteria laid down in s.  9(1)  of the  Act for fixation of wages and the material as  well  as the  evidence  placed  before  it; a  large  number  of  the decisions of the Wage Board was unanimous; under the Act the Wage Board has the power and authority to fix the 28 scales of wages also and to give retrospective operation  to its decision.  The financial position of the petitioners was not  such  as to lead to their collapse as a sequel  to  the enactment  of the provisions of the Act and the decision  of the Wage Board. Regarding  alleged infringement of Art. 19(1)(a),  I  submit that  the  legislation  should  be  examined  in  order   to determine  whether it is legislation directly in respect  to the  fundamental rights mentioned in the  Constitution.  The principle   enunciated  by  the  Supreme  Courtney   several decisions  is  that when a legislation is  attacked  on  the round  of  contravention of a fundamental right,  the  Court must  first  examine  whether it  directly  deals  with  the

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fundamental  right.  If the legislation is not one  directly with  respect  to a fundamental right  no  further  question arises, (A.  K. Gopalan v. The State of Madras, [1950] S. C. R. 88, per Kania, C. J., Ram Singh v. State of Delhi, [1951] S.C.R.  451,  455).   The Supreme Court  has  also  in  this connection  invoked the doctrine of "pith and  substance  ". The  fact  that  a legislation, directed  in  its  path  and substance to regulate gambling, incidentally placed  certain restrictions  on  business  was held not  to  make  the  law violative  of  the fundamental right to carry  on  business. (State of Bombay v. R. M. D. Chamarbaugwala, [1957] S. C. R. 874).   The  provisions of the Act are clearly  designed  to regulate  the conditions of service of journalists  and  not the  freedom  of  expression or  speech,  and  therefore  no question of the infringement of fundamental right under Art. 19(1)(a) arises.  The contention of the petitioners based on American  decisions, e. g., Minnesota Ex Rel.  Olson (75  L. Ed. 1357) cannot be sustained.  First, the provisions of the American Constitution are substantially different; secondly, the  American  Courts  have adopted the  same  view  as  our Supreme Court in A. K.  Gopalan  v.  The  State  of  Madras, [1950]  S. C. R. 88, and other cases. (The Associated  Press v.  The National Labour Relations Board, 81 L. Ed.  953,960- 966;  Mabee v. White Plains Publishing Co., 90 L.  Ed.  607, 613-where  application of U. S. Fair Labour  Standards  Act, 1938, to newspaper undertakings was held not to 29 infringe freedom of speech; Oklahoma Press Publishing Co. v. Walling, 90 L. Ed. 614, 621; Murdock v. Pennsylvania, 87  L. Ed. 1292). The  restrictions under Art. 19(6) on the freedom  to  carry oil  business  under  Art. 19(1)(g) will  not  cease  to  be reasonable even if such restrictions resulted in prohibition of carrying on business in certain cases.  Such restrictions can  be imposed if they are in the interest of  the  general public.   Having  regard to the Report of the  Committee  on Fair  Wages  appointed by the Government of  India  and  the practice  prevailing  in other countries, the  Act  has  not adopted  any unusual procedure in constituting a Wage  Board for   the  determination  of  rates  of  wages  of   working journalists.   The  Act follows the recommendations  of  the Press  Commission  for the most part.   The  only  important deviation  it has made is that whereas the Press  Commission had recommended fixation of a minimum wage, the Act provides for  fixation of all wages.  Under the directive  principles of  State Policy (Art. 43 of the Constitution) the goal  was not merely a minimum wage but a fair wage and a living wage. We have to march to that goal. [Gajendragadkar,  J.-True, but in marching to that  goal  we have to consider the capacity to pay.] Yes,  capacity  to  pay  region-wise  and  capacity  to  pay country-wise  but  not capacity to pay unit-wise,  that  is, according to each newspaper’s capacity. The  Court  has to consider what the  Legislature  intended. The  term  "  minimum  wage"  has  been  understood  in  two different  senses, the first being an "  industrial  minimum wage " and the second a " statutory minimum wage ". Is it an "  industrial minimum ", or is it a " statutory minimum "  ? An " industrial minimum " is a subsistence wage that has  to be  paid  by any unit if it wishes to exist; a  "  statutory minimum " is someting more than a subsistence level wage and may be any level which the Legislature thinks fit to impose. The statutory minimum wage need not be confined to fixing  a single  determinate amount but can legitimately include  the fixing of a scale of wage.  " Wages " has been defined

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30 very comprehensively in s. 2(rr) of the Industrial  Disputes Act, 1947, and in the Third and Fourth Schedule to that  Act wages are stated to include the period and mode of  payment. [Sinha, J. Does it refer to scales ?] Wages include in its ambit the scales.  It was on this basis that  various Industrial Tribunals have fixed scales.   Even the Supreme Court decided that way. [Sinha, J. My point is whether the question has been  raised and decided or has it been only assumed ?] The  matter,  so  far as I know, has  not  been  raised  and decided.  It has only been assumed. "  Wages  "  in ss. 9 and 8 of the Act has been  used  in  a comprehensive  sense.  The correct approach is to  see  what the term " wages " means and to see whether the word " rates " cuts down that meaning.  In order to construe the section. it  will  not  be legitimate to see  what  happened  in  the Legislature,  what was said in the Bill and how the  word  " Minimum " was dropped.  One of the criteria specified in  s. 9(1)  of  the  Act  is the  prevalent  rates  of  wages  for comparable  employments.  This has no reference  to  minimum wage  (Nellimarla  Jute Mills, (1953) 1 L. L. J.  666).   It shows  that s. 9(1) contemplates fixation of rates of  wages which  are  higher than the bare subsistence  or  industrial minimum wage.  The criterion " the circumstances relating to newspaper industry in different regions of the country "  in s.  9(1) can have no other meaning than the capacity to  pay region-wise.   The  discretion given to the  Wage  Board  to consider  " any other circumstances which to the  Board  may seem  relevant"  is no doubt subjective.  It  is  the  Board which has to decide what is relevant and what is not.   Such power  is neither unreasonable nor arbitrary.   The  general policy  with  regard to the Wage Board was  that  they  were given  the  widest discretion and there was no  question  of their  discretion being fettered.  Even if  the  Legislature left  the fixation of wage to the Board without laying  down any criteria it would have been a competent legislative  Act because of the nature of the 31 Board.   In fact, three criteria have been laid down  in  s. 9(1)  of  the  Act.   Having  regard  to  the  variety   and complexity  of the matters involved it was not possible  for the Legislature itself to visualise or indicate the  various circumstances which might be relevant. There is nothing unusual or arbitrary in leaving to the Wage Board a wide discretion in the matter of its procedure.   In U.  K.  the Central Co-ordinating Committee under  the  Wage Councils  Act, 1945, and the Agricultural Wages Board  under the Agricultural Wages Regulation Act, 1924, are  authorised to regulate their own proceedings.  No formal procedure  has been prescribed for Wage Boards in Australia. The inclusion of proofreaders in the definition of "Working   Journalist"  in  s.  2(1)  of  the  Act  is   not unreasonable.    Proof-readers  occupy  a   very   important position  in  the editorial staff of a  newspaper  (Kemsley- Manual  of Journalism, p. 337, B. Sen Gupta-Journalism as  a Career  (1955  Edn.). There is nothing unreasonable  in  the period of notice for retrenchment in s. 3(2)  of  the   Act. (Halsbury’s  Laws  of England, 2nd Edn., Vol.  22,  p.  150, para.  249 foot-note (e)).  The retrospective  operation  of compensation  in certain cases given by s. 4 of the  Act  is designed  to  meet  the few cases  of  retrenchment  by  the management   anticipating   the   implementation   of    the recommendation of the Press Commission and cannot be said to be unreasonable. There is nothing unusual in s. 5 of the Act

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which     provides  for a gratuity.  Gratuity is  recognised by  Industrial Tribunals (Ahmedabad  Municipal  Corporation, [1955]  L. A. C. 155, 158; Nundydroog Mines Ltd., [1956]  L. A. C. 265, 267).  Under the law of various countries payment of  indemnity  to  an employee who  voluntarily  resigns  is provided  for (Legislation for Press, Film and Radio in  the World Today (1957) UNESCO publication at p. 404 ; Collective Agreement  between  the  Geneva Press  Association  and  the Geneva  Union of Newspaper Publishers dated April 1,  1948). Even  in  India  Labour  Courts  have  awarded  gratuity  on voluntary  resignation (Cipla Ltd., (1955) 11 L. L. J.  355, 358; Indian Oxygen and Acetylene Co. Ltd., (1956) 1 L. L. J. 435).  The hours of work provided in s. 6 of 32 the  Act cannot be said to be unreasonable having regard  to the nature of work to be done by a working journalist.  Such hours of work are fixed by s. 54 of the Factories Act, 1948, (See also, Mines Act, 1952; Shops and Establishments Acts of different States in -India).  Sections 8 to II deal with the constitution of the Wage Board and the fixation of rates  of wages  by  the Board.  The Wage Board was to consist  of  an equal  number of representatives of employers and  employees and an independent chairman.  There is nothing  unreasonable in  the constitution of the Board.  The principles  for  the guidance  of  the Wage Board in the matter  of  fixation  of wages have been laid down by the Act.  It cannot, therefore, be said that these provisions are unreasonable.  Section  17 of  the  Act relates only to the mode of recovery  of  money from  an employer and does not impose any financial  burden; therefore  it  could  not be said  that  it  infringes  Art. 19(1)(g). Article  14 of the Constitution does not  forbid  reasonable classification  for  the  purpose  of  legislation   (Budhan Choudhry  v.  The State of Bihar, [1955] 1 S.  C.  R.  1045, 1048).   The work of a journalist is peculiar and demands  a high   degree  of  general  education  and  some   kind   of specialised training (Report of the Press Commission,  para. 512;  Legislation  for Press, Film and Radio  in  the  World Today  (1951)  UNESCO publication at p. 403).   The  working journalists  are a class by themselves apart from the  other employees of the newspaper establishments and also employees in  other  industries.   They can be  singled  out  for  the purpose of -ameliorating their conditions of service.  There would  be  no  discrimination  if  special.  legislation  is enacted  for  the  benefit  of  this  class  and  a  special machinery  is  created  for fixing the rates  of  its  wages different from the machinery for other workmen.  Even if the Act be considered as a social welfare measure the State  can only make a beginning somewhere.  Such a measure need not be all  embracing.  There is nothing unreasonable in s.  12  of the Act which makes the decision of the Board binding on the employers  only.  A provision which has for its  object  the protection of 33 employees  cannot be said to be repugnant to Art. 14 on  the ground  that it discriminates against the  employers  (South Bank  Ltd.  v. Pichuthayappan, A. 1. R.  1954  Madras  377). Section  17  of the Act is for the benefit  of  the  working journalists It enables him to realise the money due from  an employer under the Act.  Similar provision is to be found in s.  33C  of the Industrial Disputes Act.  There  is  nothing discriminatory  in  a provision which governs  employees  in other industries being extended to working journalists.  The object sought to be achieved by the Act is the  amelioration of  the conditions of service of working  journalists.   The

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classification is based on intelligible differentiate  which distinguish  them  from  other employees  of  the  newspaper establishments   and  also  in  other   industries.    These differentiae  have a rational basis.  The legislation  amply fulfils the conditions of permissible classification. It  is " fantastic " to contend that the Act infringes  Art. 32 of the Constitution.  The Act does not prohibit the  Wage Board  from giving a reason for its decision.   No  question therefore  arises  of the infringement  of  the  fundamental right of the petitioners under Art. 32. Assuming any provision of the Act is void then the  question will  be whether it is severable.  If it is  severable  then the  whole  Act  will  not be void  but  only  the  section. Similarly, if the court finds that the Act is constitutional but  a decision of the Wage Board is ultra vires the Act  or unconstitutional  the Court will strike down such  decision. That  will  not affect the validity of the  Act.  (State  of Bombay  v.  F.  N. Balsara, [1951] S. C. R.  682;  State  of Bombay  v. The United Motors (India) Ltd., [1953] S.  C.  R. 1069  and  R. M.,D. Chamarbaugwala v. The  Union  of  India, [1957] S. C. R. 930). In  regard to the decisions of the Wage Board the Court  has to consider first, whether the decisions are intra vires the Act-since  an  authority to whom the  power  of  subordinate legislation is delegated cannot act contrary to the statute, and  secondly, do the decisions being a part of the  Act  in any  way  contravene the Constitution.  These are  the  only questions which 34 arise  in  regard to the decisions of the  Wage  Board.   No question  arises of its procedure being in  accordance  with the principles of the natural justice nor of the application of audi alteram partem. [Bhagwati,  J.-They say it is contrary to the principles  of natural justice-audi alteram partem.]  That is a maxim about which we have heard so much.  It has, no application to this case of delegated legislation. [Bhagwati,  J.-Can it not be urged, having regard to s.  11, that the Legislature did not contemplate that the Wage Board was to function as delegated authority because it gives  the choice  of  the provisions of the  Industrial  Disputes  Act being followed by the Board ?] No,  even for a subordinate legislative authority there  are procedures   to   be  followed  for  arriving   at   certain conclusions. [Kapur, J.-Is it not necessary to hear everybody who may  be affected  by  the decisions of the Board ?]  No  question  of  hearing arises.  It is a  question  of  a subordinate legislative authority gathering such information as it wants and it is obliged to take into consideration all the relevant circumstances. Certiorari  and prohibition lie only in respect of  judicial or  quasi-judicial  acts. (Halsbury’s Laws of  England,  3rd Edn.   Vol.  11,  p. 55, para.  114).   The  principle  audi alteram  partem  also  applies only to  judicial  or  quasi- judicial   proceedings.  (Patterson  v.  Dist.   Commr.   of Accrator,  [1948]  A. C. 341).  For  a  distinction  between judicial    and   legislative   functions,   See    Cooley’s Constitutional  Limitations,  8th  Edn.   Vol.  1,  p.  185; Prentis  v. Atlantic Coast Co. Ltd., 211 U.S. 210,  226-227, Per Holmes J.; Mitchell Coal Co. v. Pennsylvania, 57 L.  Ed. 1479,  1482; Louisville and Nashville Railroad Co. v.  Green Garrett,  58  L. Ed. 229, 239).  The functions of  the  Wage Board  in  the  United Kingdom have  been  characterised  by writers  as legislative in character. (Robson’s Justice  and

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Administrative  Law, 3rd Edn. p. 608; Griffith’s  Principles of  Administrative  Law,  p.  39;  Barbara  Wootton,  Social Foundations of Wage Policy, Modern methods of 35 Wage  determination,  p.  88).  This is  also  the  case  in Australia.  (Federated  Saw  Mills Case, 8  C.  L.  R.  465; Australian  Boot Trade Employees Federation v.  Whybrow  and Co., 10 C. L. R. 266, 289, 317, per Isaacs, J.). The  Labour and Industry Act, 1953, of Victoria (Australia) in s. 39 (2) gives  statutory recognition to the decisions in 8 C. L.  R. 365   and  10  C.  L.  R.  266,  by  providing  that   every determination  shall have force, validity and effect  as  if enacted in the Act.  The very constitution of the Wage Board under   the   impugned  Act,  with  an   equal   number   of representatives   of   employers  and  employees   with   an independent chairman is against its being judicial or quasi- judicial  in character, for, no man should be judge  in  his own  cause.  (Franklin  v.  Minister  of  Town  and  Country Planning, [1948] A. C. 87, 103). It  is  incorrect  to  infer that once  the  Wage  Board  is constituted  under  s.  8  of  the  Act  the  power  of  the Government  under the Act is exhausted and nothing more  can be done.  The power to constitute the Board can by virtue of s. 14 of the General Clauses Act, 1897, be used from time to time  as the occasion demands.  There was nothing  wrong  in the  Central  Government  reconstituting the  Board  on  the resignation  of Shri K. P. Keshava Menon.  The  decision  by majority  is  provided  by  Rules  framed  by  the   Central Government under s. 20 of the Act which became a part of the Act.  Hence a decision by a majority in conformity with  the Rules under the Act cannot be impeached. In examining the decisions of the Wage Board the Court  will attach  to  them the same consideration and weight as  to  a decision by a legislature. (Pacific States Box and Basketing Co. v. White, 80 L. Ed. 138; 296 U. S. 170). Under  s.  II of the Act the Wage Board "may"  exercise  the powers  and  follow  the  procedure  laid  down  under   the Industrial Disputes Act, 1947.  There is nothing to  warrant the  provision being read as obligatory or  mandatory.   The provisions  of  the Industrial Disputes  Act  are  basically enacted for the adjudication of disputes between two parties and they are on 36 their  face  inapplicable  to  the  Wage  Board.   That   is precisely  why  the Board was given the option  to  exercise some of the powers conferred by the Industrial Disputes  Act or to follow procedures prescribed in that Act. It is not incumbent under the Act on the Wage Board to  give any reasons for its decisons.  The Board would be  perfectly within its right if it chose not to give any reasons. While  judging the reasonableness of the wage structure  for the  whole industry it would be entirely fallacious  to  see how it hit a particular newspaper or a unit.  Multiple units or  chains  could be classified on the basis  of  the  total gross   revenues  of  all  the  constituent  units   because economies would be possible in group operations resulting in the  reduction of the cost of production.  There is  nothing in the Act which prohibits the Wage Board from grouping into chains or multiple units.  Further, there is nothing in  the Act to prohibit the treating of several newspaper establish- ments publishing one or more newspapers though in  different parts  of the country as one establishment for fixing  rates of wages. Some   sort  of  classification  was  inevitable  when   the newspaper  establishments  all over the country  had  to  be

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considered for fixing the rates of wages.  If the Wage Board adopted gross revenue as a workable basis for classification there was nothing wrong and that fact could not vitiate  its decision.   Profits of newspaper establishments  were  vague and  difficult to ascertain as many things are mixed  up  in calculating  profit.   It would be dangerous to  go  by  the profit  and loss of individual concerns to  ascertain  their capacity  to  pay.   Even  the  Bank  Award  has  taken  the "turnover"  or the aggregate resources as the basis  of  the classification.   The  basis of gross revenue was  the  only proper  and  convenient method of  ascertaining  the  actual status  of  a  newspaper establishment  for  fixing  a  wage structure. Wage-structure  recommended  by the Board  would  show  that compared with the scales and salaries obtaining now in  many of  the  newspaper establishments the scales  given  by  the Board were not exorbitant or 37 unreasonable.   What  is to be considered  is  the  industry region-wise  and  not  individual units.   It  may  be  that individual  units  may  suffer hardship or even  go  out  of existence but that would not be a relevant consideration. [Gajendragadkar,  J.-If  the decisions are  to  be  attacked effectively  under Art. 19(1)(g), petitioners have  to  show that  A  or B or C class of paper will cease to  exist,  or, taken as a class they cannot bear the burden.] That  is  the  way the matter  should  be  approached.   The figures in individual statements of the petitioners  furnish no  evidence whatsoever of the unreasonableness of the  wage fixation. The decision is given retrospective effect from the date  of constitution  of  the  Board.   The  Act  itself  in  s.  13 contemplates  interim  relief.   Instead  of  granting   any interim  relief  the  Board decided  to  give  retrospective effect to its decision. A.V. Viswanatha Sastri, S. Viswanathan, B. R. L. lyengar, J. B.  Dadachanji,  S.  N.  Andley  and  Rameshwar  Nath,   for respondent  No. 3 in Petition No. 91 of 1957.   The  balance sheets  and  profit  and loss  accounts  of  the  petitioner company  for  several  years when analysed  show  that  with normally  prudent  management  the earnings  of  the  Indian Express  group  of newspapers admit of  payment  to  working journalists  on  the scale fixed by the Wage Board  and  the decision of the Wage Board was legally valid and just having regard to the several factors to be taken into consideration in fixing a fair wage. N.   C. Chatterjee, A. S. R. Chari, S. Viswanathan,A.  N. Sinha,  J. B. Dadachanji, S. N. Andley and  Rameshwar  Nath, for the Indian Federation of Working Journalists in all  the Petitions,  and  for  the ]Delhi  Union  of  Journalists  in Petition  No.  103  of 1957.  It is open  to  Parliament  to delegate  to  the  Wage Board the power  to  legislate  with regard  to certain subjects.  The so-called decision of  the Wage  Board  was  a  valid  exercise  of  such  power  by  a subordinate  legislative  body functioning  under  specified conditions  under  Parliamentary  mandate  with  the  limits prescribed by the Constitution. 38 Even  if the Wage Board is held to be a quasijudicial  body, it  acted according to the principle of audi alteram  partem and no prerogative writ should be issued to disturb findings arrived at by such a body. M.   K. Nambiar, in reply.  The Wage Board was not  intended to  exercise powers of legislation but those of  a  judicial nature.   Under s. 10 of the Working Journalist,-,  Act  the

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Board has to make a "decision", and this term has been  used in  several  enactments  to indicate a  determination  by  a judicial tribunal.  Under s. 8 the decision of the Board has to be made in accordance with the provisions of the Act  and therefore the Board had the function of applying the law and not  making a law.  The Wage ’Board is required under s.  11 to  adopt  the  law procedure as is  adopted  by  Industrial Tribunal.-,.  The  decision of the Board is declared  to  be binding  only  on  some  persons and not  all.   It  can  be executed  in the same manner as the award of  an  Industrial Tribunal.   Its character is identical to that of  an  award made  by  an industrial tribunal and the Supreme  Court  has held   that  a  tribunal  does  not   exercise   legislative functions.   Parliament did not intend to confer any  powers of subordinate legislation on the Board.  This is clear from the  rules  of  business  of the Lok  Sabha  read  with  the Statement  of  Objects  and Reasons to the  Bill.   In,  the memorandum  regarding delegated legislation appended to  the Bill  the  constitution of the Wage Board in the  matter  of fixation of wages had not been shown as a piece of delegated legislation. (The Rules of Procedure and Conduct of Business in  Lok  Sabha (1957)-Rule 70).  The decision  of  the  Wage Board  was  not  to  be  laid  before  both  the  Houses  of Parliament.   This  would have been so had the  fixation  of wages  by the Board was a delegated legislation  (laid  Rule 317).  The Wage Board was not constituted as sub-legislative authority.   The question is not what the legislature  could have  enacted  but whether by virtue of powers of  the  Wage Board under the Act as enacted, it is a legislative body  or a  tribunal with adjudicators functions The Board  does  not possess  any  powers of delegated legislation, It  has  been given all the trappings which 39 were  necessary to characterize it as a judicial  body.   In interpreting  the  Act the Court is entitled  to  take  into consideration  the surrounding circumstances, the object  of the  legislation and also whether a particular term used  in legislation was considered by the legislature at the time of enactment.   The court ought to take into consideration  the entire  background  and the effect of dropping of  the  term "minimum"  from  the enactment.  The  Press  Commission  had directed its attention exclusively to the question of fixing minimum  wage and the Act in s. 9 followed the  pattern  and purported  to  implement the recommendations  of  the  Press Commission.   The  Press Commission in  considering  minimum wage ignored the capacity to pay.  The Act, similarly, being based  on  the Report of the Press Commission  has  made  no provision  for  considering  the  capacity  to  pay.    This omission which was appropriate with regard to minimum  wages rendered  the  fixation  of  wages  at  a  different   level unreasonable  and therefore void.  The content of  the  term "minimum  wage" would not be changed by merely calling it  a "statutory" minimum. Section  14 of the General Clauses Act, 1897, can  apply  if the enactment does not rule it out by necessary implication. The  entire scheme of the impugned Act shows that  only  one Wage Board and one decision is contemplated.  It is not open to the Government to reconstitute the Wage Board as and when they desire. Munshi, in reply.  The doctrine of "pith and substance"  can be  applied  only  to  determine  the  jurisdiction  of  the legislature to enact a certain legislation.  Whether or  not the Act imposes a direct burden, the Court should see if the Act is a special law singling out an industry for laying the burden on it.  If it does so, as in the present Act, it will

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amount to a direct burden.  If it is a general law it  would not be a direct burden. The Act stands alone in being arbitrary and excessive and is without parallel in any other country.  The Act is unique in that  (1)  it  provides  for  gratuity  even  on   voluntary resignation.  (2)  it gives power to the Wage Board  to  fix indeterminate  wages  investing  them  with  attributes   of minimum wages, and (3) it confers on the Board power to  fix wages (i) without specifying 40 essential standards, (ii) without casting a duty to follow a reasonable  procedure,  (iii)  without  any  control  by  an appellate tribunal or court, and (iv) without providing  any opportunity  to  the parties concerned to be  heard  on  the merits  of the proposal it makes.  In other countries  there are  various  safeguards and checks against  arbitrary  wage decisions.  (U.   K.  Wage Councils Act, 1945;  U.  S.  Fair Labour  Standards Act, 1938; Factories and Shops Act,  1905, new Act of 1928 of Victoria, Australia). [Sinha, J. All these criticisms would be out of place if  it is held that the work of the Wage Board was legislative  and not judicial]. No.  If the mechanism of the Act itself is such that  it  is unreasonably restrictive of rights to trade then the Act has to be struck down as void under Art. 19 (1)(g). Even  if it is held that there was no excessive  delegation, it   is  still  open  to  the  Court  to  see  whether   the restrictions  impinged  on  the  Constitutional   safeguards tinder Art. 19 (1)(g). Fixation  of  scales of wages on the basis  of  grossrevenue without taking into account the liability of newspapers is a devastating doctrine in industrial relations. The Wage Board is not a sub-legislative body; but even if it is,  it  has to act judicially and is subject  to  writs  of certiorari.  Even if its decisions become assimilated in the Act it must be considered to be a quasi-judicial body, since it  is  expected to carry out  a  preliminary  investigation before recording its findings. The  functions  of the Wage Board  cannot  be  characterised either exclusively legislative or exclusively judicial.  The functions  performed by administrative agencies do not  fall in   water   tight  compartments.   They   may   be   partly legislative,  partly  judicial  and  partly   administrative (Stason   and   Cooper,  Cases  and   other   Materials   on Administrative  Tribunals).   The  Court  has  to   consider whether  the administrative agency performs a  predominantly legislative or judicial function and determine its character accordingly  (Village  of Saratoga Springs v.  Saratoga  Gas Electric Light and Power Co., (1908) 191 New York 123 People                               41 ex  rel.  Central Park North and East River Co. v.  Willcox, (1909)  194  New  York  383).  In  the  United  Kingdom  the decisions  of  the  Wage  Councils  in  the  shape  of  wage regulations proposal acquires legislative character from the order  made by the Minister giving effect to the  proposals. In  Australia  the Factories and Shops Act,  1905,  and  the Labour and Industry Act, 1953, Section 39(2) of Victoria  by express  provision invests the determination of the  Special Board with the characteristics of a legislative act.   Under the  Fair Labour Standards Act, 1938, of U. S. A.  the  Wage orders ultimately approved by the Administrator are  subject to  judicial review.  In India under the Minimum Wages  Act, 1948, the recommendations of the Committees are forwarded to the appropriate Government who by notification as a token of approval,  in  the official Gazette, fix  minimum  wages  in

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respect  of  each scheduled employment.   Under  the  recent amendment of the Bombay Industrial Relations Act, 1946,  the Wage  Boards  constituted under the Act are  to  follow  the procedure of the Industrial Court in respect of  arbitration proceedings  and  it cannot be said that  they  perform  any legislative  function.   The Wage Board under  the  impugned Act,  in spite of its being an administrative body  or  sub- legislative  body  may  nevertheless  be  exercising  quasi- judicial  functions  if  certain  conditions  are  fulfilled (Halsbury’s  Laws of England, 3rd Edn., Vol. 11, pp.  55-56; Rex v. Manchester Legal Aid Committee, Ex-parte R. A.  Brand and  Co.  Ltd., [1952] 2 Q. B. 413, 428; Rex v.  The  London County  Council,  Ex-parte  the  Entertainments   Protection Association Ltd., [1931] 2 K. B. 215, 233-234; Board of Edu- cation  v. Rice, [1911] A. C. 179,182; Allen C. K.  Law  and Order - 1956 Edn., pp. 102, 256, 257). The Wage Board has not given any attention to the  paramount consideration  of capacity to pay as it should,  in  reason, have done.  At no time was any question asked as to the wage burden the Wage Board’s scales would impose on the  industry as  a ,whole or on a particular unit.  The  specific  burden which the Board proposed to impose has never been 6 42 put even indirectly.  At no time has it been considered what would  be the potential burden on the industry if  the  non- journalists   in  newspaper  establishments   made   similar demands.   No  consideration has ever been given  about  the effect  on  the industry or on a unit of  the  retrospective operation of the wage scales. A.   S. R. Chari, S. Viswanathan, B. R. L. Iyengar,J.  B. Dadachanji  and  S. N. Andley, for the Federation  of  Press Trust of India Employees’ Union, Bombay Union of Journalists and Gujrat Working Journalists Union. R.   Ganapathy   Iyer  and  G.  Gopalakrishnan,   for   the’ appellants in C. A. No. 699 of 1957. L.   K.  Jha,  S.  S.  Shukla  and  R.  J.  Joshi,  for  the appellants in C. A. Nos. 700 to 702 of 1957. S.   P.  Sinha,  Harbans  Singh  and  R.  Patnaik,  for  the appellants in C. A. No. 703 of 1957. B.   Sen  and R. H. Dhebar, for respondent No. I in all  the appeals. N.   C.  Chatterjee, J. B. Dadachanji and S. N. Andley,  for the Indian Federation of Working Journalists in all appeals, respondent No. 2 in C. A. No. 700 of 1957 and respondent No. 3 in C. A. No. 703 of 1957. B.   R.  L.  Iyengar,  J. B. Dadachanji, S.  N.  Andley  and Rameshwar Nath, for respondent No. 3 in C. A. 699 of 1957. 1958.  March 19.  The Judgment of the Court was delivered by BHAGWATI   J.-These   petitions  under  Art.   32   of   the Constitution  raise  the  question as to the  vires  of  the Working  Journalists  (Conditions of  Service)  and  Miscel- laneous  Provisions  Act,  1955 (45  of  1955),  hereinafter referred to as "the Act" and the decision of the Wage  Board constituted  thereunder.  As they raise common questions  of law  and  fact  they  can be dealt  with  under  one  common judgment. In order to appreciate the rival contentions of the  parties it will be helpful to trace the history of the events  which led to the enactment of the impugned Act. The newspaper industry in India did not originally start  as an industry, but started as individual                              43 newspapers  founded by leaders in the  national,  political, social and economic fields.  During the last half a century,

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however,  it  developed characteristics of a  profit  making industry  in  which big industrialists  invested  money  and combines controlling several newspapers all over the country also  became the special feature of this  development.   The working  journalists  except  for  the  comparatively  large number that were found concentrated in the big  metropolitan cities, were scattered all over the country and for the last ten years and more agitated that some means should be  found by  which  those  working in  the  newspaper  industry  were enabled  to  have their wages and salaries,  their  dearness allowance  and other allowances, their retirement  benefits, their  rules  of leave and conditions of  service,  enquired into  by  some impartial agency or authority, who  would  be empowered to fix just and reasonable terms and conditions of service for working journalists as a whole. Isolated attempts were made by the Uttar Pradesh and  Madhya Pradesh  Governments in this behalf.  On June 18, 1947,  the Government of Uttar Pradesh appointed a committee to enquire into  the  conditions  of  work  of  the  employees  of  the newspaper industry in the Uttar Pradesh. On  March  27, 1948, the Government of Central  Provinces  & Berar  also  appointed an Inquiry Committee to  examine  and report on certain questions relating to the general  working of  the  newspaper industry in the province,  including  the general conditions of work affecting the editorial and other staff  of  newspapers, their emoluments  including  dearness allowance, leave, provident fund, pensionary benefits, etc. The   Committees  aforesaid  made  their  reports   on   the respective dates March 31, 1949, and March 27, 1948,  making certain  recommendations.  The All-India  problem,  however, remained  to be tackled and during the debate in  Parliament on the Constitution (First Amendment) Bill, 1951, the  Prime Minister said that he was prepared to appoint a committee or a  commission,  including representatives of the  Press,  to examine 44 the  state of the Press and its content.  He elaborated  the idea  further  on June 1, 1951, when he  indicated  that  an enquiry covering the larger issue of the Press, such as  had been  carried  out  in  the  United  Kingdom  by  the  Royal Commission,  might be productive of good for the  Press  and the  development  of this very important  aspect  of  public affairs.   The idea was further discussed during the  debate in  Parliament  on the Press (Incitement  to  Crimes)  Bill, later named the Press (Objectionable Matter) Act, 1952.   At its  session  held in April, 1952, at Calcutta,  the  Indian Federation  of Working Journalists adopted a resolution  for the  appointment of a Commission to enquire into the  condi- tions  of  the Press in India with a view to  improving  its place, status and functioning in the new democratic set  up. The  appointment  of  the Press  Commission  was  thereafter announced  in  a Communique issued by the  Govt.  of  India, Ministry  of Information and Broadcasting, on September  23, 1952,   under  the  Chairmanship  of  Shri  Justice  G.   S. Rajadhyaksha. The terms of reference inter alia were:- "2. The Press Commission shall enquire into the state of the Press in India, its present and future lines of  development and shall in particular examine:............... (iv) the   method  of  recruitment,  training,   scales   of remuneration, benefits and other conditions of employment of working  journalists settlement of disputes  affecting  them and   factors   which  influence   the   establishment   and maintenance of high professional standards The  Commission  completed  its enquiry  and  submitted  its

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report on July 14, 1954.  Amongst other things it found that out  of  137 concerns about whom information  was  available only  59 were returning profits and 68 showed  losses.   The industry  taken as a whole had returned a profit of about  6 lakhs  of rupees on a capital investment of about 7  crores, or  less than I per cent. per annum.  It found  that  proof- readers  as  a  class  could  not  be  regarded  as  working journalists,  for there were proof-readers even  in  presses doing job work.  It came to the conclusion that if a  person had been 45 employed  as a proof-reader only for the purpose  of  making him  a more efficient sub-editor, then it was  obvious  that even while he was a proof-reader, he should be regarded as a working journalist but in all other instances, he would  not be  counted  as a journalist but as a member  of  the  press staff coming within the purview of the Factories Act. The   question   of  the  emoluments  payable   to   working journalists,  was discussed by it in paragraphs 538 and  539 of its report: 538:-"SCALES  TO  BE  SETTLED BY  COLLECTIVE  BARGAINING  OR ADJUDICATION:-It has not been possible for us to examine  in detail the adequacy of the scales of pay and the  emoluments received by the working journalist having regard to the cost of  living  in the various centers where  these  papers  are published and. to the capacity of the paper to make adequate payment............ In this connection it may be stated that the  Federation of Working Journalists also agreed, when  it was  put to them, that apart from suggesting a minimum  wage it  would  not be possible for the Commission  to  undertake standardisation  of designations or to fix scales of pay  or other conditions of service for the different categories  of employees  for different papers in different regions.   They have stated that these details must be left to be settled by collective bargaining or where an agreement is not  possible the  dispute could be settled by reference to an  industrial court or an adjudicator with the assistance of a Wage Board, if  necessary.  The All India Newspaper Editors’  Conference and Indian Language Newspapers’ Association have also stated that  it would not be possible to  standardise  designations and that any uniformity of salaries as between one newspaper and another would be impossible.  The resources of different newspapers  vary and the conditions of service are  not  the same.  We agree in principle that there should be uniformity as far as possible, in the conditions of service in  respect of working journalists serving in the same area or locality. But  this  can  be  achieved only  by  a  settlement  or  an adjudication  to  which  the employers,  and  the  employees collectively are parties." 46 539:-DEARNESS  ALLOWANCE:.......... This again, is a  matter which  would require very detailed study of the rise in  the index numbers of the cost of living for various places where the  newspapers are published.  We do not know of  any  case where  a  uniform  rate has  been  prescribed  for  dearness allowance  applicable all over the country  irrespective  of the economic conditions at different centres and the  paying capacity  of the various units.  This must be a  matter  for mutual  adjustment between the employers and  the  employees and  if  there  is  no agreement,  some  machinery  must  be provided  by  which disputes between the  parties  could  be resolved." The  position of a journalist was thus characterised by  the Commission: "  A journalist occupies a responsible position in life  and

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has  powers which he can wield for good or evil.  It  is  he who reflects and moulds public opinion.  He has to possess a certain  amount  of intellectual equipment and  should  have attained  a  certain educational standard without  which  it would   be  impossible  for  him  to  perform   his   duties efficiently.  His wage and his conditions of service  should therefore  be  such as to attract talent.  He  has  to  keep himself  abreast of the development in different  fields  of human  activity-even in such technical subjects as law,  and medicine.   This must involve constant study,  contact  with personalities  and  a  general  acquaintance  with   world’s problems." It  considered  therefore  that there should  be  a  certain minimum  wage paid to a journalist.  The possible impact  of such  a  minimum wage was also considered by it and  it  was considered not unlikely that the fixation of such a  minimum wage may make it impossible for small papers to continue  to exist  as such but it thought that if a newspaper could  not afford  to pay the minimum wage to the employee which  would enable him to live decently and with dignity, that newspaper had  no  business  to exist.   It  recommended  division  of localities for taking into account the differential cost  of living  in  different parts of India, and  determining  what should be the reasonable 47 minimum  wage  in  respect of each area.   It  endorsed  the concept  of  a minimum wage which has been adopted.  by  the Bank Award:- Though the living wage is the target, it has to be tempered, even   in  advanced  countries,  by  other   considerations, particularly the general level of wages in other  industries and  the  capacity  of the industry  to  pay............  In India,  however, the level of the national income is so  low at  present that it is generally accepted that  the  country cannot  afford to prescribe a minimum wage corresponding  to the concept of a living wage.  However, a minimum wage  even here  must  provide not merely for the bare  subsistence  of living,  but  for the efficiency of the  worker.   For  this purpose, it must also provide for some measure of education, medical requirements and amenities." and suggested that  the basic  minimum wage all over India for a working  journalist should be Rs. 125 with Rs. 25 as dearness allowance making a total  of  Rs.  150.  It  also  suggested  certain  dearness allowance and City allowance in accordance with the location of the areas in which the working journalists were employed. It  compared  the minimum wage recommended by  it  with  the recommendations  of  the Uttar Pradesh  and  Madhya  Pradesh Committees  and stated that its recommendations were  fairly in  line  with  the  recommendations  of  those   Committees particularly having regard to the rise in the cost of living which bad taken place since those reports were made. It  then  considered  the applicability  of  the  Industrial Disputes Act to the working journalists and after  referring to  the  award  of  the Industrial  Tribunal  at  Bombay  in connection  with the dispute between " Jam-e-Jamshed  "  and their  workman and the decision of the Patna High  Court  in the case of V. N. N. Sinha v. Bihar Journals Limited (1), it came to the conclusion that the working journalists did  not come  within the definition of workman as it stood  at  that time  in  the Industrial Disputes Act nor could  a  question with regard to them be raised by others who were  admittedly governed by the Act.  It thereafter con- (1)  (1953) 1. L. R. 32 Pat. 688. 48 sidered  the questions as to the tenure of  appointment  and

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the  minimum  period  of  notice  for  termination  of   the employment  of  the  working  journalists,  hours  of  work, provision for leave, retirement benefits and gratuity,  made certain  recommendations and suggested legislation  for  the regulation of the newspaper industry which should embody its recommendations  with  regard  to (i)  notice  period;  (ii) bonus; (iii) minimum wages; (iv) Sunday rest; (v) leave, and (vi) provident fund and gratuity. Almost immediately after the Report of the Press Commission, Parliament   passed  the  Working  Journalists   (Industrial ]Disputes)  Act, 1955 (I of 1955) which received the  assent of the President on March 12, 1955.  It was an Act to  apply the  Industrial Disputes Act, 1947, to working  journalists. " Working Journalist " was defined in s. 2 (b) of the Act to mean  "  a  person whose principal avocation is  that  of  a journalist  and who is employed as such in, or  in  relation to, any establishment for the production or publication of a newspaper  or  in,  or in relation to, any  news  agency  or syndicate   supplying  material  for  publication   in   any newspaper,  and includes an editor, a  letter-writer,  news- editor,  sub-editor, feature writer, copy-taster,  reporter, correspondent,   cartoonist,  news-photographer  and   proof reader but does not include any such person  who: (i)is  employed  mainly in a managerial or  admini  strative capacity, or (ii)being  employed  in  a  supervisory  capacity,exercises, either by the nature of the duties attached to the office or by reason of the powers vested in him, functions mainly of a managerial nature.  Section 3 of that Act provided that  the provisions of the Industrial Disputes Act, 1947, shall apply to, or in relation to, working journalists as they apply  to or in relation to workmen within the meaning of that Act. The application of the Industrial Disputes Act, 1947, to the working  journalists was not, however, deemed sufficient  to meet   the  requirements  of  the  situation.    There   was considerable agitation in Parliament for the  implementation of the recommendations 49 of the Press Commission, and on November 30, 1955, the Union Government introduced a Bill in the Rajya, Sabha, being Bill No.  13  of 1955.  It was a Bill to regulate  conditions  of service of working journalists and other persons employed in newspaper establishments.  The recommendations of the  Press Commission  in  regard to minimum period of  notice,  bonus, Sunday  rest, leave, and provident fund and gratuity,  etc., were  all  incorporated  in the Bill; the  fixation  of  the minimum  rates of Wages however was left to a  minimum  wage Board  to  be  constituted for the purpose  by  the  Central Government.   The  provisions of the  Industrial  Employment (Standing Orders) Act, 1946 (20 of 1946) and the  Employees’ Provident  Funds Act, 1952 (19 of 1952) were also sought  to be  applied in respect of establishments  exceeding  certain minimum size as recommended by the Commission. It appears that during the course of discussion in the Rajya Sabha,  the  word  " minimum " was  dropped  from  the  Bill wherever  it occurred, the Minister for Labour  having  been responsible  for  the suggested amendment.  The  reason  for dropping the same was stated by him as under: " Let the word " minimum " be dropped and let it be a proper wage  board  which will look into this question in  all  its aspects.   Now,  if  that is done, I believe,  from  my  own experience of the industrial disputes with regard to  wages, in a way it will solve the question of wages to the  working journalists for all time to come."

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The  Act  as  finally passed was  entituled  "  The  Working Journalists   (Conditions  of  Service)  and   Miscellaneous Provisions Act, 1955 (45 of 1955) and received the assent of the President on December 20, 1955. The  relevant provisions of the Act may now be referred  to. It  was an Act to regulate certain conditions of service  of working journalists and other persons employed in  newspaper establishments. Newspaper establishment " was defined in  s. 2  (d) to mean " an establishment under the control  of  any person or body of persons, whether incorporated or not,  for the production or publication of one or more 50 newspapers or for conducting any news agency or syndicate ". The  definition of " working journalist " was almost in  the same  terms as that in the Working  Journalists  (Industrial Disputes) Act, 1955, and included a proof reader.  All words and expressions used but not defined in this Act and defined in the Industrial Disputes Act, 1947, were under s. 2 (g) to have the meanings respectively assigned to them in that Act. Section 3 applied the provisions of the Industrial  Disputes Act, 1947, as it was in force for the time being, to working journalists  as they applied to, or in relation  to  workmen within  the meaning of that Act subject to the  modification that  s.  25 (F) of that Act in its application  to  working journalists in regard to the period of notice in relation to the  retrenchment  of  a  workman was  to  be  construed  as substituting  six months in the case of the retrenchment  of an editor and three months, in the case of any other working journalist.  The period which lapsed between the publication of  the report and the enactment of the Working  Journalists (Industrial  Disputes) Act, 1955, viz., from July 14,  1954, to  March  12, 1955, was sought to be bridged over by  s.  4 enacting  special provisions in respect of certain cases  of retrenchment during that period.  Section 5 provided for the payment of gratuity, inter alia, to a working journalist who had been in continuous service, whether before or after  the commencement  of the Act, for not less than three  years  in any   newspaper  establishment  even  when  he   voluntarily resigned  from  service  of  that  newspaper  establishment. Section  6  laid down that no working  journalist  shall  be required  or allowed to work in any newspaper  establishment for  more than one hundred and forty-four hours  during  any period of four consecutive weeks, exclusive of the time  for meals.  Every working journalist was under s. 7 entitled  to earned  leave and leave on medical certificate on the  terms therein specified without prejudice to such holidays, casual leave or other kinds of leave as might be prescribed.  After thus  providing  for retrenchment compensation,  payment  of gratuity, hours of work, and leave, ss. 8 to 1 1 of the  Act provided 51 for  fixation  of the rates of wages in respect  of  working journalists.  Section 8 authorised the Central Government by notification  in the Official Gazette to constitute  a  Wage Board  for fixing rates of wages in respect of  the  working journalists  in accordance with the provisions of  the  Act, which  Board  was to consist of an equal number  of  persons nominated  by the Central Government to represent  employers in  relation  to the newspaper establishments-  and  working journa  lists,  and an independent person appointed  by  the Central Government as the Chairman thereof.  Section 9  laid down  the  circumstances which the Wage Board  was  to  have regard  to in fixing rates of wages and these  circumstances were  the cost of living, the prevalent rates of  wages  for comparable  employments, the circumstances relating  to  the

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newspaper  industry in different regions of the country  and to  any  other  circumstance which to  the  Board  may  seem relevant.   The decision of the Board fixing rates of  wages was to be communicated as soon as practicable to the Central Government and this decision was under s. 10 to be published by  the Central Government in such manner as it thought  fit within a period of one month from the date of its receipt by the Central Government and the decision so published was  to come  into  operation with effect from such date as  may  be specified, and where no date was so specified on the date of its  publication.   Section  11 prescribed  the  powers  and procedure of the Board and stated that subject to any  rules of  procedure which might be prescribed the Board  may,  for the  purpose  of fixing rates of wages,  exercise  the  same powers  and  follow  the same  procedure  as  an  Industrial Tribunal  constituted  under the  Industrial  Disputes  Act, 1947, exercised or followed for the purpose of  adjudicating an  industrial dispute referred to it.  The decision of  the Board  under  s.  12  was declared  to  be  binding  on  all employers in relation to newspaper establishments and  every working  journalist was entitled to be paid wages at a  rate which was to be in no case less than the rate of wages fixed by the Board.  Sections 14 and 15 applied the provisions  of the Industrial Employment (Standing Orders) 52 Act,  1946, as it was in force for the time being  and  also the provisions of the Employees’ Provident Funds Act,  1952, as  it was in force for the time being, to  every  newspaper establishment in which twenty or more persons were employed. Section  17 provided for the recovery of money due  from  an employer  and  enacted  that where any money was  due  to  a newspaper  employee  from  an  employer  under  any  of  the provisions  of  the  Act, whether by  way  of  compensation, gratuity  or  wages, the newspaper employee  might,  without prejudice to any other mode of recovery, make an application to the State Government for the recovery of the money due to him,  and if the State Government or such authority  as  the State Government might specify in this behalf was  satisfied that any money was so due, it shall issue a certificate  for that amount to the collector and the collector shall proceed to  recover that amount in the same manner as an  arrear  of land  revenue.  Section 20 empowered the Central  Government by.  notification in the Official Gazette to make  rules  to carry  out  the purposes of the Act and  in  particular  and without prejudice to the generality of the foregoing  power, such  rules were to provide inter alia for the procedure  to be  followed  by the Board in fixing rates  of  wages.   All rules made under this section, as soon as practicable  after they  were  made  were  to be laid  before  both  Houses  of Parliament.   The Working Journalists (Industrial  Disputes) Act, 1955, was repealed by s. 21 of the Act. In  pursuance of the power given under s. 20 of the Act  the Central  Government  published  by  a  notification  in  the Gazette of India-Part II-Section 3, dated July 30,1956,  The Working  Journalists Wage Board Rules, 1956 Rule 8  provided that every question considered at a meeting of the Board was to  be  decided by a majority of the votes  of  the  members present  and voting.  In the event of equality of votes  the Chairman  was to have a casting vote.  Rule 13 provided  for the  resignation  of  the Chairman or any  member  from  his office or membership, as the case may be.  The seat held  by them was to be deemed to have fallen vacant with effect from the date the 53 resignation  of the Chairman or the member was  accepted  by

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the  Central Government.  When a vacancy thus arose  in  the office  of the Chairman or in the membership of  the  Board, the  Central Government was to take immediate steps to  fill the  vacancy in accordance with the Act and the  proceedings might’  be continued before the Board so reconstituted  from the stage at which the vacancy was so filled. By a notification dated May 2, 1956, the Central  Government constituted  a Wage Board under s. 8 of the Act  for  fixing rates  of  wages  in  respect  of  working  journalists   in accordance  with  the provisions of the Act,  consisting  of equal representatives of employers in relation to  newspaper establishments and working journalists and appointed Shri H. V.  Divatia, Retired Judge of the High Court of  Judicature, Bombay, as the Chairman of the Board.  The three members  of the  Board  who  were nominated to  represent  employers  in relation  to  newspaper  establishments  were  (1)  Shri  G. Narasimhan, Manager, The Hindu, Madras and President, Indian and Eastern Newspaper Society; (2) Shri A. R. Bhat,  M.L.C., who  had been a member of the Press Commission and  was  the President of the Indian Language Newspapers Association,  as also the Chairman of the Minimum Wages Inquiry Committee for the Printing Industry in Bombay and, (3) Shri -K. P.  Kesava Menon,  Editor,  Mathrubhumi,  Calicut.   The  other   three members of the Board who were nominated to represent working journalists were: (1) Shri G. Venkataraman, M. P., (2)  Shri C. Raghavan, Secretary-General, Indian Federation of Working Journalists,  and (3) Shri G. N. Acharya, Assistant  Editor, Bombay Chronicle. Shri H. V. Divatia, the Chairman of the Board, had wide  and considerable  experience as Chairman of the  Textile  Labour Enquiry  Committee,  Bombay, had been the President  of  the First  Industrial Court to be set up in India in  1938,  and had  worked as an Industrial Tribunal dealing  with  several disputes as between several banks and employees, as well  as between several insurance companies and their employees. 54 The first meeting of the Board was held on May 26, 1956,  in the Bharatiya Vidya Bhavan at Bombay.  Sri Kesava Menon  and Shri G. Narasimhan were not present at this meeting.  It was a  preliminary  meeting  at which the Board set  up  a  sub- committee  consisting  Of  Shri A. R. Bhat and  Shri  G.  N. Acharya  to draft a questionnaire for issue to  the  various journals  and  organisations  concerned,  with  a  view   to eliciting  factual  data  and  other  relevant   information required   for  the  fixation  of  wages  for  the   working journalists.   The  sub-committee was requested to  hear  in mind,  while  framing the questionnaire the  need  for:  (1) obtaining detailed accounts of newspaper establishments; (2) proper  evaluation of the nature of and the work of  various categories   of   working  journalists;   and   (3)   proper classification  of the country into different areas  on  the basis  of certain criteria like population, cost of  living, etc.  The questionnaire drafted by the sub-committee was  to be finalised by the chairman and circulated to all concerned by the end of June, 1956. The  questionnaire was accordingly drawn up and was sent  to Universities  and  Governments,  etc.,  and  several   other organisations  and individuals interested in the inquiry  of the  Board,  and  to all newspapers  individually.   It  was divided  into  three parts.  Part " A" was  intended  to  be answered  by  newspapers, news  agencies,  organisations  of employers  and of workinly Journalists and  any  individuals who  might  wish  to  do so.  Part " B "  was  meant  to  be answered  by  all  newspapers and Part " C  "  by  all  news agencies.

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At  the outset the Board pointed out that except  where  the question  itself  indicated a different period or  point  of time, the reporting period for purposes of parts " B " and " C " of the questionnaire was the financial years (April I to March   31)1952-53,   1953-54,  and  1954-55,  or   in   any establishments which followed a different accounting year, a period  of  three  years as near thereto  as  possible.   It further  pointed out that tinder s. 11 of the Act the  Board had  the powers of an Industrial Tribunal constituted  under the   Industrial   Disputes  Act.   In  Part  "A"   of   the questionnaire  under  the heading " Cost of Living  cost  of living                           55 index  for  the  respective centres were called  for  and  a special  question  was addressed whether the  basic  minimum wage,  dearness allowance and metropolitan allowance in  the table attached to paragraph 546 of the Press Commission  was acceptable  to  the  party  questioned  and,  if  not,  what variations  would the: party suggest. and  why.   Comparable employment  suggested included (a) Higher  secondary  school teachers;  (b)  College  and  -  university  teachers;   (c) Journalists  employed  as  publicity  and  public  relations officers  in the information departments of the Central  and State  Governments; (d) Journalistic employees of  the  news service  division  of  All  India  Radio  and  (e)  Research personnel of the economic and social research departments of Central  Government  ministries  like  finance,  labour  and commerce.   Under the heading " Special Circumstances",  the only  question addressed was question No. 7: " Are there  in your  region  any  special  conditions  in  respect  of  the newspaper industry which affect the fixing of rates of wages of  working journalists ? If so, specify the conditions  and indicate  how  they  affect the question  of  wages.   "  As regards the principles of wage fixation the party questioned was to categorise the different newspaper establishments and in  doing so consider the following factors,  among  others: (a)  Invested capital; (b) Gross revenue; (c)  Advertisement revenue;  (d) Circulation; (e) Periodicity  of  publication; (f)  The existence of chains, multiple units  and  combines; and (g) Location. In  part  B " which was to be answered  by  newspapers  were included under the heading Accounts :- (1)Balance  sheets  and  (2) Trading  and  profit  and  loss accounts of the newspapers as in the specimen forms attached thereto  for  the  reporting period.   Questions  were  also addressed  in regard to the revenue of the newspapers  inter alia  from  the  press,  a  process  studio,  outside  work, foundry,  etc.,  and subscriptions as also  the  expenditure incurred  on  postage,  distribution/sale,  commission   and rebate to advertisers, etc., and other items. 56 All  information which was considered necessary by the  Wage Board for the purposes of fixation of the rates of wages was thus sought to be elicited by the questionnaire. It  appears  that  Shri  K. P. Kesava  Mellon  sent  in  his resignation on or about June 21, 1956, and by a notification dated  July  14, 1956, the Central Government  accepted  the said  resignation  and  appointed in his place  Shri  K.  M. Cherian, member of the executive committee of the Indian and Eastern Newspapers Association, one of the directors of  the Press  Trust  of  India  and  the  Chief  Editor,   Malayala Manorama, Kottayam, as a member of the Board. Out  of  5,465  newspapers,  journals,  etc.,  to  whom  the questionnaire  was sent only 381 answered the same; and  out of  502  dailies  only 138 answered it.  The  Board  had  an

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analysis made of those who had replied to the  questionnaire and  also of their replies thereto in regard to each of  the questions  contained  in  the questionnaire.   It  also  got statements  prepared according to the gross revenue  of  the newspapers,  the population of the centres,  circulation  of the  papers,  the cost of living index, scales  of  dearness allowance   in   certain  States,  figures   of   comparable employments,   pay   scales  of  important   categories   of journalists, etc., the total income, break up of expenditure in relation to total income and total expenses, total income in  relation to net profits, and net losses and net  profits in  relation to circulation of the several newspapers  which had sent in the replies to the questionnaire,. Further  meetings of the Board were held oil August 17,  and August  26,  1956, in Bombay.  Tile  Chairman  informed  the members that response from journals, organisations, etc., to whom  ’questionnaire was sent was unsatisfactory and it  was decided  to  issue a Press Note requesting  the  papers  and journals  to send their replies, particularly to Part " B  " of  the questionnaire, as soon as possible,  inviting  their attention  to  the  fact that the Board  had  powers  of  an Industrial Tribunal under the Act, and if newspapers  failed to send their replies, the Board would be compelled to  take further  steps  in  the matter.  It  was  decided  that  for purposes 57 of  taking  oral  evidence, the country be  divided  into  5 zones,  namely,  Trivandrum,  Madras,  Delhi,  Calcutta  and Bombay  and the Secretary was asked to summon  witnesses  to the  nearest and convenient centre.  It was further  decided that one hour should normally be allotted to each newspaper, 3 hours for regional units and 2 hours for smaller units for oral evidence.  The Board also discussed the question as  to the  number  of persons who might ordinarily be  called  for oral  evidence  from  each newspaper  or  Organisation.   It thought  that  one of the important  factors  Governing  the findings  of  the  Board would be the  circulation  of  each newspaper, and as such it was decided that the figures  with the  Audit Bureau of Circulation Ltd., might be obtained  at once.    The  Board  also  decided  to  ask  witnesses,   if necessary,   to  produce  books  of   accounts,   income-tax assessment orders or any other document which in its opinion was essential. Meetings of the Board were held at Trivandrum from September 7,  to September 10, 1956, in Madras from September  15,  to September 20, 1956, in New Delhi from October 19, to October 26, 1956, in Calcutta from November 25, to December  4,1956, and  in  Bombay from January 4, to January  10,  1957,  from January 20, to February 6, 1957, from March 25 to March  31, 1957 and finally from April 22 to April 24, 1957. Evidence  of several journalists and persons connected  with the newspaper industry was recorded at the respective places and  at  its meeting in Bombay from March 25, to  March  31, 1957,  the Board entered upon its final  deliberations.   At this  meeting  the chairman impressed upon the  members  the desirability of arriving at unanimous decisions with  regard to  the fixation of wages, etc.  He further stated  that  he would  be extremely happy if representatives-  of  newspaper industry  and  of working journalists could come  to  mutual agreement  by direct discussions and he assured  his  utmost co-operation and help in arriving at decisions on points  on which   they  could  not  agree.   Members   welcomed   this suggestion and decided to 58 discuss various issues among themselves in the afternoon and

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on the following days. After  considerable discussion on March 25, 1957, and  March 26, 1957, in which the representatives of the newspapers and of   working  journalists  had  joint  Sittings,   unanimous decisions   were  arrived  at  on  (i)   classification   of newspapers,   (ii)  classification  of  centres  and   (iii) classification  of employees, except on one  point,  namely, classification  of group, multiple units and chains  on  the basis of their total gross revenue.  This was agreed to by a majority decision.  The chairman and the representatives  of the   working   journalists  voted  in  favour   while   the representatives  of the employers voted against.   Regarding scales  of  pay, the chairman suggested at  the  meeting  of March  27, 1957, that pending final settlement of the  issue the  parties should submit figures of scales based  on  both assumptions,  namely,  consolidated wages and  basic  scales with  separate  dearness allowance.  Both  sides  agreed  to submit  concrete suggestions on the following day.   At  the Board’s  meeting on March 28, 1957, the  representatives  of the employers stated that the term CC rates of pay " did not include  scales  of  pay ; there fore,  the  Board  was  not competent  to  fix scales of working  journalists  and  they submitted  a written statement signed by all of them to  the chairman    in   support   of   their    contention.     The representatives  of the working journalists argued that  the Board  was  competent to fix scales of  pay.   The  chairman adjourned  the sitting of the Board to study this issue.   A copy   of   the   written   statement   submitted   by   the representatives   of   the  employers  was  given   to   the representatives   of  the  working  journalists   and   they submitted a written reply the same afternoon contending that the  Board  was competent to fix scales of  pay  of  various categories of working journalists.’ At its meeting on  March 29,  1957,  the Board discussed its own  competency  to  fix scales  of  pay.   The chairman  expressed  his  opinion  in writing, whereby he held that the Board was competent to fix scales  of pay.  On a vote being taken according to r. 8  of the Working Journalists Wage Board Rules, 1956, the chairman 59 and the representatives of the working journalists voted  in favour of the competence of the Board to fix scales of  pay, while the representatives of the employers voted against it. Thereafter, several suggestions were made on this  question, but since there was no possibility of any agreement on  this issue,  the  chairman suggested that members  should  submit their specific scales to him for his study to which the mem- bers  agreed.  It was also decided that the  chairman  would have  separate discussions with representatives  of  working journalists  in  the  morning and  with  representatives  of employers  in the afternoon of March 30, 1957.  It was  also decided that the Board should meet again on March 31,  1957, for  further  discussions.  No final  decision  was  however arrived  at  in the meeting of the Board held on  March  31, 1957, on scales of pay, allowances, date of operation of the decision,  etc.  It was decided that the Board  should  meet again on April 22, 1957, to take final decisions. A meeting of the Board was accordingly held from April 22 to 24, 1957, in the office of the Wage Board at Bombay.  It was unanimously  agreed that the word "decision" should be  used wherever  the word " report" occurred.  The question of  the nature  of  the decisions which should be submitted  to  the Government was then considered.  It was agreed that  reasons need  not  be given for each of the decisions, and  that  it would  be  sufficient  only to record  the  decisions.   The members  then requested the chairman to study the  proposals

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regarding  scales  of  pay, etc.,  submitted  by,  both  the parties and to give his own proposals so that they may  take a  final decision.  Accordingly, the chairman circulated  to all the members his proposals regarding pay scales, dearness allowance, location allowance and retainer allowance. The following were the decisions arrived at by the Board  on the  various  points  under  consideration  and  they   were unanimous  except where otherwise stated.  The same  may  be set out here so far as they are relevant for the purposes of the inquiry before US. 1.   For the purpose of fixation of wages of working 60 journalists,  newspaper,  establishments should  be  grouped under different classes. 2.   Except  in the case of weeklies and  other  periodicals expressly provided for hereinafter, newspaper establishments should be classified on the basis of their gross revenue. 3.   For  purposes  of  classification,  revenue  from   all sources  of a newspaper establishment, should be  taken  for ascertaining gross revenue. 4.   Classification  of Newspaper  Establishments: Dailies- Newspaper Establishments should be classified under the following five classes:- Class     Gross Revenue " A" over Rs. 25 lakhs " B" over Rs. 12-1/2 to 25 lakhs " C" over Rs. 5 to 12-1/2 lakhs " D" over Rs. 2-1/2 to 5 lakhs " E" Rs. 2-1/2 lakhs and below 5.  Classification  of newspaper  establishments  should  be based on the average gross revenue of the three-year period, 1952, 1953 and 1954. 6.   It  shall be open to the parties to  seek  re-classifi- cation  of the newspaper establishments on the basis of  the average of every three years commencing from the year 1955. 11.  Groups, multiple units and chains should be  classified on  the  basis  of  the  total  gross  revenue  of  all  the constituent  units.  (This  was  a  majority  decision,  the chairman and the representatives of the working  journalists voting  for and the representatives of the employers  voting against). 12. A newspaper establishment will be classified as:- (i)  A group, if it publishes more than one  newspaper  from one centre; (ii) A  multiple  unit, if it publishes the  same  newspaper from more than one centre; (iii)     A  chain, if it publishes more than one  newspaper from more than one centre. 61 20.  Working     journalists    employed    in     newspaper establishments should be grouped as follows: (a)  Full time employees: Group     I: Editor Group     II: Assistant Editor, Leader Writer, News  Editor, Commercial  Editor,  Sports  Editor,  Film  or  Art  Editor, Feature  Editor,  Literary  Editor,  Special  Correspondent, Chief Reporter, Chief Sub-Editor and Cartoonist. Group  III: Sub-Editors and Reporters of all kind  and  full time   correspondents  not  included  in   Group(II);   news photographers  and  other  journalists not  covered  in  the groups. Group IV: Proof Reader- (b) Part time employees: Correspondents  who are part time employees of  a  newspaper establishment  and  whose  principal avocation  is  that  of

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journalism. An  employee should be deemed to be a full time employee  if under the conditions of service such employee is not allowed to work for any other newspaper establishments. 23.The  wage scales and grades recommended by  the  chairman were agreed to by a majority decision.  The chairman and the representatives of the working journalists voted for and the representatives  of the employers voted against.  Shri  That suggested  that  wage  scales should  be  conditional  on  a newspaper  establishment  making profits in  any  particular year  and  also that time should be given to  the  newspaper establishments  for  bringing  the  scales  into  operation. These  suggestions,  however,  were not  acceptable  to  the majority. Wages,  scales  and grades: (as agreed to by  the  majority) were  as  under:  Working journalists  of  different  groups employed  in different classes of  newspaper  establishments should be paid the following basic wages per mensem.           62 1. Dailies. Class of      Group of   Starting       Scale News-       Employees    Pay papers E    IV                  90           No Scale      III      II                  150          No Scale      I D    IV                  100100-5-165 (13 Yrs.)                                 EB-7-200-(5 Yrs.)      III                 115115-7-1/2--205 (12 Yrs.)                                 EB-15-295 (6 Yrs.)      II                   200200-20-400 (10 Yrs.)      I C    IV                   100100-5-165 (13 Yrs.)                                EB-7-200- (5 Yrs.)      III                  125125-10-245 (12 Yrs.)                                EB-12J-320 (6 Yrs.)      II                   225225-20-385 (8 Yrs.)                                EB-30-445 (2 Yrs.)      I                    350350-25-550 (8 Yrs.)                                -40-630 (2 Yrs.) B    IV                   100100-5-165 (13 Yrs.)                                 EB-7-200 (5 Yrs.)      III                  150150-12J-300 (12 Yrs.)                                 EB-20-420 (6 Yrs.)      II                   350350-20-510 (8 Yrs.)                               EB-30-570 (2 Yrs.)      I                     500500-30-740 (8 YrS.)                                     -40-820 (2 Yrs.) A    IV                    125125-7-1/2--215 (12 Yrs.)                                         EB-10-275 (6 Yrs.)      III                   175175-20-415 (12 Yrs.)                                      EB-25-515 (4 Yrs.)      II                     500500-40-820 (8 Yrs.)                                     EB-50-920 (2 Yrs.)      I                       10001000-50-1300 (6 Yrs.)                                       -75-1600 (4 Yrs.) Dearness   allowance,  location  allowance  and  part   time employees  remuneration  were  also  majority  decisions.The chairman and the representatives of the working 63 journalists  voting  for  and  the  representatives  of  the employers voting against. 28.  Other allowances:-In view of the paucity of evidence on the  subject,  the  Board  decided  that  the  fixation   of

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conveyance and other allowances should be left to collective bargaining between the working journalists and the newspaper establishments concerned. 29.  Fitment  of  employees:-For  fitment  of  the   present employees into the new scales, service in a particular grade and  category and in the particular newspaper  establishment alone should be taken into account. 30.  In  no  case  should  the  present  emoluments  of  the employees  be reduced as a; result of the operation of  this decision. 35.  When a newspaper establishment is re-classified as  per para.  6  supra,  the existing pay of the  staff  should  be protected.  But future increments and scales should be those applicable to the class of paper into which it falls. 38.  Date  of  operation:-The  Board’s  decision  should  be operative from the date of constitution of the Board  (i.e., 2-5-1956)  in  respect of  newspaper  eseablishments  coming under  Class  "  A ", " B " and " C " and from  a  date  six months  from  the date of appointment of  the  Board  (i.e., 1-11-1956)  in  the case of newspaper  establishments  under Class " D " & " E"  (This was also a majority decision.  The chairman and the representatives of the working  journalists voted  for  and the representatives of the  employers  voted against). 41.  The Government of India should constitute a Wage  Board under the Act, to review the effect of the decisions of  the Board  on  the  newspaper  establishments  and  the  working journalists, after the expiry of 3 years but not later  than 5 years from the date of the publication of the decisions of the Board. These  decisions  were recorded on April 30, 1957,  but  the representatives  of  the employers thought fit to  append  a minute of dissent and the chairman also put on record a note on the same day explaining the 64 reasons  for the decisions thus recorded.   These  documents are  of vital importance in the determination of the  issues before us. In the minute of dissent recorded by the representatives  of the employers they started with an expression of regret that the conditions in the newspaper industry did not Permit them to  accept the majority view.  They expressed their  opinion that  the fixation of rates of wages should be  governed  by the following criteria: (i)  normal needs of a worker; (ii) capacity of the industry to pay; (iii)     nature of the industry; and (iv) effect  on  the  development of  the  industry  and  on employment.  They pointed out that: (a)  The  newspaper  industry was a class  by  itself.   The selling  price of its product was ordinarily below its  cost of  production.  Further, the cost of  production  specially that of newsprint, went on varying and the frequent rises in newsprint price made it difficult to plan and undertake  any long term commitment of an increasing expenditure. (b) The  income of the newspaper industry  was  principally derived   from  two  main  sources:  sales  of  copies   and advertisement.   While sales depended on public  acceptance, income   from  advertisement  depended   upon   circulation, prestige and purchasing power of readers.  All those factors made  publishing of newspapers a hazardous  undertaking  and the  hazard  continued throughout it-,  existence  with  the result  that  it was obligatory that the rates of  wages  or scales ,should be fixed at the minimum level, leaving it  to the  employees to share the prosperity of the units  through

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bonuses. (c)  It  was not ordinarily easy for newspapers to  increase the  selling  price and it had been the experience  of  some established newspapers that such a course, when adopted, had invariably  brought about a reduction in  circulation.   The fall  in  circulation had in turn an adverse effect  on  the advertisement revenue.  The sales or advertisement income of a newspaper was not responsive to a progressive increase  in expenditure. 65 (d)  In any fixation of wages of a section of employees, its effect on other sections had to be taken into consideration. Editorial   employees  were  one  section  of  a   newspaper establishment  and  any increase in their  emoluments  would have  its  inevitable repercussions on the  wages  of  other sections.  The salaries of working Journalists would roughly be one-fifth of the total wage bill.  The factory staff  had a  great  bargaining power and as such any increase  in  the salaries  and  introduction  of  scales  in  the   editorial department  would have to be followed by an increase in  the wages and introduction of time scales in the factory   side. (e)  It was the advertisement revenue that principally decided the  capacity  to pay of a newspaper industry.  It  was  not enough  to  take into consideration the gross revenue  of  a newspaper  alone  but also the proportion  of  advertisement revenue in it.  This meant that minimum salaries and  scales to be fixed on an All-India basis would perforce have to  be low  if  the  newpapers in language of regions  with  a  low purchasing  power such as Kerala and Orissa were not  to  be handicapped.   It  would  therefore  be  fair  both  to  the industry and employees if wages were fixed regionwise. (f)  The  proposals,  which the majority had  made,  clearly showed  that,  according to it the dominating  principle  of wage  fixation  wag the need of the worker as  conceived  by them, irrespective of its effect on the industry.  The Board had  not  before it sufficient data needed  for  the  proper assessment  of  the paying capacity of  the  industry.   The profit   and   loss  statements  of  the   daily   newspaper establishments  for  the year 19.54-55 as submitted  to  the Board  revealed that while 43 of them had shown  profits  40 had  incurred  losses.   The.  condition  of  the  newspaper industry  in the country as a whole could not be  considered satisfactory.   The proposals embodied in the decision  made by  the  majority were therefore unduly  high.   They  would immediately  throw  a huge burden on many papers,  a  burden which would progressively grow for some 66 years, and would be still bigger when its impact takes place on  the wages of employees of its other sections.  All  this will  in  its  turn add to the  burden  of  provident  fund, gratuity,  etc.,  when the full impact of  the  burden  took place  and the wages of the entire newspaper  establishments went  up, it would throw out of gear the economy of most  of the  newspapers.   It might be that there may  not  be  many closures  immediately, because many of the newspapers  would not  be in a position to meet the liability of  retrenchment compensation,  gratuity, etc., resulting from such  a  step, newspapers  would try to meet the liability by borrowing  to the  extent  possible and when their credit  was  exhausted, they  must close down.  So far as new  newspaper  promotions were concerned, they would be few and far between, with  the result  that  after a few years it would be found  that  the number of daily newspapers in the country had not  increased but  had  gone  down.  Such an eventuality was  not  in  the interests  of  the country both from the point  of  view  of

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employment as well as of freedom of expression. (g)As   regards  chains  and  groups  the  criterion   for classification  adopted  by  the  majority  was  unfair  and unnatural.   The total gross revenue of all the units  in  a chain  or a group gave an unreal picture of its capacity  to pay. (h)Giving  of  retrospective effect, would  help  only  to aggravate  the troubles of the newspaper industry which  had been already called upon to devise ways and means of meeting the burden of retrospective gratuity. (i)  As regards the prevalent rates of wages for  comparable employments the nature of work of the working journalists in newspaper  establishments could not be compared  with  other avocations or professions and the rates of wages of  working journalists  should  be  fixed only in the  context  of  the financial condition of the newspaper industry.   Comparison, could,  however, be made within limits, namely with  respect to alternative employments available to persons with similar educational   qualifications   in  particular   regions   or localities.   From that point of view the salaries  paid  to secondary school teachers, college and university 67 teachers and employees in commercial firms and banks  should be  taken into consideration, but the majority had  rejected this view. The note of the chairman was meant to explain the reasons of the  decisions which he stated he at least had in  view  and some  of  which were accepted unanimously  and  others  were accepted  by  some  members  and  thereby  became   majority decisions.   At the outset the chairman explained that  most of the recommendations of the Press Commission were intended for  the betterment of the economic condition of  small  and medium  newspapers, such as price page schedule,  telescopic rates   for   Government  advertisements  and   their   fair distribution  among  newspapers, statutory  restrictions  on malpractices  so as to eliminate cutthroat  competition  and fixation of news agency tariff,-, which still remained to be implemented and there had been no stability in the prices of newsprint which constituted a considerable proportion of the expenditure   of  a  newspaper.   These  circumstances   had necessitated  the fixing of a minimum wage lower  than  that recommended by the Press Commission. As  regards  fixation of the rates of  wages,  the  chairman observed: "In  fixing  the rates of wages, we have based them  on  the condition  of the newspaper industry as a whole and  not  on the   effect  which  they  will  produce  on  a   particular newspaper.  We can only proceed on the average gross  income of  a newspaper falling under the same class and not on  the lowest  unit  in that class.  Otherwise, there  will  be  no improvement  in any unit of the same class, and  the  status quo  might remain.  With the extremely divergent  conditions obtaining  in  both  English  as  well  as  Indian  language newspapers,  it is impossible to try to avoid any  small  or medium  newspaper being adversely affected.  When  the  tone and condition of journalism in India has to be brought on  a higher level it is inevitable that in doing so, more or less burden  will fall on several newspapers ; I realise that  in cases  where  wages are very low and dearness  allowance  is also low or even non-existent and there are no scales 68 at  all,  the reaction to our wage schedule will be  one  of resentment  by the proprietors.  Some anomalies may also  be pointed  out; but it must be remembered that we had no  data of all the newspapers before us and where we had, it was  in

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many  cases not satisfactory. Under these circumstances,  we cannot satisfy all   newspapers  as  well  as   journalists. However,  wehave tried to proceed on the basis  of  accepted principles  also keeping in view the recommendations of  the Press  Commission  and not on the editorial  expenditure  of each  newspaper.  I am also of the opinion that by  rational management there is great scope for increasing the income of newspapers and we have evidence before us that the future of the  Indian language newspapers is bright, having regard  to increasing   literacy   and   the   growth   of    political consciousness  of the reading public.  When there  are  wide disparities,  there  cannot be any  adjustment  which  might satisfy  all  persons interested.  We hope no  newspaper  is forced  to close down as a result of our decision.   But  if there is a good paper and it deserves to exist, we hope  the Government and the public will help it to continue." The chairman then proceeded to observe: " We do not consider it a matter of regret if our  decisions discourage  the entry into this industry of persons  without the  necessary  resources  required for  the  payment  of  a reasonable  minimum wage.  While we are anxious  to  promote and  encourage the growth of small newspapers, we also  feel strongly that it should not be at the expense of the working journalists.   The same applies, in our view, to  newspapers started for political, religious or any other propaganda." The  reason  for grouping all the constituent units  of  the same  group or chain in the same class in which  they  would fall  on the basis of the total gross income of  the  entire establishment was given by the chairman as under:- " One of the difficult tasks before us was to fix the  wages of  Journalists  working in newspapers which  have  recently come to exist in our country.  All the 69 accounts of the constituent units in the same group or chain are  merged together with the result that the losses of  the weaker  units are borne from the high income  of  prosperous units.   There  is considerable disparity in  the  wages  of journalists  doing  the  same kind of work  in  the  various constituent units situated in different centres.  The  Press Commission  has  strongly  criticised the  methods  of  such chains   and  groups  and  their  adverse  effects  on   the employees.   We  have decided to group all  the  constituent units of the same group or chain in the same class in  which they  would fall on the basis of the total gross  income  of the entire establishment.  We are conscious that as a result of this decision, some of the journalists in the weak  units of  the  same group or chain may get much  more  than  those working  in  its  highest income  units.   If  however,  our principle  is good and scientific, the inevitable result  of its  application  should be judged from the  stand-point  of Indian Journalism as a whole and not on the burden it  casts on a particular establishment.  It may be added that in  our view, the principle on which we have proceeded is one of the main steps to give effect to the views expressed by the The   chairman  then  referred  to  the  points  which   the representatives  of the newspaper employers had urged as  to the -burden which might be cast as a result of the decisions and expressed himself as under: "  I  sympathise with their view point and  in  my  opinion, looking  to all the circumstances, especially the fact  that this  is  the  first  attempt to  fix  rates  of  wages  for journalists,  it is probable that some anomalies may  result from   the  implementation  of  our  decisions.    We   are, therefore, averse to imposing a wage schedule of all classes of  newspapers on a permanent basis.  It is, thus  important

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that the wage rates fixed by us should be open to review and revision  in the light of experience gained within a  period of 3 to 5 years.  This becomes necessary especially in  view of  the fact that the data available to us have not been  as complete  as  we  would have wished them  to  be,  and  also because it is difficult for us at this stage to 70 work  out  with any degree of precision,  the  economic  and other effects of our decisions on the newspaper industry  as a whole." The  chairman suggested as a palliative the creation by  the Government    of   India   immediately   of   a    standsing administrative machinery "which could also combine in itself the   functions  of  implementing  and   administering   our decisions  and that of preparing the ground for  the  review and  revision envisaged after 3 to 5 years.  This  machinery should  collect  from all newspaper  establishments  in  the country  on systematic basis detailed information  and  data such  as  those  on employment, wage  rates,  and  earnings, financial condition of papers, figures of circulation, etc., which  may be required for the assessment of the effects  of our decisions at the time of the review." The  above decision of the Wage Board was published  by  the Central  Government  in the Gazette of  India  Extraordinary dated  May  11, 1957.  The Commissioner of  Labour,  Madras, issued  a  circular  on  May  30,  1957,  calling  upon  the managements of all newspaper establishments in the State  to send  to him the report of the gross 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  June  10,  1957.   Writ Petition  No.  91 of 1957 was thereupon filed  on  June  13, 1957, by the Express Newspapers (Private) Ltd., against  the Union of India & others and this petition was followed up by similar  petitions  filed on August 9, 1957,  by  the  Press Trust  of  India  Ltd., the Indian National  Press  (Bombay) Private Ltd., and the Saurashtra Trust, being Petitions Nos. 99, 100, and 101 of 1957 respectively.  The Hindustan  Times Ltd.,  New  Delhi  filed  on  August  23,  1957,  a  similar petition,  being  Petition No. 103 of 1957, and  three  more petitions,  being Petitions Nos. 116, 117 and 118  of  1957, were filed by the Loksatta Karyalaya, Baroda, Sandesh  Ltd.’ Ahmedabad and Jan Satta Karyalaya, Ahmedabad,  respectively, on September 18, 1957. The  Express Newspapers (Private) Ltd., the  petitioners  in Petition No. 91 of 1957, otherwise termed 71 the  "  Express  Group  ", are  the  biggest  chain  in  the newspaper world in India.  They publish (i) Indian  Express, an  English Daily, from Madras, Bombay, Delhi  and  Madurai, (ii) Sunday Standard, an English Weekly, from three centres- Madras, Bombay and Delhi, (iii) Dinmani, a Tamil Daily  from Madras and Madurai, (iv) Dinmani Kadir, a Tamil Weekly  from Madras,   (v)  Lokasatta,  a  Maratha  Daily,   and   Sunday Lokasatta,  a Maratha Weekly, from Bombay, (vi)  Screen,  an English Weekly from Bombay and (vii) Andhra Prabha, a Telugu Daily  and Weekly.  The total number of working  journalists employed  by them are 331, out of whom there are  123  proof readers,  as against 1570 who form the other members of  the staff.  The present emoluments of the working journalists in their employ amount to Rs. 9,77,892, whereas if the decision of  the Wage Board were given effect to they would go up  to Rs.  15,21,282-12  thus  increasing the  wage  bill  of  the working journalists annually by Rs. 5,43,390-12.  They would also   have   to   pay   remuneration   to   the   part-time

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correspondents  on the basis of retainer as well as  payment for  news  items  on column basis.  That  would  involve  an additional  burden  of  about  Rs.  1  lakh  a  year.    The retrospective  operation of the Wage Board’s  decision  with effect from May 2, 1956, in their case would further involve a  payment  of  Rs. 5,16,337-20.  This would  be  the  extra burden  not taking account the liability for  past  gratuity and  the recurring gratuity as awarded under the  provisions of the Act and also the increased burden which would have to be borne by reason of the impact of the provisions in regard to  reduced  hours  of working,  increase  in  leave,  etc., provided  therein.  If, moreover, the members of  the  staff who   are  not  included  in  the  definition   of   working journalists  made  similar  demands  for  increasing   their emoluments  and bettering their conditions of  service  then there  would be an additional burden which is  estimated  at Rs. 9,92,443-68. The  Press Trust of India Ltd., the petitioners in  Petition No.  99  of  1957,  are  a  non-profit  making   cooperative organization of newspaper proprietors.  They 72 employ  820  employees in all, out of whom 170  are  working journalists  and  650 do not come  within  that  definition. Their   total   wage  bill  is  Rs.   21,00,000   per   year (approximately)  out  of  which the  annual  salary  of  the working journalists is Rs. 9,00,000.  The ,increase in their wage  bill  due  to increase in the salary  of  the  working journalists  as  per the decision of the. Wage  Board  would come  to Rs. 4,05,600 and they would have to pay by  way  of arrears  by  reason of the retrospective  operation  of  the decision  another  sum  of  Rs.  4,05,600  to  the   working journalists.   There would also be an  additional  financial burden  of Rs. 60,000 every year by reason of the  recurring increments   in   the  monthly  salaries  of   the   working journalists  employed by them.  If the benefits of the  Wage Board  decision  were extended to the other members  of  the staff who are not working journalists within the  definition of that term but who have also made similar demands on them, a further annual burden would be imposed on the  petitioners which  is  estimated  at Rs.  3,90,000.   If  perchance  the petitioners not being able to run their concern except at  a loss intended to close down the same, the amount which  they would have to pay to the working journalists under the  pro- visions of the Act and the decision of the Wage Board  would be  Rs. 23,68,500 as against the old scale liability of  Rs. 11,62,500 and the other members of the staff who do not fall within the category of working journalists would have to  be paid a further sum of Rs. 15,50,000.  The total liability of the  petitioners  in  such  an event  would  amount  to  Rs. 39,18,000 as against the old liability of Rs. 27,12,500. The  Indian National Press (Bombay) Private Ltd.,  otherwise known  as the Free Press Group, are petitioners in  Petition No.  100  of 1957.  They publish (i) Free Press  Journal,  a morning  English Daily (ii) Free Press Bulletin, an  evening English  Daily  (iii) Bharat Jyoti, an English  Weekly  (iv) Janashakti, a morning Gujarati Daily and (v) Navashakthi,  a Marathi  Dailyall  from Bombay.  They employ  442  employees including  part-time  correspondents  out  of  whom  65  are working journalists and 21 are proof readers and the 73 rest form members of the other staff not falling within  the category of working journalists.  The effect of the decision of  the Wage Board would be that there would have to  be  an immediate   payment  of  Rs.  1,73,811  by  reason  of   the retrospective operation of the decision and there will  also

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be an annual ’increase in the wage bill to the same  extent, i. e., Rs. 1,73,811.  There will also be a yearly  recurring increase to the extent of Rs. 22,470 and also  corresponding increase  for contribution to the provident fund on  account of  increase in salary.  Under the provisions of the Act  in regard  to  reduced hours of work, and  increase  in  leave, moreover, there will be an increase in liability to pay  Rs. 90,669  and Rs. 29,806 respectively, in the case of  working journalists,  besides  the liability for  past  gratuity  in another  sum of Rs. 1,08,534 and recurring annual  liability for  gratuity in a sum of Rs. 17,995.  If  similar  benefits would have to be given to the other members of the staff who do not fall within the definition of working journalists the annual  burden would be increased by a sum of Rs.  1,80,000. This  would  be the position by reason  of  the  petitioners being  classified and treated as a chain of  newspapers  and having   been   classified  as  "  A   "   class   newspaper establishment on a total computation of the gross revenue of all  their  units.   If they were not  so  treated  and  the component  units were classified on their  individual  gross revenue the result would be that the Free Press Journal, the Free  Press Bulletin and the Bharat Jyoti would fall  within class  " A ", and Navashakti would fall within class "  C  " and  Janashakti would fall within class "D" thus  minimising the burden imposed upon them by the impact of the Wage Board decision. The Saurashtra Trust, the petitioners in Petition No. 101 of 1957,  are another chain of newspapers and they publish  (i) Janmabhoomi,  a Gujrati Daily from Bombay, (ii)  Janmabhoomi and Pravasi, a Gujrati Weekly from Bombay, (iii) Lokmanya, a Marathi  Daily  from Bombay, (iv) Vyapar, a  Gujrati  Weekly commercial paper from Bombay, (v) Fulchhab, a Gujrati  Daily from Rajkot, (vi) Pratap, a Gujrati 10 74 Daily from Surat, (vii) Cuttccha Mitra, a Gujrati Daily from Bhuj  (Cutch) and, (viii) Nav Bharat, a Gujrati  Daily  from Baroda.   They  employ  445 employees out  of  whom  60  are working  journalists  and  12, proof readers  and  the  rest belong to the other members of the staff.  The effect of the Wage  Board  decision on them would be to impose on  them  a burden  of  Rs.  1,59,528 by  reason  of  the  retrospective operation of the decision and an annual increase in the wage bill of Rs. 1,59,528 for the first year and an annual recur- ring  increase of Rs. 22,000.  The operation of ss. 6 and  7 of the Act in regard to reduced hours of work and  provision for increased leave would impose an additional burden of Rs. 42,000  per year.  The liability for pastgratuity  would  be Rs.  93,376  and the recurring annual increase  in  gratuity would be Rs. 11,000.  If similar benefits were also given to the  other  members  of  the  staff  who  were  not  working journalists the annual burden will increase by Rs. 5,18,964, by  reason  of their classification as "A"  class  newspaper establishment on a chain basis, all the component units have got  to be treated as "A" class newspapers, whereas if  they were  classified  on a computation of the gross  revenue  of their component units Vyapar would fall within Class "B" the Janmabhoomi and Lokmanya would fall within Class "C" and the Cutccha  Mitra, Fulchhab and Pratap would fall within  Class "E".   The inequity of this measure is, moreover, sought  to be  augmented  by  their  pointing  out  that  whereas   the Janmabhoomi  from Bombay is placed in the "A" Class,  Bombay Samachar  (Bombay),  a morning Gujrati  Daily  from  Bombay, which has a larger gross revenue than Janmabhoomi taken as a single unit is placed in Class B. Similarly, the Pratap from

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Surat  is placed in Class A, whereas the Gujrat  Mitra  from Surat  which has a larger gross revenue than the  Pratap  is placed  in Class "B" because of its being treated as a  unit by  itself; and the Fulchhab from Rajkot is also  placed  in Class  "A",  whereas the Jaihind from Rajkot,  which  has  a larger  gross revenue than the Fulchhab, is placed in  Class "C" for an identical reason.  The total cost of closing down the concern, if perchance 75 the  petitioners  have  to  so close  down  owing  to  their inability  to  carry on the business except at  a  loss,  is worked  out at Rs. 6,13,921 for the working  journalists  as against  the old basis of Rs. 1,00,890.  The figure for  the rest  of  the  staff  who are  not  working  journalists  is computed at Rs. 3,08,112 with the result that the total cost of closing down on the new basis under the provisions of the Act and the decision of the Wage Board would be Rs. 9,22,033 as  against  what  otherwise would have been a  sum  of  Rs. 4,09,002. The  Hindustan  Times Ltd., New Delhi,  the  petitioners  in Petition  No. 103 of 1957, otherwise called  "the  Hindustan Times  Group",  publish  (i)  Hindustan  Times,  an  English (morning)  Daily,  (ii) Hindustan Times  (Evening  News)  an English (evening) Daily, (iii) Overseas Hindustan Times,  an English  Weekly,  (iv)  Hindustan, a Hindi  Daily,  and  (v) Saptahik  Hindustan,  a Hindi Weekly-all from  Delhi.   They employ  a total number of 695 employees out of whom  79  are working  journalists,  14 are proof readers  and  the  rest, viz., 602 are other members of the staff.  The wages paid to the working journalists absorb about one-third of the  total wage  bill as against 602 other members of the  staff  whose wage  bill  constitutes the remaining  two-thirds.   If  the decision   of  the  Wage  Board  is  given  effect  to   the petitioners  would be subjected to the following  additional liabilities  in respect of working journalists alone  :  (i) Increase in the annual wage bill Rs. 2,16,000 (Approx.) (ii) Arrears of payments from May 2, 1956, to April 30,1957,  Rs. 1,89,000  (iii) Past liability in respect of gratuity as  on March 31, 1957, Rs. 2,65,000 (iv) Recurring annual liability of  gratuity Rs. 28,000.  The total liability thus comes  to Rs.  6,98,000.  The above figures do not  include  increased liability  on  account  of  the  petitioners’   contribution towards provident fund, leave rules and payment to part-time correspondents.   There  would also be a  further  recurring increase in the wage bill by reason of the increments  which would have to be given to the various categories of  working journalists  on the scales of wages prescribed by  the  Wage Board.   If other members of the staff (who are not  working journalists") were to be considered for 76 increase in their emoluments, etc., there will be a  further burden on the petitioners computed as under: (a)Increase in the annual wage bill, Rs. 5,02,000 (Approx.), (b) arrears of payments from May 2, 1956, to April 30, 1957, Rs.  4,51,000  (Approx.), (c) Past liability in  respect  of gratuity  as on March 31, 1957, Rs. 5,50,000 (Approx.),  (d) Recurring   annual   liability  for  gratuity   Rs.   60,000 (Approx.). The total comes to Rs. 15,63,000. The petitioners in Petition No. 116 of 1957 are the Loksatta Karyalaya,  Baroda, which publish the Loksatta,  a  Gujarati Daily from Baroda.  They employ 15 working journalists.  The annual  wage  bill of working journalists would have  to  be increased by reason of the decision of the Wage Board by Rs. 10,800;  the  burden of payment of  retrospective  liability being Rs. 9,600.  Moreover, there will be a recurring annual

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burden of Rs. 6,340 inclusive of the expenditure involved by reason  of  the  provisions  as  to  (i)  Notice  pay,  (ii) Gratuity,  (iii)  Retrenchment compensation and  (iv)  Extra burden of reduced hours of work and increased leave. The  Sandesh  Ltd., the petitioners in Petition No.  117  of 1957,  otherwise  styled,  the Sandesh  Group,  Ahmeda  bad, publish  (i) Sandesh, a morning Gujarati Daily, (ii)  Sevak, an  evening  Gujarati Daily, (iii) Bal Sandesh,  a  Gujarati Weekly,  and  (iv)  Aram,  and  (v)  Sat  Sandesh,  Gujarati Monthlies-all from Ahmedabad.  They employ a total staff  of 205 employees out of whom there are 11 working  journalists, 7  proof  readers  and the rest  187  constitute  the  other members of the staff.  The increase in the wage bill of  the working journalists under the provisions of the Act would be Rs.  24,807  per year besides a similar  liability  for  Rs. 24,807  by  reason  of the retrospective  operation  of  the decision.   There will be an increase in expenditure to  the tune  of Rs. 30,900 by reason of the reduced  working  hours and  increase in leave and holidays, a liability of Rs.  31, 597  for  past  gratuity  and  Rs.  24,807  every  year  for recurring gratuity as also Rs. 1,530 for recurring  increase in  wages of the working journalists.  The financial  burden in the case of proof-readers who 77 are included in the definition of working journalists tinder the  terms  of  the Act would be Rs.  5,724  per  year.   If similar  benefits were to be given to the other  members  of the  staff  who  are  not  working  journalists  the  annual increase  in  the burden will be Rs.  1,89,816.   The  total costs   of  closing  down  if  such  an  eventuality’   were contemplated   would  be  Rs.  1,08,997  for   the   working journalists only as against a liability of Rs. 22,755 on the old basis.  The other members of the staff would have to  be paid  Rs.  1,46,351 and the total cost of closing  down  the whole concern would thus conic to Rs. 2,55,349 under the new dispensation as against Rs. 1,69,106 as of old. The  Jansatta Karyalaya, Ahmedabad, petitioners in  Petition No. 118 of 1957 bring out (i) Jansatta, a Gujarati Daily and (ii) Chandni a Gujarati Monthly from Ahmedabad.  They employ 15 working journalists, 6 proof-readers and 87 other members of  the staff thus making a total number of  108  employees. The  increase  in the wage-bill of the  working  journalists would  come to Rs. 29,808.  The liability for past  gratuity would  be Rs. 6,624 and the recurring annual gratuity  would be  Rs.  2,303 and the annual recurring  increase  in  wages would  come to Rs. 2,280.  The financial burden in  case  of proof-readers  would  be  Rs.  6,480 per  year  as  per  the decision  of the Wage Board.  If similar benefits had to  be given to the other members of the staff who are  non-working journalists  the annual burden will increase by Rs.  48,720. The  total cost of closing down, if such a contingency  ever arose,  would come to Rs. 1,00,798 under the  provisions  of the Act and the Wage Board decision as against Rs. 45,206 on the old basis. All  these  petitions filed by the  several  petitioners  as above followed a common pattern.  After succinctly  reciting the  history of the events narrated above which led  to  the enactment  of the impugned Act and the decision of the  Wage Board, they challenged the vires of the Act and the decision of  the Wage Board.  The vires of the Act was challenged  on the ground that the provisions thereof were violative of the fundamental rights guaranteed by the Constitution under Art. 19(1)(a), 78 Art. 19(1)(g), and Art. 14 ; but in the course of the  argu-

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ments  before  us another Article, viz., Art.  32  was  also added as having been infringed by the Act.  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 Wage  Board  in their  minute  of dissent above referred to.   It  was  also contended  that the implementation of the decision would  be beyond  the capacity of the petitioners and would result  in their  titter collapse.  The reply made by  the  respondents was  that  none of the fundamental rights  guaranteed  under Art.  19(1)(a), Art. 19(1)(g), Art. 14 and/or Art.  32  were infringed  by  the impugned Act, that the functions  of  the Wage Board were not judicial or quasijudicial in  character, that  the fixation of the rates of wages was  a  legislative act  and not a judicial one, that the decision of  the  Wage Board  bad been arrived at after taking  into  consideration all the criteria for fixation of wages under s. 9(1) of  the Act and the material as well as the evidence led before  it, that a considerable portion of the decisions recorded by the Wage Board were unanimous, that the Wage Board had the power and  authority also to fix the scales of wages and  to  give retrospective  operation  to  its  decision,  and  that  the financial  position  of the petitioners was not such  as  to lead  to  their collapse as a result of the  impact  of  the provisions of the impugned Act and the decision of the  Wage Board. The  petitioners in Petitions Nos. 91 of’ 1957, 99 of  1957, 100  of  1957,  101  of 1957 and  103  of  1957  also  filed petitions  for special leave to appeal against the  decision of  the Wage Board being Petitions Nos. 323, 346,  347,  348 and  359  of 1957 respectively and this  Court  granted  the special  leave in all these petitions under Art. 136 of  the Constitution subject to the question of the  maintainability of the appeals being open to be urged at the hearing.  Civil Appeals  arising out of these special leave  petitions  were ordered to be placed along with the Writ Petitions aforesaid for hearing and final disposal and Civil Appeals Nos. 699 of 1957, 700 of 1957, 701 of 1957, 702 of 1957 and 703 of 1957 79 arising  therefrom  thus  came  up  for  hearing  and  final disposal before us along with the Writ Petitions under  Art. 32  mentioned  above.  We took up the hearing  of  the  Writ Petitions  first  as they were more comprehensive  in  scope than  the Civil Appeals filed by the respective parties  and heard  counsel  at  considerable  length  on  the  questions arising for our determination therein. Before  we  discuss the vires of the impugned  Act  and  the decision  of the Wage Board, it will be appropriate at  this juncture  to clear the ground by considering the  principles of wage fixation and the machinery employed for the  purpose in  various  countries.  Broadly speaking  wages  have  been classified into three categories, viz., (1) the living wage, (2) the fair wage and (3) the minimum wage. The concept of the living wage: "The  concept  of the living wage which has  influenced  the fixation   of  wages,  statutorily  or  otherwise,  in   all economically   advanced  countries  is  an  old  and   well- established one, but most of the current definitions are  of recent origin.  The most expressive definition of the living wage   is  that  of  Justice  Higgins  of   the   Australian Commonwealth  Court of Conciliation in the  Harvester  case. He  defined  the living wage as one appropriate  for  "  the normal  needs of the average employee, regarded as  a  human being  living  in a civilized community ".  Justice  Higgins

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has,  at  other  places, explained what  he  meant  by  this cryptic  pronouncement.   The living wage must  provide  not merely  for  absolute essentials such as food,  shelter  and clothing  but for " a condition of frugal comfort  estimated by current human standards." He explained himself further by saying that it was a wage " sufficient to insure the workmen food,  shelter, clothing frugal comfort, provision for  evil days,  etc., as well as regard for the special skill  of  an artisan  if  he is one ". In a subsequent case  he  observed that  " treating marriage as the usual fate of adult men,  a wage  which does not allow of the matrimonial condition  and the maintenance of about five persons in a home would not be treated   as  a  living  wage".   According  to  the   South Australian Act of 1912, the living wage means " a sum 80 sufficient  for  the  normal and  reasonable  needs  of  the average  employee  living  in a locality  where  work  under consideration  is  done or is to be  done."  The  Queensland Industrial  Conciliation and Arbitration Act  provides  that the  basic wage paid to an adult male employee shall not  be less  than  is  " sufficient to  maintain  a  well-conducted employee of average health, strength and competence and  his wife  and a family of three children in a fair  and  average standard  of  comfort, having regard to  the  conditions  of living prevailing among employees in the calling in  respect of  which  such basic wage is fixed, and  provided  that  in fixing such basic wage the earnings of the children or  wife of  such  employee shall not be taken into account ".  In  a Tentative  Budget Inquiry conducted in the United States  of America  in  1919 the Commissioner of the Bureau  of  Labour Statistics  analysed  the budgets with  reference  to  three concepts, viz., (i)  the pauper and poverty level, (ii) the minimum of subsistence level, and, (iii)     the  minimum  of  health  and  comfort   level,and adopted  the last for the determination of the living  wage. The Royal Commission on the Basic Wage for the  Commonwealth of  Australia approved of this course and proceeded  through norms and budget enquiries to ascertain what the minimum  of health  and comfort level should be.  The commission  quoted with  approval the description of the minimum of health  and comfort level in the following terms: "  This  represents  a slightly higher level  than  that  of subsistence,  providing not only for the material  needs  of food,  shelter,  and body covering   but  also  for  certain comforts,  such as clothing sufficient for  bodily  comfort, and  to  maintain the wearer’s instinct of  selfrespect  and decency,   some   insurance  against  the   more   important misfortunes-death,  disability and fire--good education  for the children, some amusement, and some expenditure for self- development." Writing  practically  in  the  same  language,  the   United Provinces  Labour  Enquiry  Committee  classified  level  of living standard in four categories, viz., (i)  the poverty level,81 (ii) the minimum subsistence level, (iii)the subsistence plus level and (iv) the comfort level, and  chose the subsistence plus. level as the basis of  what it  called  the "minimum living wage".  The  Bombay  Textile Labour  Inquiry Committee, 1937, considered the living  wage standard  at  considerable length and, while  accepting  the concept  of the living wage as described above, observed  as follows: "....... what we have to attempt is not an exact measurement

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of a well-defined concept.  Any definition of a standard  of living is necessarily descriptive rather than logical.   Any minimum,   after  all,  is  arbitrary  and   relative.    No completely objective and absolute meaning can be attached to a  term  like  the  living  wage  standard  "  and  it   has necessarily  to be judged in the light of the  circumstances of the particular time and country." The  Committee then proceeded through the use of  norms  and standard budgets to lay down what the basic wage should  be, so that it might approximate to the living, wage standard  " in the light of the circumstances of the particular time and country." The Minimum Wage-Fixing Machinery published by the 1. L.  O. has summarised these views as follows: "  In  different countries estimates have been made  of  the amount of a living wage, but the estimates vary according to the  point  of view of the investigator.  Estimates  may  be classified into at least three groups: (1)  the amount necessary for mere subsistence, (2)  the amount necessary for health and decency,and (3)  the amount necessary to provide a standard of comfort." It  will  be seen from this summary of the concepts  of  the living wage held in various parts of the world that there is general argument that the living wage should enable the male earlier to provide for himself and his family not merely the bare essentials of food, clothing and shelter but a  measure of  frugal  comfort including education  for  the  children, protection against ill-health, 11 82 requirements  of  essential social needs, and a  measure  of insurance  against the more important misfortunes  including old age.  " (1) Article  43 of our Constitution has also adopted as  one  of the Directive Principles of State Policy that: The State shall endeavour to secure, by suitable legislation or  economic  Organisation  or  in any  other  way,  to  all workers,  agricultural,  industrial or  otherwise,  work,  a living  wage, conditions of work ensuring a decent  standard of  life  and  full  enjoyment of  leisure  and  social  and cultural opportunities................" This  is the ideal to which our social welfare State has  to approximate   in  an  attempt  to  ameliorate   the   living conditions of the workers. The concept of the minimum wage: "  The  International  Convention  of  1928  prescribes  the setting up of minimum wage-fixing machinery in industries in which  " no arrangements exist for the effective  regulation of wages by collective agreement or otherwise and wages  are exceptionally low"............ " As a rule, though the living wage is the target, it has to be   tempered,   even  in  advanced  countries,   by   other considerations,  particularly the general level of wages  in other industries and the capacity of industry to pay.   This view has been accepted by the Bombay Textile Labour  Inquiry Committee which says that " the living wage basis affords an absolute  external  standard for the  determination  of  the minimum " and that " where a living wage criterion has  been used in the giving of ail award or the fixing of a wage, the decision has always been tempered by other considerations of a practical character." " In India, however, the level of the national income is  so low  at  present  that it is  generally  accepted  that  the country  cannot  afford to prescribe by law a  minimum  wage which would correspond to the concept of the living wage  as

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described in the preceding paragraphs.  What then should  be the  level  of minimum wage which call be sustained  by  the present stage of the country’s economy?  Most employers  and some. (1)  Report  of the Committee on Fair Wagss (1947 to  1949), pp- 5-7,paras. 6&  7. 83 Provincial Governments consider that the minimum wage can at present be only a bare subsistence wage.  In fact, even  one important All-India Organisation of employees has  suggested that  " a minimum wage is that wage which is  sufficient  to cover  the bare physical needs of a worker and his  family." Many  others,’;  however.......... consider that  a  minimum wage   should   also  provide  for  some   other   essential requirements  such  as  a  minimum  of  education,   medical facilities and other amenities.  We consider that a  minimum wage must provide not merely for the bare sustenance of life but  for the preservation of the efficiency of  the  worker. For  this  purpose, the minimum wage must also  provide  for some   measure  of  education,  medical  requirements,   and amenities. This  is the concept of the " minimum wage " adopted by  the Committee  on Fair Wages.  There are however  variations  of that concept and a distinction has been drawn, for instance, in Australian industrial terminology between the basic  wage and the minimum wage.- "  The  basic  wage there approximates  to  a  bare  minimum subsistence  wage  and no normal adult male  covered  by  an award  is  permitted to work a full standard hours  week  at less  than the assessed basic wage rate.  The basic wage  is expressed  as  the  minimum  at  which  normal  adult   male unskilled  workers may legally be employed,  differing  from the  amounts  fixed as legal minima for  skilled  and  semi- skilled   workers,   piece  workers   and   casual   workers respectively...................................... The  minimum wage is the lowest rate at which members  of  a specified grade of workers may legally be employed.  " (2) There  is also a distinction between a bare  subsistence  or minimum wage and a statutory minimum wage.  The former is  a wage  which would be sufficient to cover the  bare  physical needs of a worker and his family, that is, a rate which  has got to be paid to the worker irrespective of the capacity of the industry to (i)  Report of the Committee on Fair Wages, PP. 7-9,  paras, 8-10. (2)  O.D.R.  Feenander  Industrial Regulation  in  Australia (1947), Ch.  XVII, P. 155. 84 pay.   If  an industry is unable to pay to  its  workmen  at least a bare minimum wage it has no right to exist.  As  was observed  by us in Messrs.  Crown Aluminium Works  v.  Their Workmen (1): " It is quite likely that in underdeveloped countries, where unemployment  prevails  on a very  arge  scale,  unorganised labour  may  be  available  on  starvation  wages,  but  the employment   of  labour  on  Starvation  wages   cannot   be encouraged or favored in a modern democratic welfare  state. If  an  employer  cannot  maintain  his  enterprise  without cutting  down the wages of his employees below even a  bar(, subsistence  or  minimum  wage, he would have  no  right  to conduct his enterprise on such terms." The  statutory minimum wage however is the minimum which  is prescribed by the statute and it may be higher than the bare

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subsistence  or minimum wage, providing for some measure  of education,   medical   requirements   and   amenities,    as contemplated  above. (Cf. also the connotation of "  minimum rate  of wages " in s. 4 of the Minimum Wages Act, 1948  (XI of 1948)). The concept of the fair wage: " The payment of fair wages to labour is one of the cardinal recommendations      of      the      Industrial       Truce Resolution..................  Marshall  would  consider  the rate of wages prevailing in an occupation as " fair " if  it is  " about on level with the average payment for. tasks  in other   trades   which   are   of   equal   difficulty   and disagreeableness,   which  require  equally   rare   natural abilities  and  an equally expensive training."  Prof  Pigou would apply two degrees of fairness in judging a wage  rate, viz.,  "fair in the narrower sense" and " fair in the  wider sense  ".  A  wage rate, in his opinion,  is  "fair  in  the narrower  sense"  when it is equal to the rate  current  for similar workmen in the same trade and neighborhood and "fair in the wider sense" when it is equal to the predominant rate for   similar  work  throughout  the  country  and  in   the generality of trades.  " " The Indian National Trade Union Congress...... (1)  [1958] S.C.R 651. 85 agreements,  arbitrators, and adjudicators could at best  be treated,  like the minimum wage, as the starting  point  and that  wherever the capacity of an industry to pay  a  higher wage is established, such a higher wage should be deemed  to be the fair wage.  The minimum a wage should have no  regard to  the capacity of an industry to pay and should  be  based solely on the requirements of the worker and his family.   " A  fair  wages " is, in the opinion of the  Indian  National Trade  Union  Congress,  " a step  towards  the  progressive realization of a living wage ". Several employers while they are  inclined  to  the view that fair wages  would,  in  the initial  stages,  be closely related to current  wages,  are prepared  to agree that the prevailing rates could  suitably be enhanced according to the capacity of an industry to  pay and that the fair" age would in time progressively  approach the  living  wage.   It  is necessary  to  quote  one  other opinion,  viz., that of the Government of Bombay, which  has had   considerable   experience  in  the  matter   of   wage regulation.  The opinion of that Government is as follows: " Nothing short of a living wage can be a fair wage if under competitive  conditions  an  industry can  be  shown  to  be capable  of  paying a full living wage.   The  minimum  wage standards set up the irreducible level, the lowest limit  or the floor below which no workers shall be paid............ A fair wage is settled above the minimum wage and goes through the process of approximating towards a living wage.  " While the lower limit of the fair wage must obviously be the minimum  wage,  the upper limit is equally set by  what  may broadly  be  called the capacity of industry to  pay.   This will depend not only on the present economic position of the industry  but  on its future prospects.  Between  these  two limits the actual ",-ages will depend on a consideration  of the following factors and in the light of the comments given below: (i)  the productivity of labour; (ii) the prevailing rates of wages in the same or 86 similar occupations in the same or neighbouring localities; (iii)     the   level  of  the  national  income   and   its distribution ;and

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(iv) the place of the industry in the economy of the country...............    (1). It  will  be noticed that the " fair wage " is thus  a  mean between  the living wage and the minimum wage and  even  the minimum  wage contemplated above is something more than  the bare  minimum or subsistence wage which would be  sufficient to  cover  the  bare physical needs of the  worker  and  his family, a wage which would provide also for the preservation of  the  efficiency of the worker and for  some  measure  of education, medical requirements and amenities. This concept of minimum wage is in harmony with the  advance of  thought in all civilised countries and  approximates  to the statutory minimum wage which the State should strive  to achieve  having regard to the Directive Principle  of  State Policy mentioned above. The  enactment  of the Minimum Wages Act, 1948,  affords  an illustration  of an attempt to provide a statutory  minimum. wage.  It was an Act to provide for fixing minimum rates  of wages in certain employments and the appropriate  Government was  thereby  empowered to fix different  minimum  rates  of wages   for  (i)  different  scheduled   employments;   (ii) different classes of work in the same scheduled  employment; (iii)  adult-,, adolescents, children and  apprentices;  and (iv)  different  localities; and (v) such minimum  rates  of wages  could  be  fixed by the hour, by the day  or  by  any larger period as may be prescribed It will also be noticed that the content of the  expressions minimum wage fair wage " and " living wage is not fixed  and static.   It varies and is bound to vary from time to  time. With the growth and Development of national economy,  living standards  Would improve and so would our notions about  the respective   categories   of  wages  expand  and   be   more progressive. (1)  Report  of  the Committee on Fair Wages, PP.  4,  9-11, paras, 11-15. 87 It must however be remembered that whereas the bare  minimum or  subsistence wage would have to be fixed irrespective  of the  capacity of the industry to pay, the minimum wagg  thus contemplated postulates the capacity of the industry to  pay and no fixation of wages which ignores this essential factor of  the  capacity  of  the industry to  pav  could  ever  be supported. Fixation of Scales of Wages:- A  question  arises as to whether the fixation of  rates  of wages  would also include the fixation of scales  of  wages. The  rates  of wages and scales of wages are  two  different expressions with two different connotations.  " Wages " have been defined in the Industrial Disputes Act, 1947, to mean "all remuneration capable of being expressed in, terms of money, which would, if the terms of employment,   express or implied, were fulfilled, be payable to a workman in  respect of his employment or of work done in such employment." Similar  definition  of  " wages " is to  be  found  in  the Minimum Wages Act, 1948, also.  They would therefore include all payments made from time to time to a workman during  the course of his employment as such and not merely the starting amount  of  wages at the beginning of his  employment.   The dictionary  meaning  of  the  term  in  the  Concise  Oxford ]Dictionary is also the same, viz., " Amount paid periodically, especially by the day or week or month,  for  time  during which workman  or  servant  is  at employer’s disposal ". The  use of the word " rate " in the expression "  rates  of wages" has not the effect of limiting the connotation of the

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term.  "Rate" is described in the Concise Oxford  Dictionary as  "  a statement of numerial proportion prevailing  or  to prevail  between two sets of things either or both of  which may  be unspecified amount, etc., mentioned in one case  for -application  to  all  similar  ones,  standard  or  way  of reckoning  (measure of) value, etc." In Chambers’  Twentieth Century Dictionary its meaning is given as: estimated amount or value (Shakespeare), and also " amount 88 determined according to a rule or basis; a standard; a class or rank; manner or mode". "Rates of wages" therefore mean the manner, mode or standard of the payments of remuneration for work done whether at the start  or  in the subsequent stages.  Rates of  wages  would thus include the scales of wages and there is no  antithesis between   the,   two  expressions,  the   expression   being applicable both to the initial as well as subsequent amounts of wages.  It is true that in references made to  Industrial Tribunals fixing of scales of pay has been specifically men- tioned,  e.  g., in the Industrial dispute  between  certain banking  companies  and  their workers.   But  that  is  not sufficient  to  exclude the " scales of wages "  from  being comprised  within the larger connotation of  the  expression "rates  of wages " which is capable of including the  scales of  wages also within its ambit.  Even without the  specific mention  of the scales of wages it would be open to fix  the same  in  an inquiry directed towards the  fixation  of  the rates of wages. It  is  also true that Industrial Tribunals have  laid  down that the increments of wages or scales of remuneration could only  be  fixed  having due regard to the  capacity  of  the industry  to pay.  In the case of the Britannia  Building  & Iron Co. Ltd.(1): "  As  time scales increase the wage bill  year  after  year which  is reflected in the cost of production,  such  Scales should  not, in our opinion, be forced upon the employer  of industrial labour unless it is established that the employer has  the present capacity to pay and its financial  capacity can be counted upon in future.  Thus, both financial ability and stability are requisite conditions." Similar observations were made in the case of the Union Drug Co. Ltd.(1): "   For  before  incremental  scales  can  be   imposed   by adjudication, it is essential to see whether employer  would be able to bear its burden.  The financial condition of  the Company  must be such as to lead to the conclusion  that  it would  be  able to pay the increments year by  year  for  an appreciable number of (1) (1954] 1 L. L. J. 651, 654. (2) [1954] 1 L.L.J. 766, 767. 89 years, for wage scales when settled are intended to be  long term- schemes." This  consideration however of the capacity of the  industry to  pay does not militate against the  construction  adopted above that rates of wages do comprise within their scope the scales  of  wages  also and it therefore  follows  that  the fixation  of rates of wages would also include the  fixation of scales of wages.  As a matter of fact, the provisions  in regard to the statutory minimum wages in Queensland, Western Australia, and Tasmania prescribe scales of wages which  are graduated according to age and experience. The  capacity of the industry to pay being thus one  of  the essential  ingredients  in  the fixation  of  wages,  it  is relevant to consider the different methods of measuring such

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capacity. The capacity of the industry to pay: The  capacity  of  industry to pay can  mean  one  of  three things, viz : (i)the   capacity   of  a   particular   unit   (marginal, representative or average) to pay, (ii)the capacity of a particular industry as a whole to  pay or (iii)the capacity of all industries in the country to pay. " Ideas on this subject have varied from country to country. In  New  Zealand  and  Australia, the  capacity  to  pay  is calculated  with reference to all industries in the  country and   no   special  concessions  are  shown   to   depressed industries.   In Australia the Arbitration Court  considered that  " in view of the absence of clear means  of  measuring the  general  wage-paying capacity of  total  industry,  the actual  wage upon which well-situated labourers were at  the time  maintaining the average family unit could  justifiably be  taken as the criterion of what industry  could  probably pay  to  all  labourers  ". This  is  at  best  a  secondary definition of capacity, for it could only serve to show that certain  industries or units could afford to pay as much  as certain others." The Bombay Textile Labour Inquiry Committee 12 90 came  to the conclusion that it was not possible  to  define the term "capacity to pay" in -a precise manner and observed as follows: "The  capacity to pay a wage cannot obviously be  determined merely  by the value of production. ,There is the  important question of determining the charges that have to be deducted before  arriving  at the amount that can be paid  in  wages. The  determination  of  each of a large  number  of  charges involves  difficulties,  both  theoretical  and   practical. Interest  charges,  remuneration  to  salaried  staffs   and managing  agents,  sales  commissions,  profits,  all  these cannot  for  any large organised industry be taken  as  pre- determined in a fixed manner.  Neither is it to be  expected that   representatives  of  Labour  would   accept   without challenge the current levels of expenditure on these  items- apart  from the consideration whether the industry has  been reasonably wellmanaged or not." " That Committee was, however, of the opinion that  capacity should   not  be  measured  in  terms  of   the   individual establishment  and that " the main criterion should  be  the profit  making  capacity  of  the  industry  in  the   whole province............................................ " In determining the capacity of an industry to pay it would be  wrong to take the capacity of a particular unit  or  the capacity  of  all industries in the country.   The  relevant criterion should be the capacity of a particular industry in a  specified region and, as far as possible, the same  wages should be prescribed for all units of that industry in  that region.   It  will obviously not be possible  for  the  wage fixing board to measure the capacity of each of the units of an  industry in a region and the only practicable method  is to take a fair cross-section of that industry."(1) It  is clear therefore that the capacity of an  industry  to pay  should be gauged on an industry-cum-region basis  after taking  a  fair cross-section of that industry. In  a  given case it may be even permissible to divide the industry  into appropriate  classes and then deal with the capacity of  the industry to pay classwise. (1)  Report  of  the  Committee on Fair  Wages,  pp.  13-15,

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paras. 21& 23. 91 As  regards the measure of the capacity again there are  two points of view in regard to the same: "  One  view is that the wage-fixing  machinery  should,  in determining the capacity of industry to pay, have regard to (i)  a   fair   return  on  capital  and   remuneration   to management; and (ii)a fair allocation to reserves and depreciation so as to keep the industry in a healthy condition. The  other  view is that the fair wage must be paid  at  any cost  and that industry must go on paying such wage as  long as it does not encroach on capital to pay that wage......... The  objective  is not merely to determine wages  which  are fair in the abstract, but to see that employment at existing levels  is not only maintained but, if possible,  increased. From this point of view, it will be clear that the level  of wages should enable the industry to maintain production with efficiency.   The  capacity  of  industry  to  pay   should, therefore,  be assessed in the light of this very  important consideration.  The wages board should also be charged  with the  duty  of  seeing  that fair  wages  so  fixed  for  any particular industry are not very much out of line with wages in other industries in that region.  Wide disparities  would inevitably  lead  to  movement  of  labour,  and  consequent industrial unrest not only in the industry concerned but  in other industries." (1) The  main  consideration  which  is  to  be  borne  in  mind therefore  is that the industry should be able  to  maintain production  with  efficiency and the  fixation  of  rates,of wages  should be such that there are no movements  from  one industry to another owing to wide disparities and employment at existing levels is not only maintained, but if  possible, increased. Different  tests  have  been  suggested  for  measuring  the capacity of the industry to pay: viz: (1)  The selling price of the product; (2)  The volume of the output; (3)  the profit and loss in the business; (1)  Report of the Committee on Fair Wages, p. 14, para. 24. 92 (4)  the  rates  which  have  been agreed  to  by  a,  large majority of the employers; (5)  the  amount of unemployment brought about or likely  to be  brought about by the imposition of the  increased  wage, etc. They  are however not quite satisfactory.  The real  measure of  the capacity of the industry to pay has been  thus  laid down in " Wage.-, & the State " by E.M. Burns at p. 387: "  It  would  be necessary to inquire inter  alia  into  the elasticity  of demand for the product, for on  this  depends the  extent to which employers could transfer the burden  of the increased wage to consumers.  It would also be necessary to  inquire  how far the enforced payment of a  higher  wage would  lead employers to tighten up Organisation and so  pay the higher wage without difficulty.               ................................ Similarly  it  frequently  happens  that  an  enhanced  wage increases  the  efficiency of the lowest paid  workers;  the resulting  increase  in production should be  considered  in conjunction with the elasticity of demand for the  commodity before the ability of a trade to pay can fairly be judged. Again  unless what the trade can bear be held to imply  that in  no circumstances should the existing rate of  profit  be reduced, there is no reason why attempts should not be  made

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to  discover  how far it is possible to force  employers  to bear  the burden of an increased rate without  driving  them out  of business.  This would involve an investigation  into the  elasticity  of  supply  of  capital  and   organization ability  in that particular trade, and thus an inquiry  into the rate of profits in other industries, the ease with which transferences might be made, the possibility of similar wage regulation extending to other trades, and the probability of the export of capital and organising ability etc." The principles which emerge from the above discussion are: (1)  that in the fixation of rates of wages which 93 include  within its compass the fixation of scales of  wages also,  the  capacity of the industry to pay is  one  of  the essential  circumstances  to  be  taken  into  consideration except  in cases of bare subsistence or minimum  wage  where the  employer is bound to pay the same irrespective of  such capacity; (2)  that  the  capacity  of the industry to pay  is  to  be considered  on an industry-cum-region basis after  taking  a fair cross section of the industry; and (3)  that the proper measure for gauging the capacity of the industry  to pay should take into account the elasticity  of demand for the product, the possibility of tightening up the Organisation  so  that the industry could pay  higher  wages without  difficulty and the possibility of increase  in  the efficiency of the lowest paid workers resulting in  increase in production considered in conjunction with the  elasticity of  demand  for the product-no doubt  against  the  ultimate background that the burden of the increased rate should  not be such as to drive the employer out of business. These  are the principles of fixation of rates of wages  and it falls now to be considered what is the machinery employed for such fixation. The machinery for fixations of wages: The  fixation  of  wages  may form  the  subject  matter  of reference to industrial tribunals or similar machinery under the  Labour Relations Law.  But this machinery  is  designed for  the  prevention and settlement of  industrial  disputes which  have  either  arisen  or  are  apprehended,  disputes relating to wages being one of such disputes.  The  ensuring of  an adequate wage is however a distinctive objective  and it  requires  the  setting up of some kind  of  wage  fixing board,  whether they be trade boards or general boards.   It is  seldom  that legislative enactments themselves  fix  the rates of wages, though a few such instances are known.  This method  of  regulation of wages has now become  obsolete  in view of its inflexibility.  " (1) "  The Constitution of Boards falls naturally into two  main groups.    On   the   one  hand,   there   are   those   not representatives of one but of all trades, workers in (1)  The  Report  of the Committee on Fair  Wages.   P.  26, para. 49. 94 general  and employers in general being  represented.   This group   includes   among  others  the   Industrial   Welfare Commission  of  Texas,  consisting of  the  Commissioner  of Labour,  the  representative of employers of labour  on  the Industrial  Accidents Board and the State Superintendent  of Public  Instruction;  the Minimum Wage  Board  of  Manitoba, composed  of  two representatives of employers, and  two  of workers  (one of each to be a woman) and  one  disinterested person; and the South Australian Board of Industry, consist- ing  of a President and four Commissioners, two of whom  are to   be  nominated  by  the  South   Australian   Employers’

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Federation  and two by the United Trades and Labour  Council of   the  State.   On  the  other  hand  are  those   Boards representative  of one trade only or of part of a trade,  or of a group of allied trades.  An attempt is made to obtain a body of specialists and the membership of the Board reflects this  intention.   It  will  contain  an  equal  number   of representatives  of employers and workers, together with  an impartial chairman, and in some cases members of the  public as  well.   Of this type are the British Trade  Boards;  the South Australian, Victorian and Tasmanian Wages Boards;  and the  Advisory or Wages Boards set up by many of the  Central Commissioners in the United States and Canada.  " (1) The following is a brief description of the composition  and working of wages boards in the United Kingdom: " In the United Kingdom where trade boards, and not  general boards, have been set up, the Minister of Labour appoints  a board if lie is satisfied that no adequate machinery  exists in a particular trade or industry for effectively regulating the  waves  and  that  it  is  necessary  to  provide   such machinery.    The  trade  board  is  a  fairly  large   body consisting   of  an  equal  number  of  representatives   of employers  and  workers  with  a  few  independent   members including  the Chairman.  Although appointments are made  by the Minister, the representatives of employers and workers (1)  "Wages & The State" by E. M. Burns at p. 187. 95 are  appointed  on the recommendation  of  the  associations concerned.   The trade board publishes a  notice  announcing its  tentative proposals for the fixation or revision  of  a wage  rate and invites objections or comments.  After a  two months’ notice the board takes a final decision and  submits a  report to the Minister who must confirm the rate  unless, for  any special reasons, he returns the recommendations  to the board for further consideration." (1) The Wage Council Act, 1945 (8 & 9 Geo.  VI, ch. 17) provides for  the  establishment of Wage Councils.  The  Minister  of Labour  and National Service has the power to make  a  wages council order after considering objections made with respect to the draft order on behalf of any person appearing to  him to  be affected.  The Wage Council makes such  investigation as it thinks fit and publishes notice of the wage regulation proposals and parties affected are entitled to make  written representations  with  respect  to  these  proposals   which representations  the  Wage  Council  considers.   The   Wage Council  can  make such further enquiries  as  it  considers necessary  and  thereafter  submit  the  proposals  to   the Minister either without amendment or with such amendments as it thinks fit in regard to the same.  The Minister considers these  wage regulations proposals and makes an order  giving effect  to the proposals from such date as may be  specified in  the  order.  Remuneration fixed by the  wage  regulation orders is called statutory minimum remuneration. There  are  also similar provisions under  the  Agricultural Wage  Regulation  Act,  1924 (14 & 15 Geo.  V,  ch.  37)  in regard  to  the regulation of wages  by  Agricultural  Wages Committees and the Agricultural Wages Board. In Canada and Syria a board consists of generally 5 members, but in China the size of the board varies from 9 to 15.   In all  these  countries  employers and  workers  obtain  equal representation.   In  Canada  the  boards  are  required  to enquire  into  the conditions of work and  wages.   In  some provinces  the  boards  are authorised to  issue  orders  or decrees while in others (1)  The  Report of the Committee on Fair Wages, pp.  25-26, para. 30.

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96 the  recommendations have to be submitted to the  Lieutenant Governor who issues orders. " In the United States of America some state laws  prescribe that the representatives of employers and workers should  be elected,  but in the majority of States  the  administrative authorities are authorised to make direct appointments.  The boards  so set up are empowered to make enquiries,  to  call for records, to summon witnesses and to make recommendations regarding minimum wages.  Some of the American laws lay down a   time-limit  for  the  submission  of   proposals.    The administrative  authority may accept or reject a report  and refer  it back for reconsideration, or form a new board  for considering  the  matter afresh.  Some of the  laws  provide that  if  the  report is not accepted, the  matter  must  be submitted  again  to  the same wages board or  a  new  wages board." (1) The  whole procedure for the determination of wages  in  the United  States of America is described in two  decisions  of the   Supreme  Court:  (i)  Interstate  Commerce   Com.   v. Louisville  & M. R. (2) and (ii) Opp.  Cotton Mills Inc.  v. Administration (3). The Fair Labour Standards Act of 1938 in the U.S.A. provides for  convening by the Administrator of  industry  committees for each such industry which from time to time recommend the minimum rate or rates of wages to be paid by the  employers. The  committee Recommends to the administrator  the  highest minimum  wage  rates for the industry which  it  determines, having  due -regard to economic and competitive  conditions, will  not substantially curtail employment in the  industry. Wage  orders can there upon be issued by  the  administrator after  due notice to all interested persons and giving  them an opportunity to be heard. In  Australia, also there are provisions in  various  states for  the appointment of wage boards the details of which  we need  not  go  into.  We may only refer to  the  wage  board system in Victoria which was established (1)  Report of the Committee on Fair Wages, p. 26, para. 50. (2)  (1912) 227 U.S. 88; 57 L. Ed. 431. (3)  (1940) 312 U-S- 126; 85 L. Ed. 624.                         97 in 1896 as a means of directly regulating wages -and working conditions  in industries subject to " sweating ",  and  was not intended to control industrial relations as such. "  Under the Factories and Shops Act, 1924, wage boards  are set  up  for  the  various  industries  with  a’  court   of Industrial Appeals to decide appeals from a determination of a wage board.. Industries for which there is no special wage board  are  regulated  by the  General  Wages  Board,  which consists of two employers’ representatives nominated by  the Victorian   Chamber   of   Manufacturers,   two   employees’ representatives  nominated  by  the  Melbourne  Trade   Hall Council,  and a chairman, agreed upon by these four  members or nominated by the minister for labour."(1) It  may  be noted that in the majority of cases  these  wage boards are constituted of equal number of representatives of employers and employees and one or more independent persons, one of whom is appointed the chairman. The position in India has been thus summarised: "  The  history of wage-fixation in India is a  very  recent one.  There was practically no effective machinery until the last  war for the settlement of industrial disputes  or  the fixation  of wages.  The first important enactment  for  the settlement  of disputes was the Bombay  Industrial  Disputes Act,  1938 which created an Industrial Court.  The  Act  had

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limited  application and the Court was not charged with  the responsibilities of fixing and regulating wages.  During the war State intervention in the settlement of industrial  dis- putes  became  necessary,  and  numerous  adjudicators  were appointed to adjudicate on trade disputes under the  Defence of  India Rules.  The Industrial Disputes Act, 1947, is  the first  effective measure of All-India applicability for  the settlement  of industrial disputes.  Under this Act  various Tribunals have passed awards regulating wages in a number of important industries. " The first enactment specifically to regulate wages in this country is the Minimum Wages Act, 1948. (1)  Kenneth F. Walker, "Industrial Relations in Australia". 13 98 This  Act  is  limited in its  operation  to  the  so-called sweated   industries   in  which   labour   is   practically unorganised  and  working conditions are far worse  than  in organised   industry.   Under  that  Act   the   appropriate Government  has  either  to  appoint  a  Committee  to  hold enquiries  and  to advise it in regard to  the  fixation  of minimum  rates of wages or, if it thinks that it has  enough material on hand, to publish its proposals for the  fixation of  wages in the official gazette and to invite  objections. The  appropriate Government finally fixes the minimum  rates of wages on receipt of the recommendations of the  Committee or of objections from the public.  There is no provision for any appeal.  There is an advisory board in each province  to co-ordinate  the work of the various committees.   There  is also  a  Central Advisory Board to co-ordinate the  work  of provincial boards.  Complaints of non-payment of the minimum rates  of wages fixed by Government may be taken  to  claims authorities.  Breaches of the Act are punishable by criminal courts." (1) It  is worthy of note that these  committee,  subcommittees, advisory board and central advisory board are to consist  of persons   to   be  nominated  by  the   Central   Government representing  employers  and  employees  in  the   scheduled employments,  who shall be equal in number, and  independent persons  not  exceeding  one-third of its  total  number  of members; one of such independent persons shall be  appointed the chairman by the appropriate Government. "  Under  a  recent  amendment  to  the  Bombay   Industrial Relations  Act,  1946,  wage boards can be  set  up  in  the Province  of Bombay either separately for each  industry  or for a group of industries.  The wage board is to consist  of an   equal  number  of  representatives  of  employers   and employees   and  some  independent  persons  including   the Chairman, all of whom are nominated by the Government.   The board  decides disputes relating to reduction in the  number of  persons employed, rationalisation or  other  efficiency, systems  of work, wages and the period and mode of  payment, hours of work and leave with or without (1)  Report of the Committee on Fair Wages, pp. 26-27, para. 51, 52. 99 pay.   When a matter has been referred to a wages board,  no proceedings   may  be  commenced  or  continued   before   a conciliator, conciliation board, labour court or  industrial court.   The wages boards are authorised to form  committees for local areas for the purpose of making enquiries.  It  is obligatory  on" Government to declare the decisions  of  the wages boards binding, but where Government feel that it will be inexpedient on public grounds to give effect to the whole or  any  part of the decision, the matter has to  be  placed

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before  the  Provincial Legislature, the decision  of  which will  be  binding.   There is provision for  the  filing  of appeals  from  the  decisions of the  wages  boards  to  the Industrial Court." (1) Those wage boards moreover are under the superintendence  of the Industrial Court. We  may  also  notice  here  Recommendation  30,  being  the recommendation  concerning the application of Minimum  Wage- Fixing  Machinery made by the International  Labour  Office, 1949 (2): (1)  The minimum wage-fixing machinery whatever form it  may take  (for  instance,  trade board  for  individual  trades, tribunals), should operate by way of investigation into  the relevant conditions in the trade or part of trade  concerned and   consultation   with  the   interests   primarily   and principally  affected,  that is to say,  the  employers  and workers  in the trade or part of trade, whose views  on  all matters relating to the fixing of the minimum rate of  wages should in any case be solicited and be given full and  equal consideration. " (2) (a) To secure greater authority for the rates that may be fixed, it should be the general policy that the employers and  workers  concerned  through  representatives  equal  in number or having equal voting strength, should jointly  take a  direct  part in the deliberations and  decisions  of  the wage-fixing  body;  in  any case,  where  representation  is accorded  to one side, the other side should be  represented on  the  same  footing.  The wage-fixing  body  should  also include  one  or more independent persons  whose  votes  can ensure (1)  Report of the Committee on Fair Wages, P. 27, para. 52. (2)  Extracts  from Conventions & Recommendations,  1919-49, published by International Labour Office (1949). 100 effective decisions being reached in the event of the  votes of the employers’ and workers’ representatives being equally divided.   Such  independent  persons  should,  as  far   as possible,   be   selected  in  agreement   with   or   after consultation    with    the    employers’    and    workers’ representatives on the wage fixing body. (b)In  order  to ensure that the employers’  and  workers’ representatives  shall be persons having the  confidence  of those  whose  interests  they  respectively  represent,  the employers  and workers concerned should be given a voice  as far as is practicable in the circumstances in the  selection of  their representatives, and if any organisations  of  the employers  and  workers exist these should in  any  case  be invited  to submit names of persons recommended by them  for appointment on the wage-fixing body. (c)The   independent  person  or  persons   mentioned   in paragraph  (a) -should be selected from among men  or  women recognised  as possessing the necessary  qualifications  for their  duties and as being dissociated from any interest  in the  trade  or  part  of  trade  concerned  which  might  be calculated to put their impartiality in question.  " The  following  appraisement of the system  of  establishing trader boards by the committee on fair wages may be noted in this context: " A trade board has the advantage of expert knowledge of the special  problems of the trade for which it has been set  up and is, therefore, in a position to evolve a scheme of wages suited  to  the  conditions obtaining  in  the  trade.   The system,  however, suffers from the limitation that there  is no  one  authority  to co-ordinate  the  activities  of  the various  boards  with the result that wide  disparities  may

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arise between the scales sanctioned for similar  industries. A  general board ensures due co-ordination but is  far  less competent  than  a  trade board to  appreciate  the  special problems  of each trade.  The Bombay Textile Labour  Inquiry Committee  have stated in their report that the trade  board system is the best suited to Indian conditions, particularly because the very manner of 101 functioning  of trade boards is such that wages are  arrived at  largely  by discussion and conciliation and that  it  is only  in  exceptional cases that the deciding votes  of  the Chairman  and of the independent members have to be  given." (1) It  is  clear  therefore that a wage board  relating  to  a, particular trade or industry constituted of equal number  of representatives   of  employers  and  employees,   with   an independent  member  or members one of whom is  appointed  a chairman,  is  best  calculated  to  arrive  at  the  proper fixation of wages in that industry. Principles for guidance. If  a wage board is thus appointed it is necessary that  the principles for its guidance in wage fixation should also  be laid  down  by  the  appointing  authority.   The  following passage  from "Minimum Wage-An  International  Survey-I.L.O. Geneva,  1939,  summarises  the position as  it  obtains  in various countries: "  As will be clear from the analysis of  legislation  given earlier in this monograph, the fundamental principle of  the Australian system, both in the Commonwealth and in the State sphere,  is  that of the living wage.  Even in  those  cases where  the law contains no reference to this  principle  its importance  is in practice great............ As a  criterion of  wage  regulation  the principle of the  living  wage  is however  no more than a vague and general indication of  the purpose of the legislation.  It leaves the broadest possible discretion in practice to the wage fixing tribunals.  In the case  of  the  Commonwealth laws indeed the  Court  is  left completely  free  to determine the principles on  which  the basic  or living wage is to be assessed.  Under  certain  of the  State  laws specific, though  limited,  directions  are given.   Thus in Queensland there is a statutory  definition of  the family unit on whose requirements the basic wage  is to be calculated.  In certain cases the general emphasis  on the  criterion  of  the workers’ needs  is  supplemented  by directions  to  fix  wage  rates that will  be  "  fair  and reasonable  "  and  in doing so to  take  into  account  the average standard (1)  Report of the Committee on Fair Wages, P. 27, para. 53, 102 of comfort being enjoyed by workers in the same locality  or in  similar occupations.  Such references, it may be  noted, involve  at least an indirect allusion to  general  economic conditions  and the capacity of industry to pay,  since  the standards  currently  enjoyed are closely related  to  these factors.  In at least one case (in Queensland) the Court  is specifically directed to examine the probable effects of its decisions upon industry and the community in general." In  the United States of America the Fair  Labour  Standards Act  of 1938 enunciates certain principles for the  guidance of  the  industry  committees  which  are  convened  by  the Administrator under the Act: "  The  committee shall recommend to the  Administrator  the highest  minimum  wage  rates  for  the  industry  which  it determines,  having due regard to economic  and  competitive conditions, will not substantially curtail employment in the

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industry  "  and  further  "  in  determining  whether  such classifications  should  be made in any industry  in  making such  classification,  and in determining the  minimum  wage rates  for such classification, no classification  shall  be made,  and no minimum wage rate shall be fixed, solely on  a regional  basis, but the industry committee and the  Admini- strator  shall  consider among other  relevant  factors  the following. (1)  competitive  conditions as affected by  transportation, living, and production cost; (2)  the  wages established for work of like  or  comparable character by collective labour agreements negotiated between employers  and  employees by representatives  of  their  own choosing; and (3)  the wages paid for work of like or comparable character by employers who voluntarily maintain minimum wage standards in the industry. No  classification shall be made under this section  on  the basis of age or sex." The normal rule however is to leave a wide discretion to the tribunals responsible for the fixation of wages inasmuch  as they  being constituted of equal numbers of  representatives of the employers and the 103 employees  are  best  calculated  to  appreciate  the  whole position and arrive at correct results. Procedure to be followed : The  procedure to be followed by the wage boards is  equally fluid.   The  wage  councils and  the  central  coordinating committees  appointed under the Wages Council Act, 1945,  as also the agricultural wages committees and the  agricultural boards  appointed  under the Agricultural  Wages  Regulation Act,  1924, in the United Kingdom each of them  subject,  of course,  to  the  regulations which might  be  made  by  the minister  as to the meetings and procedure of  these  bodies including   quorum,  etc.,  is  entitled  to  regulate   its procedure in such manner as it thinks fit. The   wage  boards  in  Australia  "  are  called   together informally by the chairman upon request of either party., No legal  formalities  or  procedures need  be  complied  with. Meetings  of  wage  boards are held in the  offices  of  the Department of Labour an officer of the department acting  as secretary." (1) The wage boards thus constituted are left to regulate  their procedure  in  such manner as they think fit and it  is  not necessary  that any regulation should be made in  regard  to the  procedure to be adopted by them in the conduct  of  the enquiry before them. There  are, however, a number of safeguards which have  been provided  in order to protect the interests of  the  parties concerned.   The wages councils established by the  Minister of Labour and National Services in the United Kingdom are so established   after  considering  objections  from   persons appearing to be affected thereby and wage regulation  orders are also recommended by these councils after considering the written  representations in regard to their proposals  which are   duly  published  in  the  manner  prescribed.    These recommendations  are again in their turn considered  by  the minister and it is only after the minister is satisfied that these  wage regulation orders are promulgated, the  minister having  the power in proper cases to send the same back  for reconsideration by the wage (1)  Kenneth  F. Walker " Industrial Relations in  Australia ", P. 24. 104

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councils.   When these proposals are again submitted by  the wage council the same -procedure is followed as in the  case of original proposals made by them. The  reports  of  the industry committees  convened  by  the administrator in the United States of America are subject to scrutiny  by  the  administrator who  gives  notice  to  all interested  persons and gives them an opportunity  of  being heard  in regard to the same. it is only after this is  done that he approves and carries into effect the recommendations in these reports on his being fully satisfied that they  are proper  and  if he disapproves of these  recommendations  he again  refers  the  matter to such  committees  for  further considerations  and  recommendations.   The  orders  of  the administrator  are  again subject to review in  the  Circuit Court  of Appeals in the United States and further  revision in the U. S. Supreme Court upon certiorari or certification. As regards the determinations of the special boards in  some of  the States of the Commonwealth of Australia appeals  lie against the same to the court of industrial appeals and they are   also  challengeable  before  the  High   Court. Such safeguards are also provided in our Minimum Wages  Act, 1948.   Here the work of the committees, sub-committees  and advisory  committees is coordinated by advisory  boards  and the  work  of  the advisory boards  is  coordinated  by  the central advisory board which advises the Central  Government in  the matter of the fixing of the minimum rates  of  wages and other matters under the Act and it is after the  receipt of such advice from the Central advisory board by the appro- priate Government that the latter takes action in the matter of  fixation or revision of minimum rates of wages.   Where, however,  the  appropriate  Government propose  to  fix  the minimum  rates  of wages without reference  to  the  various committees, or sub-committees, it publishes its proposals by notification in the Official Gazette for the information  of persons likely to be affected thereby and fixes the  minimum rates  of wages only after considering  the  representations received by it from the interested parties. 105 The wage boards appointed by the amended Bombay  Industrial- Relations   Act,   1946,  are  subject  to   the   appellate jurisdiction  as  well as supervisory  jurisdiction  of  the industrial courts in the State and parties affected by their decisions  are entitled to file appeals against the same  in the industrial courts. If these safeguards are provided against the  determinations of  the  wage  boards, it will  be  really  immaterial  what procedure they adopt in the course of the proceedings before them.   They  would  normally  be  expected  to  adopt   all procedure  necessary to gather sufficient data  and  collect sufficient  materials  to enable them to come  to  a  proper conclusion  in regard to the matters submitted to  them  for their determination’ If however at any time they flouted the regulations  prescribed  in regard to the  procedure  to  be followed  by them or in the absence of any such  regulations adopted a procedure -which was contrary to the principles of natural justice their decision would be vitiated and  liable to be set aside by the appropriate authority. Charactero the functions performed: There is considerable divergence of opinion in regard to the character  of the functions performed by these  wage  boards and  a  controversy has arisen as to whether  the  functions performed  by  them are administrative, judicial  or  quasi- judicial or legislative in character.  The question  assumes importance  on two grounds: viz., (i) whether the  decisions of  the  wage boards are open to judicial  review  and  (ii)

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whether the principle of audi alteram partem applies to  the proceedings  before  the  wage  boards.   If  the  functions performed  by  them were administrative  or  legislative  in character  they would not be subject to judicial review  and not  only  would  the  not  be  amenable  to  the  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 would not be  vulnerable  on  the ground that the principle of audi alteram partem, i. e.,  no man  shall  be condemned unheard, was not  followed  in  the course of the proceedings before them I4                             106 and  the  procedure  adopted by them  was  contrary  to  the principles of natural justice. It is well settled that writs of certiorari and  prohibition will lie only in respect of judicial or quasijudicial acts: "  the  orders  of certiorari and prohibition  will  lie  to bodies  and  persons other than courts stricto  sensu.   Any body   of  persons  having  legal  authority  to   determine questions  affecting the rights of subjects, and having  the duty  to  act  judicially, is  subject  to  the  controlling jurisdiction  of  the High Court of  justice,  exercised  by means of these orders." (1). The  principle of audi alteram partem also applies  only  to judicial  or quasi-judicial proceedings: As was observed  by the Judicial Committee of the Privy Council in Patterson  v. District Commissioner of Accra (2):- "On  this  part  of the case,  counsel  suggested  that  the provisions of s. 9 were in the nature of a " mass punishment "  of  the  inhabitants of the proclaimed  district  and  he relied  on the well-known passage from the judgment  of  the court in Bonaker v. Evans (3), " no proposition can be  more clearly established than that a man cannot incur the loss of liberty or property for an offence by a judicial  proceeding until he has had a fair opportunity of answering the  charge against him, unless indeed the legislature has expressly  or impliedly given an authority to act, without that  necessary preliminary.   This is laid down in there a number of  cases are mentioned] and many other cases, concluding with that of Capel  v. Child (4) in which Bayley B. says he knows  of  no case  in  which you are to have a  judicial  proceeding,  by which  a man is to be deprived of any part of his  property, without his having an opportunity of being heard............ Their Lordships have already indicated that, in their  view, the  section does not contemplate any  judicial  proceeding, and thus a decision against the appellant does not  infringe the principles stated in Bonaker v. Evans." (3) (1) Halsbury’s Laws of England, 3rd Edn., Vol. 11, at p. 55,para. 114. (2)[1948] A.C. 341. 350. (4) (1832) 2 C. (3)  16 Q.B. 162, 171.J. 558. 107 The  distinction  between  a  legislative  and  a   judicial function  is  thus brought out  in  Cooley’s  Constitutional Limitations, 8th Edn., Vol. 1, ch.  V under the caption of " the powers which the legislative department may exercise  ", at p. 185:- "   On  general  principles,  therefore,  those   inquiries, deliberations,  orders, and decrees, which are  peculiar  to such  a department, must in their nature be  judicial  acts. Nor  can  they be both judicial and legislative;  because  a marked difference exists between the employment of  judicial

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and  legislative  tribunals.   The former  decide  upon  the legality  of claims and conduct, and the latter  make  rules upon  which,  in  connection with  the  constitution,  those decisions  should be founded.  It is the province of  judges to determine what is the law upon; existing cases.  In fine, the law is applied by one, and made by the other.  To do the first, therefore, is to compare, the claims of parties  with the  law  of the land before established-is  in  its  nature judicial act.  But to do the last-to pass new rules for  the regulation   of  new  controversies-is  in  its   nature   a legislative act; and if these rules interfere with the past, or the present, find do not look wholly to the future,  they violate the definition of a law as " a rule of civil conduct "  because no rule of conduct can with  consistency  operate upon what occurred before the rule itself was promulgated. "  It  is  the province of judicial power,  also  to  decide private  disputes  between  or concerning  persons;  but  of legislative  power to regulate public concerns, and to  make laws for the benefit and welfare of the State.  Nor does the passage  of private statutes, when’ lawful, are  enacted  on petition,  or by the consent of all concerned; or else  they forbear  to  interfere  with past  translations  and  vested rights." The  following classic passage from the opinion  of  Holmes, J., in Prentis v. Atlantic Coast Line Co. Ltd., (1), is very apposite in this context: "  A judicial inquiry investigates, declares,  and  enforces liabilities as they stand on present or past facts and under laws  supposed  already to exist.  That is its  purpose  and end.  Legislation, on the other hand (1)  (1908) 211 U.S. 210, 226-227 ; 53 L. Ed. 15o, 158, 159. 108 looks,  to  the future and changes  existing  conditions  by making  a new rule, to be applied thereafter to all or  some part of those subject to its power.  The establishment of  a rate is the making of a rule for the future, and  therefore, is     an     act    legislative     not     judicial     in kind....................................................... That  question depends not upon the character of  the  body, but upon the character of the proceedings.  The nature of the final act determines the nature of   the previous enquiry." (See also Mitchell Coal & Coke Co. v. Pennsylvania R.  Co. (1)  and  Louisville & Nashville Railroad Company  v.  Green Garrett (2) A practical difficulty however arises in thus characterising the  functions  as  legislative  or  judicial  because   the functions  performed by administrative agencies do not  fall within watertight compartments.  Stason and Cooper in  their treatises  on " Cases and other materials on  Administrative Tribunals" point out: One  of  the great difficulties of  properly  classifying  a particular  function  of ail administrative agency  is  that frequently  --and, indeed; typically-a single  function  has three  aspects.  It is partly legislative,  partly  judicial and  partly  administrative.   Consider,  for  example,  the function   of   rate-making.    It   has   sometimes    been characterised  as  legislative, sometimes as  judicial.   In some  aspects,  actually, it involves  merely  executive  or administrative  powers.  For example, where  the  Interstate Commerce  Commission  fixes  a tariff  of  charges  for  any railroad, its function is viewed as legislative.  But  where the question for decision is whether a shipment of a mixture of coffee and chicory should be charged the rate established for  coffee or the lower rate established for  chicory,  the

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question is more nearly judicial.  On the other hand,  where the  problem is merely the calculation of the total  freight charges due for a particular shipment, the determination can fairly be described as an administrative act." (1)  (1913) 230 U.S. 247; 571.  Ed. 1472, 1482. (2)  (1913) 231 U.S. 298 ; 58 L. Ed. 229, 239.                             109 This  difficulty is solved by the Court considering I  in  a proper  case  whether the administrative agency  performs  a predominantly  legislative  or  judicial  or  administrative function  and determining its character accordingly.  (Vide: Village of Saratoga Springs v. Saratoga Gas, Electric  Light &  Power  Co. (1), and People ex rel.  Central  Park,  North ((., East River R. Co. v.Willcox (2). The  function  of the wage board in the United  Kingdom  had been  characterised as legislative in character  by  various text-book writers. Robson’s Justice and Administrative Law, 3rd Edn., states at p. 608 (foot-note): "  An example of a subordinate body of this type is  a  Wage Council,  which  is  not an administrative  tribunal  but  a subordinate legislative authority." Griffith’s  Principles of Administrative Lam,  contains  the following passage at p. 39: " The subordinate legislation which occupies more space than any  other subject relates to Wages Councils.  By the  Wages Councils  Act,  1945, the Minister of  Labour  and  National Service  was empowered to establish by order Wages  Councils to  operate in industries and trades.  Six such orders  were made in 1947.  Wages Councils, under the Act, may submit  to the  Minister  detailed "wages  regulations  proposals"  for fixing remuneration and making provisions for holidays.  The Minister  then makes orders embodying and giving  effect  to these proposals.  In 1947, fifty-five such orders were made, covering thirty-one different trades." Barbare  Wootton  in " Social Foundations  of  Wage  Policy; Modern  Methods  of Wage Determination makes  the  following observations at p. 88: "  Both  arbitration tribunals and courts of  inquiry  share with-one  important difference-the tripartite  structure  of statutory wage councils; they are composed of equal  numbers of  representatives  of employers and of  workers  under  an independent   chairman   together  with  (in   some   cases) additional  independent members.  The  essential  difference between   their  structure  and  that  of   statutory   wage authorities is that the (1) (1908) 191 New York 123. (2) (1909) 194 New York 383. 110 representative members of the latter are chosen from  within the  industry  concerned, whereas employers and  workers  on arbitration  tribunal come from outside the  industry  whose disputes  they  have to resolve; if in  any  case  technical knowledge  of  a particular industry is  required,  this  is normally supplied by the help of assessors who take no  part in   the   final  award.   This   difference   between   the constitution   of  wage  boards  and  that  of   arbitration tribunals   clearly  implies  a  corresponding   distinction between  the  legislative  function of the  former  and  the judicial  function  of the latter.  The wages  board  drafts laws  for  its own industry, whereas the  arbitration  court gives  judgment on matters submitted by others.  The  choice of  industrial arbitrators unconnected with  the  industries the  merits of whose claims they must pledge,  is  evidently intended  as a guarantee that they, like other judges,  will

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be free from bias arising from personal interest ". The High Court of the Commonwealth of Australia has taken  a similar  view in Australian Boot Trade Employees  Federation v.  Whybrow  & Co. (1), in discussing an award made  by  the wages  board  empowered by a State statute  to  fix  minimum rates  of  wages.   The test  applied  for  determining  the character  of  that function may be stated in the  words  of Issacs J. at p. 318: " If the dispute is as to the relative rights of parties  as they rest on past or present circumstances, the award is  in the  nature of a judgment, which might have been the  decree of an ordinary judicial tribunal acting Linder the  ordinary judicial  power.  There the law applicable to the case  must be  observed.  If, however, the dispute is as to what  shall in  the future be the mutual rights and responsibilities  of the  partiesin  other  words,  if  no  present  rights  ’are asserted  or denied, but a future rule of conduct is  to  be prescribed,  thus creating new rights and obligations,  with sanctions for non-conformity-then the determination that  so prescribes, call it an award, or arbitration, determination, or   decision  or  what  you  will,  is  essentially  of   a legislative  character,  and limited only by the  law  which authorises it.  If, again, there are neither present (1)(1910) 10 C. L. R. 266, 318. 111 rights  asserted, nor a future rule of  conduct  prescribed, but  merely a fact ascertained necessary for  the  practical effectuation  of  admitted rights,  the  proceeding,  though called  an  arbitration,  is  rather in  the  nature  of  an appraisement or ministerial act.  " As against this trend of opinion it has been urged that  the decisions  of  the  Wage  Councils  in  the  shape  of  wage regulation  proposals  submitted to the  minister  in  Great Britain  under the Wage Councils Act derive  their  sanction from the orders made by the minister giving effect to  these proposals;  but for such orders of the minister  they  would merely  remain the determinations of the Wage  Councils  and would  not acquire any legislative character.  In regard  to the  determinations  of  the wage boards  empowered  by  the statutes   to  fix  the  minimum  rates  of  wages  in   the Commonwealth of Australia also it is pointed out that  under the  provisions  of the Factories and Shops  Act,  1905,  of Victoria  "Every  determination of any Special  Board  shall unless  and until so quashed......... have the  like  force, validity  and  effect  as if  such  determination  had  been enacted in this Act.............. thus investing the  deter- mination  of  the  boards  with  the  characteristics  of  a legislative act. Reference  is  made  to the provisions of  the  Fair  Labour Standards Act of 1938 in the United States of America, where the  wages orders ultimately approved by  the  Administrator are  subject  to  judicial review in the  Circui  Courts  of Appeals  or  in the United States courts of appeals  of  the particular  ]District and also subject to further review  by the  Supreme  Court  of  the United  States  of  America  on certification. The  Minimum Wages Act, 1948, in our country  also  provides for the committees, sub-committees, advisory sub-committees, advisory  boards  and  central advisory  boards  for  fixing minimum  rates  of wages and the  recommendations  of  these committees  are forwarded to the appropriate Government  who by notification in the official gazette fix minimum rates of wages   in  respect  of  each  scheduled  employment.    The notification  is a token of the approval by the  appropriate Government

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112 of these recommendations of the Committees and invests  them with legal sanction. The recent amendment of the Bombay Industrial Relations Act, 1946,  empowers the State Government by notification in  the official Gazette to constitute for one or more industries  a wage  board for the State and enjoins these wage  boards  to follow the same procedure as the Industrial Court in respect of  arbitration proceedings before it and appeals  from  the decisions of these wage boards lie to the Industrial  Courts which  has powers of superintendence and control over  these wage boards and it cannot, under the circumstances be  urged that these wage boards perform any legislative functions. These  are the two opposite points of view which  have  been pressed  before  us and it is impossible to state  that  the functions performed by the wage boards are necessarily of  a legislative  character.   It  is no doubt  true  that  their determinations bind not only the employers and the employees in  the present, but they also operate when accepted by  the appropriate  government  or  authorities  and  notified   in accordance  with  law,  to bind  the  future  employers  and employees   in  the  industry.   If  that  were  the   only’ consideration the dictum of Justice Holmes cited above would apply and the functions performed by these wage boards would be  invested with a legislative character.  This is  however not  all,  and 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  in the future in regard to the wages  payable  to 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 quasi-judicial 113 functions,  it cannot be predicated that these  wage  boards are exercising legislative functions.  Whether they 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 lay down any universal rule  which would help in the’ determination of this question. Even  if on the construction of the relevant  provisions  of the  statute  we come to the conclusion that  the  functions performed   by  a  particular  wage  board  are  not  of   a legislative  character, the question still  remains  whether the  functions  exercised  by  them  are  administrative  in character  or  judicial  or  quasi-judicial  in   character, because  only  in the latter event would their  decision  be amenable  to the writ jurisdiction or to the  special  leave jurisdiction above referred to. There is no doubt that these wage boards are not  exercising purely  judicial  functions.   They are not  courts  in  the strict  sense  of  the term and  the  functions  which  they perform  may  at best be quasi-judicial in  character.   The fact  that they are administrative agencies set up  for  the purpose of fixation of wages do not necessarily invest their functions  with an administrative character and in spite  of their  being administrative bodies they can nevertheless  be exercising  quasi-judicial functions if  certain  conditions are fulfilled.

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The  position in law has been thus summarised in  Halsbury’s Laws of England, 3rd Ed., Vol. 11, at pp. 55-56:- "  The  orders  of certiorari and prohibition  will  lie  to bodies  and  persons other than courts stricto  sensu.   Any body   of  persons  having  legal  authority  to   determine questions  affecting the rights of subjects, and having  the duty  to  act  judicially, is  subject  to  the  controlling jurisdiction  of  the High Court of  Justice,  exercised  by means  of these orders.  It is not necessary that it  should be a court; an administrative body in ascertaining facts  or law  may be under a duty to act  judicially  notwithstanding that  its proceedings have none of the formalities  of,  and are not in accordance 15 114 with the practice of, a court of law.  It is enough if it is exercising,  after hearing evidence, judicial  functions  in the  sense  that  it has to decide  on  evidence  between  a proposal  and an opposition.  A body may be under  a,  duty, however, to act judicially (and subject to control by  means of  these  orders) although there is no form of  lies  inter partes  before  it;  it is enough that  it  should  have  to determine  a question solely on the facts of the  particular case, solely on the evidence before it, apart from questions of policy or any other extraneous considerations." "  Moreover  an  administrative  body,  whose  decision   is actuated in whole or in part by questions of policy, may  be under a duty to act judicially in the course of arriving  at that decision.  Thus, if in order to arrive at the decision, the body concerned had to consider proposals and  objections and  consider evidence, if at some stage of the  proceedings leading up to the decision there was something in the nature of   a  lies  before  it,  then  in  the  course   of   such consideration  and at that stage the body would be  under  a duty  to  act  judicially.   If,  on  the  other  hand,   an administrative  body in arriving at its decision has  before it  at  no  stage  any form of lis  and  throughout  has  to consider  the question from the point of view of policy  and expediency, it cannot be said that it is under a duty at any time to act judicially." (See  also the decision of this Court in Nagendra Nath  Bora v. Commissioner of Hills Division and Appeals, Assam (1). In  order therefore to determine whether  an  administrative body  is exercising a quasi-judicial function, it  would  be necessary  to examine in the first instance, whether it  has to  decide on evidence between a proposal and an  opposition and  secondly, whether it is under a duty to act  judicially in the matter of arriving at its decision. "  The duty to act judicially may arise in widely  differing circumstances  which  it would be impossible to  attempt  to define exhaustively.  The question whether or not there is a duty to act judicially must be decided (1)  [1958] S.C.R. 1240. 115 in  each  case  in the light of  the  circumstances  of  the particular  case  and  the construction  of  the  particular statute,  with  the  assistance of  the  general  principles already set out." (Ibid, para. 115). The  decision  in R. v. Manchester Legal  Aid  Committee  Ex parte  R.  A.  Brand  & Co. Ltd.  (1),  lays  down  when  an administrative body can be said to have a duty to act judicially: " The true view, as it seems to us, is that the duty to  act judicially may arise in widely different circumstances which it would be impossible, and, indeed, inadvisable, to attempt

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to  define  exhaustively.  Where the decision is that  of  a court,  then,  unless,  as in the  case,  for  instance,  of justices granting excise licences, it is acting in a  purely ministerial  capacity,  it is clearly under a  duty  to  act judicially.   When, on the other hand, the decision is  that of  an  administrative body and is actuated in whole  or  in part by questions of policy, the duty to act judicially  may -arise  in the course of arriving at that  decision.   Thus, if,  in order to arrive at the decision, the body  concerned had  to  consider  proposals, and  objections  and  consider evidence,  then there is the duty to act judicially  in  the course  of  that inquiry.  That, as it seems to us,  is  the true  basis  of  the decision in Errington  v.  Minister  of Health (2)................................... (See  also  Rex  v. The London  Country  Council:  Ex  parte Entertainments Protection Association Ld. (3)............... "  Further, an administrative body in ascertaining facts  or law   may   be  under  a  duty  to   act   judicially   not- withstanding.that   its   proceedings  have  none   of   the formalities  of and are not in accordance with the  practice of a court of law." Vide Board of Education v. Rice    (4) "  More  recently it has been held by this  Court  on  ,many occasions that certiorari will lie to quash the decision  of rent control tribunals, and this notwith- (1)  [1952] 2 Q.B. 413, 428, 429, 430. (2)  [1935] 1 K.B. 249. (3)  [1931] 2 K.B. 215, 233-4. (4)  [1910] A.C. 179, 182. 116 standing that such a tribunal is entitled to act on its  own knowledge   and   information,   without   evidence   unless submitted,  and  without a hearing except on notice  from  a party; see Rex v. Brighton. and Area Rent Tribunal (1). " If, on the other hand, an administrative body in  arriving at  its decision at no stage has before it any form  of  lis and  throughout has to consider the question from the  point of view of policy and expediency, it cannot be said that  it is  under  a duty at any stage to  act  judicially:  Compare Franklin v. Minister of Town and Country Planning." (2). It is strenuously urged before us by learned counsel for the petitioners  that  if the functions which  the  wage  boards perform in the matter of fixation of the rates of wages  are considered  in the light of the principles cited  above,  it would appear that as between the employers, on the one hand, and the employees, on the other, there is a proposition  and opposition.    The  employees  demand  that   a   particular statutory  minimum  wage should be fixed and the  scales  of wages should also be determined in a particular manner.  The employers  on their part would maintain that the status  quo should  continue or that, in any event, much less  than  the statutory  minimum wage demanded by the employees should  be fixed and also that the scales of wages should be fixed on a gradation which is much less than or in any event, different from that suggested by the employees.  The employees may say that  certain factors which are material in the fixation  of wages and which affect the employees should be considered as determinative of the rates of wages while the importance  of these factors may be sought to be minimized by the employers who might put forward certain other factors affecting  them, in  their  turn,  as  determinative  of  those  rates,   the importance  of  which may be sought to be minimized  by  the employees  on  the  other  hand.   All  these  would  create proposition  and  opposition on both sides with  the  result that  a lis would arise between them.  The determination  of

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these (1)  [1950] 2 K.B- 410. (2)  [1948] A.C. 87, 102. 117 points  at  issue would have to be’ arrived at by  the  wage boards and the wage boards could only do so after collecting proper  data  and  materials and hearing  evidence  in  that behalf.  If the functions performed by the wage board  would thus consist of the determination of the issues as between a proposition and an opposition on data and materials gathered by  the board in answers to the questionnaire issued to  all parties interested and the evidence led before it, there  is no doubt that there would be imported in the proceedings  of the  wage board a duty to act judicially and  the  functions performed  by  the  wage board  would  be  quasijudicial  in character.  It has been on the other hand urged before us by the  learned  counsel  for the  respondents  that  the  very constitution  of the wage boards is against the  fundamental principle  of  jurisprudence which postulates  that  no  man should be a judge in his own cause.  It was laid down by the House  of Lords in Franklin v. Minister of Town and  Country Planning (1) at p. 103: "  My  Lords, I could wish that the use of the word  bias  " should  be  confined  to  its  proper  sphere.   Its  proper significance,  in my opinion, is to denote a departure  from the  standard of even-handed justice which the law  requires from  those  who occupy judicial office, or  those  who  are commonly  regarded as holding a quasi-judicial office,  such as  an  arbitrator.  The reason for this  clearly  is,  that having to adjudicate as between two or more parties, he must come  to his adjudication with an independent mind,  without any  inclination  or bias towards one side or other  in  the dispute." The representatives of the employers and the representatives of  the employees who are appointed on the wage board  along with  an independent chairman and some other members, it  is submitted, would necessarily have a bias in favour of  those whom they represent and therefore would not be competent  to be  judges and the wage board thus constituted could  hardly be called a judicial body. There is considerable force in these contentions, but (1)  [1948] A.C. 87,102. 118 we  do not feel called upon to express our final opinion  on this  question  in  view of the  conclusion  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.,  provision  for  judicial review  or the adopting of the procedure as in the  case  of the  recommendations  of  the wage councils  in  the  United Kingdom,  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 America,  no  objection  could ever  be  urged  against  the determinations  of  the wage boards thus arrived at  on  the score  of  the  principles of natural  justice  having  been violated. We now proceed to consider how far the impugned Act violates the fundamental rights of the petitioners. Re : Article 19 (1) (a). Art.  19  (1) (a) guarantees to all citizens  the  right  to freedom of speech and expression. it has, however, got to be

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read  along  with  Art.  19  (2)  which  lays  down  certain constitutionally permissible limitations on the exercise  of that right.  Art. 19 (2) as substituted by the  Constitution (First Amendment) Act, 1951, with retrospective effect reads as under: "  Nothing in sub-clause (a) of clause (1) shall affect  the operation  of  any existing law, or prevent the  State  from making  any  law, in so far as such law  imposes  reasonable restrictions  on the exercise of the right conferred by  the said  sub-clause  in the interests of the  security  of  the State, friendly relations with foreign States, public order, decency  or morality, or in relation to contempt  of  court, defamation or incitement to an offence." If  any limitation on the exercise of the fundamental  right under Art. 19 (1) (a) does not fall within the four  corners of Art. 19 (2) it cannot be upheld. Freedom  of speech and expression includes within its  scope the freedom of the press and it would be 119 apposite  here  to refer to the following  passages  from  " Freedom of the Press-A Framework of Principles " (Report  of the  Commission on Freedom of Press in the United States  of America). The General Meaning of Freedom: To be free is to have the use of one’s powers of action  (i) without  restraint  or control from outside  and  (ii)  with whatever means or equipment the action requires. "  The  primary  suggestion of the term  "  freedom  is  the negative  one, the absence of external interference  whether to  suppress or to constrain.  To be free is essentially  to be free from something-some arbitrary impediment to  action, some  dominating power or authority.  And so long as it  can be  taken for granted that the unhindered person has all  he needs  to  act withwhich is usually the  case  the  negative meaning remains the chief element of the conception. " But since freedom is for action, and action is for an end, the  positive  kernel  of freedom lies  in  the  ability  to achieve  the  end;  to be free means to  be  free  for  some accomplishment.   And this implies command of the  means  to achieve  the  end.   Unless  the  equipment  necessary   for effective action is at hand, unrestraint may be a mockery of freedom..................  Unrestraint without equipment  is not  liberty for any end which demands equipment." (pp.  54- 55). Resulting Conception of Freedom of the Press: "  The  emerging conception of freedom of the press  may  be summarised as follows,% As  with all freedoms, press freedom means freedom from  and freedom  for.   A free press is free from  compulsions  from whatever   source,  governmental  or  social,  external   or internal.   From  compulsions, not from  pressures;  for  no press  can  be  free from pressures  except  in  a  moribund society  empty  of  contending forces  and  beliefs.   These pressures, however, if they are persistent and distorting-as financial,  clerical, popular, institutional  pressures  may become-approach compulsion; and something is then lost  from effective 120 freedom  which  the  press  and its  public  must  unite  to restore., " A free press is free for the expression of opinion in  all its  phases.  It is free for the achievement of those  goals of   press  service  on  which  its  own  ideals   and   the requirements  of  the community combine and  which  existing techniques make possible.  For these ends it must have  full

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command   of   technical  resources,   financial   strength, reasonable  access  to sources of information  at  home  and abroad,   and   the  necessary   facilities   for   bringing information to the national market.  The press must grow  to the measure of this market."(p. 228). There is paucity of authority in India on the nature,  scope and  extent of this fundamental right to freedom  of  speech and  expression  enshrined  in  Art.  19  (1)  (a)  of   the Constitution.   The  first case which came up  for  decision before this court was that of Ramesh Thaper v. The State  of Madras  (1).   It  was  a case of a ban  on  the  entry  and circulation  of  the  appellant’s journal in  the  State  of Madras under the provisions of section 9 (1-A) of the Madras Maintenance  of Public Order Act, 1949, and it was  observed by Patanjali Sastri J. (as he then was) at p. 597: "  There  can  be  no  doubt  that  freedom  of  speech  and expression  includes  freedom of propagation of  ideas,  and that  freedom is ensured by the freedom of  circulation.   " Liberty  of circulation is as essential to that  freedom  as the liberty of publication.  Indeed, without circulation the publication  would  be of little value.": Ex  parte  Jackson (2).  See also Lovell V. City of Griffin (3). Brij Bhushan & Anr. v. The State, of Delhi (4) was the  next case  which  came up for decision before this Court  and  it concerned the constitutionality of section 7 (i) (e) of  the East Punjab Public Safety Act, 1949.  It was a provision for the  imposition of pre-censorship on a  journal.   Patanjali Sastri J. (as he then was) (1)  [1950] S.C.R- 594, 597. (2) (1877)96 U-S- 727 ; 24 L. Ed. 877. (3) (1937) 303 U-S- 444 ; 82 L. Ed. 949. (4) [1950] S.C.R. 605, 6o8. 121 who delivered the majority judgment observed at p. 608:- "  There  can  be  little  doubt  that  the  imposition   of precensorship  on a journal is a restriction on the  liberty of  the  press which is an essential part of  the  right  to freedom  of  speech and expression declared by Art.  19  (1) (a).  As pointed out by Blackstone in his Commentaries " the liberty  of  the  Press  consists  in  laying  no   previous restraint upon publications, and not in freedom from censure for  criminal matter when published.  Every freeman  has  an undoubted right to lay what sentiments he Pleases before the public;  to  forbid this, is to destroy the freedom  of  the press. (Blackstone’s Commentaries, Vol.  IV, pp. 151, 152)." These are the only two decisions of this Court which involve the interpretation of Art. 19 (1) (a) and they only lay down that  the freedom of speech and expression includes  freedom of  propagation  of ideas which freedom is  ensured  by  the freedom of circulation and that the liberty of the press  is an  essential  part of the right to freedom  of  speech  and expression  and  that  liberty  of  the  press  consists  in allowing no previous restraint upon publication. There  is  however, a considerable body of authority  to  be found  in the decisions of the Supreme Court of  the  United States of America bearing on this concept of the freedom  of speech  and  expression.  Amendment I of  that  Constitution lays down: " Congress shall make no law.................. abridging the freedom of speech or of the press ............" It  is  trite to observe that the fundamental right  to  the freedom of speech and expression enshrined in Art.  19(1)(a) of  our  Constitution  is  based  on  these  provisions   in Amendment  I  of the Constitution of the  United  States  of

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America  and it would be therefore legitimate and proper  to refer to those decisions of the Supreme Court of the  United States  of America in order to appreciate the  true  nature, scope  and  extent  of this right in spite  of  the  warning administered  by this Court against the use of American  and other  cases,  (Vide State of Travancore-Cochin  &  Ors.  v. Bombay Co. 16 122 Ltd. (1) and State of Bombay v. R.M.D. Chamarbaugwala (2). Grosjean  v.  American  Press Co. (3), was a  case  where  a statute imposed a license tax on the business of  publishing advertisements and it was observed at p. 668: "  The evils to be prevented were not the censorship of  the press  merely, but any action of the Government by means  of which  it might prevent such free and general discussion  of public matters as seems absolutely essential to prepare  the people  for  an  intelligent exercise, of  their  rights  as citizens."  (Vide Cooley’s Constitutional  Limitations,  8th Edn., Vol. 11, p. 886). The  statute  was  there  struck  down  as  unconstitutional because  in  the  light of its history and  of  its  present setting it was seen to be a deliberate and calculated device in  the  guise  of  a  tax  to  limit  the  circulation   of information  to which the public was entitled in  virtue  of the constitutional guarantees. The  following  passage from the dissenting opinion  in  The Associated Press v. The National Labour Relations Board  (4) is also instructive: " If the freedom of the press does not include the right  to adopt and pursue a policy without governmental  restriction, it  is  a misnomer to call it freedom.  And we may  as  well deny at once the right to the press freely to adopt a policy and pursue it, as to concede that right and deny the liberty to  exercise  an  uncensored  judgment  in  respect  of  the employment  and  discharge of the agents  through  whom  the policy is to be effectuated." It was also observed there at p. 965: " Due regard for the constitutional guarantee requires  that the  publisher or agency of the publisher of news  shall  be free  from  restraint  in  respect  of  employment  in   the editorial force." Schneider v. Irvingtor (5) was concerned with the effect  of the Municipal Regulations against littering of (1) [1952] S.C. R. I I 12, I 120.  (2) [1957] S. C. R. 87 4, 918. (3)  (1935) 297 U.S. 233, 249; go L. Ed. 66o, 668. (4)  (1936) 30I U.S. 103. 136; 81 L. Ed. 953. 963. (5)  (1939) 308 U-S- 147; 84 L. Ed. 155, 164. 123 streets.   In the course of its decision the Court made  the following observations at p. 164: "  This  court has characterized the freedom of  speech  and that  of  the  press  as  fundamental  personal  rights  and liberties.   The  phrase  is not an empty one  and  was  not lightly used.  It reflects the belief of the framers of  the Constitution  that  exercise  of  the  rights  lies  at  the foundation  of free government by free press.  It  stresses, as  do  many  opinions  of this  court,  the  importance  of preventing the restriction of enjoyment of these liberties." Non-interference by the State with this right was emphasized in Thomas v. Collins (1) at p. 448:- " But it cannot be the duty, because it is not the right, of the State to protect the public against false doctrine.  The very  purpose of the First Amendment is to foreclose  public

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authority from I assuming a guardianship of the public  mind through regulating the press, speech, and religion.  In this field  every  person  must be his own  watchman  for  truth, because  the  forefathers did not trust  any  Government  to separate the true from the false for us........... In 93 L. Ed. at p. 1151 is given a summary of the  decisions of the Supreme Court of the United States of America on this subject under the heading " The Supreme Court and the  right of  Free Speech and Press " and it contains at p.  1153  the following  passage  under the caption " Right in  General  : Freedom from Censorship and Punishment ": "  The  freedom  of  speech and  of  press  are  fundamental personal  rights & liberties, the exercise of which lies  at the  foundation of free Government by  free  men............ The  very  purpose of the first Amendment  is  to  foreclose public authority from assuming a guardianship of the  public mind through regulating the press, speech, and religion;  it rests   on   the  assumption  that   the   widest   possible dissemination  of information from diverse and  antagonistic sources is essential to the welfare of the public." The  dissenting  opinion  of Douglas J.  in  Beauharnais  v. Illinois(2) contains the following at p. 943: (1)  (1944) 323 U-S- 516, 545 ; 89 L. Ed- 430, 448. (2)  (1951) 313 U.S. 250, 285; 96 L. Ed. 919, 943. 124 There  is  room  for regulation of the  ways  and  means  of invading privacy.  No such leeway is granted the invasion of the right of free speech guaranteed by the First  Amendment. Until recent years that had been the course and direction of constitutional  law.   Yet recently the Court  in  this  and other  cases has engraved the right of regulation  onto  the First  Amendment by placing in the hands of the  legislative branch  the right to regulate " within reasonable  limits  " the  right  of free speech.  This to me is  an  ominous  and alarming  trend.  The free trade in ideas which the  framers of  the  Constitution visualised disappears.  In  its  place there  is  substituted  a new  orthodoxy-an  orthodoxy  that changes  with the whims of the age or the day, an  orthodoxy which  the  majority  by solemn  judgment  proclaims  to  be essential  to  the safety, welfare, security,  morality,  or health of Society.  Free speech in the constitutional  sense disappears.  Limits are drawn-limits dictated by expediency, political  opinion, prejudices or some other desideratum  of legislative action." It is clear from the above that in the United States of America: (a)  the freedom of speech comprehends the freedom of  press and the freedom of speech and press are fundamental personal rights of the citizens; (b)the  freedom of the press rests on the assumption  that the  widest  possible  dissemination  of  information   from diverse and antagonistic sources is essential to the welfare of the public; (c)  Such freedom is the foundation of free Government of  a free people; (d)the  purpose of such a guarantee is to  prevent  public authorities  from  assuming the guardianship of  the  public mind and (e)freedom of press involves freedom of employment or non- employment  of the necessary means of exercising this  right or  in other words, freedom from restriction in  respect  of employment in the editorial force. This is the concept of the freedom of speech and  expression as it obtains in the United States of America                          125

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and  the necessary corollary thereof is that no measure  can be  enacted which would have the effect of imposing  a  pre- censorship,  curtailing the circulation or  restricting  the choice of employment or unemployment in the editorial force. Such a measure would certainly tend to infringe the  freedom of speech and expression and would therefore be liable to be struck down as unconstitutional. The press is however, not immune from. the ordinary forms of taxation  for  support  of  the  Government  nor  from   the application  of  the  general laws  relating  to  industrial relations.   It was observed in Grosjean v.  American  Press Co. (1): "  It  is not intended by anything we have said  to  suggest that  the  owners of newspapers are immune from any  of  the ordinary  forms of taxation for support of  the  Government; But  this is not an ordinary form of tax but one  single  in kind  with  a  long history of hostile  misuse  against  the freedom of the press. "  The  predominant purpose of the grant  of  immunity  here invoked  was  to preserve an untrammeled press  as  a  vocal source of public information.  The newspapers, magazines and other journals of the country, it is safe to say, have  shed and continue to shed, more light on the public and  business affairs  of  the nation than any  other  instrumentality  of publicity;  and  since informed public opinion is  the  most patent of all restraints upon misgovernment, the suppression or  abridgment  of the publicity afforded by  a  free  press cannot  be regarded otherwise than with gave  concern.   The tax here involved is bad not because it takes money from the pockets  of  the  appellees.  If that  were  all,  a  wholly different question would be presented.  It is bad:  Because, in  the light of its history and of its present setting,  it is  seen  to be a deliberate and calculated  device  in  the guise  of a tax to limit the circulation of  information  to which the public is entitled in virtue of the constitutional guarantees.   A  free  press  stands as  one  of  the  great interpreters  between  the Government and  the  people.   To allow it to be fettered is to fetter ourselves." (1)  (1935) 297 U-S- 233, 249; 80 L. Ed. 660, 668. 126 In  The Associated Press v. National Labour Relations  Board (1),  it was held that the freedom of the press  safeguarded by  the First Amendment was not abridged by the  application in the case of an editor employed by the Associated Press to determine  the  news  value of the  items  received  and  to rewrite them for transmission to members of the  association throughout the United States who must function without  bias and  prejudice,  of the provisions of  the  National  Labour Relations  Act which inhibited an employer from  discharging an  employee  because of union activities.  It  was  further observed at p. 960: "  So  it is said that any regulation  protective  of  union activities, or the right collectively to bargain on the part of such employees, is necessarily an invalid invasion of the freedom of the press.  We think that the contention not only has  no relevance to the circumstances of the  instant  case but is an unsound, generalization." Murdock v. Pennsylvania (2), was a case of a license fee for the  sale of religious books and Mr. Justice Frankfurter  in his dissenting opinion at p. 1311 observed: "  A  tax upon newspaper publishing is  not  invalid  simply because  it  falls upon -the exercise  of  a  constitutional right.   Such  a  tax might be  invalid  if  it  invidiously singled  out newspaper publishing for bearing the burden  of taxation or imposed upon them in such ways as to encroach on

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the  essential  scope of a free press.  If the  Court  could justifiably  hold that the tax measures in these cases  were vulnerable on that ground, I would unreservedly agree.   But the Court has not done so, and indeed could not.  " In  Oklahoma  Press Publishing Co. v. Walling  (1),  and  in Mabee  v. White Planis Publishing Co. (4) the  Federal  Fair Labour Standards Act was held applicable to the press and it was observed in the former case at p. 621: " Here there was no singling out of the press for  treatment different  from  that accorded other  business  in  general. Rather the Act’s purpose was to place (1)  (1936) 301 U.S. 103,136; 81 L. Ed. 953, 963. (2)  (1942) 319 U-S- 105, 136 ; 87 L. Ed. 1292, 1311. (3)  (1945) 327 U. S. 186. 194; go L. Ed. 614, 621. (4)  (1945) 327 U. S. 178; 90 L. Ed. 607. 127 publishers  of  newspapers upon the same  plane  with  other businesses  and the exemption for small newspapers  had  the same  object.   Nothing in the Grosjean  case  (1),  forbids Congress  to  exempt some publishers because  of  size  from either a tax or a regulation which would be valid if applied to all." The  Constitution of the United States of  America--Analysis and  Interpretation-Prepared  by the  Legislative  Reference Service,  Library of Congress, summarises the position  thus at p. 792 : "  The  Supreme  Court, citing the fact  that  the  American Revolution   "   really   began   when...............   that Government (of England) sent stamps for newspaper duties  to the American colonies " has been alert to the possible  uses of  taxation  as  a  method  of  suppressing   objectionable publications.  Persons engaged in the dissemination of ideas are,  to be sure, subject to ordinary forms of  taxation  in like  manner as other persons.  With respect to  license  or privilege taxes, however, they stand on a different footing. Their privilege is granted by the Constitution and cannot be withheld by either State or Federal Government. " The application to newspapers of the Anti-Trust Laws,  the National Labour Relations Act, or the Fair Labour  Standards Act, does not abridge the freedom of the press." The  Laws  regulating payment of wages have  similarly  been held  as not abridging the freedom of speech and  expression and  the following observations in the same publication  (at p. 988) in regard to the Minimum Wage Laws are apposite: "MINIMUM  WAGE  LAWS:  The theory  that  a  law  prescribing minimum wages for women and children violates due process by impairing freedom of contract was finally discarded in  1937 (West  Coast  Hotel  Co. v. Parrish, 300 U.  S.  379).   The current theory of the Court, particularly when labor is  the beneficiary  of legislation, was recently stated by  Justice Douglas for a majority of the Court, in the following terms: "  Our recent decisions make plain that we do not sit  as  a super-legislature to weigh the wisdom of legislation nor (1)  (1935) 297 ’U-S. 233. 249; 89 L. Ed. 660, 668. 128 to decide whether the policy which it expresses offends  the public  welfare............ But the state legislatures  have constitutional authority to experiment with new  techniques; they  are  entitled  to their own  standard  of  the  public welfare;  they  may within extremely broad  ,limits  control practice;  in the business-labor field, so long as  specific constitutional prohibitions are not violated and so long  as conflicts  with  valid  and  controlling  federal  laws  are avoided  (Day-Brite  Lighting, Inc. v. Missouri, 342  U.  S. 421, 423 (1952) )."

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While  therefore no such immunity from the general laws  can be claimed by the press it would certainly not be legitimate to subject the press to laws which take away or abridge  the freedom  of  speech and expression or  which  would  curtail circulation and thereby narrow the scope of dissemination of information,  or fetter its freedom to choose its  means  of exercising the right or would undermine its independence  by driving  it to seek Government aid.  Laws which  single  out the  press  for  laying upon it  excessive  and  prohibitive burdens  which  would  restrict the  circulation,  impose  a penalty  on  its  right to choose the  instruments  for  its exercise  or  to seek an alternative  media,  prevent  news- papers from being started and ultimately drive the press  to seek Government aid in order to survive, would therefore  be struck down as unconstitutional. Such  laws  would  not  be  saved  by  Art.  19(2)  of   the Constitution.  This Court had occasion to consider the scope of  Art. 19(2) in Brij Bhushan & Anr. v. The State of  Delhi (1),  where Fazl Ali J. in his dissenting judgment  observed at p. 619. "  It  must  be  recognized  that  freedom  of  speech   and expression is one of the most valuable rights guaranteed  to a  citizen  by  the Constitution  and  should  be  jealously guarded by the Court.  It must also be recognised that  free political discussion is essential for the proper functioning of  a democratic government, and the tendency of the  modern jurists  is  to deprecate censorship though they  all  agree that " liberty of the press " is not to be confused with its " licentiousness (1)  [1950) S.C.R. 605, 608. 129 But  the Constitution itself has prescribed  certain  limits and  this  Court  is  only called  upon  to  see  whether  a particular case comes within those limits.  " Unless,  therefore, a law enacted by the  Legislature  comes squarely  within the provisions of Art. 19 (2) it would  not be  saved and would be struck down as’  unconstitutional  on the  score  of its violating the fundamental  right  of  the petitioners under Art. 19 (1) (a). In   the   present  case  it  is  obvious  that   the   only justification for the enactment of the impugned Act is  that it  imposes  reasonable restrictions in the interests  of  a section of the general public, viz., the working journalists and other persons employed in the newspaper  establishments. It  does not fall within any of the categories specified  in Art. 19 (2), viz., "  In the interests of the security of the  State,  friendly relations  with  foreign States, public  order,  decency  or morality,  or in relation to. contempt of court,  defamation or incitement to an offence." Article 19 (2) being thus out of the question the only point that falls to be determined by us is whether the  provisions of  the  impugned Act in any way take away  or  abridge  the petitioners’  fundamental  right of freedom  of  speech  and expression. It  was contended before us by the learned  Attorney-General that it was only legislation directly dealing with the right mentioned  in Art. 19 (1) (a) that was protected by it.   If the legislation was not a direct legislation on the  subject " Art. 19 (1) (a) would have no application, the test  being not  the  effect or result of legislation but  its  subject- matter.   In  support of his contention he relied  upon  the following  observations of Kania C. J. in A. K.  Gopalan  v. The State of Madras (1). " As the preventive detention order results in the detention

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of  the applicant in a cell it was contended on  his  behalf that the rights specified in article 19 (1), (a), (b),  (c), (d),  (e) and (g) have been infringed.  It was  argued  that because  of  his detention he cannot have a  free  right  to speech as and where he, desired and the (1)[1950] S.C.R. 88, 100. 17 130 same argument was urged in respect of the rest of the rights mentioned  in  sub-clauses  (b),  (c),  (d),  (e)  and  (g). Although  this  argument is advanced in a case  which  deals with   preventive  detention,  if  correct,  it  should   be applicable in the case of punitive detention also to any one sentenced  to  a term of imprisonment  Linder  the  relevant section  of  the  Indian Penal  Code.   So  considered,  the argument  must  clearly be rejected In spite of  the  saving clauses  (2)  to (5), permitting abridgement of  the  rights connected with each of them punitive detention under several sections  of  the Penal Code, e. g., for  theft,,  cheating, forgery and even ordinary assault, will be illegal.   Unless such conclusion necessarily follows front the article, it is obvious  that  such construction should be avoided.   In  my opinion,  such  result  is clearly not the  outcome  of  the Constitution.  The article has to be read. without any  pro- conceived  notions.   So  read, it clearly  means  that  the legislation  to be examined must be directly in  respect  of one of the rights mentioned in the sub-clauses. -If there is a  legislation  directly attempting to control  a  citizen’s freedom  of speech or expression, or his right  to  assemble peaceably and without arms, etc,, the question whether  that legislation  is  saved  by the  relevant  saving  clause  of article 19 will arise.  If, however, the legislation is  not directly  in  respect  of any of these subjects,  but  as  a result of the operation of other legislation, -for instance, for punitive or preventive detention, his right under any of these   sub-clauses  is  abridged,  the  question   of   the application of article 19 does not arise.  The true approach is  only to consider the directness of the  legislation  and not  what  will  be the result of  the  detention  otherwise valid,  on  the mode of the detent’s life.   On  that  short ground, in my opinion, this argument about the  infringement of  the  rights mentioned in article 19 (1)  generally  must fail.   Any other construction put on the article, it  seems to me, will be unreasonable." This  opinion was expressed by Kania C. J. alone, the  other learned  judges forming the Bench not expressing  themselves on  this  question.  This passage was, however  cited,  with approval by a Bench of this 131 Court in Ram Singh & Ors. v. The State of Delhi (1).  It was held  by  the Full Court in that case that  though  personal liberty   is  sufficiently  comprehensive  to  include   the freedoms enumerated in Art. 19 (1) and its deprivation would result in the extinction of these freedoms, the Constitution his  treated  these  constitutional  liberties  as  distinct fundamrntal rights and made separate provisions in Arts. 19, 21  and 22 ,is to the limitations and conditions subject  to which   alone  they  could  be  taken  away   or   abridged. Consequently, even though a law which restricts the  freedom of speech and expression is not directed solely against the, undermining of security of the State or its overthrow but is concerned generally in the interests of public order may not fait  within the reservation of cl. (2) of Art. 19  and  may therefore  be void, an order of preventive detention  cannot be held to be, invalid merely

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because: " the detention is made with a view to prevent the making of speeches   prejudicial   to  the,  maintenance   of   public order................." This  was  also  a case of detention  under  the  Preventive Detention  Act  and  the detention of the  detenu  had  been ordered  with  a view to prevent him  from  making  speeches prejudicial  to  the maintenance of  public  order.   Public order was not one of the categories mentioned in Art. 19 (2) as  it  then  stood, and any restriction  imposed  upon  the freedom  of speech and expression could nit be justified  on that  ground,  the only relevant ground in  that  connection then  being undermining of the security of the State or  its overthrow.   A  restriction  on the freedom  of  speech  and expression  ill  the  maintenance  of  public  order   would therefore  not have been justified under Art. 19 (2) and  if the  Court  had  come to the conclusion that  there  was  an infringement   of  the  right  of  freedom  of  speech   and expression the order could not have been saved under Art. 19 (2).   The  Court  however, took the view  that  the  direct object  of  the order was preventive detention and  not  the infringement   of  the  right  of  freedom  of  speech   and expression, which was merely (1)[1951] S.C.R.451, 455. 132 consequential upon the detention of the detenu and therefore upheld the validity of the order.  It was, therefore,  urged by  the  learned  Attorney-General that the  object  of  the impugned  Act  was only to regulate  certain  conditions  of service of working journalists and other persons employed in the newspaper establishments and not to take away or abridge the right of freedom of speech and expression enjoyed by the petitioners  and that therefore the impugned Act  could  not come  within the prohibition of Art. 19 (1) (a)  read  with. Art. 13 (2) of the Constitution. It  was  contended,  on the other hand,  on  behalf  of  the petitioners  that  the  Court has got to look  at  the  true nature  and  character  of the  legislation  and  judge  its substance  and not its form, or in other words,  its  effect and  operation.   It was pointed out that the  impugned  Act viewed as a whole was one to regulate the employment of  the necessary  organs  of newspaper publications  and  therefore related to the freedom of the Press and as such came  within the prohibition.  Reliance was placed in this behalf on  the following passage in Minnesota Ex Rel.  Olson (1): " With respect to these contentions it is enough to say that in  passing  upon  constitutional questions  the  Court  has regard  to  substance and not to mere matters of  form,  and that,  in accordance with familiar principles,  the  statute must be tested by its operation and effect." The following observations of Mahajan J. (as he then was) in Dwarkadas  Shrinivas of Bombay v. The Sholapur Spinning  and Weaving Co., Ltd. (2) were also relied upon: " In order to decide these issues it is necessary to examine with  some strictness the substance of the  legislation  for the purpose of determining _what it is that the  legislature has  really done; the Court, when such questions  arise,  is not overpersuaded by the mere appearance of the legislation. In   relation  to  Constitutional  prohibitions  binding   a legislature it is clear that the legislature cannot  disobey the prohibitions merely (1)(1930) 283 U.S. 697, 708; 75 L. Ed. 1357, 1363. (2)[1954] S.C.R. 674, 683.                       133 by  employing indirect method of achieving exactly the  same

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result.  Therefore, in all such cases the court has to  look behind the names, forms and appearances to discover the true character and nature of the legislation." The  impugned  Act  is as its long title  shows  an  act  to regulate  certain conditions of service of  working  journa- lists and other persons employed in newspaper establishments and  in  the  very  forefront of  the  Act,  the  Industrial Disputes  Act, 1947, is by s. 3 made applicable  to  working journalists with certain modification in connection with the application  of  s.  25F  of that  Act.   The  rest  of  the provisions  contained in ch.  II concerned  themselves  with the  payment  of  gratuity,  hours of  work  and  leave  and fixation   of  wages  of  the  -working  journalists.    The regulation  of  the conditions of service is thus  the  main object  which is sought to be achieved by the impugned  Act. Chapter  III  of  the  Act applies  the  provisions  of  the Industrial  Employment (Standing Orders) Act, 1946, and  the Employees’  Provident Funds Act, 1952, to all the  employees of  the  newspaper  establishments wherein  twenty  or  more newspaper   employees  are  employed  and   covers   working journalists as well as other employees in the employ of  the newspaper  establishments.   The  miscellaneous   provisions contained in ch.  IV are designed merely to implement or  to carry  out the provisions of the main part of. the  Act  and they  do  not make any difference so far as the  effect  and operation  of  the Act is concerned.  If this  is  the  true nature of the Act, it is impossible to say that the Act  was designed  to  affect the freedom of  speech  and  expression enjoyed by the petitioners or that was its necessary  effect and  operation.   It  was  conceded in  the  course  of  the arguments that if a general law in regard to the  industrial or  labour relations had been applied to the press  industry as a whole no exception could have been taken to it.  If the matter  had  rested with the application of  the  Industrial Disputes  Act, 1947, to the working journalists or with  the application  of the Industrial Employment (Standing  Orders) Act, 1946, or the Employees’ Provident Fund,% Act, 1952,  to them no exception could have been taken to this 134 measure.   It  was,  however,  urged  that  apart  from  the application   of   these  general  laws   to   the   working journalists,  there are provisions enacted in  the  impugned Act in relation to payment of gratuity, hours of work, leave and  fixation  of the rates of wages  which  are  absolutely special  to the press industry qua the  working  journalists and they have the effect of singling out the press  industry by creating a class of privileged workers with benefits  and rights  which have not been conferred upon  other  employees and  the  provisions contained therein have  the  effect  of laying a direct and preferential burden on the press, have a tendency  to curtail the circulation and thereby narrow  the scope   of   dissemination  of   information,   fetter   the petitioner’s freedom to choose the means of exercising their right  and are likely to undermine the independence  of  the press by having to seek Government aid. It is obvious that the enactment of this measure is for  the amelioration  of  the  conditions  of  the  workmen  in  the newspaper industry.  It would not be possible for the  State to take up all the industries together and even as a  matter of  policy it would be expedient to take the industries  one by one.  Even in regard to the workmen employed it would  be equally expedient to take a class of employees who stand  in a  separate  category  by  themselves  for  the  purpose  of benefiting   them   in  the   manner   contemplated.    This circumstance by itself would therefore not be indicative  of

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any undue preference or a prejudicial treatment being  meted out  to that particular industry, the main object being  the amelioration  of the conditions of those workmen.  It  could not  also be said that there was any ulterior motive  behind the  enactment of such a measure because the  employers  may have to share a greater financial burden than before or that the  working of the industry may be rendered more  difficult than  before.  These are all incidental disadvantages  which may  manifest  themselves  in  the  future  working  of  the industry,  but it could not be said that the Legislature  in enacting that measure was aiming at these disadvantages when it was trying to ameliorate the 135 conditions   of  the  workmen.   Those  employers  who   are favourably  situated, may not feel the strain at  all  while those of them who are marginally situated may not be able to bear  the  strain  and  may in  conceivable  cases  have  to disappear  ’after closing down their establishments.   That, however,  would be a consequence. which would be  extraneous and  not  within the contemplation of the  Legislature.   It could therefore hardly be urged that the possible effect  of the  impact  of these measures in  conceivable  cases  would vitiate the legislation as such.  All the consequences which have  been  visualized in this behalf  by  the  petitioners, viz., the tendency to curtail circulation and thereby narrow the  scope of dissemination of information, fetters  on  the petitioners’  freedom to choose the means of exercising  the right,  likelihood  of the independence of the  press  being undermined by having to seek government aid; the  imposition of   penalty  on  the  petitioners’  right  to  choose   the instruments for exercising the freedom or compelling them to seek  alternative  media, etc., would be remote  and  depend upon  various factors which may or may not come  into  play. Unless  these were the direct or inevitable consequences  of the  measures enacted in the impugned Act, it would  not  be possible  to  strike  down the legislation  as  having  that effect  and operation.  A possible eventuality of this  type would  not necessarily be the consequence which could be  in the  contemplation  of  the  Legislature  while  enacting  a measure  of  this  type  for  the  benefit  of  the  workmen concerned. Even though the impugned Act enacts measures for the benefit of  the  working journalists who are employed  in  newspaper establishments,  the working journalists are but  the  vocal organs  and the necessary agencies for the exercise  of  the right  of  free speech and expression, and  any  legislation directed  towards  the amelioration of their  conditions  of service must necessarily affect the newspaper establishments and  have  its repercussions on the freedom of  Press.   The impugned Act can therefore be legitimately characterized  as a  measure which affects the press, and if the intention  or the proximate effect and operation of the Act was such 136 as  to  bring it within the mischief of Art.  19(1)  (a)  it would  certainly  be  liable to be struck  down.   The  real difficulty,  however, in the way of the petitioners is  that whatever  be  the measures enacted for the  benefit  of  the working journalists neither the intention nor the effect and operation of the impugned Act is to take away or abridge the right  of  freedom of speech and expression enjoyed  by  the petitioners. The gravamen of the complaint of the petitioners against the impugned Act, however, has been the appointment of the  Wage Board  for  fixation  of  rates of  wages  for  the  working journalists  and it is contended that apart from creating  a

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class  of privileged workers with benefits and rights  which were  not  conferred  upon  other  employees  of  industrial establishments,  the Act has left the fixation of  rates  of wages  to an agency invested with arbitrary and  uncanalised powers  to  impose  an  indeterminate  burden  on  the  wage structure  of  the press, to impose  such  employer-employee relations  as in its discretion it thinks fit and to  impose such  burden  and  relation-, for such  time  as  it  thinks proper.   This contention will be more  appropriately  dealt with  while  considering  the alleged  infringement  of  the fundamental  right enshrined in Art. 19(1) (g).  Suffice  it to  say  that  so far as Art. 19(1) (a)  is  concerned  this contention  also has a remote bearing on the same  and  need not be discussed here at any particular length. Re: Article (19(1) (g). The fundamental right of the petitioners herein is the right to carry on any occupation, trade or business. This  freedom also is hemmed in by limitations which are  to be  found in Art. 19(6), which in so far as it  is  relevant for our purposes enacts: " Nothing in sub-clause (g) of the said clause shall  affect the  operation of any existing law in so far as it  imposes, or  prevent the State from making any law imposing,  in  the interests of the general public, reasonable restrictions  on the  exercise  of  the right, conferred  by  the  said  sub- clause," 137 The contention under this head is thus elaborated on  behalf of the petitioners: 1.The impugned Act imposes unreasonable restrictions   on the freedom to carry on business: (a)  in  empowering  the  fixation of  rates  of  wages   on criteria relevant only for fixation of minimum, wages; (b)in  empowering fixation of wages, grant of  gratuity  and compensation  without  making it incumbent on the  Board  to consider the major factor of the capacity of the industry to pay; (c)in  authorizing the Board to have. regard to not what  is relevant  for  such  fixation but to what  the  Board  deems relevant for the purpose; and (d)in  providing for a procedure which does not  compel  the Board to conform to the rules under the Industrial  Disputes Act, 1947, thus permitting the Board to follow any arbitrary procedure violating the principle of audi alteram partem. 2.The restrictions enumerated above in so far as they affect the  destruction  of the petitioners’  business  exceed  the bounds of permissible legislation under Art. 19(1)(g). The unreasonableness of the restriction is further sought to be  emphasized  by  pointing out that under  s.  12  of  the impugned Act, the decision of the Board is declared  binding on  all  employers, though the working journalists  axe  not bound by the same and are entitled, if they are dissatisfied with  it,  to  agitate  for  further  revision  by   raising industrial  disputes between themselves and their  employers and  having them adjudicated under the  Industrial  Disputes Act, 1947. The test of reasonable restrictions which can be imposed  on the  fundamental right enshrined in Art. 19(1)(g)  has  been laid down by this Court in two decisions: In  Chintaman Rao v. The State of Madhya Pradesh(1)  Mahajan J.  (as  he  then  was) observed  at  p.  763  : "The  phrase  "reasonable  restriction"  connotes  that  the limitation imposed on a. person in enjoyment (1)  [1950] S.C.R. 759, 763. 138

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of  the  right should not be arbitrary or  of  an  excessive nature,  beyond  what is required in the  interests  of  the public.   The word " reasonable " implies  intelligent  care and  deliberation,  that is, the choice of  a  course  which reason   dictates.    Legislation   which   arbitrarily   or excessively invades the right cannot be said to contain  the quality  of  reasonableness and unless it strikes  a  proper balance between the freedom guaranteed in article  19(1)(g), and  the social control permitted by clause (6)  of  article 19,  it must be held to be wanting in that quality."  [cited with approval in Dwarka Prasad Laxmi Narain v. The State  of Uttar Pradesh & Ors. (1) and in Ch.  Tika Ramji v. State of’ Uttar Pradesh & Ors.  (2) ]. The  State of Madras v. V. G. Rao (3) was the next  case  in which  this phrase came to be considered by this  Court  and Patanjali Sastri C. J. observed at p. 606:- " This Court had occasion in Dr. Khare’s case (4) to  define the scope of the judicial review under clause (5) of Art. 19 where  the phrase " imposing reasonable restrictions on  the exercise  of  the right " also occurs and four of  the  five judges participating in the decision expressed the view (the other  judge  leaving  the  question  open)  that  both  the substantive  and  the  procedural aspects  of  the  impugned restrictive law should be examined from the point of view of reasonableness:  that is to say, the Court  should  consider not only factors such as the duration and the extent of  the restrictions but also the circumstances under which and  the manner in which their imposition has been authorised.  It is important  in this context to bear in mind that the test  of reasonableness, where-ever prescribed, should be applied  to each individual statute impugned, and no abstract  standard, or  general pattern, of reasonableness can be laid  down  as applicable to all cases.  The nature of the right alleged to have   been  infringed,  the  underlying  purpose   of   the restrictions  imposed,  the extent and urgency of  the  evil sought to be remedied thereby, the disproportion (1)  [1954] S.C.R. 803, 811. (3)  [1952] S.C.R. 597, 606, 607. (2)  [1956] S.C.R. 393, 446. (4)  [1950] S.C.R. 519. 139 of  the imposition, the prevailing conditions at  the  time, should all enter into the judicial verdict." This  criterion was approved of in State of West  Benqal  v. Subodh  Gopat  Bose  & Others (1) where  the  present  Chief Justice  further expressed his opinion that the fact of  the statute  being  given retrospective operation  may  also  be properly   taken  into  consideration  in  determining   the reasonableness of the restriction imposed in the interest of the general public [see also a recent decision of this Court in Virendra v. State of Punjab (2)]. The  appointment of a wage board for the purposes of  fixing rates  of wages could not be and was not challenged as  such because  the  constitution  of such  wage  boards  has  been considered one of the appropriate modes for the fixation  of rates of wages.  The Industrial Disputes Act, 1947, can only apply  when  an  industrial dispute actually  arises  or  is apprehended to arise between the employers and the employees in a particular industrial establishment.  Though under  the amendment of that Act by the Industrial Disputes  (Amendment and Miscellaneous Provisions) Act, 1956, (36 of 1956), there is a provision for the appointment of a National Tribunal by the  Central Government for the adjudication  of  industrial disputes  which  in the opinion of  the  Central  Government

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involve  questions of national importance or are of  such  a nature that industrial establishments situated in more  than one  State are likely to be interested in, or  affected  by, such dispute (Vide s. 7-B) the condition precedent, however, is  the  existence of an industrial dispute  or  the  appre- hension  of  one.   If  the wages for  the  employees  of  a particular  industry  have got to be fixed without  such  an industrial  dispute  having arisen or being  apprehended  to arise,  the only proper mode of such fixation would  be  the appointment  of wage boards for the purpose.  They take  the place   of  Industrial  Tribunals  or  National   Industrial Tribunals  and are generally constituted of equal number  of representatives  of the employers and the employees in  that particular industry along with a quota of independent member or (1) [1954] S.C.R. 587, 626. (2) [1958] S.C.R. 308. 140 members one of whom is appointed the chairman of the Board. The  main  grievance of the petitioners, however,  has  been that  the  relevant criteria for the fixation  of  rates  of wages  were not laid down in s. 9(1) of the Act.  Section  8 empowered the Central Government to constitute a wage  board for fixing rates of wages in respect of working  journalists in  accordance  with the provisions of the Act and  s.  9(1) directed that in fixing such rates of wages the Board  &hall have  regard to the cost of living, the prevalent  rates  of wages for comparable employments, 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.  These criteria, it was contended,  were only relevant for fixing minimum rates of wages,’ though the word  " minimum " which had been used in the Bill No. 13  of 1955  as introduced in the Rajya Sabha was deleted when  the Act actually came to be passed and it was further  contended that  the  capacity  of the Industry to  pay  which  was  an essential circumstance to be taken into consideration in the fixation   of  wages  was  not  set  out  as  one   of   the circumstances to be taken into consideration by the Board in fixing rates of wages.  It was also contended that the other circumstances  which the Board was directed to  consider  in addition  to those specifically enumerated in s.  9(1)  were such as to the Board may seem relevant thus relegating these circumstances  to the subjective determination of the  Board with  the  necessary  consequence that  no  Court  or  other authority could scrutinize the same objectively. We do not propose to enter into any elaborate discussion  on the question whether it would be competent to us in arriving at a proper construction of the expression " fixing rates of wages  " to look into the Statement of Objects  and  Reasons attached  to  the Bill No. 13 of 1955 as introduced  in  the Rajya  Sabha  or the circumstances under which  the  word  " minimum " came to be deleted from the provisions of the Bill relating  to rates of wages and the Wage Board and the  fact of  such  deletion  when the Act came to be  passed  in  its present 141 form.   There is a consensus of opinion that these  are  not aids  to the construction of the terms of the Statute  which have  of  course  to be given their  plain  and  grammatical meaning [See: Ashvini Kumar Ghosh & Anr. v. Arabinda Bose  & Anr.  (1)  and  Provat  Kumar  Kar  and  others  v.  William Trevelyan’  Curtiez Parkar It is only when the terms of  the statute  are ambiguous or vague that resort may be  had  -to them  for the purpose of arriving at the true  intention  of

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the legislalature.  No such reference is, however, necessary in the case before us, even though perchance, the expression " fixing rates of wages " be considered ambiguous in so  far as  it does not specify whether the " wages there are  meant to  be " living wages ", " fair wages or " minimum wages  ". We have already stated in the earlier part of this  judgment that  the  Act  was  passed with a  view  to  implement  the recommendations of the Press Commission’s Report and we have already seen that the concept of minimum wage, as adopted by the  Press Commission was not that of a bare subsistence  or minimum wage but what it termed a minimum wage was meant  to provide  for not merely the bare subsistence of living,  but for the efficiency of the worker, making provision also  for some   measure  of  education,  medical   requirements   and amenities.  If this was the concept of a minimum wage  which the  Legislature  set about to implement, that  minimum  was certainly higher than the bare subsistence or minimum  wage, and,  in  any event, required a consideration by  the  Wages Board  of the capacity of the industry to pay,  even  though the  Press Commission itself did not think it necessary,  to do  so, it having expressed the opinion that if a  newspaper industry could not afford to pay to its employees a  minimum wage,  which  would enable them to live  decently  and  with dignity, that newspaper had no right to exist. This  was the concept of a minimum wage which was sought  to be  implemented by the legislature and for that purpose  the capacity   of   the  industry  to  pay  was   an   essential circumstance to be taken into consideration and the deletion of the word " minimum ", if at (1) [1953] S.C.R. I. (2) A.I.R. 1950 Cal. 116. 142 all,  had  the effect of widening the scope of  the  enquiry before the Wage Board. if the word " minimum " had been used in relation to the -rates of wages and the Wage Board in the impugned Act, the wage Board in its deliberations would have been necessarily confined (to a consideration of that aspect alone.   But, by the deletion of that wordfrom  the  context the  Wage Board was invested with a power to  determine  the question of the fixation of rates of wages unfettered by any such  limitations and to fix the rates of wages in any  pro- per  manner having regard to the circumstances of the  case, whether  the  resultant wages would be a  statutory  minimum wage  or  would approximate to a standard  of  wage,  though having  regard to the economic conditions of our country  at present  they  could not find it within their power  to  fix living  wages  for the working  journalists.   The  criteria which  were specified in s. 9(1) of the Act  comprised  also the  prevalent rates  of wages for  comparable  employments. This  criterion had no relation whatever to  Minimum  wages. Reference  may be made in this connection to a  decision  of the  Industrial Court in the case of Nellimarla  Jute  Mills (1),  where  it was held that the comparison with  rates  of waves in other concerns could be undertaken for  determining fair  wage  and  the  upper  limit  of  wages  but  not  for determining the minimum or floor level of wages which should depend  on the minimum requirements of the  workers’  family consisting  of three consumption units.  This criterion  was no  doubt  taken into consideration by the  members  of  the Committee on Fair Wages as also by the Press Commission  and even  though the Press Commission considered that to  be  an essential ingredient of the minimum wage as contemplated  by it, we are not inclined to stress that circumstance so  much and come to the conclusion that what was contemplated in  s. 9(1) was merely a minimum wage and no other.

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If, therefore, the criterion of the prevalent rates of wages for comparable employments can on a true construction of  s. 9(1)be considered consistent only with the fixation of rates of wages which are higher than (1)  [1053] 1 L.L.J. 666,                             143 the  bare  subsistence  or  minimum  wage  whether  they  be statutory minimum wage or fair wage or even living wage,  it could not be urged that the criteria specified in s. 9(1) of the  Act were relevant only for fixation of  minimum  wages. The capacity of the industry to pay was therefore one of the essential  circumstances to be taken into  consideration  by the  Wage Board whether it be for the fixation of  rates  of wages  or  the scales of wages which, as  we  have  observed before, were included within the expression " rates of wages ".  This was by no means an unimportant  circumstance  which could be assigned a minor role.  It was as important as  the cost  of  living,  and  the prevalent  rates  of  wages  for comparable  employments and ought to have been  specifically mentioned  in s. 9(1).  The Legislature however, was  either influenced  in  not mentioning it as such by reason  of  the view taken by the Press Commission in that behalf or thought that  the  third criterion which was specified in  s.  9(1), viz.,  the circumstances relating to the newspaper  industry in different regions of the country was capable of including the  same.  Even here, there is considerable  difficulty  in reconciling  oneself  to  this mode  of  construction.   The capacity  of the industry to pay, can only be considered  on an  industry -cum- region basis and this  circumstance  from that  point  of view would be capable of being  included  in this  criterion,  viz., the circumstances  relating  to  the newspaper  industry  in different regions  of  the  country. Even  if it were thus capable of being included,  the  minor role  assigned to it along with literacy of the  population, the  popularity  of  the newspapers,  predilections  of  the population in the matter of language and other circumstances of  the like nature prevailing in the different  regions  of the  country  would make it difficult to imagine  that  this circumstance  of  the capacity of the industry  to  pay  was really in the mind of the Legislature, particularly when  it is remembered that the Press Commission attached no signifi- cance  to the same.  From that point of view, the  criticism of the petitioners would appear to be justified viz., :-that it was not made incumbent on the Board to consider the major factor of the capacity of the 144 industry  to pay as an essential circumstance in fixing  the rates  of wages.  It is, however, well-recognized  that  the Courts  would  lean  towards  the  constitutionality  of  an enactment and if it is possible to read this circumstance as comprised  within the category of circumstances relating  to the newspaper industry in different regions of the  country, the  court should not strike down the provisions as  in  any manner   whatever   unreasonable  and   violative   of   the fundamental right of the petitioners. We are therefore of opinion that s. 9(1) did not eschew  the consideration  of  this essential  circumstance,  viz.,  the capacity of the industry to pay and it was not only open but incumbent  upon  the Wage Board to consider  that  essential circumstance in order to arrive at the fixation of the rates of wages of the working journalists. The  last criterion enumerated in s. 9(1) of the Act  was  " any other circumstance which to the Board may seem  relevant "  and  it  was  urged that this  was  left  merely  to  the subjective  determination of the Board and the Board was  at

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liberty  to  consider  the circumstances,  if  any,  falling within  this category in its own absolute  discretion  which could  not be  Controlled by any higher authority.   If  the matters were left to be objectively determined then it would certainly be enquired into and the existence or otherwise of such  circumstances would be properly scrutinized in  appro- priate  proceedings.   The manner in  which,  however,  this criterion  was  left to be determined by the  Board  on  its subjective  satisfaction was calculated to enable the  Board to exercise arbitrary powers in regard to the same and  that was  quite  unreasonable  in itself.   The  case  of  Thakur Raghubir  Singh  v. Court of Wards, Ajmer &  Ors.  (1),  was pointed  out as an illustration of such an arbitrary  -power having been vested in the Court of Wards which could in  its own  discretion and on its subjective  determination  assume the  superintendence of the property of a landed  proprietor who  habitually  infringed the rights of his  tenants.   The provision was there struck down because such subjective (1)[1953] S. C. R. 1049,1052. 145 determination  which resulted in the superintendence of  the property   of  a  citizen  being  assumed  could,   not   be scrutinized and the propriety thereof investigated by higher authorities. This  argument,  however,  does  not  help  the  petitioners because  this criterion is on a par with or ejusdem  generis with  the  other  criteria  which  have  been   specifically enumerated  in the earlier part of the section.   The  major and important criteria have been specifically enumerated and if  would be impossible for the Legislature exhaustively  to enumerate the other circumstances which would be relevant to be  considered by the Board in arriving at the  fixation  of the rates of wages.  In the course of the enquiry the  Board might  come across other relevant circumstances which  would weigh with it in the determination of the rates of wages and it  would  not be possible for the Legislature to  think  of them or to enumerate the same as relevant considerations and it  was therefore, and rightly in our opinion, left  to  the Board to determine the relevancy of those circumstances  and take  them  into  consideration while fixing  the  rates  of wages.   If the principles which should guide the  Board  in fixing  the  rates of wages were laid down  with  sufficient clarity  and particularity and the criteria so far  as  they were of major importance were specifically enumerated  there was  nothing wrong in leaving other relevant  considerations arising  in  the  course of the enquiry  to  the  subjective satisfaction  of  the  Board.  The  Board  was,  after  all, constituted of equal numbers of representatives of employers and the employees and they were best calculated to take into account  all  the relevant circumstances  apart  from  those which were, specifically enumerated in the section. It was, however, contended that the procedure to be followed by the Board for fixing the rates of wages was not laid down and  it  was  open  to the Board  to  follow  any  arbitrary procedure violating the principle of audi alteram partem and as  such this also was unreasonable.  Section 20 (2) (d)  of the  impugned  Act gave power to the Central  Government  to make rules 19 146 inter alia in regard to the procedure to be followed by  the Board  in  fixing  rates of wages and s.  11  provided  that subject  to  any rules which might be prescribed  the  Board may, for the purpose of fixing rates of wages, exercise  the same  powers and follow the same procedure as an  Industrial

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Tribunal  constituted  under the  Industrial  Disputes  Act, 1947,  exercises or follows for the purpose of  adjudicating an industrial dispute referred to it.  This was, however, an enabling provision which vested in the Board the  discretion whether  to  exercise the same powers and  follow  the  same procedure  as  an  Industrial Tribunal.  The  Board  was  at liberty not to do so and follow its own procedure which  may be  arbitrary or violative of the principle of audi  alteram partem. It has to be remembered, however, that in the United Kingdom the  Wage Councils and the Central Co-ordinating  Committees under  the  Wages Councils Act, 1945, and  the  Agricultural Wages  Board under the Agricultural Wages  Regulations  Act, 1924,  also  are empowered to regulate their  proceeding  in such manner as they think fit.  The Wage Boards in Australia have  also no formal procedure prescribed for  them,  though the  Wage  Boards which are established  under  the  amended Bombay  Industrial  Relations  Act, 1946,  are  enjoined  to follow the same procedure as an industrial court in  respect of industrial proceedings before it. It would not  therefore be  legitimate to hold that the procedure to be followed  by the wage board for fixing rates of wages must necessarily be prescribed  by the statute constituting the same.  It is  no doubt  contemplated in each of these statutes that rules  of procedure may be prescribed; but even though they, may be so prescribed, it is left to the discretion of the wage  boards to  regulate  their procedure in such manner as  they  think fit, subject of course to the rules thus prescribed.  A wide discretion  is thus left with the wage boards  to  prescribe their  own  rules of procedure, but it  does  not  therefore follow that they are entitled to follow any arbitrary  rules of  procedure.   The  wage  boards  are  responsible  bodies entrusted  with  the task of gathering  data  and  materials relevant for the 147 determination  of  the issues arising before them  and  even though  they are not judicial tribunals  but  administrative agencies  they  would elicit all  relevant  information  and invite answers to the questionnaire or representations  from the  parties  concerned, hear evidence and arrive  at  their determination after conforming to the principles of  natural justice.   Even  though  they  may  perform,  quasi-judicial functions,  the exercise of arbitrary powers by  them  would not be countenanced by, any court or higher authority. In  the present case, however, we have in, the forefront  of the  impugned Act a provision as to the application  of  the Industrial  Disputes Act 1947, to working  journalists.   No doubt certain specific provisions as to payment of gratuity, hours  of work and leave are specifically enacted, but  when we  come  to the fixation of rates of wages we find  that  a wage  board  has  been constituted  for  the  purpose.   The principles to be followed by the Wage Board for fixing rates of wages are also laid down and the decision of the Board is to  be published in the same manner as awards of  industrial courts,under  the Industrial Disputes Act.  Then follows  s. 11 which talks of the powers and procedure of the Board  and there  also, subject to any rules of procedure which may  be prescribed by the Central Government, the Board is empowered to exercise the same powers and follow the same procedure as an  Industrial  Tribunal constituted  under  the  Industrial Disputes  Act.   If regard be had to this  provision  it  is abundantly  clear that the intention of the Legislature  was to  assimilate  the Wage Board thus constituted as  much  as possible  to an Industrial Tribunal constituted:  under  the Industrial Disputes Act, 1947, and it was contemplated  that

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the Board may for fixing rates. of wages, exercise the  same powers  and follow the same procedure.  The decision of  the Board  was  to be binding on all the employers,  though  the working journalists were at liberty to further agitate  the, question under the Industrial Disputes Act if they were  not satisfied  with the deciSion of the Wage Board and wanted  a further  increase in their rates of wages, thus  determined. All these 148 circumstances  point to the conclusion that even though  the Board  was not bound to exercise the same powers and  follow the  same  procedure as an industrial  tribunal  constituted under  the  Industrial Disputes Act, the Board was,  in  any event,  not  entitled  to  ’adopt  any  arbitrary  procedure violating the principles of natural justice. If  on  the  construction of the relevant  sections  of  the statute  the functions which the Wage Board  was  performing would be tantamount to laying down a law or rule of  conduct for  the future so that all the employers and the  employees in the’ industry not only those who were participating in it in the present but also those who would enter therein in the future  would be bound by it, the dictum of  Justice  Holmes would  apply and the functions performed by the  wage  board could be characterized as legislative in character.   Where, however,  as  in the present case, the constitution  of  the Wage   Board  is  considered  in  the  background   of   the application of the provisions of the Industrial Disputes Act to  the  working  journalists and  the  provisions  for  the exercise of the same powers and following the same procedure as  an industrial tribunal constituted under the  Industrial Disputes  Act, it would be possible to argue that  the  Wage Board  was  not  exercising legislative  functions  but  was exercising functions which were quasi-judicial in character. In  this  connection,  it  was also  pointed  out  that  the Legislature  itself while enacting the impugned Act did  not consider  these functions as legislative at all.  The  Rules of  Procedure  and Conduct of Business in Lok  Sabha  (1957) provide  in Rule No. 70 for a Bill involving  proposals  for the  delegation  of  legislative  power  shall  further   be accompanied  by a memorandum explaining such  proposals  and drawing  attention to their scope and stating  also  whether they are of normal or exceptional character.  There is  also a committee on subordinate legislation which is  established for  scrutinizing  and reporting to the House;  whether  the powers to make regulations, rules, sub-rules, by-laws, etc., conferred by the Constitution or delegated by Parliament are being properly exercised within ’such 149 delegation  (vide Rule 317 ibid).  The constitution  by  the Legislature of the Wages Board in the matter of the fixation of rates of wages was not considered as a piece of delegated legislation   in   the   memorandum   regarding   -delegated legislation  appended  to  the draft Bill No.  13,  of  1955 introduced in the Rajya Sabha on September 28, 1955, and the only reference that was made there was to Cl. 19 of the Bill which  empowered  the Central Government to  make  rules  in respect  of  certain matters specified therein  and  it  was stated  that  these  were purely  procedural  matters  of  a routine  character  and related inter  alia  to  prescribing hours  of work, payment of gratuity, holidays, earned  leave or other kinds of leave and the procedure to be followed  by the  Minimum  Wager, Board in fixing minimum wages  and  the manner  in which its decisions may be published.  Clause  19 (3)  of the Bill further provided that all rules made  under this  section  shall as soon as practicable after  they  are

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made,  be  laid  before both Houses  of  Parliament.   These clauses were ultimately passed as s. 20 of the impugned  Act but  they  were  the only  piece  of  delegated  legislation contemplated  by  the Legislature and were  covered  by  the memorandum  regarding  the same which was  appended  to  the Bill.   The  decision of the Wage Board was not to  be  laid before  both the Houses of Parliament which would have  been the  case if the fixation of rates of wages was a  piece  of delegated  legislation.  It was only to be published by  the Central  Government after it/ was communicated to it by  the Wage Board in such manner as the Central Government  thought fit,  a  provision  which was akin  to  the  publication  of award,,;  of  the Industrial Tribunals  by  the  appropriate Government  under the provisions of the Industrial  Disputes Act,  1947.   This  circumstance also  was  pointed  out  as indicative  of  the  intention of  the  Legislature  not  to constitute  the  Wage  Board  a  sub-legislative  authority. While  recognizing  the force of these  contentions  we  may observe  that  it  is  not necessary  for  our  purposes  to determine   the  nature  and  character  of  the   functions performed  by the Wage Board here.  It is sufficient to  say that the Wage Board was not empowered or 150 authorised  to adopt any arbitrary,procedure and  flout  the principles of, natural justice. It  was  next  contended that the  restrictions  imposed  on newspaper establishments under the terms of the impugned Act were unreasonable in so far as they would have the effect of destroying  the  business  of  the  petitioners  and   would therefore exceed the bounds of permissible legislation under Art.  19(6).   It  was  urged  that  the  right  to   impose reasonable  restrictions on the petitioners’ right to  carry on  business did not empower the legislature to destroy  the business  itself and reliance was placed in support of  this proposition  on  Stone v. Farmers Loan and  Trust  Co.  (1), where it was observed:- "  From  what has thus been said it is not to,  be  inferred that  this  power  of limitation  or  regulation  is  itself without  limit.   This power to regulate is not a  power  to destroy,   and   limitation  is  not  the,   equivalent   of confiscation." Similar observations of the Judicial Committee of the  Privy Council in-the Municipal Corporation of the City of  Toronto v.  Virgo  (2)  and  the Attorney  General  for  Ontario  v. Attorney General for the Dominion (3) were also relied  upon and  particularly the following observations in  the  former case:- " But their Lordships think there is a marked distinction to be  drawn between the prohibition or prevention of  a  trade and the regulation or governance of it and indeed a power to regulate and govern seem,,; to imply the continued existence of that which is sought to be, regulated or governed." These  observations were considered by this Court in  Saghir Ahmed v. State of U. P. & Ors. (4) and after considering the various  cases  which Were cited by both sides,  this  Court observed: "  Be that as it may,, although in our opinion the     normal use of the word " restrictionseems to be in      the  sense of I., limitation" and notextraction ", we    would   on this occasion prefer not toexpress any final (1)  [1885] 116 U. S. 307, 331; 29 L. Ed. 636, 644. (2)  [1896] A.C. 88, 93- (J-C) (4)  [1955] 1 S.C.R. 707,724. (3) [1896] A.C. 348, 363. 151

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opinion on this matter" and the Court ultimately wound up by saving that ,whether the restrictions are reasonable or  not would  depend to a large extent on the nature of  the  trade and the conditions prevalent in it." Even  if  the  provisions  of the  impugned  Act  would  not necessarily  have the effect of destroying the  business  of the petitioners but of crippling it and making it impossible for  the  petitioners  to continue  the  same  except  under onerous conditions, they would have the effect of curtailing their circulation and drive them to seek government aid  and thereby  impose  an unreasonable burden on  their  right  to carry  on  business and would come within the  ban  of  Art. 19(1) (g) read with Art. 13(2) of the Constitution. Several  provisions of the impugned Act were referred to  in this context.  Section 2(f) of the Act which defines working journalist " so as to include " proofreader was pointed  out in  this  connection and it was urged that even  though  the Press Commission Report recommended the exclusion of certain class  of  proof-readers  from  the  definition  of  working journalists the Legislature went a step further and included all  proof-readers within that definition  thereby  imposing upon the newspaper establishments an unreasonable burden far in excess of what they were expected to bear.  The provision as to the notice in relation to the retrenchment of  working journalist   was  also  extended  beyond   the   limitations specified  in s. 25F of the Industrial Disputes  Act,  1947, and was extended to six months in the case of an Editor  and three  months in the case of any other  working  journalist. The  provision  with regard to retrenchment  was  also  made applicable  retrospectively  to all  cases  of  retrenchment which had occurred between July 14, 1954, and March 12, 1955 ;  so also the payment of gratuity was ordered not  only  in the  cases  usually provided for but also in cases  where  a working  journalist who had been in continuous  service  for not less than three years voluntarily resigned from  service from   a  newspaper  establishment.   The  hours   of   work prescribed  were  144 hours only during any period  of  four consecutive weeks and they were 152 far less in number than the hours of work recommended by the Press Commission Report.  The fixation of rates of wages was entrusted to the Wage Board which could fix any wages  which it  thought  proper  irrespective of  the  capacity  of  the industry to pay and might be such as the industry could  not bear.   These  provisions taken each one by itself  may  not have  the  effect of destroying  the  petitioners’  business altogether or even crippling it in the manner indicated  but taken  cumulatively along with the provisions  contained  in ss.  14  and  15  of the  impugned  Act  which  applied  the provisions  of the Industrial Employment  (Standing  Orders) Act, 1946, and, the Employees’ Provident funds Act, 1952, to newspaper  establishments would certainly bring  about  that result  and  would  therefore  constitute  an   unreasonable restriction on the, petitioners’ right to carry on business. We shall deal with these contentions one by one. There  is  no  doubt that " proof-readers  "  were  not  all recommended  by the Press Commission to be included  in  the definition  of  working  journalists,  but  it  has  to   be remembered  that  proof-readers  occupy  a  very   important position   in   the   editorial   staff   of   a   newspaper establishment.  B. Sen Gupta in his " Journalism as a Career "  (1955)  talks  of the position  of  the  proof-reader  as follows: "  The  proof-reader  is  another  important  link  in   the production  of a newspaper.  On him depends, not to a  small

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extent,  the  reputation  of a paper.  He  has  to  be  very careful in correcting mistakes and pointing out any error of fact or grammar that has crept into any news item or article through  oversight or hurry on the part of  the  sub-editor. He  has  not only to correct mistakes but also to  see  that corrections  are  carried out ", and the Kemsley  Manual  of Journalism has the following passage at p. 337: "  Having  thus  seen the proof-reader  in  action,  lot  us consider  in  detail  what  proof-reading  denotes.   It  is primarily  the  art  and practice  of  finding  mistakes  in printed  matter  before publication and  of  indicating  the needed corrections.  It includes the detection of variations between the type and the copy from which it was 153 set,  misstatements  of facts, figures or-dates,  errors  in grammar,  inaccuracies  in quotations,  and  other  defects. Often,  too, it happens that, though the  proof-reader  does not feel justified in himself making a correction, he  takes other  action.  If he thinks there is a mistake but  is  not sure,  he must query the -proof so that the editorial  staff may  decide.   He  may spot a libel, or think  he  has.   In either case it is important that the matter shall be queried and passed back to editorial authority. "  It is obvious from this that proof-readers should be  men of exceptional knowledge and sound-judgment.  They should be conversant  with  current affairs, familiar  with  names  of public men and quite sure how they should be spelled.   Some specialize  in  different  branches  of  sport,  others   in theatre, the cinema, music and so on.  This saves much  time in  looking  up books of reference, though, of  course,  the books are there." As  a matter of fact, the Wage Board in the Schedule to  its decision defines "proof reader" as " a person who checks  up printed  matter  or  " Proof " with edited  copy  to  ensure strict  conformity of the former with the  latter.   Factual discrepancies,  slips  of spelling, grammar and  syntax  may also be discovered by him and either corrected or get them corrected." If  this  is the important role played by  the  proofreaders then  no  wonder  that  the  Legislature  in  spite  of  the recommendations  of the Press Commission included them  also in  the  definition of working journalist.   No  doubt  they would be entitled to higher wages by reason of the  fixation of rates of wages by the Wage Board but that would by itself be  no  ground for holding the  inclusion  of  proof-readers within the definition of working journalist an  unreasonable burden on newspaper establishments. The provisions in regard to notice cannot be said to be  per se  unreasonable.   Apart from the  recommendations  of  the Press Commission in that behalf, Halsbury’s Laws of England, Vol. 22, 2nd Edn., p. 150, 20 154 para.  249, foot note (e), contains the following  statement in  regard  to  the periods of reasonable  notice  to  which persons of various employments have been found entitled:- Newspaper  editor, from six months (Fox-Bourne v.  Vernon  & Co. Ltd., (1894) 10 T. L. R. 647); to twelve months  (Grundy v. Sun Printing and Publishing Association, (1916) 33 T.  L. R. 77, C. A.). Sub-editor of a newspaper, six months (Chamberlain v.  Bennett, (1892) 8 T. L. R. 234). Foreign correspondent to The Times, six months period  (Lowe v. Walter, (1892) 8 T. L. R. 358). The  Press  Commission also recommended that the  period  of

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notice  for the termination of services should be  based  on the  length  of the service rendered and the nature  of  the appointment.   There  could be no hard and fast rule  as  to what  the notice period should be.  The practice  upheld  by law  or  by  collective bargaining varies  from  country  to country.   In  England  the  practice  established  by  some judicial  decisions  is  that the editor is  entitled  to  a year’s notice and an assistant editor to six months’ notice. After examining the provisions in regard to notice which are in vogue in England, the Commission also noticed a  decision in  Bombay  (Suit No. 735 of 1951 in the City  Civil  Court) where the judge concerned held that in the circumstances  of the  particular case the plaintiff, an assistant editor  was entitled  to  a  notice of four months  although  in  normal times,  he said, the rule adopted in England of  six  months should  be the correct rule to adopt in India and  a  longer period  of notice was suggested for editors because  it  was comparatively   much  more  difficult  to   secure   another assignment  for a journalist of that seniority and  standing in the profession. The  period  of six months, in the case of  an  editor,  and three  months, in the case of any other working  journalists prescribed  under s. 3(2) of the impugned Act was  therefore not open to any serious objection. The  retrospective operation of this provision in regard  to the  period between July 14, 1954, and March 12,  1955,  was designed  to  meet the few cases of those employees  in  the editorial staff of the newspaper 155 establishments  who had been retrenched by  the  managements anticipating  the implementation of the  recommendations  of the  Press Commission.  There was nothing untoward  in  that provision also. When  we  come  however to the provision in  regard  to  the payment  of gratuity to working journalists who  voluntarily resigned from service from newspaper establishments, we find that  this was a provision which was not at all  reasonable. A  gratuity  is  a scheme of  retirement,  benefit  and  the conditions for its being awarded have been thus laid down in the Labour Court decisions in this country. In  the  case  of Ahmedabad  Municipal  Corporation  it  was observed at p. 158 :- " The fundamental principle in allowing gratuity is that  it is  a retirement benefit for long services, a provision  for old age and the trend of the recent authorities as borne out from  various  awards  as  well as  the  decisions  of  this Tribunal  is in favour of double benefit We are,  therefore, of  the  considered opinion that Provident Fund  provides  a certain  measure  of  relief  only and  a  portion  of  that consists  of  the employees’ wages, that he  or  his  family would  ultimately  receive, and that this provision  in  the present day conditions is wholly insufficient relief and two retirement benefits when the finances of the concern  permit ought to be allowed." (See also Nundydroog Mines Ltd. (2). These  were  cases  however of gratuity  to  be  allowed  to employees  on their retirement.  The Labour Court  decisions have however awarded gratuity benefits on the resignation of an employee also.  In the case of Cipla Ltd. (3), the  Court took  into  consideration the capacity of  the  concern  and other  factors therein referred to and directed gratuity  on full  scale  which included (2) on voluntary  retirement  or resignation  of  an  employee  after  15  years   continuous service. Similar considerations were imported in the case of (1)  (1955) L.A.C. 55, 58.

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(2)  (1956) L.A.C. 265, 267. (3)  [1955] 2 L.L.J. 355, 358. 156 the  Indian  Oxygen  &  Acetylene Co.,  Ltd.  where  it  was observed: "  It  is now well-settled by a series of decisions  of  the Appellate  Tribunal that where an employer company  has  the financial  capacity  the workmen would be  entitled  to  the benefit  of  gratuity  in addition to the  benefits  of  the Provident  Fund.  In considering the financial  capacity  of the  concern  what has to be seen is the  general  financial stability  of  the concern.  The factors  to  be  considered before  granting a scheme of gratuity are the broad  aspects of  the  financial  condition of  the  concern,  its  profit earning  capacity,  the  profit  earned  in  the  past,  its reserves  and the possibility of replenishing the  reserves, the claim of capital put having regard to the risk involved, in short the financial stability of the concern. There  also the court awarded gratuity under ground  No.  2, viz.,  on retirement or resignation of an employee after  15 years of continuous service and 15 months’ salary or wage. It  will be noticed from the above that even in those  cases where  gratuity  was awarded on the  employee’s  resignation from service, it was granted only after the completion of 15 years  continuous service and not merely on a minimum  of  3 years service as in the present case. Gratuity   being   a reward for good,efficient andfaithful service rendered  for a considerable period    (Vide Indian Railway  Establishment Code, Vol.  1 at p. 614-Ch.  XV, para. 1503), there would be no  justification  for awarding the same  when  an  employee voluntarily  resigns and brings about a termination  of  his service, except in exceptional circumstances. One such exception is the operation of what is termed "  The conscience  clause ". In Fernand Terrou and  Lucion  Solal’s Legislation for Press, Film and Radio in the World to-day (a series of studies published by UNESCO in 1951) the following passage  occurs  in  relation  to  "  Journalists’   Working Conditions and their Moral Rights ", at p. 404: (1)  [1956] 1 L.L.J- 435. 157 Among   the  benefits  which  the  status  of   professional journalist may confer (whether it stems from the law or from an agreement) is one of particular importance, since it goes to the very core of the profession.  It concerns freedom  of information.   It is intended to safeguard the  journalist’s independence,  his freedom of thought and his moral  rights. It  constitutes  what  has  been  called  in  France  the  " conscience clause ". The essence of this clause is that when a  journalist’s  integrity is seriously threatened,  he  may break the contract binding him to the newspaper concern, and at  the  same  time receive all the  indemnities  which  are normally  payable only if it is the employer who breaks  the contract.   In France, accordingly, under the law  of  1935, the  indemnity for dismissal which, as we have seen, may  be quite  substantial,  is payable even when  the  contract  is broken  by  a professional journalist, in  cases  where  his action is inspired by " a marked change in the character  or policy  of  the  newspaper or  periodical,  if  such  change creates  for the person employed a situation prejudicial  to his  honour, his reputation, or in a general way  his  moral interests. "  This  moral right of a journalist is  comparable  to  the moral  right of an author or artist, which the law  of  1935 was the first to recognize, has since been acknowledged in a number  of  countries.   It was  stated  in  the  collective

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contract of January 31, 1938, in Poland in this form: "  The following  are good and sufficient reasons for a  journalist to cancel hip, contract without warning; (a) the exertion of pressure  by an employer upon a journalist to induce him  to perform  an immoral action; (b) a fundamental change in  the political  outlook  of  the journal,  proclaimed  by  public declaration or otherwise made manifest, if the  journalist’s employment  would  thereafter be contrary to  his  political opinions or the dictates of his conscience." A  similar  clause  is to be found in  Switzerland,  in  the collective  agreement signed on April 1, 1948,  between  the Geneva  Press Association and the Geneva Union of  Newspaper Publishers: If a marked change takes place in the character 158 or  fundamental policy of the newspaper, if the  concern  no longer has the same moral, political or religious  character that  it  had at the moment when an editorial  employee  was engaged  and  if  this change is such as  to  prejudice  his honour,  his  reputation  or, in a general  way,  his  moral interests,  he  may demand his instant  release.   In  these circumstances     he    shall    be    entitled    to     an indemnity............ This indemnity is payable in the  same manner as was the salary." The  other  exception  is where the  employee  has  been  in continuous service of the employer for a period of more than 15 years. Where  however an employee voluntarily resigns from  service of  the employer after a period of only three  years,  there will  be  no  justification  whatever  for  awarding  him  a gratuity  and any such provision of the type which has  been made  in  s.  5(1)(a)(iii) of the  Act  would  certainly  be unreasonable.  We hold therefore that this provision imposes an  unreasonable  restriction on the petitioners’  right  to carry  on  business  and  is liable to  be  struck  down  as unconstitutional. The provision in regard to the hours of work also cannot  be considered  unreasonable  having regard to  the  nature  and quality of the work to be done by working journalists. That leaves the considerations of fixation of rates of wages by  the Wage Board.  As we have already observed,  the  Wage Board is constituted of equal numbers of representatives  of the  newspaper  establishments and the  working  journalists with an independent chairman at its head and principles  for the guidance of the Wage Board in the fixation of such rates of wages directing the Wage Board to take into consideration amongst other circumstances the capacity of the industry  to pay  have  also been laid down and it is impossible  to  say that  the  provisions  in  that behalf  are  in  any  manner unreasonable.   It  may be. that the decision  of  the  Wage Board  may  be arrived at ignoring some of  these  essential criteria which have been laid down in s. 9(1) of the Act  or that  the  procedure  followed  by the  Wage  Board  may  be contrary  to  the principles of natural justice.   But  that would 159 affect  the  validity  of the decision itself  and  not  the constitution of the Wage Board which as we have seen  cannot be objected to on this ground. The  further  provision  contained in s. 17 of  the  Act  in regard  to  the  recovery  of money  due  from  an  employer empowering  the  State  Government  or  any  such  authority appointed  in  that behalf to issue a certificate  for  that amount  to the collector in the same manner as an arrear  of land  revenue was also impeached by the petitioners on  this

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ground.   That provision, however, relates only to the  mode of  recovery  and  not to the imposition  of  any  financial burden  as such on the employer.  We shall have occasion  to deal  with  this provision in connection  with  the  alleged infringement   of  the  fundamental  right  under  Art.   14 hereafter.   We  do not subscribe to the view  that  such  a provision infringes the fundamental right of the petitioners to carry on business under Art. 19(1)(g). This  attack of the petitioners on the constitutionality  of the impugned Act under Art. 19(1)(g), viz., that it violates the  petitioners’  fundamental right to carry  on  business, therefore, fails except in regard to s. 5(1)(a)(iii) thereof which   being  clearly  severable  from  the  rest  of   the provisions,  can be struck down as unconstitutional  without invalidating the other parts of the impugned Act. Re.   Article 14. The question as formulated is that the impugned Act selected the  working  journalists for favoured treatment  by  giving them  a statutory guarantee of gratuity, hours of  work  and leave   which  other  persons  in  similar   or   comparable employment had not got and in providing for the fixation  of their  salaries  without  following  the  normal   procedure envisaged  in  the  Industrial  Disputes  Act,  1947.    The following propositions are advanced:- 1.   In  selecting  the Press industry  employers  from  all industrial employers governed by the ordinary law regulating industrial  relations  under the  Industrial  Disputes  Act, 1947, and Act I of 1955, the impugned Act subjects the Press industry employers to discriminatory treatment. 160 2.   Such discrimination lies in (a)  singling  out  newspaper  employees  for   differential treatment; (b)saddling them with a new burden in regard to a section of their workers in matters of gratuities, compensation,  hours of work and wages; (c)devising a machinery in the form of a Pay Commission  for fixing the wages of working journalists; (d)not prescribing the major criterion of capacity to pay to be taken into consideration; (e)allowing  the  Board  in fixing the wages  to  adopt  any arbitrary  procedure  even violating the principle  of  audi alteram partem; (f)permitting  the  Board  the  discretion  to  operate  the procedure of the Industrial Disputes Act for some newspapers and any arbitrary procedure for others; (g)  making  the decision binding only on  the  employersand not on the employees, and (h) providing for the recovery  of money due from the employers in the same manner as an arrear of land revenue. 3.The   classification  made  by  the  impugned  Act   is arbitrary  and  unreasonable, in so far as  it  removes  the newspaper  employers vis-a-vis working journalists from  the general operation of the Industrial Disputes Act, 1947,  and Act I of 1955. The  principle underlying the enactment of Art. 14 has  been the subject-matter of various decisions of this Court and it is  only necessary to set out the summary thereof  given  by Das  J. (as be then was) in Budhan Choudhry & Others v.  The State  of Bihar (I).- " The provisions of article 14 of the Constitution have come up  for discussion before this Court in a number  of  cases, namely,  Chiranjit Lal Chowdhuri v. The Union of India  (2), The State of Bombay v. F. N. Balsara (3), The State of  West Bengal v. Anwar Ali

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(1)[1955] I S.C.R. 1045, 1048. (2)  [1950] S.C.R. 869. (3)  [1951] S.C.R. 682. 161 Sarkar  (1), Kathi Raning Rawat v. The State  of  Saurashtra (2),  Lachmandas Kewalram Ahuja v. The State of  Bombay (3), Quasim  Razvi  v.  The State of Hyderabad  (1),  and  Habeeb Mohamad  v. The State of Hyderabad (5).  It  is,  therefore, not necessary to enter upon any lengthy discussion as to the meaning,  scope and effect of the’ article in question.   It is now well established that while article 14 forbids  class legislation,  it does not forbid  reasonable  classification for the purposes of legislation.  In order, however, to pass the  test of permissible classification two conditions  must be  fulfilled, namely, (i) that the classification  must  be founded  on an intelligible differentia which  distinguishes persons or things that are grouped together from others left out  of  the  group and (ii) that differentia  must  have  a rational relation to the object sought to be achieved by the statute  in question.  The classification may be founded  on different  bases;  namely,  geographical,  or  according  to objects  or occupations or the like.  What is  necessary  is that   there   must  be  a  nexus  between  the   basis   of classification   and   the   object   of   the   Act   under consideration.  It is also well-established by the decisions of  this Court that article 14 condemns  discrimination  not only by a substantive law but also by a law of procedure." It  is in the light of these observations that we shall  now proceed  to consider whether the impugned Act  violates  the fundamental  right of the petitioners guaranteed under  Art. 14 of the Constitution. We have already set out what the Press Commission had to say in regard to the position of the working journalists in  our country.   A  further passage from the Report  may  also  be quoted in this context: "  It  is essential to realise in this connection  that  the work  of  a  journalist demands a  high  degree  of  general education and some kind of specialised training.  Newspapers are  a vital instrument for the education of the masses  and it is their business to protect the rights of the people, to reflect and guide (1) [1952] S.C.R. 284.          (2) (1952) S.C.R. 435. (3) [1952] S.C.R. 710.(5)  [1953] S.C.R. 661. (4)  [1953] S.C.R. 581. 21 162 public  opinion  and  to criticize the  wrong  done  by  any individual  or organization however high placed.  They  thus form  an  essential adjunct to  democracy.   The  profession must,  therefore, be manned by men of high intellectual  and moral  qualities.  The journalists are  in a  sense creative artists and the public rightly or, wrongly, expect from them a  general omniscience and a capacity to express opinion  on any  topic  that may arise, under the sun.  Apart  from  the nature of their work the conditions under which that work is to   be   performed,  are  peculiar  to   this   profession. Journalists  have to work at very high pressure and as  most of  the papers come out in the morning, the journalists  are required to work late in the night and round the clock.  The edition  must go to press by a particular time and  all  the news that breaks before that hour has got to find its  place in   that  edition.   Journalism  thus  becomes   a   highly specialized job and to handle it adequately a person  should be well-read, have the ability to size up a situation and to arrive  quickly  at  the correct conclusion,  and  have  the

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capacity  to  stand  the  stress  and  strain  of  the  work involved.   His  work  cannot  be  measured,  as  in   other industries,  by the quantity of the output, for the  quality of work is an essential element in measuring the capacity of the  journalists.   Moreover,  insecurity  of  tenure  is  a peculiar  feature  of this profession.  This is not  to  say that   no  insecurity  exists  in  other   professions   but circumstances  may  arise in connection with  profession  of journalism   which   may  lead  to  unemployment   in   this profession, which would not necessarily have that result  in other professions.  Their security depends to some extent on the  whims  and caprices of the proprietors.  We  have  come across cages where a change in the ownership of the paper or a, change in the editorial policy of the paper  has-resulted in  a  considerable change in the editorial staff.   In  the case of other industries a change in the proprietorship does not  normally  entail  a change in the staff.   But  as  the essential  purpose of a newspaper is not only to  give  news but  to educate &. d guide public opinion, a change  in  the proprietorship  or in the editorial policy of the paper  may result 163 and in some cases has resulted in a wholesale change of  the staff on the editorial side.  These circumstances, which are peculiar to journalism must be borne in mind in framing  any scheme   for  improvement  of  the  conditions  of   working journalists." (para. 512). These  were the considerations which weighed with the  Press Commission  in  recommending  the  working  journalists  for special  treatment as compared with the other  employees  of newspaper  establishments in the matter of  amelioration  of their conditions of service We  may  also  in this connection  refer  to  the  following passage  from the Legislation for Press, Film and  Radio  in the world to-day (a series of studies published by UNESCO in 1951) (supra) at p. 403:- "  Under certain systems, special advantages more  extensive than those enjoyed by ordinary employees are conferred  upon journalists.   These  may be sanctioned by the  law  itself. For instance, certain Latin American countries have  enacted legislation in favour of journalists which is in some  cases very detailed and far-reaching and offers special  benefits, more particularly in the form of protection against the risk of  sickness  or disability, dismissal  or  retirement.   In Brazil,  professional journalists, who must be of  Brazilian birth   and   nationality,  enjoy  very   considerable   tax exemptions. "  In  France,  the  law of 29  March,  1935,  conferred  on journalists  substantial advantages which at the  time  were far  in  advance of general social legislation.   Thus,  for example,  this  law gives all professional  journalists  the right to an annual holiday with pay.  One month’s holiday is granted to journalists who have been working for a newspaper or  periodical  for  at least one year, and  five  weeks  to journalists whose contract has been in force for 10 years at least.    Should  a  contract  of  indefinite  duration   be terminated, the journalist is entitled to one or two month’s notice and also to an indemnity for dismissal which may  not be  less than one month’s salary per year or part of a  year of service, at the most recent rate of pay.  However, if the period of service exceeds 15 years, the 164 amount  of  the indemnity is fixed, as we have seen,  by  an arbitral committee." The  working journalists are thus a group by themselves  and

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could  be classified as such apart from the other  employees of newspaper establishments and if the Legislature  embarked upon  a  legislation for the purpose of  ameliorating  their conditions of service there was nothing discriminatory about it.   They  could  be  singled  out  thus  for  preferential treatment   against   the  other  employees   of   newspaper establishments.   A  classification of this type  could  not come  within  the ban of Art. 14.  The only thing  which  is prohibited under this article is that persons belonging to a particular group or class should not be treated  differently as  amongst themselves and no such charge could be  levelled against this piece of legislation.  If this group of working journalists was specially treated in this manner there is no scope for the objection that group had a special legislation enacted  for  its benefit or that a  special  machinery  was created,  for fixing the rates of its wages  different  from the   machinery  employed  for  other  workmen   under   the Industrial Disputes Act, 1947.  The payment of  retrenchment compensation  and gratuities, the regulation of their  hours of  work  and the fixation of the rates of  their  wages  as compared  with  those  of other  workmen  in  the  newspaper establishments  could  also  be  enacted  without  any  such disability and the machinery for fixing their rates of wages by way of constituting a wage board for the purpose could be similarly devised.  There was no industrial dispute as  such which had arisen or was apprehended to arise as between  the employers and the working journalists in general, though  it could  have  possibly arisen as between the employers  in  a particular  newspaper  establishment  and  its  own  working Journalists.  What was contemplated by the provisions of the impugned  Act how. ever, was a general fixation of rates  of wages  of  working journalists which  would  ameliorate  the conditions  of their service and the constitution of a  wage board  for this purpose was one of the established modes  of achieving that object.  If, therefore, such a 165 machinery  was devised for their benefit, there was  nothing objectionable  in  it  and there was  no  discrimination  as between  the working journalists and the other employees  of newspaper  establishments in that behalf.  The  capacity  of the  industry  to  pay  was  certainly  to  be  taken   into consideration  by  the Wage Board, as we have  already  seen before, and the procedure of the Board also was  assimilated to  that  adopted  by  an  industrial  tribunal  under   the Industrial  Disputes Act, 1947, or was, in any event, to  be such  as would not be against the principle of audi  alteram partem  or the principles of natural justice.  There was  no occasion,  if  the  Wage Board chose to  exercise  the  same powers  and  follow  the same procedure  as  the  Industrial Tribunal under the Industrial -Disputes Act, 1947, for it to discriminate between one set of newspaper establishments and others.  If it in fact assumed unto itself the powers of the Industrial  Tribunal  it  would  be  bound  to  follow   the procedure  prescribed  under the  Industrial  Disputes  Act, 1947,   and  if  it  were  thus  to  follow  the  same,   no discrimination  could ever be made in the manner  suggested. The  decision  of the Wage Board was no doubt  made  binding only  on the employers and the working journalists  were  at liberty  to agitate the question of increase in their  wages by  raising an industrial dispute in regard  thereto.   Once the  rates of wages were fixed by the Wage Board,  it  would normally  follow  ’that they would govern  the  relationship between  the employers and the working journalists,  but  if liberty was reserved to the working journalists for  further increase  in  their  wages  under  the  provisions  of   the

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Industrial  Disputes Act there was nothing untoward in  that provision  and that did not by itself militate  against  the position  that what was done for the benefit of the  working journalists  was  a, measure for the amelioration  of  their conditions of service as a group by themselves.  There could not be any question of discrimination between the  employers on  the one hand and the working journalists on  the  other. They  were two contesting parties ranged on  opposite  sides and  the  fact that one of them was treated in  a  different manner from the other in the 166 matter  of the amelioration of the conditions of service  of the weaker party would not necessarily vitiate the  decision of  the  Wage Board.  The weaker of the  two  parties  could certainly be treated as a class by itself and the conferment of  special benefits in the matter of  trying to  ameliorate their   conditions  of  service  could  certainly   not   be discriminatory. The  provisions contained in s. 17 of the Act in  regard  to the  recovery  of money due from the employers in  the  same manner   as  an  arrear  of  land  revenue  also   was   not discriminatory.   In the conflict between the employers  and the  employees it very often came about that  the  employers did  not implement the measures which had been  enacted  for the  benefit  of the employees and the employees  were  thus hard  put  to  realise and cash those  benefits.   Even  the Industrial Disputes Act, 1947, contained a like provision in s.  33C thereof (vide the amendment incorporated therein  by Act 36 of 1956) which in its turn was a reproduction of  the old  s.  25-1 which had been inserted therein by Act  43  of 1953.   It may be remembered that if the provisions  of  the Industrial Disputes Act, 1947, which was a general Act,  had been made applicable to the working journalists there  would have  been no quarrel with the same.  Much less there  could be  any  quarrel  with the introduction of s.  17  into  the impugned  Act when the aim and object of such provision  was to  provide  the  working journalists who were  a  group  by themselves from amongst employees employed in the  newspaper establishments with a remedy for the recovery of the  monies due  to  them in the same manner as the  workmen  under  the Industrial  Disputes  Act,  1947.  We do  not  see  anything discriminatory  in making such a provision for the  recovery of   monies   due  by  the  employers   to   these   working journalist’s. Similar  is  the  position in regard  to  the  alleged  dis- crimination  between  -Press industry employers on  the  one hand  and the other industrial employers on the other.   The latter  would,  certainly be governed by  the  ordinary  law regulating   industrial  relations  under   the   Industrial Disputes  Act, 1947.  Employers qua the working  journalists again would be a class by them- 167 selves  and if a law was enacted to operate as between  them in  the  manner contemplated by the Act that  could  not  be treated  as  discriminatory.   If measures have  got  to  be devised  for the amelioration of the conditions  of  working journalists    who   are   employed   in    the    newspaper establishments,  the only way in which it could be done  was by  directing  this piece of legislation against  the  Press Industry employers in general.  Even considering the Act  as a measure of social welfare legislation the State could only make  a  beginning somewhere without  embarking  on  similar legislations in relation to all other industries and if that was  done in this case no charge could be  levelled  against the State that it was discriminating against one industry as

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compared with the others.  The classification could well  be founded on geographical basis or be according to objects  or occupations   or   the   like.   The   only   question   for consideration would be whether there was a nexus between the basis of classification and the object of the Act sought  to be  challenged.   In  our opinion, both  the  conditions  of permissible  classification  were fulfilled in  the  present case.   The  classification  was based  on  an  intelligible differentia which distinguished the working journalists from other   employees  of  newspaper  establishments  and   that differentia had a rational relation to the object sought  to be  achieved,  viz., the amelioration of the  conditions  of service of working journalists. This  attack  on  the  constitutionality  of  the  Act  also therefore fails. Re.  Article 32:- In regard to the infringement of Art. 32, the only ground of attack ha,-, been that the impugned Act did not provide  for the giving of the reasons for its decision by the Wage Board and  thus  rendered the petitioners’ right to  approach  the Supreme  Court  for enforcement of their  fundamental  right nugatory.   It is contended that the right to apply  to  the Supreme  Court  for a writ of certiorari required  an  order infringing a fundamental right, that such a right was itself a  fundamental right and any legislation which attempted  to restrict or defeat this right was an infraction of 168 Art. 32 and was as such void.  It is further contended  that a  writ  of certiorari could effectively  be  directed  only against  a  speaking  order,  i.  e.,  an  order  disclosing reasons,  and if a statute enabled the passing of  an  order that  need  give  no  reasons  such  statute  attempted  ,to sterilize  the powers of this Court from  investigating  the validity  of the order and was therefore violative  of  Art. 32. Learned  Counsel  for  the petitioners  has  relied  upon  a decision  of  the  English Court in  Rex  v.  Northumberland Compensation  Appeal  Tribunal,  Ex parte  Shaw  where  Lord Goddard C. J. observed at p. 718:- "  Similarly anything that is stated in the order  which  an inferior  court has made and which has been brought up  into this court can be examined by the court, if it be a speaking order,  that is to say, an order which sets out the  grounds of  the  decision.  If the order is merely  a  statement  of conviction  that there shall be a fine of 40s., or an  order of  removal or quashing a poor rate, there is an end of  it, this  court cannot examine further.  If the  inferior  court tells  this court why it had done what it has and  makes  it part of its order, this court can examine it." This  decision was affirmed by the Court of Appeal (and  the decision  of  the  Court of Appeal is  reported  in  Rex  v. Northumberland  Compensation Appeal Tribunal, Ex parte  Shaw (2)  and  while  doing so Denning L. J.  (as  he  then  was) discussed at p. 352, what was it that constituted the record :- "  What, then, is the record?...... Following these cases  I think  the record must contain at least the  document  which initiates  the  proceedings; the pleadings if any;  and  the adjudication; but not the evidence, nor the reasons,  unless the  tribunal chooses to incorporate them.  If the  tribunal does state its reasons, and these reasons are wrong in  law, certiorari lies to quash the decision." This  decision only affirmed that certiorari could lie  only if  an  order made by the inferior tribunal was  a  speaking order.   It  did  not  lay down any  duty  on  the  inferior

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tribunal to set out the reasons for its order but (1) [1951] 1 K. B. 711, 718. (2) [1952] 1 K. B. 338. 169 only  pointed out that if no reasons were given it would  be impossible for the High Court to interfere by exercising its prerogative jurisdiction in the matter of certiorari. A more relevant decision on this point is that of this Court in  A. K. Gopalaa v. The State of Madras and, Anr. (1).   In that  case the provision of law which was  impugned  amongst others  was  one  which  prevented the  detenu  on  pain  of prosecution from disclosing to the Court the grounds of  his detention  communicated to him by the  detaining  authority. This provision was struck down as ultra vires and void.  The reason given by Mahajan J. (as he then was) is stated at  p. 243: " This Court would be disabled from exercising its functions under  article  32 and adjudicating on the  point  that  the grounds given satisfy the requirements of the sub-clause  if it  is  not  open to it to see the grounds  that  have  been furnished.  It is a guaranteed right of the person  detained to have the very grounds which are the basis of the order of detention.   This  Court would be entitled  to  examine  the matter  and  to see whether the grounds  furnished  are  the grounds  on the basis of which he has been detained or  they contain some other vague or irrelevant material.  The  whole purpose of furnishing a detained person with the grounds  is to  enable  him  to make  a  representation  refuting  these grounds  and of proving his innocence.  In order  that  this Court may be able to safeguard this fundamental right and to grant him relief it is absolutely essential that the  detenu is  not prohibited under penalty of punishment  to  disclose the  grounds  to the Court and no injunction by law  can  be issued to this Court disabling it from having a look at  the grounds.   Section 14 creates a substantive offence  if  the grounds  are disclosed and it also lays a duty on the  Court not to permit the disclosure of such grounds.  It  virtually amounts  to a suspension of a guaranteed right  provided  by the  Constitution inasmuch as it indirectly by  a  stringent provision  makes  administration of the law  by  this  Court impossible and at the same (1)  [1950] S.C.R. 88, 100. 22 170 time  it deprives a detained person from  obtaining  justice from  this  Court.  In my opinion, therefore,  this  section when it prohibits the disclosure of the grounds  contravenes or abridges the rights given by Part III to a citizen and is ultra vires the powers of Parliament to that extent." It  is no doubt true that if there was any provision  to  be found  in  the impugned Act which prevented the  Wage  Board from giving reasons for its decision, it might be  construed to mean that the order which was thus made by the Wage Board could  not  be a speaking order and no  writ  of  certiorari could  ever be available to the petitioners in that  behalf. It  is  also  true that in that event this  Court  would  be powerless  to redress the grievances of the  petitioners  by issuing  a  writ  in  the  nature  of  certiorari  and   the fundamental  right which a citizen has of  approaching  this Court  under Art. 32 of the Constitution would  be  rendered nugatory. The position, however, as it obtains in the present case  is that there is no such provision to be found in the  impugned Act.   The  impugned Act does not say that  the  Wage  Board shall  not give any reason for its decision.  It is left  to

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the discretion of the Wage Board whether it should give  the reasons for its decision or not.  In the absence of any such prohibition  it  is  impossible  for us  to  hold  that  the fundamental right conferred upon the petitioners under  Art. 32  was in any manner whatever sought to be  infringed.   It may  be  noted that this point was not at all urged  in  the petitions which the petitioners had filed in this Court  but was  taken  up only in the course of the  arguments  by  the learned  Counsel  for the petitioners.  It appears  to  have been a clear after-thought; but we have dealt with the  same as  it  was  somewhat -strenuously urged before  us  in  the course of the arguments.  We are of the opinion that the Act cannot  be challenged as violative of the fundamental  right enshrined in Art. 32 of the Constitution. In  regard to the constitutionality of the Act therefore  we have  come  to the conclusion that none  of  the  provisions thereof is violative of the fundamental 171 rights enshrined in Arts. 19(1)(a), 19(1), 14 and/or 32 save the  provision contained in s.5(1)(a)(iii) of the Act  which is violative of the fundamental right guaranteed under  Art. 19(1)(g)    of   the   Constitution   and    is    therefore unconstitutional and should be struck down. Apart  from  challenging  the vires of the  Act  dealt  with above,  the  -petitioners contend that the decision  of  the Wage  Board  itself  is illegal and void  because: (1)  Reconstitution  of  the  Board  was  ultra  vires   and unauthorised  by the Act as it stood at the time, the  rules having been published only on July 30, 1956. (2)The decision by a majority was unwarranted by the Act and since there was no provision in the Act, the Rules providing for  the same went beyond the Act and were  therefore  ultra vires. (3)The   procedure  followed  by  the  Board  offended   the principles of natural justice and was therefore invalid; (4)  The decision was invalid, because (a)  no reasons were given, (b)  nor did it disclose what considerations prevailed  with the Board in arriving at its decision; (5) Classification on the basis of gross revenue was illegal and unauthorised by the Act. (6)Grouping ;into chains or multiple units was  unauthorised by the Act. (7)The  Board  was  not authorised by the  Act  to  fix  the salaries  of journalists except in relation to a  particular industrial  establishment and not on an All India  basis  of all newspapers taken together; (8)The  decision  was bad as it did not  disclose  that  the capacity  to  pay of any particular establishment  was  ever taken into consideration. (9)  The Board had no authority to render a decision which     was retrospective in operation. (10) The  Board had no authority to fix scales of pay for  a period  of  3  years  (subject  to  review  by  the  Govt.by appointing  another Wage Board at the end of these 3  years) and (11)  The Board was handicapped for want of Cost  of  Living Index. 172 The position in law is that the decision would be illegal on any of the following three grounds, viz., (A)Because  the  Act  under which it was  made  was  ultra vires;  [  See  Mohammad  Yasin  v.  Town  Area   Committee, Jalalabad & anr. (1) and Himmatlal Harilal Mehta v. State of Madhya Pradesh (2) ].

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(B)Because  the decision itself infringed the  fundamental rights of the petitioners. [ See Bidi Supply Co.v.     Union of India & ors. (3) ]. (C)  Because  the  decision was ultra vires  the  Act.   See Pandit Ram Narain v. State of Uttar Pradesh & ors. (4) ]. The  decision  of  the  Wage  Board  before  us  cannot   be challenged on the grounds that the impugned Act under  which the  decision  is made is ultra vires or that  the  decision itself infringes the fundamental rights of the  petitioners. In the circumstance&, the challenge must be confined only to the third ground, viz., that the decision is ultra vires the Act itself. Be. (1). The first ground of attack is based on the circumstance that Shri  K.  P.  Kesava Menon who was  originally  appointed  a member of the Wage Board resigned on or about June 21, 1956, which resignation was accepted by the Central Government  by a  notification  dated  July  14,  1956,  and  by  the  same notification  the Central Government appointed in his  place Shri  K. M. Cherian and thus reconstituted the  Wage  Board. There was no provision in the Act for the resignation of any member  from  his membership or for the filling  in  of  the vacancy which thus arose in the membership of the Board.   A provision  in  this  behalf was  incorporated  only  in  the Working  Journalists  Wage  Board Rules,  1956,  which  were published by a notification in the Gazette of India Part 11- Section  3  on  date  July 31,  1956.   It  was,  therefore, contended  that  such  reconstitution of the  Board  by  the appointment  of  Shri K. M. Cherian in place of Shri  K.  P. Kesava Menon was unauthorised by the Act as it then stood (1)  [1952] S.C.R. 572, 578. (2)  [1954] S.C.R. 1122, 1127. (3)  [1956] S.C.R.267. (4)  [1956] S.C.R. 664. 173 and  the  Board  which actually published  the  decision  in question was therefore not properly constituted. It is necessary to remember in this connection that s. 8  of the Act empowered the Central Government by notification  in the Official Gazette to constitute a Wage Board.  This power of  constituting  the Wage Board must  be  construed  having regard to s. 14 of the General Clauses Act, 1897, which says that  where by any Central Act or Regulation made after  the commencement of the Act, any power is conferred then, unless a  different intention appears that power may  be  exercised from  time to time as occasion arises.  If this is the  true position  there  was nothing objectionable  in  the  Central Government  reconstituting the Board on the  resignation  of Shri  K.  P. Kesava Menon being accepted by  it.   The  Wage Board can in any event be deemed to have been constituted as on  that date, viz., July 14, 1956, when all the  5  members within  the  contemplation of s. 8(2) of the Act were  in  a position  to  function.   Shri K. P. Kesava  Menon  had  not attended the preliminary meeting of the Board which had been held  on May 26, 1956, and the real work of the  Wage  Board was done after the appointment of Shri K. M. Cherian in  his place  and stead and it was only after July 14,  1956,  that the Wage Board as a whole constituted as it was on that date really  functioned  as  such.  The objection  urged  by  the petitioners  in  this behalf is too technical  to  make  any substantial  difference in - regard to the  constitution  of the Wage Board and its functioning. Re. 2. This  ground ignores the fact that the  Working  Journalists Wage  Board  Rules, 1956, which were published on  July  31,

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1956, were made by the Central Government in exercise of the power  conferred upon it by s. 20 of the Act.  That  section empowered the Central Government to make rules to carry  out the  purposes of the Act, in particular to provide  for  the procedure  to  be followed by the Board in fixing  rates  of wages.  Rule 8 provided that every question considered at  a meeting of the Board was to be decided by a majority of  the votes of the members present and 174 voting.  In the event of equality of votes the Chairman  was to have a casting vote............... This Rule therefore prescribed that the decision of the Board could be reached  by  a  majority and this was  the  rule  which  was followed by the Board in arriving at its decision.  The rule was  framed  by  the Central Government  by  virtue  of  the authority  vested  in it under s. 20 of the Act  and  was  a piece of delegated legislation which if the rules were  laid before  both the Houses of Parliament in accordance with  s. 20(3)  of  the  Act acquired the force of  law.   After  the publication  of these rules, they became a part of  the  Act itself and any decision thereafter reached by the Wage Board by a majority as prescribed therein was therefore lawful and could not be impeached in the manner suggested. Re. (3). This  ground has reference to the alleged violation  by  the Wage  Board  of the principles of natural  justice.   It  is urged  that the procedure established under  the  Industrial Disputes Act was not in terms prescribed for the Wage Board, the  Board  having  been given under s. 11 of  the  Act  the discretion  for  the  purpose of fixing rates  of  wages  to exercise the same powers and follow the same procedure as an Industrial   Tribunal  constituted  under   the   Industrial Disputes  Act, 1947, while adjudicating upon  an  industrial dispute referred to it.  On two distinct occasions, however, the  Wage Board definitely expressed itself that it had  the powers  of  an  Industrial Tribunal  constituted  under  the Industrial  Disputes  Act’ The first occasion was  when  the questionnaire  was  issued  by the Wage  Board  and  in  the questionnaire it mentioned that it had such powers under  s. 11  of the Act.  The second occasion arose when a number  of newspapers  and  journals  to  whom  the  questionnaire  was addressed  failed to send their replies to the same and  the Wage  Board  at  its  meeting  held  on  August  17,   1956, reiterated  the position and decided to issue a  Press  Note requesting the newspapers and journals to send their replies as  soon as possible, inviting their attention to  the  fact that  the Board had powers of an Industrial  Tribunal  under the 175 Act  and  if newspapers failed to send  their  replies,  the Board  would  be  compelled to take  further  steps  in  the matter.   This  is clearly indicative of the fact  that  the Wage  Board did seek to exercise the powers under the  terms of  s.  11 of the Act.  Even though, the  exercise  of  such powers  was discretionary with the Board, the, Board  itself assumed  these powers and assimilated its ,position to  that of  an Industrial Tribunal constituted under the  Industrial Disputes  Act, 1947.  If, then, it assumed those powers,  it only followed that it was also bound to follow the procedure which  an  Industrial Tribunal so constituted was  bound  to follow. It  is further urged that in the whole of the  questionnaire which  was  addressed  by the Wage Board  to  the  newspaper establishments,  there  was no concrete proposal  which  was submitted by the Wage Board to them for their consideration.

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The  only  question which was addressed in this  behalf  was Question  No.  4  in  Part "A"  which  asked  the  newspaper establishments  whether  the basic  minimum  wage,  dearness allowance and metropolitan allowance suggested by the  Press Commission  were  acceptable  to  them  and  if  not,   what variations  would  they suggest and why.   The  question  as framed  would  not necessarily focus the  attention  of  the newspaper  establishments  to any proposal  except  the  one which  was  the subject-matter of that question,  viz.,  the -proposal  of  the Press Commission in that behalf  and  the newspaper  establishments  to  whom  the  questionnaire  was addressed   would  certainly  not  have  before   them   any indication  at all as to what was the wage  structure  which was going to be adopted by the Wage Board.  Even though  the Wage Board came to the conclusion, as a result of its having collected   the  requisite  data  and  gathered   sufficient materials, after receiving the answers to the  questionnaire and examining the witnesses, that certain wage structure was a  proper one in its opinion, it was necessary for the  Wage Board  to  communicate the proposals in that regard  to  the various newspaper establishments concerned -and invite  them to  make their -representations, if any, within a  specified period.   It  was  only  after  such  representations   were received from the interested parties 176 that the Wage Board should have finalized its proposals  and published its decision.  If this procedure had been  adopted the  decision  of  the  Wage  Board  could  not  have   been challenged  on  the  score  of its  being  contrary  to  the principles of natural justice. It would have been no doubt more prudent for the Wage  Board to  have followed the procedure outlined above.  The  ground No. 8 is, in our opinion, sufficiently determinative of  the question  as to the ultra vires character of the Wage  Board decision  and  in view of the ’conclusion reached by  us  in regard  to the same, we refrain from expressing any  opinion on this ground of attack urged by the Petitioners. Re. 4. This  ground is urged because no reasons were given  by  the Wage Board for its decision.  As a matter of fact, the  Wage Board  at  its  meeting dated April 22,  1957,  agreed  that reasons  need not be given for each of the decisions and  it was  only sufficient to record the same and  accordingly  it did  not  give  any  reasons  for  the  decision  which   it published.  In the absence of any such reasons, however,  it was  difficult  to  divine  what  considerations,  if   any, prevailed with the Wage Board in arriving at its decision on the  various points involved therein.  It was no  doubt  not incumbent  on  the Wage Board to give any  reasons  for  its decision.  The Act made no provision in this behalf and  the Board  was  perfectly within its rights if it chose  not  to give  any  reasons  for  its  decision.   Prudence   should, however, have dictated that it gave reasons for the decision which  it ultimately reached because if it had done  so,  we would  have  been spared, the necessity of trying  to  probe into   its  mind  and  find  out  whether   any   particular circumstance  received  due consideration at  its  hands  in arriving at its decision.  The fact that no reasons are thus given, however, would not vitiate the decision in any manner and we may at once say that even though no reasons are given in  the  form  of a regular  judgment,  we  have  sufficient indication of the Chairman’s mind in the note which he  made on  April  30, 1956, which is a contemporaneous  record  ex- plaining the reasons for the decision of the majority. 177

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This  note  of  the Chairman is very  revealing  and  throws considerable  light  on  the  question  whether   particular circumstances  were at all taken into consideration  by  the Wage Board before it arrived at its decision. Re. 5. This   ground  concerns  the  classification  of   newspaper establishments   on  the  basis  of  gross  revenue.    Such classification was challenged as illegal and unauthorised by the   Act.    The   Act   certainly   says   nothing   about classification and could not be expected to do so.  What the Act  authorised it to do was to fix the rates of  wages  for working  journalists  having regard to the  principles  laid down  in s. 9(1) of the Act.  In fixing the  wage  structure the  Wage Board constituted under the Act was  perfectly  at liberty  if it thought necessary to classify  the  newspaper establishments  in any manner it thought proper provided  of course that such classification was not irrational.  If  the newspaper establishments all over the country had got to  be considered in regard to fixing of rates of wages of  working journalists  employed  therein it was inevitable  that  some sort  of classification should be made having regard to  the size  and  capacity of  newspaper  establishments.   Various criteria  could be adopted for the purpose of  such  classi- fication, viz., circulation of the newspaper,  advertisement revenue,  gross revenue, capital invested in  the  business, etc.,  etc.   Even though the  proportion  of  advertisement revenue to the gross revenue of newspaper establishments may be   a   relevant   consideration   for   the   purpose   of classification,  we are not, prepared to say that  the  Wage Board   was   not  justified  in  adopting  this   mode   of classification  on  the  basis of  gross  revenue.   It  was perfectly  within its competence to do so and if it  adopted that  as  the proper basis for classification it  cannot  be said that the basis which it adopted was radically wrong  or was  such  as  to vitiate its decision.   If  the  need  for classification  is accepted, as it should be, having  regard to   the   various  sizes  and   capacities   of   newspaper establishments  all  over  the  country  it  was   certainly necessary  to adopt a workable test for such  classification and if the Wage Board 23 178 had  adopted  classification  on  the  basis  of  the  gross revenue,  we do not see any reason why that decision of  its was in any manner whatever unwarranted. It  may be remembered in this connection that the  Newspaper Industry  Inquiry  Committee in U. P. had suggested  in  its report dated March 31,1949, classification of newspapers  in the manner following:- "A " Class-Papers with (1)  a circulation of 10,000 copies or above or (2)  an invested capital of rupees 3 lakhs or more : (3)  an  annual  income  between  rupees one   lakhs  and  3 lakhs or more: "B " Class-Papers with (1)  a circulation below 10,000 but above 5,000   copies or (2)  an invested capital between rupees one lakh and 3 lakhs or (3)an  annual  income between rupees one lakh  and  3 lakhs; "C " Class-Papers with (1)a  circulation  below 5000 copies or  (2)  an  invested capital below rupees one lakh or (3) an annual income  below rupees one lakh. The  classification  on  the  basis  of  gross  revenue  was attacked by the petitioners on the ground that in the  gross

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revenue  which  is earned by the  newspaper  establishments, advertisement revenue ordinarily forms a large bulk of  such revenue and the revenue earned by circulation of  newspapers forms  more often than not a small part of the same,  though in  regard to language newspapers the position may be  some- what  different.   Unless,  therefore,  the  proportion   of advertisement  revenue  in the gross  revenue  of  newspaper establishments  were taken into consideration, it would  not be  possible  to form a correct estimate  of  the  financial status  of that newspaper establishment with a view  to  its classification.  The petitioners on the other hand suggested that  the  profit and loss of the  newspaper  establishments should  be  adopted  as the proper test  and  if  that  were adopted a different 179 picture  altogether would be drawn.  The  balancesheets  and the  profit  and  loss accounts  of  the  several  newspaper establishments  would  require to be considered and  it  was contended  that  even if the gross revenue  of  a  particlar newspaper  establishment  were so large as  to  justify  its inclusion  on the basis of gross revenue in Class " A  "  or Class  "  B  "  it  might be  working  at  a  loss  and  its classification as such would not be justified. We  have  already  referred  in the  earlier  part  of  this judgment to the unsatisfactory nature of the profit and loss test.   Even  though the profit and loss  accounts  and  the balance-sheets  of  the several limited companies  may  have been  audited  by  their auditors and  may  also  have  been accepted  by  the  Income-tax authorities,  they  would  not afford  a  satisfactory basis for  classification  of  these newspaper  establishments  for the reasons already  set  out above. As  a matter of fact, even before us attempts were  made  by the respondent, the Indian Federation of Working Journalists to  demonstrate  that the profit and loss accounts  and  the balance-sheets  of several petitioners were manipulated  and unreliable.   We are not called upon to decide  whether  the profit and loss test is one which should be accepted; it  is sufficient  for our purpose to say that if such a  test  was not accepted by the Wage Board, the Wage Board was certainly far from wrong in doing so. Re. 6. This  ground  relates to grouping into  chains  or  multiple units  and  the ground of attack is that  such  grouping  is unauthorised by the Act. The short answer to this contention is that if such grouping into chains or multiple units was justified having regard to the  conditions  of the newspaper industry in  the  country, there  was nothing in the Act which militated  against  such grouping.   The  Wage Board was authorised to fix  the  wage structure  for  working  journalists who  were  employed  in various  newspaper establishments all over the country.   If the  chains  or multiple units existed in  the  country  the newspaper establishments which formed’ such chains 180 or  multiple  units  were well within  the  purview  of  the inquiry  before  the Wage Board and if the Wage  Board  thus chose to group them together in that manner such grouping by itself could not be open to attack.  The Act could not  have expressly authorized the Wage Board to adopt such  grouping. It  was  up  to  the Wage Board  to  consider  whether  such grouping  was justified under the circumstances or  not  and unless we find something in the Act which prohibits the Wage Board from doing so, we would not deem any such grouping  as unauthorised.   The real difficulty, however, in the  matter

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of  grouping  into  chains  or  multiple  units  arises   in connection with the capacity of the industry to pay, a topic which we shall discuss hereafter while discussing the ground in connection therewith. Re. 7. This  ground  is  based on the  definition  of  "  newspaper establishment" found in Sec. 2 (d) of the Act.  "  Newspaper establishment" is there defined as " an establishment  under the  control  of  any person or  body  of  persons,  whether incorporated  or not, for the production or  publication  of one or more newspapers or for conducting any news agency  or syndicate."  So,  the contention put forward is  that  "  an establishment " can only mean " an establishment " and not a group of them, even though such an individual  establishment may  produce  or  publish  one  or  more  newspapers.    The definition may comprise within its scope chains or  multiple units,  but  even  so,  the  establishment  should  be   one individual establishment producing or publishing a chain  of newspapers or multiple units of newspapers.  If such  chains or  multiple units were, though belonging to some person  or body  of  persons whether incorporated or not,  produced  or published  by  separate  newspaper  establishments,   common control  would  not  render.  the  constitution  of  several newspaper  establishments  as  one  establishment  for   the purpose  of  this definition, they would none  the  less  be separate   newspaper  establishments  though  under   common control. Reliance  was  placed  in support of this  contention  on  a decision of the Calcutta High Court in Pravat Kumar 181 v.   W. T. C. Parker (1), where the expression which came up for construction before the Court was " employed in    an industrial establishment " and it was observed that:- "  Employed  in  an industrial  establishment  "  must  mean employed  in  some particular place, that  place  being  the place  used  for  manufacture or an  activity  amounting  to industry, as that term is used in the Act." A   similar  interpretation  was  put  on   the   expression industrial establishment " by the Madras High Court in S. R. V.  Service  Ltd.  v.  State of Madras  (2),  where  it  was observed at p. 12:- "  They referred only to a dispute between the  workers  and the   management  of  one  industrial   establishment,   the Kumbakonam  branch  of  the S. R. V. S. Ltd.  I  find  it  a little  difficult  to accept the contention of  the  learned counsel for the Madras Union, that the Kumbakonam branch  of the  S. R. ’V.  S. Ltd., is not an industrial  establishment as that expression has been used in the several sections  of the Act............................... I need refer only  to section  3  of  the Act to negative the  contention  of  the learned counsel for the Madras Union, the S. R. V. S.  Ltd., with  all  -its branches should betaken  as  one  industrial establishment." These  decisions  lend  support to  the  contention  that  a newspaper  establishment  like an  industrial  establishment should  be  located  in one place, even  though  it  may  be carrying  on its activities of production or publication  of more  newspapers than one.  If these activities are  carried on in different places, e. g., in different towns or  cities of different States, the newspaper establishments  producing or  publishing  such  newspapers cannot be  treated  as  one individual  establishment but should be treated as  separate newspaper establishments for the purpose of working out  the relations  between  themselves and their  employees.   There would  be  no justification for  including  these  different

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newspaper  establishments into. one chain or  multiple  unit and treating them, as if they were one (1)  A. I. R. 1950 Cal. 116, 118, para. 20. (2)  A. I. R. 1956 Mad. 115, 122. 182 newspaper  establishment.  Here again, the  petitioners  are faced with this difficulty that there is nothing in the  Act to  prohibit  such a grouping.  If a classification  on  the basis of gross revenue could be legitimately adopted by  the Wage  Board then the grouping into chains or multiple  units could  also be made by it.  There is nothing in the  Act  to prohibit  the treating of several  newspaper  establishments producing  or  publishing one or more newspapers  though  in different   parts   of   the  country   as   one   newspaper establishment for the purpose of fixing the rates of  wages. It would not be illegitimate to expect the same standard  of employment  and conditions of service in  several  newspaper establishments  under the control of any person or  body  of persons,  whether  incorporated or not; for an  employer  to think  of employing one set of persons on higher  scales  of wages  and another set of workers on lower scales  of  wages would  by  itself be iniquitous, though it  would  be  quite legitimate to expect the difference in scales having  regard to  the  quality  of  the work  required  to  be  done,  the conditions  of labour in different regions of  the  country, the  standard of living in those regions and  other  cognate factors. All these considerations would necessarily have to be  borne in  mind  by the Wage Board in arriving at its  decision  in regard to the wage structure though the relative  importance to be attached to one circumstance or the other may vary  in accordance with the conditions in different areas or regions where the newspaper establishments are located. Re. 8. We  now  come to the most important ground, viz.,  that  the decision of the Wage Board has not taken into  consideration the   capacity   to   pay  of   any   particular   newspaper establishment.   As  we have already seen, the  fixings:  of rates  of wages by the Wage Board did not prescribe  whether the  wages which were to be fixed were minimum  wages,  fair wages, or living, wages and it was left to the discretion of the  Wage Board to determine the same.  The  principles  for its  guidance were, However, laid down and  they  prescribed the circumstances which were to be taken into  consideration before 183 such  determination was made by the Wage Board.  One of  the essential considerations was the capacity of the industry to pay  and  that  was  comprised within  the  category  "  the circumstances  relating to newspaper industry  in  different regions  of the country ". It remains to consider,  however, whether  the Wage Board really understood this  category  in that  sense  and  in fact applied its mind to  it.   At  its preliminary meeting held on May 26, 1956, the Board set up a SubCommittee  to draft a questionnaire to be issued  to  the various journals and organisations concerned, with a view to eliciting  factual  data  and  other  relevant   information required  for the fixation of wages.  The Sub-committee  was requested  to bear in mind the need inter alia  for  ’proper classification  of the country into different areas  on  the basis  of certain criteria like population, cost of  living, etc.  This was the only reference to this requirement of  s. 9(1)  and there was no reference herein to the  capacity  of the  industry  to  pay  which we  have  held  was  comprised therein.  The only question in the questionnaire as  finally

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framed  which  had  any  reference  to  this  criterion  was Question  No.  7 in Part " A " under the heading  "  Special Circumstances  " and that question was: " Are there in  your regions  any special conditions in respect of the  newspaper industry  which  affect  the fixing of  rates  of  wages  of working  journalists  ? If so, specify  the  conditions  and indicate  how they affect the question of wages."  But  here also  it  is  difficult to find that  the  capacity  of  the industry  to pay was really sought to be included  in  these special  conditions.   The  Wage Board no  doubt  asked  for detailed  accounts  of  newspaper  establishments  and  also required  information  which  would help it  in  the  proper evaluation  of  the nature and quality of  work  of  various categories  of working journalists, but the capacity of  the industry   to   pay   which  was  one   of   the   essential considerations was nowhere prominently brought in issue  and no  information  on that point was sought from  the  various newspaper establishments to whom the questionnaire was going to  be  addressed.   The  answers  to  Question  No.  7   as summarized by the Wage Board no doubt referred in some cases to the capacity 184 of  the  industry  to pay but that was  brought  in  by  the newspaper   establishments  themselves  who   answered   the question in an incidental manner and could not be said to be prominent in the minds of the parties concerned. It  is  pertinent  to observe that  even  before  the  Press Commission  the  figures  had  disclosed  that  out  of  127 newspapers 68 had been running into loss and 59 with profits and  there  was an overall profit of about 1% on  a  capital investment  of seven crores.  The -profit and loss  accounts and  the balance sheets of the various companies  owning  or controlling  newspaper  establishments were  also  submitted before  the  Wage Board but they had so far as they  went  a very sorry tale to tell.  The profit and loss statements for the  year  1954-55  revealed that while 43  of  them  showed profits  40  had  incurred  losses.   Though  no  scientific conclusion  could  be drawn from this  statement  it  showed beyond doubt that the condition of the newspaper industry as a  whole could not be considered satisfactory.  Under  these circumstances,  it was all the more incumbent upon the  Wage Board  even  though  it discounted  these  profit  and  loss statements as not necessarily reflecting the true  financial position of these newspaper establishments, to consider  the question of the capacity of the industry to pay with greater vigilance. There  was  again another difficulty which  faced  the  Wage Board in that behalf and it was that out of 5,705 newspapers to whom the questionnaire was addressed only 312 or at  best 325  had responded and the Wage Board was in the dark as  to what   was  the  position  in  regard  to  other   newspaper establishments.   As a matter of fact, the chairman  in  his note dated April 30, 1957, himself pointed out that the Wage Board had no data before it of all the newspapers and  where it  had,  that  was in many cases  not  satisfactory.   This aspect  was  again  emphasized by him in his  note  when  he reiterated that the data available to the Wage Board had not been  as  complete as it would have wished them  to  be  and therefore  recommended  in the end the  establishment  of  a standing  administrative machinery which would collect  from all newspaper 185 establishments in the country on a systematic basis detailed information and data such as those on employment, wage rates and  earnings,  financial condition of  papers,  figures  of

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circulation, etc., which may be required for the  assessment of the effects of the decision of the Wage Board at the time of the review.  The Wage Board, in fact, groped in the  dark in  the  absence of sufficient data  and  information  which would enable it to come to a proper conclusion in regard  to the  wage  structure  which it was  to  determine.   In  the absence  of such data and materials the Board was not  in  a position  to  work  out  what would be  the  impact  of  its proposals on the capacity of the industry to pay as a  whole or even region-wise and the chairman in his note stated that it  was  difficult for the Board at that stage to  work  out with any degree of precision, the economic and other effects of its decision on the newspaper industry as a whole.   Even with  regard to the impact of these proposals on  individual newspaper establishments the chairman stated that the future of the Indian language newspapers was bright, having  regard to  increasing  literacy and the growth  of  political  con- sciousness of the reading public, and by rational management there   was  great  scope  for  increasing  the  income   of newspapers  and even though there was no possibility of  any adjustment  which might satisfy all persons  interested,  it was hoped that no newspaper would be forced to close down as a result of its decision; but that if there was a good paper and  it  deserved to exist, the Government  and  the  public would  help  it  to  continue.  This was  again  a  note  of optimism which does not appear to have been justified by any evidence on the record. Even  though,  the  Wage  Board  classified  the   newspaper establishments  into  5 classes from " A " to " E "  on  the basis   of  their  gross  revenue  the  proportion  of   the advertisement  revenue to the gross revenue does not  appear to have been taken into consideration nor was the  essential difference  which subsisted between the circulation and  the paying capacity of the language newspapers as compared  with newspapers in the 24 186 English language taken into account.  If this had been done, the  basis  of gross revenue which the  Wage  Board  adopted would have been modified in several respects. The grouping of the newspapers into chains or multiple units implied  that  the weaker units in those groups were  to  be treated  as  on  a par with the stronger units  and  it  was stated that the loss in the weaker units would be more  than compensated  by  the profits in the more  prosperous  units. The  impact of these proposals on groups of  newspapers  was only defended on principle without taking into consideration the  result  which  they would have on the  working  of  the weaker units.  Here also the Chairman expressed the  opinion that  the  Board  was  conscious that as  a  result  of  its decision, some of the journalists in the weaker units of the same group or chain may get much more than those working  in its  highest  income units.  He however stated that  if  the principle was good and scientific, the inevitable result  of its  application  should be judged from the  stand-point  of Indian Journalism as a whole and not the burden it casts  on a  particular  establishment.  It is clear  therefore,  that this  principle which found favour with the Wage  Board  was sought  to be worked out without taking  into  consideration the burden which it would impose upon the weaker units of  a particular newspaper establishment. The  representatives  of  the  employers  objected  to   the fixation  of  scales of wages on the plea that  fixation  of rates  of  wages did not include the fixation of  scales  of wages.  This contention was negatived by the representatives

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of the employees as also by the Chairman and the Wage  Board by  its  majority  decision accepted the  position  that  it could,  while fixing the rates of wages also fix the  scales of wages.  The Press Commission itself had merely  suggested a  basic minimum wage for the consideration of  the  parties concerned  but  had suggested that so far as the  scales  of wages  were concerned they were to be settled by  collective bargaining  or by adjudication.  Even though the Wage  Board took  upon  itself the burden of fixing scales of  wages  as really comprised within the terms of their reference, it was incumbent upon it to consider what the impact  of 187 the scales of wages fixed by it would be on the capacity  of the  industry  to pay.  There is nothing on  the  record  to suggest  that  both as regards the rates of  wages  and  the scales of wages which it determined the Wage Board ever took into account as to what the impact of its decision would  be on the capacity of the industry to pay either as a whole  or region-wise. There  is,  however, a further difficulty in  upholding  the decision  of  the Wage Board in this behalf and it  is  this that  even as regards the fixation of the rates of wages  of working  journalists  the Wage Board does not seem  to  have taken  into  account the other provisions of the  Act  which conferred  upon  the  working journalists  the  benefits  of retrenchment  compensation,  payment of gratuity,  hours  of work  and leave.  These provisions were bound to have  their impact   on   the   paying   capacity   of   the   newspaper establishments  and if these had been borne in mind  by  the Wage  Board  it  is highly likely that the  rates  of  wages including  the scales of wages as finally  determined  might have  been  on  a lesser scale than what one  finds  in  its decision. This  difficulty  becomes all the more formidable  when  one considers  that the working journalists only constituted  at best  one-fifth of the total staff employed in  the  various establishments.   The rest of the 80% comprised persons  who may  otherwise be described as factory workers who would  be able  to  ameliorate their conditions of service  by  having resort  to the machinery under the Industrial Disputes  Act. If the conditions of service of the working journalists were to  be  improved by the Wage Board the  other  employees  of newspaper  establishments were bound to be restive add  they would  certainly,  at the very  earliest  opportunity  raise industrial  disputes with a view to the betterment of  their conditions  of service.  Even though the  Industrial  Courts established  under the Industrial Disputes Act, 1947,  might not give them relief commensurate with the relief which  the Wage Board gave to the working journalists, there was  bound to  be an improvement, in their conditions of service  which the Industrial Court would certainly determine having regard to the benefits which the working journalists 188 enjoyed and this would indeed impose an additional financial burden   on   the  newspaper  establishments   which   would substantially   affect   their  capacity   to   pay.    This consideration  also was necessarily to be borne in  mind  by the  Wage  Board in arriving at its final decision  and  one (foes  not find anything on the record which shows  that  it was actually taken into consideration by the Wage Board. The  retrospective  operation of the. decision of  the  Wage Board  was also calculated to impose a financial  burden  on the  newspaper  establishments.  Even though this may  be  a minor    consideration   as   compared   with   the    other considerations  above  referred to, it was none the  less  a

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circumstance  which the Wage Board ought to have  considered in arriving at its decision in regard to the fixing of rates of wages. The  financial burden which was imposed by the  decision  of the  Wage Board was very vividly depicted in the  statements furnished  to us on behalf of the petitioners in the  course of the hearing before us.  These statements showed that  the wage bill of these newspaper establishments was going to  be considerably increased, that the retrospective operation  of the decision was going to knock off a considerable sum  from their  reserves  and  that  the  burden  imposed  upon   the newspaper   establishments  by  the  joint  impact  of   the provisions   of   the  Act  in   regard.   to   retrenchment compensation,  payment of gratuity, hours of work and  leave as  well as the decision of the Wage Board in regard to  the fixing  of rates of wages and the scales of wages  would  be such  as  would  cripple  the  resources  of  the  newspaper establishments,  if not necessarily lead to  their  complete extinction.   The statements also showed what  extra  burden was  imposed  upon  the newspaper  establishments,  if  they wanted  to  discharge  the working  journalists  from  their employ which burden was all the greater, if per chance,  the newspaper establishments, even though reluctantly came to  a decision  that it was worth their while to close down  their business  rather  than  continue the  same  with  all  these financial  burdens  imposed upon them.  These  figures  have been given by us in the earlier 189 part  of our judgment and we need not repeat the same.   The conclusion, however, is inescapable that the decision of the Wage  Board  imposed a very heavy financial  burden  on  the newspaper establishments, which burden was augmented by  the classification  on the basis of gross-revenue,  fixation  of scales  of wages, provisions as, regards the hours  of  work and  leave, grouping of newspapers into chains  or  multiple units  and retrospective operation given to the decision  of the Wage Board as therein mentioned. If  these  proposals  had  been  circulated,  before   being finalized,  by  the  Wage Board  to  the  various  newspaper establishments so that these newspaper establishments could, if  they  so desired, submit their  opinions  thereupon  and their representations, if any, in regard to the same to  the Wage  Board for its consideration and if the Wage Board  had after  receiving such opinions and representations from  the newspaper  establishments concerned finalised  it  decision, this attack on the ground of the Wage Board not having taken into consideration the capacity of the industry to pay as  a whole or region-wise would have lost much of its force.  The Wage  Board,  however, did nothing of the  type.   Proposals were exchanged between the representatives of the  employers and  the representatives of the employees.   The  discussion that  the chairman had with each set of representatives  did not  bear  any  fruit and the chairman  himself  by  way  of mediation,  as it were, submitted to them his own  proposals presumably  having  regard to the different points  of  view which  had  been  expressed  by  both  these  parties.   The decision  in regard to the scales of wages, was, as we  have seen  before, a majority decision which was not endorsed  by the representatives of the employers.  The proposals of  the chairman also were not acceptable to the representatives  of the  employers  but  the representatives  of  the  employees accepted them and they thus became the majority decision  of the  Wage Board.  The ultimate decision of the  chairman  on those points does not appear to have been the result of  any consideration  of the capacity of the industry to pay  as  a

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whole or region-wise but reflects a compromise 190 which  he brought about between the diverse views but  which also  was generally accepted only by the representatives  of the employees and not the representatives of the  employers. Nowhere  can  we  find  in  the  instant  case  any  genuine consideration of the capacity of the industry to pay  either as  a  whole  or  region-wise.  We  are  supported  in  this conclusion  by the observations of the chairman  himself  in the  note which he made simultaneously with the  publication of the decision on April 30, 1957, that it was difficult for the Wage Board at that stage to work out with any degree  of precision, the economic and other effects of the decision on the newspaper industry as a whole. An  attempt  was made on behalf of the  respondents  in  the course  of  the  hearing  before us  to  shew  that  by  the conversion of the currency into naye pyse and the newspapers charging  to  the  public higher price  by  reason  of  such conversion, the income of several newspapers had appreciably increased.   These  figures were, however,  controverter  on behalf  of  the  petitioners and it  was  pointed  out  that whatever increase in the revenue was brought about by reason of  this  conversion of price into naye pyse was  more  than offset  by  the fall in circulation, ever  rising  price  of newsprint and the higher commission, etc., which was payable by the newspaper establishments to their commission  agents. The  figures  as worked out need not be  described  here  in detail;  but  we are satisfied that the  conversion  of  the price into naye pyse had certainly not the effect which  was urged  and  did  not  add to  the  paying  capacity  of  the newspaper establishments. The  very fact that the Wage Board thought it  necessary  to express  a pious hope that if there is a good paper  and  it deserves  to exist, the Government and the public will  help it to continue, and also desired the interests which it felt had  been hit hard by its decision not to pass  judgment  in haste,  but to watch, the effects of its decision in  actual working  with patience for a period of 3 to 5  years,  shows that, the Wage Board was not sure of its own ground and  was publishing its decision merely by way of an experiment.  The chairman urged upon the Government of India 191 the   desirability  of  creating  immediately   a   standing administrative machinery which could also combine in  itself the functions of implementing and administering its decision and that of preparing the ground for the review and revision envisaged after 3 to 5 years.  This was again a, pious  hope indulged in by the Wage Board.  It was not incumbent on  the Government  to  fulfill that expectation and  there  was  no knowing  whether the Government would ever review or  revise the  decision  of the Wage Board at the expiration  of  such period. We  have carefully examined all the proceedings of the  Wage Board  and the different tables and statements  prepared  by them.   Neither in the proceedings nor in any of the  tables do  we see -satisfactory evidence to show that the  capacity of  the industry to pay was examined by the Board in  fixing the wage structure.  As we have already observed, it was  no doubt  open to the Board not to attach undue  importance  to the  statements  of profit and loss  accounts  submitted  by various   newspaper   establishments,   but,   since   these statements  prima facie show that the trade was  not  making profit  it  was  all the more necessary  for  the  Board  to satisfy  itself that the different classes of the  newspaper establishments  would be able to bear the burden imposed  by

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the  wage  structure  which the Board had  decided  to  fix. Industrial adjudication is familiar with the method which is usually adopted to determine the capacity of the employer to pay the burden sought to be imposed on him.. If the industry is divided into different classes it may not be necessary to consider the capacity of each individual unit to pay but  it would certainly be necessary to consider the capacity of the respective  classes to-bear the burden imposed on  them.   A cross-section  of  these respective classes may have  to  be taken  for careful examination and all relevant factors  may have  to be borne in mind in deciding what burden the  class considered as a whole can bear.  If possible, an attempt can also  be made, and is often made, to project the  burden  of the  wage structure into two or three succeeding  years  and determine  how  it  affects the financial  position  of  the employer.  The whole of the 192 record before the Board including the chairman’s note  gives no  indication at all that an attempt was made by the  Board to  consider  the capacity of the industry to  pay  in  this manner.  Indeed, the proceedings show that the demands  made by the representatives of the employees and the  concessions made  by the employers’ representatives were taken as  rival contentions  and the Chairman did his best to arrive at  his final  decision  on the usual basis of give  and  take.   In adopting  this course, all the members of the Board seem  to have lost sight of the fact that the essential  prerequisite of deciding the wage structure was to consider the  capacity of the industry to pay and this, in our opinion,  introduces a  fatal infirmity in the decision of the Board.  If we  had been satisfied that the Board had considered this aspect  of the matter, we would naturally have been reluctant to accept any challenge to the validity of the decision on the  ground that  the capacity to pay had not been properly  considered. After  all, in cases of this kind where special  Boards  are set  up to frame wage structures, this Court would  normally refuse  to  constitute  itself into a  court  of  appeal  on questions  of fact; but, in the present case,  an  essential condition  for  the  fixation of  wage  structure  has  been completely  ignored  and  so there is  no  escape  from  the conclusion  that  the Board has  contravened  the  mandatory requirement of s. 9 and in consequence its decision is ultra vires the Act itself. Re. 9. This ground, viz., that the Board had no authority to render a  decision  which was retrospective in  operation  in  also untenable.   The Wage Board certainly had  the  jurisdiction and  authority  to  pronounce  a  decision  which  could  be retrospective in effect from the date of its appointment and there  was no legal flaw in the Wage Board prescribing  that its  decision  should be retrospective in operation  in  the manner  indicated  by it. The retrospectivity may  have  its repercussions on the capacity of the industry to pay and  we need  not say anything more in regard to the same.  We  have already dealt with it above. 193 Be. 10. Ground  No. 10 talks of the authority of the Wage  Board  to fix scales of pay for a period of 3 years, subject to review by  the Government by appointing another Wage Board  at  the end of that period.  We are not concerned with such fixation of the period for the’ simple reason that the Board has  not in  terms done so.  The only authority which it had  was  to fix  the rates of wages and submit its decision  in  respect thereof  to the Government.  Any pious hope  expressed  that

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the decision should be subject to review or revision by  the Government  by appointment of another Wage Board  after  the lapse of 3 or 5 years was not a part of its decision and  we need  not pause to consider the effect of such  fixation  of the period, if any, because it has in fact not been done. Re. 11. The  last ground talks of the Wage Board  being  handicapped for  want of Cost of Living Index.  This ground also  cannot avail  the  petitioners  for  the  simple  reason  that  the decision  of  the Wage Board itself referred  in  Clause  24 thereof  to  the  all  India cost  of  living  index  number published by the Labour Bureau of the Government of India  0 Base 1944: 100 and fixed the dearness allowance in  relation to  the same.  These statistics were available to  the  Wage Board  and it cannot be said that the Wage Board was in  any manner whatever handicapped in that respect. On  a  consideration  of  all the  grounds  of  attack  thus levelled against the validity and the binding nature of  the decision of the Wage Board, we have, therefore, come to  the conclusion  that the said decision cannot be  sustained  and must be set aside. The   petitions   will,  therefore,  be  allowed   and   the petitioners will be entitled to an order declaring that s. 5 (1)  (a)  (iii) of the Working  Journalists  (Conditions  of Service)  and Miscellaneous Provisions Act, 1955,  is  ultra vires the Constitution of India and that the decision of the Wage Board dated April 30, 1957, is illegal and void. As regards the costs, in view of the fact that the 25 194 petioners have failed in most of their contentions in regard to  the  constitutionality of the Act,  the  fairest,  order would  be that each party should bear and pay its own  costs of these petitions. Civil Appeals Nos. 699-703 of 1957. These Civil Appeals are directed against the decision of the Wage Board and seek to set aside the same as destroying  the very existence of the newspaper establishments concerned and infringing  their fundamental rights.  Special  leave  under Art.  136 of the Constitution was granted by this  Court  in respect  of  each  of  them,  subject  to  the  question  of maintainability of the appeals being open to be urged. These  appeals  are  also  covered  by  the  judgment   just delivered  by us in Petition No. 91 of 1957 & Ors., and  the appellants would be entitled to a declaration in each one of them that the decision of the Wage Board is ultra vires  the Working    Journalists   (Conditions   of    Service)    and Miscellaneous  Provisions Act, 1955, and therefore void  and inoperative. In  view  of  the  conclusion  thus  reached,  we  feel   it unnecessary  to  consider  whether  the  appeals  would   be maintainable  under  Art.  136  of  the  Constitution.   The appellants   having   substantially   succeeded   in   their respective petitions under Art. 32 of the Constitution,  the question  has  now become purely academic and  we  need  not spend any time over the same. The  result therefore is that there will be no  orders  save that  all the parties thereto shall bear and pay  their  own costs thereof.                                     Petitions allowed.                             Appeals disposed of accordingly.                             195