91 99 100 101 103 Petitions under Article 32 of the Constitution of India for the enforcement of Fundamental Rights
AND  CIVIL APPELLATE JURISDICTION Civil Appeals Nos699 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
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 articles 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 of Press in the United States of America 1947 Report of the Royal Commission for the Press in the United Kingdom 1949 Ramesh Thapar vs The State of Madras 1950 section C R 594 Brij Bhusan vs State of Delhi   Ex parte Jackson   Lovell v City of Griffin   Orosjean vs American Press Co   Schneider vs Irvington  17 Constitution of the United States of America Revised and Annotated 1952 U section GovtPrinting 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 article 19 1 a and is not saved by article 19 2
In judging the validity of the enactment it must be tested by its operation and effect Dwarkadas Srinivas of Bombay vs The Sholapur Spinning and Weaving Co Ltd   683 Minnesota Ex Rel
Olson  The Act also violates the right guaranteed by article 19 1 g of the Constitution as it places unreasonable restraint on the petitioners  freedom to carry on business Chintaman Rao vs The State of Madhya Pradesh   cited with approval in Dwarka Prasad Laxmi Narain vs The State of Uttar Pradesh  and Ch
Tika Ramjidas vs State of U P   The State of Madras vs V G Row   606 607 The State of West Bengal vs Subodh Gopal Bose 1954 section C R 587 Virendra vs State of Punjab A 1R 1957 section 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 vs State of Delhi   Ourbachan vs State of Punjab  The relevant criteria for the fixation of wages were not laid down in section 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 section 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 vs Court of Wards Ajmer   R M Seshadri vs District Magistrate Tanjore  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 constituted under the 
If it is held that section 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 sections 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 article 19 6 conferred no power on the Legislature to destroy the business itself Stone vs Farmers Loan and Trust Co   Municipal Corporation of the City of Toronto vs Virgo  A Gfor Ontario vs A G for the Dominion 1896 A C 348
The Act is discriminatory in character and violates article 14 of the Constitution
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  654 Union Drug Co Ltd  767 Report of the Committee on Fair Wages pp
13 15 paras
21 23 and 24 or following the procedure prescribed by the  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  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 section 12 of the Act makes the decision of the Wage Board binding only on the employers and not on the employees andiv section 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 
The right to apply to Supreme Court for enforcement of a fundamental right under article 32 is itself a fundamental right guaranteed by the Constitution Ramesh Thapar V The State of Madras   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 vs Northumberland Compensation Appeal Tribunal Ex parte Shaw 1 affirmed by the Court of Appeal in   A K Gopalan vs The State of Madras   243
The Act 20 contravenes article 32 of the Constitution because it does not provide for giving any reasons for the decision to be made by the Wage Board
Decision of the Wage Board is illegal and void because 1 the Act under which it is made was ultra vires Mohd Yasin vs Town Area Committee of Jalalabad   Himatalal Harilal Mehta vs State of U P 1954 section CR 1122 ii the decision itself infringes the fundamental rights of the petitioners Bidi Supply Co vs Union of India  and iii the decision is ultra vires the Act Pandit Ram Narain vs State of U P  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 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
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
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 section 2d 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 vs W T C Parker A 1
R  118 section R V Service Co Ltd vs State of MadrasA 1
R  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 15 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 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 section section Shukla Balbhadra Prasad Sinha and R J Joshi for the petitioners in Petitions Nos99 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
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 vs Collins 89 L Ed 430 The Supreme Court and the right of Free Speech and Press Annotation in  Beauhairnais vs Illinois   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 section 9 leaves in violation 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 article 192
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 article 196 appearing against the fundamental right in article 191g is not to be found in article 192A distinction has to be drawn between the Constitution of U section 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 section 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 section 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 section Govt
Printing Office pp 792 988
The Indian Constitution does not permit restriction of freedom of speech except under the limitation set by article 192
Restrictions that could be held intra vires in respect of other industries would still be ultra vires under article 191a 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 article 191a 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 
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
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 article 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 section 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 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
section P Sinha Gurbachan Singh Harbans Singh and R Patnaik for the petitioners in Petition No 103 of 1957
section section 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 articles 19J a 191g 14 and 32 of the Constitution
The functions of the Wage Board constituted tinder section 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 section 91 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 article 191a 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 fundamental right
If the legislation is not one directly with respect to a fundamental right no further question arises A K Gopalan vs The State of Madras 1950 section C R 88 per Kania C J Ram Singh vs State of Delhi   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 vs R M D Chamarbaugwala 1957 section 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 article 191a 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 vs The State of Madras   and other cases
The Associated Press vs The National Labour Relations Board  960 966 Mabee vs White Plains Publishing Co   613 where application of U section Fair Labour Standards Act 1938 to newspaper undertakings was held not to 29 infringe freedom of speech Oklahoma Press Publishing Co vs Walling   621 Murdock vs Pennsylvania 87 L Ed 1292
The restrictions under article 196 on the freedom to carry oil business under article 191g 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
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 article 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
 Wages  has been defined 30 very comprehensively in section 2rr of the  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 sections 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
One of the criteria specified in section 91 of the Act is the prevalent rates of wages for comparable employments
This has no reference to minimum wage Nellimarla Jute Mills It shows that section 91 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 section 91 can have no other meaning than the capacity to pay region wise
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 section 91 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 section 21 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 section 32 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 section 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 section 5 of the Act which provides for a gratuity
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  358 Indian Oxygen and Acetylene Co Ltd 1956 1 L L J 435
The hours of work provided in section 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 section 54 of the  See also  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 article 191g
Article 14 of the Constitution does not forbid reasonable classification for the purpose of legislation Budhan Choudhry vs The State of Bihar   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 c an only make a beginning somewhere
Such a measure need not be all embracing
There is nothing unreasonable in section 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 article 14 on the ground that it discriminates against the employers South Bank Ltd vs Pichuthayappan A 1R 1954 Madras 377
Similar provision is to be found in section 33C of the 
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 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 article 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 article 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 vs F N Balsara   State of Bombay vs The United Motors India Ltd 1953 section C R 1069 and R MD Chamarbaugwala vs The Union of India  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
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 section 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 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
11 p 55 para
The principle audi alteram partem also applies only to judicial or quasi judicial proceedings
Patterson vs Dist
Commr
of Accrator For a distinction between judicial and legislative functions See Cooley s Constitutional Limitations 8th Edn
Vol 1 p 185 Prentis vs Atlantic Coast Co Ltd   226 227 Per Holmes J Mitchell Coal Co vs Pennsylvania 57 L Ed 1479 1482 Louisville and Nashville Railroad Co vs Green Garrett   239
The functions of the Wage Board in the United Kingdom have been characterised by writers as legislative in character
Robson s Justice and 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   Australian Boot Trade Employees Federation vs Whybrow and Co   289 317 per Isaacs J
The Labour and Industry Act 1953 of Victoria Australia in section 39 2 gives statutory recognition to the decisions in 8 C L R 365 and   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 vs Minister of Town and Country Planning   103
It is incorrect to infer that once the Wage Board is constituted under section 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 section 14 of the  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 section 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
Pacific States Box and Basketing Co vs White   Under section II of the Act the Wage Board may exercise the powers and follow the procedure laid down under the 
There is nothing to warrant the provision being read as obligatory or mandatory
The provisions of the 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 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 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 article 191g 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 section 13 contemplates interim relief
Instead of granting any interim relief the Board decided to give retrospective effect to its decision
AV Viswanatha Sastri section Viswanathan B R L lyengar J B Dadachanji section 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 section R Chari section ViswanathanA N Sinha J B Dadachanji section 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 section 10 of the Working Journalist  Act the Board has to make a decision and this term has been used in several enactments to indicate a determination by a judicial tribunal
Under section 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 section 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 section 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  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
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 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 section Fair Labour Standards Act 1938 Factories and Shops Act 1905 new Act of 1928 of Victoria Australia
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 article 19 1g
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 article 19 1g
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 vs Saratoga Gas Electric Light and Power Co 1908 191 New York 123 People 41 ex rel
Central Park North and East River Co vs 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 392 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 section A the Wage orders ultimately approved by the Administrator are subject to judicial review
In India under the  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 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 vs Manchester Legal Aid Committee Ex parte R A Brand and Co Ltd  428 Rex vs The London County Council Ex parte the Entertainments Protection Association Ltd  233 234 Board of Edu cation vs Rice 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 section R Chari section Viswanathan B R L IyengarJ B Dadachanji and section 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 section section Shukla and R J Joshi for the appellants in C A Nos 700 to 702 of 1957
section 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 section 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 section N Andley and Rameshwar Nath for respondent No 3 in C A 699 of 1957
March 19
The Judgment of the Court was delivered by BHAGWATI J
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 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
The terms of reference inter alia were 2The 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 report on July 14 1954
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 report on July 14 1954
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 
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 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
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
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 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 vs 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 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
48 sidered the questions as to the tenure of appointment and the minimum period of notice for termination of the employment of the working journalists hours of work provision for leave retirement benefits and gratuity made certain recommendations and suggested legislation for the regulation of the newspaper industry which should embody its recommendations with regard to 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  to working journalists
 Working Journalist  was defined in section 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 iis employed mainly in a managerial or admini strative capacity or iibeing employed in a supervisory capacityexercises 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  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  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 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
 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
Newspaper establishment  was defined in section 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  were under section 2 g to have the meanings respectively assigned to them in that Act
Section 3 applied the provisions of the  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 section 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 section 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 section 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 sections 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 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 section 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  exercised or followed for the purpose of adjudicating an industrial dispute referred to it
The decision of the Board under section 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  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 section 21 of the Act
In pursuance of the power given under section 20 of the Act the Central Government published by a notification in the Gazette of India Part II Section 3 dated July 301956 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 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 section 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 MLC 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
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 311952 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 section 11 of the Act the Board had the powers of an Industrial Tribunal constituted under the 
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  1Balance 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 distributionsale 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 5465 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 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
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 41956 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
Members welcomed this suggestion and decided to 58 discuss various issues among themselves in the afternoon and 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
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
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 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
For the purpose of fixation of wages of working 60 journalists newspaper establishments should be grouped under different classes
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
For purposes of classification revenue from all sources of a newspaper establishment should be taken for ascertaining gross revenue
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 12 to 25 lakhs  C over Rs 5 to 12 12 lakhs  D over Rs 2 12 to 5 lakhs  E Rs 2 12 lakhs and below 5
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
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
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 GroupII 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 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
23The 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
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 12 205 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 12 215 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
Other allowances In view of the paucity of evidence on the subject the Board decided that the fixation of conveyance and other allowances should be left to collective bargaining between the working journalists and the newspaper establishments concerned
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
In no case should the present emoluments of the employees be reduced as a result of the operation of this decision
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
Date of operation The Board s decision should be operative from the date of constitution of the Board ie 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 ie 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
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 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 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
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 1954 55 as submitted to the Board revealed that while 43 of them had shown profits 40 had incurred losses
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
gAs 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
hGiving 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 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 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 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 977892 whereas if the decision of the Wage Board were given effect to they would go up to Rs 1521282 12 thus increasing the wage bill of the working journalists annually by Rs 543390 12
They would also have to pay remuneration to the part time 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 516337 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
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
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 405600 and they would have to pay by way of arrears by reason of the retrospective operation of the decision another sum of Rs 405600 to the working journalists
There would also be an additional financial burden of Rs 60000 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 390000
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 2368500 as against the old scale liability of Rs 1162500 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 1550000
The total liability of the petitioners in such an event would amount to Rs 3918000 as against the old liability of Rs 2712500
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 173811 by reason of the retrospective operation of the decision and there will also be an annual increase in the wage bill to the same extent i e Rs 173811
There will also be a yearly recurring increase to the extent of Rs 22470 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 90669 and Rs 29806 respectively in the case of working journalists besides the liability for past gratuity in another sum of Rs 108534 and recurring annual liability for gratuity in a sum of Rs 17995
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 180000
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
The effect of the Wage Board decision on them would be to impose on them a burden of Rs 159528 by reason of the retrospective operation of the decision and an annual increase in the wage bill of Rs 159528 for the first year and an annual recur ring increase of Rs 22000
The operation of sections 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 42000 per year
The liability for pastgratuity would be Rs 93376 and the recurring annual increase in gratuity would be Rs 11000
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 613921 for the working journalists as against the old basis of Rs 100890
The figure for the rest of the staff who are not working journalists is computed at Rs 308112 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 922033 as against what otherwise would have been a sum of Rs 409002
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 216000 Approx ii Arrears of payments from May 2 1956 to April 301957 Rs 189000 iii Past liability in respect of gratuity as on March 31 1957 Rs 265000 iv Recurring annual liability of gratuity Rs 28000
The total liability thus comes to Rs 698000
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 aIncrease in the annual wage bill Rs 502000 Approx b arrears of payments from May 2 1956 to April 30 1957 Rs 451000 Approx c Past liability in respect of gratuity as on March 31 1957 Rs 550000 Approx d Recurring annual liability for gratuity Rs 60000 Approx
The total comes to Rs 1563000
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 10800 the burden of payment of retrospective liability being Rs 9600
Moreover there will be a recurring annual burden of Rs 6340 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 24807 per year besides a similar liability for Rs 24807 by reason of the retrospective operation of the decision
There will be an increase in expenditure to the tune of Rs 30900 by reason of the reduced working hours and increase in leave and holidays a liability of Rs 31 597 for past gratuity and Rs 24807 every year for recurring gratuity as also Rs 1530 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 5724 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 189816
The total costs of closing down if such an eventuality  were contemplated would be Rs 108997 for the working journalists only as against a liability of Rs 22755 on the old basis
The other members of the staff would have to be paid Rs 146351 and the total cost of closing down the whole concern would thus conic to Rs 255349 under the new dispensation as against Rs 169106 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
The increase in the wage bill of the working journalists would come to Rs 29808
The liability for past gratuity would be Rs 6624 and the recurring annual gratuity would be Rs 2303 and the annual recurring increase in wages would come to Rs 2280
The financial burden in case of proof readers would be Rs 6480 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 48720
The total cost of closing down if such a contingency ever arose would come to Rs 100798 under the provisions of the Act and the Wage Board decision as against Rs 45206 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 article 191a 78 article 191g and article 14  but in the course of the argu ments before us another Article viz article 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 article 191a article 191g article 14 andor article 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 section 91 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 article 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 article 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
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 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 leveland 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 level81 ii the minimum subsistence level iiithe 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
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 decencyand 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 described in the preceding paragraphs
1 Report of the Committee on Fair Wagss 1947 to 1949 pp 5 7paras
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
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 ODR 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 vs 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 subsistence or minimum wage providing for some measure of education medical requirements and amenities as contemplated above
also the connotation of  minimum rate of wages  in section 4 of the XI of 1948
tasks in other trades which are of equal difficulty and disagreeableness which require equally rare natural abilities and an equally expensive training
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  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
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 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  affords an illustration of an attempt to provide a statutory minimum
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
The rates of wages and scales of wages are two different expressions with two different connotations
 Similar definition of  wages  is to be found in the  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 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 Ltd1  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 Ltd1  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  6542  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 capacity
The capacity of the industry to pay The capacity of industry to pay can mean one of three things viz  ithe capacity of a particular unit marginal representative or average to pay iithe capacity of a particular industry as a whole to pay or iiithe 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
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 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 iia 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 ratesof 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
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 EM 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
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 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
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
P 26 para
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  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
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
25 26 para
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
vs Louisville  M R 2 and ii Opp
Cotton Mills Inc vs Administration 3
The Fair Labour Standards Act of 1938 in the USA 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
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
2   3 1940 312 U S 126  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 Act had 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  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 
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
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 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
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
bIn 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
cThe 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 arise between the scales sanctioned for similar industries
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 ILO 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 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 councils
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 section 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 
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
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 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 articles 32 and 226 of the  Constitution they would also not be amenable to the exercise of special leave jurisdiction under article 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 vs District Commissioner of Accra 2 On this part of the case counsel suggested that the provisions of section 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 vs 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 vs 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 vs Evans 3 1 Halsbury s Laws of England 3rd Edn Vol 11 at p 55para 114
21948 AC 341
4 1832 2 C 3 16 QB 162 171J 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
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
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 vs 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   226 227  53 L Ed 15o 158 159108 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
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 vs Pennsylvania R Co 1 and Louisville  Nashville Railroad Company vs 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 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   571
Ed 1472 1482
2    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 vs Saratoga Gas Electric Light  Power Co 1 and People ex rel
Central Park North  East River R Co
Willcox 2
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
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 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 vs 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 11910   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  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 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
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
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 vs 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 question whether or not there is a duty to act judicially must be decided 1  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 vs 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 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 vs Minister of Health 2       See also Rex vs 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 withstandingthat 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 vs 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  428 429 430
2 3  233 4
4  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 vs 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 vs 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 these 1 1950 2 KB 410
2   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 vs 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  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
it has however got to be read along with article 19 2 which lays down certain constitutionally permissible limitations on the exercise of that right article 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 article 19 1 a does not fall within the four corners of article 19 2 it cannot be upheld
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
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 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
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 article 19 1 a of the Constitution
The first case which came up for decision before this court was that of Ramesh Thaper vs 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
vs 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 SCR 594 597
2 187796 U S 727   3 1937 303 U S 444   4   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 article 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
Blackstone s Commentaries Vol
IV pp 151 152
 These are the only two decisions of this Court which involve the interpretation of article 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
vs Bombay Co 16 122 Ltd 1 and State of Bombay vs RMD Chamarbaugwala 2
Grosjean vs 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 vs 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
 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 vs Irvingtor 5 was concerned with the effect of the Municipal Regulations against littering of 1 1952 SC R I I 12 I 120
2 4 918
3   249 go L Ed 66o 668
4 136  963
5 1939 308 U S 147   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 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 vs 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 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 Edat 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 vs Illinois2 contains the following at p 943 1 1944 323 U S 516 545  89 L Ed 430 4482  285   943
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 bthe 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 dthe purpose of such a guarantee is to prevent public authorities from assuming the guardianship of the public mind and efreedom 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 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
It was observed in Grosjean vs 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 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   668
126 In The Associated Press vs 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 vs 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 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 vs Walling 1 and in Mabee vs 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  136   963
2 1942 319 U S 105 136    1311
3  194 go L Ed 614 621
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
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 vs Parrish  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 section 233
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 vs Missouri 342 U section 421 423 1952 
 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 article 192 of the Constitution
This Court had occasion to consider the scope of article 192 in Brij Bhushan  Anr
vs 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 SCR 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 article 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 article 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 article 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 article 19 1 a that was protected by it
If the legislation was not a direct legislation on the subject  article 19 1 a would have no application the test being not the effect or result of legislation but its subject matter
 As the preventive detention order results in the detention 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
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
vs 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 article 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 articles 19 21 and 22 is to the limitations and conditions subject to which alone they could be taken away or abridged
2 of article 19 and may therefore be void an order of preventive detention cannot be held to be invalid merely 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 article 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 article 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 article 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 11951 SCR451 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 article 19 1 a read with
article 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 vs 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 11930   708   1363
21954 SCR 674 683 133 by employing indirect method of achieving exactly the same 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  is by section 3 made applicable to working journalists with certain modification in connection with the application of section 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  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  to the working journalists or with the application of the  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 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 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 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 article 191 g
Suffice it to say that so far as article 191 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 191 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 article 196 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 1The 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 bin 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 cin 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 din providing for a procedure which does not compel the Board to conform to the rules under the  thus permitting the Board to follow any arbitrary procedure violating the principle of audi alteram partem
2The restrictions enumerated above in so far as they affect the destruction of the petitioners  business exceed the bounds of permissible legislation under article 191g
The unreasonableness of the restriction is further sought to be emphasized by pointing out that under section 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 
The test of reasonable restrictions which can be imposed on the fundamental right enshrined in article 191g has been laid down by this Court in two decisions In Chintaman Rao vs The State of Madhya Pradesh1 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   763
138 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 191g 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 vs The State of Uttar Pradesh  Ors
1 and in Ch
Tika Ramji vs State of  Uttar Pradesh  Ors
The State of Madras vs 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 article 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   811 3   606 607
2   446
4  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 vs 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 vs 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  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 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 section 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   626
2  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 section 91 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 section 91 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 section 91 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
vs Arabinda Bose  Anr
1 and Provat Kumar Kar and others vs 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 the legislalature
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
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 SCR I 2 AIR 1950 Cal
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 section 91 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
If therefore the criterion of the prevalent rates of wages for comparable employments can on a true construction of section 91be considered consistent only with the fixation of rates of wages which are higher than 1 1053  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 section 91 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 section 91
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 section 91 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
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 section 91 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 section 91 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 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 vs 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 11953 section C R 10491052
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 section 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 Tribunal constituted under the  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
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
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 courtsunder the 
Then follows section 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 of wages exercise the same powers and follow the same procedure
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  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 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  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 made be laid before both Houses of Parliament
These clauses were ultimately passed as section 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 
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 arbitraryprocedure 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 article 196
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 vs Virgo 2 and the Attorney General for Ontario vs 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 vs 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   331   6442  93 J C 4  7243  363
151 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 article 191 g read with article 132 of the Constitution
Several provisions of the impugned Act were referred to in this context
Section 2f 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 section 25F of the  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 sections 14 and 15 of the impugned Act which applied the provisions of the  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
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 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
 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
The provisions in regard to notice cannot be said to be per se unreasonable
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 vs Vernon  Co Ltd  to twelve months Grundy vs Sun Printing and Publishing Association 1916 33 T L R 77 C A
Sub editor of a newspaper six months Chamberlain vs Bennett Foreign correspondent to The Times six months period Lowe vs Walter The Press Commission also recommended that the period of 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 section 32 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  58
2  267
3  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
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 
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 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
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 section 51aiii of the Act would certainly be unreasonable
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
that the decision of the Wage Board may be arrived at ignoring some of these essential criteria which have been laid down in section 91 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 section 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 ground
We shall have occasion to deal with this provision in connection with the alleged infringement of the fundamental right under article 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 article 191g
This attack of the petitioners on the constitutionality of the impugned Act under article 191g viz that it violates the petitioners  fundamental right to carry on business therefore fails except in regard to section 51aiii 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 
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  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 bsaddling them with a new burden in regard to a section of their workers in matters of gratuities compensation hours of work and wages cdevising a machinery in the form of a Pay Commission for fixing the wages of working journalists dnot prescribing the major criterion of capacity to pay to be taken into consideration eallowing the Board in fixing the wages to adopt any arbitrary procedure even violating the principle of audi alteram partem fpermitting the Board the discretion to operate the procedure of the 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
3The 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  and Act I of 1955
The principle underlying the enactment of article 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 vs 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 vs The Union of India 2 The State of Bombay vs F N Balsara 3 The State of West Bengal vs Anwar Ali 11955 I SCR 1045 1048
2  3  161 Sarkar 1 Kathi Raning Rawat vs The State of Saurashtra 2 Lachmandas Kewalram Ahuja vs The State of Bombay 3 Quasim Razvi vs The State of Hyderabad 1 and Habeeb Mohamad vs The State of Hyderabad 5
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 article 14 of the Constitution
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
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 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 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 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 article 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 
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
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  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  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 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 section 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  contained a like provision in section 33C thereof vide the amendment incorporated therein by Act 36 of 1956 which in its turn was a reproduction of the old section 25 1 which had been inserted therein by Act 43 of 1953
It may be remembered that if the provisions of the  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 section 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 
We do not see anything discriminatory in making such a provision for the recovery of monies due by the employers to these working journalist section 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 
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 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 article 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 article 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 article 32
Learned Counsel for the petitioners has relied upon a decision of the English Court in Rex vs 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 vs 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 tribunal to set out the reasons for its order but 1  718
2  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 vs The State of Madras and Anr
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   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 article 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 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 article 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
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
2The 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
3The 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
6Grouping into chains or multiple units was unauthorised by the Act
7The 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 8The 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 Govtby 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 ABecause the Act under which it was made was ultra vires  See Mohammad Yasin vs Town Area Committee Jalalabad  anr
1 and Himmatlal Harilal Mehta vs State of Madhya Pradesh 2 
BBecause the decision itself infringed the fundamental rights of the petitioners
 See Bidi Supply Cov
Union of India 
3 
C Because the decision was ultra vires the Act
See Pandit Ram Narain vs 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
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 July14 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   578
2   1127
3 1956 SCR267
4  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 section 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 section 14 of the  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 section 82 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 1956 were made by the Central Government in exercise of the power conferred upon it by section 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 section 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 section 203 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
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 was not in terms prescribed for the Wage Board the Board having been given under section 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  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  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 section 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 section 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 
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
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 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 section 91 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
It may be remembered in this connection that the Newspaper Industry Inquiry Committee in U P had suggested in its report dated March 311949 classification of newspapers in the manner following A  Class Papers with 1 a circulation of 10000 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 10000 but above 5000 copies or 2 an invested capital between rupees one lakh and 3 lakhs or 3an annual income between rupees one lakh and 3 lakhs C  Class Papers with 1a 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 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
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 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 vs 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 section R V Service Ltd vs 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 section R V section 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 section R V section 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 section R V section 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 newspaper establishments into
one chain or multiple unit and treating them as if they were one 1 A I R  118 para
2 A I R  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 section 91 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 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
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 5705 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 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 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 
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  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 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
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 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
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 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 section 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
We have already dealt with it above
193 Be
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 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 section 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 Nos699 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 article 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
The appellants having substantially succeeded in their respective petitions under article 32 of the Constitution the question has now become purely academic and we need not spend any time over the same


Summary:
 The respondent assessee a PWD contractor had undertaken certain contract works on behalf of the Public Works Department for repair of roads
The assessee was assessed on the purchased turnover of sand bricks etc
which were used for the execution of the work
The assessment was upheld by the Appellate Assistant Commissioner
In the second appeal preferred by the assessee the Tribunal found that it was necessary under section 5A of the Kerala General Sales Tax Act 1963 to have consumption of the commodity in the manufacture of another commodity the goods purchased should be consumed the consumption should be in the process of manufacture and the result must be the manufacture of other goods and held that when a PWD contractor was using articles for constructing a sea wall or repairing public roads there was consumption of a commodity for the manufacture of another commodity and allowed the appeal
The High Court upheld the decision of the Tribunal and rejected the revision preferred by the Revenue
In the Special Leave Petitions to this Court it was contended on behalf of the Petitioner Revenue that if no manufacturing process was involved the case would fall within the scope of section 5A1a of the Act because the statutory provisions spoke not only of goods consumed in the manufacture of other goods for sale but also goods consumed otherwise 
Dismissing the Special Leave Petitions  HELD Section 5 A 1a speaks of goods consumed in the 490 manufacture of other goods for purposes other than sale
493F In the instant case the user must be in the other commodity and the expression consumed otherwise  must be so construed
When a PWD contractor is using articles for constructing or repairing a public road there was consumption of a commodity for the manufacture of another commodity
493F Deputy Commissioner Sales Tax Law Board of Revenue Taxes Ernakulam vs Pio Food Packers   Ganesh Prasad Dixit vs Commissioner of Sales Tax Madhya Pradesh  and Deputy Commissioner of Sales Tax Law Board of Revenue Taxes Ernakulam vs Thomas Stephen  Ors
Ltd SLPC Nos8747 491987 referred to