Case: Hindustan Times &amp; Others Vs. State of U.P. &amp; Another

1. By reason of this petition under Article 32 of the Constitution of India, the writ petitioners herein have questioned the validity of an order dated 24th September, 1991 as also one dated 16th October, 1991 issued by the Special Secretary, Government of Uttar Pradesh, whereby and whereunder a direction had been issued to the effect that at the time of payment of bills for publication of Government advertisements in all newspapers having a circulation of more than 25,000 copies, 5% of the amount thereof, forming part of a fund for the purpose of granting pension to the working journalists, would be deducted.2. Petitioner No.1 herein is a company incorporated under the Companies Act and is engaged in the business of publishing newspapers including the Hindustan Times. Petitioner No.2 is a shareholder of Petitioner No.1 and Petitioner No.3 is its Director.By a letter dated 16th October, 1991 the Special Secretary of the First Respondent communicated the following to the Director. Information and Public Relations Department, Uttar Pradesh (Press Division)/ Advertisement Division, Lucknow:-"On the above subject drawing your attention to para 5 of the Government order No. 460/- Nineteen 1-91-32/77 dated 24th September, 1991 I have been directed to state that for the implementation of the scheme the Governor sanctions the deduction of 5% from bills for publicity/tender advertisement of those papers/journals, besides the specified newspapers whose circulation is over 25000. The said Government order will be deemed to be amended.Pursuant to or in furtherance of the said communication, 5% of the amount from the advertisement bill of the petitioners was deducted.8. Admittedly the petitioner objected thereto.9. However by a letter dated 9th April, 1992, the Editor/in charge Advertisement of Information and Public Relation Department of the respondent wrote to the Chief Advertisement Manager of Petitioner No.1, to the followingrefer to your letter dated 26.3.92.In this connection I have to inform you that deduction @5% from your advertisement bills has been done in accordance with the government orders issued in this regard. If you are not agreeable to this deduction as per government order then it will not be possible to use your newspaper for government advertisement."10. In the aforementioned premise, this writ petition has been filed by the petitioner.11. The impugned order, as noticed hereinbefore, was apparently issued only because the bill presented before the Vidhan Sabha in this behalf lapsed. The respondents thus, sought to achieve the same purpose which it intended to do by reason of a legislative enactment. The question posed in this writ petition must be viewed from this angle also.12. The backdrop of formulation of the said scheme as also the impugned orders clearly go to suggest that by reason thereof the respondents have exercised its constitutional powers and the matter does not relate to a contract qua contract.13. The benefits sought to be granted to the working journalists, indisputably, is covered by Entry 92 of the VIIth Schedule ofThe Parliament, as noticed hereinbefore, enacted the said Act. It is also not in dispute that the matter relating to grant of benefits under the said Act, is subject-matter of various reports/Awards of wage boards including the Bachawat Award wherein the matter relating to payment of pension to the working journalists was considered in the followingPension constitutes an important clement of wages and its importance as a social security measure is well recognised the world over. Indeed, the committee on Fair Wages (1949) categorically mentioned that living wages should enable the worker to provide important misfortunes, including old age". The Directive Principles of State Policy enshrined in the Constitution and the Supreme Court verdicts fully support the position.6.90 Though on strictu sensu construction of the definition of the term wages in Section 2(rr) of the Industrial Disputes Act which becomes applicable (i) newspaper employees by virtue of Section 2(g) of the Working Journalists and other Newspaper Employees (Conditions of Service) and Miscellaneous Provisions Act, 1955, there was some hesitation as to whether provision of pension fell with the jurisdiction of the Wage Boards, the Wage Boards on a thorough consideration of the question took a view that it did Accordingly, the Questionnaire issued by the Wage Boards and its subsequent proceedings continued to abide by this decision till the Finance Minister in his Budget Speech on 29th February, 1988 came out with the followingjournalist have contributed a lot to the country by their intellectual toil, and should be considered by the Parliament to provide a reasonable pension scheme for them Government will be taking appropriate steps in this direction after consulting allThis was followed by the appointment of an Expert Group by the Government "to go into the question of providing a pension scheme for journalists as well as non-journalist employees; of newspaper establishment". Thus the scope got extended to non-journalists newspapers employees as well.6.92 The above-mentioned budget speech and the order constituting Expert Group by the Government was taken by the Wage Boards as a message not to proceed further in the matter. Accordingly, on recommendations are being made in regard to pension and the various statements on capacity to pay so not include any burden that might fall on the newspaper establishments as a result of any pension Scheme".15. It is, furthermore, not in dispute that no State legislation in terms of Entry 24 of List II of the VIIth Schedule of the Constitution has been enacted.16. Entry 92 of List I of the VIIth Schedule provides for taxes on the sale or purchase of newspapers and on advertisements published therein. Entry 55 of List II authorizes the State to impose taxes on advertisements other than advertisements published in the newspaper and advertisements broadcast by ratio or television.17. On advertisements published in the newspapers, no fee in respect thereto can be imposed by the State Legislative, inasmuch as Entry 96 of List I and Entry 66 of List II makes it clear that the respective Legislatures have the requisite legislative competence to legislate only in respect of any of the matters contained in the list.

Reasoning:
17. On advertisements published in the newspapers, no fee in respect thereto can be imposed by the State Legislative, inasmuch as Entry 96 of List I and Entry 66 of List II makes it clear that the respective Legislatures have the requisite legislative competence to legislate only in respect of any of the matters contained in the list.As noticed hereinbefore, the State of Uttar Pradesh intended to make a legislation covering the same field but even if the same was to be made, it would have been subject to the Parliamentary legislation unless assent of the President of India was obtained in that behalf. The State Executives was, thus, denuded of any power in respect of a matter with respect whereto the Parliament has power to make laws, as its competence was limited only to the matters with respect to which the Legislature of the State has the requisite legislative competence. Even assuming that the matter relating to the welfare of the working journalists is a field which falls within Entry 24 of the Concurrent List, unless and until a legislation is made and assent of the President is obtained, the provisions of 1955 Act of the Working Journalists (Fixation of Rates and Wages) Act, 1958 would have prevailed over the State enactment.19. Thus, the directive of the State to the effect that 5% of the amount to be deducted on the amount payable for publication of Government advertisements in all newspapers having a circulation of more than 25,000 copies, would be part of the fund meant to be used towards retiral benefits of the working journalists, must be held to be bad in law. As the said Act, as also the Bachawat Award specifically deal with the matter relating to pension scheme for journalists, we have no hesitation in holding that the impugned orders were beyond the legislative competence of the State.The respondents being a State, cannot in view of the equality doctrine contained in Article 14 of the Constitution of India, resort to the theory of "take it or leave it". The bargaining power of the State and the newspapers in matters of release of advertisements is unequal. Any unjust condition thrust upon the petitioners by the State in such matters, in our considered opinion, would attract the wrath of Article 14 of the Constitution of India as also Section 23 of the India Contract Act.In is trite that the state in all it activities must not act arbitrarily. Enquiry and good conscience should be at the core of all governmental functions. It is now well-settled that every executive action which operates to the prejudice of any person must have the sanction of law. The executive cannot interfere with the rights and liabilities of any person unless the legality thereof is supportable in any court of law. The impugned action of the State does not fulfill the aforementioned criteria.We are, therefore, of the considered view that the impugned orders dated 24th September, 1991 and 16th October, 1991 are unconstitutional and void and must be declared as such.