Full Judgment Text
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CASE NO.:
Writ Petition (civil) 59 of 2001
PETITIONER:
Exp. Publications(Madurai)Ltd.& Anr.
RESPONDENT:
Union of India & Anr.
DATE OF JUDGMENT: 11/03/2004
BENCH:
Y.K. Sabharwal & D.M. Dharmadhikari
JUDGMENT:
J U D G M E N T
Y.K. Sabharwal, J.
In this petition filed under Article 32 of the Constitution of India challenge
is to the constitutionality of paragraph 80(2) of the Employees’ Provident Fund
Scheme, 1952. The effect of the impugned paragraph is that the employees of
newspaper industry, for the purposes of provident fund scheme, do not fall in the
category of excluded employees despite their pay being above prescribed amount
as notified by Government of India from time to time.
In order to appreciate the question involved, it is necessary to examine
certain provisions of the Employees’ Provident Funds and Miscellaneous
Provisions Act, 1952 (for short, ’the PF Act’).
The PF Act was passed by the Parliament in the year 1952 to, inter alia,
provide for the institution of provident fund for employees in factories and other
establishments. Sub-section (3) of Section 1, inter alia, provides that the Act
applies to every establishment which is a factory engaged in any industry specified
in Schedule I and in which twenty or more persons are employed and to any other
establishment employing twenty or more persons or class of such establishments
which the Central Government may, by notification in the Official Gazette,
specify in this behalf. The expression "basic wages" is defined in Section 2(b) and
the expression "scheme" in Section 2(l). ’Scheme’ means the Employees’
Provident Fund Scheme framed under Section 5 of the PF Act. The Central
Government has been empowered to add to Schedule-I any other industry in
respect of the employees whereof it is of opinion that a provident fund scheme
should be framed under the Act and thereupon the industry so added shall be
deemed to be an industry specified in Schedule I for the purposes of the Act.
Section 5, inter alia, provides that the Central Government may, by notification in
the Official Gazette, frame a Scheme to be called the Employees’ Provident Fund
Scheme for the establishment of provident funds under the Act for employees or
for any class of employees and specify the establishments or class of
establishments to which the said Scheme shall apply and there shall be established
as soon as may be after the framing of the Scheme, a Fund in accordance with the
provisions of the Act and the Scheme.
In exercise of the powers conferred by Section 5 of the PF Act, the Central
Government framed the Employees’ Provident Fund Scheme, 1952 (for short, ’the
Scheme’). The employees to whom the provisions of the Scheme and the Act
would not apply are defined as "excluded employee" in paragraph 2(f) of the
Scheme. The said paragraph to the extent relevant for present purposes reads as
under :
"2(f) ’excluded employee’ means\027
(i) ...
(ii) an employee whose pay at the time he is
otherwise entitled to become a member of the
Fund, exceeds six thousand and five hundred
rupees per month;
Explanation.\027’Pay’ includes basic wages with
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dearness allowance, retaining allowance (if any)
and cash value of food concessions admissible
thereon;
The income ceiling mentioned in paragraph 2(f)(ii) has been substituted and
suitably increased from time to time by issue of notification by the Central
Government having regard to the fall in money value and increase in wages. The
ceiling of Rs.6,500/- per month was fixed by notification dated 4th May, 2001
w.e.f. 1st June, 2001. Earlier to 1st June, 2001, it was Rs.5,000/- per month.
Originally, an employee whose pay exceeded Rs.300/- per month was placed into
the category of an ’excluded employee’. In 1957, the pay ceiling was increased to
Rs.500/- per month; in 1962,it was increased from Rs.500/- to Rs.1,000/-; in 1976,
it was increased from 1,000/- to Rs.1,600/-; in 1985, it was increased from 1,600/-
to Rs.2,500/-; in 1990, it was increased from Rs.2,500/- to Rs.3,500/-, in 1994, it
was increased from Rs.3,500/- to Rs.5,000/-; and lastly to Rs.6,500/- in the year
2001.
In so far as the employees of the newspaper industries are concerned, they
have not been included in the category of ’excluded employee’ for the last more
than 47 years. By notification dated 4th December, 1956 issued by the Central
Government, Chapter X was inserted in the scheme incorporating therein special
provisions in the case of newspaper establishments and newspaper employees.
Paragraph 80 thereof, substituted the definition of expression ’excluded employee’
in relation to its application to newspaper establishments and newspaper
employees. The relevant part of Paragraph 80 reads as follows :
"80. Special provisions in the case of newspaper
establishment and employees.\027The Scheme shall, in
its application to newspaper establishments and
newspaper employees, as defined in Section 2 of the
Working Journalists (Conditions of Service) and
Miscellaneous Provisions Act, 1955, come into force
on the 31st day of December, 1956 and be subject to
the modifications mentioned below:
(1) In Chapters I to IX, references to ’industry’,
’factories’ and ’employees’ shall be construed
as references to ’newspaper industry’,
’newspaper establishments’ and ’newspaper
employees’, respectively:
(2) ’excluded employee’ means,\027
(i) an employee who, having been a member
of the Fund, has withdrawn the full
amount of his accumulations in the Fund
under clause (a) or (c) of sub-paragraph (1)
of paragraph 69;
(ii) an apprentice.
Explanation.\027’Apprentice’ means a
person who, according to the standing
orders applicable to the newspaper
establishment concerned, is an apprentice
or who is declared to be an apprentice by
the authority specified in this behalf by the
appropriate Government."
The aforesaid paragraph came into force on 31st December, 1956.
Therefore, since the said date, instead of paragraph 2(f), the employees of the
newspaper establishments have a separate and distinct definition. The effect of
definition as contained in the impugned paragraph 80(2) is that since 1956, the
income ceiling has not been applied to the employees of newspaper
establishments. The result is that newspaper establishments and newspaper
employees do not come in the category of ’excluded employee’. In other words,
irrespective of pay, all such employees are entitled to the benefit of the scheme.
The main attack of the petitioners to the constitutional validity of Paragraph
80(2) is that only in case of employees of newspaper industry, the test of income
has been excluded by keeping the newspaper establishments and employees as a
class apart which is wholly discriminatory. There is no rationale or valid basis for
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artificially treating newspaper establishments and employees as a distinct class so
as to make them ineligible on the basis of income ceiling. The impugned
definition of ’excluded employee’ in paragraph 80(2) suffers from the vice of
arbitrariness and offends Article 14 of the Constitution of India apart from
imposing a serious financial burden only on newspaper establishments. According
to the petitioners, there is no valid basis to single out newspaper establishments for
additional burden.
The petitioners have tried to explain that though the impugned provision
came into effect in 1956, they tried to bear the burden with equanimity and with a
certain sense of rectitude but, with passage of years, there has been severe setback
to the newspaper industry in general and the petitioners’ organization in particular
and, therefore, this challenge at this stage. In this regard, it has been pointed out
that the recent trends have witnessed a recession of several financial crises in
newspaper industry as a result of decline in their revenue from advertisements
because of diversion of advertisements to electronic media. The inroads made by
Television is said to have taken the sheen off the print media. In any case, delay
in such matters, when constitutional validity is in issue, cannot be of any
consequences, is the submission of Anil Dewan, Senior Advocate appearing for
the petitioners. It has been further submitted that the mere fact that other
newspaper organizations have not challenged the impugned provision is also of no
consequence.
In order to appreciate the challenge in question, it is also necessary to
examine certain provisions of the Working Journalists and Other Newspaper
Employees (Conditions of Service) and Miscellaneous Provisions Act, 1955 (for
short, ’the Working Journalists Act’).
The Working Journalists Act was enacted to regulate certain conditions of
service of working Journalists and other persons employed in the newspaper
establishments. "Newspaper Employee" means any working journalist, and
includes any other person employed to do any work in, or in relation to, any
newspaper establishment [Sec.2(c)]. The expression ’newspaper establishment’ is
defined in Section 2(d). The expression ’non-journalist newspaper employee’ is
defined in Section 2(dd). The working journalists and those who are not
journalists but are employed to do any work in, or in relation to, any newspaper
establishment, are newspaper employees. Chapter II of the Working Journalists
Act, inter alia, deals with conditions of service of working journalists,
incorporating therein special provisions in respect of certain cases of
retrenchment, payment of gratuity, hours of work, leave, fixation or revision of
rates of wages, constitution of a Wage Board, Tribunal etc. Chapter IIA, inter alia,
provides for fixation or revision of rates of wages of non-journalist newspaper
employees, constitution of Wage Board for fixing or revising their rates of wages,
constitution of Tribunal etc. Section 15 of the Working Journalists Act, inter alia,
stipulates that the PF Act, as in force for the time being, shall apply to every
newspaper establishment in which twenty or more persons are employed on any
day, as if such newspaper establishment were a factory to which the aforesaid Act
had been applied by a notification of the Central Government under sub-section
(3) of Section 1 thereof, and as if a newspaper employee were an employee within
the meaning of that Act. The applicability of the PF Act to the employees of the
newspaper establishments is not in issue. The issue here is about not subjecting
the employees of the newspaper establishments to income ceiling whereas
employees of all other establishments and industries to which the PF Act is
applicable, are subjected to income ceiling.
The Constitutional validity of certain provisions of the Working Journalists
Act was examined in the celebrated decision of the Constitution Bench in Express
Newspapers (Private) Ltd. & Anr. v. The Union of India & Ors. [(1959) SCR
12], and one of the questions was about violation of equality clause. We will
revert to the said decision a little later.
The contention is that the impugned provision which applies exclusively to
the employees of newspaper industry suffers from the vice of arbitrariness because
there is no rational or distinctive basis for culling out a separate class called
"newspaper establishment and newspaper employees" and to provide for a harsher
and more financially crippling measure by providing a special definition thereby
totally eliminating the income test. There is no valid classification to split the
employers into newspaper organizations and non-newspaper organizations for
different and discriminatory treatment in the matter of Provident Fund
Contribution. It has also been contended that as a matter of fact the extent of
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financial power available to newspaper industry is much less than many other
industries like Steel, Heavy Engineering and other cash rich industries and if, at
all, there is a case for providing a lesser burden it is newspaper industry which
deserves it as a class. Instead of that, a heavy burden has been imposed upon a
weaker section of the industries, viz., newspaper industry. The petitioners have
also faintly suggested violation of right of freedom of speech and expression as
guaranteed under Article 19(1)(a) contending that in view of additional burden, it
becomes very difficult to maintain price line by keeping the price of the
newspaper at certain level without increasing it and even a marginal increase
would affect the number of readers, particularly, in a country like India with a
large number of economically weaker sections. This reduction in the access of
newspapers to the members of the public is a matter that is fraught with serious
consequences because it not merely affects the fundamental rights of the
petitioners to disseminate the news freely but it also affects the right of the
members of the public to know, which is the essence of democracy. The
contention is that any action which has effect of increasing the price of newspaper
has very serious ramifications. It is claimed that the effect of the impugned
provision is to place additional financial burden which is hardly conducive to the
furtherance of the freedom of press and there is no warrant for providing harsh
special impositions which are not applicable to other business organizations. The
continuation of such a definition year after year would result in petitioners’ totally
going out of business since the amount involved have become astronomical.
The stand of the respondent in brief is that having regard to various
considerations concerning newspaper establishments, the Government has
distinguished the said establishments from non-newspaper establishments. The
impugned provision is a welfare legislation made for the welfare of the employees
of the newspaper establishments so as to cover a wider range of employees and
grant to them the benefit of the beneficial legislation. Such a legislation is in
furtherance of the freedom of press enshrined in Article 19(1)(a) of the
Constitution of India. The Journalist and the persons working in the newspaper
establishments form as much integral part of freedom of press as the establishment
itself and it is to promote and protect the journalist and other employees of
newspaper establishments who also form the bed rock of freedom of speech and
expression that the benefit of Provident Fund to even those who draw higher pay
has been extended.
Undoubtedly, the employees of the newspaper establishments are in a better
position than the employees of other establishments and industries since the
newspaper employees, without any income ceiling limit, are entitled to the
benefits the PF Act and the Scheme. That has been the position for the last nearly
half a century. On the other hand, right since inception of the PF Act, the benefit
of the Scheme has been denied to those employees who have more than specified
income. The benefit has been extended to weaker sections of employees of other
establishments and industries and not to all sections. The income ceiling has been
amended by notifications issued from time to time as already noticed.
The question for determination also is whether this benefit given to the
employees of newspaper industry in the year 1956 and continuing till date can be
challenged at this stage after lapse of so many years by only one of the newspaper
establishments in the country.
The principles under Article 14 of the Constitution are well settled. It is not
necessary to burden this judgment with various decisions on the subject of
arbitrariness and the classification, except to notice the principles laid In Re The
Special Courts Bill, 1978 [(1979) 1 SCC 381] as under :
"(5) By the process of classification, the State has the
power of determining who should be regarded as a
class for purposes of legislation and in relation to a law
enacted on a particular subject. This power, no doubt,
in some degree is likely to produce some inequality;
but if a law deals with the liberties of a number of
well-defined classes, it is not open to the charge of
denial of equal protection on the ground that it has no
application to other persons. Classification thus means
segregation in classes which have a systematic
relation, usually found in common properties and
characteristics. It postulates a rational basis and does
not mean herding together of certain persons and
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classes arbitrarily.
(6) The law can make and set apart the classes
according to the needs and exigencies of the society
and as suggested by experience. It can recognise even
degree of evil, but the classification should never be
arbitrary, or evasive.
(7) The classification must not be arbitrary but must be
rational, that is to say, it must not only be based on
some qualities or characteristics which are to be found
in all the persons grouped together and not in others
who are left out but those qualities or characteristics
must have a reasonable relation to the object of the
legislation. In order to pass the test, two conditions
must be fulfilled, namely, (1) that the classification
must be founded on an intelligible differentia which
distinguishes those that are grouped together from
others and (2) that differentia must have a rational
relation to the object sought to be achieved by the Act.
(8) The differentia which is the basis of the
classification and the object of the Act are distinct
things and what is necessary is that there must be a
nexus between them. In short, while Article 14 forbids
class discrimination by conferring privileges a
imposing liabilities upon persons arbitrarily selected
out of a large number of other persons similarly
situated in relation to the privileges sought to be
conferred or the liabilities proposed to be imposed, it
does not forbid classification for the purpose of
legislation, provided such classification is not arbitrary
in the sense above mentioned."
We will now examine other cases on which reliance has been placed by Mr.
Anil Dewan in support of challenge to the impugned provision.
Motor General Traders & Anr. v. State of Andhra Pradesh & Ors. [(1984)
1 SCC 222] has been relied in support of the contention that the mere fact that the
discrimination is allowed to be continued for a long time is not a ground to dispel
the attack and also that what may have been once a non-discriminatory piece of
legislation, in course of time, can become discriminatory. Motor General
Traders’ case is a case under Rent Laws where challenge was to the
constitutional validity of clause (b) of Section 32 of Andhra Pradesh Buildings
(Lease, Rent and Eviction) Control Act, 1960 which exempts all buildings
constructed on and after 26th August, 1957 from the operation of the Act. The
provision was enacted to provide an incentive to the house building activity to
meet the shortage of accommodation and encourage new constructions. The effect
of the impugned provision was that the Act was not to apply to any building
constructed on and after 26th August, 1957. Earlier, when the constitutionality of
the said provision was questioned before the High Court of Andhra Pradesh on the
ground that it violated Article 14 of the Constitution, the petition was dismissed by
the High Court [Chintapalli Achaiah v. P. Gopalakrishna Reddy [AIR 1966 AP
51] observing that the hardship caused to the tenants by the exemption given in the
case of buildings constructed after 26th August, 1957 was short-lived and the
concession should be tolerated for a short while. This Court noticed that the
exemption had continued for more than a quarter of a century and the landlords
who earned their exemption under Section 32(b) had continued to enjoy for a long
number of years the freedom to indulge in malpractices which the Act intended to
check while others are governed by the Act.
In view of Section 32(b) of the Andhra Pradesh Act, there were to
sets of buildings in every area in which the Act applied \026 (1) those to which the
Act applied; and (2) those which are exempted under Section 32(b). It was
noticed that the buildings to which the Act was applicable are aged more than 26
years and those to which it was not applicable are aged about 26 years or less.
During these 26 years from August 26, 1957, thousands of buildings may have
been constructed and all of them are continuing to enjoy the immunity from the
provisions of the Act. It was contended in that case that the result was that there
were two class of landlords \026 one class governed by the Act and the other not.
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There were also two class of tenants as well \026 one having the protection of the
remedial provision of the Rent Act and the other not having such protection. The
contention that was urged in support of challenge to the constitutional validity of
Section 32 (b) was that whatever may have been the position in the first few years,
after the Act was passed, there is no justification for continuing the exemption for
all time to come. It was observed that the object of granting exemption was only
to provide an incentive to the building activity and also that even the State
Government was not quite satisfied with the existing law. The question of
discrimination was determined having regard to these factors. The classification
of buildings for purposes of Section 32(b) was held not to have satisfied the true
tests of classification. It was observed that while it may be that there is some
justification for exempting new buildings say which are five, seven or ten years
old from the Act, in order to provide an incentive to builders of new buildings,
there is hardly any justification to allow buildings which were constructed more
than ten years ago to remain outside the scope of the Act. The landlords of such
buildings, it was noticed, must have realized a large part of investment made on
such buildings by way of rents during all these years. The Court took into account
that owing to continuous influx of population into urban areas in recent years the
rates of rents have gone up everywhere and that the landlords of such buildings
have been able to take advantage of the situation created by the shortage of urban
housing accommodation which is now a universal phenomenon. Under these
circumstances, it was held that there was no longer any need to continue the
exemption. It was said that there cannot be any valid justification to apply the Act
to a building which was 27 years old and not to apply it in the case of a building
which is 26 years old. It was held that the classification of buildings into two
classes for purposes of Section 32(b) of the Act, therefore, does not any longer
bear any relationship to the object, since the buildings which are exempted have
already come into existence and their owners have realised a major part of their
investment.
In Motor General Traders’ case, two answers were given to the contention
that since the impugned provision has been in existence for over 23 years and its
validity has once been upheld by the High Court, this Court should not pronounce
upon its validity at this late stage. First, the very fact that nearly 23 years are over
from the date of enactment and the discrimination is allowed to be continued
unjustifiably for such a long time is a ground of attack pointing out that what
should have been just an incentive has become a permanent bonanza in favour of
those who constructed building subsequent to August 26, 1957; there being no
justification for the continuance of the benefit to a class of persons without any
rational basis whatsoever, the evil effects flowing from the impugned exemption
have caused more harm to the society than one could anticipate. What was
justifiable during a short period has turned out to be a case of hostile
discrimination by lapse of nearly a quarter of century. The second answer given
was that mere a lapse of time does not lend constitutionality to a provision which
is otherwise bad.
Rattan Arya & Ors. v. State of Tamil Nadu & Anr. [(1986) 3 SCC 385]
again is a decision in which a provision of the Rent Act exempting from protection
of the Act residential buildings paying monthly rent exceeding Rs.400/- whereas
no such restriction was imposed in respect of tenants of non-residential buildings
was struck down being violative of Article 14, following the Motor General
Traders’ case (supra).
In Malpe Vishwanath Acharya & ors. v. State of Maharashtra & Anr.
[(1998) 2 SCC 1] challenge was to the validity of certain provisions of the
Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 insofar the
same provided that the landlords cannot charge rent in excess of the standard rent.
It was held that there is considerable judicial authority for the proposition that with
the passage of time, a legislation which was justified when enacted may become
arbitrary and unreasonable with the change of circumstances. A three Judge
Bench said that :
"It is true that whenever a special provision, like the
Rent Control Act, is made for a section of the society it
may be at the cost of another section, but the making
of such a provision or enactment may be necessary in
the larger interest of the society as a whole but the
benefit which is given initially if continued results in
increasing injustice to one section of the society and an
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unwarranted largess or windfall to another, without
appropriate corresponding relief, then the continuation
of such a law which necessarily, or most likely, leads
to increase in lawlessness and undermines the
authority of the law can no longer be regarded as being
reasonable. Its continuance becomes arbitrary."
None of the aforesaid decisions, in our view, have any applicability to the
case in hand for various reasons. The aforesaid decisions were concerned with
validity of provisions which intended to grant only a temporary benefit having
regard to the prevailing conditions but were continued for long number of years
without review of change of conditions and as purpose had been achieved, the
provisions were held to be violative of equality clause. Further, after coming to
the conclusion as above that the impugned provisions have become
discriminatory, this Court rejected the contention that since the provisions had
been unsuccessfully challenged earlier and held the field for a long time, the same
do not deserve to be invalidated. In the present case it is not the contention that
only temporary relief was granted to the employees of the newspaper industry.
Apart from this, the employees of newspaper industry have always been treated as
a class apart, an aspect which we have dealt in later part of the judgment..
Moreover, the mere fact that the similar benefit even after lapse of about half a
century has not been given to the employees of other industries will not make the
benefit given to the newspaper industry discriminatory. The principle that a
provision which may be constitutional when enacted may become unconstitutional
later due to changed scenario, has no applicability whatsoever to the present case.
Undoubtedly, the classification cannot be arbitrary. It has to be rational and
must have a reasonable relation to the object sought to be achieved. The
classification must be founded on an intelligible differentia. There is no difficulty
in accepting these principles relied upon by Mr. Dewan. The difficulties generally
do not arise in formation of principles under Article 14. But at times, difficulties
do arise in the application of such principles to concrete cases.
We may also notice the aspect of long delay in laying challenge to the
validity of the impugned provisions. No hard and fast principle can be laid down
that under no circumstances delay would be a relevant consideration in judging
constitutional validity of a provision. It has to be remembered that the
constitutional remedy under Article 32 is discretionary. In one case, this Court
may decline discretionary relief if person aggrieved has slept over for long number
of years. In another case, depending upon the nature of violation, court may
ignore delay and pronounce upon the invalidity of a provision. It will depend
from case to case. In Rabindra Nath Bose & Ors. . v. Union of India & Ors.
[(1970) 2 SCR 697], the extreme proposition that this court has no discretion and
cannot dismiss a petition under Article 32 on the ground that it has been brought
after inordinate delay, was not accepted by the Constitution Bench. The plea to
reconsider law laid down in M/s.Tilokchand and Motichand & Ors. v.
H.B.Munshi & Anr. [(1969) 1 SCC 110] did not succeed. It was held that:
"But after carefully considering the matter, we are of
the view that no relief should be given to petitioners
who, without any reasonable explanation, approach
this Court under Article 32 of the Constitution after
inordinate delay. The highest Court in this land has
been given Original Jurisdiction to entertain petitions
under Article 32 of the Constitution. It could not have
been the intention that this Court would go into stale
demands after a lapse of years.
It is said that Article 32 is itself a guaranteed right. So
it is, but it does not follow from this that it was the
intention of the Constitution makers that this Court
should discard all principles and grant relief in
petitions filed after inordinate delay."
In Ramachandra Shankar Deodhar & Ors. v. The State of Maharashtra
& Ors. [(1974) 1 SCC 317] on aspect of belated and stale claims, the Bench said
that it is not a rule of law, but a rule of practice based on sound and proper
exercise of discretion. In Tilokchand (supra) Chief Justice Hidayatullah pointed
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out that the question "is one of discretion for this Court to follow from case to
case. There is no lower limit and there is no upper limit..... It will depend on what
the breach of the Fundamental Right and remedy claimed are and how the delay
arose"
In the present case, there is no satisfactory explanation for delay of over
forty five years. The petition can be rejected by declining to exercise discretion in
favour of petitioners only on this count. Further, as already noticed, a provision
though constitutional when enacted, may with passage of time become
unconstitutional, but the said principle has no applicability to the present case.
The contention here is that the impugned provision was unconstitutional from its
inception in the year 1956 since there was never any legal basis for classification
of newspaper establishments as a separate class. We have, also examined
hereafter this contention as well.
Mr.Dewan contends that newspaper industry cannot be singled out for
harsh treatment. Reliance is placed upon observation made in Indian Express
Newspapers (Bombay) Private Ltd. & Ors. v. Union of India & Ors. [(1985) 1
SCC 641 at 685 para 66] to the effect that levy of tax on newspaper industry
should not be overburden on newspapers which constitute the Fourth Estate of the
country which should not be singled out for harsh treatment. One of the questions
that came to be considered was whether newspapers have immunity from taxation.
Considering the earlier decisions, namely, Sakal Papers (P) Ltd. & Ors. v. The
Union of India [(1962) 3 SCR 842] and Bennett Coleman & Co. & Ors. v. Union
of India & Ors. [(1972) 2 SCC 788], the first being concerned with the newspaper
price page policy and in the second the challenge being to the newsprint policy
imposed by the Government, it was held that none of these two decisions were
concerned with the power of the Parliament to levy tax on any goods used by the
newspaper industry. Holding that taxes have to be levied for the support of the
Government and newspapers which derive benefit from the public expenditure
cannot disclaim their liability to contribute a fair and reasonable amount to the
public exchequer, the above observations were made about not singling out
newspaper industries for harsh treatment. It was further observed that a wise
administrator should realize that the imposition of a tax like the customs duty on
newsprint is an imposition of knowledge and would virtually amount to a burden
imposed on a man for being literate and for being conscious of his duty as a citizen
to inform himself about the world around him. It was further said that the
fundamental principle involved was the people’s right to know. Freedom of
speech and expression should, therefore, receive a generous support from all those
who believe in the participation of people in the administration. It is on account of
this special interest which society has in the freedom of speech and expression that
the approach of the Government should be more cautious while levying taxes on
matters concerning newspaper industry than while levying taxes on others. This
Court held that while the contention that no tax can be levied on newspaper
industry cannot be accepted, it had to be held that any such levy is subject to
review by courts in the light of the provisions of the Constitution. The
observations in the judgment were pressed into service in support of the contention
that freedom of speech and expression would be adversely affected by continuing
the definition of ’excluded employee’ in respect of the newspaper industry which
has been singled out for harsh treatment. As can be seen from above, observations
have been made in a different context. In any case, the decision, far from
supporting the contention of the petitioners, in fact, to an extent lends support to
the benefit that was given to the employees of the newspaper industry in the year
1956 as a result of the impugned provision. It has to be remembered that in
spreading information, the employees of newspapers industry play dominant role
and considering the employees of newspaper industry as a ’class’, this benefit was
extended almost at the same time when the Working Journalist Act was enacted.
Thus, there can be no question of any adverse effect on the freedom of press. The
financial burden on employer, on facts as herein, cannot be said to be a ’harsh
treatment’. The contention that now the petitioners are unable to bear the financial
burden which they have been bearing for the last over forty five years is wholly
irrelevant. It is for petitioners to manage their affairs if they intend to continue
with their activity as newspaper establishment.
In Express Newspapers (Private) Ltd. & Anr. v. The Union of India &
Ors. [(1959) SCR 12], the question as to the vires of the Working Journalists
(Conditions of Service) and Miscellaneous Provisions Act, 1955 came up for
consideration. Tracing the history of the events which led to the enactment of the
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said Act, it was noticed that newspaper industry in India did not originally start as
an industry but started as individual newspapers founded by leaders in 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 combined 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 able 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. The Government of India appointed a Press
Commission to, inter alia, enquire into the state of press in India, its present and
future lines of development and in particular to examine 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 also considered that there should be 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 also considered the applicability of the
Industrial Disputes Act to the Working Journalists and came to the conclusion that
the working journalists did not come within the definition of workman as it stood
at that time in the Industrial Disputes Act nor could a question with regard to them
be raised by others who were admittedly governed by the Act. It, therefore,
considered the question 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 notice period,
bonus, minimum wages, Sunday rest, leave and provident fund and gratuity.
Almost immediately after the report of the Press Commission, Parliament passed
the Working Journalists (Industrial Disputes) Act, 1955 (1 of 1955). It was an Act
to apply the Industrial Disputes Act, 1947 to the working journalists. The
application of the Industrial Disputes Act, 1947 to the working journalist was not,
however, deemed sufficient to meet the requirements of the situation. There was
considerable hesitation in Parliament for the implementation of the
recommendations of the Press Commission. Ultimately, the Government
introduced a Bill on 30th November, 1955 in 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 the minimum wages and other aspects, above
noticed, was left to the Minimum Wages Board to be constituted for the purpose
by the Central Government. Finally, the Working Journalist (Conditions of
Service) and Miscellaneous Provisions Act, 1955 (45 of 1955) was passed and
received the assent of the President on 20th December, 1955. The Act was
challenged on the ground that it violates the fundamental right under Article
19(1)(a) of the Constitution guaranteeing to all citizens the right to freedom of
speech and expression. Pointing out that the regulations of the conditions of
service is the main object which is sought to be achieved by the impugned Act, it
was considered that if a general law in regard to industrial or labour relation had
been applied to press industry as a whole, no exception could have been taken to
it. Further, if the matter had rested with the application of the Industrial Disputes
Act, 1947 to the working journalist or with the application of the Industrial
Employment (Standing Orders) Act, 1946 or the Employees’ Provident Fund Act,
1952 to them, no exception could have been taken to this measure. The contention
urged was that apart from application of these general laws to the working
journalists, there are provisions enacted in the impugned Act in relation to
payments 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
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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 petitioners’ 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.
This Court noticed that the journalist are but the vocal organs and the
necessary agencies for the exercise of the right of free speech and expression and
any legislation directed towards the amelioration of their conditions of service
must necessarily affect the newspaper establishments and have its repercussions
on the freedom of press. The impugned Act can, therefore, be legitimately
characterized as a measure which affects the press and if the intention or the
proximate effect and operation of the Act was such as to bring it within the
mischief of Article 19(1)(a), it would certainly be liable to be struck down. The
real difficulty, however, in the way of the petitioners is that whatever be the
measures enacted for the benefit of the working journalists neither the intention
nor the effect and operation of the impugned Act is to take away or abridge the
right of freedom of speech and expression enjoyed by the petitioners. The
question of violation of right of freedom of speech and expression as guaranteed
under Article 19(1)(a) in the present case on account of additional burden as a
result of impugned provision does not arise.
An attack was also made in the said case to the constitutional validity of the
Act on the ground that it selected the working journalists for favoured treatment
by giving them additional benefits which other persons in similar or comparable
employment had not got and in providing for the fixation of their salaries without
following the normal procedure envisaged in the Industrial Disputes Act, 1947.
The following propositions were advanced :
"1. In selecting the Press industry employers from all
industrial employers governed by the ordinary law
regulating industrial relations under the Industrial
Disputes Act, 1947, and Act I of 1955, the impugned
Act subjects the Press industry employers to
discriminatory treatment.
2. Such discrimination lies in
(a) singling out newspaper employees for differential
treatment;
(b) saddling them with a new burden in regard to a
section of their workers in matters of gratuities,
compensation, hours of work and wages;
(c) devising a machinery in the form of a Pay
Commission for fixing the wages of working
journalists;
(d) not prescribing the major criterion of capacity to
pay to be taken into consideration;
(e) allowing the Board in fixing the wages to adopt any
arbitrary procedure even violating the principle of audi
alteram partem;
(f) permitting the Board the discretion to operate the
procedure of the Industrial Disputes Act for some
newspapers and any arbitrary procedure for others;
(g) making the decision binding only on the employers
and not on the employees, and
(h) providing for the recovery of money due from the
employers in the same manner as an arrear of land
revenue.
3. The classification made by the impugned Act is
arbitrary and unreasonable, in so far as it removes the
newspaper employers vis-a-vis working journalists
from the general operation of the Industrial Disputes
Act, 1947, and Act I of 1955."
The aforesaid propositions were considered in the light of the principles
laid down in various decision on the aspect of Article 14. The well established
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principle to be always borne in mind is that while Article 14 forbids class
legislation, it does not forbids reasonable classification. In Budhan Choudhry &
Ors. v. State of Bihar [(1955) 1 SCR 1045] Das, J. (as His Lordship then was)
speaking for the court said:
"The provisions of article 14 of the Constitution have
come up for discussion before this Court in a number
of cases, namely, Chiranjit Lal Chowdhuri v. The
Union of India [(1950) S.C.R. 869], The State of
Bombay v. F. N. Balsara [(1951) S.C.R. 682], The
State of West Bengal v. Anwar Ali Sarkar [(1952)
S.C.R. 284], Kathi Raning Rawat v. The State of
Saurashtra [(1952) S.C.R. 435], Lachmandas
Kewalaram Ahuja v. The State of Bombay [(1952)
S.C.R. 710], Quasim Razvi v. The State of Hyderabad
[(1953) S.C.R. 581], and Habeeb Mohamad v. The
State of Hyderabad [(1953) S.C.R. 661]. It is,
therefore, not necessary to enter upon any lengthy
discussion as to the meaning, scope and effect of the
article in question. It is now well-established that while
article 14 forbids class legislation, it does not forbid
reasonable classification for the purposes of
legislation. In order, however, to pass the test of
permissible classification two conditions must be
fulfilled, namely, (i) that the classification must be
founded on an intelligible differentia which
distinguishes persons or things that are grouped
together from others left out of the group and (ii) that
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."
In the light of the aforesaid principles, in Express Newspapers (supra) the
Court considered whether the Act impugned therein violated the fundamental right
guaranteed under Article 14. It was observed that in framing the scheme, various
circumstances peculiar to the press had to be taken into consideration. These
considerations weighed with the Press Commission in recommending special
treatment for working journalists in the matter of amelioration of their conditions
of service. The position as prevailing in other countries was also noticed. In
nutshell, the working journalists were held as a group by themselves and could be
classified as such. 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 for preferential treatment. It was opined that
classification of this type could not come within the ban of Article 14.
Considering the position in regard to the alleged discrimination between press
industry employers on one hand and the other industrial employers on the other, it
was said that 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 achieved. Both he
conditions of permissible classification were fulfilled. The classification was held
to be based on an intelligible differentia which had a rational relation to the object
sought to be achieved, viz., the amelioration of the conditions of service of
working journalists. The attack on constitutionality of the Act based on Article 14
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was negatived.
Though challenge in the aforesaid case was to special treatment to working
journalists but what is to be seen is, that the press industry was held to be a class
by itself. The definition of ’newspaper employee’ takes into its fold all the
employees who are employed to do any work in, or relation to, any newspaper
establishment. The decision in Express Newspaper’s case amply answers the
main contention about the Press Industry having been singled out, against the
petitioners. This decision also holds that to provide social welfare legislation and
grant benefit, a beginning had to be made somewhere without embarking on
similar legislation in relation to other industries. The fact that even after about
half a century similar benefit has not been extended to the employees of any other
industry, will not result in invalidation of benefit given to employees of press
industry. It is not for us to decide when, if at all, to extend the benefit to others.
In view of aforesaid, we are unable to accept the contention that the impugned
provision is violative of Article 14 on the ground that it singles out newspaper
industry by excluding income test only in regard to the said industry.
Apart from the fact that it may not be always possible to grant to everyone
all benefits in one go at the same time, it seems that the impugned provision and
the enacting of the Working Journalists Act was part of a package deal and that
probably is the reason for other newspaper establishments not challenging it and
petitioners also challenging it only after lapse of so many years. Further Section
2(i), 4 and Schedule I of Provident Fund Act shows how gradually the scope of the
Act has been expanded by the Central Government and the Act and Scheme made
applicable to various branches of industries. From whatever angle we may
examine, the attack on the constitutional validity based on Article 14 cannot be
accepted.
In view of the aforesaid discussion, we find no merit in the contentions
urged on behalf of the petitioners. The petition is accordingly dismissed.