Full Judgment Text
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 9
PETITIONER:
INDIAN EXPRESS NEWSPAPERS (BOMBAY) (PVT.) LTD.& ANR.
Vs.
RESPONDENT:
INDIAN EXPRESS NEWSPAPERS (BOMBAY) EMPLOYEES UNION & ORS.
DATE OF JUDGMENT10/03/1978
BENCH:
KRISHNAIYER, V.R.
BENCH:
KRISHNAIYER, V.R.
SINGH, JASWANT
CITATION:
1978 AIR 1137 1978 SCR (3) 473
1978 SCC (3) 188
ACT:
Constitution of India, 1950, Art. 136-Interference by
Supreme Court on the merits in an appeal against an
industrial award-Construction of the language of a reference
Whether the reference in the instant case, included the pro-
nouncement upon gratuity" to non-journalists by the
Tribunal.
HEADNOTE:
The Central Government made a reference to the Industrial
Tribunal in the following terms :
"Whether, the recommendations of the Wage
Board for non-journalist employees as accepted
by Government by its Resolution No. WB-17(7)
67. dated the 18th November, 1967, are unfair
or unreasonable and if so, what modifications
are required therein to ensure a fair and just
wage structure for the non-journalists, having
due regard to the paying capacity of the
respective newspaper establishment, the
employer’s agreement and the emoluments of
employees engaged in comparable
establishments."
The National Tribunal gave an award covering many topics
including gratuity. All the newspaper establishments, but
one namely, the appellant, had fallen in line and left the
award unchallenged. The appellant, however, challenged the
very jurisdiction of the Tribunal to pronounce upon
"gratuity", on the ground ’that it falls outside the
reference itself.
Dismissing the appeal, the Court
HELD : 1. Industrial jurisprudence is not static, rigid or
textually cold, but dynamic, burgeoning and warm with life.
It answers in emphatic negative the biblical interrogation;
"what man is there of you, who if his son ask bread, will
give him a stone?" The Industrial Tribunal of India in areas
unoccupied by precise black letter law, go by the
Constitutional mandate of social justice in the claims of
the ’little people’. [475 D-F-]
2.It is not as if the Supreme Court of India shall not go
back upon what was throughout understood by all before the
Tribunal. The jurisdictional justification must be found in
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 9
the Reference itself, not in the brooding, perhaps
blundering, consciousness of litigants, liberality, not,
pendantry, guiding the construction of the language of the
references [476 B-C] .
Management of Express Newspapers Ltd. v. Workers and Staff
[1963] 3 SCR P. 540 @ 555 followed.
3. This Court lends no countenance to submission on the
merits in the absence o flagrant violation of principles
gross travesty of justice and like extreme grounds,
especially when the appeal is against an Award by an Indus-
trial Tribunal. [481 B-C]
4. ’Gratuity’ and its quantum, like other retirement
benefits, hasa bearing on the wage structure and vice
versa. It is true that the wage structure relates to the
emoluments during service, while gratuity is a terminal
benefit or, rather, a retirement benefit. Although these
two fall into different compartments they are inter-
connected. A heavy wage scale, may have same impact on the
gratuity rate and a large provision for gratuity nay have
its retroactive effect upon the wage structure. It is
composite equity writ on the economic life of the worker.
[477 G-H. 478 A]
474
in the instant case:-
5. (a) It is proved beyond reasonable doubt that the parties
can both sides at the level of pleadings, at the stage of
arguments and in the rival process of contest, desiderated a
decision on a gratuity scheme for non-journalists. Item 1
of the Schedule of the Reference, the proceedings before the
Tribunal and the reasoning in the Award converge to the only
conclusion reasonably available that the gratuity scheme for
non-journalist workmen was covered by the reference. [478 H,
480 E-F, 481 A]
(b) The Tribunal was well within its jurisdiction in
deciding on ’gratuity’. The Wage Board has made
recommendations on gratuity (paragraph 4.28). Indeed, item 2
of the reference to the Wage Board which covers non-
journalist employees involves gratuity. The management in
its written statement before the Tribunal has contended that
there was no justification for the Wage Board to apply the
gratuity scheme as applicable to working journalists, to all
the non-journalist employees. All these lead to the only
conclusion that the scheme of gratuity recommended by the
Wage Board was before the Tribunal for revision or
modification. [478 B-C-G]
(d) The Tribunal’s duty to decide a ’matte referred to it,
could not be repelled merely because there was no separate
plea by one of the many workmen’s groups about gratuity; and
[478 G]
(e) The recommendations made by the Wage Board and accepted
by the Government admittedly include gratuity. The Tribunal
has, ex-necessitate, to decide whether this recommendationon
gratuity is unjust and unreasonable. This is what it has
done. Secondly,it has to examine what modifications,if
any, are justly necessary therein,i.e., in the Wage Board
gratuity. This, again is what has been undertaken by
the Tribunal. [477 C-E]
JUDGMENT:
CIVIL APPELLATE JURISDICTION : Civil Appeals Nos. 530-32/71
(Appeals from the Award dt. the 15th of July, 1970 of the
National Tribunal Calcutta in References Nos. NIT-1 of
1968, NIT-2 of 1968 and NIT-1 of 1969 published in the
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 9
Gazette of India Extraordinary dt. the 3-8-70)
G. B. Pai, O. C. Mathur & D. N. Mishra
For the Appellant
M. K. Ramamurthi, J. Ramamurthi & R. Vaigai
For Respondent No. 1(a) in both the Appeals.
O. P. Rana : For Respondent No. 1, in CA No. 530/71.
The Judgment of the Court
KRISHNA IYER, J.-A free pass can summon by its flaming
vigor only if its journalistic and non-journalistic wings go
into full swing with courage and contentment to make printed
end product that issues daily from the machine, so that the
office of education and information the Fourth Estate must
perform does not suffer. The community itself has vital
concern in the working conditions of the dual human groups
whose invisible work is crystallised daily and moved into
mass circulation. In a democracy,news media and the men
behind have a special value. Therefore, a few legislative
and non-legislative measures have taken care of.the working
conditions of the
475
journalists and the non-journalists. We are concerned here
with non’journalists and that portion of an award which has
conferred standardised gratuity benefit on them.
The importance of the enthusiasm, integrity and thoroughness
of the silent army, which speaks daily in every issue of a
newspaper, once underscored, the necessity for a square
economic deal to these hands argues itself. A Free Press
serves the nation successfully when it serves its family
fairly. Even an army marches on its stomach. And
retirement benefits bear upon anxiety for the aging future
in this mortal world and impact upon contentment in the
working life. Such is the law of the tenses and the human
lot. Pressmen are no exception.
This national concern quickened the Government to make a
reference to the Industrial Tribunal of certain questions of
economic justice concerning non-journalist employees. The
issues between leading members of the Press Proprietariat
and the non-journalist Proletariat were spelt out for
adjudication in a Reference and lack of clarity in its
drafting has led to the bone of convention. in this appeal.
Perfunctory draftsmanship has a great potential for creating
disputes even where there are none. This is Government’s
unwitting contribution to the present litigation. The
National Tribunal. assisted by considerable submissions from
learned’ counsel, produced a massive award covering many
topics, including gratuity, and all but one establishment
viz., the appellant, have fallen in line and left the award
unchallenged. The broad approach of the Tribunal vis-a-vis
gratuity is colored by social justice and informed by
indicia gathered from this Court’s dicta. Industrial
jurisprudence is not static, rigid or textually cold but
dynamic, burgeoning- and warm with life. It answers in
emphatic negative the biblical interrogation : "What man is
there of you who if his son ask bread, will give him a stone
?" The Industrial Tribunals of India, in areas unoccupied by
precise black letter law, go by the constitutional mandate
of social justice in the claims of the ’little people’.
That touchstone led to the award which inter alia, granted
gratuity to non-journalists altho’ the positive evidence was
little and the guidelines faint. The compass of the acute
dispute in this appeal is the very jurisdiction of the
tribunal to pronoun upon ’gratuity’, the ground urged being
that it falls outside the reference itself.
We may now set out the relevant reference to the National
Tribunal
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 9
"Whether the recommendation s of the Wage
Board for non-journalist employees as accepted
by Government by its Resolution No. WB-
17(7)/67, dated the 18th November, 1967, are
unfair or unreasonable and if so, what
modifications are required therein to ensure a
fair and just wage structure for the non-
journalists, having due regard to the paying
capacity of the respective newspaper
establishments, the employer’s agreement and
the emoluments of employees engaged in
comparable establishments.’’
476
Mr. G. B. Pai in his very persuasive and pointed submission,
rightly ’stressed that the Tribunal had only a limited
jurisdiction, trammeled by the terms of reference-not
beyond, and in his view the question of gratuity was outside
the reference altogether. Were it- so that part of the
award was an exercise in gratuitous futility, being an
ultra-jurisdictional generosity. Notwithstanding Sri M. K.
Ramamurthy’s assertion that this Court shall not go back
upon whit was throughout understood by all before the
Tribunal., we have to find jurisdictional justification in
the Reference itself, not in the brooding, perhaps
blundering, consciousness of litigants. But we agree with
Sri Ramamurthy that liberality, not pedantry, must guide the
construction of the language of the reference, (vide
Management of Express News Papers v. Workers & Staff (1)
Once the real controversy is clear, the verbal walls cannot
narrow the natural ambit of the subject-matter; especially
in an equitable jurisdiction unbound by processual blinkers
and niceties of pleading.
Let us therefore face the only issue in the appeal-no, other
argument was urged-whether the reference embraces gratuity
If it does not, no, more arguments can salvage; If it does,
no more submission can scuttle. So the forensic focus must
turn on the first term of reference which, on a closer look,
calls into three parts. This trichotomy once grasped, the
riddle of the case stands resolved.
The pre-amble to the reference sets the tone and lends the
key and so a relevant excerpt may lead kindly light
"Whereas the Central Government is of the
opinion that an industrial dispute exist
between the employers and workmen in the
newspapers establishment mentioned in the
Anexure, in respect of the implementation of
the recommendations of the Wage Board for non-
journalist employees, as accepted by the
Central Government by the Resolution No. WR-
17(7)/67, dated the 18th November, 1967, in
regard to the matter mentioned in the
Schedule."
It is plain that the Central Government was anxious to have
the industrial dispute between the employers and non-
journalist employees settled. What the industrial dispute
that existed and needed solution was, could be dimly
gathered from the ’Whereas’ clause extracted above. The
dispute was ’in respect of the implementation of the
recommendations of the Wage Board for non-journalist
employees’ as accepted by the Central Government by its
resolution of November 18, 1967, in regard to matters
mentioned in the Schedule’. So, the area of the dispute is
prima facie, co-extensive with the recommendations of the
Wage Board for non-journalist employees and the topics
covered thereby, particularised in the Schedule to the
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 9
Reference. It is common ground that the recommendations of
the ’wage Board for non-journalist list employees did cover
gratuity. Of course, the ’Whereas clause is not conclusive
but suggestive. We have actually to go to the Schedule
which specificates the actual dispute referred for
adjudication. The
(1) [1963] 3 S.C.R. 540 555.
477
anatomy of item 1 of the Schedule has now to be X-rayed-.
We have earlier quoted it, and its triple components may
now be separated. The first and the second parts are
substantive and read thus :
(a) Whether the recommendations of the Wage Board for non-
journalist employees as accepted by Government by its
Resolution.......... are unfair or unreasonable; and
(b) If so, what modifications are required therein ?
The third part is not a point for adjudication but a goal-
setter, a delineation of the overall objective or rather the
parameter which must be kept in view. That is to say, the
Tribunal must first adjudicate on the unfairness or
unreasonableness of the recommendations of the Wage Board,
as accepted by the Government. It must further adjudicate
on what modifications are required in these recommendations,
if it holds them unfair or unreasonable. To sum up the
essentials of the first term of reference and its scope,’ we
think that the jurisdictional sweep of the Tribunal is
governed by the two parts we have set out. The
recommendations made by the, Wage Board and accepted by the
Government admittedly include gratuity. The Tribunal has,
ex necessitate, to decide whether this recommendation on
gratuity is unjust or unreasonable. This is what it has
done. Secondly, it has to examine what modifications, if
any, are justly necessary therein, i.e., in the Wage Board
gratuity. This, again, is what has been undertaken by the
Tribunal. In this view the next question is, what the pur-
pose of the third limb of the reference can be. This is the
bone of contention, in one sense, between the two advocates.
Certainly, it is not otiose and has a role. In our view, it
merely supplies the social objective of the adjudication on
parts 1 & 2. It surely obligates the Tribunal, while
deciding points 1 & 2, to have a specific perspective. That
perspective is that the non-journalist: employees must be
ensured a fair and just wage structure, having due regard to
the paying capacity of the establishment, the emoluments of
employees in comparable concerns etc. "A fair and just wage
structures is not what the Tribunal is asked to decide under
the first term of reference. Under this head it is called
upon to decide only two matters, namely, the
fairness/reasonableness or otherwise of the Wage Board’s
recommendations regarding gratuity and, in the event of
those recommendations being found to be unfair or
unreasonable, to decide what modifications are required
’therein’? These modifications are geared .to a certain
goal, are calculated to subserve certain purpose, are in-
tended to be oriented on a certain wet ire ground norm.
What is that goal, that objective, that perspective ? This
is ’supplied by the last part of reference No. 1. That is to
by, the Tribunal will adjudicate on the first two items,
remembering that the end is the securing of a fair and just
wage structure. Indeed, gratuity and its quantum, like
other retirement benefits. has a bearing on the wage
structure and vice versa. It is true that the wage
structure relates to the emoluments during service, while
gratuity is a terminal benefit or, rather, a retirement
benefit. Although these two fall into different
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 9
compartments,
478
they are inter-connected. A heavy wage scale may have some
impact on the gratuity rate and a large provision for
gratuity may have its retroactive effect upon the wage
structure. It is composite equity writ on the economic life
of the worker. We have said enough to indicate that the
Tribunal was well within its jurisdiction in deciding on
’gratuity’, the function of the last limb, fair and just
wage structure’, being to shape the size, of the gratuity,
not to exclude gratuity from adjudication, to tailor it,
not to throw it out.
This construction receives considerable confirmation from
certain other aspects of the case. For instance, the wage
Board has made recommendations on gratuity (paragraph 4.28).
Indeed, item 2 of the reference to the Wage Board which
covers non-journalist employees involves gratuity. The vital
documents which impregnate the reference with content and
meaning are the reference to the Wage Board and the
recommendations that followed, and both of them deal with
gratuity. We have more internal evidence to substantiate the
soundness of our conclusion. The management in its Written
Statement before the Tribunal, has contended that "there was
no justification for the Wage Board to apply the gratuity
scheme as applicable to working journalists, to all the *on-
journalist employees. The special benefits conferred upon
the Working Journalists under Act 45 of 1955 are highly
excessive and unreasonable and in fact, the Working
Journalists have been treated as a favored class. There is
no other class of employees in the country for whom such a
legislation has been enacted. It should have been left to
each newspaper establishment to evolve its own Scheme of
gratuity‘, if the circumstances so permit and in accordance
with its financial position and a scheme of gratuity
applicable to a particular highly paid class of employees
should not have been extended to all non-journalist
employees." Why did the management contend before the
Tribunal that the Wage Board recommendation of gratuity
scheme for non-journalist employees was unjustified ? Why
did they plead that those special benefits were excessive
and unreasonable ? Why should they have urged that it should
have been left to each newspaper establishment to evolve its
own scheme of gratuity and that such a scheme should not
have been extended to non-journalist employees since they
were highly paid ? There is no explanation for this stance
except that the management was trying to convince the
Tribunal that the Wage Board recommendation of gratuity was
’unjust’ and ’unreasonable, which means that they also
understood that the scheme of gratuity recommended by the
Wage Board was before the Tribunal for revision or
modification.
Shri G. B. Pai urged that the workmen’s statement contained
no reference to gratuity. Maybe, they did not separately
set up such a plea because others of their ilk in other
newspaper establishment had pleaded it. The Triunars duty
to decide a matter referred to it could not be repelled
merely because here was no separate plea by one of the many
workmen"s groups about gratuity.
There is other telling testimony that all the parties had
proceeded on the clear footing that gratuity was covered by
the terms of reference. Shri M. K. Ramamurthy took us
meticulously through the
479
bulky award which covered six leading Newspaper
establishments of India and the workmen under them.
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 9
Paragraph 16, for example, while quoting the Wage Board
recommendations, refers to gratuity to non-journalist
employees. Similarly we find in paragraph 95, a :specific
plea by the workmen, represented by The Hindustan Times
Employees Union, having a bearing on the gratuity scheme.
Again in paragraph 114 the Tribunal refers to the contention
of Mr. Sen, representing one of the newspaper establishment,
criticising the gratuity recommendation of the Wage Board as
unfair and Mr. Ramamurthy’s contrary stand that the gratuity
scheme should apply to journalists and non-journalists
alike. Many other such references to arguments by counsel
before the Tribunal, with pointed reference to the
application of gratuity scheme to non-journalist employees
were spotlighted. We may mention a few illustratively.
Paragraph 121 refers to the Written Statement of certain
newspaper establishment giving reasons why payment of
gratuity should not be made applicable to non-journalist
employees. Kindly look likewise at paragraph 140. It is
interesting that on behalf of the workmen i.e., (Indian Ex-
press Employees Union) : it is stated : "Moreover, no fringe
benefits are also available to the workmen of the Indian
Express in Delhi. Even gratuity which has been unanimously
recommendable by the Wage Board and was never a point of
dispute, is being denied to the workmen." The award in
paragraph 163 and in paragraph 170, proceeds on the footing
that the management also made common cause against the
gratuity scheme for non-journalist employees.
Such doubts as may exist on this question are cleared by the
Tribunal in paragraph 186, which reads, thus
"Having thus cleared the grounds of the
preliminary ,objections, I now proceed to
deliver my award on merits. I first take up
for consideration the first item of dispute in
the reference, dated September 17, 1968, which
again is the first item of dispute in the
schedule of the Reference, dated October 7,
1968, and also the first item of dispute in
the schedule to the order of reference dated
March 7, 1969. The following may be taken to
be the broad lines of criticism by the
management against the recommendations of
’Wage Board:
(i)....................
(ii)...................
(iii)..................
(iV)....................
(v).....................
(Vi)....................
(vii) Gratuity should not have been left to
the decision of the Supreme Court in the
pending appeal regarding gratuity scheme
applicable to Working Journalists
480
as per the provisions contained in
the Working Journalists (Condition of Service)
and Miscellaneous Provisions Act,1955, because
in that appeal the present disputants are not
parties.
(Viii)........
(ix)..........
So no remonstrance against consideration of the issue of
gratuity as a jurisdictional issue is raised there.
Having discussed the arguments of counsel on both sides and
having dealt with various points of reference, the learned
Presiding, Officer went on to consider the scheme of
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 9
gratuity. Of course, he mentioned the lack of evidence, for
a precise judgment and the absence of help from either side
to reach a reasoned conclusion
"My task is made more difficult because little
evidence was led as to what should be the
gratuity scheme for non-journalist workmen.
It was not to the interest of the management
to lead evidence because they would like very
much to await the final decision of the
Supreme Court on the point. The workmen had
no concrete suggestion to offer.- I have,
therefore, to essay into unsurveyed expanse
with neither a compass nor a guide All that I
can do is to bear in mind the observations by
the Supreme Court, on this topic. from time to
time made and to attempt a gratuity scheme
within the framework of those observations."
Naturally, and, if we may say so rightly, the Tribunal
sought guidance from the principles laid down by this Court
on a blue-print for gratuity.
This longish discussion on gratuity *Ad, not have been a
fruitless excursion and proves beyond reasonable doubt that
the parties on both sides, at the level of pleadings, at the
stage of argument and in the rival processes of contest,
desiderated a decision on a gratuity scheme for non-
journalists. This bone of contention was included’ in the
terms of reference (item 1). The long submissions by many
counsel on behalf of the employers an(. employees were not
idle debate. The plea for a full scheme of gratuity by the
advocate for the workmen under the various other newspaper
establishments was not submissions in supererogation. There
is no hint in the Tribunal proceedings that a scheme of
gratuity was outside the pale of the Tribunal. No such
objection was ever raised. Indeed, a tired Tribunal,
confronted by enormous evidence and marathon arguments,
would not have painstakingly sifted the grounds, sorted the
evidence, cited the rulings and recorded the verdict s
without being sure that all parties concerned and he himself
understood the reference to include the matters contested
before him, discussed by him and decided in his award. The
gratuity scheme for non-journalist workmen was one such and
it is bafflement to accept the submission that the learned
Tribunal, a retired judge of the High Court had ventured
into an irrelevant terrain.
481
Thus, our understanding of item in the Schedule of
Reference, ,Our study of the proceedings before the Tribunal
and the reasoning in the Award converge to the only
conclusion reasonably available that the gratuity scheme for
non-journalist workmen was covered by the reference. No
other point on the merits was argued although there was a
feeble suggestion that the Award was more liberal than
should reasonably have been. In fairness, we must state
that barring a passing reference to this aspect, no serious
contention was raised or, indeed, could be raised on the
merits of the matter. This court lends no countenance to
submissions on the merits in the absence of flagrant
violation of principles, gross travesty of justice and like
extreme grounds, especially when the appeal is against an
Award by an Industrial Tribunal. In short, Sri. G.B. Pai
would not and could not canvass the finding. The appeals
are dismissed with costs of Respondent 1A.- The order dated
30-3-1971 regarding payment of interest will be made part of
this judgment.
S.R. Appeals dismissed.
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 9
482