(SUPREME COURT OF INDIA)
Express Publications (Madurai) Limited
Vs
Union of India and Another
HON'BLE JUSTICE Y. K. SABHARWAL AND HON'BLE JUSTICE D. M. DHARMADHIKARI
11/03/2004
Writ Petition (C) No. 59 of 2001
JUDGMENT
: V. K.
SABHARWAL, J.
V.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.
2. 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').
3. 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 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(1). '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-1 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
Employee's 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.
4. 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-
(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 - 'Pay' includes basic wages with dearness allowance, retaining
allowance (if any) and cash value of food concessions admissible thereon;"
*
5. 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.
6. 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 newspapers 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. The Scheme shall, in its application to newspaper establishments and
newsnaner 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:
"(I) In Chapters I to IX, references to 'industry', 'factories' and
'employees' shall be construed as reference to 'newspaper industry', 'newspaper
establishments' and 'newspaper employees', respectively:
(2) excluded employee' means, -
(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 - '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." *
7. 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.
8. 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 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.
9. 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.
10. 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').
11. 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-
journalists 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 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.
12. 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. vs. The Union of India &
others 1959 SCR 12). and one of the questions was about violation of
equality clause. We will revert to the said decision a little later.
13. 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 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(l)(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 effect 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.
14. 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(l)(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.
15. 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 of 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.
16. 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.
17. 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
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 and 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." *
18. We will now examine other cases on which reliance has been placed by Mr.
Anil Dewan in support of challenge to the impugned provision.
19. Motor General Traders and Anr. vs. State of Andhra Pradesh & others
) 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 iafter 26th August 1957 from the operation of the Act. The
provision was enacted td 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 vs. P. Gopalakrishna Reddy
1966 AIR(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.
20. In view of Section 32(b) of the Andhra Pradesh Act, there were two sets of
buildings in every area in which the Act applied (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 26th 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- one class governed by the Act and the other
not. There were also two class of tenants as well-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 area 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.
21. 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 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.
22. Rattan Arya and others vs. State of Tamil and Nadu and Anr. ) 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).
23. In Maipe Vishwanath Acharya and others vs. State of Maharashtra and Anr.
0) 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
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." *
24. 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
newspapers 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.
25. 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.
26. 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 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 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 and others
vs. Union of India and others ), 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 and others vs. H.B. Munshi and Anr. 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." *
27. In Ramachandra Shankar Deodhar and others vs. The State of Maharashtra and
others ) 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 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."
28. 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.
29. 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. and others vs. Union of India and others
1963 Indlaw CA 39 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. and others vs. The Union of
India ) and Bennett Coleman & Co. & others vs. Union of India and
others ), 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 newspaper, 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 lax 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 questions 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.
30. In Express Newspapers (Private) Ltd. and Anr. vs. The Union of India and
others 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 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 deamess 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
31. 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 affected 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(l)(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(l)(a) in the present case
on account of additional burden as a result of impugned provision does not
arise.
32. 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." *
33. The aforesaid propositions were considered in the light of the principles
laid down in. various decisions on the aspect of Article 14. The
well-established principle to be always borne in mind is that while Article 14
forbids class legislation, it does not forbid reasonable classification. In
Budhan Chaudhry & Ors. vs. State of Bihar [ 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
Chowdhury vs. The Union of India [(1950) S.C.R. 869], The State of Bombay vs.
EN. Balsara [(1951) S.C.R. 682], The State of West Bengal vs. Anwar Ali Sarkar
[(1952) S.C.R. 284] Kami Raning Rawat vs. The State of Saurashtra [(1952)
S.C.R. 435], Lachmandas Kewalaram Ahuja vs. The State of Bombay [(1952) S.C.R.
710], Quasim Razvi vs. The State of Hyderabad [(1953) S.C.R. 581], and Habeeb
Mohamad vs. 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." *
34. 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 the 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 pf service of working
journalists. The attack on constitutionality of the Act based on Article 14 was
negatived.
35. 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.
36. 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 1 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.
37. In view of the aforesaid discussion, we find no merit in the contentions
urged on behalf of the petitioners. The petition is accordingly dismissed.