ABP PVT. LTD. & ANR. v. UNION OF INDIA & ORS.

[P. SATHASIVAM, CJI.]

24. For the ensuing two reasons, this Coult is opting for not to interfere on this alleged ground of challenge. Firstly, the petitioners cannot espouse the grievance of those employees working in the electronic media for non-inclusion and, more particularly, when those employees are not before this Court. Secondly, the fact that similar benefits are not extended to the employees of other similar industry will not result in invalidation of benefit given to the employees of press industry. Recalling that media industry is still an upcoming sector unlike the press industry, which is as ancient as our independence itself, the scope for potential policies in future cannot be overruled. In view c of the same, this ground of challenge is rejected.

25. As regards the second ground of challenge, i.e., the Act over the passage of time has outlived its utility and the object that was sought to be achieved originally has become obsolete especially in view of the fact that Wage Boards for 0 other industries have been abolished, it is our cogent opinion that mere passage of time by itself would not result in the invalidation of the Act and its object. The validity once having been upheld by a Constitution Bench of this Court in Express Newspapers (P) Ltd. (supra), the same cannot be now challenged saying that it has outlived its object and purpose and ·has been worn out by the passage of time. The principles laid down in Motor General Traders vs. State of Andhra Pradesh (1984) 1 SCC 222 and Ratan Arya vs. State of Tamil Nadu (1986) 3 SCC 385 are squarely inapplicable as has been held in the context of identical factual scenario.

26. When this Court was considering the case of a newspaper establishment qua para 82 of the Employees' Provident Funds Scheme in Express Publications (Madurai) G Ltd. (supra), the said judgment also puts the challenge as to the vires of the Act like the one made by the petitioners in the present case, but beyond pale of any doubt, it consciously reiterates the spirit of law laid down in Express Newspaper (P) Ltd. (supra). H

434 SUPREME C-OURT REPORTS [2014] 2 S.C.R.

27. The petitioners relied on the Report of the Second National Commission of Labour to contend that the Act has become archaic. In this regard, it is relevant to note that the aforementioned Report is not relevant, as the Government has not accepted the said Report insofar as the Statutory Wage B Boards are concerned. Thus, any observation in the said Report as to the non-requirement of Wage Boards generally, cannot be the basis for not complying with the statutory obligations under the Act. Insofar as the 2002 National Commission of Labour Report is concerned, as stated above, c the same has not been accepted by the Government of India, in respect of the functioning of the Act.

28. In the light of the aforesaid discussion, we are of the opinion that the challenge as to the vires of the Act on the premise of it being ultra vires the Constitution and violative of D fundamental rights is wholly unfounded, baseless and completely untenable.

29. It is true that newspaper industry, with the advent of electronic media, continues to face greater challenges similar E 'fo the ones as observed by the Press Commission as noted in the Express Newspaper (P) Ltd. (supra) enumerated hereinabove. Thus, the contention of the petitioners that though the newspaper industry may be growing, the growth of the electronic media is relatively exponential, in fact, substantiates - F the very necessity of why a wage board for working journalists and other newspaper employees of the newspaper industry should exist.

Improper Constitution of the Wage Boards

30. As reiterated hitherto, the Wage Boards constituted under Sections 9 and 13C of the Act are required to be comprised of 10 members i.e. one Chairman, three independent members, three representatives for employers and three representatives for employees. On behalf of the H petitioners herein (newspaper management), it was contended

ABP PVT. LTD. & ANR. v. UNION OF INDIA & ORS. 435

[P. SATHASIVAM, CJI.] that there was a defect in the constitution of the Wage Boards A as Mr. K.M. Sahani and Mr. Prasanna Kumar were not independent members thus, it fatally vitiates the constitution and proceedings of the Majithia Wage Boards. On the other hand, it was pointed out by learned Solicitor General for the Union of India and the employees that the constitution of the Wage B Boards have been undertaken strictly in accordance with the Act and the "Independent Members", so required, under Sections 9(c) and 13C(c) of the Act have been appointed in accordance with the law. Let us examine this point of strife based on the factual matrix. c

31. The petitioners' main ground of challenge to ML K.M . . Sahni's independence is that since at the relevant time he was a former Secretary of Ministry of Labour and Employment, Government of India and during his tenure the decision to constitute the Wage Board was taken and, thus, he cannot be D expected to be an independent and free from bias. It is seen from the materials placed on record by the Union of India that in order to operationalize the Boards, Shri K.M. Sahni, who had superannuated as Secretary to Government of India on 31.12.2006 was appointed as Member-Secretary on E 24.01.2007 for a period of three years or till the duration of the .Wage Board, whichever is earlier. Merely because a person ,was in the employmentofthe Government, he does not cease ; to become "independent" for the purposes of being an ' independent member of the Committee to recommend the fixing of wages.

32. Similar fact underlying this issue has been the subject- matter of this Court in State of Andhra Pradesh vs. Narayana Velur Beedi Manufacturing Factory (1973) 4 SCC 178, and it is only necessary to set out the summary thereof given by A.N. Grover, J.:

"9. In our judgment the view which has prevailed with the majority of the High Courts must be sustained. The committee or the advisory board can only tender advice H

436 SUPREME COURT REPORJS [2014] 2 S.C.R.

A which is not binding on the Government while fixing the minimum wages or revising the same as the case may be. Of course, the Government is expected, partic~larly in the present democratic set-up, to take that advic~ seriously into consideration and act on it but it is not bound to do B so. The language of Section 9 does not contain any indication whatsoever that persons in the employment of the Government would be excluded from the category of independent persons. Those words have essentially been employed in contradistinction to representatives of c employer and employees. In other words, apart from the representatives of employers and employees there should be persons who should be independent of them. It does not follow that persons in the service or employ of the Government were meant to be excluded and they cannot be regarded as independent persons vis-a-vis the representatives of the employers and employees. Apart from this the presence of high government officials who may have actual working knowledge about the problems of employers and employees can afford a good deal of guidance and assistance in formulating the advice which is to be tendered under Section 9 to the appropriate Government. It may be that in certain circumstances such persons who are in the service of the Government may cease to have an independent character if the question ,, arises of fixation of minimum wages in a scheduled employment in which the appropriate Government is directly interested. It would, therefore, depend upon the facts of each particular case whether the persons who have been appointed from out of the class of independent persons can be regarded as independent or not. But the mere fact that they happen to be government officials or government servants will not divest them of the character of independent persons. We are not impressed with the reasoning adopted that a government official will have a bias, or that he may favour the pol;cy which the appropriate H Government may be inclined to adopt because when he

ABP PVT. LTD. & ANR. v. UNION OF INDIA.& ORS. 437 [P. SATHASIVAM, CJI.] is a member of an advisory committee or board he is A expected to give an impartial and independent advice and not merely carry out what the Government may be inclined to do. Government officials are responsible persons and it cannot be said that they are not capable of taking a detached and impartial view." B

33. Consequently, merely because Shri K.M. Sahni was a part of the Government that took the decision to set up the Wage Boards, does not automatically follow that he ceased to be an "independent" member of the Wage Boards. We are i satisfied that Shri K.M. Sahni is an independent member of the C · Board and cannot be considered to be "biased" in any manner.

34. The petitioners also allege that Mr. P.N. Prasanna Kumar, as an experienced journalist and having been associated with various journalistic institutions in his long D journalistic career, cannot be considered to be an "independent" member and, therefore, was biased in favour of the employees. Learned Solicitor General has rightly pointed out that only vague and general allegations have been alleged i against him and no specific allegations that he acted in a E · manner that was biased against the employers has been levied by the petitioners.

35. It is well-settled that mere apprehension of bias is not enough and there must be cogent evidence available on record to come to the conclusion. Reference may be made to Kumaon Manda/ Vikas Nigam Ltd. vs. Girja Shankar Pant (2001) 1 sec 182 in the following words: "10. The word "bias" in popular English parlance stands included within the attributes and broader purview of the word "malice", which in common acceptation means and implies "spite" or "ill-will" (Stroud's Judicial Dictionary, 5th Edn., Vol. 3) and it is now well settled that mere general statements will not be sufficient for the purposes of indication of ill-will. There must be cogent evidence H

438 SUPREME COURT REPORTS [2014] 2 S.C.R.

A available on record to come to the conclusion as to whether in fact there was existing a bias which resulted in the miscarriage of justice."

36. This Court, in State of Punjab vs. V.K. Khanna (2001) B 2 SCC 330, has held as follows:

"8. The test, therefore, is as to whether there is a mere apprehension of bias or there is a real danger of bias and it is on this score that the surrounding circumstances must and ought to be collated and necessary conclusion drawn therefrom. In the event,· however, the conclusion is otherwise that there is existing _ a real danger of bias administrative action cannot be sustained. If on the other hand allegations pertain to rather fanciful apprehension in administrative action, question of declaring them to be unsustainable on the basis therefor, would not arise."

37. The contention of the petitioners alleging bias against independent members of the Wage Boards, being based merely on their past status, is entirely baseless in law and amounts to imputing motives. Further, the petitioners have · nowhere. established or even averred that the independent members are guilty of legal bias as expressed in Perspective Publications vs. State of Maharashtra (1969) 2 SCR 779, !hat is, making their recommendations on the basis of wholly extraneous considerations or personal or pecuniary benefit.

38. On perusal of the materials available, we are satisfied that the Wage Boards have functioned in a fully balanced manner. Besides, it is a fact that the petitioners had challenged the constitution of the Wage Board before the High Court of Delhi, admittedly, the High Court had declined to grant interim relief. The said order declining/refusing to grant interim relief attained finality as the petitioners did not choose to challenge it before this Court. Thereafter, the petitioners have participated in the proceedings and acquiesced themselves with the

ABP PVT. LTD. & ANR. v. UNION OF INDIA & ORS. 439

[P. SATHASIVAM, CJI.] proceedings of the Board. In view of the fact that they have . A participated in the proceedings without seriously having challenged the constitution as well as the composition, the petitioners cannot now be allowed to challenge the same at this stage. More so, it is also pertinent to take note of the fact that the petitioners herein opted for challenging the independence of the nominated independent members only after the recommendations by the Wage Boards were notified by the Central Government.

39. Hence, the attack of the petitioners on the independence of the appointed independent members by saying that they were not sufficiently neutral, impartial or unbiased towards the petitioners herein, is incorrect in the light of factual matrix and cannot be raised at this point of time when they willfully conceded to the proceedings. Consequently, we are not inclined to accept this ground of challenge. D

40. Apart from the challenge to the independence of the members, the petitioners also contended that two separate Wage Boards ought to have been constituted instead of a common wage board. It is relevant to point out that ever since the 1974 amendment only a common wage board was being constituted. The Financial Memorandum accompanying the Working Journalists (Conditions of Service) and Miscellaneous Provisions (Amendment) Bill, 1974 specifically states that "the intention is to constitute Wage Boards under the said Section 9 and proposed Section 13C as far as possible at the same time and to have a common Chairman and a common Secretariat for both the Boards". Further, it is brought to our notice that the Palekar Tribunal (1980), Bachawat Wage Board (1989) and Manisana Wage Board (2000) constituted after 1974 amendment were all common Boards/Tribunal for both working journalists and non-journalists. Though the members representing employers were common, they were not incapacitated in any manner as is being contended by the petitioners. They were having two votes as they were · representing the employers in both the Boards. H

440 SUPREME COURT REPORTS [2014] 2 S.C.R.

41. In addition, the representatives from the employers' side are common in both the Wage Boards as all types of newspaper employees, either working journalists or non- journalists found to be working under common employers. Having common representatives of the employers on the two B Wage Boards are expected to be favorable to the employers as they can make a fair assessment of the requirements of the working journalists and non-journalist newspaper employees of the newspaper industry as a whole. However, as the two Wage Boards have separate entities meant for working journalists and C non-journalist newspaper employees, there cannot be common representatives who can protect the interest and represent working journalists as well as non-journalist newspaper employees. Therefore, members representing working journalists were nominated to the Wage Board for the working journalists. Similarly, members representing non-journalist .D newspaper employees were nominated to the Wage Boards for non-journalist newspaper employees. As aforesaid, for administrative convenience, four independent members, including the Chairman were common for both the Wage Boards. In our cogent view, this arrangement in no way affects E the interest of the employers and the challenge of the petitioners in this regard is unfounded. Irregularity in the procedure followed by Majithia Wage Boards

42. Learned counsel for the petitioners pointed out to a series of factual aspects to demonstrate that there existed irregularity in the decision making process by the Majithia Wage Board which was attacked as ultra vires the Act and contrary to procedure adopted by the predecessor Wage Boards. In G succinct, the stand of the petitioners is that Majithia Wage Board Report was prepared in a hasty manner and subsequently, the recommendations have been accepted by the Central Government without proper hearing or affording opportunity to all the stakeholders. Whereas the respondent - H Union of India clearly contended otherwise and submitted that

ABP PVT. LTD. & ANR. v. UNION OF INDIA & ORS. 441

[P. SATHASIVAM, CJI.] the impugned Wage Boards throughout adopted a fair procedure, which stands the test of natural justice. Besides, it is the stand of the respondents that the representatives of the manag~ment were not cooperating but were merely attending the Wage Board proceedings, therefore, the Chairman was not getting adequate aid and help from the representatives of the newspaper owners.

43. Broadly, the petitioners' foremost contention is th~t the Wage Boards have not functioned in accordance with the law inasmuch qS no questionnaire was issued to elicit information to determin~ the capacity to pay and that principles of natural justice were not followed in conducting the proceedings and for arriving at th~ recommendations, which was the accustomed procedure of previous Wage Boards. At the outset, it is relevant to point out that under Section 11 (1) of the Act, Wage Board has special powers to regulate its own procedure. It is not obligatory for the Wage Boards to follow the exact procedure of the earlier Wage Boards and as such there is no requirement in law to follow a strictly laid down procedure in its functioning. Besides, as long as it follows the principles of natural justice and fairness, its functioning cannot be called into question on the ground of irregularity in the procedure. Now, let us examine the submissions of the petitioners in this light.

44. It is brought to our notice that detailed questionnaire was issued on 24.07.2007. The petitioners in their opening arguments contended that no questionnaire was issued. However, the Union of India placed voluminous documents to demonstrate that a detailed questionnaire was in fact issued on 24.07.2007 and that this questionnaire was commented upon and it was .corrected also and further respondents also received replies pursuant to the same. The petitioners in their rejoinder have attempted to make a feeble argument that the said questionnaire was issued by the secretariat and not by the Wage Boards, which is fit to be rejected. ·

45. It is also brought to our notice that several attempts H

442 SUPREME COURT REPORTS [2014] 2 S.C.R.

A were made by the Wage Boards to get the relevant information fro111 the employers but many of the petitioners had not given financial data and abstained from attending the Board's proceedings. Records produced show that the questionnaire was sent to all the subscribers listed in the directory of B newspaper establishments published by INS for the year 2008- 09 and the list supplied by the PTI for sending financial information from 2000-01 to 2009-10. Regular follow up with the employers was made and series of letters were issued to collect financial information. Apart from the questionnaire, c notices inviting representation as per Section 10(1) of the Act were published in 125 newspapers. Further, on 05.07.2010, summons were issued to around one hundred and forty stake . holders and they were given final chance to submit the information within fifteen days of the summons. In addition to this, a two page simplified questionnaire was also issued on 0 02.03.2010.

46. Consequently, the allegation that only 40 establishments have been used as parameters which is under- representative of the industry is incorrect. In fact, as has been detailed in the Report, the data from newspaper establishments was not forthcoming (vide pages 100-101 of Majithia Wage Board Report). With all these efforts, financial information could be collected from only sixty-six establishments and after scrutiny, it was found that financial information received from only forty establishments was useful in developing an overall view of the financial status of the newspaper industry. Therefore, it was only upon much effort and repeated requests that the data in respect of 40 establishments could be collected by the Wage Board. Besides, these 40 establishments are representatives of the different class of newspaper establishments that are carrying on business in the country and in addition detailed submissions by representative groups such a.s the Indian Newspaper Society (INS) were also considered. Thus, it can certainly be construed that these representative bodies presented an overview of the whole newspaper industry,

ABP PVT. LTD. & ANR. v. UNION OF !NOIA & ORS. 443 [P. SATHASIVAM, CJI.] apart from the information being collected from the individual establishments.

47. From the records, we furnish the following chronology of events: "Letter dated 28.12.2007 by Mr. Naresh Mohan containing B "Comments on Draft Questionnaire" Letters dated 14.01.2008 and 18.01.2008 requesting for extension of time for submission of response to questionnaire c Letter dated 14.02.2008 extending time limit for submission of response to questionnaire till 30.06.2008 Response of Hitavada Shramik Sangh, Nagpur dated 23.06.2008 to the questionnaire D Response of the Times of India and Allied Publications' Employees' Union to the questionnaire Letters by various Employees' Union requ~sti_!lg fQr exten_slon of.time- fof-stibmission of response to questionnaire E

Letter dated 14.11.2008 addressed to all the members of the Wage Boards seeking their views on extending the last date for submission of completed questionnaire up to 28.02.2009 F Letter dated 04.12.2008 by Mr. Naresh Mohan expressing no objection for extending the last date for submission of completed questionnaire up to 28.02.2009 Letters dated 17.12.2008, 18.12.2008, 19.12.2008 G addressed to the members of the Wage Board, stakeholders informing extension of last date for submission of completed questionnaire up to 28.02.2009

Letters dated 19.03.2009, 08.06.2009, 09.06.2009 H

444 SUPREME COURT REPORTS [2014] 2 S.C.R.

A addressed to the members of the Wage Board, stakeholders informing extension of last date for submission of completed questionnaire up to 30.06.2009

Letter dated 03.07.2009 addressed to the Wage Board members to prevail upon their constituents to submit their response to the questionnaire Response of Lokmat Shramik Sanghatana, Nagpur dated 04.02.2009 to the questionnaire Response of the Tribune Employees Union, Chandigarh c dated 25.07.2009 to the questionnaire Response of National Union of Journalists (India) dated 31.08.2009 to the questionnaire Letter dated 01.09.2009 by Chairman, Wage Boards 0 requesting the members of the Wage Boards to prevail upon their constituents to submit their response to the questionnaire Response of the Press Trust of India Ltd. dated E 29.09.2009 to the submissions dated 30.06.2009 made by Federation of PTI Employees' Union and to the questionnaire

Letter dated 12.05.2010 forwarding copies of responses to the questionnaire received by the Wage Boards to all the members. The notice dated 16.11.2007 issued under Sections 10(1) and 130 of the Act was published in 125 newspapers Considering the requests and representations received from various stakeholders, the time period for making representation in terms of Sections 10(1) and 130 of the Act was extended till 30.06.2008 The time period for making representation in terms of H Sections 10(1) and 130 of the Act was further extended

ABP PVT. LTD. & ANR. v. UNION OF INDIA & ORS. 445

[P. SATHASIVAM, CJI.] till 31.10.2008 A

The time period for making representation in terms of Sections 10(1) and 130 of the Act extended till 28.02.2009

The time period for making representation in terms of Sections 10(1) and 130 of the Act was extended till B 30.06.2009

The time period for making representation in terms of Sections 10(1) and 130 of the Act was extended till 06.08.2009 c Notice dated 09.07.2010 was given to all the stakeholders for final hearing before the Wage Boards on 26.07.2010 to 01.08.201 O"

48. In addition to the aforesaid chronology of events, a D perusal of Chapter 3 of the Majithia Wage Board recommendations will clearly indicate that the procedure adopted by the Wage Boards did, in fact, give ample opportunities to the stakeholders to give representations and financial data, etc. so that the same may be considered by the E Wage Boards for making their recommendations. However, many of the petitioners have never bothered to attend the proceedings of the Wage Board and submitted financial data.

49. The details of the meetings and oral hearings conducted by the Wage Boards (culled out from the Wage Board proceedings) are as follows:

"30.06.2007 First meeting of the wage boards was held. 02-04.08.2007 Second meeting of the wage boards was held. 16.11.2007 Notice under Sections 10(1) and 130 of the Act was issued to all newspaper establishments, working journalists, non- journalists newspaper and news agency H

446 SUPREME COURT REPORTS [2014] 2 S.C.R.

A employees to make representation in writing within eight weeks from the date of notice stating the rates of wages which, in the opinion of the capacity of the employer to pay the same or to any other circumstance, B whichever may seem relevant to them.

08.01.2008 Government made a reference to Wage Board for fixing interim rate of wages in terms of Section 13A of the 1955 Act.

c 12 & Third meeting of the Wage Boards held to 13.06.2008 discuss interim rates of wages 28.06.2008 Fourth meeting of the Wage Boards was held to consider the issue of interim rates of wages to the employees of the newspaper industry and gave its recommendation fixing the interim rate of wages @30% of the basic pay w.e.f. 08.01.2008 03.10.2008 Cabinet approved the proposal to grant interim rates of wages at the rate of 30% of the basic wage to newspaper employees w.e.f. 8th January, 2008. 24.10.2008 S.O. 2524(E) and S.O. 2525(E) notification on interim rates of wages published in the F Gazette of India extraordinary. 5-6.05.2009 Fifth meeting of Wage Boards 31.07.2009 Sixth meeting of Wage Boards

G 07.09.2009 Seventh meeting of Wage Boards Oral hearings 6-10.10.2009 - Oral hearing in Jammu & Kashmir

H 26-27 .10.2009 - Oral hearing at Chandigarh

ABP PVT. LTD. & ANR. v. UNION OF INDIA & ORS. 447

[P. SATHASIVAM, CJI.] 8-9.11.2009 - Oral hearing at Patna A 14.11.2009 Eighth meeting of Wage Boards Oral hearings 11-12.11.2009 - Oral hearing at Lucknow 23-24.11.2009 - Oral hearing at Ahmedabad B

8-9.12.2009 - Oral hearing at Hyderabad 11-13.12.2009 - Oral hearing at Chennai

18.12:2009 Ninth meeting of Wage Boards c Oral hearings

29-30.12.2009 - Oral hearing at Bangalore 23.02.2010 Tenth meeting of Wage Boards D 02.03.2010 In view of the fact that very few responses were received to the detailed questionnaire circulated by the Wage Board, it was decided that a simplified questionnaire requiring information about annual turnover, E cost, etc. will be circulated to various newspaper establishments registered with PTI and INS. Accordingly, the simplified questionnaire was sent to various news establishments. F Oral hearings 13-14.03.2010 - Oral hearing at Jaipur 27-28.03.2010 - Oral hearing at Bhopal 8-10.04.2010 - Oral hearing at Mumbai and G Pune 27-28.04.2010 Oral hearing at Bhubaneshwar 07.05.2010 Eleventh meeting of Wage Boards H

448 SUPREME COURT REPORTS [2014] 2 S.C.R.

A 30.06.2010 Twelfth meeting of Wage Boards Oral hearings 12-13.07.2010 - Oral hearing at Kolkata 20-21.07.2010 - Oral hearing at Guwahati B 26.07.2010 to 01.08.2010 - Oral hearing at Delhi 17-19.08.2010 - Oral hearing at Delhi 06.09.2010 - Oral hearing at Delhi c 05.07.2010 Summons dated 05.07.2010 issued under Section 11 (3)(b) and Section 11 (8) of the Industrial Disputes Act, 1947 read with Section 3 of the 1955 Act. D 21.09.2010 Thirteenth meeting of Wage Boards 22.09.2010 Fourteenth meeting of Wage Boards 07.12.2010 Draft report was circulated to all the members of the Wage Board for their comments and E views 20-24.12.2010 Meeting of the Wage Board to discuss the draft report 30.12.2010 Notes of dissent were submitted by

F 1. Shri K.M. Sahni

2. Shri N.K. Trikha, Shri Vikram Rao, Shri Suresh Akhouri (Representatives of working journalists)

G 3. Shri Uma Shankar Mishra, Shri M.S. Yadav, Shri M.C. Narasimhan (Representatives of non-journalists)

4. Shri Prasanna Kumar H 31.12.2010 Final Report submitted to Government."

ABP PVT. LTD. & ANR. v. UNION OF INDIA & ORS. 449

[P. SATHASIVAM, CJI.]

50. The petitioners' main ground of challenge vis-a-vis the procedure adopted by the impugned Wage Boards is that they were not given reasonable time to reflect on the issues. However, we have carefully examined all the proceedings of the Wage Boards and we are satisfied that the Wage Boards conducted a series of meetings and gave ample opportunities to the employers. The employers were given opportunity of both written and oral representations to make their point of view known to the Board and consequently the decision making process stands valid. In this respect, we are of the view that the petitioners cannot be allowed to take advantage of their own wrong and impugn the recommendations of the Wage Boards as not being based on their data when they eluded to submit the said data in the first place.

51. In respect of the petitioners' argument that the 'Classification' of newspaper establishments and newspaper o agencies adopted by the Wage Boards is arbitrary and not supported by the majority, it is brought to our notice that a perusal of the resolution adopted on 21.12.2010 shows that representatives of employees agreed for 11 classifications and representatives of employers opposed the said pattern of classification. Later, the classification of the newspaper E establishments was made into eight classes on the basis of Gross Turnover:

Class Gross Revenue F I Rs. 1000 crore and above I Rs. 500 crore and above but less thar Rs. 1000 crore Ill Rs. 100 crore and above but less than Rs 500 crore G

IV Rs. 50 crore and above but less than Rs. 100 , crore v Rs. 10 crore and above but less than Rs. 50 crore H

450 SUPREME COURT REPORTS [2014] 2 S.C.R.

A VI Rs. 5 crore and above but less than Rs. 10 crore VII Rs. 1 crore and above but less than Rs. 5 crore VIII Less than Rs. 1 crore B Therefore, if at all anybody is aggrieved by the recommendation of the Wage Board to adopt eight classifications, it is' the employees and not the employers. Further, no prejudice is caused to the employers and they cannot make this as a ground to challenge the report. c

52. The petitioners also contended by relying upon two resolutions passed by the Wage Board that the Wage Board was not allowed to function independently and was treated with contempt by the Secretariat of the Wage Board and the officials of the Wage Board. One of the resolutions relied upon by the petitioners dealt with an issue pertaining to raising of exorbitant travel bill. It is brought to our notice that it was in this context that the Chairman and Members of the Wage Board expressed their concern that issues pertaining to the Wage Board should not be directly dealt with by the Ministry and it has to be referred to the Ministry by the Secretariat after obtaining the permission of the Chairman. The other resolution/minutes record the proceedings of the meeting with the Minister for Labour and Employment. These two resolutions cannot be relied upon to . contend that the Board was not allowed to function independently and was treated with contempt: These two resolutions have no bearing on the ultimate recommendations made by the Board and, thus, cannot be relied upon by the petitioners to impugn the recommendations themselves.

53. Numerous such incidental contentions vis-a-vis procedure adopted by the Wage Boards were alleged which, in our considered view, is not of such grave nature that it calls for withdrawing the recommendations of Wage Boards. In this light, after having exhaustively gone through the record of proceedings and various written communications, we are fully satisfied that the Wage Boards proceedings had been

ABP PVT. LTD. & ANR. v. UNION OF INDIA & ORS. 451

[P. SATHASIVAM, CJI.] conducted and carried out in a legitimate approach and no decision of the Wage Board is perceived to having been taken unilaterally or arbitrarily. Rather all decisions were reached in a coherent manner in the presence of all the Wage Board members after having processed various statistics and we find no irregularity in the procedure adopted by the impugned Wage B Boards.

Majithia Wage Boards overlooked the relevant aspects and considered extraneous factors while drafting the recommendations c

54. It is the view of the petitioners that the recommendation of Justice Majithia Wage Boards is defective and faulty and deserves to be rejected at the outset as it overlooked the relevant aspects and considered extraneous factors while drafting the impugned report. The first ground on which the o report is alleged to be defective is that the members of the Wage Board failed to consider the crucial element of capacity to pay of the indiv,idual newspaper establishments as it wrongly premised its analysis of the capacity to pay of 'gross revenue' while approving the impugned report. E

55. In Express Newspaper (P) Ltd case (Supra), this Court held that the capacity of the newspaper industry to pay is one of the essential circumstances to be taken into consideration while fixing rates of wages under the Act. In that case, the decision of the Wage Board was set aside on the ground that F it failed to consider the capacity of the industry to pay the revised rates of wages. Consequently, Section 10(2) of the Act was inserted which gives the statutory recognition to the requirement of taking into consideration the capacity of the employer to pay. G

56. Chapter XIV, titled Capacity to pay of the Newspaper industry (A Financial Assessment) of the Justice Majithia Report, elaborately discusses on the aspect of capacity to pay. However, it is the stand of the petitioners that although the H

452 SUPREME COURT REPORTS (2014) 2 S.C.R.

A Report purportedly examines the capacity to pay, such evaluation is directly contrary to the principles and accepted material factors which the Report itself identifies as governing a legally sound consideration of the capacity to pay. The relevant portion of the report in pages 101 to 102 is as under:- B "The gross revenue of newspaper establishments comprises revenue through advertisements, circulation and other sources relating to newspaper activities and miscellaneous income accrued from investments, interests, rent etc. The gross revenue can be taken as one of the indicators to judge the health of the newspaper establishments. Strictly speaking several discounted factors are required to be taken in to consideration from the gross revenues to make actual assessments of the capacity of the newspaper establishments. But in absence of such parameters, it was decided to rely broadly on gross revenue."

57. The petitioners major point of reliance is surfaced on the observation in the report which acknowledges that there are other factors along with gross revenue which need to be considered for determining the capacity to pay of the establishments which the report did not ultimately consider thus it will be appropriate to reject the report.

58. On the other hand, it is the stand of the Union of India. F that in the absence of availability of such parameters for the assessment of capacity to pay of the newspaper establishments, it is judicially accepted methodology to determine the same on the basis of gross revenue and relied on the observations in Indian Express Newspapers (Pvt.) Ltd. G (supra):- "16 ... In view of the amended definition of the "newspaper establishment" under Section 2(d) which came into operation retrospectively from the inception of the Act and the Explanation added to Section 10(4), and in view ~urther of the fact that in clubbing the units of the establishment

ABP PVT. LTD. & ANR. v. UNION OF INDIA & ORS. 453

[P. SATHASIVAM, CJI.] together, the Board cannot be said to have acted contrary to the law laid down by this Court in Express Newspapers case, the classification of the newspaper establishments on all-India basis for the purpose of fixation of wages is not bad in law. Hence it is not violative of the petitioners' rights under Articles 19(1 )(a) and 19(1 )(g) of the B Constitution. Financial capacity of an all-India newspaper establishment has to be considered on the basis of the gross revenue and the financial capacity of all the units taken together. Hence, it cannot be said that the petitioner- companies as all-India newspaper establishments are not c viable whatever the financial incapacity of their individual units. After amendment of Section 2(d) retrospectively read with the addition of the Explanation to Section 10(4), the old provisions can no longer be pressed into service to contend against the grouping of the units of the all-India 0 establishments, into one class."

59. After perusing the relevant documents, we are satisfied that comprehensive and detailed study has been carried out by the Wage Board by collecting all the relevant material information for the purpose of the Wage Revision. The E recommendations are arrived at after weighing the pros and cons of various methods in the process and principles of the Wage Revision in the modern era. It cannot be held that the wage structure recommended by the Majithia Wage Board is unreasonable. F

60. The other issue in regard to which there was elaborate submission is the issue pertaining to recommendations of the Wage Board in regard to news agencies. It is the stand of the petitioners that even though this Court had expressly held that news agencies, including PTI, stood on a separate footing from G newspapers inter alia because they did not have any · advertisement revenue and, hence, the wages will have to be fixed separately and independently for the news agencies, the impugned Wage Boards failed to take note of the said relevant aspect. H

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61. Learned counsel for the respondent contended by stating that capacity to pay of news agencies was determined on the basis of the capacity to earn of the news agencies iii every Wage Board. It was further submitted that the burden of revised wages was met by the news agencies on every occasion by revising the subscription rate. Thereby submitting that the recommendation vis-a-vis the news agencies was a reasoned one.

62. This Court has a limited jurisdiction to look into this aspect. The interference is allowed to a limited extent to examine the question as to whether the Wage Board has considered the capacity to pay of the News Agencies. It would be inapposite for this Court to question the decision of the specialized board on merits especially when the Board was constituted for this sole purpose. D

63. The second point of contention of petitioners is of introducing new concepts such as 'variable pay' in an arbitrary manner. Regarding variable pay recommended by the Majithia Wage Board, learned counsel for the petitioners submitted that ·E there is no basis for providing payment of variable pay and equally there is no basis for providing variable pay as a percentage of basic pay which mak~s the payment of variable pay open-ended. According to them, the recommendation in this regard is totally unreasonable, irrational and places an extra and unnecessary burden on the newspaper establishments. Consequently, it was asserted that there is complete non- application of mind to insert the so-called variable pay concept (similar to Grade Pay of Sixth Pay Commission) in the Majithia Wage Board's recommendation, even though the basic conditions, objectives and anomalies are absent.

64. However, the stand of the respondents is that there is gradation of variable pay and allowances according to the size · of the establishments wherein smaller establishments are required to pay at a lower rate compared to larger establishments. It may be pointed out that in the Manisana

ABP PVT. LTD. & ANR. v. UNION OF !NOIA & ORS. 455 [P. SATHASIVAM, CJI.] Wage Board, which is the predecessor to the Majithia Board, A did recommend a similar dispensation though it did not specifically call it variable pay. Manisana Wage Board recommended a certain percentage of basic pay for the newspaper employees, which is similar to variable pay in the Majithia Wage Board recommendations. While such B dispensation was included in the basic pay in the Manisana Wage Board instead of being shown separately, the Majithia Wage Board categorized "basic pay" and "variable pay" separately. Accordingly, the concept of "variable pay" is not newly introduced, though the terminology may have differed in c Manisana and Majithia Wage Boards. The Wage Boards have followed well-settled norms while making recommendations about variable pay. Further, the explanation to Section 2(eee) which defines "wages" specifically includes within the term "wages" "new allowances", if any, of any description fixed from 0 time to time. Therefore, the Wage Board was well within its jurisdiction to recommend payment of 'variable pay'.

65. There was also a submission on behalf of the petitioners that Majithia Wage Board has simply copied the recommendations of the Sixth Central Pay Commission, which E is not correct. We have carefully scrutinized all the details. It is clear that the recommendations of the Sixth Central Pay Commission have not been blindly imported/relied upon by the Majithia Wage Board. The concept of 'variable pay' contained in the recommendations of the Sixth Central Pay Commission F has been incorporated into the Wage Board recommendations only to ensure that the wages of the newspaper employees are at par with those employees working in other Government sectors. Such incorporation was made by the Majithia Wage Board after careful consideration, in order to ensure equitable G treatment to employees of newspaper establishments, and it was well within its rights to do so.

66. It is further seen that the Wage Board has recommended grant of 100% neutralization of dearness allowance. Fifth Pay Commission granted the same in 1996. H

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A Since then, public sector undertakings, banks and even the private sector are all granting 100% neutralization of dearness allowance. The reference to decisions prior to 1995 is irrelevant.

67. Lastly, the contention of the petitioners that the Wage Boards have not taken into account regional variations in submitting their recommendations is also not correct. It is clear from the report that the Wage Boards have categorized the HRA and Transport Allowance into X. Y and Z category regions, which reflects that the cost on accommodation and transport C in different regions in the country was considered. Furthermore, there is gradation of variable pay and allowances according to the size of the establishments wherein smaller establishments are required to pay those at a lower rate compared to larger establishments. Hence, we are satisfied that the Wage Boards D followed certain well laid down principles and norms while making recommendations.

68. It is true that the Wage Boards have made some general suggestions for effective implementation of Wage E Awards which is given separately in Chapter 21 of the Report of the Majithia Wage Boards of Working Journalists and Non- Journalists Newspaper and News Agency Employees. It is brought to our notice that the Government has not accepted all these suggestions including those pertaining to retirement age, pension, paternity leave, etc. as these are beyond the main objective for which the Wage Boards were constituted. Regarding fixation of pay, assured career development, there have been proposals in the recommendations which are in the manner of providing higher pay scale after completion of certain number of years which cannot be treated as time bound promotion. Similarly, the establishments have also b_een categorized on the basis of their turnover, thus, taking into consideration the capacity of various establishments to pay.

69. It is useful to refer Section 12 of the Act which deals wi.th the powers of Central Government to enforce

ABP PVT. LTD. & ANR. v. UNION OF INDIA & ORS. 457

[P. SATHASIVAM, CJI.] recommendations of the Wage Board. It reads as under: A "12 - Powers of Central Government to enforce recommendations of the Wage Board (1) As soon as may be, after the receipt of the recommendations of the Board, the Central Government B shall make an order in terms of the recommendations or subject to such modifications, if any, as it thinks fit, being modifications which, in the opinion of the Central Government, do not effect important alterations in the character of the recommendations. C

(2) Notwithstanding anything containedin sub-section (1), the Central Government may, if it thinks fit,-- (a) make such modifications in the recommendations, not being modifications of the nature referred to in sub-section o (1 ), as it thinks fit: Provided that before making any such modifications, the Central Government shall cause notice to be given to all persons likely to be affected thereby in such manner as may be prescribed, and shall take into account any · E representations which they may make in this behalf in writing; or

(b) refer the recommendations or any part thereof to the Board, in which case, the Central Government shall F consider its further recommendations and make an order either in terms of the recommendations or with such modifications of the nature referred to in· sub-section (1) as it thinks fit.

(3) Every order made by the Central Government under this G . section shall be published in the Official Gazette together with the recommendations of the Board relating to the order and the order shall come into operation on the date pf publication or on such date, whether prospectively or retrospectively, as may be specified in the order." H

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70. Thus, it is the prerogative of the Central Government to accept or reject the recommendations of the Wage Boards. There is no scope for hearing the parties once again by the Central Government while accepting or modifying the recommendations, except that the modifications are of such B nature which alter the character of the recommendations and such modification is likely to affect the parties. The mere fact that in the present case, the Government has not accepted a few recommendations will not automatically affect the validity of the entire report. Further, the Government has not accepted c all those suggestions including those pertaining to retirement age, etc. as these are beyond the mandate for which the Wage Boards were constituted. Regarding fixation of pay, assured career development, there have been proposals in the recommendations which are in the manner of providing higher pay scale after completion of certain number of years which 0 cannot be treated as time bound promotion.

71. Accordingly, we hold that the recommendations of the Wage Boards are valid in law, based on genuine and acceptable considerations and there is no valid ground for interference under Article 32 of the Constitution of India.

72. Consequently, all the writ petitions are dismissed with no order as to costs.

73. In view of our conclusion and dismissal of all the writ petitions, the wages as revised/determined shall be payable from 11.11.2011 when the Government of India notified the recommendations of the Majithia Wage Boards. All the arrears up to March, 2014 shall be paid to all eligible persons in four equal instalments within a period of one year from today and continue to pay the revised wages from April, 2014 onwards.

74. In view of the disposal of the writ petitions, the contempt petition is closed.

H R.P. Petitions dismissed.