Holding

The award must be modified to extend the two‑class up‑gradation limitation to all newspaper establishments, and the all‑India classification of establishments for wage fixation is constitutionally valid.

Summary

The Indian Express Newspapers and other newspaper establishments challenged two 1989 government orders that gave effect to the Bachawat Wage Board's recommendations fixing wage scales, grades, house rent and city compensatory allowances under the Working Journalists and Other Newspaper Employees (Conditions of Service) Act, 1955. They also contested the 1989 amendment redefining "newspaper establishment" to include all branches and an explanation allowing all‑India wage fixation, alleging discrimination between establishments earning over Rs 2 crore and those earning less, violating Articles 14, 19(1)(a) and 19(1)(g) of the Constitution. The Court examined the principles laid down in Express Newspapers Ltd. v. Union of India (1959) regarding the need to consider the industry's capacity to pay on an industry‑cum‑region basis. It held that the classification that limited up‑gradation to a maximum of two classes only for lower‑revenue establishments was unjustified and must be extended to all classes. The Court further held that classifying newspaper establishments on an all‑India basis for wage fixation does not infringe the constitutional rights claimed. Consequently, the award was modified to apply the two‑class up‑gradation ceiling to all classes and the revised wage orders were to be implemented retrospectively from 1 January 1988.

Issues considered

The classification of newspaper establishments based on gross revenue, with different treatment for classes IA‑V versus VI‑IX, violates Articles 14, 19(1)(a) and 19(1)(g).
Whether the amendment to Section 2(d) of the Act and the explanation to Section 10(4) permitting all‑India wage fixation are constitutionally valid.
Whether the limitation on up‑gradation of wage classes to a maximum of two should apply to all newspaper establishments.
Whether the award’s failure to consider advertisement revenue share, depreciation, retrospective burden and news‑print cost warrants modification.

Legislation cited

Working Journalists and Other Newspaper Employees (Conditions of Service) and Miscellaneous Provisions Act, 1955s. 10(4), s. 11, s. 12, s. 13-A, s. 13-B, s. 13-C, s. 13-D, s. 2(d), s. 8
Working Journalists and Other Newspaper Employees (Conditions of Service) and Miscellaneous Provisions (Amendment) Act, 1989s. 2(i), s. 3

Subjects

Wage fixationNewspaper establishmentsArticle 14Article 19(1)(a)Article 19(1)(g)ClassificationAll‑India wageBachawat AwardRetrospective amendmentIndustrial relations

Judgment

A INDIAN EXPRESS NEWSPAPERS (P) LTD. ETC. ETC.
v.
UNION OF INDIA AND ORS. ETC. ETC.

SEPTEMBER 23, 1994

B [KULDIP SINGH, P.B. SAWANT AND N.P. SINGH, JJ.]

Working Journalists [Conditions of Service] and Miscellaneous
Provisions Act 1955, ss. 2(d), 8, JO and 13B-Constitution of India, Articles
14, 19(l)(a) and (g)--Bachawat Wage Board award-{fnits of newspaper es-
C tablishments having gross revenue above Rs. 2 crores considered in the class
of main establishment for purposes of wage fu:ation-Other units having gross
revenue less than two crores considered belonging to classes two grades
above-Held, the classification was discriminatory; the limitation of upgrada-
tion by two classes will apply to the fonner units also

D Working Journalists [Conditions of Service] and Miscellaneous
Provisions Act 1955, ss.2(d), 8, JO and 13B-conslitution of India, Articles
14, 19(1)(a) and (g)--Bachawat Wage Board award-Classification of
newspaper establishments on all-India basis and clubbing of units for fu:ation
of wages-Definition of 'newspqper establishment' amended retrospective-
E ly-Held, classification not violative of Articles 14, 19(1)(a) and (g).
Accepting the recommendations of the Wage Board constitnted
under the chairmanship of Shri Bachawat in its award dated May 26, 1989
('Bachawat Award'), the Central Government issued two orders ('orders')
both dated Augnst 31, 1989 under S.11 of the Working Jonrnalists [Con-
F ditions of Service I and Miscellaneons Provisions Act 1955 ('Act') fixing
wage scales, grades, Honse 'R.nt and City Compensatory allowance for
newspaper employees. By an amendment to the Act retrospective from
August 28, 1989, a 'newspaper establishment' under S.2(d) inclnded its
different departments, centres and branches and even its printing press.
G An explanation added to S.10(4) enabled the wage board constituted nnder
the Act to make recommendations for fixation of wages on an all-India
basis.

The petitioner newspaper establishments challenged the two orders
and the amendments to the A~t on the gronnd that in view of the decision
H in Express Newspapet (Pvt.) Ltd. andAnr. v. Union of India and Ors., [1959]
18
INDIAN EXPRESS v. U.0.1. 19

SCR 12 which recognised the industry's capacity to pay on an industry· A
cum· region basis as an important circumstance in thefixation of wages,
.. ·' the orders and the amendments which overlooked the economic viability
and capacity of individual weaker units of a newspaper establishment
would be violative of Articles 19(1)(a) and (g) of the Constitution. Further
the classification by the Bachawat Award of those units earning gross
B
revenue of not less Rs. 2 crores along with the main establishment while
placing other units earning a gross revenue of less than Rs. 2 crores in
classes only two grades above was discriminatory. The Bachawat Award
also ignored the actual advertisement revenue as a percentage of gross
revenue earned by the establishment and made no provision for even a
reasonable depreciation. The retrospectivity of the recommendations ef· C
fective from January 1, 1988. conpled with the increased costs of newsprint
imposed an unreasonable burden.

Partly allowing the petitions, this Court

HELD : 1. While applying the principle of fixation of wages on all D
India basis the Board has made a discrimination between newspaper
establishments belonging to classes IA to V (earning gross revenue of not
less than Rs. 2 crores) and those belonging to classes VI to IX (earning
gross revenue less than R•. 2 crores). There is no satisfactory explanation
to defend the said discrimination. The award will have to be modified by E
extending the limitation of upgradation upto the maximum of two classes
to all classes of newspaper establishments. [31-H, 32-A·B]

2.1. The classification of the newspaper establishments on all India
basis for the purpose of fixation of wage is not violative of the petitioner's
fundamental rights under Articles 19(1)(a) and (g). The units of an estab· F
lishement which bas branches all over India can be clubbed together for the
purpose offixation of wages. After the amendment of S.2( d) retrospectively
read with the addition of the Explanation to S.10(4), the old provisions can
no longer be pressed into service to contend against the grouping of the
units of the all India establishments, into one class. [32·D·E·G) G
Express Newspaper (Pvt.) Ltd. and Anr. v. Union of India and Oi:s.,
[1959) SCR 12, followed.

2.2. Financial capacity of an all India newspaper establishment has
to be considered on the basis of the gross revenue and the financial H
20 SUPREME COURT REPORTS [1994] SUPP. 4 S.C.R.

A capacity of all the units taken together. Hence it cannot be said that the
petitioner companies are not viable whatever the financial capacity of their
individual units. [32-F)
'·
CIVIL ORIGINAL/APPELLATE JURISDICTION: Transfer Case
(C) No. 10 of 1990 etc. etc.
B
From the Judgment and Order dated 17.1.90 of the Bombay High
Court in W.P. No. 82 of 1990.

V.R. Reddy, Additional Solicitor General, V.C. Mahajan, F.S.
C Nariman, Arun Jaitley, V.A. Bobde, Ms. Indira Jaisingh, B. Datta, G.
Ramaswamy, Madan G. Phadnis, R.N. Trivedi, Gaurab Banerji, R. Karan-
jawala, P.K. Mullick, Ms. M. Karanjawala, Ms. Suruchi Aggarwal, D.A.
Dave, Vivek Sharma, Ms. Ruby Ahuja, K.J. Johan, AR. Atrey, S.
Sukumaran for J.B.D. & Co., Pramod B. Agarwala, M.N. Shroff, Ms.
Reema Bhandari, Ms. Aparna Bhatt, Ms. Shashi Kiran, Ms. Anil Katiyar,
D Ms. Niranjana Singh, V.G. Pragasam P.R. Seetharaman, K.V. Vijay Kumar,
Jitendra Sharma, B.K. Pal, P. Gaur, Ms. Gunwant Dara, Ms. V.D. Khanna,
Mukul Mudgal, Ms. Vijaya Lakshmi Menon, Sudhir Kumar Gupta, Sarva
Mitter, for Mitter & Mitter Co., Jagdish Prasad Goyal, Ms. Bina Gupta,
S.K. Jain, Madan Lokur, Surya Kant, Ms. Urmila Sirur, R.P. Kapur, AL.
E Trehan, Om Prakash Khaitan, Satyapal Kaushal Chand Pas~ A.G. Ratna
Parkhi, Ms. R. Vaigai, Ms. C. Ramamurthy, P.K. Chakraborthy, Suman
Khaitan, for O.P. Khaitan & Co., Raju Rama Chandran, Anis Suhrawardy,
C.N. Sree Kumar, in- person in T.P. No. 5 & 10/90 B.K. Pal, B.M.
Srivastava, Ms. Arvinder Choudhary, Ms. Minakshi Gautam for Mitter &
Mitter Co., Rakesh Baijpai for the appearing parties.
F
The Judgment of the Court was delivered by

SAWANT, J. In all these matters, the petitioner-establishments have
challenged two orders viz., Nos.683(E) and 684(E), both dated 31.8.1989,
G (hereinafter referred to as 'Orders') issued by the Central Government
under Section 11 of the Working Journalists and Other Newspaper
Employees (Conditions of Service) and Miscellaneous Provisions Act, 1955
(hereinafter referred to as the 'Act') accepting and giving effect to the
recommendations of the Wage Board Report dated 26.5.1989 (hereinafter
referred to as the 'Report') on various grounds. Order No. 683(E) deals
H with wage-scales and grades, and Order No. 684(E) deals with House Rent
INDIANEXPRESSv. U.O.l.[SAWANT,J.] 21

Allowance and City Compensatory Allowance. The Wage Board was con- A
stituted by the respondent 1-Union Government in 1985 under the chair-
manship of Shri Bachawat and hence the Report given by it is known as
·' Bachawat Award. Both the orders are challenged on the ground of viola-
tion of the fundamental rights under Articles 14, 19{1){a) and 19{1)(g) of
the Constitution of India.
B
The petitioners also challenge the amendment of Sections 2(d) and
10{4) of the Act brought about by Sections 2{i) and 3 of the Working
Journalists and Other Newspaper Employees {Conditions of Service) and
Miscellaneous Provisions {Amendment) Act, 1989 {hereinafter referred to
as the "Amending Act") by adding an Explanation at the end of Section C
10{4) and a Schedule at the end of the Act as being violative of Articles
14, 19{1){a) and 19{1){g) of the Constitution.

·2. In order to appreciate the challenges, it is necessary to state a few
background facts.
D.
The Act as it was initially enacted was titled the Working Journalists
(Conditions of Service) and Miscellanceous Provisions Act, 1955 (the
'original Act') since it was confined to the service conditions of the working
journalists only. By an amendment brought into force on 21.12.1974, by the
Working Journalists and other Newpaper Employees {Conditions of Ser- E
vice) and Miscellaneous Provisions {Amendment) Act, 1974, the scope of
the original Act was expanded to include the other newspaper employees.
Under the original Act, which was confined to the working journalists only,
a Board headed by Shri Divatia was appointed under Section 9 of.the Act,
and the said Board gave its award in May 1957 which is known as Divatia
Award. The recommendations made by the said Board and the provisions F
of the Act were challenged by some establishments including some of the
petitioners herein, under Article 32 of the· Constitution, and these challen-
ges were dealt with in the decision of this Court in Express Newspaper (Pvt.)
Ltd. and Anr. v. Union of India and Ors., [1959] SCR 12 by a Constitution
Bench of five learned Judges. To this decision, we may have occasion to G
refer later. Suffice it to say for the present that certain propositions of law
which were laid down by this decision were followed not only by the later
Wage Boards appointed under the Act by all industrial adjudicators in the
country.

After the Divatia Wage Board, three more wage boards were ap- · H
22 SUPREME COURT REPORTS [1994] SUPP. 4S.C.R.

A pointed, viz., Bhandarkar Wage Board, Sinde Wage Board and Palekar
Wage Board in 1958, 1963 and 1975-76 respectively. They gave their
respective awards in 1959, 1967 and 1980. They followed the principles laid
down in the aforesaid decision of this Court. Then came the present Wage
Board, viz., Bachawat Wage Board and its impugned award.

B 3. Before we discuss the challenges to the impugned award, it will be
necessary to examine the relevnat provisions of the Act, the changes
brought about in the Act after the decision in Express Newspaper case
(supra) and the propositions of law laid down in the aforesaid decision.

C Section 2 (d) defines "newspaper establishment" to mean-

"( d) "newspaper establishment" means an establishment
under the control of any person or body of persons, whether
incorporated or not, for the production or publication of one
or more newspapers or for conducting any news agency or
D syndicate; (and includes newspaper establishments specified
as one establishment under the Schedule).

Explanation - For the purposes of this clause, -

(a) different departments, branches and centres of
E newspaper establishments shall be treated as parts thereof;

(b) a printing press shall be deemed to be a newspaper
establishemnt if the principal business thereof is to print
newspaper];"
F The Schedule referred to above states as follows :

"1. For the purposes of clause (d) of Section 2,

(1) two or more newspaper establishments under common
control shall be deemed to be one newspaper establishment;
G
(2) two or more newspaper establishments owned by an
individual and his or her spouse shall be deemed to be one
newspaper establishment unless it is shown that such spouse
is a sole proprietor or partner or a shareholder of a corporate
H body on the basis of his or her own individual funds;
JNDIANEXPRESSv. U.0.1.(SAWANT,.T.] 23

(3) two or more newspaper establishemnts publishing A
newspapers bearing the same or similar title and in the same
language in any place in India or bearing the same or similar
title but in different languages in the same State or Union
territory shall be deemed to be one newspaper establishment.

2. For the purposes of paragraph 1(1), two more establishments B
shall be deemed to be under common control -

(a)(i) where the newspaper establishments are owned by a
common individual or individuals;

(ii) where the newspaper establishments are owned by firms,
c
if such firms have a substantial number of common partners;

(iii) where the newspaper establishments are owned by
bodies corporate, if one body corporate is a subsidiary of the
other body corporate, or both are subsidiaries of a common D
holding company or a substantial number of their equity
shares are owned ~y the same person or group of persons,
whether incorporated or not;

(iv) where one establishment is owned by a body corporate
and the other is owned by a firm, if a substantial number of E
partners of the firm together hold a substantial number of
equity shares of the body corporate;

(v) where one is owned by a body corporate and the other is
owned by a firm having bodies corporate as its partners if a
substantial number of equity shares of such bodies corporate F
are owned, directly or indirectly by the same person or group
of persons, whether incorporated or not, or

(b) where there is functional integrality between concerned
newspaper establishments." G
The bracketed addition in Section 2( d) and the Schedule referred to
therin were inserted by the Amending Act 31 of 1989 which came into force
retrospectively on 28th August, 1989. The provisions of Section 2(i) of the
said Amending Act in terms state that the said bracketed protion "shall be
deemed elways to have been inserted at the end" of the original Section H
24 SUPREME COURT REPORTS (1994) SUPP. 4 S.C.R.

A 2(d) of the Act. Section 8 and Section 13-B give power to the Central
Government to fix rates of wages in respect of working journalists and non-
journalist .newspaper employees respectively, and to revise from time to
time the rates of wages fixed, at such intervals as it may think fit. Section
9 and Section 13-C lay down the procedure for fixing or revising the rates
of wages in respect of working journalists and non-journalist newspaper
B
employees respectively, and they state that for the purpose, the Central
Government shall as and when necessry, constitute a Wage Board. Sub-
section (1) of Section 10 read with Section 13-D lays down the procedure
which the Wage Board is required to follow while fixing or revising the
rates of wages. The provision says that the Board shall, by notice published
C in such manner as it thinks fit, call upon all interested persons to make
such representations as they may think fit as respects the rates of wages
which may be fixed or revised under this Act. Sub-section (2) of Section
10 states that every such representation shall state the rates of wages, which
in the opinion of the person making the representation, would be
D reasonable, having regard to the capacity of the employer to pay the same
or to any other circumstance, whichever may deem relevant to the person
making the representation. Sub-section (3) thereof states that the Board
shall take into account the representations so made and after examining
the materials placed before it, make such recommendations as it thinks fit
to the Central Government for the fixation or revision of rates of wages
E and any such recommendation may specify when, prospectively or
retrospectively, it should take effect. Sub-section (4) thereof makes an
important provision. It enjoins upon the Board while making the recom-
mendations to the Central Government, to have regard to the cost of living,
the prevalent rates of wages for comparable employment, the circumstan-
F ces relating to the newspaper industry in different regions of the country
and to any other circumstances which to the Board may seem relevant. An
Explanation was added to the said sub-section (4) by the same Amending
Act of 1989 which has a bearing on one of the challenges made to the
impugned Award. It states :

G "Explanation. - For the removal of doubts, it is hereby declared
that nothing .in this sub-section shall prevent the Board from
making recommendations for fixation or revision of rates of wages
on all India basis".

H [Emphasis supplied)
INDIAN EXPRESS v. U.0.1. [SAWANT, J.] 25

Sub-section (1) of Section 12 gives power to the Central Government to A
make an order in terms of the recommendations made by the Board or
subject to such modifications 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. Sub-section (2) thereof gives
power to the Central Government to make such modifications in the B
recommendations, not being modifications of the nature referred to in
sub-section (1), as it thinks fit, after giving to all persons likely to be
affected thereby an opportunity to make representations or to refer the
recommendations or any part thereof to the Board, as it thinks fit. Sub-
section (3) states that every order make by the Central Government
together with the recommendations of the Board shall come into operation C
on the date of publication or on such date, whether prospective or
retrospective, as may be specified in the order. Section 13 read with Section
13-D states that on the coming into operation of the order of the Central
Government under Section 12, every working journalist and non-journalist
newspaper employee shall be entitled to be paid by his employer wages at D
the rate which shall in no case be less than the rates of wages specified in
the order. Section 13-A gives power to the Central Government to fix
interim rates of wages after consulting the Wage Board.

4. We may now refer to the propositions of law laid down by this
Court in the decision in Express Newspapers Ltd. case (supra). They are, E
among others, as follows -
' within its com-
(1) For the fixation of rates of wages which include
pass, the fixation of scales of wages also, the capacity of the ·
industry to pay is one of the essential circumstances to be taken
into consideration except in cases of bare subsistence or mini- F
mum wages where the employer is bound to pay the same
irrespective of such capacity. Under the provisions of the Act, it
is not only open to, but incumbent upon the Wage Board to
consider the capacity of the industry to pay, as an essential
circumstance. G
(2) The capacity of the industry to pay is to be considered on an
industry-cum-region basis after taking a fair cross section of the ·
industry.

(3) The proper measure of weighing the capacity of the industry to H
26 SUPREME COURT REPORTS [1994] SUPP. 4 S.C.R.

A pay should take into account the elasticity of the demand for the
product, the possibility of tightening up the organisation so that
the industry could pay higher wages without di(ficulty and the
possibility of increase in the efficiency of the lowest paid workers, ..-
resulting in increase in production, considered in conjunction
with the elasticity of the demand for the product against the
B
ultimate background that the burden of the increased rate should
not be such as to drive the employer out of business.

(4) The provisions of the Act as they stood then were not violative
of the fundamental rights enshrined in Articles 14 and 19(1)(a)
c and 19(1)(g) of the Constitution which provided for classification.
The classification of the newspaper establishments on the basis
of the gross revenue earned is not bad.

(5) The grouping of the newspaper establishments into chains or
D multiple units is justified having regard to the conditions of the
newspaper industry in the country. There is nothing in the Act
which militates against such grouping. The real difficulty however
in the matter of grouping into chains or multiple units arises in
connection with the capacity of the industry to pay. If a classifica-
tion on the basis of gross revenue would be legitimately adopted
E by the Wage Board, the grouping into chains or multiple units
could also be made. There is nothing in the Act to prohibit the
treating of several newspaper establishments producing or
publishing one or more newspapers, though in different parts of
the country, as one newspaper establishment for the purpose of
F fixing the rates of wages. It would .not be illegitimate to expect
the same standard of employment and conditions of service in
- several newspaper establishments under the control of any per-
son or body of persons whether incorporated or not. For an
employer to think of employing one set of persons on higher
scales of wages and another set of workers on lower scales of
G wages would by itself be inequitous, though it would be quite
legitimate to expect the difference in scales having regard to the
quality of the work required to be done, the conditions of labour
in different regions of the country, the standard of living in those
regions and other cognate factors. All these conditions would
H necessarily have to be borne in mind by the Wage Board in
INDIANEXPRESSv. U.O.l. [SAWANT,J.J 27

arriving at its decision in regard to the wage structure though the A
relative importance to be attached to one set or the, other, may
vary in accordance with the conditions in different areas or
regions where the newspaper establishments are located.

(6) If the industry is divided into different classes, it may not be
B
necessary to consider the capacity of each individual unit to pay.
It would certainly be necessary to consider the capacity of the
respective classes to bear the burden imposed on them. A ·cross
section of these respective classes may have to be taken for
careful examination and all relevant factors may have to be borne
in mind in deciding what burden the class considered as a whole c
can bear.

5. It is necessary to note some significant amendments which were .
made to the original Act after the aforesaid decision. The first such
amendment, as stated above, was to include within the scope of the Act, D
the non-journalists newspaper employees. The second amendment was to
the definition of "newspaper establishment" in Section 2( d) and as pointed
out earlier, it was the addition of the bracketed portion in the said defini-
tion and th~ Schedule. With this amendment, different departments,
branches and centres of a newspaper establishment we·e treated as a part
of the same establishment and even a printing press, whose principal E
business was to print newspaper, was also deemed to be a newspaper
establishment. As per the Schedule introduced, (i) two or more newspaper
establishments under common control were deemed to be one newspaper
establishment; (ii) two or more newspaper establishments publishing
newspapers bearing the same or similar title and in the same .language in F
any place in India or bearing the same or similar title, but in different
languages in the same State or Union Territory, were also deemed to be
one newspaper establishment; and (iii) two or more establishments owned
by an individual and his or her spouse were also deemed to be one
newspaper establishment, unless it was shown that such spouse was the sole G
proprietor or partner or a shareholder in a corporate body on the basis of
his or her own individual funds. The third amendment was an addition of
Explanation to Section 10(4) [(former Section 9 (1)), enabling the Board
to make recommendations for fixation or revision of rates of wages on all
India basis. It has to be noted that this amendment was made after the
publication of the award impugned in the present case. H
28 SUPREME COURT REPORTS [1994) SUPP. 4 S.C.R.

A 6. The main contention of the petitioners in the present cases/peti-
tions is that this Court in Express Newspaper case (supra) has accepted the
contention that in the absence of the requirement of looking into the
capacity of industry on an industry-region basis, the entire Act would be
violative of Constitution. Hence the Court had in that case read into the
•
provisions of Section 10{4) [the then Section 9 {1)) the requirement of
B
looking into the capacity of the industry to pay on an industry-cum-region
basis. The necessity to read the said requirement into Section 10 (4) has
not been changed by the amendments to Sections 2(d) and 10(4). If it is
held that the amendment to Section 2(d) would permit an all India fixation
of wages, talcing into consideration the gross revenue of the company or
c other independent companies which are sought to be clubbed, the
provisions of Section 2(d), as amended, would be violative of the
petitioners' right under Articles 19{1)(a) and (19)(1)(g) of the Constitution
inasmuch as such fixing up of wages would bring about the situation as it
prevailed under the first Wage Board resulting in ignoring the economic
D viability of the weaker units of the company rendering it impossible to run
the said units. It would also make it impossible for the companies to start
new newspape:s since they would not be viable and would not be in a
position to complete with other publications in the same locality. The
grouping of the newspapers into chain or multiple units <lid not imply that
the weaker units in those groups must be treated on par with the stronger
E
units. Any such principle of fixation of wages without taking into considera-
tion the burden that would be imposed upon weaker unit of a particular
newspaper establishment would be erroneous. Hence it is contended that
the amendment to Section 2(d) would be subject to the provisions of
Section 10(4) as it stood and as it stands today. Section 2(d) is only a
F definition clause and the provisions of Section 10(4) are mandatory. Hence,
harmonious construction of the provisions of Section 2{d) and Section
10{4) is necessary. Construed thus, it would enable the Wage Board to fix
the wages on all India basis taking into consideration the industry as a
whole and at the same time, the capacity of individual unit. That would
G enable the Wage Board to classify the individual unit first into its proper
class and then upgrade it neasonably if it belongs to a multiple or chain •
group. In this connection, it is pointed out that all the Wage Boards in the
past except the Palekar Wage Board which dealt with the question on a
different footing, fJXed wages on the above basis. The said Wage Boards
H thus implemented the aforesaid decision of this Court.
INDIANEXPRESSv. U.0.1. [SAWANT,J.] 29

It is further pointed out that the present Wage Board itself has A
recognised this principle and while classifying the newspaper estab-
lishments in para 11 of Section II of Part I of Chapter IX of the Report
on the basis of the gross revenue into 10 classes, it has made an exception
in paragraph 6(2) of the said Section in case of newspaper establishments
falling in classes VI to IX by directing that they will not be stepped up by B
more than two classes as a whole in clubbing of gross revenue as is directed
in sub-para (1) of the said para 6. However, the Board has given no reason
why similarly for the establishments falling in classes IA to V, the same
J consideration should not be shown. On the other hand, the Board without
giving any reasons, has chosen to treat every unit of the newspaper estab- C
lishment falling in the latter classes, viz., classes IA to V as being of the
same class to which the establishment itself belongs on the basis of its gross
• revenue. This has manifastly resulted in the weaker units of the newspaper
establishments belonging to the said classes being ranked with the highest
in the same class, thus, crippling the weaker units with the heavy un-
bearable financial burden and forcing them to close. Such classification D
directly offends the petitioners' rights under Articles 19(1)(a) and 19(1)(g)
of the Constitution.

Among the other infirmities whicr are pointed out in the im-
pugned award, the first is that while classifying the establishments, the E
benefit of paragraph 12 of Section II of Part I of Chapter IX is not given
to them by ascertaining whether their advertisement revenue is less or more
than 45 per cent of its gross revenue. If this was done and where it was
found that it was less than 45 per cent of the gross revenue, the concerned
establishments would have been placed in the class next below that in .vhich F
they are classified on the basis of their gross revenue. Secondly, the award
while calculating the fmancial capacity, has made no provision even for a
reasonable depreciation and to that extent the estimates of the capacity of
the establishments to pay are seriously flawed. Thirdly, the award has not
considered the burden of retrospecitve effect it has given to its recommen-
dations from 1.1.1988. The burden on the establishments from 1.1.1988 to G
31.12.1989 is enormous and the Board was duty-bound to calculate the
said burden to find out whether the establishments were capable of
bearing the same. Lastly, the award has also not taken into consideration
the costs of news- print which had in the meanwhile gone up by about 76.6 .
. per cent. H
30 SUPREME COURT REPORTS [1994] SUPP. 4 S.C.R.

A We find much substance in the contention - that the Board has
arbitrarily clubbed together the different units of the same establishment
and classified all of them with the highest of the class to which its !op-most
unit belongs so far as classes IA to V are concerned and has not followed • I
in respect of those classes, its own guideline given in the said paragraph
6(2) in respect of the establishments which belong to classes VI to IX. The
B Wage Board in paragraph 11 of Section II of Part I of Chapter IX of its
Report has classified the differnt newspaper establishemnts on the basis of
their gross revenue as follows :

Class Gross Revenue
c IA Rs. 100 crores and above

I Rs. 50 crores and above but less than Rs. 100 crores

II Rs. 20 crores and above but less than Rs. 50 crores

D III Rs. 10 crores and above but less than Rs. 20 crores

IV Rs. 5 crcores and above but less than Rs. 10 crores

V Rs. 2 crores and above but less than Rs. 5 crores

E VI Rs. 1 crores and above but less than Rs. 2 crores

Vil Rs. 50 lakhs and above but less than Rs. 1 crore

VIII Rs. 25 lakhs and above but less than Rs. 50 lakhs

F IX Less than Rs. 25 lakhs

In Annexure V of the Report, the Board has catalogued the effect
of clubbing the different units of the same establishemnt at different places
on the basis of average gross revenue for the past 3 years. The Annexure
itself depicts the inequitable results of the grouping. We may as an illustra-
G tion refer to the effect of clubbing of the units of some of the petitioner-
establishments which are mentioned there. Taking the case of Bennett
Coleman & Co. Ltd., it has its units at Bombay, Delhi, Ahmedabad,
Calcutta, Patna, Jaipur, Pune, Madras and also printing presses at Madras,
Patna, Jaipur and Lucknow and its total gross revenue is Rs. 10,238.72
H crores. Its Bombay, Delhi and Ahmedabad units have been classified as
INDIAN EXPRESS v. u.o.r. [SAWANT, J.] 31

IA, although their gross revenue is less Rs. 100 crores, 50 crores and 5 A
crores respectively and they would properly fall according to the guidelines
of .the Board in classes I, II and V respectively. Similarly, the units of the
I
company at Calcutta, Patna, Bangalore and Jaipur are classified in
categories IV, V, V and V respectively, although on the basis of their gross
revenue they would fall in the categories of VI, VII, VII and IX respec- B
. lively, Corning now to the second establishment, viz., Express Newspapers,
they have their two units at Bombay, one at Madurai and another at
Hyderabad. The gross revenue of all the units was Rs. 7,918.18 crores. They
are all consigned to class I, although their main unit at Bombay and their
unit at Madurai belong to class II and their subsidiary unit at Bombay and C
their unit at Hyderabad belong to cl.ass IV and V respectively. It is not
necessary to multiply these instances. According to us, in view of the
definition of "newspaper establishment" in Section 2( d) and the Explana-
tion to Section 10(4) of the Act and also in view of the fifth and sixth
propositions of law laid down by this Court in Express Newspaper case
(supra) as extracted above, the units of an establishment which has D
branches all over India, can be clubbed together for the purpose of fixation
of wages on all India basis. Since all the units of an establishment are not
expected to fare similarly, uniform pay-scales for the employees in all the
J
units can be prescribed taking into consideration the financial _capacity of
the establishment as a whole. The instances pointed out above are the E
result of the clubbing of the different units of the same establishment.

However, there is much force in the contention of the petitioners that
the principle of fixation of the wages on all India basis has not been applied
by the Board with uniform yardstick as is evident from paragraph 6(2) of F
Section iI of Part I of Chapter IX of the Report. Whereas the units of the
newspaper establishments falling in any of the classes VI to IX, as detailed
above, on the basis of their own gross revenue are, for the fixation of wages
not to be stepped up by more than two classes, the units of the newspaper
establishments falling in classes I.A to V are all to be classified as belonging
to the class to which the said establishment belongs on the basis of the G
gross revenue of all the said units. The result of this discrimination is that
for the purposes of fixing the wage-scales, the units of the newspaper
establishments belonging to classes VI to IX would not be considered as
belonging to the said classes but to the classes which are only two grades
above the class to which the said units on the basis of their own revenue H
32 SUPREME COURT REPORTS [1994] SUPP. 4 S.C.R.

A properly belong. On the other hand, the units of the establishments belong-
ing to classes IA to V would all be considered as belonging to the class to
which the establishment itself belongs. The Board has not given any reason
as to why while applying the principle of uniform wage-scales to all units
of an establishment on all India basis, it has made the discrimination in
B question between the newspaper establishments belonging to classes IA to
V and those belonging to classes VI to IX. The respondents also could not
offer any satisfactory explanation or advance a plausible contention to
defend the said discrimination. We are, therefore, of the view that the
impugned award to be made legally enforceable will have to be modified
by extending the limitation of upgradation upto the maximum of two classes
C laid down in the said para 6(2} also to the newspaper establishments falling
in classes IA to V.

7. As regards the other grounds of attack, we are afraid we see no
reason to interfere with the award on the said grounds. In view of the
D 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 further of the fact
that in clubbing the units of the establishment together, the Board cannot
be said to have acted contrary to the law laid down by this Court in Express
E Newspaper case (supra}, 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 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,
F it cannot be said that the petitioner-companies as all India newspaper
establishments are not 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
G of the all India establishments, into one class.

8. The other contentions advanced on behalf of the Indian Express
Newspapers (P) Ltd. are as follows. Firstly, it is contended that the benefit
of the provisions of paragraph 12 of Section II of Part I of Chapter IX is
H not given to the petitioner-establishment while classifying it. Secondly,
INDIAN EXPRESS v, U.OJ. [SAW ANT, J.] 33

while calculating the financial capacity, the award has made no provision A
even for a reasonable depreciation and to that extent the estimates of the
capacity of the establishment to pay the revised wages are seriously flawed .
.I
The third contention is that the Board has not considered the burden of
retrospective effect it has given to its recommendations from Ll.1988.
Lastly, it is contended that the award has not taken into consideration the B
cost of newsprint which had in the meanwhile gone up by about 76.6 per
cent

9. More or less similar contentions were raised on behalf of other
petitioner-establishments. We have made clear at the very outset that some
of these contentions raised disputed questions of facts and others, mixed C
questions of facts and law and hence we will not entertain them, In
addition, as far as Indian Express Newspapers (Pvt.) Ltd. is concerned the
record shows that the said petitioners had not produced any material
before the Board in support of its aforesaid contentions which are for the
first time advanced before this Court In fact, the company had virtually D
boycotted the proceedings of the Board.

10. In view of what we have held above, we allow all the Writ
Petitions and Transfer Cases except T.C.N. 6 of 1990, only to the extent
indicated below.
E
The benefit given in paragraph 6(2) of Section II of Part I of Chapter
IX will extend to all classes of the newspaper establishments as categorised
in paragraph 11 of the said Report and the units of the newspaper estab-
lishments in all the said classes shall not be stepped up by more than two
classes over and above the clusses to which they belong according to their
own gross revenue. F

In view of our above conclusion, the award as modified, should be
implemented by all the establishments·w.e.f. Ll.1988 and the respondent-
employees should be paid wages w.e.f. the said date i.e., Ll.1988. Where,
however, there have been settlements between the management and the G
employees the payment of wages and of arrears of wages will be governed
by the terms of those settlements.

There will be no order as to costs.

In views of the above order by which T.C. No. 5 of 1990 is allowed H
34 SUPREME COURT REPORTS (1994) SU}'P. 4 S.C.R.

A as above, SLP (C) NO. 16356 of 1990 filed by the same petitioners in this
Court, does not survive.

In view of the order passed above in main matters, T.C. No. 6 of 1990
stands disposed of, as above.

B In view of our order in the main matters, as above, none of the
Interlocutory Applications survives,

S.M. Petitions allowed.