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

51Copy pinpoint51. 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

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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

52Copy pinpoint52. 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.

53Copy pinpoint53. 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

54Copy pinpoint54. 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

55Copy pinpoint55. 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

56Copy pinpoint56. 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

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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."

57Copy pinpoint57. 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.

58Copy pinpoint58. 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."

59Copy pinpoint59. 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

60Copy pinpoint60. 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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61Copy pinpoint61. 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.

62Copy pinpoint62. 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

63Copy pinpoint63. 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.

64Copy pinpoint64. 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'.

65Copy pinpoint65. 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.

66Copy pinpoint66. 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.

67Copy pinpoint67. 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.

68Copy pinpoint68. 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.

69Copy pinpoint69. 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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70Copy pinpoint70. 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.

71Copy pinpoint71. 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.

72Copy pinpoint72. Consequently, all the writ petitions are dismissed with no order as to costs.

73Copy pinpoint73. 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.

74Copy pinpoint74. In view of the disposal of the writ petitions, the contempt petition is closed.

H R.P. Petitions dismissed.