Cause of friction? Newspaper Employees (Conditions of Service) Act 1973 - II

As already mentioned, the issue of one right of appeal, may indeed also be revisited by the apex court for after all in the NIRC there is one Chairman and not less than nine full time members in terms of Section 53 of the IRO 2011. A decision of the full bench of the NIRC in terms of Section 55 (2) (c) of the IRO 2011 shall consist of not less than three members of the commission.
If the decision of the Wage Board is deemed to be an award of the full bench of the Commission comprising of three members, remaining six members of the NIRC can sit as a larger bench on the appellate side and examine the Wage Board Award in appeal. This suggestion requires no doubt amendment in the Newspaper Employees (Conditions of Service) Act 1973.
The principle that Appellate Forum proceedings are continuation of Lower Courts proceedings and all powers of the Lower Courts are deemed to be with the Appellate Forum will thereafter come in play, and it will be open for the Larger Bench of the NIRC to examine the findings of Wage Board in appeal. This is otherwise not possible if the Constitution Petition is filed in terms of Article 199 of the Constitution of Pakistan before High Court challenging any future Wage Board Award where findings of the fact can not be examined and gone into threadbare detail by the High Court in the Constitution Petition.
Reference has been made by Supreme Court of Pakistan in the case of Civil Petition No 987 to 989/2011 in relation to challenge of the 7th Wage Board in general and Newspaper Employees (Conditions of Service) Act 1973 in particular before Supreme Court of Pakistan. The Supreme Court of Pakistan has been pleased to refer to Express Newspaper (Pvt) Limited vs Union of India (AIR 1958 SC 578). With all respect and humility in the case Express Newspaper (Pvt) Limited and another vs Union of India and others, judgement reported in 1961 Vol. (I) LLJ 339, the Full Bench of Supreme Court of India comprising of five learned Judges at Page 411 were pleased to observe as under:-
"The grouping of the newspapers into chains or multiple units implied that the weaker units in those groups were to be treated as on par with the stronger units and it was stated that the loss in the weaker units would be more than compensated by the profits in the more prosperous units. The impact of these proposals on the groups of newspapers was only defended on principle without taking into consideration the result which they would have on the working of the weaker units. Here also the Chairman expressed the opinion that the Board was conscious that as a result of its decision, some of the journalists in the weaker units of the same group or chain may get much more than those working in its highest income units.
He however, stated that if the principle was good and scientific, the inevitable result of its application should be judged from the standpoint of Indian journalism as a whole and not the burden it casts on a particular establishment. It is clear, therefore, that this principle which found favour with the Wage Board was sought to be worked out without taking into consideration the burden which it would impose upon the weaker units of a particular newspaper establishment.
The representatives of the employers objected to the fixation of scales of wages on the plea that fixation of rates of wages did not include the fixation of scales of wages. This contention was negative by the representatives of the employees as also by the Chairman and the Wage Board by its majority decision accepted the position that it could, while fixing the rates of wages, also fix the scales of wages.
The Press Commission itself had merely suggested a basic minimum wage for the consideration of the parties concerned but had suggested that so far as the scales of wages were concerned they were to be settled by collective bargaining or by adjudication. Even though the Wage Board took upon itself the burden of fixing scales of wages as really comprised within the term of their reference, it was incumbent upon it to consider what the impact of the scales of wages fixed by it would be on the capacity of the industry to pay. There is nothing on the record to suggest that both as regards the rates of wages and the scales of wages which it determined the Wage Board overlooked what the impact of its decision would be on the capacity of the industry to pay either as a whole or region-wise.
There is however, a further difficulty in upholding the decision of the Wage Board in this behalf and it is this that even as regards the fixation of the rates of wages of working journalists the Wage Board does not seem to have taken into account the other provisions of the Act, which conferred upon the working journalists the benefits of retrenchment compensation, payment of gratuity, hours of work and leave. These provisions were bound to have their impact on the paying capacity of the newspaper establishments and if these had been borne in mind by the Wage Board it is highly likely that the rates of wages including the scales of wages as finally determined might have been on a lesser scale than what one finds in the decision.
This difficulty becomes all the more formidable when one considers that the working journalists only constituted at best one-fifth of the total staff employed in the various establishments. The rest of the 80 percent comprised persons who may otherwise be described as factory workers who would be able to ameliorate their conditions of service by having resort to the machinery under the Industrial Disputes Act.
If the conditions of service of the working journalists were to be improved by the Wage Board, the other employees of newspaper establishments were bound to be restive and they would certainly, at the very earliest opportunity, raise industrial disputes with a view to the betterment of their conditions of service.
Even though the Industrial courts established under the Industrial Disputes Act, 1947 might not give them relief commensurate with the relief which the Wage Board gave to the working Journalists, there was bound to be an improvement in their conditions of service which the industrial court would certainly determine having regard to the benefits which the working journalists enjoyed and this would indeed impose an additional financial burden on the newspaper establishments which would substantially affect their capacity to pay.
This consideration also was necessarily to be borne in mind by the Wage Board in arriving at its final decision and one does not find anything on the record which shows that it was actually taken into consideration by the Wage Board. The retrospective operation of the decision of the Wage Board was also calculated to impose a financial burden on the newspaper establishments. Even though this may be a minor consideration as compared with the other considerations above referred to, it was nonetheless a circumstance which the Wage Board ought to have considered in arriving at its decision in regard to the fixing of rates of wages.
The financial burden which was imposed by the decision of the Wage Board was very vividly depicted in the statements furnished to us on behalf of the petitioners in the course of the hearing before us. These statements showed that the wage bill of these newspaper establishments was going to be considerably increased, that the retrospective operation of the decision was going to knock off a considerable sum from their reserves and that the burden imposed upon the newspaper establishments by the Joint impact of the provisions of the Act in regard to retrenchment compensation, payment of gratuity, hours of work and leave as well as the decision of the Wage Board in regard to the fixing of rates wages and the scales of wages would be such as would cripple the resources of the newspapers establishments, if not necessarily lead to their complete extinction. The statements also showed what extra burden was imposed upon the newspaper establishments, if they wanted to discharge the working journalists from their employment, the burden was all the greater, if perchance, the newspaper establishments, even though reluctantly, came to close down either business rather than continue the same with all these financial burdens imposed upon them.
These figures have been given by us in the earlier part of our judgement and we need not repeat the same. The conclusion, however is inescapable that the decision of the Wage Board imposed a very heavy financial burden on the newspaper establishments, which burden was augmented by the classification on the basis of gross revenue, fixation of scales of wages, provisions as regards the hours of work and leave, grouping of newspapers into chains of multiple units and retrospective operation given to the decision of the Wage Board as therein mentioned.
If these proposals had been circulated, before being finalised, by the Wage Board to the various newspaper establishments so that these newspaper establishments could, if they so desired, submit their opinions thereupon and their representation, if any, in regard to the same to the Wage Board for its consideration and if the Wage Board had after receiving such opinions and representations from the newspaper establishments concerned finalised its decision, this attack on the ground of Wage Board not having taken into consideration the capacity of the industry to pay as a whole or region wise would have lost much of its force.
The Wage Board, however, did nothing of the type. Proposals were exchanged between the representatives of the employers and representatives of the employees. The discussion that the Chairman had with each set of representatives did not bear any fruit and the Chairman himself by way of mediation, as it were, submitted to them his own proposals presumably having regard to the difference points of view which had been expressed by both these parties.
The decision in regard to the scales of wages, was, as we have seen before, a majority decision which was not endorsed by the representatives of the employers. The proposals of the Chairman also were not acceptable to the representatives of the employers accepted them and they thus became the majority decision of the Wage Board.
The ultimate decision of the Chairman on those points does not appear to have been the result of any consideration of the capacity of the industry to pay as a whole or region wise, but reflects a compromise which he brought about between the diverse views but which also was generally accepted only by the representatives of the employees and not the representatives of the employers.
Nowhere can we find in the instant case any genuine consideration of the capacity of the industry to pay either as a whole or region wise. We are supported in this conclusion by the observations of the Chairman himself in the note which he made simultaneously with the publication of the decision on 30 April 1957, that it was difficult for the Wage Board at that stage to work out with any degree of precision, the economic and other affects of the decision on the newspaper industry as a whole." The learned Supreme Court of India in the aforesaid judgement reported at 413 has been pleased to observe:
"We have carefully examined all the proceedings of the Wage Board and the different tables and statements prepared by them. Neither in the proceedings nor in any of the tables do we see satisfactory evidence to show that the capacity of the industry to pay was examined by the Board in fixing the wage structure. As we have already observed, it was no doubt open to the Board not to attach undue importance to the statements of profit and loss accounts submitted by various newspaper establishments, but, since these statements prime facie show that the trade was not making profit it was all the more necessary for the Board to satisfy itself that the different classes of the newspaper establishments would be able to bear the burden imposed by the wage-structure which the Board had decided to fix.
Industrial adjudication is familiar with the method which is usually adopted to determine the capacity of the employer to pay the burden sought to be imposed on him. If the industry is divided into different classes, it may not be necessary to consider the capacity of each individual unit to pay but 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 can bear. If possible, an attempt can also be made, and is often made, to project the burden of the wage-structure into two or three succeeding years and determine how it affects the financial position of the employer.
The whole of the record before the Board including the Chairman's note gives no indication at all that an attempt was made by the Board to consider the capacity of the industry to pay in this manner. Indeed, the proceedings show that the demands made by the representatives of the employees, and the concessions made by the employees' representatives were taken as rival contention and the Chairman did his best to arrive at his final decision on the usual basis of give and take.
In adopting this course all the members of the Board seem to have lost sight of the fact that the essential pre-requisite of deciding the wage-structure was to consider the capacity of the industry to pay and this, in our opinion introduces a fatal infirmity in the decision of the Board. If we had been satisfied that the Board had considered this aspect of the matter, we would naturally have been reluctant to accept any challenge to the validity of the decision on the ground that the capacity to pay had not been properly considered.
After all, in cases of this kind where special Boards are set up to frame wage-structures, this Court would normally refuse to constitute itself into a Court of appeal on questions of fact, but, in the present case, an essential condition for the fixation of wage structure has been completely ignored and so there is no escape from the conclusion that the Board has contravened the mandatory requirement S.9 and in consequence its decision is ultra vires the Act itself. " The Supreme Court of India concluded this judgement with the observation at Page 416 of the aforesaid Journal and held as under:-
"These civil appeals are directed against the decision of the Wage Board and seek to set aside the same as destroying the very existence of the newspaper establishments concerned and infringing their fundamental rights. Special leave under Article 136 of the Constitution was granted by this Court in respect of each of them, subject to the question of maintainability of the appeals being open to be urged.
These appeals are also covered by the judgement just delivered by us in Petition No 91 of 1957 and others, and the appellants would be entitled to a declaration in each one of them that the decision of the Wage Board is ultra vires the Working Journalists (Conditions of Service and Miscellaneous, Provisions of Act, 1955 (Act No 45 of 1955), and, therefore, void and inoperative."
Two remedies presently are available to newspaper employees in our country, one under Newspaper Employees (Conditions of Service) Act 1973 and the other under Industrial Relations Act of each of the four Provinces as also Industrial Relations Ordinance 2011. In case of Business Manager, Andhra Printers Ltd and Industrial Tribunal-cum-Labour Court & Another, case reported in 1993 (1) LLJ 562 Andhra Pradesh High Court in India has observed a sunder:-
"If two remedies are available under two special enactments dealing with Labour welfare, it is preferably open to the employee to choose one of the remedies under either of the enactment."
There is, however, an exception to this widely accepted principle, and this has been laid down by Supreme Court of India in case of State of Punjab Versus Labour Court, Jullundur, reported in 1981 (1) LLJ 354 wherein it is provided that if the legislation conferring benefit on the employer or the workman with reference to a specified item or subject matter is considered to be a self-contained, comprehensive and exhaustive legislation laying down a destined procedure for the enforcement of rights, the remedy provided in general terms by another enactment which is non general in nature, cannot be availed of by the workman. He has to work out his remedies within the frame work of the legislation providing for special remedy with respect to the specified subject matter.
Perhaps in due course of time, our Superior Judiciary will examine all these aspects threadbare, and give pronouncements aimed at avoidance of friction amongst various sets of employees in other industrial and commercial establishment in the country and the newspaper employees. Let Labour and Industrial Jurisprudence in this country grow and the ultimate object of framing or promulgation of Labour Laws in the country be achieved in larger national interest.
(Concluded)