In a significant judgment, the Allahabad High Court holds the closure in 1993 of the Lucknow edition of the Navbharat Times and the retrenchment of its 92 employees to be illegal.
"THE right to work is embedded in Article 21 of the Constitution. Depriving one's right to work without the procedure established by the law smacks of feudalistic tyranny and amounts to exploitation of the workmen." With these remarks a Bench of the Allahabad High Court in Lucknow allowed on June 6 a writ petition filed by the Times Karmchari Sabha challenging the closure of the Lucknow-based Hindi newspaper Navbharat Times and the retrenchment of its 92 employees in 1993 (Frontline, July 30, 1993). The Bench comprised Justices S.H.A. Raza and R.D. Shukla.
Holding the closure and retrenchment to be illegal, the court ruled that the employees were entitled to receive from Janasevak Kariyalaya Ltd. (JSK) - now known as Vasundra Printers Ltd. - which owned the newspaper their full salary and other benefits they were getting "until today and thereafter regularly, till their services are terminated according to law". The judgment said: "If some of the workmen, whose services were purported to be terminated following the closure of the newspaper, have received retrenchment compensation, or any other amount from the company, the amount of back wages will be set off against such retrenchment compensation and if after such setting off any balance of retrenchment compensation still remains, it will be adjusted by deducting 20 per cent from the periodic salary payable to such workmen."
The judgment came at the end of a prolonged legal battle in which the labour union, which represented the 92 retrenched employees, including journalists, was pitted against the newspaper group Bennett, Coleman & Co. The group had a major stake in the Navbharat Times, Lucknow edition, held through a "licensee" JSK, which published The Economic Times from Kolkata.
JSK had questioned the maintainability of the petition since the company did not fall within the meaning of "State" as understood under Article 226 of the Constitution, which relates to the High Courts' power to entertain writ petitions. The court held that the powers of High Courts had been considerably enlarged over the years and a writ petition could now be filed against "any person or authority", if that "person or authority" failed to perform his/its duties and obligations. Such duty, obligation or function might not necessarily be imposed by statute, the court said, and added that Article 226 had such sweep and amplitude that the court could issue a writ to any person or authority whenever it found that injustice had been done to an aggrieved person or body of persons and that the arm of justice could reach out to any wronged person to provide relief. The court held that Article 226(1), which deals with writs, would apply to JSK and that the company was bound to follow the statutory provisions of the Industrial Disputes Act (IDA).
The court expressed the view that if an employer is given the absolute right to close down an industry, such unbridled and unfettered power would not only affect the tempo of industrial production and productivity but also effect large-scale unemployment, which might result in breach of peace or disturbance of public order and industrial unrest. The court ruled that Section 25-O of the IDA, which imposed reasonable restrictions on the exercise of the right to close down a business, was not violative of Article 19(1)(g) of the Constitution, which guarantees the right to practise any profession or to carry on any occupation, trade or business.
The court found that the Navbharat Times management had not applied in the prescribed manner for permission from the appropriate authority at least 90 days before the date on which the closure was to become effective, as required under Section 25-O of the IDA. The management did not indicate to the appropriate authority any reason for the intended closure and did not serve copies of the application seeking permission from the government for closure to the workers' representatives in the prescribed manner. The State government, which has the quasi-judicial power to hold an inquiry whenever such applications for closure are submitted by employers, could not hold the inquiry and had no occasion to consider the relevant facts to grant or refuse permission for closure.
The Navbharat Times management had neither given the workers three months' notice nor paid wages for the period of notice before the retrenchment, as required under Section 25-N of the IDA. The section also requires that the management obtain prior permission from the State government for the retrenchment of workers. The management did not comply with this requirement either.
One of the reasons JSK gave for closing down the edition of the Hindi language newspaper was that the application of the Bachawat Wage Tribunal Award with respect to the Navbharat Times, a decision upheld by the Supreme Court, had imposed an unbearable burden on the organisation and therefore the publication would suffer further losses and would not be able to survive. The reference was to the Wage Tribunal's decision to treat the Lucknow edition of the Navbharat Times as part of the Mumbai-based Bennett, Coleman & Co., the proprietors of The Times of India group of publications. Since the collective turnover of the group exceeded Rs.100 crores, its employees were to be paid wages at the rate applicable to the highest slab fixed.
The High Court did not accept JSK's assertion in view of the specific bar under Section 16-A of the Working Journalists Act, inserted by Act 36 of 1981. Under this section, no employer in relation to a newspaper establishment shall, by reason of his liability for payment of wages to newspaper employees at the rates specified in an order of the Central government to enforce the recommendations of a Wage Board (or Tribunal), dismiss, discharge or retrench any newspaper employee.
During the pendency of the writ petition in the High Court, 59 out of the 92 retrenched employees had been paid gratuity and an ex-gratia payment as "full and final settlement". The court held that these 59 workers might have agreed to receive a certain amount in a compulsive situation, on account of misery and poverty, which had been thrust on them by the management, but such an agreement could not be assumed to be a "settlement" because it was not in accordance with the provisions of the IDA and the rules framed thereunder. The court also dismissed JSK's writ petition against the proceedings initiated by the Deputy Labour Commissioner, Lucknow, for the recovery of 13 days' wages of workers retrenched on June 18, 1993.
Sharat Pradhan, president of the petitioner-union, said: "What the employees have received after a prolonged and painful struggle of eight years will go down in the history of newspaper organisations in India. The legal issues settled in the judgment will go a long way in restraining employers from closing shop just to suit their whims."
Pradhan recalled that during the course of 10 years, many retrenched workers were left with no choice but to sell or mortgage their personal belongings in order to make both ends meet. "It is painful to recall the suicide by one of the employees who could not face abject poverty. Another died as he could not afford medical treatment. How the rest survived is amazing - by working as newspaper hawkers, doing errands and taking up petty jobs. Perhaps it was only one thing that kept them going - their conviction that truth will prevail," he said.
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