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Petitioner: DAILY KHABRAIN and others VS Respondent: IQBAL MUSTAFA and others
Court Name: Islamabad High Court Judge(s): Aamer Farooq, Mohsin Akhtar Kayani Title: DAILY KHABRAIN and others vs IQBAL MUSTAFA and others Case No.: I.C.As. Nos. 156, 152, 157 to 162 and 191 of 2016, Writ Petition No. 2761 of 2016 Date of Judgment:2018-09-19 Reported As: PLJ 2020 Islamabad 7 Result: Petition dismissed
JUDGMENT
JUDGMENT Aamer Farooq, J. This judgment shall decide instant appeal as well as the appeals and writ petition mentioned hereinabove, as common questions of law and facts are involved. 2.The appellants, in the appeals and the petitioner in writ petition, are the Organizations/Companies and engaged in the business of printing and publishing newspapers. The private respondents are the employees/ex-employees of the referred newspapers. They filed applications/petitions before the Implementation Tribunal created under the Newspaper Employees (Conditions of Service) Act, 1973 (the Act) for implement ation of Award and payment of wages/salaries as well as arrears thereof. The Tribunal, after seeking reply from the appellants and petitioner , framed issues and decided in favour of the employees. The appellants challenged the order of Chairman, Implementation Tribunal regarding payment of salaries/wages by way of petitions under Article 199 of the Constitution, which were dismissed by the Judge-in-Chambers vide the impugned judgment, hence the appeals. In case of W.P. No.2761-2016, the execution application was filed in which the petitioner (Daily Ausaf), objected to the maintainability thereof, which objection was turned down vide the impugned order . 3. Hafiz Arfat Ahmad Chaudhry , Advocate Supreme Court inter alia contended that Implementation Tribunal was established under Section 12(A) of News paper Employees (Conditions of Service) Act, 1973 for implementing the decision of the Wage Board under Section 11 of the Act. It was contended that the petitions/applications were filed by the ex-employees/private respondents belatedly i.e. after lapse of a considerable period hence were not maintainable. It was also submitted that in the definition of 'employees', as provided in the Act, ex-employees are not included, inasmuch, as the Tribunal has the power to implement orders and make directions as provided in Section 51 of Industrial Relations Ordinance, 1969; that such orders can be passed with respect to a 'workman', whereas ex-employees are not the workmen. In support of his contentions, learned counsel placed reliance on case reported as 'Associated Press of Pakistan Corporation through Managing Director , Islamabad v. Federation of
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Pakistan through Secretary , Ministry of Labour Manpower and Overseas Pakistanis Division, Islamabad and 2 others' (2010 PLC (C.S.) 1003 ). It was also contended that under the Act and the rules framed there-under , no limitation is provided for initiation of proceedings for the recovery of wages/salaries; that Limitation Act, 1908 is a procedural law hence would be applicable where the statute in question is silent. Reliance was placed on cases reported as 'S.M. Junaid v. President of Pakistan' (PLD 1981 Supreme Court 12), 'The Commissioner of Income Tax, Central Zone-B, Karachi v. M.S. Asbestos Cement Industries Limited, Karachi (1993 SCMR 1276 ), 'Dost Muhammad and another . v. Rais Satik and another" (PLD 1962 Quetta 82). It was also contended that where law is silent about the limitation, Limitation Act would 0be applicable. Reliance was placed on case reported as 'Allah Dino and another v . Muhammad Shah and others' (2001 SCMR 286 ). 4. Ms. Shaista Altaf, Advocate adopted the arguments addressed by learned counsel namely Hafiz Arfat Ahmad Chaudhry , Advocate and added that functions and scope of the working of the Tribunal have been elaborately explained by the Supreme Court of Pakistan in case reported as PLD 2012 SC 1 . 5. The learned counsel for the private respondents, inter alia, contended that applications were filed for implementation of Wage Board Award; that the judgment came in the year 2012 therefore only then employees were eligible/entitled to recover the amount; that the judgment impugned before this Court does not suffer from any legal or factual infirmities; that Limitation Act, 1908 does not apply; that Tribunal has been created under Section 12(A) of the Newspaper Employees (Conditions of Service) Act, 1973 and is empowered to order payment of wages. 6. Arguments advanced by learned couns el for the parties have been heard and the documents, placed on record, examined with their able assistance. 7. Instant appeals as well as writ petition raise two questions of law , which are as follows:-- i) Whether an ex-employee of newspa per-company can invoke the jurisdiction of the Tribunal to recover salaries/wages with respect to the period, he was working with the said Company? ii) Whether the Limitation Act, 1908 is applicable to the proceedings before the Implementation Tribunal and if so, what is the period of limitation? 8. Before embarking upon answering these questions, it is appropriate to reproduce the relevant law on the subject. Under Section 12(A) of the Newspaper Employees (Conditions of Service) Act, 1973, the Federal Government may, by notification in the official Gazette, constitute a Tribunal consisting of one or more members to implement the decision of the Board under Section 11 of the Act. Under Section 11 ibid, the decision of the Board shall, within the period of one month from the date of its receipt by the Federal Government, be published in such manner as may be prescribed. In this regard, the decision of the Board/A ward under Section 11(2) of the Act, comes into operation on such date as may be spec ified in the decision and where no date is specified, it shall come into operation on the date of its publication and shall remain in force until it is modified or varied by a later decision of the Board published in the manner provided in subsection (1). 9. The powers of the Tribunal, constituted under Section 12(A) of the Act, are provided in Section 13 of the Act, which read as follows:- "13. (1) Notwithstanding anything contained in Section 64 of the Ordinance, the T ribunal shall have power a) to try an offence punishable under Section 55 of the Ordinance, if the offence relates to failure to implement any decision of the Board; b) of its own motion, or on the application of a party , to withdraw from any Court (except the Supreme Court or a High Court) any application, proceeding or appeal relating to such an offence and dispose of it ; and refer any such application, proceeding or appeal to any such competent Court for disposal. (2) Any Court to which any application, proceeding or appeal is referred under clause (c) of subsection (1) shall enquire into it and dispose, of the case as if the application or appeal had originally been made to it or, as the case may be, the proceeding had originally commenced before it. (3) For the trial of an offence referred to in subsection (I), the [Tribunal] shall follow the same procedure and exercise the same powers as the Commission follows and exercises for the trial of an offence -under the
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Ordinance, and the provisions of the Ordinance, other than the provisions of subsection (9) of Section 22A, thereof, shall so far as may be and with the necessary modifications, apply to such trial. (4) The Tribunal shall have the power to issue a direction, which a Labour Court has under subsection (I) of Section 51 of the Ordinance. (5) Subject to any rules of procedure which may be prescribed, the Tribunal may, for the purpose of determining the category of a newspaper establishment or the grade of a newspaper employ or otherwise holding an inquiry for the purpose of implementing the decision of the Board, exercise the same powers and follow the same procedure, so far as may be and with the necessary modifications, as the Commission may exercise or follow for the purpose of adjudicating an industrial dispute under the Ordinance. (6) The Tribunal may require a newspaper establishment to file a declaration in such form and give such information as the T ribunal may determine or require. Likewise, Section 2 (d) of the Act defines 'newspaper employee', which reads as follows:- "'newspaper employee' means any person employed to do any work in, or in relation to, any newspaper establishment and includes-- i) A whole-time journalist, including an editor , a leader writer , news editor , feature writer; reporter; correspondent, copy tester , cartoonist, news photographer , calligraphist and proof-reader; and ii) A whole-time non-journalist, including a manager , clerk, stenotypist, printing engineering, linotype operator , composer , type-setter , photo studio attendant, printing worker , an accountant and an office peon" Section 2(e) of the Act defines 'newspaper establishment' as follows:- "(e) 'newspaper establishment' means an establishment under the control of any person or body of person, whether incorporated or not, for the production, printing or publication of one or more newspapers or for conducting any news agency or syndicate" Section 2(h) defines 'wages' as provided in the Payment of Wages Act, 1936 and includes any gratuity or other payment declared as wages by the Board . Section 23 of the Act empowers the Federal Government to make rules for carrying out the purpose of the Act by Notification in the Official Gazette. In this behalf, subsections (2) and (gg) of Section 23 of the Act empower the Federal Government' to make rules for the procedure to be followed by the Tribunal in determining categories of newspaper establishment or grades of newspaper employees or holding inquiries for the purpose to implement the decision of the Board.' 10. Pursuant to Section 23 ibid, the Federal Government, published in the Official Gazette through Notification SRO No,620(I)/77, the Implementation Tribunal for Newspaper Employees (Procedure and Functions) Rules, 1977 (the Rules). Rule 7 of the Rules requires the Tribunal to send notice to the newspaper establishment for implementation of the decision of the Wage Board in the prescribed form and if no information is provided within the prescribed time under Rule 8, to pass such orders as it deems appropriate. Under Rule 9 of the Rules, when the declaration form or other information is submitted by a newspaper establishment, a copy thereof along with Form- D, if considered necessary , may be sent to the collective bargaining agent, if any, or to the employees organization of the establishment, and if there be no such organization, to the trade union of the region concerned, for comments. Rule 15 empowers the Tribunal to dispose of individual grievances of a newspaper employee, if his name was not included in the declaration form submitted by the management or if he joins service after declaration form then seeking direction for insertion of his name. Rule 16 provides procedure for any complaint/application filed for recovery of money or wages by an employee from his employer . Under sub-rule (2) of Rule 16 of the Rules, the Tribunal issues notices and the employer can file an application. In this behalf, after hearing the parties, the Tribunal may pass any order as envisaged in subsection (1) of Section 51 read with subsection (4) of Section 13 of the Act. Under Rule 17, the procedure prescribed in Code of Civil Procedure, 1908 may be followed as far as it can be made applicable in the proceedings before the Tribunal. 11. Section 51 of the Industrial Relations Ordinance, 1969 reads as follows:-- "51. Recovery of money due from an employer under a settlement or award.-- (1) Any money due from an employer under a settlement, or uncle: an award or decision of the Arbitrator , Labour Court or Tribunal may be
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recovered as arrears of land revenue or as a public demand, if upon the application of the person entitled to the money , the Labour Court, so directs. (2) Where any workman is entitled to receive from the employer any benefit, under a settlement or under an award or decision of the Arbitrator , Labour Court or Tribunal, which is capable of being computed in terms of money , the amount at which such benefit shall be computed may, subject to the rules made under this Ordinance, be determined and recovered as provided for in subsection (1) and paid' to the workman concerned within a specified date. Termination service-Reinstatement with back benefits ordered- Failure to re-instate. The Labour Court is empowered to direct payment of money value in lieu of any other benefit to which a workman is entitled under such decision. Re-instatement with back wages. The Labour Appellate Tribunal is competent to determine scope and meaning of "Wages", notwithstanding payment of Wages Act. The wages in such cases cover wages from the date of termination of service to the date of order of re-instatement and the period for which such order remains un- complied. The Conversion of certain elements like leave entitlement and statutory bonus into cash, not beyond jurisdiction of T ribunal. High Court holding Section 51 envisaging recovery of any money due from an employer under any settlement, award or decision but not for determination- of any dues claimed against employment. Petitioner contended that petitioner's claim was covered by subsec tion (2) of Section 51 of the I.R.O. which aspect has not been properly appreciated by the learned High Court-He ld, the above contention needs examinat ion. Leave to appeal accordingly granted". 12. The judgment of the Hon'ble Supreme Court of Pakistan titled All Pakistan Newspapers Society and others v. Federation of Pakistan and others (PLD 2012 SC 1), clinched the law on the subject inasmuch as the august Apex Court observed as follows:- "52. Constitutionality of the ITNE was also questioned on behalf of the petitioners, contending that no judicial or quasi-judicial powers are available to the ITNE for recording evidence and effecting recovery of the wages, therefore, the authority so conferred upon the ITNE is against the concept of due process of law, inasmuch as the functions being performed by the ITNE do not specify the irreducible minimum requirement for safe administration of justice as well and is tantamount to setting up a forum, which is much beyond the status of parallel judicial system. Thus, sections 12A and 13 may be declared violative of Article 4 and the Fundamental Right enshrined in Article 9 of the Constitution. On the other hand, the learned counsel for the respond ent contended that the ITNE so far has not awarded conviction nor any such order if passed has been challenge d or brought before this Court, therefore, to the extent of powers of the ITNE under Section 13(1)(a) in the instant proceedings need not to be examined. As far as the remaining powers of the Tribunal are concerned, the same are of administrative nature, meant for the purpose of implementation of the decision of the Board. 54. As far as the powers conferred upon the Tribunal under Section 13(4) of issuing direction which a Labour Court is empowered to issue under Section 51(1) of IRO, 1969 for recovery of wages as arrears of land revenue of public demand, it is an admitted feature of the case that in this behalf the Tribunal is performing function of effecting recovery of the wages which has already been determined by the Board. Such powers, if exercised, cannot be considered contrary to the due process of law or against Article 9 of the Constitution because on the revenue side as well as in banking matters or the Cooperative Societies Act, such powers are available to the authorities mentioned therein as Collectors of Reven ue, therefore, we are of the opinion that the Tribunal cannot be debarred from implementing the Award in absence whereof it would not be possible to implement the Award because the Chairman of the Board becomes functus officio after pronouncement of the Award, which the Board has to do in 180 days of its constitution, and its publi cation in the official gazette. If the Award is not implemented, the whole exercise undertaken in this behalf shall be a futile one because no remedy is available to implement the same. Therefore, under the special circumstances, and keeping in view the background on the basis of which the newspaper employees have been treated as a separate class from the other employees working in different industries would be left with no remedy . It is a cardinal principle of law that where there is a right, there is a remedy".
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The above law can be summed up by stating that under the Act, the Federal Gove rnment is to appoint a Board for determination of wages of employees of newspaper establishments which shall render decision/ award, the newspaper establishment shall pay wages/salaries to its employees according to it. The Award comes into operation from the date it is mentioned therein or, from the date when it is to be published in the Official Gazette and remains in field till it is modified or varied. In order to implement the Wage Board Award, Implementation. Tribunals have been established which obtain requisite information from a Newspaper Establishment regarding its employees so that when an application for wages is made, the fact can be verified whether the employee is working or has worked in the referred establishment. The Tribunal is also empowered to entertain individual grievances of the employees regarding recovery of wages. Under Section 13 ibid the Tribunal, while implementing the Award, or for recovery of wages, may give directions as provided in subsection (1) of Section 51 of Industrial Relations Ordinance, 1969 i.e. to order for recovery of money as arrears of land revenue. The procedure, which is to be adopted by the Tribunal, is provided in The Implementation Tribunal for Newspaper Employees (Procedure and Function), Rules, 1977 and under Rule 17 ibid, the procedure provided in Code of Civil Procedure, 1908, is to be followed as far as possible. Moreover , under sub-rule (2) of Rule 16, if after hearing the parties, the Tribunal is of the view that directions are to be issued for recovery , it has the powers to order so as provided in subsection (1) of Section 51 of 1969 Ordinance. 13. The Award, which is in field and which is the subject matter of the lis, is the 7th Wage Board Award. The referred Award .came into operation on 25.10.2001 and still holds the field. 14. As stated above, various applications were filed by the private respondents in the instant appeals and the writ petition for recovery of arrears of salaries on the basis that the newspaper establis hments have not paid them the same in accordance with 7th Wage Board Award. Undoubtedly , the appellants and the petitioner in writ petition mentioned above, are the newspaper establishments and there is little or no dispute regarding the fact that private respondents are or were working with the referred establishments. 15. An objection has been raised by the appellants and the petitioner regarding entitlement of ex-employees to agitate the matter before the Tribunal' for recovery of their wages. In this behalf, reference has been placed on case reported as 'Associated Press of Pakistan Corporation through Managing Director , Islamabad v. Federation of Pakistan through Secretary , Ministry of Labour Manpower and Overseas Pakistanis Division, Islamabad and 2 others' (2010 PLC (C.S.) 1003 ), wherein this Court observed as follows:- "By reading the above-mentioned provisions together , it can be safely concluded that the Tribunal constituted under Section 12-A of the Act has a very limited jurisdiction . The Tribunal can exercise jurisdiction only with regard to the implementation of the decision of the Wage Board. If the claim of the Newspaper employees is based upon the provisions of sections 4, 5, 6, 7, or 8 of the Newspaper Employees (Conditions of Service) Act, 1973 or the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 or any agreement or settlement or an award other than an award of the Board or upon rights guaranteed under any other law, the employee shall invoke the jurisdiction of the Labour Court or the National Industrial Relations Commission. The jurisdiction of the Tribunal can only be invoked if claim is based on the decision of the Wage Board. In the case in hand, the claim of the respondent Syed Muhammad Ilyas Shah is based on the provision of Section 5 of the Newspaper Employees (Conditions of Service) Act, 1973. The Implementation Tribunal constituted under Section 12-A, therefore, had no jurisdiction in the matter . In the present case, the respondent Syed Muhammad Ilyas Shah having retired, is not covered by, the definition of worker within the meaning of Section 25-A of Industrial Relations Ordinance. He, therefore, had a remedy of filing a civil suit". There is no cavil with the proposition laid down in the said judgment, however , it is not applicable in the facts and circumstances of instant case inasmuch as it was observed in the said judgment that Tribunal has the power to implement the decision of the Wage Board Award only and any claim, not based on the Wage Board Award, is not entertain-able before the Tribunal, such as claims under sections 4, 5, 6, 7 and 8 of the Act. In the instant case, the private respondents are seeking recovery of wages/salaries as determined by the 7th Wage Board Award. The definition of 'wages' is the same as provided in the Payments of Wages Act, 1936 and includes gratuity or other
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payments declared as wages by the Board. The 'employee' is defined in Section 2(d) of the Act and a person who is inter alia a whole-time journalist, including an editor , a leader writer , news editor , feature writer etc. The definition is not exhaustive, as the same is inclusion ary. The basic concept of 'newspaper employee' is any person, employed to do any work in, or in relation to any newspaper establishment. In this behalf, a person, who is working on contract or even -writes articles by way of employment in newspaper establishment or does any other work, is a 'newspaper employee'. Section 2(d)(i) and (2) of the Act list down the job positions which a person can hold being employee of newspaper establishment however as stated above, the job descr iptions are not exhaustive. Any person, who as per the declaration provided by a newspaper establishment regarding its employees, comes within the definition of a 'newspaper employee'. If a person leaves the job and applies to the Tribunal for recovery of wages as individual grievance, he shall be regarded as a 'newspaper employee' for the purposes of Section 2(d) ibid inasmuch as at the relevant time, he was working as an employee. In view of above, though the private respondents are no longer working with the newspaper establishments yet they are still eligible to file for recovery of the amounts as wages. In this behalf, private respondent in writ petition was a column writer , would also be a 'newspaper employee'. 16. No period of limitation is provided in the Act and the Rules framed there-under . In such facts and circumstances, the question is that whether Limitation Act, 1908 would be applicable before the proceedings to the Tribunal. Under similar facts and circumstances, where Section 152 of the Compa nies Ordinance, 1984 provided for ratification of share register but no period of limitation was prescribed, the Hon'ble Lahore High Court in case reported as 'Mrs. Saeeda Mahmood and another v. Anas Munir (Pvt.) Ltd. through Chief Executive and 6 others' ( 2007 CLD 637 ), observed as follows:- "8. Reverting first to tile preliminary objection taken by the respondents that the instant petition is barred by limitation or otherwise barred by flux of time. The objection of limitation as raised has come for adjudication before this Court in the context of the petition under Section 152 of the Companies Ordinance No.XL VII of 1984. This Court in the judgment reported as Talib Hussain v. Babu Muhammad Shafi and 12 others PLD 1987 Lahore 1 has held that:-- '7. This plea is misconceived. The power vesting in Court under Section 152, is to be exercised in cases where legal title of the applicant clear , as in a complicated or doubtful case, summa ry jurisdiction ought not to be exercised. This was so held as early as the year 1877 in the matter of the Diamond Rock Boring Company Ltd. (1877) 2 Q.B.D. 463. It is true that this section gives the Judge wide discretion in deciding matters relating to the rectification of Register of Members but that would mean that each and every controversy raised respecting the shares or right claimed with regard thereto can be considered and determined by the Court. In a case where sale of shares is not complete, remedy under general law, is to be availed of by instituting proper proceedings in the…
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