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Petitioner: ALL PAKISTAN NEWSPAPERS SOCIETYand others VS Respondent: FEDERATION OF PAKISTAN JUDGMENT
Court Name: Supreme Court of Pakistan Judge(s): Iftikhar Muhammad Chaudhry, Ghulam Rabbani, Tariq Pervez Title:ALL PAKISTAN NEWSPAPERS SOCIETYand others vs FEDERATION OF PAKISTAN
JUDGMENT
Reported As: PLJ 2012 SC 316, PLD 2012 Supreme Court 1 Result: Petitions dismissed Judgment JUDGMENT ' IFTIKHAR MUHAMMAD CHAUDHRY, C J.-The petitioners seek leave against two separate judgments of even date, (31st May, 2011) passed by a learned Division Bench of/the High Court of Sindh at Karachi whereby Constitution Petitions Nos.D-1391/2004, D-1151/2007 and D-494/ 2008 filed by them challenging the constitutionality of the Newspaper Employees (Conditions of Service) Act, 1973 [Act No, LVIII of 1973], hereinafter referred to as the "NECOSA", or in the alternative, the constitutionality of the Seventh Wage Award dated 25th October, 2001, and the powers of the Implementation Tribunal for Newspaper Employees, hereinafter referred to as the "ITNE" were dismissed with costs throughout. 2. Brief facts giving rise to the instant petitions are that on 8th July, 2000, the Government of Pakistan constituted the Seventh Wage Board under the NECOSA for the .Purpose of fixing the rates of wages of the newspaper employees. The Wage Board (hereinafter referred to as 'the Board'), headed by Hon'ble Mr. Justice Raja Afrasiab Khan, a former Judge of the Supreme Court of Pakistan as Chairman along with 10 members, five each nominated by the employers and the employees pronounced its Award, published by the Government of Pakistan vide S.R.O. No,744(0/2001, dated 25th October, 2001. The petitioners, All Pakistan Newspapers Society (APNS) and others, felt aggrieved by the Award and made a representation to the Government of Pakistan through Secretary, Information and Media Development and Secretary Labour Manpower and Overseas Pakistanis, but no relief having been provided to them, they filed Constitution Petition No, 35 of 2002 before this Court under Article 184(3) of the Constitution challenging, inter alia, the constitutionality of the NECOSA on the ground of being violative of their Fundamental Rights and ultra vires the
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Constitution, as also the Award being void ab initio and of no legal effect and consequence This Court, vide judgment dated 8th April, 2004 reported as All Pakistan Newspapers Society v. Federation of Pakistan (PLD 2004 SC 600) dismissed the petition as not maintainable and the petitioners were asked to avail remedy before the proper forum, if they so desired. 3. Three sets of the newspaper establishments, namely, APNS & 14 others (petitioners in C.P. 987/2011); Pakistan Heralds Publications & 7 others (petitioners in C.P. 988/2011); and APNS & 4 others (petitioners in C.P. 989/2011) then filed Constitution Petitions Nos.D-1391/2004, D-1151/2007 and D-834/ 2004 under Article 199 of the Constitution before the High Court of Sindh. A learned Division Bench of High Court of Sindh; vide two separate judgments of even date, i,e,, 31st May, 2011 dismissed the said petitions. Aggrieved by the aforesaid judgments of the. High Court of Sindh, the petitioners have filed the instant petitions for leave to appeal under Article 185(3) of the Constitution before this Court. As caveat was filed by the contesting respondents, therefore, notices were issued to the learned Attorney General for Pakistan and official respondents so as to finally dispose of the petitions as the matter was lingering on for the last about ten years. 4. Mr. Abdul Hafeez Pirzada, Sr. ASC for the petitioners has argued that the NECOSA is ultra vires the Constitution and liable to be struck down as a void law, inter alia, on the grounds that it has not provided even a single right of appeal from any adjudicatory or directory orders or actions, interim or final made or issued under it; although the decision of the Board is deemed an Award of the Full Bench of the National Industrial Relations Commission (NIRC), which can be questioned in appeal/review/revision before a larger bench of the NIRC, yet no appeal is provided against it; Chairman of the Board is empowered to hand down edicts and Bills of Attainder, which violates not only Article 19 of the Constitution, but also the fundamental principles of trichotomy of power, access to justice and the independence of the judiciary; the Legislature has completely abdicated its powers as it is excessive delegation of powers to the Wage Board, without any guidelines, in terms of the judgments of this Court. There are various laws already existing on the subject, incorporated in the Act of 1973 itself, namely, (i) The Payment of Wages Act, 1936 [Section 2(h)]; (ii) The Provident Fund Act, 1928 [Section 5(v)]; (iv) The Factories Act, 1934 [Section 6]; (v) The Industrial & Commercial Standing Orders Ordinance, 1968 [Section 17]; (vi) The Industrial Relations Ordinance, 1965 [Section 18]; (vii) The Social Security Ordinance, 1965 [Section 19]; (viii) The Cost of Living Act, 1973; (ix) The Employees Old Age Benefit Act, 1974; (x) The Workers' Participation & Profit Act; and (xi) the Minimum Wages Ordinance, 1969; the Wage Board and the Tribunal, constituted under the Act of 1973 are not judicial or quasi-judicial forums/bodies who are exercising purely executive and administrative functions in a discretionary manner. On merits of the Award, the learned counsel has made the following submissions: -- (1) The newspaper owners are ready to implement the Wage Board Award and what they had done, it was conditional implementation and they are making payments in terms of the 6th Award conditional upon the outcome of the pending proceedings in the courts of law including the intra- court appeals before a Division Bench of the Lahore High Court; (2) The 6th Award, which came in 1995, had inbuilt provisions and a machinery in annual increment of not less than 10% per annum and promotion to higher grades. These increments have been regularly given and promotions have not been withheld, so the workers are presently getting more than 300% of their emoluments; (3) As far as the Seventh Award is concerned, it is to be noted that it is not as if they are totally oblivious because both owners and working journalists cannot exist without each other. This recognition is always there. Ex-gratia payments, i,e, payments without commitment, are being made, especially under the Seventh Award. However, one commitment was made that if and when the Seventh Award would be implemented, these payments, which they are receiving, would be set-off;
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(4) Under the Seventh Award, the newspapers exist in categories and B, i,e, the metropolitan newspapers fall in Category A while the regional papers fall in Category B. In the first category, there are only three metropolitan cities, namely, Karachi, Lahore and Rawalpindi-Islamabad, the publication whereof is listed as Grade A. The basic pay of an Editor Grade employee of a metropolitan newspaper was proposed at Rs,9,400/- with a maximum of Rs,13,900/- and now the said employee with perks and privileges is getting in lacs; (5) Nobody has been denied annual increments and now some of them are getting more than twice or thrice; (6) There are about 40,000 declarations of the newspapers at the moment floating around Pakistan with an initial list of 260 who are the: members and the membership has gone up to 2300 in Pakistan - this process of increment is automatic and it is calculated over a period of 16 years since 1995 and even if it were to be taken at the 'rate of 10% with compound increase over and over, it will not be less than 300% to 400% of what they were getting in 1994, which would be less than 250% of what the Seventh Award has given them; (7) The metropolitan newspapers cannot be judged according to the standard of the Jang, the Recorder or the Dawn or the Nawa-eWaqt who are giants in their own rights, having their own TV Channels; (8) Many of the journalists have now opted out of being newspapers journalists to the electronic media where they are getting. Approximately 2 to 3 times salaries. Voluntarily they are coming and entering into agreements. It is a universal phenomenon all over the world - people always have ingenious minds to find ways how to circumvent the things. Access has been evaded, companies have been found in camel islands. Now here it is happening including in the State organizations is that many of these services, which are to be performed by the employees, are being so stout. Many of newspapers have handed over entire security to many security companies, which PIA and other organizations has done in various fields, such as catering, etc.. As such, when a big chunk of employees are no longer employees of an organization, their responsibilities no longer rest upon the organization. They are no longer entitled to the benefits of the Wage Board Award. Employer's contract is with an independent body to provide those services instead of getting such services directly from the employees. Many companies hire the security agencies, which have contract with many companies and the employees are of security agencies and they are not employees of the companies so this is happening all over Pakistan. The learned counsel has proposed to his clients that they accept in spirit the Seventh Wage Board Award vis-a-vis the working journalists. His advice has been well received at this moment because it is a body, which has to take a decision. And to this extent he is hopeful that they will come back with a positive response. According to him, millions are not being made anywhere except some newspapers, i,e, Jang, Dawn, etc., but for the newspapers having three members staff sitting in Mastung, this is arbitrary. Today, the editor of ,Kohistan is sitting with aside. Daily news papers; Nasim Hijazi's newspaper; and this gentleman along with another outstanding newspaper "Sun" were the first victims of the Wage Board Awards and it closed down. The newspaper Muslim of Agha Murtaza Poya's had to shut down; Taamir was shut down after the 4th Wage Board Award; The Morning News from Karachi, with Khawaja Khairuddin as the Editor was shut down following the 5th Wage Board Award. There is a statement that 190 newspapers have been shut down - what would be about their workers/hawkers? The Government is the biggest advertiser in the country. Since 2001 when this Award came, the Government has not increased the rates of advertisement even by 1 %. 5. Mr. Muhammad Akram Sheikh, learned Sr. ASC stated that he is representing Dastoor Group of the PFUJ whereas Ms. Asma Jehangir would be representing the Working Group, the other component of the PFUJ. He submitted that the decision of the Wage Board is akin to arbitration
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proceedings, which is suggestive of a greater cordiality amongst the employers and the employees. 6. ' Mr. Salman Akram Raja, ASC, who also argued on behalf of Ms. Asma Jehangir, learned counsel for the Working Group of PFUJ submitted that the Wage Board Award has wrongly been characterized as a judicial verdict rendered by a non-judicial forum. Even, it is not akin to arbitration; rather it is in the nature of price fixation of different commodities. The former essentially decides an existing dispute between two parties whereas no dispute was presented before the Board. In the latter case, whenever rates are fixed, it is in the nature of rule making, which is always done for the future. Right of appeal would come in where any individual right is determined one way or the other. Even the function performed by the ITNE is not adjudication or determination of the rights and obligations, but it simply implements the decision of the Board, not to make any further determination. The Tribunal is like the Collector of Customs because he simply applies the law. No trial is pending before the Tribunal, nor any punishment has ever been awarded by it. There is no cause of action and the courts do not entertain challenges where there is no cause of action or where there is no live issue. The impugned powers of the Tribunal have never been invoked or exercised, therefore, there is no occasion to challenge the same. The question is purely academic in nature. As to the discrimination argument, it is established law that there can be a class. The newspaper industry is clearly distinguishable from other industries, e.g. Cement, textile, etc. So, in order to regulate one, all do not have to be regulated. The Constitution leaves that area open to the legislature. This is the only sector referred to as the fourth pillar of the State. As to the bias, the Chairman is not a judge, his function is essentially information gathering and then laying down the rates of wages. Nothing has been brought on the record to show that the finding of the Board is perverse except taking advantage of their own boycotts. As to the excessive delegation, guidelines are there in the statute and it is a ground used most sparingly to strike down a legislation. It is not shown with any specific instances from the Award that the Chairman has acted in excess of the authority vested in him. The ground of occupied field is not available. This happens all the time. General civil law is in place, but special laws, such as banking, cooperative societies etc., creating special procedures for the determination of certain rights are enacted. On the role of the Chairman and Members of the Board, the High Court of Sindh in its judgments has given finding. The language of the law is clear that the divergent parties are represented in equal number and it is the Chairman who decides by putting the casting vote. 7. Mr. Shaukat Aziz Siddiqui, learned ASC supported the arguments advanced by Mr. Salman Akram Raja and added that the representatives of the newspaper establishments, after joining in the consultative process before the pronouncement of the Award, cannot insist upon providing a right of appeal to them. 8. The learned Attorney General for Pakistan supported the constitutionality of the NECOSA and the Wage Award. 9. Keeping in view the importance of the' constitutional issues raised in these petitions, challenging the vires of NECOSA, it is considered appropriate to look into the history of the laws on the subject for the purpose of better understanding of such issues. Initially, the Working Journalists (Conditions of Service) Ordinance, 1960 (hereinafter referred to as "the Ordinance, 1960") was promulgated to regulate certain conditions of service of working journalists and other persons and to provide for constitution of a Wage Board. Section 8 of the Ordinance, 1960 provided that it was within the jurisdiction of the Provincial Government to constitute a. Wage Board. The scope of the Wage. Board was confined to the fixation of wages of working journalists as defined under section 2(f) of the Ordinance. On 30th May, 1960, the First Wage Board was constituted headed by late Mr. Justice Sajjad Ahmad Jan, the then Judge of the High Court, as the Chairman of the Board. The Wage Board gave its decision on 31st December, 1960. The decision of the Wage Board was subject to
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review and revision after five years from the date of its enforcement by an authority that might be set up by the Federal Government. However, instead of five years, the Second Wage Board was constituted on 25th April, 1969. The Board announced its decision on 8th June, 1974, fixing new pay scales of the newspaper employees while maintaining the categorization of the newspapers, periodicals and the news agencies as was already done in the First Wage Board Award. 10. It seems that despite pronouncement of two Wage Boards Awards, it failed to achieve the object as no effective/independent forum was provided for the redressal of the grievances of non- journalist newspaper employees, as a result whereof the newspaper employees had been observing strikes, etc. Thus, after the integration of the Provinces of West Pakistan and East Pakistan, the Provinces were authorized to 'constitute Wage Boards for fixing wages of the newspaper working in the respective Provinces. All the Provinces agreed on the constitution of one Wage Board. The journalists started demanding that the constitution of the Wage Board should be brought under the control of the Federal Government (reference may be made to the Parliamentary Debates).As such, under the circumstances, keeping in view the difficulties highlighted hereinbefore as well as to avoid uncertainty and to provide smooth and peaceful atmosphere, the NECOSA was enacted on 11th August, 1973. The difference in both the enactments is apparent from their titles. Former i,e, the Ordinance was only to regulate the service conditions of working journalists, whereas, the NECOSA was meant for the working journalists as well as other persons employed in the newspaper establishments. It would not be out of context to mention here that the latter enactment, in fact, was in continuation of the Ordinance, 1960 as the former was repealed by it with certain amendments, reenacting sections 2(c), (d) and (e) and sections 9, 10, 11, 12, 12A, 13 and 13A . 11.The Third Wage Board, constituted on 24th January, 1979, headed by Mr. Justice (R) Mohammad Munir Faruquee as its Chairman, initially provided interim relief on 5th August, 1979 and then announced final decision on 25th May, 1980, following the existing scheme of categorization of establishments and the gradation of the employees. The Fourth Wage Board, constituted on 4th October 1984 under the chairmanship of Mr. Just ce Mian Fazle Mahmood, Judge of the Lahore High Court, initially provided interim relief on 10th January, 1985 and then announced the final decision on 28th September, 1985, following the existing scheme of categorization of establishments and the gradation of the employees. The Fifth Wage Board constituted on 20th July, 1989 under the chairmanship of Mr. Justice Agha Ali Haider, Judge of the High Court of Sindh gave its decision on 18th December, 1990. The Sixth Wage Board, headed by Mr. Justice Zia Mahmood Mirza, a former Judge of the Supreme Court of Pakistan was constituted on 23rd October, 1994, granted interim relief on 1st December, 1994 and thereafter announced the final decision on 13th March, 1996. 12. It is informed that the Sixth Wage Board was challenged before the Lahore High Court by filing Writ Petition No, 8926 of 1996, which was dismissed vide judgment dated 12th September, 1997 reported in Pakistan Herald Publications (Private) Ltd. v. Federation of Pakistan (1998 CLC 65). Against the said judgment, I.C.A. No, 859 of 1997 was instituted in the Lahore High Court, which remained pending from 1997 until 16th June, 2010 when it was consigned to record, in terms of the order of the said date, with the observation that "we, therefore, consign this appeal to record. If and when the appellants make arrangements for appropriate representation before this court, they may make any application for re-fixation/revival of this case." Mr. Afzal Siddiqui, learned ASC stated that so far no application has been filed for re-fixation or the revival of the ICA. It would also not be out of context to note that in absence of stay order, reportedly the Sixth Wage Board Award has been implemented. 13. One of the questions agitated by Mr. Abdul Hafeez Pirzada, Senior Advocate Supreme Court is in respect of violation of Article 25 of the Constitution qua classification between the working journalists and non-working journalists given in section 2(d) of the NECOSA. According to him, the
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definition of newspaper employees is unjustified and unreasonable as two distinct classes of persons, i,e,, working and non-working journalists have been combined through it, which does not stand the test of reasonable classification, thus, the NECOSA has been rendered as a bad law and unconstitutional and the same is liable to be struck down on this ground. In this context his arguments are twofold:- (i) There is no reasonable classification under section 2(e) of the NECOSA between working and nonworking journalists. (ii) Except newspaper establishments no other industry has been subjected to any special law for fixing wages of the employees working therein and newspaper industry has been picked up with an object not recognized under the law. 14. Mr. Salman Akram Raja, learned Advocate Supreme Court submitted that the Ordinance of 1960 was promulgated wherein in terms of section 8(1), the Wage Board was empowered to fix rates of wages of the working journalists only, therefore, on promulgation of the NECOSA the Board was empowered to fix wages of the newspaper employees, which includes a whole-time journalist and a whole-time non-journalist to ensure smooth working of the newspaper industry. 15. Learned counsel in the same breath has made a statement that the owners of the newspapers (petitioners) are likely to accept in spirit the Seventh Wage Award vis-a-vis the working journalists. It may be noted that somehow identical statement was also made by him while appearing in the case of. All Pakistan Newspapers Society (PLD 2004 SC 600). When we drew his attention towards the said statement, he did not deny the same, but stated that it was a conditional statement and to elaborate his plea in respect of the same stand, he had gone to the extent of stating that advice so given by him would be considered in a meeting by the newspaper establishments. The representative of the respondents vehemently opposed the statement and stated that the Court may decide the case on merits instead of leaving it to the newspaper establishments. However, from his above stance, prima facie, it is established that the petitioners are ready to accept the Seventh Wage Award as far as the working journalists as defined in section 2(d)(i) ibid. Be that as it may, to deal with this argument, we have to refresh our memory with the background/history/circumstances, which persuaded the legislature to make amendments in the Ordinance of 1960 and without any fear of contradiction that all the Awards given by the Wage Board for both the categories of newspaper employees, i,e,, working journalists and nonworking journalists in terms of section 2(d) of the NECOSA have been implemented. Learned counsel without supporting his arguments on the basis of material stated that some of the allied services, e.g. Printing and publication, security services, catering, etc., have been outsourced, therefore, the persons engaged in those areas could not be treated as the employees of newspaper establishments. As such, the definition of newspaper employee based on irrational classification being violative of Article 25 of the Constitution is not acceptable. There is no cavil with the proposition that all citizens are equal before the law and are entitled to equal protection of law. But, we fail to understand as to how this point is available to the newspaper establishments because they have to plead discrimination under Article 25 of the Constitution if for the sake of argument, they have not been treated equally under the definition of newspaper employees given in section 2(d) of the NECOSA. Apparently, under this provision of the law, categories of working journalists and non-working journalists have been created for argument's sake, newspaper employees could plead discrimination or irrational classification against themselves. However, the petitioners/newspaper establishments legitimately can agitate against the rate of wages fixed by the Wage Board for both the categories of the newspaper employees. 16. In the case of Pakistan Herald Publications (supra) on behalf of a group of owners of newspapers; contention was raised that though there may be some justification for treating the working journalists as a separate class and fix their wages considering the nature of their duties,
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but there was no occasion for giving similar treatment to other employees of the newspaper establishments who are non-working journalists. This contention on their behalf was repelled as under:-- "38. I am unable to agree with the learned counsel. The Act on.-the face of it provides for fixation of wages of all newspaper employees, both journalist And non-journalists. ' The law was framed to ensure payment of wages and salaries of the persons engaged in the newspaper industry as a' whole in recognition of the position that dissemination of news is vital to public interest. It was, therefore, necessary to ensure that all those persons who are engaged in bringing out newspapers should be free from shackle of economic misery and the resultant sense of despondency. The nature of duties being performed by the journalists may be unique and of more importance but it is equally clear that without the participation of other non-journalists employees it is not possible to bring out a newspaper. The legislature, being alive to this…
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