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Petitioner: NABI BUX KHOSO VS Respondent: PAKISTAN TELEVISION CORPORATION
Court Name: Sindh High Court Judge(s): Ajmal Mian, Fakhruddin H. Shaikh Title: NABI BUX KHOSO vs PAKISTAN TELEVISION CORPORATION Case No.: Civil Petition Nos. D-1481 of 1980 and 678 of 1981 Date of Judgment:1982-03-16 Reported As: PLD 1982 Karachi 725 Result: M.
JUDGMENT
JUDGMENT AIMAL MI-AN, J.-By this common judgment we intend to dispose of C. P. Nos. D-1481/80 and D-678 of 1981 as the petitioners have claimed identical reliefs and since common questions of law are involved. It may be advantageous to quote hereinbelow the relief prayed for in one of the petitions ; which reads as follows;; "(a) direct the respondents to act in accordance with the Act of 1973 and the III Wage Board Award ; and (b) Order that he may be paid all benefits, entitlement in accordance with that and should not be discriminated. (c) Costs of the petition. (d) Any, other relief that this Honourable Court may deem fit and proper." 2. (a) Constitution Petition No. 1481/80.-The brief facts leading to the filing of this petition are that the petitioner is working as the language/news supervisor in the News Department of the respondent continuously since about last 3J years at Karachi Television Station. It has been averred that the duties assigned to the petitioner are that in addition to his normal duties of translating, selecting, shortening and editing news items of all description, the petitioner also assigns and allocates work to the translators and holds charge of Sindhi branch of the News Department of Karachi Television under the News Editor. It has been further averred that the respondent's news department known as the National News Bureau being news agency, collects, gathers and sells the news to the international news medias as also to the Government of Pakistan and that for this it is paid and gets money from the Government of Pakistan and international agencies. It has also been averred that P. T. V. C. Also supplies news films to other countries under Asian Television
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Service which is a service of the respondent. It has been further averred that the petitioner being a newspaper employee working with the news agency is subject to the provisions of the Newspapers Employees (Conditions of Service) Act, 1973, hereinafter referred to as the Act, and by virtue of the decision .Of the Newspaper Employees III Wage Board Award is entitled to the pay of Grade I, which is equivalent to Group VIII of the respondent. It has also been averred that the petitioner is also entitled to all the benefits of residential accommodation, reimbursement of car maintenance allowance, charge, allowance, dearness allowance and other allowances allowed to the employees of Group VIII as per the pro--visions of the said Act and the award and that the decision of the 111 'Wage Board for the Newspaper employees is operative from 15-4-1980, but the 4'respondent has failed to act on it, in spite of a request made by the petitioner. (b) Before admitting the above petition this Court by an order dated 27-10-1980 sent for the comments of the respondent. The above comments have been verified by the respondents on oath. In addition to the above comments the respondent has also filed a counter-affidavit. It has been averred by the respondent that the respondent is a public limited company registered under the Companies Act, 1913 and all the employees in the respondent Corporation are notified and governed by and under the pro--visions of the Pakistan Essential Services Act. It has been further averred that the terms and conditions of the respondent corporation have already been regulated by the specified authority under the Essential Services Act and which after approval of the Federal Government were duly published in the Gazette of Pakistan Extraordinary issue dated 25-5-1978. It has been further averred that the above gazette notification contains terms and conditions of service of the employees of the respondent corporation, which inter alia include, remunerations, wages, allowances, fringe and other benefits and also provided the procedure for settlement of individual grievances etc. It has been also averred that respondent corporation is neither a "newspaper estab--lishment" under the Act nor the terms and conditions of service of the employees of the respondent corporation have been regulated or governed by the Act. It has been further averred that the respondent corporation as a matter of practice engages certain persons on `talent contract basis which talent contract is renewable on a month-to-month basis and that such persons engaged on talent contract basis are not required to report daily or regularly to the respondent corporation, but only as and when required by the respon--dent corporation subject to their own availability. It has also been averred that some of such persons often work daily or for some months or even longer period, but again subject to the requirement and their own avail-- ability, such persons i.e. Talent contract persons, strictly speaking are not employees of the respondent as there is no obligation for continued employ--ment on either side and no relationship of master and servant exists. It has also been averred that the petitioner is engaged on a talent contract basis on month to month basis. It has also been averred that the petition is not maintainable inter alia for the reasons mentioned in the comments. The respondent in its counter- affidavit has reiterated the contents of the comments. The petitioner in his rejoinder reiterated the contents of the petition and has also reiterated that he has been in the employment of the .Petitioner for more than 41 years and is paid monthly wages and that he is not working on daily wages basis. (c) Petition No. 678 of 1981. The relevant facts leading to the filing of the above petition are that the petitioner is working as Sindhi language Translator in the News Department continuously since 5' months at the Karachi Television Station at the time of the filing of the above petition. It has been averred that the duties assigned to the petitioner are translating news items of all description and that the respondent News Department known as the National News Bureau being news agency collects, gathers and sells the news to international news medias and also to the Government of Pakistan. It has also been averred that he being a newspaper employee is entitled to the benefit of the provision of the Act and the III Wage Board Award. It has also been averred that one Akhtar
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Hussain a Translator in Urdu Depart--ment is being paid Rs. 1,000 per month and other benefits, whereas the petitioner is not extended above benefits. The petitioner has also filed a contract dated 2-7-1981, which indicate that be was paid Rs. 600, for the month of June, 1981. (d) The respondent has filed a counter-affidavit, in which the facts men--tioned by it in its comments and the counter affidavit in the above-connected petition have been reiterated. It has been reiterated that the petitioner has been employed on the basis of 'talent contract' and-that he is not obliged to work full time. It has also been averred that Akhtar Hussain is not engaged on 'talent contract', but is a full time contractual employee working as Urdu Translator with the respondent and that he works for 7 hours daily and gets Rs. 950, as contractual employee working on the full time basis. It has also been averred that there are 2 translators in P. T. V. Presently working in Karachi Centre, who are regular permanent employees and because of the volume of the work they are full time and work 7 hours daily. It has been further averred that the above translators are employed for full time for preparation of the news bulletin which is telecast daily on national net work for approximately 30 minutes and that in addition to the said national news telecast, the said translators are also engaged for preparation of the local news in Urdu and are stand-by for the national news and that whereas the petitioner is engaged on 'talent contract' as Sindhi News Translator and is not full time and works for about 3 hours daily in connection with Sindhi news bulletin telecast, which is of 10 minutes duration. It has also been averred that the respondent does not require full time Sindhi translator and the claim of the petitioner to be made a permanent employee is unwarranted and in-justified. 3. (a) In support of the above petitions. Messrs S. A. Wadood and Sabibuddin Ahmed have contended as follows; (i) That the petitioners are newspaper employees, whereas the respon--dent is a newspaper establishment, and, therefore, the petitioners are entitled to the benefits of the Act (i.e. The Newspaper Employees (Conditions of Service) Act, 1973 and of the III Wage Board Award (ii) That the alleged talent contracts got executed by the respondent, cannot override the provisions of the Act or the III Wage Board Award and, therefore, they are not enforceable. (iii) Since the Act is a beneficial enactment for a class of persons, the Court is to place liberal construction as to extend the benefits of the Act to a large class of people, (b) On the other hand Mr. Sharif, learned counsel for the respondent has made following submissions (i) That neither the petitioners are newspaper employees nor the respon--dent is a newspaper establishment and, therefore, the provisions of the Act or the aforesaid award cannot be pressed into service. (ii) That the terms and conditions of service of the respondent's employees are regulated in terms of section 6 of the Essential Services Act, and, therefore, the Act cannot be pressed into service. (iii) That there is no relationship of employer and employee between the petitioners and the respondent, and, therefore, they cannot have any cause of action for the filing of the above petition. 4; (a) In order to appreciate the above contentions of the learned counsel for the parties, it may be pertinent to observe that prior to the enforcement of the Act, the Working Journalist (Conditions of Service) Ordinance, 1960 (hereinafter referred to as the Ordinance) was enforced, which regulated the conditions of service of the Working Journalist. The above Ordinance has been repealed and replaced by the Act in question. It may be advantageous to refer to the definitions of the key terms used in the Ordinance and the Act, namely, Newspaper, Newspaper Employee and Newspaper Establishment, which read as follows; "(i) (b) Ordinance XVI of 1960.--"Newspaper" means any printed periodical work containing public news or comments on public news and include such other class of printed periodical work as may,
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from time to time, be notified in this behalf by the Central Government in the Official Gazette ; (ii) (c) "newspaper employee" mean any working journalist, and includes any other person employed to do any work in, or in relation to, any newspaper establishment ; (iii) (d) "newspaper establishment" means an establishment under the control of any person or body of persons, whether incorporated .Or not, for the production or publication of one or more newspapers or for conducting any news agency or syndicate ;" (i) (c) Act LVIII of 1973.--"Newspaper" means any printed periodical work containing public news or comments on public news and include such other class of printed periodical work as may, from time to time, be notified in this behalf by the Federal Government in the official Gazette (ii) (d) "newspaper employee" means any person employed to do any work in, or 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, cartomist, news photographer, calligraphist and proof reader ; and (ii) a whole-time non-journalist, including a manager, clerk, steno-typist, printing engineer, linotype, operator, composer, type-setter, photo---studio attendant, printing worker, an accountant and an office peon ,; (iii) (e) "newspaper establishment" means an establishment under the control of any person or body of persons, whether incorporated or not, for the production, printing or publication of one or more newspapers or for conducting any news agency or syndicate :" (b) It may be noticed that the definitions of the terms 'newspaper' and `newspaper establishment' are couched in the identical words in .The Ordinance and- the Act, Whereas the definition of the term 'newspaper employees' is more exhaustive-in the Act as compared to the Ordinance inasmuch as by way of explanation in the definition the various categories of the persons of Whole Time Journalist and whole time non journalist have been mentioned, which was not done in the Ordinance. It may further be noticed that 'newspaper' has been defined in the Act as meaning any printed periodical work containing public- news or comments on public news and include such other class of printed periodical work as may from time to time be notified in this behalf by the Federal Government in the official Gazette. Whereas the term 'newspaper employee' means any person employed to do any work in or in relation to any newspaper establish--ment and includes the persons specified hereinabove. Further more, the term 'newspaper' establishment has been defined to means an establishment under the control of any person or body of persons, whether incorporated or not for the production, printing or publication of one or more newspapers or for conducting any news agency or syndicate. The learned counsel for the petitioners have candidly submitted that the respondent does not fall in the first category of the definition of newspaper establishment mentioned in section 2 (b) of the Act but according to them the respondent comes within the ambit of the second category namely, an establishment set up for con--ducting news agency or syndicate. (c) The learned counsel for the petitioners in support of their above contention, namely, that the petitioners being newspaper employees and the respondent being a newspaper establishment are entitled to the benefits of the Act and the III Wage Board Award, it may be observed that they have referred to Corpus Secundum volume 66 section 24 at page 51, and also to the case of Norman v. Century Athletic Club (15 A L R 778), the case of Express News--paper (Private) Ltd. And another v. The Union of India and others (AIR 1958 SC578) the case of the Management of Daily Pratap v. Their Katibs (AIR 1972 SC 1872) and the case of Muhammad Aslam Saleemi v. The Pakistan Television Corporation and another (PLD 1977 Lah. 852). On the other hand Mr. Sharif has, referred to the Words and Phrases legally defined by John B. Saunders Volme III at page 341.
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(i) It may be pertinent to quote hereinbelow the definition of the news association and agencies and organizations given in the above well, reputed work contained in Corpus Jurist Secundum which read as follows; "The business of news associations or agencies is to gather systematically knowledge recent occurrences of interest and to distribute reports thereof ; to collect news or information and furnish reports thereof to the press ; and to disseminate information or news. Such business has become a well-known and important industry which requires a large expenditure of labour and capital. No modern newspaper can afford to be without the facilities offered by a well equipped news association or agency. A news association is not immune from govern--mental regulation. Reporters employed by an association of newspapers for the purpose of gathering news have been held not to be engaged in the business of the association, but to be more employees." (ii) Referring to the case reported in 15 A L R 778, it may be observed that it was an appeal from an order overruling a demurrer filed for (a) decla--ration that the plaintiff lessee under a lease, has the right "to broadcast its boxing bouts by television and (b) an injunction against the defendants, successor in interest to the original lessor from barring the plaintiff from "broadcasting by television its boxing bouts." The facts leading to the filing of the above appeal were that under a lease dated October 1943 between Coliseum Club, 1 N C Incorporation, Lessor, and the plaintiff, lessee granted lease for the premises known as the Coliseum Arina, together with the equipments in the Arina necessary for conducting professional boxing bouts such as bleacher seats, chairs and boxing ring for the exclusive and possession of the plaintiff, of their Arina on Monday night each from 7 p m. To 1 a. m. For a terms of 5 years, which was to commence from April 7, 1946 and was to expire on April 7, 1951 at the rental, namely, 5 % of the gross receipts accruing from all profession boxing bouts contest and exhibition, less all taxes, present or future immediately after the computation of the amount each Monday night with the privilege to the plaintiff to use box office in the afternoon from noon upwards when called by the plaintiff. It was covenanted by the lessor that he would not allow the Arina to be used for staging and promoting profes--sional boxing bouts at any time during the time of the lease. It seems that during 1945 plaintiff "broadcasted boxing bouts over the entire U S under the sponsorship" of a hat manufacturer, for which the plaintiff was receiving sum varying between $ 1000 and $ 1250 each week for 10 consecutive weeks. It also seems that the plaintiff also conducted the World Chairman Boxing Match and exercised the privilege of having sports writers from the leading newspapers of the country telegraph the blow by blow description to the various home papers in the large cities of the United States. It was averred in the memo of appeal that "recently" the art of broadcasting has developed to a point, where, by the improved use of electric pulsations or waves broadcasters not only can transmit sounds but also can transmit sight, that is, transmit visually the fight itself within a limited radius. In short it was averred that the television has become commercially practicable and the plaintiff is entitled to telecast the above bouts, which the defendants declined. It may be advantageous to refer to the discussion on the word 'broadcast' in the above case. "In 1888 the verb "broadcast" was defined "1. To scatter (seed, etc.) abroad with the hand. (Use in 1813 quoted). 2. Fig. To scatter or disseminate widely. " "The . . . Doctrine . . . Has been broadcast." 1829)" Oxford Dictionary. By 1933 it had acquired another more specific meaning : " 3. To disseminate (a message, news, a musical performance, or any audible matter) from a wireless transmitting station to the receiving sets of the listeners. (Uses in 1921, 1922, 1923 and 1924 quoted)." "Oxford Disctionary, 1933 Supplement. Substantially the same literal, figurative and specific meanings are given in more recent dictionaries. Cf. The New Century Dictionary (1936) ; Funk and Wagnalls' New Standard Dictionary (1949) ; Webster's Unabridged Dictionary (1936, 1946) ; Webster's International Dictionary (1943) ; American College Dictionary (1947). Webster's adds . a specific meaning (to plow in a certain way) with reference to agriculture.
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In the American College Dictionary the radio meaning is the one first mentioned. We have been referred to no definition, and have found none, of "broadcast" as meaning to transmit by tele-- vision. The Standard so defines "televise," and "telecast," which in the American College is defined as meaning to broadcast by television. Doubtless the word "broadcast", in its general figurative sense or in its specific radio sense, figuratively used, can, with a limiting contest (e g:, broadcast by television"), be. Applied to television. It may often have been said, with reference to telegraph or newspapers, that news, gossip, a baseball game or a prize-fight was broadcasted, or with reference to a loudspeaker or amplifier, that a speech was broadcasted. The parties to the lease now in question, who were engaged in the boxing industry, not in radio or television science, art or business, did not indulge in figures of speech or in coining new words or new uses of old words. They contracted "specifically" to furnish a reasonably adequate loudspeaker" for announcing fights, to allow "plaintiff" to install Western Union wires direct to the ring," and to allow plaintiff "the privilege of broadcasting the boxing bouts." (iii) with reference to the case reported in AIR 1958 SC 578 at p. 598, it may be stated that the question before the Supreme Court of India was whether the Working Journalist (Conditions of Service) and Misc. Provisions Act XLV of 1955 were ultra vires or intra vires the fundamental rights guaranteed by Indian Constitution under Article 19 (1) (a) Article 19 (1) (g), Article 14 and Article 32. The decision of the Wage Board was also challenged on the various grounds. It was held that the above Act is intra vires the Constitution and the fundamental rights. As regards the wages it was pointed out that the wages can be classified into three categories, viz. (1) the living wages, (2) the fair wages and (3) the minimum wages and that the living wages should enable the male earner to provide for himself and his family not merely the bare essential of food, clothing and shelter but a major of frugal comfort including education for the children, protection against ill health requirement of essential social needs and measure of insurance against the more important mis-- fortunes including old age. It was also observed that the minimum wages could at present be only a bare subsistence wage but according to the concept of minimum wage adopted by the committee on fair wages, a minimum wage. Must provide not merely for the bare subsistence but for the preservation of the efficiency of the worker and for this purpose the minimum wage must also provide for some measure of education, medical requirements and amenities. It was also pointed out that this was a distinction between the bare subsistence or minimum wage and a statutory minimum wage. The former is a wage which could be sufficient to cover the bare physical needs of a worker and his family that is to say which has to be paid to the worker irrespective of the capacity of the industry to pay and the statutory minimum wage I s however is minimum which is prescribed by the statute and it may be higher that the bare subsis--tence or minimum wage providing for some measures of education medical requirement and amenities. It was further observed that the fair wage is a mean between the living wage and the minimum wage. It may be constructive to quote hereinbelow paras. 263 of the Judgment, which reads as follows "(263) 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 satisfac--tory 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 submit--ted by various newspaper establishments, but, since these statements pridta 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
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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 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 employers' representative were taken as rival contentions and the Chairman did his best to arrive at his final decision on the usual basis of give…
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