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Petitioner: MESSRS HILAL-E-PAKISTAN PUBLISHERS VS Respondent: SIND LABOUR COURT N0.1, KARACHI
1988 P L C 7
1988 P L C 7
[Karachi High Court]
Before Ajmal Mian and Haider Ali Pirzada, JJ
Messrs HILAL‑E‑PAKISTAN PUBLISHERS
versus
SIND LABOUR COURT N0.1, KARACHI and 2 others
Constitutional Petition No. D‑226 of 1981, decided on 12th October, 1987.
(a) Newspaper Employees (Conditions of Service) Act (LVIII of 1973)‑‑
‑‑Ss. 2(d), 17 & 18‑‑West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), 5.0.10‑B, 11, 12 & 15‑‑Industrial Relations Ordinance (XXIII of 1969), S.25‑A‑ Newspaper employee‑‑Remedy against termination of service‑‑Provisions of Newspaper Employees Act, 1973, held, would apply to "newspaper employee"‑‑Definition of "Newspaper employee" being very wide, would include within its fold whole time journalist and a whole time non- journalist‑‑Provisions of Standing Orders Ordinance 1968, were applicable to every Newspaper establishment other than the provisions contained in S.0.2 & S.0.12(1) & (2) as per S.17 of Act, LVIII of 1973‑‑Editor of a newspaper, however, is excluded from provisions of Ordinance VI of 1968‑‑Standing Orders 10‑B, 11, Cls.6 & 8 of S.0.12 & 15 of Ordinance VI of 1968 would apply only to that newspaper establishment which had fulfilled conditions laid down therein‑‑S.18 of Act LVIII of 1973 envisages provisions of Industrial Relations Ordinance applicable to Newspaper employees as same apply to, or in relation to workmen within meaning of the Ordinance subject to proviso that same would not be applicable to a newspaper employee who was employed mainly in managerial or administrative capacity or who being employed in a supervisory capacity or as editor of newspaper performs, functions mainly of managerial nature‑‑Newspaper employee having six persons under him to assist, could not change his status if nature of his duties was not as managerial or supervisory.
Rehmat Ali v. The Security Papers Ltd. and another P L D 1982 Kar. 913; Daily Hilal‑e‑Pakistan v. Sind Labour Appellate Tribunal and others 1984 P L C 395; Messrs Daily Hilal‑e‑Pakistan v. Sind Labour Appellate Tribunal and other 1985 S C M R 918; 1984 P L C 395 and 1985 S C M R 918 ref.
(b) Industrial Relations Ordinance (XXIII of 1969)‑‑
‑‑‑S.25‑A‑‑Newspaper Employees (Conditions of Service) Act (LVIII of 1973), Ss‑2, 17 & 18‑‑Newspaper employee‑‑Termination of service‑ Remedy‑‑Procedure contained in subsections (1) to (4) of S.25‑A of Industrial Relations Ordinance, 1969, held, was not applicable to a case of termination of service of a newspaper employee but same was governed by subsection (6) of S.25‑A of the Ordinance Application against termination of service was required to be filed within two months from date of such termination‑‑Application filed beyond period of two months would be time‑barred.
Messrs Crescent Sugar Mille Ltd. v. Haji Muhammad and another P L D 1978 Lah.1178; Iftikhar Elahi v. Messrs Butt Engineering Industries and another 1982 S C M R 1207 and Sajjani Abdul Majid and others v. Agricultural Development Bank of Pakistan and others 1984 S C M R 447 and 1982 S C M R 1207 ref.
(c) West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1988)‑‑
‑‑‑S.Os.12(5) & 15‑‑Constitution of Pakistan (1973), Art.199‑--Constitutional relief, grant of‑‑Courts generally do not deny a relief particularly in exercise of constitutional jurisdiction merely on technical ground‑‑Where dictates of justice demanded, Court could grant relief even though same was not prayed for expressly, so long as other side was not taken by surprise and relief arose out of facts pleaded in petition‑‑Where services of employee were terminated without holding any enquiry and without any show‑cause notice in violation of provisions of S.Os.12(5) & 15 of Ordinance VI of 1968, Orders of Labour Court and Labour Appellate Tribunal ordering re‑instatement of such employee, held, could not be interfered with as grant of relief against same would not advance cause of justice but would perpetuate prima facie an illegal order of terminating employee's services‑‑Orders of Labour Tribunal being not in excess of jurisdiction and not suffering from any infirmity would not warrant attraction of constitutional jurisdiction‑‑Constitutional jurisdiction being discretionary, High Court could decline even to set aside an illegal order if doing so would perpetuate injustice‑‑Case being not fit for grant of discretionary relief High Court declined to press into service constitutional jurisdiction.
Nawab Syed Raunaq Ali etc. v. Chief Settlement Commissioner and others P L D 1973 S C 236 ref.
Rasheed A. Akhound for Petitioner. M.L. Shahanifor Respondents. Date of hearing: 30th September, 1987.
JUDGMENT
AJMAL MIAN, J.‑‑The petitioners through this petition have prayed for the following relief: --‑
"It is therefore most respectfully prayed that this Hon'ble Court be pleased to exercise its Constitutional jurisdiction and set aside the orders dated 27‑11‑1980 and 21‑12‑1980 passed by the learned Appellate Tribunal and direct it to hear the appeal and decide it on merits and/or pass any other order which this Hon'ble Court deems fit and proper in the circumstances of the case."
(2) The brief facts leading to the filing of the above petition are that respondent No.3 was appointed as a Commercial Art Editor in the scale of Rs.400 with effect from 12‑5‑1972, and was a Head Calligrapher when his services were terminated on 10‑4‑1976 by a notice dated 27‑5‑1976. Respondent No.3 sent a grievance notice dated 16‑8‑1976 to the petitioners and thereafter filed an application under Section 25‑A of the I.R.O., 1969 on 16‑10‑1976 in the Vth Sind Labour Court, Karachi. The above application was resisted by the present petitioners and inter alia it was averred that the application was, not competent. The learned Labour Court after recording the evidence and hearing of the parties by its order dated 28‑4‑1980 held that the dismissal order dated 10‑4‑1976 (Ex.3‑K) was not in accordance with law and, therefore, set aside the above order and ordered the reinstatement of respondent No.3 with back benefits. The petitioners being aggrieved by the above order had filed Labour Appeal No.394 of 1980, which was dismissed by the learned Sind Labour Appellate Tribunal, Karachi by its order dated 27‑11‑1980 for non‑prosecution as neither the petitioners nor their counsel were present. The petitioners filed an application for restoration of the appeal, in which the ground taken was that the learned counsel for the petitioners had gone to attend a case at High Court Circuit Bench at Sukkur. However, the above application was dismissed on the ground that Mr. Nooruddin Sarki had not filed vakalatnama in the appeal and that in case he wanted to give priority to the cases before the Circuit Bench at Sukkur he should have sent an application for adjournment. It was also observed that Mr. Nooruddin Sarki had also a junior, who had attended the above appeal earlier and he had also not turned up on the above date of dismissal. The learned Sind Labour Appellate Tribunal, Karachi dismissed the above application and held that sufficient ground was not shown. The petitioners being aggrieved by the above orders have filed the present petition and prayed for the above quoted relief.
(3) (a) In support of the above petition Mr. Rasheed A. Akhound, learned counsel for the petitioners, has urged as follows:‑
(i) That the respondent No.3 was not, worker or workman in terms of Section 2 (xxviii) of the I.R.O.
(ii) That by virtue of subsection (6) of section 25‑A of the I.R.O. the respondent No.3's above application under above section 25‑A was time barred as it was not filed within two months from the termination of the employment.
(3)(b) On the other hand Mr. M. L. Shahani, learned counsel for the respondent No.3, has contended as under:‑
(i) That respondent No.3 is a workman in terms of clause (d) of section 2 of the Newspaper Employees (Conditions of Service) Act, 1973.
(ii) That since in the above petition the relief prayed for is against the above two orders of the learned Sind Labour Appellate Tribunal, Karachi, which cannot be said to be in excess of jurisdiction or cannot be said to suffer from any infirmity as to warrant the attraction of Constitutional jurisdiction.
(iii) That the question of limitation was not raised by the petitioners in their written statement, therefore, the same cannot be allowed to be raised and, that petitioners' application for amendment of the petition in which the petitioners sought inclusion of the ground of limitation was dismissed by an order dated 22‑9‑1986 by a Division Bench of this Court and, hence the said order could not be reviewed as to allow the petitioners to urge the above point.
(iv) That even otherwise the respondent No.3's application was within time as held by the learned Sind Labour Court, Karachi.
(4) Adverting to the first submission of Mr. Rasheed A. Akhound that the respondent No. 3 is not a workman in terms of section 2(xxviii), it may be observed that admittedly the respondent No.3 is a journalist and, therefore, the provisions of the Newspaper Employees (Conditions A of Service) Act, 1973, hereinafter referred to as the Act, are applicable to him. It may be stated that clause (d) of section 2 of the Act defines Newspaper Employees 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, steno typist, printing engineer, linotype operator, composer, type‑setter, photo studio attendant, printing worker, an accountant and an office peon."
(5)(a) A perusal of the above clause indicates that the definition of Newspaper Employees is very wide in its scope and it includes a whole time journalist including an editor, a leader writer, news editor, feature writer, reporter, correspondent, copy tester, cartoonist, news B photographer, calligraphist and proof reader and 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.
(5)(b) It may also be pertinent to refer to sections 17 and 18 of the Act as they have direct bearing on the controversy in issue. It may be advantageous to reproduce the same which read as follows: ‑
Sec.17. West Pakistan Ordinance VI of 1968 to apply to newspaper establishment‑‑The provisions of the West Pakistan Industrial and commercial Employment (Standing Orders) Ordinance, 1968 (W.P. Ordinance No. VI of 1968), as in force for the time being, other than those contained in Standing Order 2 and clauses (1) and (2) of Standing Order 12 thereof, shall, subject to the other provisions of this Act, apply to every newspaper establishment wherein ten or more newspaper employees are employed or were employed on any day of the twelve months preceding the coming into force of this Act as if such newspaper establishment were an industrial establishment to which the aforesaid Ordinance has been applied by a notification under clause (c) of subsection (4) of section 1 thereof, and as if a newspaper employee was a workman within the meaning of that Ordinance:
Provided that the provisions of this section shall not apply to a person who is employed as the editor of a newspaper.
Explanation.‑‑For the avoidance of doubt it is hereby declared that provisions of Standing Orders, 1 OB and 11, clauses (6) and (8) of Standing Order 12 and Standing Order 15 of the aforesaid Ordinance shall apply only to a newspaper establishment which fulfils the conditions laid down therein."
Sec.18. Ordinance XXIII of 1969 to apply to newspaper employees.‑‑Subject to the other provisions of this Act, the provisions of the Ordinance shall apply to, or in relation to, newspaper employees, as they apply to, or in relation to workmen within the meaning of the Ordinance:
Provided that nothing in this section applies to a newspaper employee‑‑
(i) who is employed mainly in a managerial or administrative capacity, or
(ii) who, being employed in a supervisory capacity or is the editor of a newspaper, performs either because of the nature of duties attached to his office or by reason of the powers vested in him, functions mainly of a managerial nature."
(6) It may be observed that above quoted section 17 of the Act makes the provisions of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 (hereinafter referred to as the Ordinance) applicable to every newspaper establishment other than the provisions contained in Standing Order 2 and clauses (1) and (2) of Standing Order 12 wherein ten or more newspaper employees are employed or were employed )n any day of the twelve months preceding the coming into force of the Act as if such newspaper establishment were an industrial establishment to which the said Ordinance has been applied by a notification under clause (c) of subsection (4) of section 1 thereof and that if a newspaper employee was a workman within the meaning of that Ordinance, the proviso to above section 17 excludes an editor of newspaper from the provisions of the Ordinance. It may also be pointed out that explanation to the above section clarifies that Standing Orders 10‑B and 11, clauses (6) and (8) of Standing Order 12 and Standing Order 15 of the Ordinance shall apply only to a newspaper establishment which fulfils the conditions laid down therein. It may further be pointed out that the above quoted section 18 of the Act makes the provisions of the I. R. O. applicable to newspaper employees as they apply to or in relation to workmen within the meaning of the I.R.O. subject to the proviso that the same shall not be applicable to a newspaper employee, who is employed mainly in a managerial or administrative capacity or who being employed in a supervisory capacity or is the editor of a newspaper, performs either because of the nature of duties attached to his office or by reason of the powers vested in him, functions mainly of a managerial nature.
(7)(a) In furtherance of the above submission, Mr. Rasheed A. Akhound, has submitted that since respondent No.3 has admitted in his cross‑examination that he was the Head Calligraphist and also admitted that 6 persons were working under him, he was excluded from the ambit of the definition of workman given in section 2 (xxviii) of the I.R.O. and also in section 18 of the Act. In this regard he has referred to the case of Rehmat Ali v. The Security Papers Ltd. and another, P L D 1982 Kar. 913, in which a Division Bench of this Court held that the question, whether a Chowkidar or a Security Guard is covered by the definition of workman given in section 2(i) of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 will depend on the nature of their duties and that if an employer takes action under the provisions of the Ordinance against his employee, the burden of proof is shifted on him to prove that the employee concerned does not fall within the definition of workman given in the said Ordinance.
(7)(b) It may be pertinent to refer to the two cases which pertain to the present petitioners, namely:
(i) Daily Hilal‑e‑Pakistan v. Sind Labour Appellate Tribunal and others, 1984 P L C 395, in which the facts were that the petitioners had terminated the services of respondent No.3, who was working at the relevant time as Officer On Special Duty in Grade I. He filed an application under section 25‑A of the I.R.O., which was allowed by the Labour Court and he was reinstated in service with back benefits. The above order was maintained by the learned Sind Labour Appellate Tribunal. The petitioners filed Constitutional Petition, which was dismissed by this Division Bench and it was held that respondent No.3 was a newspaper employee within the definition given in section 2(d) of the Act and because of section 17 of the Act, the relevant provisions of the Ordinance have been made applicable to the newspaper employees. It was further held that the reference to section 18 of the Act by the learned counsel for the petitioners was but of context;
(ii) M/s. Daily Hilal‑e‑Pakistan v. Sind Labour Appellate Tribunal and others, 1985 S C M R 918. In the above case, the petitioners had filed a petition for leave against the above judgment of the Division Bench reported in 1984 P L C page 395 referred to hereinabove in sub‑para. (i) of above para. 7(b), which wag declined. It may be advantageous to reproduce here in below para 5 of the above judgment which reads as follows: ‑
"Section 17 of the Act provides that the provisions of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, except the provisions of Standing Order No.2 and clause (2) of Standing Order No.21, shall apply to every newspaper establishment where more than 10 persons are employed, as if such a newspaper establishment was an Industrial Establishment (to which the Standing Orders Ordinance applied by virtue of notification under section 1(4)(c) thereof), and as if a newspaper employee, was a workman within the meaning of that Ordinance (i.e. Standing Orders Ordinance).
It would be pertinent to note that section 17 of the Act does not exclude the application of section 12(3) of the Standing Orders Ordinance. That subsection provides that:‑
"The services of a workman shall not be terminated, nor shall a workman be removed, retrenched, discharged or dismissed from service, except by an order in writing which shall explicitly state the reason for the action taken. In case a workman is aggrieved by the termination of his service of removal, retrenchment, discharge or dismissal he may take action in accordance with provisions of section 25‑A of the Industrial Relations Ordinance, 1969 (XXIII of 1969) and thereupon the provisions of the said section shall apply as they apply to the redress of an industrial grievance."
A reading of this provision clearly shows 'that "workman" under the Standing Orders Ordinance is entitled to file a grievance petition under section 25‑A of the Industrial Relations Ordinance, 1969. Since, by virtue of section 17 of the Newspaper Employees (Conditions of Service) Act, a newspaper employee is deemed to be a 'workman' in a n industrial concern under the Standing Orders Ordinance. It follows that he, too, has the right to seek remedy for grievance against the employer under section 25‑A of the Industrial Relations Ordinance, 1965.
Consequently, we hold that the learned lower Courts rightly held that Anwar Sial respondent could file a grievance petition as such. The petition is, therefore, dismissed as having no force."
(8) However, Mr. Rasheed A. Akhound has urged that in the above Supreme Court case, section 18 of the Act was not taken into consideration, and, therefore, the above case of the Supreme Court is not applicable to the present case. In our view, the above contention is devoid of any force. In the above High Court judgment which was upheld by the Supreme Court through the above reported order in 1985 S C M R 918, section 18 of the Act was considered and it was found that the reference to the same was out of context and, therefore, it cannot be urged that no notice of section 18, of the Act was taken. Additionally section 18 excludes the application of the I.R.O. to a newspaper employee, who is employed mainly in a managerial or administrative capacity or who being employed in a supervisory capacity or is the editor of a newspaper, performs either because of the nature of duties attached to his office or by reason of the powers vested in him functions mainly of a managerial nature. In the present case, the petitioners did not lead any evidence to prove the nature of duties of respondent No.3. They have solely relied upon the admission of respondent No.3 in the cross‑examination that he was working as Head Calligraphist and 6 persons were working under him and that he was drawing Rs.1532/‑ p.m. as salary. The learned Labour Court has recorded the finding of fact to hat the nature of duties of respondent No.3 was more manual as he was using mostly his hands as a Head Calligraphist. The above finding of fact is neither perverse nor contrary to record. This is a based o n the statement of the respondent No.3. We are also inclined to take view that in the absence of any evidence produced by the petitioner s as to the nature of duties of respondent No.3, the work of Head Calligraphist involves predominantly manual work and not managerial or supervisory work as to exclude from the application of the provision of the I.R.O. The mere fact that the respondent No.3 had 6 persons under him to assist, in our view, could not change his status if the nature of duties are such which are not managerial or supervisory.
(9) We are inclined to hold that for the purpose of determining I the question, whether petitioners could file an application under section 25‑A of I.R.O., the relevant provisions are section 2(d) and section 18 of the Act and not section 2(xxviii) of I.R.O., as the provisions of the I.R.O. have been made applicable by section 18 of the Act subject to the restrictions contained therein to newspaper employees as defined in section 2(d) of the Act.
(10) As regards the second submission of Mr. Rasheed A. Akhound, learned counsel for the petitioners, that the respondent No.3 had not filed an application under section 25‑A of the I.R.O. within two months from the date of dismissal, it may be observed that he has referred to subsection (6) of section 25‑A which was substituted by Act XXIX of 1973 which provided as follows:‑
"Notwithstanding anything contained in subsections (1) to (4) any worker aggrieved by the termination of his employment as a result of retrenchment, dismissal, discharge, lay‑off, lock‑out, or otherwise not earlier than two months preceding the commencement of the Industrial Relations (Amendment) Ordinance, 1972, may, within a period of two months from the commencement of the Industrial Relations (Amendment) Act, 1973, or the termination of the employment, whichever is later, either himself or through his Shop Steward or Trade Union, take the matter directly to a Junior Labour Court having juris diction in the area in which the establishment is situated."
The above subsection (6) was deleted by Ordinance IX of 1977. But since the above application under section 25‑A of the I.R.O. was filed while above subsection (6) was in the field, we may consider the above question. In this regard, it may be pertinent to mention that admitted position is that respondent No.3's services were terminated on 10‑4‑1976 without any enquiry on the ground of misconduct for allegedly making a fellow newspaper employee to drink urine on 10‑4‑1976. According to the finding of the learned Labour Court the complaint containing the above allegation is dated 16‑4‑1976, whereas the termination order is of 10‑4‑1976. Furthermore, the Labour Court has observed as follows on the question of limitation:‑
"I agree with the learned representative of the applicant that the first intimation which the applicant received regarding the termination of his services was through letter dated 27‑5‑1976 (Exh.2‑E) which was in reply to Exh. 2‑D. This Exh. 2‑E was received by the applicant on 29‑5‑1976 as is apparent from such endorsement on Exh.2‑E itself. The period of limitation must therefore be counted from 29‑5‑1976. The grievance notice could be served by applicant within three months of this date, i.e. up to 29‑8‑1976 and was served on the respondents vide Ad Receipt Exh.2‑H. Not only the service of the grievance notice is proved but I find that the service of the grievance notice was also not denied by the respondents. Para. 8 of the reply statement (at page 4 thereof) is the reply to para 10 of application under section 25‑A and in this para. 8 the respondents evaded the assertion of the applicant regarding the, service of the notice. Grievance notice Exh.2‑G, was therefore within time since this notice was not replied by the respondents, the applicant could wait for 15 days and file application under section 25‑A within two months, i.e., after 1i months of 16‑8‑1976. Since the application under section 15‑A was filed within this period I hold it within time.
I may also observe that the dismissal order Exh.3‑K is said to have been sent to applicant on his residential address and Exh.3‑L is the Photostat copy of the registered letter. The applicant denied that the address given on Exh.3‑L was his. According to the respondents' witness (Exh.6) the address given on Exh.3‑L was the…
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