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Petitioner: ALL PAKISTAN NEWSPAPER SOCIETY and others VS Respondent: FEDERATION OF PAKISTAN JUDGMENT
Court Name: Supreme Court of Pakistan Judge(s): Falak Sher, Iftikhar Muhammad Chaudhry, Sardar Muhammad Raza Khan Title:ALL PAKISTAN NEWSPAPER SOCIETY and others vs FEDERATION OF PAKISTAN
JUDGMENT
Reported As: PLJ 2004 SC 742 Result: Petition dismissed. Judgment JUDGMENT Iftikhar Muhammad Chaudhry, J.--Above noted petition has been filed by the petitioners under Article 184(3) of the Constitution of Islamic Republic of Pakistan [hereinafter referred to as the Constitution']. 2. Essential facts which have given rise to instant petition are that on 8th July 2000, Government of Pakistan constituted the 7th Wage Board under the Newspapers Employees (Condition of Service) Act (LVIII of 1973) [hereinafter referred to as the Act, 1973'], for the purpose of fixing the rates of wages of the newspaper employees. The Wage Board (hereinafter referred to as "the Board"), comprising of 10 members, five each representing the employer and employees and the Chairman Mr. Justice Raja Afrasiab Khan (Retd.) Judge of the Supreme Court of Pakistan, pronounced its award, published by the Government of Pakistan vide SRO No, 744(1)/2001 dated 25th October 2001. 3. It is stated that petitioners represented to the Government of Pakistan through Secretary, Information and Media Development and Secretary Labour Manpower and Overseas Pakistanis for the redressal of their grievances against the award but no relief was given to them. Thus petitioners invoked the original jurisdiction of this Court and filed instant petition, inter alia, challenging the constitutionality of the Newspapers Employees (Conditions of Service) Act, 1973 being violative of the fundamental rights of the petitioners and ultra vires the Constitution, and the award being void ab initio and of no legal effect and consequences. 4. The Registrar of the Court vide following order declined to entertain the petition: "Take notice that the above cited Constitution Petition filed by you is not entertainable as it relates to the grievance of a section of the people and not the whole of the nation, as such, it does not
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come within the ambit of 'Article 184(3) of the Constitution of Islamic Republic of Pakistan, 1973 as held by this Court vide its judgment titled as Syed Zulfiqar Mehdi vs. P.I.A. & another, reported as 1998 SCM R 793. This petition is, therefore, returned herewith in original alongwith its paper books. Sd/- ASSISTANT REGISTRAR (CIVIL) FOR REGISTRAR" Against the aforesaid order of the Registrar, petitioners preferred Civil Misc. Appeal No, 23/2002 before a Learned Single Judge in Chambers under Order V, Rule 3 of the Supreme Court Rules, 1980 [herein after referred to as 'the Rules, 1980] which has been accepted vide order dated 16th July 2003 which reads as under thus: "In view of the rule laid down in the judgment dated 9.10.1996 passed in Constitutional Petition No, 30 of 1996, Civil Aviation Authority, Islamabad and others versus Union of Civil Aviation Employees and another (PLD 1997 SC 781) and number of other cases relied upon by the learned counsel for the appellant, this civil misc. appeal is accepted, order dated 8.7.2002 of the Registrar set-aside and the office is directed to entertain the Constitutional petition, register it and fix before the Bench." 5. In compliance of the aforesaid order, office fixed the petition before the Court. 6. On 23rd January 2003 during the pendency of petition, Mr. Muhammad Akram Sheikh, Sr. ASC for respondents objected on the maintainability of the petition. The objection has been recorded as under: "It has been seriously argued that this petition under Article 184(3) of the Constitution of Islamic Republic of Pakistan is not maintainable. Mr. Makhdoom Ali Khan, Attorney General for Pakistan is present and accepts the Notice to address this Court on the question of maintainability of this petition. Relist on 25th of February, 2003." 7. Learned counsel for the petitioners was asked to first of all address arguments on the maintainability of the petition in view of above objection. Thus he got recorded following formulations for consideration:-- (a) The order dated 16th July 2002 passed by Learned Single Judge accepting C. Misc. Appeal No, 23 of 2002 filed by petitioners is final thus cannot be re-opened. (b) The expression `entertainable' as it has been used in the order dated 16th July 2002 is synonymous with the word `maintainable', and it has always been considered interchangeably by this Court as well as also by the Indian Supreme Court in context of corresponding provisions of the Article of Indian Constitution to Article 184(3) of the Constitution. (c) Article 184(3) of the Constitution confers special original jurisdiction on the Court notwithstanding the fact that identical relief could be granted by the High Court in exercise of the jurisdiction under Article 199 of the Constitution, subject the condition laid down therein, therefore, in view of the principle that no provision of the Constitution is redundant, and Court is bound to give effect to its each part, instead of non-suiting the petitioners after a period of two years, from the date of filing of petition, it may be disposed of on merits in the interest of justice. (d)It is the consistent practice of the judicial forums in Pakistan that. the Courts always extend their jurisdiction instead of curtailing the same on technical grounds, therefore, instant petition be disposed of on merits. (e)That to avoid the multiplicity of the litigation between the parties before the different High Courts of the country, where a good number of the Constitution Petitions under Article 199 of the Constitution would be filed by the owners of 256 Newspapers, Magazines, Journals, etc., if instant petition is not found competent for hearing which besides increasing the pendency of the cases would also involve huge expenditure, therefore, to provide inexpensive remedy to both the sides, in the interest of justice, petition may be heard on merits.
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8. Mr. Muhammad Akram Sheikh, learned Sr. ASC in reply to above arguments contended as follows:-- (i) The question of entertaining the petition by Mr. Justice Munir A. Sheikh (as then he was) vide order dated 16th July 2003 is not final because in the Supreme Court, according to Rules, cases are not heard by the learned Judges sitting singly like the High Courts and particularly in respect of the petition under Article 184(3) of the Constitution, a Bench of at least two Hon'ble Judges hear the petition in terms of Order XXV, Rule 7 of the Rules, 1980, therefore, order dated 14th July 2003 passed by a learned Judge in Chambers in C. Misc. A. at the best, could be construed as an order directing the petition to be placed before the Court for decision according to law. (ii) The expression `entertainable' and 'maintainable' are not interchangeable because the Court comprising at least two Hon'ble Judges can dismiss such petition at any stage. Reliance was placed by him on State Life Insurance Employees Federation v. Federal Government of Pakistan (1994 CLC (CS) 964). 9. It is to be noted that as per the definition of expression 'entertain' by Mitra's Legal & Commercial Dictionary (page 270) and Words & Phrases by Surendra Malik (page 232) are identical i,e, 'entertainment means `proceed to consider tin merits' or 'adjudicate upon', whereas the expression `entertain' has also been defined in Hidustan Commrl. Bank v. Punnu Sahu (AIR 1970 SC 1384) and Pakistan Steel Peoples Workers' Union v. Registrar of Trade Unions, Karachi (1992 PLC 715) referred to by the learned counsel for petitioners according to which, it means not merely filing of an application or institution of proceedings but would mean adjudicated upon or proceed to consider on merits. In these judgments such definition has been assigned to the expression entertain with reference to the specific provision of the law discussed therein. Therefore, for the purpose of instant case, expression 'entertain' would be defined with reference to the Rules, 1980, which regulate the proceedings of this Court. Learned counsel for petitioners stated that under Order V, Rule 1(6) the Rules of 1980, the Registrar exercises the powers of the Court in respect of the matters enumerated therein, which also includes the powers of registration of petitions, appeals, suits and other matters but the Registrar vide order dated 8th July 2002 declined to register the petition as such against this order, Misc. appeal was filed before the Judge in the Chambers under Order V, Rule 3 of the Rules 1980. The learned Judge after having taken into consideration the order passed by this Court in Constitution Petition No, 30 of 1996 and the judgment in case of Civil Aviation Authority v. Union of Civil Aviation Employees (PFD 1997 SC 781) and in number of other cases relied upon by the petitioners' counsel, accepted the civil misc. petition and set aside the order of the Registrar dated 8th July 2002 with the direction to the office to entertain the petition, register it and fix before the Bench. Therefore, according to him, this order has achieved finality, therefore, question of maintainability of the petition is not open to debate. It is to be seen that under the scheme of the Rules 1980, there are two types of provisions; one which deals in respect of filing of ordinary petitions for leave to appeals, etc.; and secondly there are some of the provisions which are meant for dealing of special types of cases like, application for enforcement of fundamental rights under Article 184(3) of the Constitution, Habeas Corpus, Mandamus, Prohibition, Certiorari, Quo Warranto, etc. Order XXV of the Rules 1980. Rule 7 of Order XXV provides that such applications shall be heard by a Bench consisting of not less than two Hon'ble Judges of the Court, therefore, with all humility at our command, we are of the considered opinion that the learned Single Judge while disposing of appeal filed before him, either Under Order V, Rule 3 or under Order XVII, Rule 5 of the Rules 1980, cannot decide the question of maintainability of a petition. Thus with reference to these rules in the instant case, expression 'entertain' would be defined in its ordinary dictionary meanings i,e, 'to receive'. This definition seems to be more appropriate because the learned Single Judge in Chamber has directed the office 'to entertain the
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Constitution Petition, register it and fix before the bench'. Needless to observe that the Hon'ble Judges responsible to administer justice are fully aware about the relevant provisions of law on the subject and unless it is proved otherwise, it would be deemed that orders have been passed in accordance with law. Since Order XXV, Rule 7 of the Rules 1980 is mandatory in nature, therefore, learned Single Judge was fully aware that entertainability of petition under Article 184(3) of the Constitution can only be decided by a bench not less then two members of this Court. Thus he accepted the Misc. Appeal only to the extent of registering the petition by using the word 'register it'. It is to be noted that if a petition has been admitted for hearing even in accordance with rules by the requisite number of the Hon'ble Judges, the same can also be dismissed subsequently as it had happened in the judgment relied upon by the learned counsel Mr. Muhammad Akram Sheikh, Sr. ASC i,e, State Life Insurance Employees Federation (ibid), wherein the petition has been admitted but it was dismissed subsequently on coming to the conclusion that the petitioner has failed to establish that any fundamental rights under Chapter 1, Part II of the Constitution has been violated, therefore, the argument raised in this behalf by the learned counsel for petitioners being devoid of force is repelled and it is held that question of maintainability of petition under Article 184(3) of the Constitution is open for consideration. 10. Learned counsel for petitioners made another attempt to dislodge the impression that the question of maintainability of the petition is not open for consideration on the premises that at this belated stage after a period of about two years from the date of institution of petition, it would not be in the interest of justice to non-suit the petitioners on a technical ground, particularly in view of the fact that when the respondents remained indolent as they did not raise any objection on maintainability of the petition at the earliest. Mr. Muhammad Akram Sheikh, learned Sr. ASC for respondents seriously controverted to this argument of the petitioners' counsel and pointed out that after institution of the petition, it was not enlisted for hearing for a considerable time. However, on the first effective date of hearing i,e, 23rd January 2003, he being counsel of one of the respondent raised objection on its maintainability. Later on case could not proceed for one or the other reason, which too cannot be attributable to the respondents, however, no sooner the hearing of the petition commenced, they raised the objection on its maintainability. Similar was the position of the official respondent because while submitting concise statement they also took exception to the maintainability of the petition. A perusal of case file transpired that effective hearing of the case took place on 23rd January 2003, when learned counsel for respondents specifically objected on the maintainability of the petition. Relevant contents of the order have already been reproduced in the para supra. Subsequent thereto the Federation of Pakistan i,e, Respondent No, 1 in its concise statement categorically raised the objection about the maintainability of the petition. Surprisingly thereafter effective hearing of the case could not take place. However, on 23rd February 2004, when the matter came up for hearing on the pointation of the respondents' counsel, learned counsel for petitioners was called upon to address the Court on the question of maintainability of the petition. Therefore, the contention raised by the learned counsel being contrary to the facts available on record needs no serious consideration. However, it may be noted that delay caused by any of the parties in raising objection on the jurisdiction of the Court including the maintainability of the proceedings, ipso facto, do not constitute a ground to overrule the objection and assume the jurisdiction without determining whether essential conditions have been fulfilled by the claimant to persuade the Court that it has jurisdiction to decide the case. Needless to observe that in the administration of justice determination of the jurisdiction by the Court seized with the matter is one of the important element because if justice has been provided basing upon corum non judice orders, it would have no legal sanction behind it. Thus with reference to instant case jurisdiction under Article 184(3) of
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the Constitution has to be exercised subject to establishing by the petitioners that question of public importance with reference to the enforcement of fundamental rights has been made out. If both these essential components are missing, then the Court would not assume the jurisdiction. 11. Learned counsel for petitioners contended that to avoid the multiplicity of the litigation and to provide inexpensive remedy, entertaining of the instant petition would advance cause of justice. In support of his contention he has cited definition of 'Class or representative action' from Black's Law Dictionary (page 249) according to which "a class action provides a means by which, where a large group of persons are interested in a matter, one or more may sue or be sued as representative of the class without needing to join every member of the class". On the question of providing inexpensive remedy, he referred the case of Benazir Bhutto v. Federation of Pakistan (PLD 1988 SC 416) wherein it has been observed that "it is obvious from the language of Article 184(3) that it provides a direct access to the highest judicial forum in the country for the enforcement of Fundamental Rights. It caters for an expeditious and inexpensive remedy for the protection of Fundamental Rights from Legislative and Executive interference". As far as the propositions discussed in this authority are concerned, there is no cavil with the same. However, before applying stated procedural principles, it is all the more necessary to look whether proof has been provided that proceedings have been instituted validly, after having fulfilling the conditions precedent for assuming jurisdiction by the Court and no other adequate remedy is available. Undoubtedly, without establishing the essential conditions mentioned in Article 184(3) of the Constitution and furnishing convincing evidence that no other adequate remedy is available the argument raised by the learned counsel for petitioners seems to be premature. In this behalf, however, reference to the case of Abdur Rehman v. Haji Mir Ahmed Khan (PLD 1983 SC 21) would not be out of context, wherein it has been held that "the High Court can exercise the Constitutional jurisdiction only on proof of non-availability of adequate remedy". In this report the petitioner had a right of appeal having wide scope and he instead of availing the same, invoked the Constitutional jurisdictional of the High Court, therefore, in this context the principle highlighted above was pronounced. 12. Learned counsel for petitioners then contended that:-- (1) Instant petition involves the question of fundamental right of the public under Article 19 of the Constitution because freedom of press is a people's personal right rather then the proprietary rights of petitioners and if it is not protected from the exorbitant financial burdens being imposed upon the petitioners through 7th Wage Board Award, except the few amongst the petitioners others would be forced to close down their business, resulting in dissemination of information to the general public. (2) The freedom of press is not only the right of the petitioners but it is the right -of the people of Pakistan, therefore, question of public importance is involved in the instant petition, thus petition is maintainable under the law. (3) An oppressive law i,e, the Act, 1973 has been promulgated by the Government to keep its hold upon the press because one man has been authorized to pronounce Wage Award by delegating him excessive authority against which no right of appeal, revision and review is provided, therefore, it being a law ultra vires the Constitution deserves to be struck down. 13. On the other hand learned counsel appearing for respondents contended that:-- (a)Instant petition does not involve enforcement of any of fundamental rights of the petitioners, therefore, the same is not - maintainable nor it give rise to the question of public importance, as such, deserves to be dismissed. (b) A larger Bench of this Court comprising of five Hon'ble Judges in Constitution Petition No, 3-K of 1999 decided on 14th December 1993, has held that Wage Board Award hardly constitutes a question of public importance, therefore, instant petition is not maintainable under Article 184(3) of the Constitution.
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(c) The controversy between the parties relates to dispute between the two groups i,e, employer and employees, arising out of the 7th Wage Board Award, therefore, no question of curtailing the freedom of press arises. (d) The vires of the Act, 1973 is under consideration in ICA arising out of the judgment of the Lahore High Court, in W.P. No, 8926/1996, declaring that 6th Wage Board Award does not suffer from any legal infirmity, therefore, till its decision, in view of the judgment in the case of Manzoor Elahi v. Federation of Pakistan (PLD 1975 SC 66) the question of Constitutional status of the Act, 1983 may be postponed. (e) Besides it, on account of non-providing remedy of appeal, revision or review, a law cannot be struck down. 14. Before dilating upon the contentions of the parties' counsel, summarized herein above, we consider it appropriate to record the statement of Mr. Abdul Hafeez Pirzada, learned Sr. ASC, made by him at the bar that 'petitioners/owners of the newspapers are ready and willing to implement the 7th Wage Board Award to the extent of working journalists. As far.as the implementation of the award qua the non-working journalists including Qasid, Peons, Malis, etc. are concerned, it is not implementable because their wages have been increased arbitrarily/discriminately qua the employees enjoying equal status working in the other organizations". This statement has narrow down the scope of the controversy between the parties. Although learned counsel for respondents particularly Mr. Muhammad Akram Sheikh, Sr. ASC has pointed out that there is no distinction between the working and non-working journalists, as Section 2(d) of the Act, 1973 only defines the newspapers employees, therefore, the award has to be applied to all the newspapers employees with out any discrimination. Be that as it may, on the basis of the statement so made by the learned counsel for petitioners, it can safely be held that the award is valid for all intent and purposes to the extent of working journalists, therefore, it does not give rise to question of public importance involving fundamental rights of the petitioner to their extent. In addition to above, it may be seen that this Court in its earlier decision in Constitution Petition No, 3-K of 1990, dated 14th December 1993, while dismissing a petition under Article 184(3) of the Constitution against interim 5th Award, pronounced by the five Hon'ble Judges has held that the controversy does not give rise to the question of public importance. For convenience relevant para from the judgment is reproduced herein below: ..... Petitioners Nos, 2 to 9, who are owners and publishers of newspapers, magazines and other publications while Petitioner No, 1 is their representative body, have raised the questions whether the Act is violative of fundamental rights and whether the award is "violative of the Constitution and in excess of jurisdiction of the Wage Board". These questions in relevant controversy can hardly be questions of public importance. Furthermore, challenge to the validity of the award depends on investigation into disputed questions of fact, claims and counter-claims of the parties involving appreciation of voluminous evidence on record. Such investigation under Article 184(3) may not be permissible particularly when questions raised are not of public importance." 15.Learned counsel for petitioners contended that the above judgment was pronounced in a petition which has become infructous, therefore, the observations made therein are obiter dicta as such have no binding force on present proceedings. 16.In the Constitution Petition No, 3-K of 1990 which has been disposed of on 14th December 1994 by means of above judgment, initially interim award pounced by 5th Wage Board was challenged before this Court under Article 184(3) of the Constitution. During its pendency, the Wage Board announced the final award, therefore, learned counsel appearing for petitioners submitted an application seeking amendment, which was declined and by means of above order petition as a whole was dismissed. As such question for consideration would be as to whether observation recorded by a larger Bench of this Court is an obiter dicta or it is the ratio decidendi of the
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judgment? 17.Mr. Muhammad Akram Sheikh, learned counsel appearing for respondents to resolve the controversy relied upon Fundamental Law of Pakistan by A.K. Brohi (page 609) to substantiate that judgment of five Hon'ble Judges has got binding effect on present proceedings being the ratio decidendi of the judgment. He referred to the following principles from the above Book:-- "How to Determine the Ratio Decidendi of a case. We would, to begin with, notice some of the important definitions that have been offered by prominent English Jurists, of terms like Ratio decidendi and Obiter Dicta with a view to discovering the rules by resort to which the binding authority of a judicial precedent and its application to the facts of a given case could be determined: 1. "The underlying principles of a judicial decision", says Stephen in his Commentaries on the Laws of England, Vol. 1, p. II, "which forms its authoritative element for the future, is termed Ratio Decidendi. It is constrasted with an Obiter Dictum, or that part of a judgment which consists of the expression of the Judge's opinion on a point of law which is not directly raised by the issue between the litigants. Obiter Dicta are often valuable, though not binding, statement of the law." 2. Sir John Salmond in his Jurisprudence says (at p. 1910): "A precedent, therefore, is a judicial decision which contains in itself a principle. The underlying…
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