Case No. IT/P/260/07/C
Shamsul Islam Naz
… VS …
Present: Mr. Shamsul Islam Naz, Complainan.
Mr. Muhammad Humayun Advocate alongwith Mr. Khurshid Aizid, Manager (HR), Pakistan Herald Publications (Pvt) Limited,
Mr. Shamsul Islam Naz, Petitioner has filed the present application under Section 13(4) of the Newspaper Employees (Conditions of Service) Act, 1973, seeking the recovery of an amount of Rs. 29,20,121.21 in terms of the Wage Board Awards notified from time to time. The case of the petitioner is that under various Wage Board Awards notified from time to time and under the 7th Wage Board Award which is currently operative, the applicant should have been designated as “Special Correspondent” in view of the duties which he performed. The case set up by the applicant is that his designation as “Correspondent” was not in accordance with the duties and functions which were assigned to him and it was mandatory under the various Wage Board Awards that the grade had to be assigned to him on the basis of functions and duties given to him. On the plain of facts, it is pointed out that the applicant was appointed as Correspondent in Grade-III on 1st March, 1983. Thereafter he was promoted to Grade-II and on 2nd March, 1998, he was upgraded to Grade-I. The applicant has based his case on Paragraph 50 of the 7th Wage Board Award and other corresponding paragraphs in various Wage Board Awards wherein it was provided that under Section 3 of the Newspaper Employees (Conditions of Service) Act, 1973, the employer at the time of appointment shall issue the appointment letter indicating the designation and the duties which the employees will be called upon to perform and that will determine the grade in which he shall automatically be placed. It was also provided in
2. The applicant based his case on Para 50 of the 7th Wage Board Award and averred that in his appointment letter his duties and functions are not defined and in view of the functions and duties assigned to him, he was Special Correspondent and he was entitled to the benefits enuring with that status. The applicant therefore sought recovery of the difference of amount which according to him was due ho him under 3rd, 4th, 5th, 6th and 7th Wage Board Award. In all, he claimed the recovery of an amount of Rs. 29,20,121.21 as an amount due to him against the respondent organization. Controverting the averment of the applicant, the respondent organization submitted in its reply that the applicant was appointed as “Correspondent”. He performed duties as such and was paid due emoluments and nothing is outstanding against the management. It was also stated that the applicant was transferred from
Faisalabad to head office but the applicant obtained stay order from the Karachi Labour Court, Faisalabad. That order was challenged by the respondent before the Lahore High Court in appeal L.A. NO. 43/07 and the Honourable High Court in terms of the judgment dated 17/06/2008 allowed the appeal and upheld the transfer order but the applicant did not join thereafter and initiated litigation with the respondent management. The present application is also one of such effort. On the legal plain it was stated that the present application is not maintainable as there was no sum due to the applicant in terms of section 51 of the IRO, 1969 and this Tribunal has no jurisdiction because the claim of the applicant require adjudication which is not in the domain of this Tribunal. It was also stated that the application is frivolous and malafide.
3. From the pleading of the parties, issues were framed and parties were allowed to produce evidence. The applicant appeared in person and recorded his statement and produced documents Ex-A/1 to Ex-A/54. It was stated by the applicant that after his appointment, he was given various assignments by the management which inter alia included political reporting, commercial reporting, election reporting, agricultural reporting and reporting in other fields as well. He produced Ex-A/5 to Ex-A/21, various orders which were issued from time to time relating to his assignments. He has produced clippings containing pages 1 to 100, as Ex-A/22 which shows duties performed by the applicant. The applicant has also worked out the chart showing the emoluments due to him, which are Ex-A/23 to Ex-A/29. He also submitted applications to the management for implementation of the 7th Wage Board Award which are Ex-A/30 to Ex-A/34. Other documents were also produced which throw light on the nature of duties performed by the applicant.
4. Learned Counsel appearing for the management vehemently argued that this Tribunal lacks jurisdiction to determine the grade of the applicant. The second argument was that even if this Tribunal comes to conclusion that it can hold an inquiry to determine the grade of an employee, the instant application filed by the applicant was not maintainable because there is no money due to the applicant under a settlement or under an award or decision of
5. Dealing with the two fold arguments of the management, the provision of Newspaper Employees (Conditions of Service) Act, 1973 were examined. Under Section 13(4) of the Act, this Tribunal vests with the power to issue direction which a
6. Second legal objection raised by the management is that the amount due is that which found mention in the award or settlement or a decision of the
7. Under various Wage Board Awards, the applicant has worked out money due. This calculation was not rebutted by the management and only plea advanced was that the applicant never worked as Special Correspondent, therefore, he was not entitled to. As it is held on the basis of the functional duties, the applicant performed the duties of a Special Correspondent, therefore, he is entitled to receive the emoluments as such. The chart appended with the petition was examined in the light of the Wage Board Awards No. 3, 4, 5, 6 and 7.
8. The applicant sought the payment of salary according to various wage board awards w.e.f. 01/03/1983, whereas the present application was filed on 03/06/2008. An important question of limitation would be relevant in the present case as the applicant during entire period of service did not represent before any judicial forum to seek redressal of his grievances relating to his wages in accordance with the various wage board awards. The applicant in substance is seeking recovery of wages of previous years. Article 102 of the Limitation Act, 1908 would be applicable in this case and the limitation envisaged and prescribed under the law is a period of three years from the date when such wages accrue due. It is submitted by the applicant that he has recurring cause of action, therefore no limitation is applicable and in that he has relied on the case law and referred:-
i) 1975 SCMR 485 (2);
ii) 1987 PLC 575;
iii) 2000 PLC 67;
iv) 2005 PLC 1439;
v) 2005 PLC (C.S.) 1095;
vi) 2005 PLC (C.S.) 143; and
vii) 2006 PLC (C.S.) 1124
All the cases relied by the applicant are distinguishable. For the purpose of recovery of wages, the determining date for the purpose of cause of action would be when the wages accrue due and the limitation would start running from that date. Non payment of wages in subsequent point of time would not make the cause of action recurring, because the law has already determined a terminus quo for the purpose of limitation and that was when the wage accrue due. The applicant even if is found to be entitled to the wages as Special Correspondent in the previous years, he can only get his due wages of last three years from the date of his application. Resultantly the applicant is entitled to get his wages as Special Correspondent w.e.f. 03/06/2005 and rest of his claim is barred by time.
9. Case under section 13 (6) of the Newspaper Employees (Conditions of Service) Act, 1973 was initiated suo-motu for the implementation of 7th Wage Board Award. In the said case, the management was directed to file the declaration and list of employees. The list of employees was filed by the management and finally the case was decided vide judgment of this Tribunal dated 26th November, 2008. In the list furnished by the management, Mr. Shams ul Islam Naz was shown as “Correspondent” and amount of Rs. 7,71,315/- was found due to him as a salary w.e.f. 01/07/2000 to 31/03/2008. This calculation was made in the light of wage structure notified in the 7th Wage Board Award, treating him as “Correspondent”, as was given in the list. Through the judgment dated 26/11/2008, the case of 512 working employees of Daily Dawn,
10. The management is directed to make the payment of amount due to the applicant as “Special Correspondent” w.e.f. 03/06/2005 after adjusting the amount already determined vide order dated 26th November, 2008 within sixty days failing which proceedings for recovery for the amount due shall be initiated in accordance with law.
( Justice (R) Mansoor Ahmed )
Thursday the 10th September, 2009