ITNE declared Shamsul Islam Naz declared entitled of wages of Special Correspondent in DAWN

Mr. Justice ® Mansoor Ahmad, Chairman, Implementation Tribunal for Newspaper Employees, Islamabad

Case No. IT/P/260/07/C

Shamsul Islam Naz

… VS …

Pakistan Herald Publications (Pvt) Limited,

Karachi.

Present: Mr. Shamsul Islam Naz, Complainan.

Mr. Muhammad Humayun Advocate alongwith Mr. Khurshid Aizid, Manager (HR), Pakistan Herald Publications (Pvt) Limited, Karachi for the management.

JUDGMENT:

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 7^th 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 1^st March, 1983. Thereafter he was promoted to Grade-II and on 2^nd March, 1998, he was upgraded to Grade-I. The applicant has based his case on Paragraph 50 of the 7^th 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 Para 50 that the actual duties performed by an employee in a newspaper establishment shall determine, the post held by him in accordance with the functional duties, notwithstanding the fact that he is designated differently in the newspaper establishment.

2. The applicant based his case on Para 50 of the 7^th 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 3^rd, 4^th, 5^th, 6^th and 7^th 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 Karachi but the applicant obtained stay order from the 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 7^th 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 Labour Court or Tribunal. It was argued on behalf of the management that money due is that which requires no adjudication and if there is any amount disputed which require adjudication, it would be beyond the jurisdiction of this Tribunal to enter into such exercise. In this behalf reference was made to Section 51(1) of repealed Industrial Relations Ordinance, 1969.

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 Labour Court has under sub-section (1) of section 51 of IRO, 1969. Section 13(5) provides that subject to any rules of procedure which may be prescribed, the Tribunal may, for the purpose of determining the category of a newspaper establishment or the grade of a newspaper employee or otherwise hold an inquiry for the purpose of implementing the decision of the Board and in that exercises the same power which are possessed by National Industrial Relation Commission. Plain reading of Section 13(5) shows that this Tribunal enjoys the jurisdiction to determine the grade of an employee of newspaper establishment for the purpose of implementing a wage board award. For determining the grade of an employee an inquiry can be held. The classification of employees of various categories employed in the newspaper establishment is given in Schedule-II of the 7^th Wage Board Award. Similar classification is also given in previous awards. Perusal of the classification shows that various categories of employees are dealt with under Schedule-II. It finds mention of Special Correspondent, Chief Correspondent, Senior Correspondent, Economic Correspondent, Parliamentary Correspondent and many other categories. The “Correspondent” find mentioned in Schedule V where he is given piece rated price rate for his work. Schedule III of the 7^th Wage Board Award deals with the functional definitions of the working journalists. In this Schedule, Special Correspondent is defined as person who is incharge of reporting news of political importance and or who is assigned a special duty in this behalf. On the other hand Correspondent is a person who collects and dispatches the news from any centre other than centre of the newspaper’s publication. Therefore, it follows that Correspondent is to collect the news and dispatch it to the centre whereas Special Correspondent is one who prepares political or any other kind of report for publication. In 7^th Wage Board Award para 50 deals with the grade and sub-clause (3) provides that subject to the fitment formula laid down in the award, the principal duties performed by an employee in a newspaper establishment shall determine the post held by him in accordance with the functional definitions notwithstanding the fact that he is designated differently in the newspaper establishment. It therefore follows that under section 13 (5) read with paragraph 50 of the 7^th Wage Board Award, this Tribunal is vested with the jurisdiction to determine the grade of an employee for implementation of the Wage Board Award. Resultantly the objection raised by the management regarding the jurisdiction of this Tribunal is unfounded and the same is repelled and it is held that this Tribunal is possessed with the jurisdiction to determine the grade of an employee of newspaper establishment for the purpose of implementation of Wage Board Award.

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 Labour Court and not one which is a result of adjudication. This Tribunal is established under the Newspaper Employees (Conditions of Service) Act, 1973 to implement the Wage Board Award. Wage Board Award enumerates salary structure for a particular employee of the newspaper establishment. It is the amount due and the same is required to be paid by the newspaper establishment to a particular employee. The wage board award could not be flouted by the management of any newspaper establishment by assigning a designation to an employee other than that which his functional duties warrant. The employee as asserted, from the date of his appointment, was entitled to the dues of Special Correspondent as he was doing political reporting, commercial reporting and agriculture reporting. He has appended press clippings Ex-A/22 from page 1 to 100 which shows that the reporting was done by the applicant and it covered reporting in various fields. Ex-A/5 to Ex-A/21 are various orders issued from time to time asking the applicant to undertake the reporting of various kinds. The management in the evidence neither questioned these documents nor the version of the applicant and merely raised the plea of jurisdiction and maintainability, therefore, the case set up by the applicant goes unrebutted. From the documents, it is proved that the applicant was performing the duties of a Special Correspondent. As such he was entitled to that grade and accordingly he is entitled to salary structure of Special Correspondent, provided under the various Wage Board Awards. Amount so mentioned in the various Wage Board Award, as the money due is clearly shown in all the Wage Board Awards and the applicant is entitled to receive his salary and the other benefits allowable to him under the Wage Board Award.

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 7^th 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 26^th 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 7^th 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, Karachi was decided. The management was directed to pay the amount as determined by this Tribunal, which has not been made up till now. Mr. Shamsul Islam Naz later filed a separate petition on the premises that he was not a “Correspondent” but by virtue of the duties performed by him, he is entitled to the grade of “Special Correspondent”. It is already held hereinbefore that Mr. Shams ul Islam Naz was performing the duties of a Special Correspondent, therefore, he was found entitled to such grade. As the applicant has already been granted relief in that case in terms that he was found entitled to an arrears of Rs. 7,71,350/- and as his present petition is being accepted, therefore, he would be entitled to wages and arrears as Special Correspondent w.e.f. 03/06/2005. The management would work out the wages of the applicant as Special Correspondent and would make the payment of arrears after adjusting the amount already awarded to the applicant as Correspondent by order dated 26/11/2008.

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 26^th 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 )

Chairman

Islamabad

Thursday the 10^th September, 2009