Working Journalist (Conditions of Service) Ordinance 1960 wa
promulgated by the Federal Government published in the Gazette of Pakistan on 24-05-1960. Based on this Ordinance, Working Journalist (Wage Board) Rules 1960 were framed which provided for establishment of a Board which can issue summons to any person as a witness in the course of any enquiry by the Board.
In terms of these rules the Board can fix rates of wages separately for each discipline of Working Journalist referred to in Section 2 of the said Ordinance. The decision of the board fixing rates of wages are to be published in the Official Gazette. Subsequently on 11-08-1973 Newspaper Employees (Conditions of Service) Act 1973 was promulgated which repealed Working Journalist (Conditions of Service) Ordinance 1960.
The salient features of this Newspaper Employees (Conditions of Service) Act 1973 are establishment of Wage Board by the federal government for fixing rates of wages in respect of newspaper employees in accordane with provisions of this act. The word Newspaper has been defined as any printed, periodical work containing public news or comment and the words Newspaper Employee include full-time Journalist and Non-Journalist and any person employed to do any work in, or in relation to any Newspaper whereas Newspaper Establishment has been defined as establishment under the control of any person for production, printing, publication of one or more Newspaper or for conducting any News Agency or Syndicate.
Section 4 of the Act provides for mode of termination of employment of Newspaper Employees through good cause shown. Notice in writing and or payment of wage in lieu thereof is provided. Keeping in view the length of service of the newspaper employees one month notice is to be given in relation to Newspaper Employees having service between three months but less than two years, two months notice is to be given in case the length of service of Newspaper Employee is more than two years but less than three years service, and three months notice or salary in lieu of notice is payable if the length of service of Newspaper Employee is more than three years. Needless to mention, this provision is contrary to Standing Orders 12 of Industrial and Commercial Employment (Standing Orders) Ordinance 1968 which provides for one month notice or one month's salary in lieu of notice irrespective of any length of service once workman is more than three months of service and is in employment of permanent nature. The definition of term 'Newspaper Employee' as given in Section 2 (d) covers Editor, Writer etc including Manager and is again in conflict with the definition of 'workman' as defined in Section 2 (xxxiii) of IRO 2011 at present in force through our the country. This Law is creating friction, heart burn and discontentment amongst commercial and industrial establishment workmen and even non-workman due to this discrimination as regards notice or pay in lieu thereof between Newspaper employee and others in the industrial and commercial establishment.
Section 5 of the said Newspaper Employees (Conditions of Service) Act 1973 provides for the establishment of a Provident Fund Scheme under Provident Fund Act 1925 whereas in the Industrial and Commercial Employment (Standing Orders) Ordinance 1968 no such mandatory provision of law exists. Leaves with pay are covered under Section 7 of the said Act 1973 which are more in quantum as compared to the Leave with Pay provided for in the Industrial and Commercial Employment (Standing Orders) Ordinance 1968 applicable both to the industrial establishment under the Factories Act 1934 and or the commercial establishment. Section 8 provides for provision of grant of medical care in relation to the Newspaper Industry whereas the Provincial Employees Social Security Ordinance 1965 is applicable to industrial or commercial establishment provided the name of such an establishment is notified in the Provincial Gazette. Section 9 of the Act 1973 provides for establishment of Wage Board for fixing rates of the wages in respect of Newspaper Employees, whereas under IRO 1969, IRO 2002, IRA 2008, IRA 2010 and IRO 2011, the Labour Courts in the provinces and the NIRC at the Centre are to act as the Labour Court which alone are entitled to award fixation of wage based on industrial dispute so raised by the CBA or the employer in their respective establishments. Such Unions should necessarily be the CBA in the respective separate establishment. In terms of Section 10 of the Newspaper Employees (Conditions of Service) Act 1973, fixation of wage by the Wage Board is to be based taking into consideration cost of living, prevalent rate of wages of comparable employment circumstances relating to the Newspaper Industry in different regions of the country and other circumstances which the Board may deem relevant. The Wage Board can fix rates of wages for time work and for piecework. The decision of the board is to be communicated to the Federal Government and is to be published in the Gazette.
The most significant provision in the Newspaper Employees (Conditions of Service) Act 1973 is to the effect that the decision of the Wage Board in terms of Section 12 is to be deemed to be the Award of the Full Bench of the NIRC. Needless to mention that even under Section 38 D of Industrial Relations Ordinance 1969, a Wage Commission set up for Banks' employees gave award which was deemed to be an Award of Full Bench of the NIRC. This NIRC is pure and simple a Judicial Forum and the Full Bench of the said Commission consisting of Full Time Members of the Commission and or such other Members as are coopted as provided for under the SRO presently in force. Section 12 A provides that the Implementation Tribunal be constituted comprising of one or more member which shall ensure that the decision of the Wage Board is implemented. Punishments are provided in case of non-compliance of such Wage Board decision. The provision for appeal has been provided in terms of Section 13A whereby if that a sentence takes place, imposed by the Implementation Tribunal, appeal can be filed before Supreme Court of Pakistan. This Implementation Tribunal shall consist of Chairman and Benches of Tribunal containing of one or more member of the Tribunal. Section 15 of the Newspaper Employees (Conditions of Service) Act 1973 provides that the decision of the Wage Board is binding on all employers in relation to the Newspaper establishment. Every Newspaper employee is entitled to be paid wages at the rate not less than the rate fixed by the Wage Board. The said Wage Board has even been vested with the power to fix interim rates of wage on the pattern vested with the Labour Court to grant interim Award within the meaning and contemplation of law. Section 17 of the said Act 1973 provides that the provision of Industrial and Commercial Employment (Standing Orders) Ordinance 1968 shall also apply to every Newspaper establishment. Section 19 of the Act provides that the provision of this Act shall have effect notwithstanding anything inconsistent contained in any other law or in the terms of any Award, Agreement, or Contract of Service made before or after coming into force of this Act. Proviso of Section 19 provides that even benefits under the West Pakistan Employees Social Security Ordinance 1965 shall be applicable to Newspaper Employees if they are more beneficial than those entitled to in this Act. It is also provided that Newspaper Employees shall be entitled to more favourable benefits in respect of matter notwithstanding what he is entitled to receive under this Act.
Section 19 (2) of Newspaper Employees (Conditions of Service) Act 1973 provides that Newspaper Employees will be entitled to enter into agreement with the employer for granting him rights or privileges in respect of any matters more favourable than those which he is otherwise entitled under this Act. In other words, provision of Industrial Relations Law, various Laws like IRO 1969, IRO 2002, IRA 2008 and IRO 2011 onwards to date, are equally applicable and Newspaper Employees are eligible to become Member of Trade Unions, to be certified as Collective Bargaining Agent and the Union are legally entitled to raise industrial dispute over and above benefits notwithstanding those conferred to the Newspaper Employees under the Newspaper Employees (Conditions of Service) Act 1973 by way of the Wage Board Award.
Section 23 of the said Act provides for framing of Rules by the Federal Government and those Rules provide for hours of work, holidays, earned leave, casual leave and sick leave, establishment of Provident Fund, constitution of Board of Trustees etc are all to be framed in relation to the Wage Board. Needless to mention under the Industrial and Commercial Employment (Standing Orders) Ordinance 1968 which is applicable on all industrial and commercial establishments, there is only statutory provision for Gratuity or which Gratuity is not payable in case of dismissal from service. As against this the Act 1973 provides that if there is Provident Fund Scheme, then Provident Fund amount including equal amount contributed by the employer will be payable to the employee even in case of employee having committed act of misconduct and for which he is dismissed from service. Invariably under Industrial and Commercial Employment (Standing Orders) Ordinance 1968 the only retirement benefit is Gratuity which is not payable on dismissal but in terms of Newspaper Employees (Conditions of Service) Act 1973, the Provident Fund has been made statutory compulsory which means and include that even in case of acts of misconduct for which the Newspaper Employee is liable to be dismissed not only his own contribution but equal contribution made by the employer is payable. This again is leading to friction, heart burn and feeling of deprivation amongst industrial and commercial employees/workmen.
That analysis of the aforesaid salient features of the Newspaper Employees (Conditions of Service) Act 1973 have been made with a view to analysing that the provisions under this Act, exclusively in relation to Newspaper employees are more beneficial than in relation to benefits and terms and conditions of service as provided under Industrial and Commercial Employment (Standing Orders) Ordinance 1968 which apply to the rest of industrial and commercial establishments in the country including the Newspaper establishment, and or any other Labour Legislation. In original IRO 1969, in relation to banks there used to be a Wage Commission, but subsequently this provision was deleted and presently in the field of Labour Legislation in the country barring the Newspaper Industry there is no other industry where the Wage Boards are constituted to frame wages and other terms and conditions and still employees have application of all other Labour Laws and right to form Union and raise industrial dispute separately. Nothing prevents them to claim more by way of application of provisions of the Industrial Relations Law presently in force.
That based on the Newspaper Employees (Conditions of Service) Act 1973, the Federal Government constituted 7th Wage Board, which had given its Award. The constitutional validity of the Newspaper Employees (Conditions of Service) Act 1973 was challenged in general and its Award dated 25-10-2001 as also the powers of Implementation Tribunal was unsuccessfully challenged by the All Pakistan Newspapers Society and others in C.P. No 987 to 989 of 2011 which has been dismissed by the Supreme Court of Pakistan on 19-10-2011. In other words, the Newspaper Employees (Conditions of Service) Act 1973 is intra vires the Constitution and the Wage Board Award has been correctly given and is to remain in the field until it is modified or varied by subsequent decision of the Wage Board.
In India, the Working Journalist (Conditions of Service and Miscellaneous Provisions) Act 1955 was promulgated which was restricted and confined to the Working Journalist but through subsequent amendments, the said Law was even extended to non-journalists. Apparently in the case of the Independent Newspapers Corporation (Pvt) Limited vs Chairman Fourth Wage Board and the Implementation Tribunal for Newspapers Employees, Government of Pakistan, Islamabad (1993 SCMR 1533), Supreme Court of Pakistan have observed that the purpose of Newspaper Employees (Conditions of Service) Act 1973 has been introduced for the "betterment of financial conditions of persons employed in the Newspaper establishments." By this token of reasoning all employed persons in all other industrial commercial establishments should have Wage Boards separately for insurance companies, textiles, sugar, cement, pharmaceutical companies and banks in the private sector to name few of the industry.
Article 3 of the Constitution of Islamic Republic of Pakistan 1973 provides that State shall ensure elimination of all forms of exploitation. Article 4 of the Constitution provides protection of law to individuals which are to be provided in accordance with the law. Article 10-A of the Constitution provides for right to fair trial for the purpose of determination of civil rights and obligation of the citizen of this country. Article 18 of the Constitution provides that every citizen shall have the right to enter upon any lawful profession or occupation and to conduct any lawful business. Article 25 of the Constitution provides that all citizens of Pakistan are equal before the law and are entitled to equal protection of law, the only exception being the special provision for protection for women and children. In the case of Pakistan Herald Publication (Pvt) Ltd Vs Federation of Pakistan (1998 CLC 65) the High Court appreciated the contention of Minto Senior Advocate of Supreme Court of Pakistan who had appeared on behalf of Working Journalists and pleaded for grant of better conditions of service to all employees of this industry as this extension to non journalists if not extended, would create friction amongst two sets of employees and will not be congenial to better relations inter ce. On this touchstone, it will have to be examined if this principle will have to be extended and applied to ensure congenial and or better relations and avoidance of friction amongst all employees in all other industrial and commercial establishments, and there should be separate law in relation to bank employees, insurance companies employees, textile, cement sugar, pharmaceutical, or fertiliser industry for presently no such condition as is applicable in relation to the Newspaper Industry exists anywhere in this country except in relation to the Newspapers Industry. Should avoidance and creation of friction amongst different sets of employees, which is not conducive to better industrial relations be restricted and confined to only Newspaper Industry, or the same be extended to all segments of workman in all industrial or commercial establishments through out the country. If this is not extended will provision of Article 25 of Constitution of Pakistan which provides Equality of Citizen and being equal before Law and are to be entitled to equal protection of law be infringed and will not identical protection like one conferred by Newspaper Employees (Conditions of Service) Act 1973 be not made applicable across the Board keeping in view Article 25 of the Constitution in relation to all employees covered under Industrial and Commercial Employment throughout this country be enforced. Will not the proverbial phrase of "sacred cow" not be attracted if only Newspaper industry is singled out to the exclusion of all industrial and commercial establishments and all other industry in this country with a Wage Award. No doubt, the Media and Press played a pivotal role in the restoration of a free and independent Judiciary in this country on and after 2007. However, between 1973 upto 2007 no such accolade can be given to the Press. If in 1973, the Act was framed it was not with a view to avoid friction or improve Labour-Management Relations or improve the financial conditions of newspaper employees but with a view of appeasing the Media or Press and keeping them on their side of the fence.
The Supreme Court of Pakistan in Civil Petition No 987 to 989/2011 in a very learned well considered decision, authored by the Chief Justice Iftikhar Muhammad Chaudhry after hearing the learned Senior Advocates of Supreme Court of Pakistan has come to the conclusion after referring to the structure of the Wage Board and foreign decisions specially those of Australia that the Wage Boards are not Judicial Tribunals but Subsidiary Legislative Bodies deriving their authority from the State Legislatures.
On this assumption it has been held that wage fixation by the Wage Board is a mere legislative function and not judicial or quasi-judicial act or an act of executive and administrative function. With all respect and humility it may be observed that neither in Australia, nor Newspaper Labour Law or Working Journalist (Conditions of Service and Miscellaneous Provisions) Act 1955 in India nowhere provides that the decision given by the Wage Board is to be treated as an Award of a judicial nature as given by the National Industrial Relations Commission which function in Pakistan in more than one Province and at the national level and is judicial in nature. No doubt reference to Section 12 of Newspaper Employees (Conditions of Service) Act 1973 was made by the Senior Advocates of the Supreme Court of Pakistan before the Apex Court to the effect that the decision of the Board shall be deemed to be an Award of the Full Bench of the NIRC. It need not be over-emphasised that Section 12 of the said Act 1973 specifically provided that all the provisions of the Ordinance namely IRO 1969 are applicable in relation to an Award of the Full Bench of the NIRC including Section 51 and 55 of the IRO 1969 and shall apply to the decision given by the Wage Board, constituted under the Act of 1973.
Section 51 of IRO 1969 provides for recovery of money due from the employer under an Award given either by the Arbitrator, Labour Court or the Labour Appellate Tribunal. The very fact that this peculiar provision of Section 12 in the Act of 1973 which is more or less akin to Section 38 (D) of IRO 1969 which provides for establishment of Wage Commission for Bank employees makes the decision of the Wage Board a Judicial Institution like the NIRC which is not a Legislative Body but a Judicial Forum. If the Wage Board comprises of representative of employers and workers, it is not something of a special feature.
It is recalled that at one time Three Members Industrial Courts were presided over under the Industrial Disputes Ordinance 1969 by District and Session Judges and or the sitting or retired Judge of the High Court and comprise one representative of the workmen and other of the employer whose role was advisory as in the case of the Wage Board, yet the Courts including the apex court in the case of Chittaranjan Cotton Mills Ltd Vs. Staff Union reported in 1971 PLC 499 have held those Industrial Courts as a Judicial Forum and not Legislative Forum, and held proceedings by an invalidly constituted Industrial Court as quorum non judice. Perhaps once the Award of the 7th Wage Board as held by the Apex Court to be legal and valid is fully implemented, the Supreme Court of Pakistan in all fairness would at some point of time revisit this matter and come to some conclusion as to whether a Wage Board is a Legislative Body or a Judicial Institution and secondly if there is no provision of at least one right of appeal against the decision of the Wage Board which is deemed to be an Award of the Full Bench of the NIRC, whether such a Law comes within the parameters of the decisions laid down by the Supreme Court of Pakistan earlier in the case reported in the PLD 2006 SC 602 at 679 (Muhammad Mubeen-us-Salam vs Federation of Pakistan), PLD 2005 SC 193 and PLD 1989 SC 6. At least one right of appeal has been recognised as a Fundamental Right by the Federal Shariat Court in PLJ 2005 SC 80 at 88.
In fact, in the case of Mubeen-us-Salam, authored by Chief Justice Iftikhar Muhammad Chaudhry, noticed that under Section 2A of Services Tribunal Act 1973, the provision has deprived the right of appeal. The Apex court even held that it has been held by the Supreme Court that under Islamic System to dispense justice as a matter of right, one appeal should be made available. Reference to PLD 1989 SC 6, PLD 1996 Lahore 672 and PLD 2005 SC 193 was made and it was concluded that the "institution whose decision does not provide at least one appeal is unreasonable and can be struck down". In the case reported in PLD 1989 SC 6 at page 12 in the case titled Pakistan through the Secretary Ministry of Defence Versus the General Public, the Full Bench of Shariat Appellate Bench of Supreme Court have held as under:
"As far as the question that provisions barring the right of appeal in the Defence Service Laws are not repugnant to the injunctions of Islam is concerned, we cannot agree. This Court has held that the Islamic Injunctions of Adal, Qist and Ehsan warrant that an aggrieved party should be entitled to test the correctness of a decision which results in deprivation of his livelihood.
See Federation of Pakistan and others v. Public at Large (PLD 1988 SC 202) wherein the validity of certain provisions of West Pakistan Press and Publication Ordinance (XXX of 1963) including the provisions therein which did not permit an aggrieved party the right of appeal was considered and it was held that the said provisions were against the injunction of Islam and must be amended and the right of appeal provided. The need for testing the correctness of a decision which results in deprivation of liberty and also livelihood would obviously be greater.
The Court's decision in Federation of Pakistan and others vs. Public at Large (PLD 1988 202) has been reaffirmed in Federation of Pakistan v. General Public (Shariat Appeal No 17 of 1984 decided on 17-1-1988) and it was observed: And indeed the harshness in similar provisions of West Pakistan Press and Publication Ordinance (XXX of 1963) was removed by the Court in the same judgement. Remedial measures were ordered.
The Federal Shariat Court in its impugned judgment has also held that the right of appeal was recognised by the Holy Prophet (Peace be Upon Him) as well as by the Khulafa-e-Rashideen and discussed this question in great detail. Nothing has been shown to us in refutation thereof. The plea, thus, that barring the right of appeal does not offend the injunctions of Islam, cannot be accepted."