PAK NEWS LTD Versus SIND LABOUR COURT NO 2 KARACHI

The circumstances in which this petition has been filed are as follows :---

1. The petitioners are the proprietors of the daily `Millat' and daily `Leader', Karachi. The respondent No. 3 was employed by them as a; clerk some 25 years ago and in September 1973, he was working as the Circulation Manager of the petitioners. On 22nd September, 1973, he was served with a charge-sheet and was suspended with immediate effect The charges levelled against him were firstly, that during the months of January, February and June, 1973, he did not deposit the full amounts, realised from the local agents of the daily `Millat' to Accountant of the Company amounting to Rs. 17,400 ; secondly, that notwithstanding his declaration, he was found to be working with a partner of Messrs Muhammad Haroon Kasim & Company "which firm carried on their business with this company as well" ; and thirdly, that he was taking commission on the purchases made by him on behalf of the company.

2. An Enquiry Committee was constituted and the respondent No. I was called upon to appear and show cause as to why he should not be dismissed from service. His reply was found to be unsatisfactory and after an inquiry his services were terminated, by letter dated 1-I1-1973, which reads as under;

"The Enquiry Committee appointed to enquire into the charges levelled against you, as per charge-sheet dated 22-9-1973, has un animously found you guilty of all charges which amount to fraud and misconduct on your part.

You are therefore dismissed from the service of this company with effect from 1st November, 1973, afternoon."

3. The respondent No. 3 sent a grievance notice, and failing to hear from the petitioners, filed an application before the Junior Labour Court under section 25-A of the Industrial Relations Ordinance, 1969. The application came to be resisted on a number or grounds; the principal ones being that the -respondent No. 3 was not a workman and that the second snow-cause notice of the despatch of the Enquiry Report, as complained in the application, was not necessary under the Scheme of the News paper Employees (Conditions of Service) Act LVIII of 1973.

4. The Junior labour Court repelled the contentions advanced no behalf of the petitioners and orders the re-instatement of the respondent No. 3 with back benefits. The petitioners then filed an appeal before the Second Sind Labour Court which came to be dismissed on the 6th June, 1974, culminating in this petition.

5. It was contended by Mr. Shahanshah Hussain, learned counsel for the petitioners, that the Newspaper Employees (Conditions of Ser vice) Act LV1II of 1973, was a special Act, and the services of a news paper employee could be terminated only in accordance with section 4 4hereof. It reads as under;

"4. Termination of employment.-The services of a newspaper employee shall not be terminated by a newspaper establishment without good cause shown through a notice, in writing, of such termination----

(a) of one month, if the total period of continuous service of the newspaper employee with the newspaper establishment is not less than three months but less than two years;

(b) of two months, if the total period of such service is not less than two years but less than three years ;

(c) of three months, if the total period of such service is not less than three years

Provided that, if the order of appointment of the newspaper employee provides notice of a longer period, notice shall be given in accord ance with the terms of such order;

Provided further that the services of a newspaper employee may be terminated at any time on payment of wages in lieu of the requisite notice."

He admitted that as the respondent had been in service with the petitioners for over three years, he had to be given a notice of three months which was not done, but the irregularity was curable by the :payment of wages in lieu of the requisite notice now.

6. A bare perusal of the Act in question will however show that it is not self-contained ; there are other laws also applicable and in that context a reference has got to be made to sections 17 to 19 of the Act, which read as under

"17. W. P. Ordinance VI of 1968 to apply to newspaper establishment.---

The provisions of the West Pakistan Industrial and Com mercial Employment (Standing Orders) Ordinance, 1968 (W.P Ordinance VI of 1968), as in force for the time being, other than those contained in Standing Order 2 and clauses (1) and l2) 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 were workman within the meaning of that Ordinance.

18. Ordinance XXIII of 1969 to apply to newspapers employees. Subject to the other provisions of this Ordinance, the provisions of the Ordinance shall apply to, or in relation to, newspaper employee 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 capa city, or

(ii) who, being employed in a supervisory capacity, 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.

19. Effect of laws and agreement inconsistent with this Act.---(1) The provisions of this Act shall have effect notwithstanding any thing inconsistent therewith contained in any other law or in the terms of any award, agreement or contract of service, whether made before or after the coming into force of this Act ;

Provided that, subject to the provisions of section 73 of the West Pakistan Employees' Social Security Ordinance, 1965 (W. P. Ordi nance No. X of 1965), where under any such award, agreement contract of service or otherwise, a newspaper employee is entitled to benefits in respect of any matter which are more favourable to, him then those to which he would be entitled under this. Act, the newspaper employee shall continue to be entitled to, the more favourable benefits in respect of that matter notwith standing that he receives benefits in respect of other matters under this Act.

(2) Nothing contained in this Act shall be construed to preclude any newspaper employee from entering into an agreement with an employer for granting him rights or privileges in respect of any matter which are more favourable to him than those to which he would be entitled under this Act."

7. Mr. Shahanshah Hussain, learned counsel for the petitioners, in the course of his submissions, referred to the maxim expressio unius eso exclusio alterius-the express mention of one thing implies the exclusion of another. However, the generality of the maxim demands caution ne cessary in its application. It is not enough that the express and the tacit are merely incongrous as observed in Lowe v. Dorling & Son ((1906) 2 K B 772) "It must be clear that they cannot reasonably be intended to co-exist". As observed by Lopes, L. J., in Coloquhoun v. Brooks ((1888) 21 Q B D 52), on page 65 of the report, "it is often a valuable servant but a dangerous master to follow in the construction of statutes or documents. Exclusio is often the result of indifference or accident and the maxim ought not to be applied when its application, having regard to the subject-matter to which it is applied, leads to inconsistency or injustice. I think, rigid observance of the maxim in this case, would make other provisions of the statute inconsistent and absurd, resulting in injustice".

8. However, the invoking of the maxim is out of place in the instant case, in view of the fact, that the provisions of the West Pakistan In dustrial and Commercial Employment (Standing Orders) Ordinance, 1968 excluding Standing Order 2 and clauses (1973 S C M R 455) and (2) of Standing Order 12- remain fully applicable to the newspaper employees.

9. In construing an Act we must take the whole of the Act to gether and not one part only by itself, for ever section of a statute should, so far as possible, be construed to make a consistent enactment of the whole. The correct rule is, that if any construction of an en actment does not fit in with the rest of the Act, it must be rejected and that construction has to be looked into which would apply to al parts of the Act equally. The Courts are entitled when construing the terms of any provision found in a statute, to consider other parts of the Act which throw light upon the intention of the Legislature and may serve to show that the particular provision ought not be construed as it would be if considered alone and apart from the rest of the Act. As has been said, each part of the statute must expound every other part. In the face of section 17 of the Act referred to earlier, Stand ing Order 15 of the West Pakistan Industrial and Commercial Employ ment (Standing Orders) Ordinance, VI of 1968, must have full play. The intendment of the Legislature leaves not even a shadow of doubt on this score.

10. Granted that the said Ordinance is applicable, the procedure prescribed therein had to be meticulously followed. The charge-sheet and the order of dismissal leave no doubt, that the respondent No. 3. was dismissed within the meaning of Standing Order 15 (3) (b). It is an admitted position that the report of Enquiry Committee, or the second show-cause notice was never served on the respondent No. 3. It was held in Punjab Road Transport Corporation v. Punjab Labour Appellate Tribunal and others (3), that the failure thereof would be fatal. In Muhammad Shomim v. Messrs Pakistan Tobacco Company Ltd. and another (1975 S C M R 46), the observation in the earlier case in regard to the supply of the en quiry report was distinguished but the view in regard to the service of the second show-cause notice was adhered to. It is as admitted position that in this case though an enquiry had been held there was no second show-cause notice. The order of dismissal will therefore stand vitiated. The terms of the employment of the respondent No. 3 in this parti cular case are not known, but the termination of an employee's employment by notice purporting to issue under a term in his contract of employment, when the fact showed that he had incurred the displeasure of his superior officers but without a show-cause notice was found to be in violation of the guarantee of employment. Abdul Majid Sheikh v. Mushafe Ahmad and another (P L D 1965 S C 208), observations to similar effect are to be found also in Khawaja Ghulam Sarwar v. Pakistan (P L D 1962 S C 142), Noorul Hassan and others v. Federation of Pakistan (P L D 1956 S C (Pak.) 331 ), Riaz Ali Khan v. Pakistan (P L D 1967 Lah. 491) and Mrs. A. V. Issacs v. Federation of Pakistan (P L D 1954 Lab. 800). It is true that these are cases dealing with Railway employees or public servants but the principles will be applicable in the cases of employees of Industrial and Commercial organizations, as in this case. As the procedure was not followed therein would be the rub.

11. The next contention advanced by Mr. Shahanshah Hussain was that the respondent No. 3 was not a workman. The finding of the Appellate Labour Court however is that the respondent was not empowered even to grant leave or accept resignation of any member of the staff. He was just forwarding the leave applications of the staff to his superiors and had no power of hiring or firing. It was said by the Junior Labour g -Court that no record was produced before it to prove that the respondent was given managerial powers by the Board of Directors and even the application of leave made by an employee of the organisation had to be sent by the respondent to his superior officers for orders with his recommendations only. A "newspaper employee" as to be found in section 2(d) of the Newspaper Employees (Conditions of Service) Act of 1973, means any person "employed to do any work in, or in relation to, any newspaper establishment and includes-(i) a whole time jour nalist including an Editor, a Leader Writer, News Editor, Feature Writer, Correspondent, Copy Tester, Cartoonist, News Photographer, Calligraphist . and Proof Reader ; (ii) a whole time non journalist, including a Mana ger, Clerk, Stenotypist, Printing Engineer, a Lino-type Operator, Composer Type Setter. Photo studio Attendant, Printing worker and Accountant and an Office peon" the definition of a workman is not to be found in the said Act. In the absence thereof it will be legitimate to refer to its definition in the Ordinances referred to earlier as envisaged in sec tions 17 to 19 of the Act. According to the definition of workman in the West Pakistan (Standing Orders) Ordinance, 1968, if the duties o p a workman are "in the main skilled or unskilled, manual or clerical, then he is a person covered by the Ordinance by whatever designation he is called and whatever pay he gets. The nature of the work per formed is the deciding factors . . . . . . . .". It was held in Dost Muham mad Cotton Mills Ltd. v. Muhammad Abdul Ghani and another (1975 P L J 25), for attracting this clause 2-C(iii) of the Industrial Relations Ordinance, 1969"

.... Neither the designation, nor the salary is a factor for determination of the status of the `employee', the only criterion is the work, that an employee has to do and the answerability for the performance."

In Bashir A. Malik v. The Punjab Labour Court and others (P L D 1973 Lab. 594), which dealt with the case of an Engineer, it was observed that, "the defini tion in section 2(1) of the Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, does not contain any reference t supervisory capacity. Wherever the Legislature wanted to exclude people in supervisory capacity from the pale of workman it is specifically said so as it has done in the case of West Pakistan Trade Unions Ordi nance V of 1968, where persons employed in managerial or administra tive capacity have been excluded from the definition. In the I. R. O. XXIII of 1969 "any person responsible for the management, supervision and control of establishment has been excluded from the definition of a "worker" and "workman'". The mere fact therefore that a person who is otherwise covered by the definition of a workman as given in Ordinance VI of 1968 also performs supervisory functions would not operate to exclude him from the definition of "workman". This contention advanced by Mr. Shahanshah Hussain therefore stands repelled.

12. The impugned orders cannot under the circumstances be said to be not in the exercise of lawful authority, or of no legal effect. In the result, there is no substance in the petition. I will, therefore, dismiss it with costs.

S. A. H. Petition dismissed.