JOURNALIST PUBLICATION (PVT.) LTD., KARACHI Versus FEDERATION OF PAKISTAN
1. The plaintiff is a Newspaper Establishment and is Printer and Publisher of daily Urdu Newspaper `Amn', Karachi. The suit has been filed against the Federation of Pakistan; Implementation Tribunal for Newspaper Employees; Daily `Amn' Employees Union and the Wage Board for the Newspapers Employees.
2. The plaintiff has prayed for judgment and decree in the following terms: ‑
(a) To declare that the categorisation of newspaper establishment made by 5th Wage Board is illegal, invalid and without any legal effect. The plaintiff establishment should not be deemed and treated as newspaper establishment of Category `A'.
(b) To direct the condition of categorization of newspaper establishment as laid down in para. 71 of the Award be revised in keeping with the prevailing economic conditions of the newspaper industry, by deleting the revenue from circulation and number of copies as the capability to pay wages is particularly dependent upon the income generated from advertisement revenue.
(c) To grant injunctions restraining the defendant No.3 and its office bearers from demanding implementation of wages in accordance with 5th Wage Board Award, as also stay the proceedings before the Defendant No.2.
3. The office raised an objection with regard to maintainability of the suit. In reply to the office objection, it is stated that the Wage Board Award is questionable and reliance has been placed on section 9 of the Code of Civil Procedure and 1991SCMR 105. The Court had granted ad‑interim injunction by order, dated 25‑7 1991 and notice was ordered to be issued to the defendants, when the above objection was referred by the office for orders of the Court.
4. By short order, dated 24‑9‑1991, the office objection was maintained and the plaint was rejected under Order VII, Rule 11, C.P.C., after hearing Mr. A. Rauf for the plaintiff, Mr. Ikram Ahmed Ansari, the learned Standing Counsel for Defendants 1 and 2, and Mr. Ali Amjad for Defendant No.3. Following are the reasons therefor: ‑‑
5. The learned counsel for the plaintiff has contended that the present suit is maintainable as the decision of the 5th Wage Board, constituted under section 9 of Newspapers Employees (Conditions of Service) Act, 1973 (Act LVIII of 1973), (hereinafter referred to as the said Act), is unlawful and illegal as the said Board has not taken into consideration the cost of living, prevalent rates of wages of comparable employment and the circumstances relating to the Newspaper Industry in different regions of the country, as is specifically provided under section 10 of the said Act. It is submitted by him that since the constitution of the Wage Boards, four Awards were given earlier. In all the Awards, the categorization of the Newspapers was done on the basis of the number of copies circulated by the Newspapers and the gross annual revenue. So far as the circulation of the Newspapers is concerned, it was fixed at 10,000 copies in all the previous Awards but inasmuch as the gross revenue is concerned, it was fixed at Rs.25,00,000 (Rupees twenty‑five lacs only) in the 2nd War, Board Award; Rs.40,00,000 (Rupees forty lacs only) in the 3rd Wage Board Award and Rs. 80,00,000 (Rupees eighty lacs only) in the 4th Wage Board Award. Thus there was gradual increase in the gross revenue in all the previous Awards but in the present Award, the gross revenue is the same as was in the 4th Wage Board Award and no increase has been made in the figure.
6. The grievance of the plaintiff is that by placing its Newspaper in Metropolitan `A' category, the plaintiff has been put to great loss as it will be required to pay the salaries and the fringe benefits to its employees as determined in the Award which are at a higher level for the employees of the said category. According to him the Wage Board ought to have increased the a, above ceiling of Rs.80,00,000 (Rupees eighty lacs only) following the principle of gradual increase which was followed by the previous Wage Boards. At the same time, in para.9 of the plaint, it has been averred "Plaintiff establishment may be brought into category metropolitan `A' for which reason it will he obligatory on the part of the plaintiff to ensure payment of the wages according to the fixation made in the Award but the same will not be applicable‑‑
7. It is next submitted by the learned counsel that the Wage Board has failed to consider the circumstances relating to the plaintiffs Newspaper establishment and that the Wage Board had no jurisdiction to give an Award which infringes the fundamental rights of the plaintiff.
8. It was lastly contended by him that the Defendant No.2, the Implementation Tribunal for Newspaper Employees constituted under section 12(a) of the said Act can implement only a lawful Award and since the 5th Wage Board Award is unlawful, therefore, it cannot be implemented by Defendant No.2.
9. The learned counsel appearing for the defendants have contended that the suit is not maintainable, being specifically barred by law and this Court has no jurisdiction under section 9 of the Code of Civil Procedure to entertain the plaint for the purpose of considering the legality or validity of the Award given under the aforesaid Act and particularly so, when neither the constitution of the Wage Board has been challenged, nor the authority of the Wage Board to give the decision as such. The factors urged by the learned counsel for the plaintiff are beyond the purview of the Civil Courts and, therefore, this Court has no jurisdiction to enter into the arena specifically falling within the powers of the Board.
10. The learned counsel have relied on section 12 of the said Act and section 22‑E of the Industrial Relations Ordinance, 1969. Section 12 of the said Act provides that a decision of the Board published under section 11 thereof shall be deemed to be an Award of the Full Bench of the National Industrial II Relations Commission and, subject to the provisions of the said Act, all the provisions of the Industrial Relations Ordinance, 1969, applicable to such Award of the said Commission, so far as may be and with necessary modification, shall apply to the decision of the Board.
11. Section 22‑E of the Industrial Relations Ordinance, 1969, reads as under‑
12. "22‑E Finality of Orders . No Court shall entertain any plea as to the jurisdiction of the Commission or as to the legality or propriety of anything done or purported to be done by the Commission or in all its Benches, and no order, decision, judgment or sentence of the Commission shall be called in question in any manner whatsoever in or before any Court or other authority."
13. It is, therefore, evident that ouster of jurisdiction is clear and unambiguous.
14. The learned counsel for the plaintiff has urged that in spite of the aforesaid provisions of law, this Court has jurisdiction under section 9 of the Code of Civil Procedure, to hear and decide the issues raised in the plaint and grant the relief prayed for. He referred to the following authorities on the aforesaid proposition of law‑‑
(1) 1989 CLC 1146 Muhammad Abdul Olla v. Islamic Republic of Pakistan and another.
(2) PLD 1990 Lah.182 Muhammad Nawaz v. Sultan Mahmood and 4 others.
(3) PLD 1985 SC 260 Amina Begum v. Muhammad Nazir and others,
(4) PLD 1965 SC 698 Muhammad Jamil Asghar v. Improvement Trust, Rawalpindi.
(5) PLD 1965 SC 671 Abdul Rauf and others v.Abdul Hamid Khan and others.,
(6) PLD 1958 SC 201 Muhammad Tufail v. Abdul Ghafoor,
(7) PLD 1989 SC 166 Federation of Pakistan v. Muhammad Saifullah Khan.
(8) PLO 1974 SC 193 Mehr Dad v. Settlement and Rehabilitation Commissioner and others.
(9) 1985 SCMR 1753 Asian Food Industries Ltd. and others v. Pakistan and others.
(10) PLD 1973 SC 49 The State v. Ziaur Rehman
15. It is not necessary to individually consider the aforesaid authorities in the circumstances of the present case. The ratio of decisions in the aforesaid authorities is that the exclusion of the jurisdiction of the Civil Courts, is not readily to be inferred. The mere technicalities are not to be allowed to defeat the ends of justice as the departure could justifiably be made from the technicalities if required by the circumstances of the case. The Court would have the jurisdiction if the Tribunal while passing the order failed to advert to the law applicable to the admitted facts of the case, but the Civil Courts would have no jurisdiction to interfere with the order or action of the Tribunal which the Tribunal is empowered to determine and has decided to the same in accordance with the law applicable and orders have been passed with jurisdiction; but the Court should have the jurisdiction to interfere where the orders have been passed without jurisdiction. The mala fide act is by its nature an act without jurisdiction and legislature when grants power to pass order or take an action, it does not contemplate the mala fide exercise of the power. The mala fide order is a fraud on the Statute and, therefore, Civil Courts would have the jurisdiction in spite of the ouster of jurisdiction clause in Statute. The learned Counsel also referred to the case of Independent Newspapers Corporation (Pvt.) Ltd. v. Chairman, 4th Wage Board Award and others 1991 SCMR 105. This matter came up before the Supreme Court from the order passed by this Court in a' Constitution Petition challenging some of the decisions contained in the Award of the 4th Wage Board for Newspaper Employees which was published through a Notification, dated 6th October, 1985, and the High Court declared some of the decisions of the Board as null and void and of no legal effect. The aforesaid citation is of no ‑help to the plaintiff with regard to the point canvassed before this Court with regard to jurisdiction under section 9, C.P.C.
16. It is not the case of the plaintiff that the Wage Board Award was not properly constituted as required by the Statute or that the plaintiff was not subject to the jurisdiction of the Board or that the decision given is beyond the jurisdiction of the Board. No mala fides has been alleged against the Board. If such be the circumstances and the authority having been exercised by the Wage Board in accordance ‑with law, this Court has no jurisdiction to sit on adjudication thereof.
17. The object of constitution of the Wage Board is stated in section 9 of the said Act, which provides that the Federal Government may whenever it so considers necessary by Notification in the Official Gazette, constitute a Wage Board for fixing rates of wages in respect of Newspaper employees in accordance with the provisions of the Act. Section 10 thereof provides that is fixing the rates of wages in respect of the Newspaper employees, the Board may take into consideration the cost of living, the prevalent rates of wages of comparable employments, the circumstances relating to the Newspaper Industry in different regions of the country and any other circumstances which the Board may deem relevant.
18. The above provisions have a reference to the Newspaper employees as such and the Board has to consider the circumstances relating to the Newspaper Industry in different regions of the country, as an industry. It is nowhere provided that the circumstances relating to an individual establishment are to be taken into consideration or that the Award is to be given with regard to individual Newspaper establishments or their respective employees. The Board keeping in view the aforesaid provisions has considered several factors for announcement of its decision as stated above. It may be pointed out that in para. 71 of the decision of the 5th Wage Board, in keeping with the provisions of the said‑Act, Newspapers have been divided in separate categories. All Newspapers published from Metropolitan Centres, which the circulation of 10,000 copies or more per day or annual gross revenue of Rs.80,00,000 (Rupees eighty lacs only) or more are included in the Category named as Metropolitan `A' and all other Newspapers published from Metropolitan Centres and not covered by the conditions laid down for Metropolitan `A' Newspapers, are included in Metropolitan `B' category. All Newspapers published from any part of the country outside the Metropolitan Centres are included in Regional Category. In para. 68 of the Award, Karachi, Lahore and Rawalpindi have been termed as Metropolitan Centres. The Award also points out that the said categorization is being followed from the 1st Wage Board onward.
19. The Board has accordingly, for fixation of emoluments payable to various employees of the respective categories of the Newspapers Establishment, has considered the factors like inflation, house rent, transport, education of children etc., in the relevant regional conditions and the facilities, benefits and perquisites made available to the employees in comparable service grades of autonomous Corporations. The Newspaper employees in each of the aforesaid Categories have been classified in various grades for the purpose of fixation of pay scales etc.
20. The Board has thus taken into consideration the cost of living, prevalent rate of wages of comparable employments and the circumstances relating to the Newspaper industry in different regions of the country and has thereafter categorized the Newspapers on the basis of number of copies printed, gross revenue and the place of publication. It may be stressed that the above classification of Newspapers, declaration whereof is being sought as illegal, invalid and without lawful authority, has been in vogue since the decision of the First Wage Board and Newspaper Industry, including the plaintiff accepted the same as legal, valid and binding and acted thereon accordingly. In none of the previous Awards, the circumstances relating to individual establishments were considered, and rightly so; in view of the scheme of the Act.
21. Therefore, the contention of the learned counsel that the circumstances relating to the establishment of the plaintiff have not been considered does not advance the case of the plaintiff. The plaintiff is publishing its newspaper from Karachi, which is Metropolitan Centre. It publishes determined number of copies and has the annual gross revenue as determined by the Board.
22. The submission of the learned counsel that the Board ought to have increased the annual gross revenue as was done by the earlier Boards is not based on any principle of law. The learned counsel was not in a `position to point out any provisions or principle of law under which the Board was under an obligation to increase the ceiling of the gross revenue.
23. Relying on the case of Muhammad Abdul Olla (supra) learned counsel urged that where there is a right, there is a remedy but, however, failed to point out what specific right vested in the plaintiff, was violated and was being sought to be redressed. As pointed out above, the plaintiff has not been able to demonstrate violation of any of the fundamental rights conferred on it by the Constitution. Even in the plaint, it has been generally urged that the rights of the plaintiff have been infringed without specifying the specific right. It is not the case of the plaintiff that he has not been treated in accordance with law as provided in Article 4 of the Constitution or that he has not been treated equally as required by Article 25 of the Constitution.
24. No doubt, the decision of the Board as such is not appeal able but this does not mean that the Civil Court despite the ouster clause, would embark upon determining the legality of the decision of the Board, merely for the reason that no remedy by way of appeal has been provided against the same and in spite of the fact that the Board has acted within the four corners of its reference, in accordance with law and nothing is found that could be called a jurisdictional defect or violative of any rights of the plaintiff. Under these circumstances, the observations in the case of Muhammad Abdul Olla are of no avail to the plaintiff.
25. The learned Standing Counsel appearing for Respondents Nos.l and 2, pointed out that Rule 14 of the Implementation Tribunal for' Newspaper Employees (Procedure and Functions) Rules, 1977, provides that a Newspaper Establishment may approach Respondent No.2, for determination of categorization. I would refrain from making any observations in this regard.
26. Therefore, the bar of jurisdiction as contained in section 12 of the said Act read with section 22‑E of Industrial Relations Ordinance, 1909, is fully attracted under the circumstances of this suit and as such the plaint is liable to be rejected.
27. In view of rejection of the plaint for want of jurisdiction, C.MAs.3176/91, 3261/91 and 4247/91, arc also dismissed.
28. K.BA./J‑131/K Applications dismissed.