ABDUL HAKIM WARSI vs CHIEF EXECUTIVE, INDEPENDENT NEWSPAPERS

NAZIR AHMAD BHATTI, J.--This petition, filed under Article 9 of the Provisional Constitution Order, 1981, read with Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, by Abdul Hakim Warsi, petitioner, challenges the judgment, dated 27-9-1982 of the learned Presiding Officer, 1st Labour Court, Quetta, respondent No.3, 'herein and judgment, dated 9-4-1983 of the learned Labour Appellate Tribunal, Baluchistan, Quetta respondent No. 4 herein whereby his claim for financial benefits against respondents Nos. 1 and 2 herein was disallowed.

2. The facts of the petition are that the petitioner was appointed as an Accountant on 1-1-1972 in the Daily 'Jang', Quetta at a monthly salary of Rs.500 including allowances admissible under the law by respondent No.2, the respondent No.1 being owner and proprietor of the Daily 'Jang', Quetta.

By the Wage Board Award of 1974 of the post of Accountant was designated as Accounts Officer and it formed the managerial cadre. Thereafter the petitioner was promoted as Accounts Officer in the year 1974 drawing salary of Rs.2,146 per month including allowances. In the month of June, 1979 the petitioner was transferred to the Daily 'fang' establishment at Karachi and the petitioner joined duty there. He obtained leave from 30-4-1980 to 7-5-1980 and on the latter date while he was still at Quetta on leave he tendered resignation to respondent No.1 at Karachi by telegram. This resignation was first not accepted by letter, dated 9-7-1980 but subsequently it was accepted with effect from 7-5-1980 by letter, dated 24-9-1980. The petitioner claimed an amount of Rs.73,365.30 from the respondents Nos. 1 and 2 on account of arrears of increments, salary, earned leave, bonus, house rent allowance, provident fund, gratuity, compensation, leave, unavailed casual leave and charge allowance. In respect of these amounts the petitioner served a grievance notice under section 25-A of the Industrial Relations Ordinance, 1969 (hereinafter referred to as the said Ordinance), but getting no reply from the respondents Nos. 1 and 2 he filed an application under section 25-A of the said Ordinance in the Court of Presiding Officer, Labour Court I, respondent No.3, which was contested by the respondents Nos. 1 and 2 and the learned respondent No. 3 dismissed the application by means of judgment, dated 29-7-1982 on the sole ground that a worker after making the resignation could not invoke the jurisdiction of the Labour Court. This judgment was upheld by the learned Labour Appellate Tribunal respondent No.4, vide judgment, dated 9-4-1983.

Hence the present petition.

3. It was urged by the learned counsel for the petitioner that the petitioner was a workman within the meaning of the said Ordinance, read with the Newspaper Employees (Conditions of Service)

Act, 1973 (hereinafter referred to as the 'said Act') and as such both the learned respondents Nos. 3 and 4 had erred in law in refusing to assume jurisdiction.

4. The term 'workman' has been defined in clause (xviii) of sectional 2 of the said Ordinance and the term 'newspaper employee' has been defined in clause (d) of section 2 of the said Act. It is noteworthy that by the provisions of section 18 of the said Act the said Ordinance has been made applicable to the newspaper employees. For the sake of convenience the provisions of this section are reproduced below: - "18. Ordinance XXIII of 1969 to apply to newspaper employees.---Subject to the other provisions of this Act the provisions of the Ordinance, shall apply to, or in relation to, newspaper employees, 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 capacity 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.

5. For the proper appreciation of the question whether the petitioner is a workman covered by the said Ordinance or is a newspaper employee covered by the said Act, the provisions of (xxviii) of section 2 of the said Ordinance and the provisions of clause (d) of section 2 of the said Act are also reproduced below: - INDUSTRIAL RELATIONS ORDINANCE, 1969.

"(XXVIII) 'Worker' and 'Workman' means any person not falling within the definition of employer who is employed (including employment as supervisor or as an apprentice) in an establishment or industry for hire or reward either directly or through a contractor whether the terms of employment be expressed or implied, and, for the purpose of any proceedings under this Ordinance in relation to an industrial dispute includes a person who has been dismissed, discharged, retrenched, laid off or otherwise removed from employment in connection with or as a consequence of that dispute or whose dismissal, discharge, retrenchment, lay off, or removal has led to that dispute but does not include any person:-

(a) who is employed mainly in managerial or administrative capacity; or

(b) who, being employed in a supervisory capacity draws wages exceeding eight hundred rupees per mensem or performs, either because of the nature of duties attached to the office or by reason of the powers vested in him, functions mainly of a managerial nature."

NEWSPAPER EMPLOYEES (CONDITION OF SERVICE) ACT, 1973.

"(d) 'newspaper employee' means any person employed to do any work in, or in relation to, any newspaper establishment and includes: -

(i) a whole-time journalist, including an editor, a leader writer, news editor, feature writer, reporter, correspondent, copy tester, cartoonist, news photographer, caligraphist and proof reader; and

(ii) a whole-time non-journalist, including a manager, clerk, stenotypist, printing engineer, linotype operator, composer, type-setter, photo studio attendant, printing worker, an accountant and an office peon."

It shall firstly be seen that by section 18 of the said Act only those provisions of the said Ordinance have been made applicable to the newspaper employees about which there is no specific provision in the said Act, because section 18 starts with the wording 'subject to the other provisions of this Act'. The definition of the term 'newspaper employee' has been given in the said Act and so the definition of the term 'workman' as given in the said Ordinance shall not apply to a newspaper employee. Then it shall be seen from the aforesaid definition of the term 'workman' that for the purpose of any proceedings under the said Ordinance in relation to an Industrial dispute, a workman includes a person who has been dismissed, discharged, retrenched, laid off or otherwise removed from employement in connection with or as a consequence of that dispute or whose dismissal, discharge, retrenchment, lay off, or removal has led to that dispute, whereas the aforesaid definition of the term 'newspaper employee' does not contain any such provision. As such an ex-employee of a newspaper is not covered by the term newspaper employee as defined in the said Act. It is, therefore, proved that the petitioner is neither a workman within the meaning of the said Ordinance nor a newspaper employee within the meaning of the said Act having resigned from the newspaper establishment.

6. The petitioner is not covered by the term workman for the additional reason that as Accounts Officer at the relevant time he was employed in a managerial or supervisory capacity in the newspaper establishment as provided in the aforesaid section 18 of the said Act.

7. It is admitted that the petitioner had voluntarily resigned and was not removed from service. A workman who has tendered resignation and which has been accepted, is no longer a workman and is not entitled to make petition under section 25-A of the said Ordinance regarding any dues etc. In this connection we draw benefit from the cases of Pakistan Railways v. Junior Labour Court No. V and others 1979 PLC 320; Mohabat Khan v. International Forwarding Agency Ltd., Karachi 1980 PLC 655 and Abdul Karim Warsi v. Chief Executive Independent Newspapers Corporation Ltd. And others 1983 PLC 816. However, in the case of Messrs Fazal Shafiq Textile Mills Ltd., Karachi v. Rehmat Khan and another 1972 PLC 364 it was held that worker in certain contingencies can terminate his own service by voluntarily tendering resignation. But in view of the aforesaid more than one authority in support of the proposition that a worker who has resigned does not remain a workman for the purposes of the said Ordinance and cannot invoke the jurisdiction of the Labour Court for claiming dues etc. We would respectfully agree with the aforesaid authorities. Similarly the term 'newspaper employee' as defined in the said Act does not include an ex-employed, even on this score the petitioner could not invoke the jurisdiction of the Labour Court.

8. It has been held by the learned Labour Appellate Tribunal that the petitioner could seek his redress from the forum as provided in section 15 of the Payment of Wages Act, but the provisions of that section will show that arrears of gratuity and provident fund are not included in the term 'wages'. However, the petitioner could seek his remedy in a civil Court if he could not put in his claim in any other forum and in this respect we rely on the case of Pakistan Electrical and Mechanical Construction Ltd. v. Chairman, National Industrial Relations Commission and another 1984 PLC (C .

S.) 325.

9. For the aforesaid reasons we are of the considered opinion that the impugned judgments of the learned respondents Nos. 3 and 4 are not exceptionable and we find no merit in this petition which is dismissed with no order as costs.

10. We had by our short order of even date dismissed the petition and aforesaid are the reasons therefor.