PLJ 2012 SC 316
[Appellate Jurisdiction]
[Appellate Jurisdiction]
Present:
Iftikhar Muhammad Chaudhry, C.J., Tariq Parvez and Ghulam Rabbani, JJ
ALL PAKISTAN
NEWSPAPERS SOCIETY and others--Petitioners
versus
FEDERATION OF
PAKISTAN and others--Respondents
Civil Petitions
Nos.987 to 989 of 2011, decided on 19.10.2011.
(On appeal from
the judgment of High Court of Sindh at Karachi
dated 31-5-2011 passed in Constitutional Petitions Nos.D-1391 of 2004, D-1151 of 2007 and D-494 of 2008).
dated 31-5-2011 passed in Constitutional Petitions Nos.D-1391 of 2004, D-1151 of 2007 and D-494 of 2008).
Working
Journalists (Conditions of Service) Ordinance, 1960 (XVI of 1960)--
----Preamble--Newspaper
Employees (Conditions of Service) Act, (LVIII of 1973), Preamble--Distinction
between both the enactments stated. [P.
333] A
Working
Journalists (Conditions of Service) Ordinance, 1960 (XVI of 1960)--
----Preamble--Background/history/
circumstances, which persuaded the legislature to make amendments in the
Ordinance discussed. [P. 337] B
Newspaper
Employees (Conditions of Service) Act, 1973 (LVIII of 1973)--
----S.
2(d)--Constitution of Pakistan,
1973, Art. 25--Equality of citizens-Vires of S.2(d) of
the Newspaper Employees (Conditions of Service) Act, 1973--Article 25 of the
Constitution confers a right upon the citizens that they should be treated
equally and whosoever challenges any provision of law, it becomes his
responsibility to prove the same and in absence thereof S.2(d) of the Newspaper
Employees (Conditions of Service) Act, 1973 was not violative of Art.25 of the
Constitution. [P. 337] C
Newspaper
Employees (Conditions of Service) Act, 1973 (LVIII of 1973)--
----S.
2(d)--Constitution of Pakistan, Art.25--Newspaper Employees-Working journalists
and non-working journalists--Equal protection of law--Plea of unjustified or
reasonable classification--Nexus in the performance of the duties by different
categories of both types of persons with cooperation and collaboration with
each other--Object and purpose of both the categories being common and to
achieve the same, there was a necessity of classification--Such classification
called for equal protection of law to the working journalists and non-working
journalists because they were equally placed, as such deserved to be treated
alike both in privileges and liabilities. [Pp.
338 & 339] E, F & G
1991
SCMR 1041 ref.
Legislature---
----Scope and
prerogative--Legislation of law is the domain and prerogative of the
legislature, which has wisdom to promulgate a law to achieve a particular
object and purpose presumably promulgating such laws legally, validly and Constitutionally on the basis of its competence. [P. 339] H
Newspaper
Employees (Conditions of Service) Act, 1973 (LVIII of 1973)--
----Preamble--Constitution
of Pakistan,
1973, Art. 25--Equal protection of law---Vires of--Newspaper industry is
distinct and different from all other industries (electronic media i.e. radio
and television) and for such reason alone N.E.C.S. Act, 1973 is not ultra vires
the Constitution--Contention that discrimination hd
been caused by phenomena of pick and choose has no substance. [P. 339] I
Betterment of
Newspaper Employees--
----Scope--Presumption
of Constitutionality of legislative enactment, Courts must lean in favor of
upholding Constitutionality of legislation and that law would be saved rather
than destorying it. [P. 337] D
Constitution of Pakistan,
1973--
----Art. 8--Laws
inconsistent with or in derogation of Fundamental Rights--Supreme Court, under
Art.8 of the Constitution is empowered to declare void any law or any custom or
usage having the force of law if the same is inconsistent with, or is in
derogation of any of the Fundamental Rights. [P.
341] J
Newspaper
Employees (Conditions of Service) Act, 1973 (LVIII of 1973)--
----S.
9--Constitution of Pakistan,
1973, Art. 10-A--Due process of law--Contention was that S.9 of the NECS, 1973
was violative of the due process of law as provided under Art. 10-A of the
Constitution as no right of appeal was provided against the Wage Board
Award--Held: To determine the question of declaring the Act as unConstitutional
on the ground of non-provision of right of appeal against the decision of the
Board, it was necessary for the Court to bear in mind whether there was any
dispute between two parties in an adversarial litigation against each other,
which required to be decided by the Board, and as to whether the claim of
entitlement of one of the parties was against the State or any State agency,
which required determination by the Board or the Board was performing a
legislative act where there was no existing right or dispute to be decided
between the parties. [P. 343] K
Constitution of Pakistan,
1973--
----Arts. 3
& 9--Security of person--Elimination of exploitation--Word
"Life"--Interpretation and scope--Right person is required to be
engaged in the right job and there should not be any exploitation whatsoever--Life
includes all such amenities and facilities which a person born in a free
country is entitled to enjoy with dignity, legally and Constitutionally--Right
to life also includes the right to livelihood--U/Art. 3 of the Constitution,
the State is bound to ensure the elimination of all forms of exploitation and
the gradual fulfilment of the fundamental principle, from each according to his
ability to each according to his work; therefore, a right person is required to
be engaged in the right job and there should not be any exploitation
whatsoever. [P. 347] L
PLD 1994 SC 693;
PLD 2005 SC 193; PLD 2006 SC 394; PLD 2010 SC 1109 and PLD 2011 SC 619 ref.
Adversarial
litigation--
----Scope--When
there is adversarial nature of litigation between the parties, it is only the
judicial forum which decides the same like the property cases. [P. 347] M
Newspaper
Employees (Conditions of Service) Act, 1973 (LVIII of 1973)--
----S.
9--Performance of Wage Board--Nature--Wage Board does not perform judicial or
quasi judicial function, rather performs only a delegated executive function of
the legislature, be it Federal or the Provincial of fixing the wages of
newspaper employees. [P. 347] N
Newspaper
Employees (Conditions of Service) Act, 1973 (LVIII of 1973)--
----S.
9--Constitution of Pakistan,
1973, Arts. 10-A, 184(3) & 199--Due process of law--Right of appeal--Nature
and scope--Contention was that Newspaper Employees (Conditions of Service) Act,
1973 was void and liable to be struck down for having failed to provide even a
single right of appeal from any adjudicatory or directory orders or actions,
interim or final made thereunder--Held: Proceedings of the Board were akin to
rules of conduct, which could be challenged in appropriate proceedings, either
under Art. 199 or Art. 184(3) of the Constitution, if
it was shown that the Board had acted in a perverse manner--Such would be
different kind of challenge, which was available against a legislative activity
and the right of appeal would come in where individual right was determined--Wage
Board is given the power to determine wages--Proceedings of the Board were
neither judicial nor quasi-judicial, which was accepted around the
world-whether it was price of essential commodities, or anything else--In such
a case, rules were laid down for general applicability, might be for a
particular industry, class, which were to have prospective effect--They were
akin to rules of conduct, which could be challenged in appropriate proceedings,
either under Art. 199 or Art. 184(3) of the Constitution,
if it was shown that the Board had acted in a perverse manner--That would be a
different kind of challenge, which was available against a legislative activity
and the right of appeal would come in where individual right was determined one
way or the other. [P. 348] O
Constitution of Pakistan,
1973--
----Arts. 183(3)
& 199--Due process of law--Right of appeal, denial--Violative--Judicial or
quasi judicial functions--Adversial proceedings--Denial of right of appeal was
violative of the due process of law in matters where judicial powers were being
exercised by a functionary discharging judicial or quasi-judicial functions, if
the same were being exercised by the executive or the administration--As per
injunctions of Islam, denial of right of appeal in adversarial proceedings,
both civil and criminal, was considered against the due process of law and
norms of justice, but in exercise of legislative powers or legislative
activities, no right of appeal could be extended before the forums, higher in
status, within the legislative body which harf passed the order or entered into
any legislative activity--Power of judicial review would be available to the
superior Courts under Art. 199 or Art. 184(3) of the Constitution for the purpose of examining the
Constitutionality of the legislation or sub-legislation. [P. 358] P
Right of
Appeal--
----It was
continuation of the original proceedings and it provides a mechanism for the
scrutiny of the findings/determination already recorded by a subordinate forum
whereas the wage determination, which is done with a view to regularize its
payment to the newspaper employees, being a legislative activity is open to
judicial review before the superior Courts if violation of any provision of the
Constitution is made out. [P. 369]
AA
PLD 1989 SC 6;
AIR 1962 SC 12; PLD 2005 SC 183; PLD 2006 SC 602; PLD 2010 SC 265; PLD 2009 SC
879; PLD 2001 SC 607; 1993 SCMR 1533; 1998 CLC 65; 1999 SCMR 1477; PLD 1982
Kar. 725; [1956 SC 676 (S) AIR V. 43 C. 112 Oct.]; AIR 1958 SC 578; AIR 1974 SC
1044; AIR 1951 SC 230; AIR 1964 SC 279; AIR 1968 SC 529; AIR 1964 SC 1746 and
AIR 1970 SC 426 ref.
Newspaper
Employees (Conditions of Service) Act, 1973 (LVIII of 1973)--
----Ss. 9 &
10--Wage fixation is legislative function, and not a judicial or quasi-judicial
act or an administrative act--Exercise of legislative
powers--scope--"Legislative act" and "Judicial
act"--Distinction and principles illustrated--On general principles, those
inquiries, deliberations, orders, and decrees, which are peculiar to such a department,
must in their nature be judicial acts--Nor can they be both judicial and
legislative; because a marked difference exists between the employment of
judicial and legislative tribunals--Former decide upon the legality of claims
and conduct, and the latter make rules upon which, in connection with the
Constitution, those decisions should be founded--It was the province of Judges
to determine what was the law upon existing cases--In fine, the law is applied
by one, and made by the other--It was the province of judicial power, also to
decide private disputes between or concerning persons; but of legislative power
to regulate public concerns, and to make laws for the benefit and welfare of
the State--Nor did the passage of private statutes, when lawful, are enacted on
petition, or by the consent of all concerned; or else they forbear to interfere
with past transactions and vested rights. [Pp.
351 & 352] Q
Newspaper
Employees (Conditions of Service) Act, 1973 (LVIII of 1973)--
----Ss. 9 &
10--Wage fixation is legislative function--Function of administration
agency--One of the great difficulties of properly classifying a particular
function of an administrative agency is that frequently - and, indeed;
typically - a single function has three aspects--It is partly legislative,
partly judicial and partly administrative--Consider, for example, the function
of rate-making--It has sometimes been characterised as legislative, sometimes
as judicial--In some aspects, actually, it involves merely executive or administrative
powers--For example, where the Interstate Commerce Commission fixes a tariff of
charges for any railroad, its function is viewed as legislative--But where the
question for decision is whether a shipment of a mixture of coffee and chicory
should be charged the rafe established for coffee or the lower rate established
for chicory, the question is more nearly judicial--On the other hand, where the
problem is merely the calculation of the total freight charges due for a
particular shipmeni, the determination can fairly be described as an
administrative act. [P. 352] R
Wage Council--
----Scope--Wage
Council Subordinate body of this type is a Wage Council, which is not an
administrative tribunal but a subordinate legislative authority. [P. 352] S
Statutory Wage
Council--
----Statutory
Wage Council--Both arbitration tribunals and Courts of inquiry share - with one
important difference - the tripartite structure of statutory wage councils;
they are composed of equal numbers of representatives of employers and of
workers under an independent Chairman, in some cases, together with additional
independent members--Essential difference between their structure and that of
statutory wage authorities was that the representative members of the latter
were chosen from within the industry concerned, whereas employers and workers
on arbitration tribunals come from outside the industry whose disputes they
have to resolve; if in any case technical knowledge of a particular industry
was required, such was normally supplied by the help of assessors who took no
part in the final Award--Difference between the Constitution of wage boards ard
that of arbitration tribunals clearly implies a corresponding distinction
between the legislative function of the former and the judicial function of the
latter--Wage board drafts law for its own industry, whereas the arbitration
Court gave judgment on matters submitted by others--Choice of industrial
arbitrators unconnected with the industries the merits of whose claims they
must pledge, is evidently intended as a guarantee that they, like other judges,
will be free from bias arising from personal interest. [Pp. 352 & 353] T
Judicial
Inquiry--
----A judicial
inquiry investigates, declares, and enforces liabilities as they stand on
present or past facts and under laws supposed already to exist--Legislation, on
the other hand, looks to the future and changes existing conditions by making a
new rule, to be applied thereafter to all or some parts of those who were
subject to its power--Establishment of a rate was the making of a rule for the
future, and therefore, was an act legislative not judicial in kind--Question
depends not upon the character of the body, but upon the character of the
proceedings--Nature of the final act determines the nature of the previous
enquiry. [P. 353] U & V
Power of
Legislature--
----Mere
declaration by the legislature that a particular kind of property or business
is affected with a public interest is not conclusive upon the question of the
validity of the regulation and invalidity of the wage-fixing provision of the
compulsory arbitration statute as applied to a meat packing
establishment--Power of a legislature, under any circumstances, to fix prices
or wages in the business of preparing and selling food was seriously doubted,
but the Court concluded that, even if the legislature could do so in a public
emergency, no such emergency appeared, and, in any event, the power would not
extend to giving compulsory continuity to the business by compulsory
arbitration--Matter is one which is always open to judicial inquiry. [P. 354] W
Fix Wage--
----Wage
fixation is a legislative function, and not a judicial or quasi- judicial act
or an administrative function. [P.
367] X
Wage Board--
----Wage Board
is neither judicial nor quasi-judicial body as if exercises
executive/administrative function--Keeping in view the nature of the task
assigned to a Wage Board of fixation of wages is neither
judicial/quasi-judicial nor executive/administrative function, but partakes of
legislative activity and the Chairman being the delegatee of the Federal
Government, with the advice and consultation of the members of the newspaper
establishments and newspaper employees, gives its decision fixing the wages of
different categories of the newspaper employees including working and
non-working journalists--As far as the process of performing a legislative
activity is concerned, it is to be done following the guidelines provided in S.
10 of the N.E.C.S. Act, 1973. [P.
367] Y
Constitution of Pakistan,
1973--
----Arts. 3
& 18--Newspaper Employees (Conditions of Service) Act, (LVIII of 1973),
Preamble--Freedom of trade, business or profession--Elimination of
exploitation--Award of the Wage Board--Newspaper Employees (Conditions of
Service) Act, 1973 is not ultra vires the Constitution being contrary to its
Art. 18 as well as Art. 3 as the wages of the
newspaper employees are fixed following the object and purpose of the
legislation. [P. 368] Z
Newspaper
Employees (Conditions of Service) Act, 1973 (LVIII of 1973)--
----S. 9--Award
by Wage Board--Direction to pay the wages determined under the Award from the
date of Constitution of Board does not make the award a retrospective activity. [P. 369] BB
Newspaper
Employees (Conditions of Service) Act, 1973 (LVIII of 1973)--
----S.
9--Constitution of Pakistan,
1973, Arts. 4 & 203--Access to justice to all--Scope--Award by Wage
Board--Nature--Wage Board determines the wages of newspaper employees,
therefore, it is not possible to stress that process of access to justice while
discharging legislative activities by the Board, has been denied--Right of
"access to justice to all" is a Fundamental Right, which cannot be
exercised in absence of an independent judiciary providing impartial, fair and
just adjudicatory framework i.e. judicial hierarchy--Courts/Tribunals, which
were manned and run by executive authorities without being under the control
and supervision of the High Court in terms of Art. 203 of the Constitution can
hardly meet the mandatory requirement of the Constitution--Departure had taken
place from the process of access to justice--Wage Board determines the wages of
the newspapers employees like a Pay Commission, therefore, hardly it is
possible to stress that process of access to justice while discharging
legislative activities has been denied--When individual rights were being
determined/decided by a forum exercising judicial function, aggrieved person is
entitled to right of appeal, but if powers are exercised other than judicial or
administrative as a delegatee on behalf of the Federal Government empowered to
give Award as per supporting legislation, like framing of the rules, which is
not carried out by the legislature but by the authority in the concerned
statute. [P. 369] CC
PLD
1998 SC 1445 and PLD 1998 SC 53 ref.
Newspaper
Employees (Conditions of Service) Act, 1973 (LVIII of 1973)--
----Ss. 12-A & 13(4)--Constitution of Pakistan, Arts. 4 & 9--Powers
of Implementation Tribunal for Newspaper employees are of administrative
nature, meant for the purpose of implementation of the decision of the
Board--Principles. [Pp. 370 &
371] DD & EE
PLD
2001 SC 568 ref. [(1999) 1 All ER 577 and 1(1993) 2 All ER 724] distinguished.
Newspaper
Employees (Conditions of Service) Act, (LVIII of 1973)--
----S.
9--Chairman of Wage Board--Functions--Nature--Chairman performs a function,
which is a legislative activity and not a judicial or quasi judicial
act--Chairman is not a Judge even though he be or may have been a Judge. [P. 373] FF
Bias--
----Legislature--Mala
fides cannot be attributed to legislature--Bias, or the preception of bias has
to be established. [P. 373] GG
Newspaper
Employees (Conditions of Service) Act, 1973 (LVIII of 1973)--
----Ss. 9 &
10--Constitution of Pakistan,
1973, Art. 184(3)--Contention was that legislature had completely abdicated its
powers, as it had made excessive delegation of powers to the Wage Board without
any guidelines--Petitioners had not pointed out during the proceedings or
thereafter as to how Chairman of the Board had exceeded his authority/jurisdiction
which was conferred upon the Board in terms of S.10 of the Act--Contention of
the petitioner was repelled, having not been made with reference to any
particular item in the award. [Pp. 373
& 374] HH
PLD
1966 SC 388; PLD 1966 SC 854; PLD 1983 SC 358 and PLD 1988 SC 670 ref.
Newspaper
Employees (Conditions of Service) Act, 1973 (LVIII of 1973)--
----Ss. 9 &
10--Wage Board--Objection was raised that as there was no industrial dispute,
therefore, Government, suo motu, could not appoint the Wage Board for fixation
of wages of the newspaper employees--Held, under S.9(1)
of the Act, it was prerogative of the, Federal Government to constitute
whenever it so considered necessary by notification in the official Gazette the
Wage Board for fixing the wages of the newspaper employees--Principles. [Pp. 374 & 375] II
AIR
1958 SC 578 ref. 1998 CLC 65 ref.
Newspaper
Employees (Conditions of Service) Act, 1973 (LVIII of 1973)--
----Preamble--Scheme
of the Act shows that comprehensive procedure-cum-substantive code has been
provided to the newspaper employees by the legislature in view of the nature of
their duties which they have to perform necessarily other than the workers or
workmen as defined in relevant labour laws--No redundancy or superfluity
therefore, could be attributed to the Newspaper Employees (Conditions of
Service) Act, 1973 and the same is not ultra vires of the
Constitution--Legislature is not debarred from promulgating such laws as
general or special laws, vis-a-vis general civil laws, special rights, procedures--Comprehensive
procedural-cum-substantive code has been provided to the newspaper employees by
the legislature in view of the nature of their duties which they have to
perform necessarily other than the workers or workmen as defined in the Factories
Act or the West Pakistan Industrial and Commercial Employment (Standing Orders)
Ordinance, 1968, therefore, by means of the Act, their rights and obligations
had been protected--This is not the only statute of its nature where Payment of
Wages Act, have been applied by following the process of adoption of laws,
which is well settled approach in modern jurisprudence, If a subsequent Act
brings into itself by reference some of the clauses of a former Act, the legal
effect of that, is to write those Sections
into the new Act just as if they had been actually written in it with
the pen, or printed in it, and the moment you have those clauses in the latter
Act, you have no occasion to refer to the former Act at all--Similarly, a
statute may adopt all or only a part of another statute by express reference or
by re-enactment of the former in verbatim or in substantially the same
language--Therefore, no redundancy or superfluity can be attributed to the Act
on this score--The Legislature is not debarred from promulgating such laws as
general or special laws, vis-a-vis general civil laws, special rights,
procedures, etc., therefore, the Newspaper Employees (Conditions of Service)
Act, 1973 is not superfluous and cannot be declared ultra vires the
Constitution. [P. 378] JJ
Interpretation
of statutes--
----Import of
deeming clause in a statute--Purpose and nature--Purpose of importing a deeming
clause is to place an artificial construction upon a word/phrase that would not
otherwise prevail and sometimes it is to make the construction certain--Deeming
clause is a fiction, which cannot be extended beyond the language of the
section by which it is created or by importing another fiction. [Pp. 378 & 379] KK
Mr. Abdul Hafeez
Pirzada, Sr. ASC, Mr. Afzal Siddiqui, ASC, Mr. Mehmood A. Sheikh, AOR Assisted
by M/s. Hameed Ahmad, Mustafa Aftab Sherpao and Bilal Akbar Tarar, Advocates
for Petitioners/Employers.
Maulvi
Anwar-ul-Haq, Attorney General for Pakistan assisted by Salman Faisal, Syed Ali
Mustafa Gillani and Mrs. Shafaq Mohsin, Advocates On Court Notice.
Mr. Muhammad
Akram Sheikh, Sr. ASC for PFUJ (Dastoor Group).
Mr. Mehr Khan
Malik, AOR for Respondent No. 2C(i)(ii)(iii) & (v) (in C.P. No. 987/2011)
and for Respondent No. 4 (in C.P. No. 989 of 2011).
Mr. Salman Akram
Raja, ASC, Mehr Khan Malik, AOR, assisted by M/s. Umar Akram Chaudhry, Smeer
Khosa, Malik Ghulam Sabir, Yasir Latif Hamdani, Faiz Ghanghro, Ms. Aneesa Agha
and Ms. Sahr Bandial, Advocates for Respondent No. 3 (in C.P. No. 987 of 2011
and for Respondent No. 4 (in C.P. No. 988 of 2011) and for Respondent No. 6 (in
C.P. No. 989 of 2011).
Mr. Shaukat Aziz
Siddiqui, ASC and Raja Abdul Ghafoor, AOR for Respondent No. 3 (in C.P. No. 988
of 2011).
Nemo
(despite service of notice) for Respondent No. 1 (in C.P. No. 987 of 2011).
Nemo
(despite service of notice) for Respondent No. 1-3 (in C.P. No. 988 of 2011).
Nemo (despite
service of notice) for Respondent No. 1-2: (in C.P. No. 989 of 2011).
Dates of
hearing: 20th, 21st, 28th and 29.9.2011.
Judgment
Iftikhar
Muhammad Chaudhry, C.J.--The petitioners seek leave against two separate
judgments of even date, (31st May, 2011) passed by a learned Division Bench of
the High Court of Sindh at Karachi whereby Constitutional Petitions
Nos.D-1391/2004, D-1151/2007 and D-494/ 2008 filed by them challenging the
Constitutionality of the Newspaper Employees (Conditions of Service) Act, 1973
[Act No. LVIII of 1973], hereinafter referred to as the "NECOSA", or
in the alternative, the Constitutionality of the Seventh Wage Award dated 25th
October, 2001, and the powers of the Implementation Tribunal for Newspaper
Employees, hereinafter referred to as the "ITNE" were dismissed with
costs throughout.
2. Brief facts giving rise to the instant
petitions are that on 8th
July, 2000, the Government of Pakistan constituted the Seventh Wage
Board under the NECOSA for the purpose of fixing the rates of wages of the
newspaper employees. The Wage Board (hereinafter referred to as `the Board'),
headed by Hon'ble Mr. Justice Raja Afrasiab Khan, a former Judge of the Supreme
Court of Pakistan as Chairman along with 10 members, five each nominated by the
employers and the employees pronounced its Award, published by the Government
of Pakistan vide S.R.O. No. 744(I)/2001, dated 25th October, 2001. The petitioners,
All Pakistan Newspapers Society (APNS) and others, felt aggrieved by the Award
and made a representation to the Government of Pakistan through Secretary,
Information and Media Development and Secretary Labour Manpower and Overseas
Pakistanis, but no relief having been provided to them, they filed
Constitutional Petition No. 35 of 2002 before this Court under Article 184(3)
of the Constitution challenging, inter alia, the Constitutionality of the
NECOSA on the ground of being violative of their Fundamental Rights and ultra
vires the Constitution, as also the Award being void ab initio and of no legal
effect and consequence. This Court, vide judgment dated 8th April, 2004
reported as All Pakistan Newspapers Society v. Federation of Pakistan (PLD 2004
SC 600), dismissed the petition as not maintainable and the petitioners were
asked to avail remedy before the proper forum, if they so desired.
3. Three sets of the newspaper establishments,
namely, APNS & 14 others (petitioners in C.P. 987/2011); Pakistan Heralds
Publications & 7 others (petitioners in C.P. 988/2011); and APNS & 4
others (petitioners in C.P. 989/2011) then filed Constitutional Petitions
Nos.D-1391/2004, D-1151/2007 and D-834/ 2004 under Article 199 of the
Constitution before the High Court of Sindh. A learned Division Bench of High
Court of Sindh, vide two separate judgments of even date, i.e., 31st May, 2011
dismissed the said petitions. Aggrieved by the aforesaid judgments of the High
Court of Sindh, the petitioners have filed the instant petitions for leave to
appeal under Article 185(3) of the Constitution before this Court. As caveat
was filed by the contesting respondents, therefore, notices were issued to the
learned Attorney General for Pakistan and official respondents so as to finally
dispose of the petitions as the matter was lingering on for the last about ten
years.
4. Mr. Abdul Hafeez Pirzada, Sr. ASC for the
petitioners has argued that the NECOSA is ultra vires the Constitution and
liable to be struck down as a void law, inter alia, on the grounds that it has
not provided even a single right of appeal from any adjudicatory or directory
orders or actions, interim or final made or issued under it; although the
decision of the Board is deemed an Award of the Full Bench of the National
Industrial Relations Commission (NIRC), which can be questioned in
appeal/review/revision before a larger bench of the NIRC, yet no appeal is
provided against it; Chairman of the Board is empowered to hand down edicts and
Bills of Attainder, which violates not only Article 19 of the Constitution, but
also the fundamental principles of trichotomy of power, access to justice and
the independence of the judiciary; the Legislature has completely abdicated its
powers as it is excessive delegation of powers to the Wage Board, without any
guidelines, in terms of the judgments of this Court. There are various laws
already existing on the subject, incorporated in the Act of 1973 itself,
namely, (i) The Payment of Wages Act, 1936 [Section 2(h)]; (ii) The Provident Fund
Act, 1928 [Section 5(v)]; (iv) The Factories Act, 1934 [Section 6]; (v) The
Industrial & Commercial Standing Orders Ordinance, 1968 [Section 17]; (vi)
The Industrial Relations Ordinance, 1965 [Section 18]; (vii) The Social
Security Ordinance, 1965 [Section 19]; (viii) The Cost of Living Act, 1973;
(ix) The Employees Old Age Benefit Act, 1974; (x) The Workers' Participation
& Profit Act; and (xi) the Minimum Wages Ordinance, 1969; the Wage Board
and the Tribunal, constituted under the Act of 1973 are not judicial or
quasi-judicial forums/bodies who are exercising purely executive and
administrative functions in a discretionary manner. On merits of the Award, the
learned counsel has made the following submissions:---
(1) The newspaper owners are ready to implement
the Wage Board Award and what they had done, it was conditional implementation
and they are making payments in terms of the 6th Award conditional upon the
outcome of the pending proceedings in the Courts of law including the
intra-Court appeals before a Division Bench of the Lahore High Court;
(2) The 6th Award, which came in 1995, had
inbuilt provisions and a machinery in annual increment of not less than 10% per
annum and promotion to higher grades. These increments have been regularly
given and promotions have not been withheld, so the workers are presently
getting more than 300 % of their emoluments;
(3) As far as the Seventh Award is
concerned, it is to. be noted that it is not as if
they are totally oblivious because both owners and working journalists cannot
exist without each other. This recognition is always there. Ex-gratia payments,
i.e. payments without commitment, are being made, especially under the Seventh
Award. However, one commitment was made that if and when the Seventh Award would
be implemented, these payments, which they are receiving, would be set-off;
(4) Under the Seventh Award, the newspapers
exist in categories A and B, i.e., the metropolitan newspapers fall in Category
A while the regional papers fall in Category B. In the first category, there
are only three metropolitan cities, namely, Karachi, Lahore and Rawalpindi-Islamabad, the
publication whereof is listed as Grade A. The basic pay of an Editor Grade
employee of a metropolitan newspaper was proposed at Rs. 9,400/- with a maximum
of Rs. 13,900/- and now the said employee with perks and privileges is getting
in lacs;
(5) Nobody has been denied annual increments
and now some of them are getting more than twice or thrice;
(6) There are about 40,000 declarations of
the newspapers at the moment floating around Pakistan with an initial list of
260 who are the members and the membership has gone up to 2300 in Pakistan -
this process of increment is automatic and it is calculated over a period of 16
years since 1995 and even if it were to be taken at the rate of 10% with
compound increase over and over, it will not be less than 300% to 400% of what
they were getting in 1994, which would be less than 250% of what the Seventh
Award has given them;
(7) The metropolitan newspapers cannot be
judged according to the standard of the Jang, the Recorder or the Dawn or the
Nawa-e-Waqt who are giants in their own rights, having their own TV Channels;
(8) Many of the journalists have now opted
out of being newspapers journalists to the electronic media where they are
getting approximately 2 to 3 times salaries. Voluntarily they are coming and
entering into agreements. It is a universal phenomenon all
over the world-people always have ingenious minds to find ways how to
circumvent the things. Access has been evaded, companies have been found in
camel islands. Now here it is happening including in the State organizations is
that many of these services, which are to be performed by the employees, are
being so stout. Many of newspapers have handed over entire security to many
security companies, which PIA and other organizations has done in various
fields, such as catering, etc., As such, when a big chunk of employees are no
longer employees of an organization, their responsibilities no longer rest upon
the organization. They are no longer entitled to the benefits of the Wage Board
Award. Employer's contract is with an independent body to provide those
services instead of getting such services directly from the employees. Many
companres hire the security agencies, which have contract with many companies
and the employees are of security agencies and they are not employees of the
companies so this is happening all over Pakistan. The learned counsel has
proposed to his clients that they accept in spirit the Seventh Wage Board Award
vis-a-vis the working journalists. His advice has been well received at this
moment because it is a body, which has to take a decision. And to this extent
he is hopeful that they will come back with a positive response. According to
him, millions are not being made anywhere except some newspapers, i.e. Jang,
Dawn, etc., but for the newspapers having three members staff sitting in
Mastung, this is arbitrary. Today, the editor of Kohistan is sitting with
aside. Daily news papers; Nasim Hijazi's newspaper; and this gentleman along
with another outstanding newspaper "Sun" were the first victims of
the Wage Board Awards and it closed down. The newspaper Muslim of Agha Murtaza
Poya's had to shut down; Taamir was shut down after the 4th Wage Board Award;
The Morning News from Karachi,
with Khawaja Khairuddin as the Editor was shut down following the 5th Wage
Board Award. There is a statement that 190 newspapers have been shut down -
what would be about their workers/hawkers? The Government is the biggest
advertiser in the country. Since 2001 when this Award came, the Government has
not increased the rates of advertisement even by 1%.
5. Mr. Muhammad Akram Sheikh, learned Sr. ASC
stated that he is representing Dastoor Group of the PFUJ whereas Ms. Asma
Jehangir would be representing the Working Group, the other component of the
PFUJ. He submitted that the decision of the Wage Board is akin to arbitration
proceedings, which is suggestive of a greater cordiality amongst the employers
and the employees.
6. Mr. Salman Akram Raja, ASC, who also argued
on behalf of Ms. Asma Jehangir, learned counsel for the Working Group of PFUJ
submitted that the Wage Board Award has wrongly been characterized as a
judicial verdict rendered by a non-judicial forum. Even, it is not akin to
arbitration; rather it is in the nature of price fixation of different
commodities. The former essentially decides an existing dispute between two
parties whereas no dispute was presented before the Board. In the latter case, whenever
rates are fixed, it is in the nature of rule making, which is always done for
the future. Right of appeal would come in where any individual right is
determined one way or the other. Even the function performed by the ITNE is not
adjudication or determination of the rights and obligations, but it simply
implements the decision of the Board, not to make any further determination.
The Tribunal is like the Collector of Customs because he simply applies the
law. No trial is pending before the Tribunal, nor any
punishment has ever been awarded by it. There is no cause of action and
the Courts do not entertain challenges where there is no cause of action or
where there is no live issue. The impugned powers of the Tribunal have never
been invoked or exercised, therefore, there is no
occasion to challenge the same. The question is purely academic in nature. As
to the discrimination argument, it is established law that there can be a
class. The newspaper industry is clearly distinguishable from other industries,
e.g. cement, textile, etc. So, in order to regulate one, all do not have to be
regulated. The Constitution leaves that area open to the legislature. This is
the only sector referred to as the fourth pillar of the State. As to the bias,
the Chairman is not a judge, his function is essentially information gathering
and then laying down the rates of wages. Nothing has been brought on the record
to show that the finding of the Board is perverse except taking advantage of
their own boycotts. As to the excessive delegation, guidelines are there in the
statute and it is a ground used most sparingly to strike down a legislation. It is not shown with any specific instances
from the Award that the Chairman has acted in excess of the authority vested in
him. The ground of occupied field is not available. This happens all the time.
General civil law is in place, but special laws, such as banking, cooperative
societies etc., creating special procedures for the
determination of certain rights are enacted. On the role of the Chairman and
Members of the Board, the High Court of Sindh in its judgments has given
finding. The language of the law is clear that the divergent parties are
represented in equal number and it is the Chairman who decides by putting the
casting vote.
7. Mr. Shaukat Aziz Siddiqui, learned ASC
supported the arguments advanced by Mr. Salman Akram Raja and added that the
representatives of the newspaper establishments, after joining in the
consultative process before the pronouncement of the Award, cannot insist upon
providing a right of appeal to them.
8. The learned Attorney General for Pakistan
supported the Constitutionality of the NECOSA and the Wage Award.
9. Keeping in view the importance of the
Constitutional issues raised in these petitions, challenging the vires of
NECOSA, it is considered appropriate to look into the history of the laws on
the subject for the purpose of better understanding of such issues. Initially,
the Working Journalists (Conditions of Service) Ordinance, 1960 (hereinafter
referred to as "the Ordinance, 1960") was promulgated to regulate
certain conditions of service of working journalists and other persons and to
provide for Constitution of a Wage Board. Section 8 of the
Ordinance, 1960 provided that it was within the jurisdiction of the Provincial
Government to constitute a Wage Board. The scope of the Wage Board was
confined to the fixation of wages of working journalists as defined under
Section 2(f) of the Ordinance. On 30th May, 1960, the First Wage Board was constituted
headed by late Mr. Justice Sajjad Ahmad Jan, the then Judge of the High Court,
as the Chairman of the Board. The Wage Board gave its decision on 31st December, 1960. The
decision of the Wage Board was subject to review and revision after five years
from the date of its enforcement by an authority that might be set up by the
Federal Government. However, instead of five years, the Second Wage Board was
constituted on 25th April,
1969. The Board announced its decision on 8th June, 1974, fixing new pay scales of
the newspaper employees while maintaining the categorization of the newspapers,
periodicals and the news agencies as was already done in the First Wage Board
Award.
10. It seems that despite pronouncement of two
Wage Boards Awards, it failed to achieve the object as no effective/independent
forum was provided for the redressal of the grievances of non-journalist
newspaper employees, as a result whereof the newspaper employees had been
observing strikes, etc. Thus, after the integration of the Provinces of West
Pakistan and East Pakistan, the Provinces were
authorized to constitute Wage Boards for fixing wages of the newspaper working
in the respective Provinces. All the Provinces agreed on the Constitution of
one Wage Board. The journalists started demanding that the Constitution of the
Wage Board should be brought under the control of the Federal Government
(reference may be made to the Parliamentary Debates). As such, under the
circumstances, keeping in view the difficulties highlighted hereinbefore as
well as to avoid uncertainty and
to provide smooth and peaceful atmosphere, the NECOSA was enacted on 11th August, 1973. The
difference in both the enactments is apparent from their titles. Former i.e.
the Ordinance was only to regulate the service conditions of working
journalists, whereas, the NECOSA was meant for the working journalists as well
as other persons employed in the newspaper establishments. It would not be out
of context to mention here that the latter enactment, in fact, was in continuation
of the Ordinance, 1960 as the former was repealed by it with certain
amendments, re-enacting Section 2(c), (d) and (e) and Sections 9, 10, 11, 12, 12A, 13 and 13A.
11. The Third Wage Board, constituted on 24th January, 1979, headed
by Mr. Justice (R) Muhammad Munir Faruquee as its Chairman, initially provided
interim relief on 5th August,
1979 and then announced final decision on 25th May, 1980, following the existing
scheme of categorization of establishments and the gradation of the employees.
The Fourth Wage Board, constituted on 4th October 1984 under the chairmanship of Mr. Justice
Mian Fazle Mahmood, Judge of the Lahore High Court, initially provided interim
relief on 10th January, 1985
and then announced the final decision on 28th September, 1985, following the existing
scheme of categorization of establishments and the gradation of the employees.
The Fifth Wage Board constituted on 20th July, 1989 under the chairmanship of Mr. Justice Agha
Ali Haider, Judge of the High Court of Sindh gave its decision on 18th December, 1990. The
Sixth Wage Board, headed by Mr. Justice Zia Mahmood Mirza, a former Judge of
the Supreme Court of Pakistan was constituted on 23rd October, 1994, granted interim relief on 1st December, 1994 and
thereafter announced the final decision on 13th March, 1996.
12. It is informed that the Sixth Wage Board was
challenged before the Lahore High Court by filing Writ Petition No. 8926 of
1996, which was dismissed vide judgment dated 12th September, 1997 reported in
Pakistan Herald Publications (Private) Ltd. v. Federation of Pakistan (1998 CLC
65). Against the said judgment, I.C.A. No. 859 of 1997 was instituted in the
Lahore High Court, which remained pending from 1997 until 16th June, 2010 when it was consigned
to record, in terms of the order of the said date, with the observation that
"we, therefore, consign this appeal to record. If and when the appellants
make arrangements for appropriate representation before this Court, they may
make any application for re-fixation/revival of this case." Mr. Afzal Siddiqui, learned ASC stated that so far no application has
been filed for re-fixation or the revival of the ICA. It would also not be out of context to
note that in absence of stay order, reportedly the
Sixth Wage Board Award has been implemented.
13. One of the questions agitated by Mr. Abdul
Hafeez Pirzada, Senior Advocate Supreme Court is in respect of violation of
Article 25 of the Constitution qua classification between the working
journalists and non-working journalists given in Section 2(d) of the NECOSA.
According to him, the definition of newspaper employees is unjustified and
unreasonable as two distinct classes of persons, i.e., working and non-working
journalists have been combined through it, which does not stand the test of
reasonable classification, thus, the NECOSA has been rendered as a bad law and
unConstitutional and the same is liable to be struck down on this ground. In
this context his arguments are two fold:--
(i) There is no reasonable classification
undef Section 2(e) of the NECOSA between working and nonworking journalists.
(ii) Except newspaper establishments no other
industry has been subjected to any special law for fixing wages of the
employees working therein and newspaper industry has been picked up with an
object not recognized under the law.
14. Mr. Salman Akram Raja, learned Advocate
Supreme Court submitted that the Ordinance of 1960 was promulgated wherein in
terms of Section 8(1), the Wage Board was empowered to fix rates of wages of
the working journalists only, therefore, on promulgation of the NECOSA the
Board was empowered to fix wages of the newspaper employees, which includes a
whole-time journalist and a whole-time non-journalist to ensure smooth working
of the newspaper industry.
15. Learned counsel in the same breath has made a
statement that the owners of the newspapers (petitioners) are likely to accept
in spirit the Seventh Wage Award vis-a-vis the working journalists. It may be
noted that somehow identical statement was also made by him while appearing in
the case of All Pakistan Newspapers Society's case (PLD 2004 SC 600). When we
drew his attention towards the said statement, he did not deny the same, but
stated that it was a conditional statement and to elaborate his plea in respect
of the same stand, he had gone to the extent of stating that advice so given by
him would be considered in a meeting by the newspaper establishments. The
representative of the respondents vehemently opposed the statement and stated
that the Court may decide the case on merits instead of leaving it to the
newspaper establishments. However, from his above stance, prima facie, it is
established that the petitioners are ready to accept the Seventh Wage Award as
far as the working journalists as defined in Section 2(d)(i) ibid. Be that as
it may, to deal with this argument, we have to refresh our memory with the
background/history/circumstances, which persuaded the legislature to make
amendments in the Ordinance of 1960 and without any fear of contradiction that
all the Awards given by the Wage Board for both the categories of newspaper
employees, i.e., working journalists and non-working journalists in terms of
Section 2(d) of the NECOSA have been implemented. Learned counsel without
supporting his arguments on the basis of material stated that some of the
allied services, e.g., printing and publication, security services, catering,
etc., have been outsourced, therefore, the persons engaged in those areas could
not be treated as the employees of newspaper establishments. As such, the
definition of newspaper employee based on irrational classification being
violative of Article 25 of the Constitution is not acceptable. There is no
cavil with the proposition that all citizens are equal before the law and are
entitled to equal protection of law. But, we fail to understand as to how this
point is available to the newspaper establishments because they have to plead
discrimination under Article 25 of the Constitution if for the sake of argument, they have not been treated equally under the
definition of newspaper employees given in Section 2(d) of the NECOSA.
Apparently, under this provision of the law, categories of working journalists
and non-working journalists have been created for argument's sake,
newspaper employees could plead discrimination or irrational classification
against themselves. However, the petitioners/newspaper establishments
legitimately can agitate against the rate of wages fixed by the Wage Board for
both the categories of the newspaper employees.
16. In the case of Pakistan Herald Publications
(supra) on behalf of a group of owners of newspapers, contention was raised
that though there may be some justification for treating the working
journalists as a separate class and fix their wages considering the nature of
their duties, but there was no occasion for giving similar treatment to other
employees of the newspaper establishments who are non-working journalists. This
contention on their behalf was repelled as under:--
"38. I am
unable to agree with the learned counsel. The Act on the face of it provides
for fixation of wages of all newspaper employees, both journalist and
non-journalists. The law was framed to ensure payment of wages and salaries of
the persons engaged in the newspaper industry as a whole in recognition of the
position that dissemination of news is vital to public interest. It was,
therefore, necessary to ensure that all those persons who are engaged in
bringing out newspapers should be free from shackle of economic misery and the
resultant sense of despondency. The nature of duties being performed by the
journalists may be unique and of more importance but it is equally clear that
without the participation of other non-journalists employees it is not possible
to bring out a newspaper. The legislature, being alive to this position, has
chosen to frame the law for the newspaper industry as a whole which by itself
is a separate class. This classification cannot be said to be arbitrary or
irrational and the question of violation of Article 25 of the Constitution
which does not prohibit reasonable classification, does not arise. It may be
noticed that the earlier law namely the Working Journalists (Conditions of
Service) Ordinance, 1960 provides for fixation of wages of the working journalists
only which was found to be unsatisfactory. The Newspapers Employees (Conditions
of Service) Act, 1973 which repealed the aforesaid Ordinance, therefore,
provides for fixation of wages of both whole time journalists and whole time
non-journalists and defined in sub-clause (i) and sub-clause (ii) of clause (8)
of Section 2 of the Newspaper Employees (Conditions of Service) Act, 1973.
39. There is also merit in the contention of Mr.
Minto that the grant of better conditions of service only to the journalists as
compared to other persons engaged in bringing out of the newspapers tended to
create friction among the two sets of employees and was not congenial to the
better relations inter se. It may also be mentioned here that relevant law in India namely.
The Working Journalists (Conditions of Service) and Miscellaneous Provisions
Act, 1955 was originally applicable only to working journalists but by
subsequent amendment, provision has been made for fixing wages of the non
journalists also. In Independent Newspapers Corporation (Pvt.) Ltd. v. Chairman
Fourth Wage Board and Implementation Tribunal for Newspaper Employees,
Government of Pakistan, Islamabad (1993 SCMR 1533), it was observed that the
purpose of Newspaper Employees (Conditions of Service) Act, 1973 is the
betterment of financial condition of persons employed in the newspaper
establishments and it should receive beneficial construction."
At this
juncture, it is to be observed that as far as the working journalists or
non-working journalists are concerned, they have no reservations against each
other although according to the Wage Board Award, the wages of both types of
newspaper employees are not at par as is evident from the contents of the
Award. The argument so raised by the learned counsel has not impressed us, as
it has already been observed hereinabove that the grievance of the petitioners
at the best could be that the wages of the newspaper employees of both
categories i.e., working journalists and non-working journalists, fixed by the
Board are irrational.
17. There has been a protracted litigation in the
instant case. Earlier, a petition under Article 184(3) of the Constitution was
filed before this Court, which was decided in the case of All Pakistan
Newspapers Society (supra). Then petitions under Article 199 were filed before
the High Court of Sindh, which remained pending for a considerable period of
time, and prior to instant legal proceedings, the question being raised, has
been decided by the Lahore High Court in 1998 in Herald Publications case. But
despite it, no material has been brought on record to substantiate the plea of
discrimination to the petitioners by defining "newspaper employees"
under Section 2(d) of NECOSA has caused to them and how wages fixed by the
Board were irrational. Article 25 of the Constitution confers a right upon the
citizens that they should be treated equally and whosoever challenges any
provision of the law, it becomes his responsibility to prove the same and in
absence thereof it is held that Section 2(d) of the NECOSA is not violative of
Article 25 of the Constitution.
18. Mr. Salman Akram Raja, while laying down
foundation of his case, has drawn our attention towards the case of All
Pakistan Newspapers Society v. Federation of Pakistan (PLD 2004 SC 600) and
submitted that the NECOSA is a beneficial legislation, which is aimed at the
betterment of the newspaper employees, therefore, it
should receive beneficial construction. It is well-settled that there is a
presumption in favour of the Constitutionality of legislative enactments, the
Courts must lean in favour of upholding the Constitutionality of a legislation
and that the law should be saved rather than destroying it. Reference in this
behalf may be made to the cases of Abdul Aziz v. Province of West Pakistan (PLD
1958 SC 499), Province of East Pakistan v. Siraj-ul-Haq Patwari (PLD 1966 SC
854), Inam-ur-Rehman v. Federation of Pakistan (1992 SCMR 563), Sabir Shah v.
Shad Muhammad Khan (PLD 1995 SC 66), Multiline Associates v. Ardeshir Cowasjee
(PLD 1995 SC 423), Elahi Cotton Mills Ltd. v. Federation of Pakistan (PLD 1997
SC 582), Tariq Nawaz v. Government of Pakistan (2000 SCMR 1956), Asif Islam v.
Muhammad Asif (PLD 2001 SC 499) and Federation of Pakistan v. Muhammad Sadiq
(PLD 2007 SC 133). He further contended that as far as the Parliament is
concerned, it is competent to legislate a law making rational classification
amongst different persons similarly placed in view of the judgments pronounced
by this Court from time to time, including the case of I.A. Sharwani v.
Government of Pakistan (1992 SCMR 1041) wherein the principles governing
reasonable classification were highlighted. In I.A. Sharwani's case (supra),
this Court had highlighted that reasonable classification should be based on--
(a) intelligible
differentia, which distinguishes persons or things that each group together
from those who have been left out.
(b) That differentia must have nexus to the
appeal cited achieved by such classification.
19. Although we have held hereinabove that the
plea of unjustified or unreasonable classification in terms of Article 25 of
the Constitution of creating two categories of employees, working journalists
and non-working journalists would only be available to the newspaper employees
who have been placed in one compartment, although the nature of their job, for
the sake of argument, is different from each other, i.e., a whole time
journalist an editor, a leader writer, news editor, feature writer, reporter,
correspondent, copy tester, cartoonist, news photographer, calligraphist,
writer, news editor, feature writer, reporter correspondent, copy tester,
cartoonist news photographer, calligraphist and proof reader, and a whole time
non-journalist manager, clerk, stenotypist, printing engineer, linotype,
operator, composer, type-seller, photo studio attendant, printing worker,
accountant and office peon, who are performing distinct and different
functions. However, without prejudice to the discussion made hereinabove,
looking from this angle as well and presuming that the petitioners have
grievance that a reasonable classification has not been made amongst the
working journalists and non-working journalists. We have to apply the test
noted hereinabove from the case of I,A. Sharwani
(supra) on the definition of the newspaper employees. In this context, it may
be noted with reference to the object and text as a whole of the NECOSA is to
be made to ascertain that it is not a journalist or any other individual alone
who can successfully provide support to the newspaper industry for printing and
publication of the newspapers containing public news or comments, etc. Argument
of Mr. Shaukat Aziz Siddiqui, learned counsel for the respondents at this stage
seems to be very relevant as according to him without causing prejudice to the
case of any of the categories of the newspaper employees, whenever a news is
generated or broken, it would be of no use without the help of the supporting
staff who fall within the category of a whole time non-journalist specified in
Section 2(d)(ii) of the NECOSA to publish and print it because the object and
purpose is to print, publish and circulate the newspapers, therefore, there is
a nexus in the performance of the duties by the different categories of both
types of persons with cooperation and collaboration with each others. Thus, on
the basis of intelligible differentia the categories of the newspapers
employees are different and distinct from other persons who are engaged in some other
industries, but their object and purpose is not common as is shown that object
and purpose of both the categories is common and to achieve the same there was
a necessity of classification.
20. Thus, such classification calls for equal
protection of law to the working journalists and non-working journalists because
they are equally placed, as such deserves to be treated alike both in
privileges and liabilities. As far as promulgation of the NECOSA is concerned,
it is the domain and prerogative of the legislature, which has wisdom to
promulgate a law to achieve a particular object and purpose presumably
promulgating such laws legally, validly and Constitutionally
on the basis of its competence. In the instant case, the competence of the
legislature has not been questioned except, inter alia putting forward the
arguments noted hereinabove.
21. Learned counsel also contended that the
employees of the electronic media, i.e., radio and television are not covered
by the NECOSA, therefore, applying phenomena of pick and choose, prejudice has been caused to the petitioners. Suffice to
observe that in view of the above discussion, the newspaper industry is
distinct and different from all other industries referred to hereinabove by the
learned counsel and at the same time for such reason alone the NECOSA cannot be
declared ultra vires the Constitution.
22. It may be noted that as far as Article 19 of
the Constitution is concerned, it deals with freedom of speech, etc. Thus,
argument raised by the learned counsel that by phenomena of pick and choose,
discrimination has been caused to the petitioners has no substance.
23. Mr. Abdul Hafeez Pirzada, Sr. ASC, learned
counsel for the petitioners vehemently contended that the provisions of the
NECOSA are violative of the Fundamental Rights enshrined in Articles, 4, 10A,
18, 19, 24 and 25 as well as Article 2-A of the Constitution, therefore, the
same deserve to be declared as void. The learned counsel vehemently contended
that it is, in particular, violative of the due process of law clause as
recently introduced into the Constitution by means of Article 10A inserted by
the 18th Amendment as in Section 9 of the NECOSA, no right of appeal was
provided against the Wage Award. In support of his argument, he relied upon the
judgment in the case of In re: Islamization of Laws (PLD 1986 FSC 29) wherein
on the recommendations of the Federal Shariat Court, right of appeal was
ordered to be provided to the convicts of the Field Court Martial. He also
submitted that it is violative of the judicial system as it negates the rights
of access to justice in terms of Sharaf Faridi's Case (PLD 1994 SC 105).
24. On the other hand, Mr. Muhammad Akram Sheikh,
learned counsel for the respondents contended that the Legislature, keeping in
view the history of the service conditions of the working journalists and
newspaper employees, validly promulgated the NECOSA in accordance with the
Constitutional provisions, which, in no way, violated the Fundamental Rights of
the petitioners. According to him, the NECOSA has survived since 1973 during
course whereof five awards have been pronounced, which have been implemented
and in no manner it has been found violative of the due process of law. He
submitted that non-availability of any right of appeal could not be a ground to
strike down any legislative instrument on the pretext of violation of due
process of law. Further, the NECOSA is not a discriminatory, unjustified or an
unreasonable law, as the definition of newspaper employees has not created a
separate class between working and non-working journalists and other persons
working in the newspaper industry on account of nature of their duties, rather
it creates a nexus with the object of the legislation, viz., to regulate the
conditions of service of the newspaper employees. The legislation in question,
in order to ensure smooth functioning of the newspaper industry and to
establish nexus between newspaper establishments and newspaper employees
brought about amendments in the Working Journalists (Conditions of Service)
Ordinance, 1960 as a result whereof the NECOSA was promulgated and on account
of the mechanism provided for fixation of the wages, all the previous Awards
under the NECOSA, except the Seventh Award, have been implemented and the
newspaper industry is functioning smoothly and satisfactorily. The learned counsel
were of the opinion that the nature of function entrusted to the Wage Board of
determining future wages of the newspaper employees under the NECOSA was a
legislative act, against which non-providing of right of appeal would not be
tantamount to denial of the due process of law.
25. Mr. Shaukat Aziz Siddiqui, learned ASC fully
supported the arguments advanced by Mr. Salman Akram Raja and added that the
vires of the NECOSA for ascertaining whether it is inconsistent with any of the
Fundamental Rights as per Article 8 of the Constitution, the petitioners who
represent certain newspaper establishments, not more than 80 newspapers in
number, are not holding brief on behalf of the whole lot of newspaper
establishments, whereas rest of them have not challenged the vires of the
NECOSA, therefore, from this angle alone, the bona fides of the petitioners can
be judged. He submitted that the learned counsel for the petitioners has failed
to point out any violation of the Fundamental Rights, except claiming a right
of appeal against the Award. According to him, equal numbers of representatives
of the newspaper establishments (petitioners) and of the newspaper employees
(respondents) are nominated to advise the Chairman of the Wage Board,
therefore, after joining in the consultative process before the pronouncement
of the Award, they cannot insist for providing a right of appeal to them. The
non-working journalists are the backbone of the newspaper industry and in
absence of the services, which are provided by them for the smooth running of
the newspaper industry, the State cannot enforce Article 19 of the
Constitution.
26. The learned Attorney General for Pakistan
submitted that the NECOSA as well as the Seventh Award dated 25th October, 2001 are not
violative of any of the Fundamental Rights of the petitioners or the due
process of law as envisaged by the Constitution. Therefore, the same are intra
vires the Constitution.
27. Under Article 8 of the Constitution this
Court is empowered to declare void any law or any custom or usage having the
force of law if it is inconsistent with, or is in derogation of any of the
Fundamental Rights. In the instant case, the petitioners have challenged the
Constitutionality of the NECOSA on the strength of arguments that it is in derogation
of the Fundamental Rights. His specific argument for declaring the NECOSA
unConstitutional is that right of appeal has not been provided against the Wage
Award, therefore, it is against the due process of law
and is also discriminatory in nature.
28. Before dilating upon the respective
contentions of the learned counsel for the parties, it is to be noted that
under Section 9(1) of the NECOSA, the Federal Government vide notification No. Lab-II-I(19)/99 dated 8th July, 2000 constituted
the Wage Board for fixing the rates of wages in respect of the newspaper
employees in accordance with the provisions of the NECOSA. Hon'ble Mr. Justice
Afrasiab Khan, former Judge of the Supreme Court was appointed as the Chairman
of the Board vide Notification No. I-19-99-Lab-II
dated 19th June, 2000.
The petitioners, All Pakistan Newspapers Society, nominated five persons vide
letter dated 26th January,
2000 as members of the Wage Board. Similarly, five members were
nominated on behalf of the newspaper employees. For reference composition of
the Board is given below:--
Chairman
Mr. Justice Raja
Afrasiab Khan
Former Judge,
Supreme Court of Pakistan
Employers
Members
(i) Mr. Hameed Haroon, President APNS and Chief Executive Officer,
Pakistan Herald
Publications (Pvt.) Ltd.
(ii) Mir Shakil-ur-Rahman, Chief Editor Jang
(iii) Mr. Arif Nizami, President, CPNE and
Editor, The Nation, Daily Nawa-e-Waqat
(iv) Mr. Arshad A. Zuberi, Editor Business
Recorder
(v) Syed Fasih Iqbal, Editor, Daily
Balochistan Times
Employees Members
(i) Mr. Abdul Hameed Chhapra, Chairman,
APNEC, Karachi
(ii) Mr. I.H. Raashid, President PFUJ, Lahore
(iii) Mr. Pervez Shaukat, Secretary General,
APNEC, Rawalpindi
(iv) Mr. Majid Fauz, President, Union of Balochistan Journalists, Quetta
(v) Mr. Abdullah Jan, Assistant Secretary
General, PFUJ, Peshawar
Under Section
9(2) of the NECOSA, both categories of the members were to advise the Chairman.
Under Section 9(3) of the NECOSA, the time limit fixed for giving an Award by
the Board is 180 days. Under Section 10(1) the Board, while fixing rates of
wages in respect of newspaper employees [both journalists and non-journalists
as per Section 2(d)] is required to take into consideration the cost of living,
prevailing rates of wages of comparable employment, the circumstances relating
to the newspaper industry in different regions of the country and any other
circumstances, which the Board may deem relevant. It is important to note that
as per Section 10(2) of the NECOSA, the Board is also empowered to fix the wages
for timework and for piecework.
29. The Board convened its first meeting on 29th August, 2000 at Islamabad. The Members of
the newspaper establishments boycotted the first meeting and a letter dated
24th April, 2000 was addressed to the Director General (Internal Publicity),
Ministry of Information, wherein without prejudice to, and subject to the
conditions noted therein, it was stated that in absence of clear and
categorical assurance in terms of the letter, the persons nominated will not
participate in the proceedings of the Board and nomination would be deemed to
have been withdrawn. The said conditions were as under:--
"II.
7.
The prior to being signed by the Chairman and publication in the official
Gazette the Award must be circulated amongst the members, the members must be
allowed to record their concurrence with or dissent from the Award and such
concurrences and/or dissents must also be published along with the Award signed
by the Chairman.
III.
That unless the above requests are acceded to the proceedings before the Board
will neither be fair nor will they appear to be fair. That our
members have no intention of being part of a Board or of participating in the
proceedings thereof unless it conforms to the Fundamental Rights guaranteed by
the Constitution, adopts the necessary procedural safeguards and does not deny
due process both substantive and procedural to the melnbers of the various
newspaper establishment(s) that will appear before it in due course."
Similarly, they
also did not attend the second meeting held on 3rd October, 2000 at Chamba House Lahore and
the third meeting held on 30th & 31st October, 2000 at Quetta and ultimately they ended their
boycott and took part in the deliberations of the Wage Board during the meeting
held on 13th & 14th
November, 2000 at Peshawar.
Pending process of the completion of the proceedings of the Wage Board, an
interim relief was given to the employees. Again, for the second time, the
representatives of the owners boycotted the Wage Board meeting. As the decision
of the Wage Board had to be given within 180 days of its constitution,
therefore, the Chairman visited different places, collected evidence and also
procured the evidence of financial experts, namely, Dr. A.R. Kamal and Dr.
Muhammad Irfan and on the basis of deliberations and the material so collected,
gave the decision.
30. As far as
question of declaring the NECOSA unConstitutional on the ground of
non-provision of right of appeal against the decision of the Board is
concerned, it is necessary to bear in mind the questions as to whether there is
any dispute between two parties in an adversarial litigation against each
other, which requires to be decided by the Board, and as to whether the claim
of entitlement of one of the parties is against the State or any State agency,
which requires determination by the Board or the Board is performing a
legislative act where there is no existing right or dispute to be decided
between the parties. As it has been pointed out while noting the history of all
the Wage Board Awards in this country, somewhat similar position has prevailed
in the neighbouring country with the difference in the composition of the Board
and the duties assigned to the members. Initially, in the said country as well,
the Working Journalists (Conditions of Service and Miscellaneous Provisions)
Act, 1955 was promulgated, which was subsequently amended in 1974 in pursuance
whereof separate wage boards were constituted in respecl of working journalists
and non-working journalists under Sections 9 and 13, however, in both the
categories of the Board, the Chairman and the members were to perform their functions collectively whereas under
the NECOSA though they have to work collectively, but the members are to give
advice, on the basis of which decision is to be given by the Chairman.
31. Article 9 of the Constitution provides that
no person shall be deprived of life or liberty save in accordance with law. The
word `life' has been interpreted by this Court in various cases, notably Shehla
Zia v. WAPDA (PLD 1994 SC 693), Arshad Mehmood v. Government of Punjab (PLD
2005 SC 193), Moulvi Iqbal Haider v. Federation of Pakistan (PLD 2006 SC 394),
Bank of Punjab v. Haris Steel Industries (Pvt.) Ltd. (PLD 2010 SC 1109), In Re:
Suo Motu Case No. 13 of 2009 (PLD 2011 SC 619). It has been held that the word
`life' is very significant as it covers all facets of human existence. Life
includes all such amenities and facilities which a person born in a free
country is entitled to enjoy with dignity, legally and Constitutionally.
Further, the right to life also includes the right to livelihood. Under Article
3 of the Constitution, the State is bound to ensure the elimination of all
forms of exploitation and the gradual fulfilment of the fundamental principle,
from each according to his ability to each according to his work; therefore, a
right person is required to be engaged in the right job and there should not be
any exploitation whatsoever. The scheme of the NECOSA is required to be
understood with reference to the object and purpose of the legislation. It has
already been pointed out that the NECOSA is the result of amendment in the
Working Journalists (Conditions of Service) Ordinance, 1960, and for this
reason, its Preamble recites that it is an Act to repeal and, with certain
amendments, re-enact the Working Journalists (Conditions of Service) Ordinance,
1960; therefore, for the purpose of ascertaining the object we have to read the
Preamble of the Ordinance No. XVI of 1960, which provided
that "whereas it is expedient to regulate certain conditions of service of
working journalists and other persons in newspaper establishments."
In both the enactments, there was no difference in the definition of the term
""newspaper establishment". According to Section 2(e) of the
NECOSA, it means ""an establishment under the control of any person
or body of persons, whether incorporated or not, for the production, printing
or publication of one or more newspapers or for conducting any news agency or
syndicate." And, in both the laws, same is the position in respect of the
definition of the term "wages", which according to Section 2(h) of
the NECOSA means wages as defined in the Payment of Wages Act, 1936 and
includes any gratuity or other payment declared as wages by the Board. Clause
(i) ibid provides that all words and expressions used but not defined in the
Act and defined in the Ordinance shall have the meanings respectively assigned
to them in the Ordinance. As it has been pointed out that one of the objects of
promulgating the Ordinance of 1960 and the NECOSA was to regulate certain
conditions of service of working journalists and other persons employed in
newspapers, therefore, to achieve the object of regulating their conditions of
service, the newspaper establishments have been bound down under Section 3 of
the NECOSA to furnish to a newspaper employee at the time of his appointment or
transfer or promotion an order in writing showing the terms and conditions of
his service. This is one of the substantive provisions of the NECOSA to ensure
that the terms and conditions of service of the newspaper employees are
documented. Similarly, to provide security of job the newspaper establishment
under Section 4 is required not to terminate the services of a newspaper
employee 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 employees 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; and (c) of three
months, if total period of such service is not less than three years. Section 5
of the Ordinance cast a duty upon a newspaper establishment to constitute, for
the benefit of its working journalists, a Provident Fund in the prescribed
manner. Similarly, the rights of the newspaper employees have also been
protected in line with the provisions of the Factories Act, 1934 and their
entitlement to receive full wages, medical cover, etc., have been
protected/secured under Sections 6, 7 & 8 of the NECOSA. Under
Section 10 of the NECOSA, guidelines for fixing the wages have been provided.
Any such right, if in force in any manner, would give rise to adverse dispute
between the newspaper employee and the newspaper establishment as a natural
person providing service to the newspaper establishment. They, as a matter of
right, under Article 9 of the Constitution are entitled to the purpose of
securing their lives. Thus, on the same analogy when they are performing their
duties in different newspaper establishments; would they not be entitled to the
wages of the work performed by them? In past, as it has been noted above, there
had been unrest between the newspaper establishments and the newspaper
employees, may be working journalists or the non-working journalist, thus, it
was not possible to fully enforce Article 19 of the Constitution, which
provides that every citizen shall have the right to freedom of speech and
expression, and there shall be freedom of the press, subject to any reasonable
restrictions imposed by law in the interest of the glory of Islam or the
integrity, security or defence of Pakistan or any part thereof, friendly
relations with foreign States, public order, decency or morality, or in
relation to contempt of Court, commission of or incitement to an offence.
32. The Fundamental Right guaranteeing freedom of
press has been considered in a number of cases. Reference may be made to
Independent Newspaper Corporation (Pvt.) Ltd. v. Chairman Fourth Wage Board
Award (1993 SCMR 1533) and I.E. Newspaper (Bombay) P. Ltd. v. Union of India
(AIR 1986 SC 515). In the latter judgment, a joint petition under Article 32 of
the Indian Constitution was filed by certain companies, their shareholders and
their employees engaged in the business of editing, printing and publishing
newspapers, periodicals, magazines, etc. challenging the validity of imposition
of import duty on the newsprint imported from abroad under Section 12 of the
Customs Act, 1962 etc. The case was remanded to the Government with certain
observations and arrangements pending decision with the latter but on the
question of freedom of the press it was held that "in today's free world
freedom of Press is the heart of social and political intercourse. The press
has now assumed the role of the public educator making formal and non-formal
education possible in large scale particularly in the developing world where
television and other kinds of modern communication are not still available for
all Sections of
society. The purpose of the press is to advance the public interest by
publishing facts and opinions without which a democratic electorate cannot make
responsible judgments. Newspaper being surveyors of news and views having a
bearing on public administration very often carry material which would not be
palatable to Governments and other authorities." Similarly, In re: Harijai
Singh (AIR 1997 SC 73), it has been held that freedom of press is always
regarded as an essential pre-requisite of a democratic form of Government and
also mother of all liberties in a democratic society. Without freedom of press,
truth cannot be attained. It is considered necessary not only for the mental
health and the well being of society, but also for the full development of the
personality of the individual. Under Article 19, not only the newspaper owners
but the citizens at large also enjoy the right of receiving independent news
and views along with articles, etc. Any disturbance in this industry is bound
to cast negative aspersion and it would also be developing a perception, which
is against the democratic norms and this is the reason that due to certain
defects in the Ordinance of 1960, the smooth functioning of the newspaper
industry was not possible. It is reported that on 25th April, 1969, the second Wage Board was
constituted with late Mr. Justice Sajjad Ahmad Jan as its Chairman, who
unfortunately had to resign, reportedly not for a good reason. He was succeeded
by Mr. Justice A.S. Farooqi, Judge of the High Court of West Pakistan in
October, 1969.
33. Be that as it may, as discussed hereinbefore,
by means of the NECOSA, with a view to remove the defects from the Ordinance of
1960 important amendments were brought about in the said Ordinance. The new law
provided a mechanism for fixing the wages after advice rendered to the Chairman
by the representatives of the newspaper employees and the newspaper
establishments. A perusal of Section 9 of the NECOSA, makes it abundantly clear
that the Board has to perform the function of fixing of rates of wages of the
newspaper employees keeping in view the parameters of the guidelines provided
in Section 10 of the NECOSA for the purpose of payment of wages to them in
future, as is manifest from the provision of Section 11(1) of the NECOSA,
according to which the decision of the Board is to be published within a period
of one month from the date of its receipt by the Federal Government in the
prescribed manner. The decision of the Board published under sub-section (1)
shall come into operation on such date, as may be specified in the decision,
and where no date is so specified, it shall come into operation on the date of
its publication and shall remain in force till it is modified or varied by a
later decision of the Board published in the manner provided in sub-section
(1). A plain reading of this provision of law, keeping in
view the principle, of interpretation that ordinary and natural meanings have
to be assigned to the language employed in the legislation because it would
help in finding out the object and the purpose for which the same has been
enacted.
34. Thus, no other interpretation can be given to
this provision of the NECOSA except that it is making reference to a certain
eventuality, which will happen in future. According to Mr. Salman Akram Raja,
learned ASC, the Award applies prospectively whereas Mr. Abdul Hafeez Pirzada,
learned Counsel for the petitioners has stated that the Seventh Award has been
made applicable retrospectively, with effect from 1st July, 2000. We have pointed out to him that
the Award has to come into operation on the date specified in the decision, in
this case, from the 1st of the month in which the Wage Board was constituted,
i.e., 8th July, 2000, therefore, the Award has been made applicable from the
said date. Similarly, no adversarial dispute was referred to the Wage Board to
resolve or decide any controversy between the parties in respect of a pending
dispute. It is to be observed that when there is adversarial nature of
litigation between the parties, then it is only the
judicial forum which decides the same like the property cases, etc. The learned
counsel for the petitioners himself candidly conceded that the Wage Board does
not perform judicial or quasi-judicial function; rather it performs only a
delegated executive function of the legislature be it Federal or the Provincial
of fixing the wages of newspaper employees, as is done by a Pay Commission in
fixing salaries of the Government/civil servants. Messrs Salman Akram Raja and
Shaukat Aziz Siddiqui, ASCs as well as the learned Attorney General for Pakistan stated
that the Board performs a legislative act.
35. Mr. Pirzada vehemently contended that the
NECOSA is void and liable to be struck down for having failed to provide even a
single right of appeal from any adjudicatory or directory orders or actions,
interim or final made thereunder, though it has been authoritatively ruled by
this Court that at least one right of appeal is an essential component of any
statute. To strengthen his argument, the learned counsel submitted that the
decision of the Wage Board is to be deemed Award of Full Bench of the National
Industrial Relations Commission (NIRC), but the same could not be questioned/challenged
by way of appeal/review/revision or otherwise under the provisions of the
NECOSA despite the fact that the NIRC Awards could be questioned before a
larger Bench of the Commission. He further submitted that the orders of the
Implementation Tribunal for Newspaper Employees (hereinafter referred to as
"ITNE") were also not appealable, therefore, the proceedings of the
Tribunal suffered from that very defect. Reliance was place, inter alia, on Pakistan v.
General Public (PLD 1989 SC 6).
36. Mr. Salman Akram Raja,
learned ASC submitted that whenever rates were fixed, it was for the future.
Had it been a judicial finding, an appeal would be required. The Board does did
not decide an existing dispute. It is clarified in the judgment of the Indian
Supreme Court reported as AIR 1962 SC 12 that the Wage Board implements the
policy of the law, the wages determination is done with prospective effect,
which is in the nature of rule making [in this case, the subordinate agency is
the Wage Board]. There are three kinds of decisions, to be considered and
distinguished. First is resolution of dispute between two conflicting parties,
which is purely a judicial act. Second is a decision by an administrative body
that allows or disallows an entitlement claim against the State or a State
Agency, example of which is the case of Arshad Mehmood v. Government of Punjab
(PLD 2005 SC 193), where the bus owners complained that they were unfairly
barred from plying buses on certain routes. They, therefore, sought enforcement
of entitlement against the State. Third is a legislative function, where there
is no existing right or dispute which is being determined. The Wage Board is
given the power to determine wages. There is no existing dispute or right to be
determined by it. The proceedings of the Board are neither judicial nor
quasi-judicial, which is accepted around the world-whether it is price of
essential commodities, or anything else. In such a case, rules are laid down
for general applicability, may be for a particular industry, class, etc., which
are to have prospective effect. They are akin to rules of conduct, which can be
challenged in appropriate proceedings, either under Article 199 or Article
184(3) of the Constitution, if it is shown that the Board has acted in a perverse
manner. That would be a different kind of challenge, which is available against
a legislative activity and the right of appeal would come in where individual
right is determined one way or the other. All such cases, including General
Public, Arshad Mehmood and Mubeen-us-Salam v. Federation of Pakistan (PLD 2006
SC 602) relate to the first two categories, and not the third category.
37. In the case of Pakistan v. General Public (PLD
1989 SC 6), right of appeal was provided in the cases where there was likelihood
of conviction of a person in the service of Pakistan Army. Navy or Air Force,
but the statutes which were examined, i.e. Pakistan Army Act, 1952, Pakistan
Air Force Act, 1953 and Pakistan Navy Ordinance, 1961 were not declared
unConstitutional for non-provision of fight of appeal. However, following the
dictum laid down in the said case, the said laws were amended and right of
appeal was made available to the persons against whom an adverse order or
conviction would be passed. As far as the second judgment passed by a
seven-member Bench in Arshad Mehmood's case is concerned, Section 69-A of the
Motor Vehicles Ordinance, 1965 was found to be violative of Article 18 of the
Constitution, and while disposing of the case four months' time was given to the
Government of the Punjab for making necessary amendments in the law. As far as
Muheen-us-Salam's case (supra) is concerned, again this Court did not declare
the relevant law as unConstitutional or void because the right of appeal was
not available to the persons who were deemed to be civil servants in terms of
the Service Tribunals Act, 1974. However, observations were made that in such a
situation, before approaching the Service Tribunal, they can avail right of
appeal before the department/administrative authority. It is to be borne in
mind that in the said case, no action was declared illegal for want of right of
appeal, except that it was held that (a) the cases, which have been decided
finally by this Court in exercise of jurisdiction under Article 212(3) of the
Constitution shall not be opened, and if any review petilion. miscellaneous
application or contempt application, filed against the judgment is pending, the
same shall be heard independently and shall not be affected by the ratio of
that judgment: (b) the proceedings instituted either by an employee or by all
employer, pending before this Court, against the judgment of the Service
Tribunal, not covered by category (a) before this Court or the Service Tribunal
shall abate, leaving the parties to avail remedy prevailing prior to
promulgation of Section 2-A of the Services Tribunals Act, 1974; (c) the cases
or proceedings which are not protected or covered by this judgment shall be
deemed to have abated and the aggrieved person may approach the competent
forums for redressal of their grievances within a period of 90 days and the bar
of limitation provided by the respective laws, shall not operate against them
till the expiry of stipulated period; (d) the cases in which the order of
Service Tribunal has been implemented shall remain intact for a period of 90
days or till the filing of appropriate proceedings, whichever is earlier; and
(e) the Service Tribunal shall decide pending cases under Section 2-A of the
Service Tribunals Act, 1974 in view of the above observations. However, if any
of the cases is covered by clause (c) ibid, a period of 90 days shall be
allowed to an aggrieved party to approach the competent forum for the redressal
of its grievance.
38. It is true that denial of right of appeal is
violative of the due process of law in matters where judicial powers are being
exercised by a functionary discharging judicial or quasi-judicial functions, if
the same are being exercised by the executive or the administration as it has
been highlighted hereinabove. And as per Injunctions of Islam, denial of right
of appeal in adversarial proceedings, both civil and criminal, is considered
against the due process of law and norms of justice, but in exercise of
legislative powers or legislative activities, no right of appeal can be
extended before the forums, higher in status, within the legislative body which
had passed the order or entered into any legislative activity. However, power
of judicial review would be available to the superior Courts under Article 199
or Article 184(3) of the Constitution for the purpose of examining the
Constitutionality of the legislation or sub-legislation. This Court has
exercised power of judicial review in a good numher of cases, e.g., Dr.
Mubashir Hassan v. Federation of Pakistan (PLD 2010 SC 265) and Sindh High
Court Bar Association v. Federation of Pakistan (PLD 2009 SC 879). Para 171 of the latter judgment is
reproduced hereinbelow:--
"171. It is
clear from the above survey of the case-law that it is a fundamental principle
of our jurisprudence that Courts must always endeavour to exercise their
jurisdiction so that the rights of the people are guarded against arbitrary
violations by the executive. This expansion of jurisdiction is for securing and
safeguarding the rights of the people against the violations of the law by the
executive and not for personal aggrandizement of the Courts and Judges. It is
to this end that the power of judicial review was being exercised by the
judiciary before 3rd
November, 2007. Indeed the power of judicial review was, and would
continue to be, exercised with strict adherence to the principles governing
such exercise of power, remaining within the sphere allotted to the judiciary
by the Constitution."
Reference in
this respect may also be made to the case of Khan Asfandyar Wali v. Federation
of Pakistan (PLD 2001 SC 607), wherein this Court, while examining the question
as to whether right of appeal can be granted to a person charged for an offence
under the National Accountability Ordinance, 1999, declared that in absence of
any provision in the aforesaid Ordinance to release an accused on bail, the
latter can approach the High Court for grant of bail under Article 199 of the
Constitution. As far as challenging the validity of the Wage Award due to
absence of right of appeal, if at all available to the petitioners, i.e. APNS,
is concerned, in this behalf reference may beneficially be made to the case of
Independent News Corporation and others v. Chairman 4th Wage Board and
Implementation (1993 SCMR 1533). Similarly, the power of judicial review was
also invoked by the petitioners to challenge the Sixth Wage Award before the
Lahore High Court in the case of Pakistan Herald Publications v. Federation of
Pakistan (1998 CLC 65). There are few other cases as well, in which the power
of judicial review of the Superior Courts was invoked, such as the cases of
Shamas Textile Mills Ltd. v. Province of Punjab (1999 SCMR 1477), Nabi Bux
Khoso v. Pakistan Television Corporation (PLD 1982 Karachi 725), Tika Ramji v.
State of U.P. [1956 SC 676 (S) AIR V. 43 C. 112 Oct.], Express Newspapers Ltd.
v. Union of India (AIR 1958 SC 578), The P.T.I, v. Union of India (AIR 1974 SC
1044), U. C. Bank v. Their Workmen (AIR 1951 SC 230), Expess Newspapers v.
Somayajulu (AIR 1964 SC 279), S. R. Corpn. v. Industrial Tribunal (AIR 1968 SC
529), Hochticf Gammon v. Industrial Tribunal (AIR 1964 SG 1746), B. Coleman
& Co, v. P.P. Das Gupta (AIR 1970 SC 426), etc.
39. Mr. Salman Akram Raja. ASC, learned counsel
for the respondents vehemently argued that the function of fixation of wages of
the newspaper employees being performed by the Board is neither
judicial/quasi-judicial nor executive in nature rather it is of a legislative
character. To substantiate his plea, he relied upon the cases of Express
Newspaper Ltd. v. Union of India (AIR 1958 SC 578), Shri Sitaram Sugar Company
v. Union of India (AIR 1990 SC 1277), Union of India v. Cynamide India Ltd.
(AIR 1987 SC 1802), G.K. Krishna v. State of Tamil Nadu (AIR 1975 SC 583), S.I.
Syndicate Ltd. v. Union of India (AIR 1976 SC 460), R. K. Gorg v. Union of
India [(1981) 4 SCC 675], Pallavi Refractories v. Sigareni Collieeries Co. Ltd.
[(2005) 2 SCC 277] Williamson v. Lee Optical, Inc. (348 U.S 483 (1955)], Adkins
Et. Al v, Children's Hospital [261 U.S. 525 (1923)],
Narottamdas Harjiwandas v. State of MP
(AIR 1964 MP 45), Prentis v. Atlasntic Coastline [211 U.S, 210 (1908)] and
Australian Boot Trade Employees Federation v. Whybrow & Co. (10 C.L.R. 266
(1910)].
40. In this connection, reference may be made to
Cooley's Constitutional Limitations, 8th Edn., Vol. I,
at p. 185, under the caption "the powers which the legislative department
may exercise", which brings out the distinction between a
"legislative" and a "judicial act" in the following
words:--
"On general
principles, therefore, those inquiries, deliberations, orders, and decrees,
which are peculiar to such a department, must in their nature be judicial acts.
Nor can they be both judicial and legislative; because a marked difference
exists between the employment of judicial and legislative tribunals. The former decide
upon the legality of claims and conduct, and the latter make rules upon
which, in connection with the constitution, those decisions should be founded.
It is the province of judges to determine what is the law
upon existing cases. In fine, the law is applied by one, and made by the
other. To do the first, therefore, is to compare, the claims of parties with
the law of the land before established - is in its nature judicial act. But to
do the last - to pass new rules for the regulation of new controversies - is in
its nature a legislative act; and if these rules interfere with the past, or
the present, and do not look wholly to the future, they violate the definition
of a law as "a rule of civil conduct", because no rule of conduct can
with consistency operate upon what occurred before the rule itself was
promulgated. ... It is the province of judicial power, also to decide private
disputes between or concerning persons; but of legislative power to regulate
public concerns, and to make laws for the benefit and welfare of the State. Nor
does the passage of private statutes, when lawful, are enacted on petition, or
by the consent of all concerned; or else they forbear to interfere with past
transactions and vested rights."
41. Stason and Cooper in their treatises on
"Cases and other materials on Administrative Tribunals" point out at
pages 150 that "one of the great difficulties of properly classifying a
particular function of an administrative agency is that frequently - and,
indeed; typically - a single function has three aspects. It is partly
legislative, partly judicial and partly administrative. Consider, for example,
the function of rate-making. It has sometimes been characterised as
legislative, sometimes as judicial. In some aspects, actually, it involves
merely executive or administrative powers. For example, where the Interstate
Commerce Commission fixes a tariff of charges for any railroad, its function is
viewed as legislative. But where the question for decision is whether a
shipment of a mixture of coffee and chicory should be charged the rate
established for coffee or the lower rate established for chicory, the question
is more nearly judicial. On the other hand, where the problem is merely the
calculation of the total freight charges due for a particular shipment, the
determination can fairly be described as an administrative act." Robson's
Justice and Administrative Law, 3rd Edn., at p. 608
states "an example of a subordinate body of this type is a Wage Council,
which is not an administrative tribunal but a subordinates legislative
authority." Barbare Wootton in "Social Foundations of Wage Policy:
Modern Methods of Wage Determination" at p. 88 observes that "Both
arbitration tribunals and Courts of inquiry share - with one important
difference - the tripartite structure of statutory wage councils; they are
composed of equal numbers of representatives of employers and of workers under an
independent Chairman, in some cases, together with additional
independent members. The essential difference between their structure and that
of statutory wage authorities is that the representative members of the latter
are chosen from within the industry concerned, whereas employers and workers on
arbitration tribunals come from outside the industry whose disputes they have
to resolve; if in any case technical knowledge of a particular industry is
required, this is normally supplied by the help of assessors who take no part in
the final Award. This difference between the Constitution of wage boards and
that of arbitration tribunals clearly implies a corresponding distinction
between the legislative function of the former and the judicial function of the
latter. The wage board drafts law for its own industry, whereas the arbitration
Court gives judgment on matters submitted by others. The choice of industrial
arbitrators unconnected with the industries the merits of whose claims they
must pledge, is evidently intended as a guarantee that they, like other judges,
will be free from bias arising from personal interest." Schwrtz in his
book "Administrative Law", says, "If a particular function is
termed "legislative" or "rulemaking" rather than
"judicial" or "adjudication", it may have substantial
effects upon the parties concerned. If the function is treated as legislative
in nature, there is no right to notice and hearing, unless a statute expressly
requires them. If a hearing is held in accordance with a statutory requirement,
it normally need not be a formal one ........... ...
... The characterization of an administrative act as legislative instead of
judicial is thus of great significance .......... ... ...
The key factor in the Holmes analysis is time; a rule prescribes future patterns
of conduct; a decision determines liabilities upon the basis of present or past
facts."
42. In Prentis v. Atlantic Coast Line Co. Ltd.,
[211 U.S. 210 (1908)] it is held that "a judicial inquiry investigates,
declares, and enforces liabilities as they stand on present or past facts and
under laws supposed already to exist. That is its purpose and end. Legislation,
on the other hand, looks to the future and changes existing conditions by
making a new rule, to be applied thereafter to all or some parts of those who
are subject to its power. The establishment of a rate is the making of a rule
for the future, and therefore, is an act legislative not judicial in kind. That
question depends not upon the character of the body, but upon the character of
the proceedings. The nature of the final act determines the nature of the
previous enquiry." [emphasis supplied]
43. In 1918, in the case of Hammer v. Dagenhart,
[247 U.S. 251 (1918)] the Supreme
Court of
United State
of America
held unConstitutional the federal child-labor law passed two years earlier. In
1923, in Adkins v. Children's Hospital [261 U.S. 525 (1923)] the Court voided a
District of Columbia minimum wage law for women on the ground that such a law
was `a naked, arbitrary exercise of legislative power in violation of the due
process clause of the fifth Amendment. The Supreme Court in A.L.A. Schechter
Poultry Corp. v. United States [295 U.S. 495 (1935)] unanimously struck down
the National Industrial Recovery Act, holding that it exceeded the federal Government's
power under the Commerce Clause and that it was an unConstitutional delegation
of legislative authority to the executive branch. One year later the Court in
Morehead v. New York,
[298 U.S. 587 (1936)] ruled that a New
York minimum wage law was unConstitutional. Based on
these decisions it appeared that the Court would not sanction a bill similar to
the one that Hugo Black had proposed earlier on minimum wages and maximum
hours. The Supreme Court in West Coast Hotel v. Parrish [300 U.S. 379 (1937)]
upheld a Washington
state minimum wage law for women and minors similar to the New York statute it had overturned. Adkins's
case was specifically overruled as the Court emphasized the need for minimum
wage regulation. And finally, in Wolff Co. v. Industrial Court [262 U.S. 522]
it was held that the mere declaration by the legislature that a particular kind
of property or business is affected with a public interest is not conclusive
upon the question of the validity of the regulation and invalidity of the
wage-fixing provision of the compulsory arbitration statute of Kansas as
applied to a meat packing establishment. The power of a legislature, under any
circumstances, to fix prices or wages in the business of preparing and selling
food was seriously doubted, but the Court concluded that, even if the
legislature could do so in a public emergency, no such emergency appeared, and,
in any event, the power would not extend to giving compulsory continuity to the
business by compulsory arbitration. The matter is one which is always open to
judicial inquiry. [emphasis supplied]
44. At this juncture, it is necessary to examine
the case of Adkins v. Children's Hospital [261 U.S. 525 (1923)] in some detail.
There, the question presented for determination before the Court was the
Constitutionality of the Act of 19th
September, 1918, providing for the fixing of minimum wages for
women and children in the District of
Columbia. The Act provided for a board of three
members, to be constituted, as far as practicable, so as to be equally
representative of employers, employees and the public. The Board was authorized
to have public hearings, at which persons interested in the matter being
investigated may appear and testify, to administer oaths, issue subpoenas
requiring the attendance of witnesses and production of books, etc., and to
make rules and regulations for carrying the Act into effect. The Court held
that it has been said that legislation of the kind now under review is required
in the interest of social justice, for whose ends freedom of contract may
lawfully be subjected to restraint. The liberty of the individual to do as he
pleases, even in innocent matters, is not absolute. It must frequently yield to
the common good, and the line beyond which the power of interference may not be
pressed is neither definite nor unalterable, but may be made to move, within
limits not well defined, with changing need and circumstance. Any attempt to
fix a rigid boundary would be unwise, as well as futile. But, nevertheless,
there are limits to the power, and when these have been passed, it becomes the
plain duty of the Courts in the proper exercise of their authofity to so
declare. To sustain the individual freedom of action contemplated by the
Constitution is not to strike down the common good, but to exalt it, for surely
the good of society as a whole cannot be better served than by the preservation
against arbitrary restraint of the liberties of its constituent members.
Finally, it was concluded that it follows from what has been said that the Act
in question passes the limit prescribed by the Constitution, and, accordingly,
the decrees of the Court below were affirmed.
45. In Williamson v. Lee Optical, Inc. [348 U. S. 483.
(1955)], it was held as under:--
The day is gone
when this Court used the Due Process Clause of the Fourteenth Amendment to
strike down state laws, regulatory of business and industrial conditions
because they may be unwise, improvident, or out of harmony with a particular
school of thought. See Nebbia v. People of State of
New York, 291 U, S. 502; West Coast Hotel Co. v. Parrish, 300 U. S. 379; Olsen
v. State of Nebraska ex rel. Western Reference & Bond Ass'n, 313 U. S, 236;
Lincoln Union v. Northwestern Iron & Metal Co- 335 U. S. 525; Daniel v.
Family Sec. Life Ins. Co., 336 U. S. 220; Day-Brite Lighting, Inc., v. State of
Missouri, 342 U. S. 421. We emphasize again what Chief Justice Waite said in
Munn v. State of Illinois,
94 U. S.
113, "For protection against abuses by legislatures, the people must
resort to the polls, not to the Courts."
46. Reference may also be made to the case of
Australian Boot Trade Employees Federation v Whybrow & Co [(1910) HCA 8;
(1910) 10 CLR 266] from the Australian jurisdiction, where the High Court of
Australia, which is the apex Court of that country, held as under:--
"The
function of a tribunal, of whatever kind, is to declare and administer the law,
not to make it--dicere non dare leges. Nothing could be more unfortunate than
that an idea should arise that this Court, or any other Court, Federal or
State, has a legislative authority. The legislative and judicial powers of a
sovereign State are exercised by different agencies, whose operations are in
different planes, and cannot come in conflict with one another. The judicial agency
must obey the behests of the legislative, and that may make provisions for
enforcing the judgments of the judiciary, but does not, by doing so, alter
their intrinsic character. The suggested conflict is therefore impossible. In
support of this view we were invited to accept the argument that, although the
Commonwealth Parliament has admittedly no power to interfere directly with the
domestic industry or police power of a State, and cannot delegate a power which
itself it does not possess, yet it may by appointing a Judge and calling him an
arbitrator empower him to interfere. The statement of the argument is its own
answer, and I waste no more words upon it.
......... It is
well to begin by clearing the ground of one or two matters. We have had before
us the Statutes under which these Wages Boards have been appointed, and under
which they have made their determinations. In New South Wales they are termed awards, but
the substance of the thing done is the same under each State Statute. The Wages
Boards are not tribunals of arbitration but subsidiary legislative bodies
deriving their authority from the State legislatures. Their determinations are
obligatory, not merely on parties or organizations at variance, but on all
citizens within their range, whether the jurisdiction covers a whole State or a
limited area merely. The rates of wages, when fixed by the Boards, are to all
intents and purposes the law on the subject. They are as distinct from the
judgment of a Court as they are from the award of an arbitrator.
...........Nevertheless,
although the term "arbitration" of itself does not necessarily
indicate that the decision is a judgment in the ordinary sense, there are some
awards which do partake of that nature. And to ascertain them and differentiate
them from awards of other character some guiding principle is essential. There
is one clear and decisive principle which at once distinguishes between
judicial and legislative action.
.......... If
the dispute is as to the relative rights of parties as they rest on past or
present circumstances, the award is in the nature of a judgment, which might
have been the decree of an ordinary judicial tribunal
acting under the ordinary judicial power. There the law applicable to the case
must be observed. If, however, the dispute is as to what shall in the future be
the mutual rights and responsibilities of the parties--in other words, if no
present rights are asserted or denied, but a future rule of conduct is to be
prescribed, thus creating new rights and obligations, with sanctions for
non-conformity--then the determination that so prescribes, call it an award, or
arbitration, determination, or decision or what you will, is essentially of a
legislative character, and limited only by the law which authorizes it. If, again,
there are neither present rights asserted, nor a future rule of conduct
prescribed, but merely a fact ascertained necessary for the practical
effectuation of admitted rights, the proceeding, though called an arbitration,
is rather in the nature of an appraisement or ministerial act.
There are some
authorities, if authorities were needed, of high character
which exemplify the propositions I have stated. As recently as 1908, the
Supreme Court of the United
States, in a case to which on a former
occasion I referred, had to consider the distinction between a judicial and a
legislative act. In Prentis v. Atlantic Coast Line Co. [(1908) 211 U.S., 210,
at p. 226.], Holmes J. whose personal distinction as a lawyer no less than his
official position entitles his opinions to the greatest respect, in delivering
the decision of the Court, said:--"A judicial inquiry investigates,
declares and enforces liabilities as they stand on present or past facts and
under laws supposed already to exist. That is its purpose and end. Legislation
on the other hand looks to the future and changes existing conditions by making
a new rule to be applied thereafter to all or some part of those subject to its
power. The establishment of a rate is the making of a rule for the future, and
therefore is an act legislative not judicial in kind."
...... It is
upon such considerations that I agree with the view that the decision of a
Wages Board, made under the authority of a law, is of legislative character. It
is part of the law of the land, just as is an Act fixing rates of taxation,
though the compulsive and enforcement provisions are found elsewhere. As
expressed in Knoxville v. Knoxville Water Co, [(1909) 212 U.S. 1, at p. 8.],
"the function of ratemaking is purely legislative in its character, and
this is true, whether it is exercised directly by the legislature itself or by
some subordinate or administrative body, to whom the power of fixing rates in
detail has been delegated. The completed Act derives its authority from the
legislature and must be regarded as an exercise of the legislative power."
The Wages Board determination, precisely like a State industrial award, has
just as much authority as, and no more than, the State Act itself. [emphasis supplied]
In Shri Sitaram
Sugar Company v. Union of India (AIR 1990 SC 1277), the Indian Supreme Court
held as under: --
"45. Price
fixation is in the nature of a legislative action even when it is based on
objective criteria rounded on relevant material. No rule at natural justice is
applicable to any such order. It is nevertheless imperative that the action of
the authority should be inspired by reason.
52. The true
position, therefore, is that any act of the repository of power, whether
legislative or administrative or quasi-judicial, is open to challenge if it is
in conflict with the Constitution or the governing Act or the general
principles of the law of the land or it is so arbitrary or unreasonable that no
fair minded authority coujd ever have made it.
58. Price
fixation is not within the province of the Courts. Judicial function in respect
of such matters is exhausted when there is found to be a rational basis for the
conclusions reached by the concerned authority. As stated by Justice Cardozo in
Mississippi Valley Barge Line Company v. United States of America, 292 US
282-290, 78 Led 1260, 1265: "The structure of a rate schedule calls in
peculiar measure for the use of that enlightened judgment which the Commission
by training and experience is qualified to form ......... It is not the province
of a Court to absorb this function to itself ...........
The judicial function is exhausted when there is found to be a rational basis
for the conclusions approved by the administrative body"."
In Union of
India v. Cynamide India Ltd. [(1987) 2 SCC 720], it was held as under:--
"......legislative
action, plenary or subordinate, is not subject to rules of natural justice. In
the case of Parliamentary legislation, the proposition is self-evident. In the
case of subordinate legislation, it may happen that Parliament may itself
provide for a notice and for a hearing ......... But
where the legislature has not chosen to provide for any notice or hearing, no
one can insist upon it and it will not be permissible to read natural justice
into such legislative activity ..... It is true that,
with the proliferation of delegated legislation, there is a tendency for the
line between legislation and administration to vanish into an illusion.
Administrative, quasi-judicial decisions tend to merge in legislative activity
and, conversely, legislative activity tends to fade into and present an
appearance of an administrative or quasi-judicial activity".
"A price
fixation measure does not concern itself with the interests of an individual
manufacturer or producer. It is generally in relation to a particular commodity
or class of commodities or transactions. It is a direction of a general
character, not directed against a particular situation. It is intended to
operate in the future. It is conceived in the interests of the general consumer
public. The right of the citizen to obtain essential articles at fair prices
and the duty of the State to so provide them are transformed into the power of
the State to fix prices and the obligations of the producer to charge no more
than the price fixed. Viewed from whatever angle, the angle of general
application, the prospectiveness of its effect, the public interest served, and
the rights and obligations flowing therefrom, there can be no question that
price fixation is ordinarily a legislative activity".
In the case of
Union of India v. Cynamide India Ltd. (AIR 1987 SC 1802), it was held as
under:--
7. The third observation we wish to make is, price fixation is more in the nature of a legislative
activity than any other. It is true that, with the proliferation of delegated
legislation, there is a tendency for the line between legislation and
administration to vanish into an illusion. Administrative, quasi-judicial
decisions tend to merge in legislative activity and, conversely, legislative activity
tends to fade into and present an appearance of an administrative or
quasi-judicial activity. Any attempt to draw a distinct line between
legislative and administrative functions, it has been said, is `difficult in
theory and impossible in practice'. Though difficult, it is necessary that the
line must sometimes be drawn as different legal fights and consequences may
ensue. The distinction between the two has usually been expressed as `one
between the general and the particular'. `A legislative act is the creation and
promulgation of a general rule of conduct without reference to particular
cases; an administrative act is the making and issue of a specific direction or
the application of a general rule to a particular case in accordance with the
requirements of policy'. `Legislation is the process of formulating a general
rule of conduct without reference to particular cases and usually operating in
future; administration is the process of performing particular acts of issuing
particular orders or of making decisions which apply general rules to
particular cases.' It has also been said "Rule making is normally directed
toward the formulation of requirements having a general application to all
members of a broadly identifiable class" while, "an
adjudication, on the other hand, applies to specific individuals or
situations". But, this is only a broad distinction, not necessarily always
true. Administration and administrative adjudication may also be of general
application and there may be legislation of particular application only. That
is not ruled out. Again, adjudication determines past and present facts and
declares rights and liabilities while legislation indicates the future course
of action. Adjudication is determinative of the past and the present while
legislation is indicative of the future. The object of the rule, the reach of
its application, the rights and obligations arising out of it, its intended
effect on past, present and future events, its form, the manner of its
promulgation are some factors which may help in drawing the line between
legislative and non-legislative acts. A price fixation measure does not concern
itself with the interests of an individual manufacturer or producer. It is
generally in relation to a particular commodity or class of commodities or
transactions. It is a direction of a general character, not directed against a
particular situation. It is intended to operate in the future. It is conceived
in the interests of the general consumer public. The right of the citizen to obtain
essential articles at fair prices and the duty of the State to so provide them
are transformed into the power of the State to fix prices and the obligation of
the producer to charge no more than the price fixed. Viewed from whatever
angle, the angle of general application the prospectivity of its effect, the
public interest served, and the rights and obligations flowing therefrom, there
can be no question that price fixation is ordinarily a legislative activity.
Price-fixation may occasionally assume an administrative or quasi-judicial
character when it relates to acquisition or requisition of goods or property
from individuals and it becomes necessary to fix the price separately in
relation to such individuals. Such situations may arise when the owner of
property or goods is compelled to sell his property or goods to the Government
or its nominee and the price to be paid is directed by the legislature to be
determined according to the statutory guidelines laid down by it. In such
situations the determination of price may acquire a quasi-judicial character.
Otherwise, price fixation is generally a legislative activity. We also wish to
clear a misapprehension which appears to prevail in certain circles that
price-fixation affects the manufacturer or producer primarily and therefore
fairness requires that he be given an opportunity and that fair opportunity to
the manufacturer or producer must be read into the procedure for
price-fixation. We do not agree with the basic premise that price fixation
primarily affects manufacturers and producers. Those who are most vitally
affected are the consumer public. It is for their protection that price-
fixation is resorted to and any increase in price affects them as seriously as
any decrease does a manufacturer, if not more.
27. We are
unable to agree with the submissions of the learned counsel for the respondents
either with regard to the applicability of the principles of natural justice or
with regard to the nature and the scope of the enquiry and review contemplated
by paragraphs 3 and 27 while making our preliminary observations, we pointed
out that price fixation is essentially a legislative activity though in rare
circumstances, as in the case of a compulsory sale to the Government or its
nominee, it may assume the character of an administrative or quasi-judicial
activity. Nothing in the scheme of the Drugs (Prices Control) Order induces us
to hold that price fixation under the Drugs (Prices Control) Order is not a
legislative activity, but a quasi-judicial activity which would attract the
observance of the principles of natural justice. Nor is there anything in the
scheme or the provisions of the Drugs (Prices Control) Order which otherwise
contemplates the observance of any principle of natural justice or kindred
rule, the non-observance of which would give rise to a cause of action to a
suitor. What the order does contemplate however is `such enquiry' by the
Government `as it thinks fit'. A provision for `such enquiry' `as it thinks
fit' by a subordinate legislating body, we have explained earlier, is generally
an enabling provision to facilitate the subordinate legislating body to obtain
relevant information from any source and it is not intended to vest any right
in any body other than the subordinate legislating body. In the present case,
the enquiry contemplated by paragraph 3 of Drugs (Prices Control) Order is to
be made for the purposes of fixing the maximum price at which a bulk drug may
be sold, with a view to regulating its equitable distribution and making it
available at a fair price. The primary object of the enquiry is to secure the
bulk drug at a fair price for the benefit of the ultimate consumer an object
designed to fulfil the mandate of Art. 39(b) of the
Constitution. It is primarily from the consumer public's point of view
that the Government is expected to make its enquiry. The need of the consumer
public is to be ascertained and making the drug available to them at a fair
price is what it is all about. The enquiry is to be made from that angle and
directed towards that end. So, information may be gathered from whatever source
considered desirable by the Government. The enquiry,
obviously is not to be confined to obtaining information from the manufacturers
only and indeed must go beyond. However, the interests of the manufacturers are
not to be ignored. In fixing the price of a bulk drug, the Government is
expressly required by the Order to take into account the average cost of
production of such bulk drug manufactured by `an efficient manufacturer' and
allow a reasonable return on `net worth'. For this purpose too, the Government
may gather information from any source including the manufacturers. Here again
the enquiry by the Government need not be restricted to `an efficient
manufacturer' or some manufacturers; nor need it be extended to all
manufacturers. What is necessary is that the average cost of production by `an
efficient manufacturer' must be ascertained and a reasonable return allowed on
`net worth'. Such enquiry as it thinks fit is an enquiry in which information
is sought from whatever source considered necessary by the enquiring body and
is different from an enquiry in which an opportunity is required to be given to
persons likely to be affected. The former is an enquiry leading to a legislative
activity while the latter is an enquiry which ends in an administrative or
quasi-juuicial decision. The enquiry contemplated by paragraph 3 of the Drug
(Prices Control) Order is an enquiry of the former character. The legislative
activity being a subordinate or delegated legislative activity, it must
necessarily comply with the statutory conditions if any, no more and no less, and no implications of natural justice can be read
into it unless it is a statutory condition. Notwithstanding that the price
fixation is a legislative activity, the subordinate
legislation had taken care here to provide for a review. The review provided by
paragraph 27 of the order is akin to a post decisional hearing which is
sometimes afforded after the making of some administrative orders but not truly
so."
"In
Saraswati Industrial Syndicate Ltd. v. Union of India (AIR 1975 SC 460), it was
held as under:--
13. The petitioners did not challenge the price
fixation on the ground that a quasi-judicial procedure had to be adopted before
prices are fixed even if such price fixation affects, as it must each factory.
Price fixation is more in the nature of a legislative measure even trough it
may be based upon objective criteria found in a report or other material. It
could not, therefore, give rise to a complaint that a rule of natural justice
has not been followed in fixing the price. Nevertheless, the criterion-adopted
must be reasonable. Reasonableness, for purposes of judging whether there was
an "excess of power" or an "arbitrary" exercise of it, is
really the demonstration of a reasonable nexus between the matters which are
taken into account in exercising a power and the purposes of exercise of that
power. This was made clear by this Court in the two cases cited on behalf of
the appellants Shree Meenakshi Mills Ltd. v. Unions of India [AIR 1974 SC 366]:
The Panipat Cooperative Sugar Mills v. The Union
of India
[AIR 1973 SC 537].
In Prag Ice
& Oil Mills v. Union of India [(1978) 3 SCC 459], it was held as under:--
"We think
that unless, by the terms of a particular statute, or order, price fixation is
made a quasi-judicial function for specified purposes or cases, it is really
legislative in character in the type of control order which is now before us
because it satisfies the tests of legislation. A legislative measure does not
concern itself with the facts of an individual case. It is meant to lay down a
general rule applicable to all persons or objects or transactions of a
particular kind or class. In the case before us, the Control Order applies to
sales of mustard oil anywhere in India by any dealer. Its validity
does not depend on the observance of any procedure to be complied with or
particular types of evidence to be taken on any specified matters as conditions
precedent to its validity. The test of validity is constituted by the nexus
shown between the order passed and the purposes for which it can be passed, or
in other words by reasonableness judged by possible or probable
consequences."
In the case of
Pallavi Refractories v. M/S. Singareni Collieries Co. Ltd. [(2005) 2 SCC 227],
it was held as under:--
13. This Court
in Union of India v. Cynamide India Ltd. [AIR 1987 SC 1802] has held that price
fixation is generally a legislative activity. It may occasionally assume an
administrative or quasi-judicial character when it relates to acquisition or
requisition of goods or property from individuals and it becomes necessary to
fix the price separately in relation to such individuals. Such situations may
arise when the owner of the goods is compelled to sell goods to the Government
or its nominee and the price is to be determined according to the statutory
guidelines laid down by the Legislature. In such situations, the determination
of price may acquire a quasi judicial character but, otherwise, price fixation
is generally a legislative activity. After observing thus, the Court held that
price fixation is neither the function nor the forte of the Court. The Court is
neither concerned with the policy nor with the rates. But in appropriate
proceedings it may enquire into the question, whether relevant considerations
have gone in and irrelevant considerations kept out while determining the
price. In case the Legislature has laid down the pricing policy and prescribed
the factors which should guide the determination of the price then the Court
will, if necessary, enquire into the question whether policy and factors were
present to the mind of the authorities specifying the price. The assembling of
raw materials and mechanics of price fixation are the concern of the Executive
and it should be left to the Executive to do so and the Courts would not
revaluate the consideration even if the prices are demonstrably injurious to
some manufacturers and producers ......
14. A Constitution Bench of this Court in M/s.
Shri Sita Ram Sugar Co. Ltd. v. Union of India [AIR 1990 SC 1277] (in paras 57
& 58) has held that in judicial review the Court is not concerned with the
matters of economic policy. The Court does not substitute its judgment for that
of the Legislature or its agent as to the matters within the province of
either. The Legislature while delegating the powers to its agent may empower
the agent to make findings of fact which are conclusive provided, such findings
satisfy the test of reasonableness. In all such cases, the judicial enquiry is
confined to the question whether the findings of facts are reasonably based on
evidence and whether such findings are consistent with the laws of the land.
The Court only examines whether the prices determined was with due regard to
the provisions of the Statute and whether extraneous matters have been excluded
while making such determination. It was further observed that price fixation is
not within the province of the Courts. Judicial function in respect of such
matters stands exhausted once it is found that the authority empowered to fix
the price has reached the conclusion on rational basis."
In the case of
Narottamdas Harijwandas v. State of Madhya
Pradesh (AIR 1964 MP 45), it was held as under:--
"In our
opinion, it cannot be argued with any degree of force that the purpose and end
of the Act is to investigate, declare and enforce liabilities under any law
supposed to be already existing. It only prescribes a
rule of conduct when it fixes minimum rates of wages in certain employments. In
enacting the legislation, the Legislature has not attempted to exercise any
judicial power. It has only discharged a function of legislative character.
There is no analogy between the nature of the functions performed by wage
boards constituted under the Working Journalists (Conditions of Service) and
Miscellaneous Provisions Act, 1955, and the functions discharged by the State
Legislature in placing the Act on the statute book, and the observation of the
Supreme Court in the case of 1959 SCR 12: (AIR 1958 SC 578) (supra), that it is
impossible to state that "the functions performed by the wage boards are
necessarily of a legislative character" is of no assistance to the
petitioners."
A perusal of the
above quoted passages makes it abundantly clear that the wage fixation is a
legislative function, and not a judicial or quasi-judicial act or an
administrative function.
47. In India, the working journalists-were
scattered all over the country. They agitated that some means should be found
to enable them to have their wages, salaries, other allowances, retirement
benefits, rules of leave and other conditions of service, enquired into by some
impartial agency or authority, which was empowered to fix just and reasonable terms
and conditions of service for working journalists as a whole. The Government of
Uttar Pradesh on 18th June, 1947 and the Government of Central Provinces &
Berar on 27th March, 1948, appointed committees to enquire into the conditions
of work of the employees of the newspaper industry. The matter remained pending
when eventually the Working Journalists (Conditions of Service) and
Miscellaneous Provisions Act, 1955 was passed. Under Section 8 of the Act, the
Central Government vide notification dated 2nd May, 1956 constituted a
Wage Board for fixing rates of wages in respect of working journalists in
accordance with the provisions of the said Act. The decision of the Wage Board
was published in the Extraordinary Gazette on 11th May, 1957. The Commissioner of Labour,
Madras issued circular dated 30th May, 1957, calling upon the managements of
all the newspaper establishments in the State to send him the report of the
gross revenue for three years, i.e., 1952, 1953 and 1954, within a period of
one month from the date of the publication of the Board's decision. The
newspaper owners challenged the vires of the said Act before the Indian Supreme
Court by means of Constitutional Petitions under Article 32 of the Constitution
in the case of Express Newspaper Ltd. v. Union of India (AIR 1958 SC 578). One
of the questions for consideration before the Court was as to whether the
functions performed by the Board were administrative, judicial, quasi-judicial
or legislative in character. The Court after detailed analysis of the nature
and functioning of the Wage Boards established around the world held that:--
"116
......... it is impossible to state that the functions performed by the wage
boards are necessarily of a legislative character. It is no doubt true that
their determinations bind not only the employers and the employees in the
present, but they also operate when accepted by the appropriate Government or
authorities and notified in accordance with law, to bind the future employers
and employees in the industry. If that were the only consideration the dictum
of Justice Holmes cited above would apply and the functions performed by these
wage boards would be invested with a legislative character. This is however not
all, and regard must be had to the provisions of the statutes constituting the
wage boards. If on a scrutiny of the provisions in regard thereto one can come
to the conclusion that they are appointed only with a view to determine the
relations between the employers and the employees in the future in regard to
the wages payable to the employees there would be justification for holding
that they were performing legislative functions. If, however, on a
consideration of all the relevant provisions of the statutes bringing the wage
boards into existence, it appears that the powers and procedure exercised by
them are assimilated to those of Industrial Tribunals or their adjudications
are subject to judicial review at the hands of higher Tribunals exercising
judicial or quasi-judicial functions, it cannot be predicated that these wage
boards are exercising legislative functions. Whether they exercise these
functions or not is thus to be determined by the relevant provisions of the
statutes incorporating them and it would be impossible to lay down any
universal rule which would help in the determination of this question.
117. Even if on the construction of the relevant
provisions of the statute we come to the conclusion that the functions
performed by a particular wage board are not of a legislative character, the
question still remains whether the functions exercised by them are
administrative in character or judicial or quasi-judicial in character, because
only in the latter event would their decision be amenable to the writ
jurisdiction or to the special leave jurisdiction above referred to.
118. There is no doubt that these wage boards are
not exercising purely judickd functions. They are not Courts in the strict
sense of the term and the functions which they perform may at best be
quasi-judicial in character. The fact that they are administrative agencies set
up for the purpose of fixation of wages do not necessarily invest their
functions with an administrative character and in spite of their being
administrative bodies they can nevertheless be exercising quasi-judicial
functions if certain conditions are fulfilled.
123. There is
considerable force in these contentions, but we do not fell called upon to
express our final opinion on this question in view of the conclusion which we
have hereafter reached in regard to the ultra vires character of the decision
of the Wage Board itself. We are however bound to observe that whatever be the
character of the functions performed by the wage boards whether they be
legislative or quasi-judicial, if proper safeguards are adopted of the nature
discussed earlier, e.g., provision for judicial review or the adopting of the
procedure as in the case of the recommendations of the wage councils in the
United Kingdom, or the reports of the advisory committees which come to be
considered by the administrator under the Fair Labour Standards Act of 1938 in
the United States of America, no objection could ever be urged against the
determinations of the wage boards thus arrived at one the score of the
principles of natural justice having been violated."
48. In response, Mr. Muhammad Akram Sheikh, Sr.
ASC submitted that it is true that the NECOSA does not give right of appeal to
an individual against the Award given by the Board, but, in fact, it lays down
a mechanism akin to arbitration proceedings where the Chairman of the Wage
Board does not pass any unilateral order, rather there is equal representation
of employees and employers on the Board. He further submitted that if it was an
order of a judge or an individual, the legislature would have provided right of
appeal. In the present case, there were 11 years of litigation before different
forums, and though there was an allegation of bias against Justice Gandapur,
ITNE, but no such allegation was ever made against Justice Raja Afrasiab Khan,
Chairman of the Seventh Wage Board.
49. In view of the stand taken by the
petitioners' counsel himself that Wage Board is neither judicial nor
quasi-judicial body as it exercises executive/administrative function, we have
gone through the relevant provisions, i.e. Sections 9, 10 & 11 of the NECOSA, and the ratio
decidendi of the judgments noted hereinabove. Keeping in view the nature of the
task assigned to a Wage Board of fixation of wages is neither judicial/quasi-judicial
nor executive/administrative function, but partakes of legislative activity and
the Chairman being the delegatee of the Federal Government, with the advice and
consultation of the members of the newspaper establishments and newspaper
employees, gives its decision fixing the wages of different categories of the
newspaper employees including working and non-working journalists. As far as
the process of performing a legislative activity is concerned, it is to be done
following the guidelines provided in Section 10 of the NECOSA. We tend to agree
with Mr. Shaukat Aziz Siddiqui, learned ASC that if this Court comes to the
conclusion that a right of appeal is necessary
to honour the requirements of due process of law in
terms of Article 10A of the Constitution, the question would be as to whom
right of appeal will be available against the Award of Wage Board because the
petitioners being the representatives of the newspaper establishments and the
respondents being the representatives of the newspaper employees are themselves
associated with the Chairman equally in the process of fixing the wages,
therefore, a possibility cannot be ruled out that in such a situation whenever
any demand of any of the members is not accepted, they would be agitating the
matter against the Chairman and remaining members and so on and so forth and
this process ultimately would never come to an end, thus, the object for which
the law has been promulgated would be squarely defeated. To buttress the plea
so taken by him, one can imagine whether the Parliamentarians are ever heard of
filing appeal against legislation done by them. It is to be noted that in the
instant case as well during proceedings before the Wage Board the
representatives of the newspaper establishments/ owners boycotted twice as it
has been highlighted hereinabove and they offered to end the boycott subject to
fulfilment of their demands. It may not be out of context to note that the
vires of the Award on the ground of its acceptability on factual side has not
been challenged except before the High Court or before this Court raising
technical objection that the Award is not sustainable. Incidentally, not a
single affidavit was filed before the High Court on behalf of the petitioners
to controvert the factual aspect of the Award relating to fixation of the
wages, which have been allowed. Contrary to it, the respondents filed
affidavits in support of their contention that the Award did not suffer from
any factual defect. Therefore, for want of adequate material, the NECOSA cannot
be declared ultra vires the Constitution, being contrary to Article 18 of the
Constitution as well as Article 3 as the wages of the newspaper employees have
been fixed following the object and purposes of the legislation. The contents
of the Award suggest to hold that full opportunity was given to the
stakeholders to put forward their respective viewpoint, enabling the Board to
reach a correct conclusion, In this connection, the Chairman and Members of the
Wage Board travelled to different cities in the country, recorded the evidence,
inasmuch as evidence of the experts was also obtained and calculations made for
the purpose of fixing rates keeping in view the ground realities. These facts
also indicate that to lay down a formula for the purpose of fixing the rates of
wages, the activities so undertaken by the Wage Board, when examined in the
light of above facts and circumstances, strengthen the argument of Mr. Salman
Akram Raja, learned Counsel that all such bodies and functionaries who have
been assigned the task, being a body exercising sub-legislative powers, get
involved themselves in performing legislative activity and same is the ratio
decidendi of the judgments, which have been referred to hereinabove.
50. As far as appeal is concerned, it is
continuation of the original proceedings and it provides a mechanism for the
scrutiny of the findings/determination already recorded by a subordinate forum
whereas the wage determination, which is done with a view to regularize its
payment to the newspaper employees, being a legislative activity is open to
judicial review before the superior Courts if violation of any provision of the
Constitution is made out. The learned counsel for the petitioners submitted
that assuming that the determination of wages, was a legislative activity having
prospective effect, under the Seventh Award, the wages were fixed
retrospectively, inasmuch as the same were ordered to be paid from 1st July,
2000. In reply, the learned counsel for the respondents submitted that the
wages determined, under the Award dated 25th October, 2001 have been ordered to be paid
from the date of the Constitution of the Board, and not from an earlier date,
therefore, the same could not be said to have retrospective effect. We agree
with the learned counsel for the respondents that the direction to pay the
wages determined under the Award from the date of Constitution of the Board
does not make it a retrospective activity. The argument of the learned counsel
for the petitioners, therefore, cannot be accepted.
51. The learned counsel for the petitioners
himself submitted that the Wage Board is not performing a judicial or
quasi-judicial function, and on the contrary executive powers of determining
the wages have been conferred upon the Board, which, according to him,
undermines access to justice and does not satisfy the irreducible or minimum
requirement of administration of justice, besides being violative of the
fundamental principle of trichotomy of power and independence of the judiciary.
In view of the admission of the learned counsel that the Board is performing a
function, which is neither judicial nor quasi-judicial, the argument that it is
violative of the principle of access to justice is not well founded. Reference
in this behalf may be made to the cases of Mehram Ali v. Federation of Pakistan
(PLD 1998 SC 1445) and Iftikhar Ahmed v. President, National Bank of Pakistan (PLD
1998 SC 53). In the first mentioned case, it has been held that the right of
"access to justice to all" is a Fundamental Right, which cannot be
exercised in absence of an independent judiciary providing impartial, fair and
just adjudicatory framework i.e. judicial hierarchy. The Courts/Tribunals,
which are manned and run by executive authorities without being under the
control and supervision of the High Court in terms of Article 203 of the Constitution can hardly meet the mandatory requirement of
the Constitution. On the touchstone of the above, it cannot be argued that
departure has taken place from the process of access to justice. As it has been
held hereinabove that the Wage Board determines the wages of the newspapers
employees like a Pay Commission, therefore,
hardly it is
possible to stress
that process of access to justice while discharging
legislative activities has been denied. There is no cavil with the proposition
that when the individual rights are being determined/decided by a forum
exercising judicial function, aggrieved person is entitled to right of appeal,
but if powers are exercised other than judicial or administrative as a delegatee
on behalf of the Federal Government empowered to give Award as per supporting
legislation, like framing of the rules, which is not carried out by the
legislature but by the authority in the concerned statute.
52. Constitutionality of the ITNE was also
questioned on behalf of the petitioners, contending that no judicial or
quasi-judicial powers are available to the ITNE for recording evidence and
effecting recovery of the wages, therefore, the authority so conferred upon the
ITNE is against the concept of due process of law, inasmuch, as the functions
being performed by the ITNE do not specify the irreducible minimum requirement
for safe administration of justice as well and is tantamount to setting up a
forum, which is much beyond the status of parallel judicial system. Thus, Sections 12A and 13
may be declared violative of Article 4 and the Fundamental Right enshrined in
Article 9 of the Constitution. On the other hand, the learned counsel for the
respondent contended that the ITNE so far has not awarded conviction nor any
such order if passed has been challenged or brought before this Court,
therefore, to the extent of powers of the ITNE under Section 13(1)(a) in the instant proceedings need not to be examined. As
far as the remaining powers of the Tribunal are concerned, the same are of
administrative nature, meant for the purpose of implementation of the decision
of the Board.
53. We tend to agree with the learned counsel
that as presently no matter relating to awarding of punishment under Section 55
of the IRO 1969 has been brought before us, therefore,
examination of the said provisions will be undertaken in some other appropriate
case.
54. As far as the powers conferred upon the
Tribunal under Section 13(4) of issuing direction which a Labour Court is
empowered to issue under Section 51(1) of IRO 1969 for recovery of wages as
arrears of land revenue of public demand, it is an admitted feature of the case
that in this behalf the Tribunal is performing function of effecting recovery
of the wages which has already been determined by the Board. Such powers, if
exercised, cannot be considered contrary to the due process of law or against
Article 9 of the Constitution because on the revenue side as well as in banking
matters or the Cooperative Societies Act, such powers are available to the
authorities mentioned therein as Collectors of Revenue, therefore, we are of
the opinion that the Tribunal cannot be debarred from implementing the Award in
absence whereof it would not be possible
to implement the Award because the Chairman of the Board becomes functus
officio after pronouncement of the Award, which the Board has to do in 180 days
of its constitution, and its publication in the official gazette. If the Award
is not implemented, the whole exercise undertaken in this behalf shall be a
futile one because no remedy is available to implement the same. Therefore,
under the special circumstances, and keeping in view the background on the
basis of which the newspaper employees have been treated as a separate class
from the other employees working in different industries would be left with no
remedy. It is a cardinal principle of law that where there is a right, there is
a remedy.
55. It is also contended by the learned counsel
with vehemence that objection was raised on the procedure being followed during
the proceedings of the Board as there was a perception of bias. He has relied
upon certain documents, i.e. letter dated 24th April, 2000 addressed to the
Director General (Internal Publicity), Ministry of Information (relevant
excerpt reproduced hereinabove) letter dated 17th December, 2000 addressed to
the Chairman of the Board on the manner of proceedings of the Board, letters
dated 20th August, 2001 and 25th, October, 2001 addressed to the then Minister
of Labour for repeal of the NECOSA, etc., letters dated 22nd December, 2001 and
16th May, 2002 addressed to the Secretary Information, and letter dated 15th
August, 2002 addressed to the Secretary, Ministry of Labour, but in our
considered opinion attempts have been made to persuade the Court at a belated
stage that the Award should be set aside on the perception of bias. Firstly,
this ground was never pleaded, and secondly, provision of interim relief,
holding inquiry in absence of the petitioners, instead of reflecting upon the
conduct of the Board goes against the petitioners because they were not
cooperating with the Board, inasmuch as they had twice boycotted the
proceedings. As held in Asif Ali Zardari v. The State (PLD 2001 SC 568), bias
is said to be of three different kinds:---
(a) A Judge may have a bias in the
subject-matter which means that he is himself a party or has direct connection
with the litigation, so as to constitute a legal interest.
A `legal interest' means that the
Judge is `in such a position that a bias must be assumed'.
(b) Pecuniary interest in the cause,
however, slight, will disqualify the Judge, even though it is not proved that
the decision has in fact been affected by reason of such interest. For this reason, where a person having such interest sits as one of
the Judges the decision is vitiated.
(c) A Judge may have a personal bias towards
a party owing to relationship and the like or he may be personally hostile to a
party as a result of events happening either before or during the trial.
Whenever there is any allegation of personal bias, the question which should be
satisfied is - "Is there in the mind of the litigant a reasonable
apprehension that he would not get a fair trial?" The test is whether
there is a `real likelihood of prejudice', but it does not require certainty.'
`Real likelihood' is the apprehension of a reasonable man apprised of the facts
and not the suspicion of fools or `capricious persons'.
Testing the case
on the above touchstone, it does not fall in any of the above categories of
bias. Further, he has relied on the Pinochet case (2) reported as R v. Bow
Street Metropolitan Stipendiary Magistrate [(1999) 1 All ER 577]. Briefly
stated, the facts of the case were that Senator Pinochet brought the petition
to set aside an older made by the House of Lords, allowing the appeal of the
Commissioner of Police of the Metropolis and the Government of Spain from the
decision of the Queen's Bench, granting the petitioner judicial review by way
of certiorari to quash the provisional warrant issued for the arrest of the
petitioner to await his extradition to Spain. The grounds of the petition were
that Lord Hoffmann's links with Amnesty International, which had been granted
leave to intervene in the appeal, gave the appearance of possible bias. It was
held as under:
"The
principle that a judge was automatically disqualified from hearing a matter in
his own cause was not restricted to cases in which he had a pecuniary interest
in the outcome, but also applied to cases where the judge's decision would lead
to the promotion of a cause in which the judge was involved together with one
of the parties. That did not mean that judges could not sit on cases concerning
charities in whose work they were involved, and judges would normally be
concerned to recuse themselves or disclose the position to the parties only
where they had an active role as trustee or director of a charity which was
closely allied to and acting with a party to the litigation. In the instant
case, the facts were exceptional in that AI was a party to the appeal, it had
been joined in order to argue for a particular result and the Law Lord was a
director of a charity closely allied to AI and sharing its objects.
Accordingly, he was automatically disqualified from hearing the appeal. The
petition would therefore be granted and the matter referred to another
committee of the House for rehearing per curiam."
The other case
relied by the learned counsel in the above connection was R v. Gough [(1993) 2
All ER 724] wherein the appellant claimed that the learned judge should on his
own motion have required the prosecution to proceed on an indictment containing
eight substantive counts of robbery and not on the conspiracy count. That
submission was rejected by the Court of Appeal. The other ground of appeal was
that by reason of the presence on the jury of a lady
who was appellant's brother's next door neighbour, there was a serious
irregularity in the conduct of the trial and for that reason the conviction of
the appellant should be quashed. That too was rejected. In the appeal to the
House of Lords, it was held as under:--
"Except
where a person acting in a judicial capacity had a direct pecuniary interest in
the outcome of the proceedings, when the Court should assume bias and automatically
disqualify him from adjudication, the test to be applied in all cases of
apparent bias, whether concerned with justices, members of other inferior
tribunals, jurors or arbitrators, was whether, having regard to the relevant
circumstances, there was a real danger of bias on the part of the relevant
member of the tribunal in question, in the sense that he might unfairly regard
or have unfairly regarded with favour or disfavour the case of a party to the
issue under consideration by him ..."
56. The facts and circumstances of the said cases
are quite different and are not attracted in the present case. As far as the
Chairman is concerned, it has already been held that the Board performs a
function, which is a legislative activity and not a judicial or quasi-judicial
act, as such, in the performance of his functions as Chairman, he is not a
Judge even though he be or may have been a Judge. It is well settled that mala
fides cannot be attributed to legislature. Even otherwise, bias, or the
perception of bias has to be established, but here it appears that there was no
bias because the petitioners were not cooperating with the Board, which is
evident from the letters filed by them. Another important thing in this behalf
is that the notification of appointment of the Chairman was never challenged on
the ground of bias or perception of bias, either when the matter came before
this Court earlier in 2004, or before the High Court, therefore, at this stage,
this argument is not available to the petitioners. Thus, from this angle too,
no case for interference with the Award or the proceedings of the Board is made
out.
57. Learned counsel next contended that
legislature has completely abdicated its powers, as it has made excessive
delegation of powers to the Wage Board without any guidelines. On the other
hand, the learned counsel for the respondents stated that the petitioners have
not shown with reference to any specific instances from the Award that the
Board has acted in excess of the authority conferred upon it and not a word has been said about it. The Court will
not enter into an academic exercise. Therefore, this argument fails because it
has not been made with reference to any particular item in the Award. He has
relied upon Muhammad Ismail & Co. v. Chief Cotton Inspector (PLD 1966 SC
388), Province of
East Pakistan v. Srajul
Haq Patwari (PLD 1966 SC 854), Zaibtun Textile Mills v. Central Board of
Revenue (PLD 1983 SC 358) and Abdur Rahim v. Federation of Pakistan (PLD 1988
SC 670). The ratio decidendi of the aforesaid cases is that it is only the
essential legislative power that is incapable of being Constitutionally
delegated. Within the framework laid down by the legislating authority, power
can be delegated to a subordinate agency to carry into effect the purposes of
the enactment by making detailed rules in conformity with the policy thus laid
down. What is prohibited by the Legislature is the delegation of its function
to make the law but not the authority exercised under and in pursuance of the law
itself to another agency in regard to the provision of details when by the very
nature these are incapable of being laid down by the legislature itself. The
legislature can delegate authority to subordinate or outside authorities for
carrying laws into effect and operation. Considering the above line of
authorities, it is not possible to uphold the argument of the learned counsel
for the petitioners. It is to be noted that under Section 9 of the NECOSA the
Chairman was appointed along with 10 members representing owners of the
newspapers and the newspaper employees having equal representation to advise
the Chairman for fixing the wages. The whole proceedings of the Board have been
incorporated in the Award dated 25th October, 2001, a perusal whereof indicates
that after collecting evidence and thoroughly conducting inquiry and as a
result of intensive efforts to achieve the object of the legislation the Award
was given. The petitioners had never pointed out during the proceedings or
thereafter as to how the Chairman exceeded his authority to support the
argument that the Federal Government had abdicated its authority/jurisdiction
which was conferred upon the Board in terms of Section 10. In fact, the
petitioners had not participated in proceedings of the Board as they
disassociated themselves twice from the proceedings as is evident from the
contents of the Award and at one stage they intended to join proceedings
subject to accepting some of their conditions. Above all, when they gave the
names of owners of the newspapers to represent them, even at that stage they
incorporated in the letter dated 24th April, 2000 that prior to being signed by
the Chairman and publication in the official gazette, the Award must be
circulated amongst the members, the members must be allowed to record their
concurrence with or dissent from the Award and such concurrences and/or
dissents must also be published along with the Award signed by the Chairman,
knowing well that the objections/demands so raised by them were not in terms of
the NECOSA or the
Working Journalists (Wage
Board) Rules, 1960. It is pertinent to
mention here that
no rules have
been framed under the NECOSA, therefore, as per Section 24 of the
General Clauses Act, the rules framed under the Ordinance of 1960 would be
holding the field.
58. Learned counsel also objected that as there
was no industrial dispute, therefore, the Government, suo motu could not
appoint the Wage Board for fixation of wages of the newspaper employees. The
argument so raised by the learned counsel is not tenable as under Section 9(1)
of the NECOSA, it is prerogative of the Federal Government to constitute
whenever it so considers necessary by notification in the official gazette the
Wage Board for fixing the wages of the newspaper employees. This very question
engaged the attention of the Indian Supreme Court in the case of Express
Newspapers (supra) wherein it was held that as the appointment of the Wage
Board for the purpose of fixing the rates of wages could not be, and was not,
challenged, as such the Constitution of such a Wage Board is one of the
appropriate methods for fixing the rates of wages of the newspaper employees.
59. In the instant case as well, vide
notification dated 19th June, 2000 the Chairman was appointed, followed by
another notification dated 8th July, 2000 in pursuance whereof the employer
members and the employee members were appointed and no challenge was thrown to
this notification, therefore, this argument is not available to the
petitioners. Besides, in view of the plain language of Section 9(1), there is
hardly any need for the Government to wait till the time an industrial dispute
is raised. In our opinion, the prior existence of an industrial dispute is
absolutely unnecessary in view of various provisions of the NECOSA, which has
been promulgated to regulate certain conditions of service of the newspaper
employees as defined therein. As far as payment of the wages is concerned, it
is one of the conditions of service of newspaper employees. The term "wage"
has been defined in Section 2(h) of the NECOSA, which means wages as defined in
the Payment of Wages Act, 1936 and includes any gratuity or other payment
declared as wages by the Board. The contention of the learned counsel in
respect of directions contained in the Award relating to granting of grades,
etc. to the newspapers has also no force because grading has been done in view
of the ground realities based on evidence collected by the Board.
60. Undoubtedly, the Chairman has control/powers
as envisaged by Section 10 of the NECOSA as has been pointed out hereinabove.
It is pertinent to mention that this Court, in the case of Herald Publications
Ltd. (supra) interfered in the Wage Award to the extent it was found beyond the
scope/jurisdiction of the Board, but the Wage Board Award was kept intact. No
demonstration has been made before us to substantiate that the petitioners led
any evidence or produced any material
being the representatives of
the newspaper establishments to
persuade the Board not to award different grades or rates of wages to the
newspaper employees, hence no other discussion in this behalf is called for.
61. Learned counsel contended that all the
newspapers (owners of the newspapers) do not have financial capacity to make the
payment of wages to the newspaper employees as per the Award. This argument has
been seriously controverted by the learned counsel for the respondents,
particularly by Mr. Shaukat Aziz Siddiqui, ASC. According to him, the
petitioners control 85% news publications in Pakistan, therefore, there is no
match between them and the newspapers like Kohistan, Ta'amir, etc., or the
newspapers being issued from the far-flung areas of D.I. Khan of Khyber
Pakhtunkhwa or Mastung, Sibi, etc., of Balochistan. Be that as it may, this
very contention had already been decided against the newspaper owners in the
case of Herald Publications (supra) on the basis of the material brought before
the Wage Board at that time. In this case as well, the employers/owners of the
newspapers had pleaded before the Board that they had no capacity to pay the
employees as per their demands. As per the expert opinion
presented before the Board by Dr.A.R. Kamal, cost of living is 46.3
percent and per capita income is 51.8 percent. Similarly, another expert Dr.
Irfan opined that cost of living is 47% while the per capita income is 52%. It
is significant to note that despite non-producing material/data as was required
to be filed by the newspaper establishments to assess their capacity to pay the
wages fixed in the Award, at one stage, i.e. on 4th October, 2001 M/s. Syed
Fasih Iqbal and Mr. Arshad Zubari appeared on behalf of newspaper owners and
urged that burden of inflation is to be shared by the owners and the newspaper
employees in 60: 40 ratio. According to the owners, after deduction of the
share of the workers @ 40%, the balance will come to 24%. On this formula, the
owners concluded that they were ready to increase the wages of the workers to
the extent of 24%. Another concession was offered by the owners that 7%
weightage may also be shared in 60: 40 ratio, which will come to 28% to 29%. It
was further declared that if this formula was accepted they would have no
objection if the decision of the Board was made operative w.e.f. 1st July, 2000. On the other
hand, the representatives of the newspaper employees brought into the notice of
the Board that the 4th Wage Award was given on the basis of overall 90%
increase in the cost of living. The 5th Wage Award was announced on the basis
of 71% increase. Similarly, the 6th Wage Award was founded on the ground that
the cost of living was 70%. The workers produced reliable evidence before the
Board that prices of various articles had increased from 100% to 150%. This
evidence was not rebutted by the owners. As the parties were not agreed,
therefore, on the basis of material produced by the respondents and the oral
assertions made by the petitioners, the Board decided that 50% increase in the
cost of living would be made the basis of the increase in the wages of the
newspaper employees.
62. Since no material was produced as indicated
hereinabove by the petitioners to show that financially they did not have the
capacity to increase the wages, the Board though did not approve the rates of
wages demanded by the employees, found out a middle way to fix the wages.
63. The contention raised by the learned counsel
on behalf of the petitioners that the NECOSA is a fraud on the Constitution, as
according to him, though the Board is an independent body having equal
representation of both the sides but the members are denied the power to
participate in the decision making as the Award is to be given by a single
person "Chairman".
64. Again it is to be seen that at the time of
Constitution of the Board, no objection was raised nor any challenge was thrown
in the Court to challenge the Constitution of the Board while invoking power of
judicial review of the superior Courts. Secondly, in view of the past
experience prevailing since 1951 onward, on account of unrest in the newspaper
industry and also to ensure that this industry functions smoothly and rights
guaranteed under Article 19 of the Constitution were enforced/implemented, the
representatives of the employers and the employees were engaged to provide
advice in regard to the observation that no effective participation was made by
the owners or their representatives as is evident from the facts and
circumstances noted hereinabove.
65. Learned counsel for the petitioners also
contended that the NECOSA is a redundant and superfluous law in a heavily
occupied field by incorporating several laws without which it cannot operate,
such as the Provident Funds Act, 1925, the Factories Act, 1934, the Payment of
Wages Act, 1936, West Pakistan Employees' Social Security Ordinance, 1965, the
Industrial and Commercial Employment (Standing Orders), Ordinance, 1968, the
National Industrial Relations Ordinance, 1969, etc. To elaborate his argument,
he referred to Sections
2(h), 5(5), 17 & 19 of the NECOSA as in these Sections procedure for redressal of the grievances of
the newspaper employees in the statutes named hereinbefore has been made
applicable. He further contended that due to application of these laws, several
other laws are also attracted, which shall be applicable to the newspaper
employees, namely, Employees Cost of Living Relief Act, 1973, Companies Profits
Workers Act, 1968, Workers Welfare Fund Ordinance, 1971, Minimum Wages
Ordinance, 1969, etc. As far as the laws mentioned in the later part of the
argument are concerned, they have not been made applicable expressly,
therefore, to their extent argument is based on presumptive consideration. As
far as the question of redundancy and superfluity of the NECOSA is concerned,
it is without substance. The scheme of the NECOSA makes it abundantly clear
that a comprehensive procedural-cum-substantive Code has been provided to the
newspaper employees by the legislature in view of the nature of their duties
which they have to perform necessarily other than the workers or workmen as
defined in the Factories Act or the West Pakistan Industrial and Commercial
Employment (Standing Orders) Ordinance, 1968, therefore, by means of the
NECOSA, their rights and obligations have been protected. This is not the only
statute of its nature where Payment of Wages Act, etc., have been applied by
following the process of adoption of laws, which is well settled approach in
the modern jurisprudence. Reference in this behalf may be made to Re Wood's
Estate [(1866) 31 Ch.
D. 607]. wherein Lord Esher M.R. said, "If a subsequent Act brings into
itself by reference some of the clauses of a former Act, the legal effect of
that, as has often been held, is to write those Sections into the new Act just as if they had
been actually written in it with the pen, or printed in it, and the moment you
have those clauses in the latter Act, you have no occasion to refer to the
former.Act at all. Similarly, a statute may adopt all or only a part of another
statute by express reference or by re-enactment of the former in verbatim or in
substantially the same language." [Understanding
Statutes - Cannons of Construction, Edition 2008 by S.M. Zafar].
Therefore, no redundancy or superfluity can be attributed to the NECOSA on this
score. In this behalf, argument of the learned counsel for the respondents
being worth consideration is also to be noted that the Legislature is not
debarred from promulgating such laws as general or special laws, vis-a-vis
general civil laws, special rights, procedures, etc., therefore, the NECOSA is
not superfluous and it cannot be declared ultra vires the Constitution.
66. Learned counsel vehemently argued that as per
Section 12A, a decision of the Board published under Section 11 shall be deemed
to be award of the Full Bench of the NIRC constituted under Section 22A of the
Ordinance [Section 2(b) of the NECOSA]. Under Section 38C of the IRO 1969, the
Award shall remain in force for a period of three years or until it is modified
or varied by a later decision of the Wage Board. Therefore,
according to him, treating the Wage Board Award as having come to an end after
the expiry of three years from 25th
October, 2001, the date of its publication in the Gazette of
Pakistan. The argument advanced by the learned counsel has been
seriously controverted by the learned counsel appearing for the respondents as
according to him, it has no force because the deeming clause in a statute is to
be read to the extent of its application and not beyond it as in the instant
case the Award is to be deemed award of the Full Bench of the NIRC, but it is
not said that its period of enforcement will also be the same. In the case of
Mubeen-us-Salam v. Federation
of Pakistan (PLD 2006 SC 602), it has
already been observed that the purpose of importing a deeming clause is to
place an artificial construction upon a word/phrase that would not otherwise
prevail and sometimes it is to make the construction certain. It was further
held that a deeming clause is a fiction, which cannot be extended beyond the
language of the section by which it is created or by importing another fiction.
Therefore, on the basis of such deeming clause, the period of enforcement of
the Award cannot be fixed at three years. It is provided in Section 11(2) that
decision of the Board shall remain in force until it is modified or varied by a
later decision of the Board. In the facts and circumstances of the case, the
learned counsel emphasized that all the previous Awards were continued to
remain in force for a period of five years, but in the instant case, a period
of more than 10 years has passed, as such following the past practice, it may
be held that the Award is no more applicable. The argument has no substance
because no period of time has been fixed under Section 11 of the NECOSA.
67. Thus, for the foregoing reasons, the
Newspaper Employees (Conditions of Service) Act, 1973 [NECOSA]. is intra vires the Constitution. Consequently, the Seventh
Wage Board Award dated 25th
October, 2001 shall hold the field until it is modified or varied
by a later decision of the Board published in the manner provided in Section
11(2) ibid. Accordingly, we are not inclined to
interfere with the impugned judgments of the High Court of Sindh. All the three
petitions are dismissed with costs.
(R.A.) Petitions dismissed
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