Present labour appeal arises out of the facts that Respondent Abur Rahman Baloch was employed by the appellant as Sub-Editor of their newspaper Daily Business Recorder on 16.6.194. While serving as such he had been complaining of non-payment of the benefits as allowed under the 6th Wages Board Award. The row resulted in termination of the services of the respondent on 23.5.96.
He challenged the termination order before Labour Court through Grievance Application No. 93/96 but the same was dismissed. His appeal against that dismissal was, however, accepted by the learned Singh Labour Appellate Tribunal Vide order dated 17.9.1997. The appellant challenged the said order before this Court through writ petition which was dismissed on 5.1.1998. The matter was further agitated before the Hon'ble Supreme Court through civil appeal which dismissed it by order dated 5.12.2000 holding therein as under: Since it is a question of termination of service of an employee, therefore, the reasons of his termination which may constitute good cause primarily, among others, should relate to the performance of his duties and conduct and other cause of similar nature and not that his period under the contract has expired. It is allowed to be used by the employer for termination of his service, the same would amount to nullify the provisions of Section 4 of the Act
2. The appellant issued order of reinstatement of the respondent on 1.2.2001. Two days thereafter i.e. on 3.2.2001 another order terminating his services of the respondent once again was issued by the appellant.
3. This way the respondent was pushed into second round of the litigation. He challenged the termination order through grievance petitioner before the Labour Court No. 1 at Karachi under Section 25-A, IRO, 1969. The application was accepted by the Labour Court on 27.1.2004 directing the termination order illegal and malicious. The learned Labour Court also directed the reinstatement of the respondent within one month. That the, order has been impugned through present labour appeal.
4. Mr. Bajwa representing the appellant argued that the services of the respondent were terminated for good causes which were expressly mentioned in the written notice issued to the respondent under Section 4 Newspaper EMP (Conditions of Service) Act (hereinafter referred to as the Act). According to him, the learned Labour Court fell in error by declaring the reasons mentioned in the termination notice not to be the good causes. He further contended that the main cause for the termination of the respondent employment was reorganization of the establishment which had become essential on advancement of computer technology and necessity of internet edition. In support of his contention the learned advocate referred to the case of United Bank Ltd. reported in PLD 1999 SC 990. continuing with his contentions Mr. Bajwa stated that ofter the news room of Daily Business Recorder had been set on fire by unruly mob the appellant re-habiliated the same by equipping it with state of Art technology whereafter the internet edition became the main work engine of the newsrooms. He further argued that since all Sub Editors except the respondent had got acquainted with the new equipments therefore only he deserved to be retrenched/terminated in the process of reorganization.
5. Mr. Bajwa next contended that the other cause of the termination of the respondent service was loss of mutual confidence in the result of a letter which he had sent to the authorities including Chief Executive on May 27, 2000 levelling therein serious and penal allegations against the appellant including one that the owner of daily Business Recorder would try to eliminate him.
6. The learned Advocate also raised objections about the maintainability of grievance application before the Labour Court arguing that although the designation of the respondent was Sub-Editor but the nature of the duties being performed by him had given him status of Editor, therefore, the provisions of Section 17 the Act does not recognize him as workman. Consequently, he not being a workman could not approach Labour Court against, the termination order. He referred to the proviso to Section 17 of the Act which excludes the application of the Section to a person who is employed as the Editor Of a newspaper.
7. In the last he contended that when the Labour Court had reached the conclusion that the termination was not legal then it should have kept in view the strained relations between the parties and allowed adequate compensation to the respondent instead of his reinstatement. In support of this contention the learned Advocate referred to the case Re: Qamarul Inam Khan, Managing Director Azad and Publication Ltd. vs. Abdul Rasheed Basitpuri and another (LLC 1967 (DACCA) 641).
8. Against the above contentions Mr. Shahenshah Hussain, learned Advocate representing the respondent has defended the impugned order arguing that that his client had been appointed as Sub-Editor and was performing duties as such. He was not employed as Editor. The nature of his duties were also different from the nature of the duties and privileges of Editor. Moreover, the appellant had not produced evidence in respect of the actual duties performed by Editor and Sub- Editor nor such position was taken before the Labour Court and in the memo of the appeal.
Therefore, the plea that the respondent was Editor is after though and cannot be taken at the time of arguments of the appeal.
9. On merits Mr. Shahenshah further argued that reorganization of the appellant has not been proved. Even if it is accepted that the appellant re-organized itself then also termination of only one particular Sub-Editor who remained locked with it in litigation is big reflector of the targeted termination and mala fides. Moreover, the notice does not contain the reason for which the respondent was picked for terminating his services in the process of so called re-organization.
10. As the termination of the respondent employment is claimed to be under Section 4 of the Act. It will be proper to examine its provisions for proper understanding. It reads as under: "Termination of employment.--The services of a newspapers employee shall not be terminated by a newspaper establishment without good cause shown, through a notice, in writing, of such termination--
(a) ....................................
(b)...................................
(c)...........................
A look in the above provisions gives out that the Section is barring provisions restraining the termination of an employee without communicating good cause through a written notice. Thus, emphasize is on good cause without which the service of an employee/workman cannot be terminated.
11. For knowing as to whether the notice issued and served upon the respondent by the appellant was containing good cause for the termination of service if will be advantageous to reproduce the same. It reads as under: 'THROUGH OCS No. MAZ/2001/2 03 February 2001 Mr. Abdul Rehman Baloch, D-17, Block V, North Nazimabad, Karachi.
Dear Mr. Baloch, Reference your letter of 27.1.2001 and further to our letter No. MAZ/2001/dated 1.2.2001, we have go advise you as under:
1. That as you are aware the newspaper office was attacked and burnt by an unruly mob on 18th May 2000 and the newsroom which was located on the first floor of the office building was totally gutted. The new newsroom has been built on the third floor of the building and is Alhamdulillah equipped with the `state of the art' technology. The introduction of new technology has necessitated a total re-organization of the scheme of work in the newsroom with different work flows. As a result, the internet edition of the newspaper is now the main work engine of the newsroom and drives the print editions.
2. That as a consequence of the aforesaid re-organization, we do not have any assignment/work for you and are therefore constrained to terminate your employment under Section 4 of the Newspaper' Employees (Conditions of Service) Act 1973, which, we hereby do with immediate effect.
3. Additionally and without prejudice to the foregoing in view of your letter dated 23.5.2000 addressed to functionaries of the federal government and other circumstances, it is difficult for the management to have confidence in you and it is imprudent to continue with your services.
4. A cheque fore Rs. 1,11,677/- (Rupees one hundred eleventh thousand six hundred and seventy seven only) as per statement attached, representing your three months wages in lieu of 3 months notice of termination of employment and your gratuity for the period while you were in service is enclosed herewith. A copy of the tax paid challan will be sent to you in due course.
Yours Sincerely Sd/- WAMIQ A SUBERI (Chief Executive)
Encl. Cheque No. 9537118 dated 3.2.2001 Drawn on MCB, Record House Branch For Rs. 111,677/-"
Munute reading of the notice specially its Paragraph Nos. 1 and 2 lead to the conclusion that it was the re-organization only which was mentioned in Paragraph No. 1 as cause of the termination. Para No. 2 speaks of the termination of the service with immediate effect. Paragraph No. 3 comes later as an expression that it was also difficult for the management to have confidence in the respondent.
12. As regards the reorganization mentioned in Para No. 1 of the notice as cause of termination it can be said, at the very out set that reorganization of the establishment of Business Recorder is not visitle anywhere. In effect the said single termination is the entire so called reorganization of the establishment. Re-organization is not a knee jerk reaction. It has to be fully justified and then its process is to be carried essentially under just and fair scheme. The case of UBL vs. Shamim Ahmed Khan reported in PLD 1999 SC 990 referred to by the appellant's learned Advocate in support of his contention that re-organization is valid cause for termination was also the case of Organization with full justification and the retrenchment/down sizing under a proper scheme. In present case the termination of respondent's service was under the colour of re-organization without any scheme or formula. It was targeted termination without good cause as required by the law.
13. The argument of Mr. Bajwa that respondent was not acquainted with new equipments does not carry any weight. It is not only invalid in the circumstances but after thought too. Nothing such was mentioned in the notice of termination.
14.Although, as mentioned above the letter allegedly sent by the respondent to the functionaries of the Federal Government was not the cause of the termination yet if it is examined then also the same cannot be treated as good cause. If the receipt of letter dated 27.5.2000 by the functionaries of Federal Government is accepted on the basis of evidence of Shafqat Abbas who produce the photostat copy of the letter then also it is not proved that the letter was signed and despatched by the respondent. After C his denial for having signed and sent the letter those two facts had to be proved but were not proved. Although the signatures of the respondent were taken for comparing them with the signature appearing on the photostat of the letter produced by Shafqat Abbas from Ministry of Information but they were not sent to the expert. Nor the Court itself undertook the exercise of comparing the signatures. Obviously, the Labour Court did not consider it material as it was not the cause of the termination.
15.Moreover when so called reorganization is not recognized as good cause additional expression about the letter could not take the place of the cause. Additionally even if the letter is assumed to have been sent by the respondent then also it was not in capacity as an employee of the appellant. It was as the General Secretary, Karachi Union Journalists and as such is assumed to be a letter by the union.
16. As regards the awarding of the compensation to the respondent in lieu of reinstatement under Section 46(5) that contention has no force except academic interest. sub-section (5) itself speaks reinstatement as the first right of workmen whose services are termination wrongfully. This section is only enabling one authorizing the Labour Court to award the compensation in lieu of reinstatement. Since the Labour Court held the termination to be malicious and with the object to frustrate verdict and direction issued by the Hon'ble Supreme Court it was not required to award the compensation. In the circumstances, the decision of High Court of East Pakistan Dacca in the case of Abdul Rasheed Basitpuri (LLC 1967 DACCA 641) is not helpful to the appellant learned counsel. From one aspect this decision goes against the contention raised by Mr. Bajwa about the status of respondent that Sub-Editor is not workman. It was the case of a Sub-Editor daily Azad and Publication Ltd. which was decided first by the Labour Court of East Pakistan exercising it jurisdiction.
17.In the last I take the arguments on the question of maintainability of grievance petition before the Labour Court and applicability of Section 17 News Paper EMP (Conditions of Services) Act.
Proviso to Section 17 referred by Mr. Bajwa reads as under: "Section 17 "Provided that the provisions of this section shall not apply to a person who is employed as the editor of a newspaper."
The proviso speaks of the employment as Editor of a newspaper. Thus deciding factor for the applicability of Section 17 is the nature of the employment and not the nature of work being performed by the, employee....Status of workman is given to the employees of the newspaper by the provisions of the Act. They do not get that status from the provisions of any other law including IRO, 1969 or its successor. Thus the contention relating to the question of status under Section 17 of the Act cannot be agreed to.
18.Moreover, the question about the duties being performed by the respondent is the question of fact and in the earlier round of the litigation upto to the Hon'ble Supreme Court. Therefore, the appellant cannot raise this plea in second round of the litigation. The plea was even not raised before the Labour Court, therefore, parties were not require to adduce evidence on that aspect nor the Court was supposed to record the finding. This contention is not to be entertained at this stage for that reason also. The respondent is, therefore, workman and .the provisions of Ordinance XXIII 1969 and its successor Ordinance are applicable to him. Section 18 of the At is clear in that respect.
19.In view of the above the termination of the respondent was malicious and outrageous. The order passed by the learned Labour Court declaring the termination as malicious does not call for interference and the appeal is liable to be dismissed. Consequently, the same is dismissed with costs.