' JUSTICE (RETD.) TANVIR BASHIR ANSARI (CHAIRMAN).---This order shall decide Miscellaneous Application dated 6-6-2006, moved on behalf of the respondent-Establishment. The maintainability of the proceedings has been assailed on the grounds:--
(a) that the 7th Wage Board Award did not attain the status of a legal award notwithstanding its publication in the official Gazette for the reasons that all the members who constituted the 7th Wage Board did not sign the same;
(b) that in the instant proceedings, which are criminal in nature, the respondent cannot be called to submit the declaration. It is further contended that no criminal proceedings can be initiated suo motu;
(c) that there is no individual or collective grievance before the Tribunal and any proceedings initiated on its own are not competent;
(d) that the 7th Wage Board Award has become ineffective after lapse of two years of its enforcement as per analogy of an award of Full Bench of N.I.R.C.
2. Mr. Muhammad Afzal Siddiqui Advocate, learned counsel for the respondent has urged that the 7th Wage Board Award was not a decision of the entire Board and that it was only made by the learned Chairman of the 7th Wage Board himself. He further submitted that even the decision was not signed by all the members and that this would militate against the validity and legality of the 7th Wage Board Award. It is further contended that even if the 7th Wage Board Award is conceded to be a valid Award, this Tribunal has no suo motu powers to implement the same and that for initiation of any such proceedings, an application or other written grievance filed individually or collectively was necessary. He urged that section 13 subsection (6) of the Newspaper Employees (Conditions of Service) Act, 1973 was not an independent provision but was merely ancillary to the preceding subsections (1) to (5). The learned counsel for the respondent further referred to Chapter VII, Rule 18 of the ITNE (Procedure and Functions) Rule, 1977 to submit that the only suo motu power available to the Tribunal was as expressly provided in the said chapter. It is contended that wherever such a power of suo motu exercise of jurisdiction is expressly made in a statute, it does not admit any such power to initiate proceedings by general implication.
3. The learned counsel for the respondent lastly contends that in any event the 7th Wage Board Award which became effective from 1-7-2000 had a maximum life of two years in panri materia with an award of the Full Bench of the N.I.R.C. And that thereafter it has lost its efficacy. Reference is made to section 12 of the NECOSA, 1973 in support of this contention.
4. On the other hand Mr. Sadiq Muhammad Warriach, learned counsel representing the newspaper employees contends that it is not within the jurisdiction of the implementation Tribunal to go behind the Award. It is submitted that the NECOSA, 1973 was promulgated for the object of implementation of the Award, which attains finality after notification of the Board is published according to the provisions of section 11 ibid. It is submitted that the power of adjudication conferred upon this Tribunal does not extend to striking down the Award itself. It is further contended that the power to implement the Award stems from the provision of section 13(6) of the NECOSA, 1973 which is not only an independent provision but is also meant to further the objects and purposes of the Act itself. He strongly controverts the arguments of the learned counsel for the respondent that section 13(6) was a merely incidental or ancillary provision. As regards the objection that Chapter VII of the ITNE (Procedure and Functions) Rules, 1977 provided the only suo motu powers for summoning of witnesses and documents by this Tribunal, it is submitted that argument was misconceived in view of the object and purpose of the Act and provision of section 13(6) read with Rules 7 to 13 of the ITNE (Procedure and Functions) Rules, 1977.
5. The learned counsel for the employees further submits that according to section 11, the decision of the Board published under section 11(1) shall remain in force until it is modified or varied by a latter decision of the Board published in the manner provided in section 11 (1) ibid. He submits that it is erroneous to contend that maximum life of the award under the Act of 1973 shall be limited to a period of two years only following the analogy of life of an award of Full Bench of N.I.R.C.
6. Arguments have been heard and record perused.
7. In order to appreciate the various contentions raised by the learned counsel for the respondent it is necessary to recapitulate the salient provisions of the Newspaper Employees (Conditions of Service) Act, 1973. The purpose of the constitution of the Tribunal for implementation of the decision of the Wage Board is manifestly spelt out in Section 12 (A) of the Act. Section 12 (A) subsection (1) is reproduced as under:-- "The Federal Government may, by notification in the official Gazette, constitute a Tribunal consisting of one or more members to implement the decision of the Board under section 11."
8. Under section 9 ibid, a Wage Board is constituted for fixing rates of wages in respect of the newspaper employees. The decision of the Wage Board published under section 11 (1) ibid is made effective from the date specified therein and is deemed to be an Award of the Full Bench of the National Industrial Relations Commission under section 12. By virtue of section 15 NECOSA, 1973 the decision of the Wage Board shall be binding on all employers in relation to newspaper establishment and every newspaper employee shall be entitled to be paid wages at a rate which shall, in no case, be less than the rate of wages fixed by the Board.
9. In order to carry out the purposes of NECOSA, 1973, the Federal Government has framed rules under section 23 ibid with the nomenclature of the Implementation Tribunal for Newspaper Employees (Procedure and Functions) Rules, 1977. Under rule 7, this Tribunal, for the implementation of the decision of the Wage Board shall issue notice to the newspaper establishment requiring them to furnish declaration in the relevant Form ni order to see whether or not the relevant Wage Board decision has been complied with Non-filing of the declaration within the prescribed time may lead to ex parte proceedings against the newspaper establishment, leaving the implementation of the decision of the Wage Board for an appropriate action by Tribunal. In case such a declaration is filed it is only then that the collective bargaining agent or other trade union may be directed' to file comments.
10. Individual grievances are contemplated in rule 15 which might be filed by a newspaper employee if he is aggrieved for the reason that his name was not included in the declaration forms submitted by the management of that he joined service after the date of submission of the declaration form. Under rule 16 an employee complaining of refusal of the employer to pay his entitled wages, may file a complaint before the Tribunal for which a separate procedure is provided.
11. It thus becomes manifest that this Tribunal has the primary function to implement the decision of the Wage Board acting suo motu in the manner provided by section 13 (6) of the Act, 1973 and rules 7 & 8 of the I.T.N.E. (P&F) Rules, 1973. The cause for filing an individual grievance under rule 15 only arises after the filing of the declaration upon a notice issued suo motu by the Tribunal. An individual grievance is not a precondition for initiating action for implementation under section 13
(6) read with rule 7 ibid. Similarly the remedy provided under rule 16 ibid empowering an employee to file a complaint against a defaulting employer is in addition to the suo motu powers of this Tribunal for implementation and is not in derogation of such exercise of powers.
' The provisions of section 13(6) are independent of and not controlled by preceding subsections (1) to (5). The power and the manner of exercise of the same under section 13 ibid are independently provided. In fact subsections (5) and (6) of section 13 were added by Act LXXVIII of 1976. This would further show that subsection (6) of A section 13 is an independent provision having nexus to the suo motu power of the implementation Tribunal.
12. In view of the foregoing, there is no force in the submission of the learned counsel for the respondent that the exercise of suo motu powers for implementation of the decision of the Wage Board Award is invalid. The contention of the respondent in this respect is rejected.
13. There is also no substance in the submission that only suo motu powers available to this Tribunal is regarding the summoning of witnesses and the record as suo motu power is expressly conferred for this limited purpose only. This argument clearly overlooks the specific object of the NECOSA, 1973 which confers the power of implementation of the Award upon this Tribunal exclusively. It is primary function of this Tribunal to oversee and ensure the implementation of the Award. Section 13(6) read rule 7 of I.T.N.E. (P&F) Rules, 1977 envisages such suo motu powers. This Tribunal is fortified in its view by rule of the Honourable Supreme Court as laid down in Implementation Tribunal for Newspaper Employees v. Matri Publications (Pvt.)
' Limited, 2001 PLC 662, where their Lordships were pleased to observe thus:-- "The decision of the Wage Board duly notified was binding on the employers and was within the competence and jurisdiction of the Tribunal to implement the same."
' Thus the submission that proceedings must commence upon an application of an aggrieved person is fallacious.
14. Regarding next submission made by learned counsel for the respondent that the 7th Wage Board Award was not legal and valid as it was not signed by all the members of the Wage Board, suffice it to say that no such defect is pointed out from the Award. In any event, this Tribunal has been specifically constituted to implement the Award which has been duly published as per section 11, NECOSA, 1973 and which became binding on the employers. It is not within the province of this Tribunal to go beyond the Award, the validity of which upon publication in the official Gazette is vouchsafed by the statute itself. The contention of the respondent is repelled.
15. The submission that the instant proceedings are criminal in nature and can neither be initiated without a complaint no any declaration can be called from the respondent is misconceived and devoid of force. As discussed supra, the proceedings in hand are not criminal in nature and are set afoot suo motu for implementation of the Wage Board Award as per law.
16. With respect to the contention of the respondent that assuming the Wage Board to be valid, its life would be limited to two years in pari materia with an award of Full Bench of N.I.R.C., it is found that under section 11(2), the decision of the Wage Board, published under section 11(1) ibid shall come into force on the date specified therein or from the date of its publication and shall continue to remain in force until it is modified or varied by a later Award. In view of this express provision, no benefit can be derived from a reference to the corresponding tenure of the award of Full Bench of N.I.R.C. The equating of the Award of the Wage Board with that of the Full Bench of N.I.R.C. Under section 12 ibid is merely to determine the status of the Wage Board Award for the purpose of its manner of implementation. The equation is further subject to the provision of the Act. The contention of the respondents is rejected.
17. The learned counsel for the respondent finally contended that as the vires of the NECOSA, 1973 as well as the 7th Wage Board Award is under challenge before the Sindh High Court, the proceedings before this Tribunal be stayed.
' It is trite law that pendency of a Writ Petition challenging the vires of a legislation or an order, decision or Award under it would not ipso facto effect the pendency of proceedings. Reliance is placed upon M/s. Cowasjee and Sons v. Director Sindh Employees Social Security Institution, 2000 PLC (Labour)
26. Resultantly there is no merit in the application, which is dismissed.
' Before parting with this order, it is noted that a similar application filed by the respondent was dismissed on 24-5-2006. The instant application moved on 6-6-2006 claimed a re-hearing on the same objections although differently worded in the present application.