' MUSHIR ALAM, C.J.--- Petitioners in C .P.834 of 2004 had challenged the Newspaper Employees (Conditions of Service) Act, 1973 (hereinafter abbreviated as NICOSA, 1973) It was contended that, in case this court comes to a conclusion that NICOSA, 1973 is valid piece. Of legislation than the very constitution of. Wage Board, and the 7th Wage Award as notified on 25 October, 2001 is unconstitutional and liable to be set aside. To challenge the constitution of Wage Board and Award petitioners have filed instant C.P. No,D-1391 of 2004, and another C.P.1151 of 2007 has been filed to challenge powers of Implementation Tribunal for Newspaper Employee (ITNE) and orders passed by ITNE.
2. Petitioners have sought following relief in their respective petitions; C . P. No . D-1391 of 2004:
(1) That this Hon'ble Court be pleased to allow the petition and enforce the Fundamental Rights of the petitioners;
(2) That this Hon'ble Court be pleased to declare that the Constitution of the Seventh Wage Board was unconstitutional and illegal and therefore, the proceedings before it were taken coram non- judice and are void ab-initio;
(3) That, this Hon'ble Court be pleased to declare that the Seventh Wage Board Award as per decision of the Chairman and notified as Award vide Notification dated 25th October 2001 is unconstitutional void, ab initio and of no legal effect and consequence;
(4) That, this Hon'ble Court be pleased to grant a permanent injunction, prohibiting and restraining the respondents by themselves and through their agents, servants and subordinates, from enforcing and/or giving effect to the Seventh Wage Board Award by resort to coercive measures or in any manner whatsoever.
(5) That, this Hon'ble Court be pleased to grant any other relief, additional and or different to the above as this Hon'ble Court may deem fit and proper in the circumstances of the case, so as to do complete justice in the matter.
(6) Cost.
3. Petitioners have as a sequel to challenge to NICOSA, 1973, followed by challenge to Wage Board and 7th Wage Award have also challenged Implementation Tribunal for Newspaper Employee ("ITNE") through instant C.P. No,D-1151 of 2007, which has been filed by same set of petitioners as in C.P. No,1391 of 2004 and another publication house Ummat Publications (Pvt.) Ltd. Has challenged ITNE by filing. C.P. No,D-494 of 2008 in the last mentioned petitions relief prayed for is almost similar to one prayed for as in C.P. 1151 of 2007, which is reproduced as follows;---
(i) The Constitutional Petition be allowed.
(ii) IT BE DECLARED that the ITNE can only implement only a Decision of the duly constituted Wage Board, and that Decision of the Chairman Seventh Wage Board notified on 25th October 2001, not being "Decision of the Wage Board" having not been made, signed or delivered by all Members, it cannot be deemed to be or to have become Award of the Full Bench of the NIRC, hence it cannot be implemented by the ITNE;
(iii) IT BE DECLARED that an Award is valid only for such period as is fixed in it and if there be no such period fixed, as in the 7th Decision, its validity period is maximum of two years, same as an Award of NIRC, and the deemed Award under NECOSA has ceased to be existent;
(iv) IT BE DECLARED that ITNE is not a Court and it has no adjudicatory powers and all or any actions initiated, proceedings undertaken, orders passed, inquiries ordered, directions issued adjudicatory process commenced or decisions announced by ITNE are wholly without jurisdiction, and of no legal effect or consequence AND ITNE BE PROHIBITED AND RESTRAINED from initiating or continuing with already initiated actions or proceedings and from passing any adjudicatory or executor orders or decisions;
(v) IT BE DECLARED that the proceedings undertaken by the ITNE, either suo motu or otherwise, are without lawful authority, 'specially there being no complaint or petition filed by any employee;
(vi) IT BE DECLARED that no amount can be recovered as arrears of land revenue, unless it is determined to be "sum due" through an adjudicatory process in appropriate proceedings and that after such determination the recovery can be effected through statutory mechanism and by statutory collectors appointed by the provincial Government and the entire process undertaken by respondent No,1 to recover any amount as arrears of land revenue is wholly without jurisdiction and without lawful authority hence void;
(vii) IT BE DECLARED that respondents must act only in accordance with law and PROHIBITED/ RESTRAINED from acting against the law and/or in excess of jurisdiction and not to initiate or continue with proceedings that are not warranted by law and not to take any action or to pass any order, not permitted by law; (viii)IT BE DECLARED that the ITNE is not vested with any suo motu powers to assume executor or adjudicatory jurisdiction nor can it on its own assume powers of the NIRC or Labour Court, save those as are specifically conferred and invoked in appropriate proceedings only AND that actions initiated by ITNE suo motu, or through inappropriate proceedings being corum non judice be struck down and ITNE Prohibited from pursuing such proceedings;
(ix) IT BE DECLARED that the powers to recover any amount as arrears of land revenue, vested in the ITNE through legislation by reference, can only be exercised in the same manner as is applicable to the Labour Court, and through the same mechanism as is prescribed in the Land Revenue Act, and ITNE is neither a Collector appointed by the Provincial Government nor it can confer any powers of the Collector on any other person and in any case unless there is undertaken an adjudicatory process to determine "sum due" no recovery as arrears of land revenue can be undertaken, initiated or ordered and that it is a coercive measure which is unwarranted in law and liable to be struck down;
(x) IT BE DECLARED that respondent No,2 is not an Inspector appointed in accordance with Section 20 of NECOSA and he cannot be empowered by the Chairman ITNE to perform any function not specified in the Notification of his appointment, by the Central Government;
(xi) Costs.
4. Through this common judgment we propose to decide all the above three petitions having same matrix, involving common questions of facts and law. Succinctly stated facts, relevant for consideration of all the petitions could be encapsulated as follows.
5. In C.P No,834 of 2004 All Pakistan Newspapers Society (APNS) and some of its active members publications houses, have challenging the NECOSA, 1973, and through judgment announced today, it was held that NICOSA, 1973 is intra vires the Constitution and is not violate of petitioners' fundamental rights as guaranteed under the 1973 Constitution. Therefore we proceeded to decide the above mentioned petitions
6. In C.P No,1391 of 2004 petitioners have challenging the very constitution of 7th Wage Board dated 25-10-2001 "being unconstitutional and illegal and therefore, the proceedings before it were taken Coram Non Judice and void ab-initio and of no legal effect". In the same sequence second petition filed by the Publishers of various Newspapers in which some of the publications houses are also the petitioners as in the first mentioned petition, and third petition in identical terms was filed by another publication house, wherein the petitioners have impugned "Implementation Tribunal for the Newspaper Employee" (hereinafter abbreviated as ITNE), on the ground inter-alia that "ITNE can only implement the Decision of the duly constituted Wage Board, and that Decision of the Chairman Seventh Wage Board notified on 25th October 2001, not being "Decision of the Wage Board" having not been made, signed or delivered by all Members, it cannot be deemed to be or to have become Award of the Full Bench of the NIRC".
7: The petitioners being aggrieved by the said 7th Wage Board Award had challenged the same under Article 184 of the Constitution of Islamic Republic of Pakistan, 1973 directly before the apex Court in C.P No,35 of 2002. The apex Court vides its judgment dated 19-5-2004 dismissed the petition holding that such Award is valid and would not give rise to question of public importance involving fundamental rights of the petitioners to their extent. The petitioners were given an option to avail appropriate remedy before the competent forum. The judgment is reported as All Pakistan Newspapers Society and others v. Federation of Pakistan and others PLD 2004 SC 600.
8. Constitutional Petition No,D-1391 of 2004 impugning the constitution of Wage Board and 7th Wage Award was filed on 9-12-2004. Petitioners have seriously questioned the validity and the manner in which the 7th Wage Board was constituted and Wage Award was announced and being implemented.
9. Without prejudice to above contention, it was contended that the Implementation Tribunal of Newspaper Employees (challenged in C.P. No,D-1391 of 2004), is unconstitutional. It was contended that since the Wage 7th Board Award, as notified on 25th October 2001, is not signed and or delivered by all Members, therefore, it cannot be treated or deemed to be or to have become an Award of the Full Bench of the NIRC, hence it cannot be implemented by the ITNE. Learned counsel has drawn our attention to the Gazetted Award, at page 117 to show that it has been signed by the Chairman 7th Wage Board, Justice Raja Afrasiab Khan, and former Judge Supreme Court of Pakistan on. 7-10-2001, signature of the Chairman is available on the reverse page of 195 of the court file. According to learned Counsel the Wage Award was required to be made by the Wage Board as constituted under NICOSA, 1973, which comprised of Chairman and equal number of representatives from Newspapers and Newspaper Establishment on one hand and Newspaper Employee on the other and the award does not bear the signature of members of the Wage Board, therefore it is not an Award, thus could not be implemented.
10. It was contended that the Wage Award is illegal as no right of appeal against the award is provided. According to him award is not only irrational but also impractical and violates the freedom of Press in terms of Article 19 of the Constitution.
11. It was further contended that the 7th Wage Award could not be sanctified by this court as no period is mentioned therein and in absence of validity period, it is deemed to be an award of Full Bench of NIRC, validity of which is only two years, which period has long lapsed, therefore impugned Award being barred by time cannot be enforced by the ITNE.
12. According to Mr. Siddiqui, there is neither industrial dispute nor any dispute was raised by the newspaper employees. It was urged that the award is bad for more than one reason; firstly that it was not prompted by any industrial dispute, secondly, there was no term of reference for entering or rendering the Award. It is further contended that the in addition to the Chairman five members were nominated from the Newspapers owners and five members were from the employees' side.
According to petitioners full Wage Board comprised of 11 members therefore the award could not have been signed by the Chairman alone but by the other members of the Board, including the representative of petitioners and that of the newspaper employees. In this case neither the employers nor the employees have joined hands to render the award, therefore Award is bad in law.
13. He further contended that through Wage Board certain benefits that have been granted, which do not qualify to be "wages". In particular reference is made to paragraph 50, whereby grades have been standardized, In paragraph 51 new pay scale has been laid down, which argued to be beyond the purview of Wage Board. Serious objection has been raised as to application of fitment formula, according to learned counsel, there is no concept of fitment formula in Wage Board as applied in para 52 of the Wage Award and lastly, it was urged that fringe benefit have been allowed as wages, which do not qualify as wages. Learned counsel while refereeing to the definition of "Wages" as per section 2(vi) of the Payment of Wages Act, 1936, urged that transport allowance, outfit allowance, house rent computer allowance etc. As mentioned in para 54 of the Wage Board Award is beyond the scope of wages, therefore liable to be struck down.
14. According to the learned counsel, though the Chairman individually engaged in consultation with the members nominated from the side of newspapers owners and newspapers employees to seek their purposive advice, however the impugned award has been arrived and rendered by the Chairman in his individual capacity. The Award is not the reflective of the collective wisdom of the.
Board, therefore, it does not qualify the requirement of section 11 of the NICOSA, 1973 and its publication tinder section 12 of the Act, 1973 is of no avail. It was urged that the constitution of the Wage Board and the 7th Wage Board Award be declared null and void and of no consequences.
15. According to Mr. Siddiqui, ITNE is not a Court, therefore all action taken are without jurisdiction, and of no legal effect or consequence It was further urged that ITNE cannot exercise an' mote jurisdiction and or without any complaint filed by any newspapers employee no proceeding could be initiated and all action taken art-without lawful authority and jurisdiction.
16. It was urged that the ITNE is recovering amount, under the impugned 7th Wage Award, as arrears of land revenue. It was contended that unless amount due is judicially determined in no recovery could be enforced through ITNE.
17. It was contended that ITNE can neither act as a labour court nor NIRC, and all proceeding taken in such capacity are corum non judice and liable to be annulled and ITNE should be restrained from exercising such authority illegally.
18. According to learned counsel for the petitioner respondent No,2 is not an Inspector in terms of section 20 of NECOSA, 1973 therefore he cannot be empowered by the Chairman ITNE to perform any function not specified in the Notification of his appointment, by the Central Government;
19. Learned DAG, Mian Khan Malik contended that, NICOSA, 1973 is valid law. It is contended that even Honourable Supreme Court, has dismissed the petition challenging 7th Wage Board, the case is reported as All Pakistan Newspaper Society v. Federation of Pakistan PLD 2004 SC 600 and now no exception could be taken. Mr. Mian Khan Malik contended that the petitioners arc enjoying substantial financial concession in terms of rebates and discount from the Government and advertisement quota, therefore not justified to deny legitimate rights of the employees.
20. Learned DAG, contended that wage Board was lawfully constituted and no exception can be taken. As regard objection as to none signing of the award by other members of the Wage Board is concerned. It was argued that the members are merely to advice and not to adjudicate, the 7th Wage Board Award was rightly signed by the Chairman. It was announced on 8-10-2001 and gazetted 25-10-2001 after almost 11 years of the 6th Wage Award and the increase allowed under the 7th Wage Board ranges from 50% to 60% which is quite rational looking to the inflationary trend.
21. As regard right of appeal against the Wage Award it was contended that Federal Shariat Court has already upheld validity of the NICOSA in a matter in PLD 1986 FSC 29 (relevant pages 38 and 39). It was contended that Government of Pakistan alone allocate advertisement worth more than Rs,500 Crores, which amount is to assist Newspaper to meet financial obligations. It is stated that no industry receive such patronage.
22. As regard jurisdiction and authority of ITNE, it was urged that the ITNE is constituted under section 12-A of NICOSA, 1973 and powers of the Tribunal are defined under section 13 thereof, and appeal against conviction and sentence made by ITNE is provided for under section 13-A ibid.
23. Mr. Akhtar Hussain, and Mr. Faiz Ghangro, learned counsel for the respondents seriously opposed the petitions. According to them on 11-8-2000 the petitioners boycotted the Wage Board.
However they attended the 4th meeting on 13-11-2000 and interim award was announced on 18-12- 2000 applicable from 1-11-2000, again the proceedings were boycotted. It is pointed out that hide and seek continued and ultimately the representatives of the petitioners and so also of employees filed their respective comments on the report of the wage Committee and ultimately the Wage Award was announced on 8th October, 2001. Petitioners exerted all pressure on the government to avoid the Wage Board. Respondents vehemently opposed the petition. It was contended that Second and Third Wage Board Award were implemented without any objection. Forth Wage Board Award was challenged before the Hon'ble Supreme Court in the case reported as Independent Newspapers Corporation (Pvt) Limited v. Chairman Forth Wage Board Award and others. The award was up-held and the Hajj expenses through ballot and car maintenance was disallowed not being part of wages. It was further contended Fifth Wage Award in the case reported as Pakistan Herald Publications (Pvt.) Limited and 23 others v. Federation of Pakistan and 21 others (1998 CLC 65) and the learned Division Bench in the cited case held that: "Classification of working journalists and nonworking journalists could not be deemed to be arbitrary or irrational and question of violation of Article 25 of the Constitution of Islamic Republic of Pakistan, 1973 did not arise in the circumstances." The award was ultimately implemented. It was urged that 7th Wages Board Award announced on 8-10-2000 is not yet implemented, it was belatedly challenged before the Supreme Court unsuccessfully and the case is reported (PLD 2004 SC 600).
24. Messrs Akhtar Hussain and Mr. Faiz Ghangro, learned counsel contended merely none provisions of remedy of appeal a statute cannot thrown out. In support of his contention reliance was placed on Independent Newspaper Corporation (Pvt.) Limited v. Chairman, 4th Wage Board Award and others) and Pakistan (1993 PLC 673 equal to, 1993 SCMR-1553), and Herald Publications (Pvt.) Limited and others v. Federation of Pakistan and others 1998 CLC 65.
25. Mr. Akhtar Hussain also supported the contention of learned DAG and added that the government is giving various concession in as much as 2.5% Excise duty and 6% of with-holding tax on import of newspaper print has been- given to the petitioners in addition more than 20% increase in the rates of government advertisements and the petitioners are making substantial profit yet depriving the employees of their due share.
26. Mr. Akhtar Hussain, learned counsel further urged that the Chairman of the Wage Board announced the Award after due consultation and deliberation with members from the side of employer and employee and the members of the Board have advisory capacity and not adjudicatory according to them the Wage Award is always singed by the Chairman and not by the advisers. .
27. Mr. Shahenshah Hussain, learned counsel for the respondent No,5 while adopting the arguments of DAG and Mr. Akhtar Hussain, further contended that the petition is not maintainable.
According to him the Wage Board was validly constituted and ITNE is competent to implement the award and no exception could be taken. He prayed for the dismissal of the Petition.
28. We have heard the arguments and perused the record.
29. We have already dilated upon the vires and constitutionality of NECOSA, 1973 in C.F. No,834 of 2004 and NICOSA, 1973 has been held to be a valid law and intra vires the constitution. Therefore, no further discussion is considered necessary.
30. As noted in the narrative above various Wage Awards were challenged by the petitioners and other newspaper owners in various proceedings before the High Court and Supreme Court, some of the cases are reported as Independent Newspaper Corporation (Pvt.) Limited v. Forth Wage Board and Implementation Tribunal for Newspapers Employees and other (1993 SCMR 1533) = (1993 PLC 673) Pakistan Herald Publications (Pvt.) Limited v. Federation of Pakistan (1998 CLC 65), Nabi Bux Khoso v. P.T.V. (PLD 1983 Kar. 725), APNS v. Federation of Pakistan (PLD 2004 SC 600).
Implementation Tribunal for Newspaper v. Matric Publications (2001 PLC 662) and in none of the referred case constitution of Wage Board and or authority of ITNE was challenged.
31. Attending to the contention of learned counsel for the petitioners that absolute power given to the Chairman Wage Board makes it a powerful Authority beyond rationality and the constitution of the Wage Board is illegal. Constitution of the Wage Board is provided for in section 9 of NECOSA, 1973 which reads as under:--- "9. Wage Board:---
(1) The Federal Government may, whenever it so considers necessary, by notification in the official Gazette, constitute a Wage Board for fixing rates of wages in respect of newspaper employees in accordance with the provisions of this Act.
(2) The Board shall consist of a Chairman appointed by the Federal Government, who shall he a person who has been, or is a Judge of a High Court, and as many members to advise the Chairman as may be appointed by the Federal Government so, however, that one-half of the members shall be persons representing the newspaper employees and the other half the employers in relation to newspaper establishments.
(3) The Board shall give its decision within a period of one hundred and eighty days from the day of its constitution."
32. From the perusal of the above, it is clear that Federal Government has authority to appoint a person who has remained a Judge of High Court as a Chairman of the Wage Board, through a notification. Composition of the Wage Board is such that the Chairman of the Board is flanked by equal number of advisors representing owner/establishment of Newspaper and Newspaper employee. In 7th Wage Board petitioners nominated 5 members as admitted in para-IV-16 of the petition, who were approved by the Federal Government representing newspaper establishment and 5 representatives of the newspaper employees were approved and appointed by the Federal Government, such members are appointed to facilitate and advise the, Chairman, they fully participated in the consultative process but they are neither the arbiter nor adjudicator, role of members is merely advisory or consultative and nothing more. It is the Chairman, who considers the view point of both the side and considers the advice and opinions of the members and Chairman of the Board as an independent arbiter apply his judicious mind, renders the Wage Award. Therefore, Wage Award signed and delivered by the Chairman, is the Wage Award made by the Wage Board. It is neither "coram non judice nor void ab initio" as argued by the petitioners. Plea that award was rendered by the Chairman and not be all the members of the Wage Board, was also raised in writ petition filed before the Lahore High Court and reported as Pakistan Herald Publications (Pvt.) Ltd. And 23 others v. Federation of Pakistan and 21 there 1998 CLC 65 and in para-30 it was held that:--- "so far as the legal position is concerned, it is apparent on a bare reading of the Newspaper Employees (Conditions of Service) Act, 1973 particularly section 9 thereof it is obvious that though the Board comprises of the Chairman and other members but -the role of the members is only advisory in nature and they were appointed according to section 9(2) to advise the Chairman. It follows, therefore, that the decisions on the contentious issues had to be made by the learned Chairman and other members are appointed to advise him and are not required to take any decision in the matter."
33. Through fiction of law, Wage Award is deemed to be an award by the Full Bench of the NIRC, and this fiction cannot be extended to other attributes of an award of Full Bench of NIRC, as suggested by the learned counsel for the petitioner, where by construing life of -Wage Award at par with Award of full bench of NIRC, which is two years. It was settled in the case of Muhammad Mubin us Salam v. Federation of Pakistan PLD 2006 SC 742 @ page 679 that fiction of law cannot be extended beyond language of the section. Wage Board is constituted in terms of subsection (2) of section 9 of special enactment NICOSA, 1973. Standing Order Ordinance, 1968 and IRO 1969 as such govern the proceedings of Wage Board. It is only for limited purpose in terms of section 12 of NICOSA, 1973 that the Wage Award is deemed to be award rendered by the Full Bench of the NIRC (under IRO 1969) and by fiction of law it is so considered but, it has its own implications and validity in terms of NICOSA, 1973. Currency or duration of Wage Award is governed in terms of subsection
(2) of section 11 of the Ordinance, 1973 and until it is modified or verified by a later Wage Board Award published in the Official Gazette. Section 11, ibid provides for application of Wage Award from the date of its publication. When Special enactment namely NICOSA, 1973 itself provides for period of validity and subsistence of the Wage Award, subject to the provisions of NICOSA, 1973, then such period can neither be curtailed nor enlarged by importing period of applicability of Wage Award under IRO, 1969. As already noted above, the Wage Award is treated as Award of the NIRC for the limited purposes and such fiction could not be extended to an extent to negate or to render specific provision under the NICOSA, 1973 redundant. Therefore contention of the learned counsel for the petitioner that validity of the Wage Award tinder NICOSA, 1973 is only two years is without force.
34. Adverting to another objection raised by the petitioners counsel that award is invalid as no terms of reference was set out or made. As noted above, in terms of section 9 of the NICOSA, 1973, the Federal Government is competent by notification in the official Gazette to constitute a Wage Board for fixing rates of wages in respect of newspaper employees in accordance with- the provisions of the Act, 1973. The very provision of subsection (1) of section 9 of NICOSA, 1973 as reproduced above, is an answer, to the objection as raised by the D petitioners' counsels that no terms of .Reference were fixed. The term of reference is already provided in the Act itself i,e, for fixing the rate of wages and the manner in which the wages are to be fixed is elaborated in section 10 thereof. The award as rendered by the Board comes into operation on such date as may be specified in the decision and where no date is given, it comes into operation on the date of its publication in the Official Gazette in terms of subsection (2) of section 11 of the NICOSA, 1973 the impugned 7th wage Award was published and Gazetted on 26 October, 2001.
35. As regard contentions of learned counsel that various financial benefits have been extended, which do not qualify to be wages, therefore ITNE cannot enforce and or implement Wage Award to such extent, was given serious consideration. As noted above in terms of subsection (1) of section 9 NICOSA, 1973 is to "fix wages in respect of Newspaper employees", in accordance with the provisions of NICOSA, 1973, while determining the wages the Wage Board may take into consideration the cost of living, prevalent rates of wages of comparable employment, the circumstances relating to newspaper industry in different regions of the country and or any circumstances as the Wage Board may consider. In the instant 7th Wage Award Chairman of the Wage Board, visited Karachi, Quetta, Peshawar, Islamabad, and Lahore and recorded evidence of the large number of persons including assistance on technical and financial aspect of the matter.
Testimony of witness recorded appears at pages 2502 to 2554 of the Gazette dated 25-10-2001.
After taking into consideration voluminous evidence and point of view of the newspaper owners and establishment and the newspaper employees various benefits have been given to the newspaper employees and so also the 7th Wage Award has made various recommendations for the newspaper establishment. Contention of learned Counsel for the petitioner that transport, outfit house rent etc. Are not included in the definition therefore cannot be allowed. Contentions are ill founded, definition of wages as defined in section 2 (h) of NICOSA, 1973 means wages as defined in the Payment of Wages Act, 1936 (Act IV of 1936), and include payment declared by the Board"
(underlined to add emphasis). Thus it could be seen that not only wages as defined under the payment of wages Act are included with in the term of wages but it extend to payment as declared by the Board. In para 58 of the Award all privileges, benefits declared as wages already allowed by the decision of the First, to Sixth Wage Board and covered under the 7th Wage Award were adopted and directed to be continued to be enjoyed by the newspaper employees. In Para 59, it was recorded that "all benefits allowed in para 54 above are hereby declared as wages" Therefore, in terms of definition clause as reproduced above, all the benefits allowed under the wage Award are to be treated as wages.
36. As regard application of 'fitment formula in the 7th Wage Award, is concerned, one must understand what is "fitment formula". We have not been able to lay hand on the application of fitment formula in Pakistan, but it is universally accepted formula, neither the Counsel for the petitioner nor the respondents were able to shed any light on fitment formula. But on exploring definition cat fitment formula, on internet various service and wage arrangement/ settlement were found E available frequently using fitment formula. Ordinary dictionary meaning of "fitment" is "something that suits or fit", and applying it in the context of wages and salary in any establishment. Fitment formula is the principles of wage determination taking into consideration few F determined Actor Prime consideration is the capacity of any establishment organization to pay. It means the categorization of an employee, for the purpose of calculating salary or allowance" (see http:/www.Worldink.Com/words/fitment). Applying fitment formula in the wage award means fixing the basic pay of an employee at a specific sum in various scales/grade prevailing in the newspaper industry. Any person who, immediately prior to the appointed date was an employee of newspaper or newspaper establishment upon implementation of Wage award will be fitted in new pay scale. The word "fitted" in the definition thus differentiate person in the service of any establishment and or organization may it be newspaper or newspaper establishment immediately prior to the appointed date and those who are subsequently appointed, promoted or transferred from one office/department to another office/department in same station/city or other station/city under different nomenclature. The Wage Board, has taken into consideration the role played by the newspaper employee that includes both journalist and non-journalist, in promoting and in the progress and development of newspaper establishment and growth of newspaper industry. Since the Newspaper employees have no role in spending and or determining their own wages. The Wage Board has considered that the newspaper establishment has not taken due care of its employee and such newspaper employees forming back bone of any successful newspaper establishment, have made considerable and remarkable contribution in the progress of newspaper establishment, therefore newspaper employees deserve better share in the earning of the newspaper establishment, with the view to give meaningful benefit to the newspaper employees, having such consideration in mind in the 7th Wage Award fitment formula was invoked and applied and categorization and standardization of service cadre was made on appointment, transfer and posting of a newspaper employee from one category to another either in same station/city, or different station/city irrespective of nomenclature or job description.
37. 7th Wage Board Award also supported the categories and classifications of the newspapers and it was necessary to determine just and fair wages for different categories of the newspapers establishments and such criteria has also been adopted from the first Wage Board Award which was rendered on 31-12-1960.
38. Answer to the objections raised by the learned counsel for the petitioner that there was no industrial dispute therefore there was no occasion to establish Wage Board, and that unless there is industrial dispute as required under the IRO, 1969, Wage Board cannot determine the wages is found in para 171 of the case from Indian jurisdiction cited both by the petitioners as well as respondent namely Express Newspaper (P) Limited and others (AIR 1958 SC 578), para 171 is reproduced as follows:---
171. The appointment of a wage board for the purpose of fixing rates of wages could not be and was not challenged as such because the constitution of such wage boards has been considered one of the appropriate, modes for the fixation of rates of wages. The Industrial Disputes Act, 1947 can only apply when an industrial dispute actually arises or is apprehended to arise between the employers and the employees in a particular industrial establishment. Though under the amendment of that Act by the Industrial Disputes (Amendment and Miscellaneous Provisions) Act, 1956 (36 of 1956), there is a provision for the appointment of a National Tribunal by the Central Government for the adjudication of industrial disputes which in the opinion of the Central Government involve questions of national; importance or are of such a nature that industrial establishments situated in more than one State are likely to be interested in, or affected by, such dispute (Vide section 7-B) the condition precedent, however, is the existence of an industrial dispute or the apprehension of one. If the wages for the employees of a particular industry have got to be fixed without such an industrial dispute having arisen or being apprehended to arise, the only proper mode of such fixation would be the appointment of wage boards for the purpose. They take the place of Industrial Tribunals or National Industrial Tribunals and are generally constituted of equal number of representatives of the employers and the employees in that particular industry along with a quota of independent member or members one of whom is appointed the Chairman of the Board.
39. Thus it could be seen that unlike IRO, 1969 for determination of country wise wages Industrial dispute is sine qua none, it is not so in the cases of special category of employees that is newspaper employee governed under NICOSA, 1973, where under the Federal Government whenever it so considers expedient to determine wages of journalist may by notification constitute the Wage Board. First Wage Board w-as constituted under Working Journalists (Conditions of Service) Ordinance, 1960, which was promulgated on 26-4-1960, it gave first award on 31-1-1960 for a period of five years. Second Wage Board was constituted on 25-4-1969 however; it could not render its award. On 11-8-1973 Newspapers Employees (Conditions of Service) Act, 1973 was promulgated. On 8-6-1974 the Second Wage Board rendered the Award. Third Wage Board delivered the Award on 25-5-1980. Forth Wage Board; announced the Award on 28-9-1985. Fifth Wage Board announced the Award on 18-12-1990 and Sixth Award was enacted on 13-3-1996. The last and 7th Wage Board impugned herein was setup in 19th June, 2000 the Award was rendered on 8-10-2001 and was gazetted on 25-10-2001. Thus it could be seen that invariably there is a gap of five years in successive award. It may however be noted that this time it has been over a decade 7th Wage Board is not yet implemented on account of uncalled for challenge by the petitioners, thus petitioners have succeeded in flouting the award well over due period when in normal course 9th Award would have been announced or at least would have been in the offing.,
40. Attending to another objection of the learned counsel for the petitioner that ITNE, is not a court therefore unless, the amount due and payable to a newspaper employee is determined, same cannot be recovered and or enforced by ITNE. Section 12-A of NICOSA, 1973 Through fiction of law, Wage Award is deemed to be an award .By the Full Bench of the NIRC, and this fiction cannot be extended to other attributes of an award of NIRC as suggested by the learned counsel for the petitioner where by construing life of Wage Award at par with Award of full bench of NIRC. It was settled in the case of Muhammad Mubin us Salam v. Federation of Pakistan PLD 2006 SC 742 @ page 679 that fiction of law cannot be extended beyond language of the section.
41. Section 12-A of NICOSA, 1973' authorizes the Federal Government to constitute a Tribunal comprised of one or more members to implement the decision of Wage Board made under sectioh 11 of the NICOSA, 1973. Section 11 confers vast powers on the ITNE notwithstanding anything contained under section 64 of the IRP , 1969. ITNE (under section 55 of the IRO, 1969) can take cognizance of failure of newspaper or newspaper establishment against non-implementation of wage Award. ITNE could on its own motion or on application of any party withdraw from any court except High Court or Supreme Court any applications, proceedings, and or any appeal relating to such violation or offence and (Section 55 of the IRO, 1969 may either try and dispose of itself or may refer the same to court of competent jurisdiction for trial and disposal as per law. As regard contentions that no amount was determined, therefore, ITNE had no jurisdiction to recover the amount as arrears of land'revenue. Such question stand answered by the apex court in the case reported as Implementation Tribunal for Newspaper Employees v. Matri Publication Ltd. 2001 PLC 662 at pages 668-669 it was held as follows;-- The Federal Government constituted the Tribunal to implement the decision- of the Board, which under subsection (4) of section. 13 of the Act could exercise the same power as of a labour Court, to issue direction under section 51(1) of the Ordinance, which provides that any money due from an employer under a settlement or award or decision of the Arbitrator be recovered upon the application of the person entitled for the money by the labour court or the Tribunal as arrears of land revenue. It may be noted that the Legislature in its wisdom has only conferred the powers on the Implementation Tribunal under section 51(1) of the Ordinance, which the Labour Court could exercise for the recovery of money due from an employer under a settlement or award and it has specifically excluded subsection (2) of section 51 of IRO whereby amount was to be determined and recovered. As is apparent from the nomenclature of the Tribunal itself that it is an "Implementation Tribunal" for newspaper employees constituted under section 12-A of the Act by the Federal Government to implement the decision of the Wage Board which has determined the rates of wages in respect of Newspaper Employees. Since money due from the employer had been determined in the award/decision of the Wage Board no further determination was required and the Tribunal specially constituted to implement the decision of the Wage Board was competent to issue the direction for the recovery of the money due against employer under section 51(1) of the Ordinance and the High Court was not correct in observing that the amount in respect of which the proceeding were initiated was not determined. The decision of the Wage Board duly notified was binding on the employees and was within the competence and jurisdiction of the Tribunal to implement the same."
From above discussion it is clear that ITNE, constituted under section 12-A of NICOSA, 1973, exercises jurisdiction only in Respect of matter relating to the implementation and execution of Wage Board Award in exercise of power under section 51(1) of the IRO, 1969 as delegated under subsection (4) of section 13 of NICOSA, 1973 and has no jurisdiction to adjudicate quantum or determination of wages, which falls within the exclusive jurisdiction of the Wage Board under NICOSA, 1973. ITNE can neither modify nor amend the Wage Award nor can adjudicate or implement any other matter relating to terms and conditions of services as may be applicable to newspaper employees under any other enactment and are not covered under the Wage Award.
42. As regard objection as to exercise of suo motu jurisdiction by the ITNE, it may be observed that ITNE, was created by inserting section 12-A of the NICOSA, through Newspaper Employees Condition of Services (Amendment Act) 1975 and Amendment Act of 1976. Basically ITNE has been created to provide independent authority to ensure implementation of Wage Award. Very purpose of creating ITNE was to create an implementing agency for the Wage Award, which could not have been achieved without conferring or exercising jurisdiction to act suo motu, which jurisdiction is conferred under subsection (6) of section 13, of NICOSA, read with Rules 7 and 8 of the Implementation Tribunal Newspaper Employee (Procedure and Functions) Rules 1977, where under ITNE may through notice in Form A requires the newspaper establishment to file a declaration in Form B, and in event information is not furnished within the prescribed time of 15 day ITNE has jurisdiction to proceed ex parte against the newspapers and pass such orders as may be expedient for the implementation of the Wage Award. Once the Declaration in Form B is filed, then any individual newspaper employee whose name is not included in the declaration form may bring his grievance to the notice of the ITNE by filing an application giving detail of his complaint.
ITNE after hearing him and providing him an opportunity of being heard and to lead evidence if necessary may call for written reply from the management and decide the same as per procedure provided for the implementation of the Wage Board Award.
43. For the foregoing reasons we do not see any merits in above petitions, which are dismissed with cost throughout.