' MUSHIR ALAM, C J.---Petitioners have impugned the Newspapers Employees (Conditions of Service) Act, 1973 and have prayed for relief in following terms:
(1) That, this honourable Court be pleased to allow this Petition and declare the Act and or its provisions are violative of the Fundamental Rights of the petitioners and the People of Pakistan, and ultra vires the Constitution and, therefore, null, void of no legal effect;
(2) That, this honorable Court be pleased to grant a permanent injunction, prohibiting and restraining the Respondents by themselves and through any or all of their agents, servants, officers, representative, subordinates agencies and instrumentalities from enforcing and or giving effect to any award purported to have been rendered pursuant to or under the Act-.
(3) That, honorable Court may be pleased to grant the costs of this Petition;
(4) That, this honorable Court be pleased to grant any other relief, additional and or different to the above as this Honorable Court may deem fit, proper and or necessary in the circumstances of the case.
1. Succinctly stated facts, relevant for consideration of all the petitions could be encapsulated as follows;
2. All Pakistan Newspapers Society (APNS), petitioner No,1 and some of its active member publications houses have challenged the Newspapers Employees (Conditions of Service) Act 1973 (hereinafter abbreviated as NECOSA, 1973) on the ground inter alia, being "violative of the Fundamental Rights of the Petitioners and the People of Pakistan, and ultra vires the Constitution and, therefore, null, void of no legal effect".
3. Before adverting to merits of petition, it would be appropriate to give a brief legislative background leading to the promulgation of impugned NECOSA 1973.
4. In 1954 Government of Pakistan set up a Press Commission, it was however constituted in 1958.
The Commission on 25-5-1959, recommended legislation to regulate terms and conditions of 'working Journalists' and for the formation of 'Wage Board'. Accordingly, on 26-4-1960 Working Journalists (Conditions of Service) Ordinance, 1960 was promulgated. It applied to the working Journalists only and under Section 8 thereof, Central Government was authorised to constitute Wage Board, comprised of equal number of persons representing employers and working journalist, and an independent person as a chairman. First Wage Board was constituted there under, which 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.
5. On 11-8-1973 Newspapers Employees (Conditions of Service) Act 1973 was promulgated. The object of the NECOSA, 1973 is to constitute a Wage Board on national level for fixing wages both for the Journalists as well as non-Journalists newspapers employees. It also provided mechanism for the effective implementation of the Wage Board. It also extended application of Industrial and Commercial Employment (Standing Ordinance), 1968 and Industrial Relations Ordinance 1969 and other beneficial industrial relation legislation on news paper establishment and news paper employee. Object of NECOSA, 1973 is to remove the disparity between journalist and non journalist that existed in Working Journalists (Conditions of Services) Ordinance), 1960 and for the first time encompassed all the category of employees of the Newspapers and Newspapers establishment.
Object of NECOSA, 1973 is to provide security of service, working hours, in addition to other benefits including leave and medical coverage (for Statement of objects see Gazette of Pakistan, Extraordinary, Part III, August 1, 1973)
6. On 8-6-1974 the Second Wage Board rendered the Award. Third Wage Board announced the Award on 25-5-1980. Forth Wage Board; announced its decision on 28-9-1985. Fifth Wage Board given its decision 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 under the Chairmanship of Raja Afrasiab Khan, former Judge of the Supreme Court who rendered the award on 8-10-2001, which was Gazetted on 25-10-2001.
7. Learned Counsel for the petitioner contended that in case instant Petition is decided and NECOSA, 1973 is struck down, then other Petitions would be rendered infructuous and be disposed of accordingly and in case it is held otherwise, said petitions may be decided on its own merits.
8. Learned counsel for the petitioners very seriously objected the constitutionality of NECOSA, 1973, according to them, the "Working Journalists (Conditions of Service) Ordinance 1960" applied to the Working Journalists, which was defined in terms of section 2(t) of the Ordinance 1960 as "a person who is whole-time journalist and is employed such in, or in relation to any newspaper establishment and includes as editor of lead writer." It was urged that other category of employees were duly covered under various labour legislations including Indukrial & Commercial Employment (Standing Orders) Ordinance 1968 and Industrial Relations Ordinance, 1969 and various other industrial relation legislation existing on statute book catered to the employees of Newspapers establishment governing their terms and conditions. It was contended that promulgation of NECOSA 1973, tends to bring within its fold both Working Journalists as well as other newspapers employees including whole-time non- journalists. It was vehemently contended that there is no concept of non-working journalists. It was further urged that "working journalists" is a class of its own and other persons included within the ambit of impugned NECOSA, 1973 were already protected and sufficiently secured under various industrial and labour legislation and non- journalists are totally aliens and cannot be .Clubbed together with working journalists, According to the learned counsel other categories of persons including managers, clerks, steno-typist and/or administration functionaries have no nexus or connection with the journalism and such common category and pool of employee are common to other establishment and industrial, non-industrial and other commercial establishments and concern, therefore, bringing such category of persons within the net of NECOSA, 1973 is against all legal norms. The challenge to the NECOSA, 1973 is thrown on the ground that it is ultra vires the constitution and void ab initio and is liable to be struck down. It was vehemently urged that it is against fundamental right of speech as guaranteed under the Constitution as purpose of this Act is to cut back the print media as impugned law tends burden the printers and publishers and owners of the newspapers and periodical thus rendering the printing and publication industry financially non-viable. It is urged that situation is exploited by any government, which always put embargo on advertisement and/or import of news print impugned NECOSA, 1973 is an oppressive legislation used as an arm twisting mechanism and it has given tool in the hand of executive to exert pressure and influence on the petitioners and there constituent members.
9. According to the learned counsel for the petitioners the NECOSA, 1973 is violative of constitutional guarantee of equal protection in as much as the petitioners have been singled out by bringing the petitioners within the net of NECOSA, 1973 while other establishments of a Commercial & Industrial nature are kept out of such oppressive application of NECOSA, 1973. It is stated that NECOSA, 1973 is made applicable to non-working journalists to unjustly extend benefits to them at the cost of newspapers industry. It is urged that the petitioners are not being treated equally with other industrial sector. It is urged that various publications of the petitioners fall in different categories.
However, they have been treated with same yard stick. It was vehemently contended that all the provisions of the NECOSA, 1973 are in fact borrowed from Industrial Relations Ordinance, 1969 and/or Standing Orders Ordinance 1968. Such provisions were already available and were applicable to non-working journalists. Such provisions already occupied the legislative field :and the provisions of NECOSA, 1973 cannot be allowed to be duplicated.
10. It is urged that freedom of press is guaranteed under Article 19 which has been seriously impugned on account of discriminatory NECOSA,1973. It is contended that NECOSA, 1973 is also violative of Article 23 of the Constitution, which guarantees right to own and dispose of property.
The impugned NECOSA, 1973 tends to deprive the petitioners from their property and they are per force required to pay wages at exorbitant rate under coercive mechanism created under the NECOSA, 1973. According to petitioners counsel the petitioners are coerced to pay wages ranges in between to 117% to 290% under the impugned Award thus depriving the owners of hard earned money and are coerced to share resources disproportionately and undesirably with the non- working journalists.
11. Learned counsel for the petitioners further contended that the NECOSA, 1973 is violative of Articles 2-A, 4, 19, 24 and 38 of the Constitution of Pakistan 1973. NECOSA, 1973 confers unbridle powers on the Chairman Wage Board to determine terms & conditions of Newspapers Employees, which powers tend to be exercised arbitrary, discriminatory and violative of constitutional guarantees.
12. It was next contended that the NECOSA, 1973 is flawed in as much as it does not provide right of appeal against the decision of the Chairman of the Wage Board and unless such right of appeal is provided NECOSA, 1973 is rendered void being and oppressive legislation, which cannot withstand the challenge made through this petition. It is stated that the composition of "Wage Board" embodies collective wisdom, which is missing in the instant legislation and the Chairman has been invested with the supreme power and ultimate authority. According to the learned counsel for the petitioners, absolute powers does nothing but corrupts, it tends to give arbitrary and unbridle authority, which bound to be misused to the hilt to oppress the petitioners, therefore, the act cannot .Withstand the test of rationality and reasonableness in the eyes of law. In support of his contention as to vires of statute, learned counsel have placed reliance on Muhammad Mubeen- us-Salam v. Federation of Pakistan (PLD 2006 SC 602), in cited case, at page 669 it was held that superior courts are competent to examine the vires of a statute, if it has been promulgated in derogation of any provisioins of the Constitution, apart from Article 8 of the Constitution. In Inamur Rehman v. Federation of Pakistan (1992 SCMR, 563), the apex court at page 590, held that "One of the cardinal principles of interpretation is that the law should be saved rather than destroyed and the court must lean in favour of upholding constitutionality of legislation. There can be no *cavil against this proposition as it is well recognized rule of constitutional interpretation that there is presumption in favour of constitutionality of legislative enactment but if there is on the, face of a statute no classification at all and no visible differentia with reference to the objective of the enactment as regards the persons subjected to its provision, then the presumption is displaced. In State of Kerala v Haji K. Kutty (AIR 1969 SC 378) Supreme Court of India struck down Section 4 of Kerala Building Tax Act 1961 being violative of equality clause as there was no reasonable classification. In Sakal Papers (Pvt.) Ltd. v. Union of India AIR. 1962 SC 305 held the provisions of Newspaper (Price and Page) Act, 1956 and Daily Newspaper (Price and Page) Order,, 1960 where by fixation of a minimum price for number of pages, which a news paper is entitled to publish is obviously not for ensuring a reasonable price to- the buyer of news paper but for expressly cutting down the volume of circulation of some of news papers by making the price so unattractively high for a class of its readers as is likely to deter it from purchasing newspaper, was considered to be violative of freedom of press embodied in right to speech.
13. As regards the contention that the NECOSA, 1973 is a bad law as no right of appeal is provided he has placed reliance on Arshad Mehmood v. Government of Punjab (PLD 2005 SC 193) in cited case Section 69-A Provincial Motor Vehicle Ordinance, 1965, whereby grant of franchise on specified rout to the exclusion of transporters already plying their transport was held to be contrary to Articles 9 and 18 of the Constitution, 1973, which amounts to deprive transported of their right to carry on business on given route, without any right of hearing or notice. As to the question of unreasonable classification, reliance has been placed on I.A. `Sharwani v. Government of Pakistan (1991 SCMR 1041), F.B. Ali v. State (PLD 1975 SC 506), Ittefaq Foundry v. Federation of Pakistan (PLD 1990 Lahore 121) & R.C. Cooper v. Union of India AIR 1979 SC 564 and on fundamental right and capacity to pay, reliance was placed on The P.T.I. v. Union of India (AIR 1974 SC 1044) and S.F.A.L.
Works v. State Industrial Court, Nagpur (AIR 1978 SC 1113) learned counsel for the petitioners have also placed reliance on Express Newspapers (P) Ltd. V. Union of India and others (AIR 1958 SC 578).
14. It was contended that, in case this court comes to conclusion that NECOSA, 1973 is valid piece of legislation than the very constitution of Wage Board is unconstitutional and that 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 Wage Board Award petitioners have already filed C.P. No,D-1391 of 2004, and another C.P. 1151 of 2007 to challenge powers of Implementation Tribunal of Newspaper Employee (ITNE) and orders passed by ITNE, which petitions were also heard by us.
15. Mian Khan Malik, learned DAG, contended that NECOSA, 1973 is valid piece of legislation; it does not violate any right of freedom of speech of the petitioners. According to the learned DAG from Karachi alone more than 4000 newspapers and various other publications are taken out and the APNS does not represent the entire print media, APNS, the petitioner No,1 membership only represent 6.5% of the total print industry. It is stated that petitioners had earlier approached the Hon'ble Supreme Court, challenging 7th Wage Board, and the petition was dismissed and the matter is reported as All Pakistan News Paper Society v. Federation of Pakistan PLD 2004 SC 600.
According to the learned DAG the petitioners are claiming huge financial concession, rebates and discount from the Government, which they are liable to set apart a fraction of their earning to comply with the Wage Board Award.
16. According to the learned DAG, not only working journalists but non-working journalists are also entitled to raise their living standards and better terms & conditions at par with their counterpart i,e, working journalists, in the same establishment and if they are not looked after equally in fact, it would amount to discrimination. It was urged that the petitioners have time and again agitated the issue before the various High Courts and before the Supreme Court and each time the petition and review before Supreme Court were dismissed. It is stated that since the announcement of the 7th Wage Board Award the petitioners are thriving on legitimate rights of the journalists both working and non-working journalists. It is also denied that the wages of the employees ranges in between to 117% to 290% and over the wages fixed by the 6th Wages Board Award, which was announced on 18-12-1990 and the 7th Wage Board Award was given on 8-10-2001 and gazetted 25-10-2001 after almost 11 years of the last award, and the increase allowed under the 7th Wage Board ranges from 50% to 60% which is quite rational looking to the inflationary trend. It was urged that more than a decade has been passed since the 6th award was made and yet the journalists are being deprived of their rights and interest. It is also urged that since the award was made no exception was taken and the petition was filed belatedly, it suffers from laches. Learned DAG has also relied on the judgment relied upon by the petitioner's counsel Express Newspapers (Pvt) Limited (AIR 1958 SC 778) (relevant page at 619 paras. 159 & 161). It is stated that as regard the right of appeal was contended Federal Shariat Court has already up-held validity of the act through a judgment reported in PLC 1986 FSC 29 (relevant pages 38 & 39). According to the learned DAG the Government of Pakistan alone takes out advertisement worth more than Rs,500 Crores in the newspapers and such assistance is unprecedented to any other industry. It is stated that equitable distribution of wealth is to be applied for the welfare of the citizens and to remove the disparity in wages. It is vehemently argued that petitioner cannot be allowed to raise similar issue. He vehemently opposes the petition.
17. Mr. Akhtar Hussain, learned counsel for the respondent No,3 and Mr. Faiz Ghangro, learned counsel for the respondent No,6 vehemently opposed the petition. It is contended .That under the NECOSA, 1973 second & third Wage Board Award were implemented without any objection to NECOSA, 1973 from any quarter. The Forth Wage Board Award was challenged before the hon'ble Supreme Court in the case reported as Independent Newspapers Corporation (Pvt) Limited v.
Chairman Fourth Wage Board Award and others. The award was upheld barring Hajj expenses through ballot and car maintenance to the Editors, Chief Editors was disallowed not being part of wages. It was further contended that the plea of the petitioners that NECOSA is violative of Article 25 of the Constitution was also raised while challenging the 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.
18. Mr. Akhtar Hussain and Mr. Faiz Ghangro, learned counsel contended that earlier Wage Board Award has been challenged before the High Court and Hon'ble Supreme Court but in none of the case any challenge was thrown on vires or validity of NECOSA, 1973. It was urged that 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. Learned counsel, also urged that the government is giving special treatment to the petitioners 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 earning huge profit and denying reasonable return to the employees who are giving their blood and sweat.
19. Mr. Akhtar Hussain, learned counsel has also drawn our attention to the contemporary .Law in India of "Working Journalist (Conditions of Service) and Miscellaneous Provisions Act 1959".
According to him earlier only working journalists were included in the Act of 1959, however, later on non-working journalists have also been added. It is stated that all the grounds urged before this Court were already dilated in the case reported as Express Newspaper (P) Limited v. Union of India and others (AIR 1958 SC 578 para. 175). As regards the challenge to the NECOSA on the ground of constitutionality on the touch stone of reasonable classification reliance was placed on the case of Inam ur Rehman v. Government of Pakistan (1992 SCMR 563 @ page-590), Fauji Foundation v.
Shamim ur Rehman (PLD 1983 SC 457(567)), Independent Newspaper P Limited v. Chairman, 4th Wage Board Award (1993 SCMR 1533 (1542), I.A. Shervani and others. v. Government of Pakistan (1991 SCMR 1041 (1081), F.B. Ali v. State (PLD 1975 SC 506) and Nabi Bux Khoso v. P.T.V (PLD 1982 Kar 725(744)) refuting contentions of petitioners that they are being coerced or oppressed by imposing heavy financial burden, which is a clog on freedom of press as guaranteed under the constitution. It was urged that the petitioners are thriving on the huge profit at the cost of respondents and working and non-working journalists. To reflect the progress made by some of the petitioners by leaps and bounds, it was contended that only the Jang group has commenced and taken out various publications since 1997 and have also made very colossal and impressive entry in electronic media and few of the major popular channels are owned by the same group and similarly various other groups have entered in a big way into electronic media, which shows that they are thriving at the cost of the respondents. To further buttress the arguments it is pointed out that in the counter affidavit respondents have specifically pleaded that only Sunday advertisement of daily Jang ranges from 1.5 crores to 2-crores and similarly Sunday advertisement in daily Dawn is approximately 2-crores and monthly salary of the employees per month is almost 50% of one day revenue generated by media houses and group, which fact has not been denied in the rejoinder and are to be taken as true and in support reliance was placed on Muhammad Farooq v. Government of Sindh (1986 CLC 1508), Anwar Ali and 9 others v. Chief Engineer, Irrigation (1986 CLC 745 (747), Jawed Shah v. Azad Government .Of State of AJK 1991 MLD 1243). It was further contended that mere non-availability of finance does not impinge upon any fundamental rights as held in this very controversy (PLD 2004 SC 600 (relevant page 619).
20. Mr. Akhtar Hussain, learned counsel further urged that the challenge to the NECOSA, 1973 on the ground that the Chairman has arbitrary powers. It is urged that the Chairman pronounces the Award after consultation and taking advice of the equal number of members both from employer and employee side and the Award is always signed by the Chairman. It is urged and not by the advisors and all record and material was placed by the employer and employee before the Chairman who after giving due consideration to the material and after obtaining such advise as was considered necessary from both the representative of employers and employee announced the award.
21. As regard arguments as to occupied field, it was urged that such arguments do not hold good for the reasons that NECOSA, 1973 is special law and applies only to employees of News paper and news paper establishment and general law always gives way to special law. According to the learned counsel,, the validity of law and statute is presumed; unless established otherwise, according to Mr. Akhtar Hussain, the petitioners have not been able to demonstrate the NECOSA, 1973 negates any Article of the Constitution, 1973. Reliance was placed on Inam ur Rehman v.
Government of Pakistan 1992 SCMR 563 (590) and Express News Paper (Pvt.) v. The Union of India (AIR 1958 SC 578 (relevant 623 para 175).
22. Mr. Shahenshah Hussain, learned counsel for the respondent No,7 while adopting the arguments of DAG and Mr. Akhtar Hussain further contended that the petition is not maintainable.
According to the learned counsel Newspaper Establishment is a separate class in itself and such classification is permissible under the law and the Constitution provides for classification he also placed reliance on the case-laws, which have already cited by Mr. Akhtar Hussain,. It is urged that NECOSA, 1973 has removed the anomaly that was earlier prevailing by adding and including both working and non-working journalists within the ambit of same law. He also vehemently refused the contention that the provisions of NECOSA 1973 undermine the freedom and/or independence of the Press. He has also strenuously relied on Express Newspaper (P) Limited and others (AIR 1958 SC 578) and emphasize on paras.159 and 161 thereof. He strongly refuted the contention of the petitioners that any additional financial burden is placed which effects freedom of speech. It is urged that under Section 10 of the NECOSA, 1973 Wage Board is bound to take into consideration of the relevant factors not only the employer but also the employees are represented in equal number. He refers to paras. 171, 172 and 176 from AIR 1958' SC 378. According to him, the arguments made by the petitioners are elaborately answered in the judgment by the Supreme.Court of India.
He also denies there is any excess of delegation of authority / power on the Wage Board. He further urged that the validity of Act has been examined by the Federal Shariat Court in the case reported as 1986-FSC-29 (relevant 38 & 39). Learned counsel urged that the law favours upholding and constitutionality of the legislation unless proved other wise, as ruled by the Apex Court in the case of Multi Line Associate v.- Adersher Cowsjee (PLD 1995 SC 423 (443). He further urged that fixation of the salary of journalists is not ultra vires of the Constitution, such view is also supported by Bhikusa Yamasa Kshatriya and another v. Sangamner Akola Taluka Bidi Kamgar Union in AIR 1963 SC 806 (para5 @ page 810 & para 9 @ pages 811-812) wherein it was held that fixation of minimum wages for any industry in any locality does not infringe equal protection clause in the Constitution.
' We have heard learned counsel for the parties extensively on all the Petitions and perused the record.
23. It is noted that NECOSA, 1973 was promulgated on 11-8-1973 and since then second to sixth awards were made by the. Wage Board constituted thereunder. It may be observed that various awards were challenged by the petitioners in various proceedings before the High Court and Supreme Court, some of the cases are reported as Independent Newspaper Corporation (Pvt.)
Limited v. Fourth Wage Board and Implementation Tribunal for Newspapers Employees and others (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. Matri Publications (2001 PLC 662). In none of the cases vires of NECOSA, .1973 was challenged. It is true that irrespective of length of statute standing on the statute book and innumerable cases decided will not make a statute immune from challenge on ground of legislative competence or on the ground it being violative of Article 8 and any of the fundamental rights and or any other provision of the Constitution of Pakistan. Since in the instant case such challenge has been thrown, therefore, it was examined.
24. In order to determine validity and constitutionality of any legislation and or 'Act' of Parliament, it has to be examined on the touch stone of Article 2A and Article 8 of the Constitution, 1973, and any law as far as its inconsistent with right conferred under Chapter-I of the Constitution and or any other mandate of the constitution, to the extent of such inconsistency is void. Heavy burden is cast on a person challenging the validity or wires of any law. In the instant case, the burden was on the petitioners to show that the NECOSA, 1973 is ultravires of the Constitution. Petitioners contended that it is ultra-vires of Articles 9, 14, 18, 19, 23. & 25 read with Article 2-A of the Constitution. Article 9 ibid; guarantees' security of a person. In the instant petition all the petitioners are corporate body.
Article 9 of the Constitution, 1973 provides that no person shall be deprived of life or liberty save in accordance with law, it is not shown how the life and liberty of petitioner corporate body is affected by NECOSA, 1973. Article 14 ensures that the dignity of man and subject to law the privacy of home is guaranteed subject to law; Article 14 recognized inviolable dignity 'to natural person and not to body corporate, therefore, the petitioners not being natural person cannot lay any claim as to violation or infringement of such right nor the petitioners were able to demonstrate that any of the petitioner being juristic persons is being threatened to life, liberty as guaranteed under Article 9 or dignity per Article 14 ibid; except in accordance with law. Indeed a juristic person could be shut down in the sense that it is voluntarily or compulsorily wound up forced by economic compulsion, in a wider interpretation of life if at all extended to a juristic person. Petitioners could not claim any protection under sub-Article (2) of the Article 14 ibid which is available to natural person and not to juristic person that impugned NECOSA, 1973 amounts to subjecting the petitioner to torture for the purpose of extraction of evidence: No such arguments worth consideration were advanced, therefore, I do not consider expedient to examine such academic exposition made and argues casually in a passing way in the instant petition.
25. Coming to the infringement of freedom of trade and business or profession coupled with freedom of speech, in the case of Independent Newspaper Corporation v. Chairman 4th Wage Board 1993 SCMR 1533, apex court while setting, out guideline for the wage Board to fix wages in para 12 at page 1544, held as follows: "Article 19 of the Constitution guarantees right of freedom of speech and expression. It ordains, that there shall be freedom of press subject to reasonable restriction imposed by law elucidated therein. The freedom of expression includes the right to receive information through organs of publication and freedom of press on its turn rest on the assumption that there is wide dissemination of information. Such dissemination inevitably contemplates absence of restraints.
Thus any measure which directly or indirectly puts restraint on or curtail the circulation of news paper, due to any factor including cost of production and resultant increase in price thereof, should so far as possible be avoided."
26. Indeed every citizen has a right to enter into any lawful trade, profession or occupation, right to carry on any business and adopt any vocation as guaranteed under Article 18 of the Constitution, 1973, which is a qualified right. In the first place, business and or trade must be lawful and secondly it is subject to such qualifications as may be prescribed under law. Contention of the learned counsel that provisions of Wage Board is onerous and it amounts to curtailing their freedom of business. As noted from the counter affidavit filed by the respondents that the petitioners are engaged in publications of large number of newspaper from various part of Pakistan. None of the petitioners have been able to demonstrate that by enforcement of NECOSA, 1973 since 1973 how it has impeded or throttled the right to carry on publication of news paper business, no statistics were placed to show that since the promulgation of NECOSA, 1973 and since the making of 2nd Wage Award till making of 7th Wage Award, under the NECOSA, 1973 how the business of the petitioners was affected, that may amount to curtailment or infringement of their right to do business. Nor any financial working or implication as to impugned 7th Wage Award, has been given, merely stating particular law is oppressive will not make the law oppressive or violative of Article 18 of the Constitution, 1973. Presumption of legality, validity, constitutionality and legislative competence is attached to statute, and heavy burden is on the person challenging legality, validity, and or constitutionality of any legislative instrument, challenge to the vires of legislative instrument must be objective and not merely subjective. Petitioners were not able to demonstrate objectively as to how NECOSA, 1973 as a whole or any of its provision is violative of any of the fundamental rights of the petitioner and or any of the constitutional provisions, nor the petitioner challenged the legislative competence of the federal legislature to legislate special law for the employees of the News paper and or news paper establishment. No particulars or financial implication of any of the Wage Award since, 1973 has been given in the Petition. No overall impact of any of the Wage Awards and more particularly of 7th Wage Board Award on the sale or business of the petitioners has been given. On the contrary it has come on record through respondents that one day revenue generated by the petitioners publication on holidays and week ends is more than the monthly salary/emoluments/wages of entire set of newspaper employees. Therefore, we were not convinced with the contention of the learned counsel for the petitioners that impugned NECOSA, 1973, had affected their freedom of trade, business or profession. Petitioners were not able to demonstrate or point out any particular provisions of the NECOSA, 1973, which is violative or that has affected their right to carry on the trade, business, in any manner, whatsoever. In the case of Arshad Mehmood supra PLD 2005 SC 193, petitioners were able to demonstrate that by virtue of Section 69-A as inserted they would be totally driven out of the business of transportation, without any notice and or remedy.
27. Mr. Afzal. Siddiqui strenuously argued that freedom of speech and freedom of press as guaranteed under Article 19 is seriously intruded. According to him the award runs counter productive, in as much as it cast colossal financial burden on the petitioners' publication. No facts and figures were given to show that how the petitioners have suffered any financial loss. On the contrary it is respondents who have made a categorical statement in the counter affidavit that the petitioners are making huge profit, which has not been denied through affidavit in-rejoinder. On the contrary it has come on record that most of the petitioners are now running thriving television and radio net works and most of them have more than one T.V. Channels, which also negates contention of the learned counsel for the petitioners that the NECOSA,. 1973 impinges freedom of speech. On the contrary, such freedom of speech with concomitant right of information as guaranteed under Article 19-A has gain more significance, when constitution guarantees freedom of press inherently recognized right to information to citizens and public at large becomes indirect beneficiary to freedom of press.
28. As to the arguments that the petitioners right to the property is severely affected which is guaranteed under Article 23 of. The Constitution of Pakistan and they are being driven to part with property pursuant to the Wage Board made under NECOSA, 1973. Arguments are fallacious. Nothing has brought on record to show that the wages determined under the Wage Board run unreasonable disproportionate to the total income and revenue generated by the petitioners' publication. Had the petitioners suffered such set back or loss they would have shrunk in business instead of expending and thriving by leaps and bounds as pointed out by the learned counsel for the respondents. As regards the contention that NECOSA, 1973 amounts to discrimination against the petitioners in as much as other industrial and service sectors are not regulated and they are enjoying more favorable consideration as against the petitioners who are brought under the clutches of NECOSA, 1973. One needs no authority to say that law recognizes equal protection to all citizens before law. It is settled that the classification is recognized on an intelligible differentia which distinguishes persons or thing that are grouped together from those who have been left out and secondly the differentia must for rational nexus to the object sought to be a achieved by such classification. Petitioners were not able to pursuade us to show G that News paper employees as a whole are not a different set or category and or such classification is arbitrary and which is made without any basis.
29. Similarly arguments was repelled in case of AIR 1958 SC 578, para 175 of the cited judgment reads as follows:-
175. If, therefore, the criterion of the prevalent rates of wages for comparable employments can on a true construction of S.9(1) be considered consistent only with the fixation of rates of wages which are higher than the bare subsistence or minimum wage whether they be statutory minimum wage or fair wage or even living wage, it could not be urged that the criteria specified in S. 9(1) of the Act , were relevant only for fixation of minimum wages. The capacity of the industry to pay was therefore one of the essential circumstances to be taken into consideration by the wage board whether it be for the fixation of rates of wages or the scales of wages which, as we have observed before, were included within the expression "rates of wages." This was by no means an unimportant circumstance which could be assigned a minor role. It was as important as the cost of living and the prevalent rates of wages for comparable employments and ought to have been specifically mentioned in S.9 (1). The Legislature however, was either influenced in not mentioning it as such by reason of the view taken by the Press Commission in that behalf or thought that the third criterion which was specified in S.9 (1) viz., the circumstances relating to the newspaper industry in different regions of the country was capable of including the same. Even here, there is considerable difficulty in reconciling oneself to this mode of construction. The capacity of the industry to pay, can only be considered on an industry-cum-region basis and this circumstance from that point of view would be capable of being included in this creation viz., the circumstances relating to the newspaper industry in different regions of the country. Even if it were thus capable of being included, the minor role assigned to it along with literacy of the population, the popularity of the newspapers, predilections of the population in the matter of language and other circumstances of the like nature prevailing in the different regions of the country would make it difficult to imagine that this circumstance of the capacity of the industry to pay was really -in the mind of the Legislature, particularly when it is remembered that the Press Commission attached no significance to the same. From that point of view, the criticism of the petitioners would appear to be justified viz that it was not made incumbent on the Board to consider the major factor of the capacity of the industry to pay as an essential circumstance in fixing the rates of wages. It' is, however, well recognized that the Courts would lean towards the constitutionality of an enactment and if it is possible to read this circumstance as comprised within the category of circumstances relating to the newspaper industry in different regions of the country, the Court should not strike down the provisions as in any manner whatever unreasonable and violative of the fundamental right of the petitioners.
30. From the jurisdiction of our Court the cases have been decided needs no elaboration one may refer cases of 1992 SCMR 563, PLD 1983 SC 457, 1993 SCMR 1533 (1542), 1991 SCMR 1041 (1081), PLD 1075 SC 506 and PLD 1982 Kar.
725.
31. Contention of learned counsel for the petitioners that absolute powers given to the Chairman Board makes it powerful Authority beyond rationality. Section 9 of NECOSA 1973 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 be a person who has been, or is a Judge of a High Court, and as many members to advice 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 powers of the Chairman Wage Board have been conferred under the above provisions. It was not shown as to how such powers are unbridle or arbitrary. The Chairman of the Board is advised by equal number of advisors belonging to both the interest group namely the Newspaper establishment/ newspaper owners on one hand and News paper employee on the other and the chairman solicit advises from both the segment and make the award by applying his own independent mind.
33. The next arguments contended by Mr. Siddiqui learned counsel for the petitioners that the IRO 1969 is very much in the field, therefore, there was no necessity of bringing a law that deals with the newspaper employees. Arguments are preposterous. It is the prerogative of the legislator to decide and regulate any set of person/ industry/ business/ vocation or group of person/industry/business.
Article 25 of the Constitution recognizes reasonable classification and making any special law governing wages and other terms and conditions of service of news paper employee and employees of newspaper establishment cannot be said to be unreasonable classification. NECOSA, 1973 is a special enactment deals with newspapers employee. Learned counsel for the petitioners contended that even in India Working Journalists (Conditions of Service) and Miscellaneous Provisions Rules also exclusively 'deals with working journalists and it has not included the non- working journalists. Learned Counsel took us through AIR 1958 SC 578 (supra). We have given our anxious consideration to such arguments. It may be observed that in India such law has under gone changed and it has been amended by Act 60 of 1974 and is now titled as Working Journalists and other Newspaper Employees (Conditions of Service) Miscellaneous Provisions Act 1955 and even the definition clause has been amended and Newspaper Employee under section 2(c) ibid "means any working journalists and include any other person employed to do any work in or in relations to any Newspaper establishment" and this is how in 1974 'non-journalists employees' have been provided protection under the Act of 1955. An other distinguishing feature in Indian Act of 1955 is that the Wage Board is constituted separately in relations to the Working Journalists and Non- Journalists news papers employees. In Pakistan, under NECOSA, 1973 it is one and the same Wage Board that determines the wages of all categories of Newspaper Employees whether journalists or non-journalists, therefore, the arguments of the petitioners also does not hold good. Indian Supreme Court also examined the vires of Act of 1955, at page 598 the Supreme Court of India held the Act of 1955 to be intra vires the Constitution and not violative of any of the fundamental rights as guaranteed under Article 19(1) (a) and (g), Article 14 and Article 32 of the Constitution of India.
34. As regards the contention of the Mr. Siddiqui that Newspapers Employees were being governed under Industrial Relations Ordinance 1969 or the Standing Orders Ordinance 1968 and the field was already occupied, therefore, it cannot be allowed to operate. Contentions are fallacious. There are general law and special law and it is always wisdom I of the legislature to frame law for any specialized class of person. There I are laws available to deal with crime under the Pakistan Penal Code. As the society grows complexity demands new legislation to meet the exigencies and challenge. ATA Courts are established to combat crime' and try heinous offenses punishable under Pakistan Penal Code but when committed in a particular set of circumstances are amenable to the jurisdiction of ATA Courts. Likewise Civil Procedure Code provided mechanism, -rules and procedure for seeking enforcement of outstanding dues to the borrower and customers yet the legislature frame special law providing special provisions and rules of procedure through various banking laws including Banking Companies (Recovery of Finance) Ordinance, 2001. For Anti- Corruption matters Anti-corruption Act, 1947 was already on the statute books yet to meet complexity of situation National Accountability Bureau Ordinance, 1999 has been promulgated.
One cannot say that special enactment cannot be promulgated as general law on the subject exists. Legislature is competent to promulgate special law to deal or attend particular category or specific classification of person and or group of person, and this is what NECOSA, 1973 is, it deals with category of Newspaper employees.
35. In the case of Nabi Bux Khoso v. Pakistan Television Corporation, PLD 1982 Karachi 725 Division Bench of this Court held that "that any enactment providing conditions of service of the journalists as a class will not be ultra vires the constitution or the fundamental rights."
36. For the foregoing reasons we do not see any merits in this petition, which is accordingly dismissed with cost throughout.