JUSTICE (RETD.) RAJA FAYYAZ AHMED (CHAIRMAN).--- In both these cases as identical facts and question of law are involved therefore, the same are being decided by this single order.
2. The petitioners M/s Zulfiqar Ali and Aijaz Hussain Mahar were employed as 'Reporters' on contract basis. The terms and conditions of their service have specifically been incorporated in the instrument of contract executed by them with the British Broadcasting Corporation (BBC). They have been terminated from service vide termination notice dated 26.04.2013. Both these petitioners have instituted separate individual grievance petitions under Section 33 of the Industrial Relations Act, 2012 (X of 2012) after service of stated grievance notice served upon the employer within the purview of Section 33 of the Act ibid. In these grievance petitions following relief has been claimed for reinstatement in service with all back-benefits:- "In view of the above, it is humbly prayed that this petition may kindly be accepted and the termination notice/order dated 26.04.2013 may kindly be set aside, and the petitioner may reinstated into service with all full back benefits being employee.
Any other relief available to the petitioners may also be granted. "
3. The precise relevant facts of these cases are that Mr. Zulfiqar Ali (petitioner) joined the service of the respondent-establishment (BBC) as story writer in the year 1994 and thereafter he was recruited as a reporter in the BBC Urdu Service w,e,f, 01.02.2002. The said petitioner received notice of termination of his employment through respondent No,1 Editor Pakistan BBC Urdu dated 26.04.2013 intimating to him that his employment contract shall stand terminated w,e,f, 26.06.2013.
It is alleged that he served a grievance notice through email dated 02.05.2013 and by hand which remained un-responded. Thereafter stated to have preferred.a departmental appeal to the Director Human Resources, BBC World Service and in response thereto was intimated that the matter will be investigated.
Mr. Aijaz Hussain Mehar, the other petitioner was inducted in the employment as 'Reporter' in the year 2002 who also received a termination notice of his employment dated 26.04.2013 from the respondent No,1 to the effect that his employment will be terminated w,e,f, 26.06.2013. Thereafter the said petitioner agitated against the termination notice through email dated 02.05.2013 transmitted to Respondent No,1 and in response thereto, the respondent No,1 stated to have held a meeting on 24.05.2013 with the petitioner and refused to withdraw the termination notice. After the service of a grievance notice dated 14.06.2013 by email and registered post stated to have been sent to respondent No,1 which remained un-responded hence; the instant grievance petition has been instituted by him.
4. Comprehensive contesting written-statements in both these cases have been filed on behalf of the respondents by their learned Counsel. The maintainability and competency of both the grievance petitions have been seriously objected to on a number of grounds of law and facts.
Besides the other preliminary objections taken in the written-statements; question has been raised with regard to the status of both the petitioners being not of 'workmen' as defined by law hence; the grievance petitions have incompetently been filed and are not maintainable.
5. The termination notices issued to both the petitioners of even date i,e, 26.04.2013 read as under:- Zulfiqar Ali: with refer to your contact of employment dated August 1, 2009 ("Employment Contact") between you and BBC Pakistan (Private) Limited ("Company").
Pursuant to Clause 5.1(b) of the Employment Contract read with Clause 15 of the BBC Pakistan Employees Handbook, the Company hereby gives you notice that your services shall be terminated with effect from June 26, 2013 ("Termination Date").
Please note that on the Termination Date or before the said date with the consent of your Line Manager you shall be required to--
(a) vacate the offices of the Company and cease all activities on the Company's behalf; and
(b) deliver to the Company all papers, documents, identity cards, notes, files, reports, database, drawings, manuals, programs, software, files, materials (and all copies) and any other property of the company in your possession. Including without limitation any building keys or entry passes in your possession and all documents produced by you and related to your work performed under the Employment Contract and all other property belonging to the Company (including, without limitation, those set out in the list in Annexure 1). Editor Pakistan, being your line manager will be in touch with you to coordinate the return of all BBC property."
The company will pay you the following amounts in full and final settlement and discharge of dues on the Termination Date after deducting income tax.
(i) An amount of Rs,929,130/- on account of your accrued provident fund contributions by employer and employee till June 26, 2013 and accrued interest thereon till Mar. 31, 2013. In addition, you will receive interest for the period from April, 2013 till June 26, 2013 after it has been credited into the Provident Fund Account.
(ii) An amount of Rs,967,772/- on account of your accrued gratuity fund w,e,f, Feb. 1, 2003 i,e, your date of joining the BBC.
(iii) No amount is payable to you on account of leave encashment for the year ended Mar 31, 2013 as you have availed all the annual leaves for that year as per the records of the Company. You will receive an encashment of any unused leave at June 26, 2013 out of the 5 days of annual leave which you will be entitled to, from April 1, 2013 till June 26, 2013.
(iv) An amount of Rs,50,000/- has been outstanding as an advance given to you on July 30, 2012 for Kashmir trip. You are required to file an expense claim form against this advance. The net amount, either payable by you to the Company or vice versa, after adjustment of your expenses will be settled along with your final settlement.
A total amount of Rs,1,896,903/- being your final settlement, as detailed in sub-para (b) i-iii, will be paid after July 1, 2013. Estimated Income tax amounting to Rs,63,821/- would be deducted on the total amount of final settlement. The income tax figure has been estimated based on the available information regarding your Provident Fund balance and unused leave at the year ended Mar 31, 2013. Income tax will be reassessed after the interest on Provident Fund for April 1, 2013 to June 26, 2013 has been credited and unused leave as at June 26, 2013 has been paid out.
Please notice that the amount of Provident Fund (Employer Contribution), Gratuity Fund, Leave Encashment and other income from the Company, if any, will be treated as Salary Income for the purpose of calculating income tax liability and will be taxed in the year of receipt of such Income according to the provisions of the Pakistan Tax law applicable at the time of payment. Your monthly salary will be paid as per your contract on or around the 15th of the respective month up to the termination date.
By accepting the above payments, you agree that you have no other or further claims against the Company. Please sign and date the acceptance below, returning this copy to the company and retaining the duplicate for your own records.
If you believe you have been unfairly treated and wish to complain formally about an action which the Company has taken, is proposing or has not taken, it is the Company's policy that you should raise your grievance in writing to your Manager within seven days of receiving this notification and if it is not resolved to your satisfaction, you may appeal in writing within seven days of the decision to Human Resources.
We appreciate your many contributions to the Company and the efforts of all employees who worked so hard and well to support our business. Thank you for your services and contributions."
Aijaz Hussain Mahar: "with refer to your contact of employment dated August 1, 2009 ("Employment Contact") between you and BBC Pakistan (Private) Limited ("Company").
Pursuant to Clause 5.1(b) of the Employment Contract read with Clause 15 of the BBC Pakistan Employees Handbook, the Company hereby gives you notice that your services shall be terminated with effect from June 26, 2013 ("Termination Date").
Please note that on the Termination Date or before the said date with the consent of your Line Manager you shall be required to--
(a) vacate the offices of the Company and cease all activities on the Company's behalf; and
(b) deliver to the Company all papers, documents, identity cards, notes, files, reports, database, drawings, manuals, programs, software, files, materials (and all copies) and any other property of the company in your possession. Including without limitation any building keys or entry passes in your possession and all documents produced by you and related to your work performed under the Employment Contract and all other property belonging to the Company (including, without limitation, those set out in the list in Annexure 1). Editor Pakistan, being your line manager will be in touch with you to coordinate the return of all BBC property.
The company will pay you the following amounts in full and final settlement and discharge of dues on the Termination Date after deducting income tax.
(i) An amount of Rs,1,603,639/- on account of your accrued provident fund contributions by employer and employee till June 26, 2013 and accrued interest thereon till Mar 31, 2013. In addition, you will receive interest for the period from April 2013 till June 26, 2013 after it has been credited into the Provident Fund Account.
(ii) An amount of Rs,1,749,795/- on account of your accrued gratuity fund w,e,f, March 3, 2002 i,e, your date of joining the BBC.
(iii) An Amount of Rs,16598/- on account of unused annual leave of 2 days accumulated till Mar 31, 2013 as per records of the company. In addition to the above, you will receive an encashment of any annual leave at June 26, 2013 out of the 5 days of annual leave which you will be entitled to, from April 1, 2013 till June 26, 2013.
A total amount of Rs,3,370,032/- being your final settlement, as detailed in sub-para b) i-iii, will be paid after July 1, 2013. Estimated Income tax amounting to Rs,230,110/- would be deducted on the total amount of final settlement. The income tax figure has been estimated based on the available information regarding your Provident Fund balance and unused leave at the year ended Mar 31, 2013. Income tax will be reassessed after the interest on Provident Fund for April 1, 2013 to June 26, 2013 has been credited and unused leave as at June 26, 2013 has been paid out.
Please notice that the amount of Provident Fund (Employer Contribution), Gratuity Fund, Leave Encashment and other income from the Company, if any, will be treated as Salary Income for the purpose of calculating income tax liability and will be taxed in the year of receipt of such Income according to the provisions of the Pakistan Tax law applicable at the time of payment.
Your monthly salary will be paid as per your contract on or around the 15th of the respective month up to the termination date.
By accepting the above payments, you agree that you have no other or further claims against the Company. Please sign and date the acceptance below, returning this copy to the company and retaining the duplicate for your own records.
If you believe you have been unfairly treated and wish to. complain formally about an action which the Company has taken, is proposing or has not taken, it is the Company's policy that you should raise your grievance in writing to your Manager within seven days of receiving this notification and if it is not resolved to your satisfaction, you may appeal in writing within seven days of the decision to Human Resources.
We appreciate your many contributions to the Company and the efforts of all employees who worked so hard and well to support our business. Thank you for your services and contributions."
6. The documents filed with both the written-statements on behalf of the respondents are mainly;
(i) notice of termination dated 26.04.2013; (ii) BBC Pakistan Employment contract dated 01.08.2009 continuing contract containing terms and conditions of the employment of the petitioner; (iii) BBC World Service Job Description; (iv) BBC Grievance Policy and BBC Pakistan Employee Handbook are not challenged nor disputed. The documents relating to employment contract and the Job description are admitted during course of arguments put forth on behalf of the petitioners. Also no replication in these cases has been filed by the petitioners in view of the facts and documents referred to in the written-statements thus; it is safely concluded that both the petitioners held the contractual appointments on the specific terms and conditions of the employment incorporated in the employment contract, termed as continuing contract executed between the parties.
7. Since the question as to the maintainability and competency of the grievance petitions has been raised and argued on behalf of both the parties being germane for invoking the jurisdiction of the Commission therefore, the terms and conditions of the employment including termination of the contractual employment may not be found relevant to be dilated upon.
8. In order to appreciate the contentions put forth on behalf of the parties with regard to the status of the petitioners as 'workmen' or otherwise; it would be appropriate to reproduce herein below the contents of BBC World Job Description document (Appendix I to the written-statements) containing duties of the petitioners as Reporters:-- "APENDIEX I"
BBC WORLD SERVICE JOB DESCRIPTION Job title:Reporter, BBC Pakistan Private Limited Reports To: Pakistan Editor Hours: Self scheduling to meet operational requirements Grade: Local salary and conditions ----------------------------------------------------------------------------------------- ------------------------------------ ORGANISATION.
BBC Urdu Service offers a service of video/audio/text across a range of media that include Radio, Online and Video on the Veb. The service in multi-media in operation for daily news gathering and daily, weekly and long-term planning, whilst output streams are run by single media teams, terms working in collaboration with each other, or sometimes by single teams. BBC Urdu Service Radio and Online will continue to be a 24 hours a day, 7 days a week operation. The service currently does 2 hours a day of radio of MW/SW and 11 five-minutes news bulletins for FM partner stations. These offerings may increase according to business need.
Working in a multi-media environment, BBC Urdu Service reporters are based in Pakistan, India and other regions as determined by business needs.
All BBC Urdu Service staff may be required to work in different areas of the department, according to skills and experience.
JOB PURPOSE To provide BBC Urdu Service with quality, information coverage on subjects across South Asia including Afghanistan, giving timely, expert and authoritative coverage of news and current affairs events. Report on all aspect of life in the specific region in question. To stay well briefed on the entire region in order to report and comment with authority.
To work across all output as required, and work alone, in small teams or out of a BBC office or bureau.
The role can be difficult and demanding, requires an excellent knowledge of a given region and a highly flexible approach to serving BBC Urdu Service newsgathering demands.
DUTIES (star marked by me)
1. To broadcast clearly and calmly, news stories that are of value to BBC Urdu Service.
2. To undertake live 2-ways on a daily basis, often covering breaking news stories for Radio and Online including video on the web.
3. To provide frequent packages and features in audio, text and video.
4. To deliver a high level of fast, accurate, impartial and fair journalism from across the region. To alert UK-based producers to breaking news and file accurate, immediate on the sport reports.
5. To cover a wide range of stories from across the agenda of the Urdu service in an accessible, engaging and entertaining way.
6. To explain in clear and interesting ways the impact of policy, developments, news items, issues in the given region area. Make complex issues accessible to audiences.
7. To ensure a wide range of contacts and contributors from across the region to ensure the widest range of information as possible.
8. To report on all facets of life, (politics, economics, finance, social, cultural, scientific, sport) in the region.
9. Where necessary to fix interviewees or collect audience participation material for the channel whenever directed to do so.
10. To analyse all information obtained against the general background of current developments in order to assess the relative value and importance.
11. To monitor the output of the BBC and its competitors and inform the editor of major problems and developments.
12. To provide regular advice of news developments, briefings on government policy, guidance on agency or newspaper stories. Supply items for the news diary, coming up with a stream of realistic and costed coverage ideas.
13. Provide input into BBC Urdu strategy.
14. To provide BBC Urdu with a regular plan for events and subjects to cover. To think and plan ahead to be aware of future developments and trends.
15. Make good use of BBC sources, resources and material. . Maximize use of new technology.
16. To be ready to travel in the target country and in the region as events demand, be on call on off days which fall a field reporter's discretion and dictated by events.
REQUIRED KNOWLEDGE SKILLS AND EXPERIENCE
1. Fluency in both written and spoken Urdu (as first or equivalent language) and English and the ability to communicate effectively.
2. Extensive experience of daily reporting skills gained in the field, preferably as a bilingual radio broadcaster with experience of live broadcasting.
3. Practical evidence of outstanding journalistic experience with the ability to identify good news worthy stories. Ability to interpret complex stories for a non-specialist audience.
4. Good story-telling skills and an understanding of a variety of packaging techniques for TV.
5. Knowledge and understanding of the political/economic and cultural developments of the region.
6. Knowledge of current developments within the region and how they may be best covered across BBC Urdu Service.
7. Possess a range of journalistic and technical skills in order to be able to work alone, filing reports,' packages and 2-ways, or in terms. To operate the technical equipment necessary in fulfilling the role and have knowledge of production methods and technology used in live broadcasting."
8. A good broadcasting voice and screen presence.
9. To be familiar with all BBC Urdu Services.
10. To collaborate effectively and be deployed flexibly across other BBC outlets, on stories and items, sharing information, serving other platforms.
11. An understanding of the editorial and production values of the BBC. To be aware of and of follow BBC policy and guidelines particularly those concerning political coverage. (BBC's Editorial guidelines).
12. To work in a number of regions as required.
13. Knowledge of the law as it applies to journalism.
14. Knowledge of safety laws and guidelines relevant to radio, television and online production.
15. Ability to work within financial constrains.
16. Good organizational skills and the ability to prioritise workload and work flexibly.
Competencies: Editorial judgment: Makes the right editorial and policy decisions based upon a clear understanding of the BBC Urdu's distinctive news agenda, the requirements, of news and current affairs coverage as well as those of the programme departments.
Creative thinking: Translates news and current affairs into high quality programming through a detailed understanding of the requirements of the 'broadcast media and possession of the necessary writing separately or competitively.
Managing relationships and team working: Able to build and maintain effective working relationships with a range of people. Works cooperatively with other to be part of a team, as opposed to working separately or competitively.
Subject Knowledge,: Demonstrates as expanding knowledge of news and current events in general and specific areas of expertise in particular, including language skills. Develops increasingly useful and exclusive sources of information.
Analytical skills: Simplifies complex problems, processes or projects. Identifies casual relationships and constructs frameworks for problem-solving and/ development.
Decision Making: Is ready and able to take initiative, originate action and be responsible for the consequences of decisions.
Communication: The ability to get one's message understood clearly by adopting a range of styles, tools and techniques appropriate to the audience and the nature of the information.
Influencing Others: Presents sound and well-reasoned arguments to convince others. Draws from a range of strategies to persuade people in a way that results in agreement or behaviour change.
DATE OF ISSUE; August 1, 2009 (A job specification is a written statement of the essential characteristics of the job, with its principle accountabilities, incorporating a note of the skills, knowledge and experience required for a satisfactory level of performance. This is not intended to be complete, detailed account of all aspects of the duties involved.)
9. The learned Counsel for the petitioners contended that a Reporter has to collect information and to prepare reports on various important issues, events of great import which he transmits to various magazines, newspapers, TV channels etc.; for publishing in various newspapers and magazines etc. as well as; for broadcasting and in transmission of news and for programs of TV channels worldwide as a 'workman' such as; that the reporters of APP (Associated Press of Pakistan) through 'a news agency' are 'workmen' falling within the meaning of Section 2(d) and (i) of the Newspaper Employees (Conditions of Service) Act, 1973, (LVIII of 1973) read with Section 18 of the Act ibid. The learned Counsel for the petitioner while referring to section 2(d) and (i) of the Newspaper Employees (Conditions of Service) Act, 1973 argued that for collection of information relating to important events in respect of political and other issues etc; a reporter be an employee of a 'newspaper-establishment' or BBC Urdu Service is an employee of "News Agency" who provides reports, material based on collection of information, analysis etc for publication which are also broadcast on Air through Electronic Media, such as; TV Channels and thus; for all intents and purposes BBC U.K. Urdu Service can be safely termed as an Electronic Newspaper as well as; evident from the website address of the said service i,e, www.BBC.Com,UK.Urdu. The learned Counsel is of the view that a workman/worker employed by a 'News Agency' or designated as 'Reporter' has to visit multiple sites and places including undisclosed sources to collect news and information with regard to burning and important issues on all subjects involving attention and interest of viewers and the general public including the concerned circles. He next argued that the employees of A.P.P. happen to be Reporters but are 'workmen' by dint of nature of their job duties The BBC is engaged in production and publication of news material and transmission to public through Radio and Televisions and thus; the 'Reporters' fall within the definition of workmen under the Act. Also the learned Counsel cited the reported judgment from Quetta jurisdiction 1986 PLC 760.
10. The learned Counsel for the respondents by controverting the contentions put-forth noted above submitted that the same are far fetched having no nexus to treat the petitioners as the employees of the 'newspaper-establishment' nor they by dint of nature of their duties fall within the purview of the Act or under any law for the time being in force can be said to be 'workmen' for the purpose of invoking jurisdiction of the Commission under Section 33 of the IRA, 2012, in as much as; the petitioners having been appointed in supervisory and managerial capacity attached to their office; mainly work as entrusted to them in managerial and supervisory capacity. Their functions have peen enumerated in the job description document (Appendix-1) to the written-statements duly admitted during course of the arguments by the other side. In view of the nature of duties entrusted to the petitioners by their mere designation as 'Reporter' in the employment document will not fall within the definition of word 'worker and workman' as given in section 2(xxxiii) of IRA, 2012. The petitioners being not 'workmen' cannot invoke the jurisdiction of the Commission under the Act. According to the learned Counsel the duties of the petitioners are distinctively mentioned in seriatim in the job description documents, out of which at serial Nos,4, 5, 6, 8, 9, 10, 11, 12, 13, 14 and 15 relate to intellectual ability, active application of mind, comparative analysis of two or more news/issues as well as; to provide input to BBC Urdu Service to make good of resources and material, maximize use of news technology and where necessary to fix interviews or collect audience participation material for the channel whenever directed to do so; to monitor the output of the BBC and its competitors and to inform the editor of major problems and developments; to report on facets of life i,e, politics, economics, finance, social, cultural, scientific, sports in the region; to analyze all information obtained against general background of current developments in order to assess its relative value and importance; to provide BBC Urdu Service with regular plan for events etc and; to think and plan to be aware of future developments and trends etc.
11. The learned Advocate for the respondents produced attested copy of the order No,17 dated Islamabad the 4th September, 2014 in case No,IT/P/7-WBA/4/SM passed by the learned Chairman Implementation Tribunal for Newspaper Employees and a copy of the judgment of the Single Bench of this Commission Quetta Bench, Quetta (original jurisdiction) in case No,48(27)/2013-Q dated 24.03.2015 for perusal in which it has been held in view of the nature of duties mainly assigned to the petitioner in the case of Mr. Ayub Tareen (Correspondent BBC) posted at Quetta by holding that he is not a 'workman' as defined in the Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 besides being a contract employee is governed by the terms and conditions of his appointment instrument therefore, his grievance petition has been dismissed.
12. The contentions put-forth on behalf of the parties by their learned Counsel have been considered in the light of the relevant provisions of the Newspaper Employees (Conditions of Service) Act, 1973 (LVIII of 1973); Industrial and Commercial Employment (Standing Orders)
Ordinance, 1968 (VI of 1968); Industrial Relations Act, 2012 (X of 2012), the pleadings of the parties and the documents available on the case file of both the cases.
Adverting to the relevant provisions of Newspaper Employees (Conditions of Service) Act, 1973 (LVIII of 1973), the word 'Newspaper' has been defined in Section 2(c) of the Act; meaning; 'any printed periodical work' containing public news or comments on public news and including such other class of printed periodical work as may, from time to time, be ratified in this behalf by the Federal Government in the official Gazette. Plain reading of these provisions indicate that its stands fortified to any printed periodical work' which contain public news or comments as well as; such 'other periodical work' as may from time to time be notified by the Federal Government in the official gazette thus; it can safely be concluded that, the provisions of the aforesaid subsection is restricted to only 'printed periodical work' which be in the form of public news or comments on public news. The word 'newspaper employee' by virtue of Section 2(d) of the Act means and connotes in relation to person employed 'to do any work in' or in relation to, any newspaper establishment:-
(i) a whole-time journalist, including any editor, a leader writer, news editor, feature writer, Reporter, correspondent, copy tester, cartoonist, news photographer, calligraphist and proof-reader/and a whole-time non-journalist, including a manager, clerk, stenotypist, printing engineer, linotype operator, composer, type-seller, photo studio attendant, printing worker, an accountant and an office peon.
It is not difficult to understand that the employees of a 'newspaper' having different designations in their capacities to which they relate including Reporter have a direct nexus of their employment with the 'Newspaper-establishment' as defined by subsection (e) of section 2 of the Act ibid: and; 'newspaper establishment' means an establishment under the control of any person or body of persons, whether incorporated or not, for the production, printing or publication of one or more newspapers or for conducting; any news agency or syndicate. The word News Agency or Syndicate has not been defined in the Act. By reading conjointly the fore-referred provisions, it can safely be understood and concluded that a Reporter or a News Agency of Syndicate exclusively relate to a 'newspaper' as defined in subsection (c) of section 2 of the said Act which cannot be therefore extended or co-related to a TV Channels involved in transmission of news and telecasting various programs world-wide or as the case may be. Mere collection of information relating to important events, broadcasting and televising facets of life and other issues etc will not convert the actual status of BBC to that of a 'newspaper' within the defined bounds of the Act. A Reporter of BBC Urdu Service Pakistan in the light of the above quoted provisions of the Act cannot be said to be an employee involved for any 'printed periodical work' of a 'newspaper' as defined by section 2(c) of the Act ibid nor the petitioners being Reporters can be said to have been the employees of a News Agency nor the BBC Urdu Service Pakistan can be termed as a News Agency or Syndicate in absence of any provision to the contrary contained in the said Act. Scope of the provisions of the Act above referred beyond the given definition including various categories of employees cannot be extended and enlarged to the other employees of an organization or company other than the 'newspaper employees', referred to above. The argument to the contrary canvassed by the learned counsel for the petitioners are not sound rather; devoid any legal and factual substance. The case law cited by the learned Counsel is of no help on the proposition in which case the writ-petitioner was the employee of the newspaper-establishment i,e, daily 'Jang' Quetta.
The learned Counsel for the petitioners while arguing his view point with reference to the provisions of Section 2(d) and (i) Newspaper Employees (conditions of Service) Act, 1973 also made reference to section 18 of the said Act. For convenience Section-18 of the Act ibid reproduced hereinbelow:- "Subject to the other provision [this Act] the provisions of the Ordinance shall apply to, or in relation to, newspaper employees, as they apply to, or in relation to, workmen within the meaning of the Ordinance: Provided that nothing in this section applies to a newspaper employee-
(i) who is employed mainly in a managerial or administrative capacity, [or is the editor of a newspaper] or
(ii) who, being employed in a supervisory capacity, performs, either because of the nature of duties attached to his office or by reason or the powers vested in him, functions mainly or a managerial nature."
13. Bare reading of the provisions of Section 18 shows that subject to the other provisions of the said Act, the provisions of the industrial Relations Ordinance, 1969 has been made applicable or in relation to 'Newspaper Employees' as they apply to the workmen within the purview of the Ordinance thus, from these provisions it is evident that IRO, 1969 (since repealed has been made applicable in relation to Newspaper Employees as they apply to 'workmen' within the meaning of the said Ordinance but subject to the other provisions of the Act and; by virtue of the Proviso to Section 18 of the Newspaper Employees (Conditions of Service) Act. A 'newspaper' employee inducted in the employment mainly in managerial or administrative capacity or an Editor of a Newspaper or who being employed in supervisory capacity and performs functions either because of the nature of duties attached to his office or by reason or the powers vested in him, functions mainly of a managerial nature has been excluded from the application of Section 18 of the Act subject to the other provision of the. Act. In this regard no other provision of the Act has been referred to during course of arguments although; overriding effect has been given to the provisions of the Act by Section 19(1) of the said Act. Section 18 of the Act has been made applicable only to the Newspaper Employees which excludes from its application the category or Newspaper Employees, employed in managerial or administrative capacity etc. by virtue of Proviso to section 18 of the Act.
14. Reverting to the question of the status of each of the petitioner designated as 'Reporter' being that of a 'workman' as defined by law and thus competently invoked the jurisdiction of this Commission by filing grievance petitions within the meaning of Section 33 of the IRA, 2012 (X of 2012) or otherwise.
The Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 being a substantive law governs the subject relating to termination, removal, retrenchment, discharge or dismissal from service of a 'workman' besides all other matters relating to misconduct etc. of a 'workman' be a temporary or permanent workman employed in an Industrial-Establishment, Commercial-Establishment or Construction Industry as defined in clause (bb) and (f) of Section 2 of the Industrial and Commercial Employment (Standing Orders) Ordinance, 1968.
The worker and workman has been defined in clause (i) of the said Ordinance reproduced hereinbelow:- "Workman means any person employed in any Industrial or. Commercial establishment to do any skilled or unskilled, manual or clerical works for hire or reward."
The words workman and worker have also been defined by procedural law i,e, IRA, 2012 in Section 2 (xxxiii) which reads as under: "worker" and 'workman' mean person not falling within the definition of employer who is employed (including employment as a supervisor or as an apprentice) in an establishment or industry for hire or reward either directly or through a contractor whether the terms of employment are express or implied, and, for the purpose of any proceedings under this act in relation to an industrial dispute includes a person who has been dismissed, discharge, retrenched, laid off or otherwise removed from employment in connection with or as the consequence of that dispute or whose dismissal, discharge, retrenchment, laid-off, or otherwise removed from employment in connection with or as a consequence of that dispute or whose dismissal, discharge, retrenchment; lay-off, or removal has led to that dispute but does not include any person who is employed mainly in managerial or administrative capacity".
The above noted definition excludes the class of 'employees' mainly employed in managerial or administrative capacity from the definition of the word 'worker' and 'workmen'.
15. It has consistently been held by the superior courts that mere designation or quantum of the emoluments for which a person is employed by an Industrial-Establishment, Commercial- Establishment will not per se determine the status of a person employed in such establishments to be that of a 'worker or workman' rather; the sole criteria for determination of the status of the employee will be the nature of duties or functions for which he is mainly employed and the nature of duties as having been performed or being performed by an employee. The instrument of the employment accepted by both the parties in these petitions termed as BBC Pakistan 'Employment Contract-Continuing Contract' executed between them contains chart of duties for which the petitioners were mainly employed as per attachment (Appendx-1) i,e, to the instrument (BBC World Service-Job Description). For convenience clause (a) of sub-para-2.1 of para No,2 of the employment-contract is reproduced hereinbelow:- "You will be engaged by the Company as Reporter or in such capacity as the Company may reasonably require. You will perform to the best of your ability all the duties of this job and any other job you may subsequently hold and any other duties that may reasonably be required of you.
Your main duties are outlined in the attached job description (please refer to Appendix-1)."
(underlining is mine)
Clause 2.1(a) of the instrument provides that the main duties have been outlined in the (attached BBC World Service Job Description Appendix-1). In addition to the mentioned duties the petitioners have been supposed to perform other duties in such capacity as the company may reasonably require from them to perform, to the best of their ability in addition to all the duties of a Reporter.
The BBC World Service Job Description document Appendix-1 contains the main duties required to be performed which the petitioners have been performing in their capacity as Reporters distinctly mentioned in the job description document has been admitted as correct by the learned Counsel for the petitioner during course of arguments. It is pertinent to note that copies of these documents and the employment contract were filed with the written-statement but no replication as to the genuineness and correctness of these documents has been submitted by the petitioners. The contract of job description document containing the chart of duties has been reproduced in para- 8 supra. From the nature of the duties distinctly specified in Appendix-1 to the written-statement, it can safely be concluded that they were mainly employed in managerial position and have been performing such functions which are not that of a 'workman or worker' as defined by section 2(i) of the Industrial and Commercial Employment (Standing Orders) Ordinance, 1968. None of the specified functions and duties for which they had mainly been employed and having been performed by the petitioners can be said to fall within the category or the nature of skilled or un- skilled, manual or clerical work hence; the petitioners by dint of the nature of their duties for which they were employed on contract basis can be said to be that of 'worker and workman'. Only a workman or worker defined by law can competently invoke the jurisdiction of the Commission who may bring his grievance for adjudication in respect of any right guaranteed or secured to him by or under any law or any award or settlement for the time being in force before the Commission under Section 33 of the IRA, 2012, lacking in the instant cases therefore, in view of above stated reasons both the petitions as having been incompetently filed and not maintainable are dismissed.