AIMAL MI-AN, J.-By this common judgment we intend to dispose of C. P. Nos. D-1481/80 and D-678 of 1981 as the petitioners have claimed identical reliefs and since common questions of law are involved. It may be advantageous to quote hereinbelow the relief prayed for in one of the petitions ; which reads as follows;; "(a) direct the respondents to act in accordance with the Act of 1973 and the III Wage Board Award ; and
(b) Order that he may be paid all benefits, entitlement in accordance with that and should not be discriminated.
(c) Costs of the petition.
(d) Any, other relief that this Honourable Court may deem fit and proper."
2. (a) Constitution Petition No. 1481/80.-The brief facts leading to the filing of this petition are that the petitioner is working as the language/news supervisor in the News Department of the respondent continuously since about last 3J years at Karachi Television Station. It has been averred that the duties assigned to the petitioner are that in addition to his normal duties of translating, selecting, shortening and editing news items of all description, the petitioner also assigns and allocates work to the translators and holds charge of Sindhi branch of the News Department of Karachi Television under the News Editor. It has been further averred that the respondent's news department known as the National News Bureau being news agency, collects, gathers and sells the news to the international news medias as also to the Government of Pakistan and that for this it is paid and gets money from the Government of Pakistan and international agencies. It has also been averred that P. T. V. C. Also supplies news films to other countries under Asian Television Service which is a service of the respondent. It has been further averred that the petitioner being a newspaper employee working with the news agency is subject to the provisions of the Newspapers Employees (Conditions of Service) Act, 1973, hereinafter referred to as the Act, and by virtue of the decision .Of the Newspaper Employees III Wage Board Award is entitled to the pay of Grade I, which is equivalent to Group VIII of the respondent. It has also been averred that the petitioner is also entitled to all the benefits of residential accommodation, reimbursement of car maintenance allowance, charge, allowance, dearness allowance and other allowances allowed to the employees of Group VIII as per the pro--visions of the said Act and the award and that the decision of the 111 'Wage Board for the Newspaper employees is operative from 15-4-1980, but the 4'respondent has failed to act on it, in spite of a request made by the petitioner.
(b) Before admitting the above petition this Court by an order dated 27-10-1980 sent for the comments of the respondent. The above comments have been verified by the respondents on oath. In addition to the above comments the respondent has also filed a counter-affidavit. It has been averred by the respondent that the respondent is a public limited company registered under the Companies Act, 1913 and all the employees in the respondent Corporation are notified and governed by and under the pro--visions of the Pakistan Essential Services Act. It has been further averred that the terms and conditions of the respondent corporation have already been regulated by the specified authority under the Essential Services Act and which after approval of the Federal Government were duly published in the Gazette of Pakistan Extraordinary issue dated 25-5-1978. It has been further averred that the above gazette notification contains terms and conditions of service of the employees of the respondent corporation, which inter alia include, remunerations, wages, allowances, fringe and other benefits and also provided the procedure for settlement of individual grievances etc. It has been also averred that respondent corporation is neither a "newspaper estab--lishment" under the Act nor the terms and conditions of service of the employees of the respondent corporation have been regulated or governed by the Act. It has been further averred that the respondent corporation as a matter of practice engages certain persons on `talent contract basis which talent contract is renewable on a month-to-month basis and that such persons engaged on talent contract basis are not required to report daily or regularly to the respondent corporation, but only as and when required by the respon--dent corporation subject to their own availability. It has also been averred that some of such persons often work daily or for some months or even longer period, but again subject to the requirement and their own avail-- ability, such persons i.e. Talent contract persons, strictly speaking are not employees of the respondent as there is no obligation for continued employ--ment on either side and no relationship of master and servant exists. It has also been averred that the petitioner is engaged on a talent contract basis on month to month basis. It has also been averred that the petition is not maintainable inter alia for the reasons mentioned in the comments. The respondent in its counter- affidavit has reiterated the contents of the comments.
The petitioner in his rejoinder reiterated the contents of the petition and has also reiterated that he has been in the employment of the .Petitioner for more than 41 years and is paid monthly wages and that he is not working on daily wages basis.
(c) Petition No. 678 of 1981. The relevant facts leading to the filing of the above petition are that the petitioner is working as Sindhi language Translator in the News Department continuously since 5' months at the Karachi Television Station at the time of the filing of the above petition. It has been averred that the duties assigned to the petitioner are translating news items of all description and that the respondent News Department known as the National News Bureau being news agency collects, gathers and sells the news to international news medias and also to the Government of Pakistan. It has also been averred that he being a newspaper employee is entitled to the benefit of the provision of the Act and the III Wage Board Award. It has also been averred that one Akhtar Hussain a Translator in Urdu Depart--ment is being paid Rs. 1,000 per month and other benefits, whereas the petitioner is not extended above benefits. The petitioner has also filed a contract dated 2-7-1981, which indicate that be was paid Rs. 600, for the month of June, 1981.
(d) The respondent has filed a counter-affidavit, in which the facts men--tioned by it in its comments and the counter affidavit in the above-connected petition have been reiterated. It has been reiterated that the petitioner has been employed on the basis of 'talent contract' and-that he is not obliged to work full time. It has also been averred that Akhtar Hussain is not engaged on 'talent contract', but is a full time contractual employee working as Urdu Translator with the respondent and that he works for 7 hours daily and gets Rs. 950, as contractual employee working on the full time basis. It has also been averred that there are 2 translators in P. T. V. Presently working in Karachi Centre, who are regular permanent employees and because of the volume of the work they are full time and work 7 hours daily. It has been further averred that the above translators are employed for full time for preparation of the news bulletin which is telecast daily on national net work for approximately 30 minutes and that in addition to the said national news telecast, the said translators are also engaged for preparation of the local news in Urdu and are stand-by for the national news and that whereas the petitioner is engaged on 'talent contract' as Sindhi News Translator and is not full time and works for about 3 hours daily in connection with Sindhi news bulletin telecast, which is of 10 minutes duration. It has also been averred that the respondent does not require full time Sindhi translator and the claim of the petitioner to be made a permanent employee is unwarranted and in-justified.
3. (a) In support of the above petitions. Messrs S. A. Wadood and Sabibuddin Ahmed have contended as follows;
(i) That the petitioners are newspaper employees, whereas the respon--dent is a newspaper establishment, and, therefore, the petitioners are entitled to the benefits of the Act (i.e. The Newspaper Employees (Conditions of Service) Act, 1973 and of the III Wage Board Award
(ii) That the alleged talent contracts got executed by the respondent, cannot override the provisions of the Act or the III Wage Board Award and, therefore, they are not enforceable.
(iii) Since the Act is a beneficial enactment for a class of persons, the Court is to place liberal construction as to extend the benefits of the Act to a large class of people,
(b) On the other hand Mr. Sharif, learned counsel for the respondent has made following submissions
(i) That neither the petitioners are newspaper employees nor the respon--dent is a newspaper establishment and, therefore, the provisions of the Act or the aforesaid award cannot be pressed into service.
(ii) That the terms and conditions of service of the respondent's employees are regulated in terms of section 6 of the Essential Services Act, and, therefore, the Act cannot be pressed into service.
(iii) That there is no relationship of employer and employee between the petitioners and the respondent, and, therefore, they cannot have any cause of action for the filing of the above petition.
4; (a) In order to appreciate the above contentions of the learned counsel for the parties, it may be pertinent to observe that prior to the enforcement of the Act, the Working Journalist (Conditions of Service) Ordinance, 1960 (hereinafter referred to as the Ordinance) was enforced, which regulated the conditions of service of the Working Journalist. The above Ordinance has been repealed and replaced by the Act in question. It may be advantageous to refer to the definitions of the key terms used in the Ordinance and the Act, namely, Newspaper, Newspaper Employee and Newspaper Establishment, which read as follows; "(i) (b) Ordinance XVI of 1960.--"Newspaper" means any printed periodical work containing public news or comments on public news and include such other class of printed periodical work as may, from time to time, be notified in this behalf by the Central Government in the Official Gazette ;
(ii) (c) "newspaper employee" mean any working journalist, and includes any other person employed to do any work in, or in relation to, any newspaper establishment ;
(iii) (d) "newspaper establishment" means an establishment under the control of any person or body of persons, whether incorporated .Or not, for the production or publication of one or more newspapers or for conducting any news agency or syndicate ;"
(i) (c) Act LVIII of 1973.--"Newspaper" means any printed periodical work containing public news or comments on public news and include such other class of printed periodical work as may, from time to time, be notified in this behalf by the Federal Government in the official Gazette
(ii) (d) "newspaper employee" means any person employed to do any work in, or relation to, any newspaper establishment and includes.
(i) a whole-time journalist, including an editor, a leader writer, news editor, feature writer, reporter, correspondent, copy tester, cartomist, news photographer, calligraphist and proof reader ; and
(ii) a whole-time non-journalist, including a manager, clerk, steno-typist, printing engineer, linotype, operator, composer, type-setter, photo---studio attendant, printing worker, an accountant and an office peon ,;
(iii) (e) "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 :"
(b) It may be noticed that the definitions of the terms 'newspaper' and `newspaper establishment' are couched in the identical words in .The Ordinance and- the Act, Whereas the definition of the term 'newspaper employees' is more exhaustive-in the Act as compared to the Ordinance inasmuch as by way of explanation in the definition the various categories of the persons of Whole Time Journalist and whole time non journalist have been mentioned, which was not done in the Ordinance.
It may further be noticed that 'newspaper' has been defined in the Act as meaning any printed periodical work containing public- news or comments on public news and include such other class of printed periodical work as may from time to time be notified in this behalf by the Federal Government in the official Gazette. Whereas the term 'newspaper employee' means any person employed to do any work in or in relation to any newspaper establish--ment and includes the persons specified hereinabove. Further more, the term 'newspaper' establishment has been defined to 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 learned counsel for the petitioners have candidly submitted that the respondent does not fall in the first category of the definition of newspaper establishment mentioned in section 2 (b) of the Act but according to them the respondent comes within the ambit of the second category namely, an establishment set up for con--ducting news agency or syndicate.
(c) The learned counsel for the petitioners in support of their above contention, namely, that the petitioners being newspaper employees and the respondent being a newspaper establishment are entitled to the benefits of the Act and the III Wage Board Award, it may be observed that they have referred to Corpus Secundum volume 66 section 24 at page 51, and also to the case of Norman v. Century Athletic Club (15 A L R 778), the case of Express News--paper (Private) Ltd. And another v. The Union of India and others (AIR 1958 SC578) the case of the Management of Daily Pratap v. Their Katibs (AIR 1972 SC 1872) and the case of Muhammad Aslam Saleemi v. The Pakistan Television Corporation and another (PLD 1977 Lah. 852).
On the other hand Mr. Sharif has, referred to the Words and Phrases legally defined by John B.
Saunders Volme III at page 341.
(i) It may be pertinent to quote hereinbelow the definition of the news association and agencies and organizations given in the above well, reputed work contained in Corpus Jurist Secundum which read as follows; "The business of news associations or agencies is to gather systematically knowledge recent occurrences of interest and to distribute reports thereof ; to collect news or information and furnish reports thereof to the press ; and to disseminate information or news. Such business has become a well-known and important industry which requires a large expenditure of labour and capital. No modern newspaper can afford to be without the facilities offered by a well equipped news association or agency. A news association is not immune from govern--mental regulation.
Reporters employed by an association of newspapers for the purpose of gathering news have been held not to be engaged in the business of the association, but to be more employees."
(ii) Referring to the case reported in 15 A L R 778, it may be observed that it was an appeal from an order overruling a demurrer filed for (a) decla--ration that the plaintiff lessee under a lease, has the right "to broadcast its boxing bouts by television and (b) an injunction against the defendants, successor in interest to the original lessor from barring the plaintiff from "broadcasting by television its boxing bouts." The facts leading to the filing of the above appeal were that under a lease dated October 1943 between Coliseum Club, 1 N C Incorporation, Lessor, and the plaintiff, lessee granted lease for the premises known as the Coliseum Arina, together with the equipments in the Arina necessary for conducting professional boxing bouts such as bleacher seats, chairs and boxing ring for the exclusive and possession of the plaintiff, of their Arina on Monday night each from 7 p m. To 1 a. m. For a terms of 5 years, which was to commence from April 7, 1946 and was to expire on April 7, 1951 at the rental, namely, 5 % of the gross receipts accruing from all profession boxing bouts contest and exhibition, less all taxes, present or future immediately after the computation of the amount each Monday night with the privilege to the plaintiff to use box office in the afternoon from noon upwards when called by the plaintiff. It was covenanted by the lessor that he would not allow the Arina to be used for staging and promoting profes--sional boxing bouts at any time during the time of the lease. It seems that during 1945 plaintiff "broadcasted boxing bouts over the entire U S under the sponsorship" of a hat manufacturer, for which the plaintiff was receiving sum varying between $ 1000 and $ 1250 each week for 10 consecutive weeks. It also seems that the plaintiff also conducted the World Chairman Boxing Match and exercised the privilege of having sports writers from the leading newspapers of the country telegraph the blow by blow description to the various home papers in the large cities of the United States. It was averred in the memo of appeal that "recently" the art of broadcasting has developed to a point, where, by the improved use of electric pulsations or waves broadcasters not only can transmit sounds but also can transmit sight, that is, transmit visually the fight itself within a limited radius. In short it was averred that the television has become commercially practicable and the plaintiff is entitled to telecast the above bouts, which the defendants declined. It may be advantageous to refer to the discussion on the word 'broadcast' in the above case.
"In 1888 the verb "broadcast" was defined "1. To scatter (seed, etc.) abroad with the hand. (Use in 1813 quoted).
2. Fig. To scatter or disseminate widely. " "The . . . Doctrine . . . Has been broadcast." 1829)" Oxford Dictionary. By 1933 it had acquired another more specific meaning : "
3. To disseminate (a message, news, a musical performance, or any audible matter) from a wireless transmitting station to the receiving sets of the listeners. (Uses in 1921, 1922, 1923 and 1924 quoted)." "Oxford Disctionary, 1933 Supplement. Substantially the same literal, figurative and specific meanings are given in more recent dictionaries. Cf. The New Century Dictionary (1936) ; Funk and Wagnalls' New Standard Dictionary (1949) ; Webster's Unabridged Dictionary (1936, 1946) ; Webster's International Dictionary (1943) ; American College Dictionary (1947). Webster's adds . a specific meaning (to plow in a certain way) with reference to agriculture.
In the American College Dictionary the radio meaning is the one first mentioned. We have been referred to no definition, and have found none, of "broadcast" as meaning to transmit by tele-- vision. The Standard so defines "televise," and "telecast," which in the American College is defined as meaning to broadcast by television. Doubtless the word "broadcast", in its general figurative sense or in its specific radio sense, figuratively used, can, with a limiting contest (e g:, broadcast by television"), be. Applied to television. It may often have been said, with reference to telegraph or newspapers, that news, gossip, a baseball game or a prize-fight was broadcasted, or with reference to a loudspeaker or amplifier, that a speech was broadcasted. The parties to the lease now in question, who were engaged in the boxing industry, not in radio or television science, art or business, did not indulge in figures of speech or in coining new words or new uses of old words.
They contracted "specifically" to furnish a reasonably adequate loudspeaker" for announcing fights, to allow "plaintiff" to install Western Union wires direct to the ring," and to allow plaintiff "the privilege of broadcasting the boxing bouts."
(iii) with reference to the case reported in AIR 1958 SC 578 at p. 598, it may be stated that the question before the Supreme Court of India was whether the Working Journalist (Conditions of Service) and Misc. Provisions Act XLV of 1955 were ultra vires or intra vires the fundamental rights guaranteed by Indian Constitution under Article 19 (1) (a) Article 19 (1) (g), Article 14 and Article 32.
The decision of the Wage Board was also challenged on the various grounds. It was held that the above Act is intra vires the Constitution and the fundamental rights. As regards the wages it was pointed out that the wages can be classified into three categories, viz. (1) the living wages, (2) the fair wages and (3) the minimum wages and that the living wages should enable the male earner to provide for himself and his family not merely the bare essential of food, clothing and shelter but a major of frugal comfort including education for the children, protection against ill health requirement of essential social needs and measure of insurance against the more important mis-- fortunes including old age. It was also observed that the minimum wages could at present be only a bare subsistence wage but according to the concept of minimum wage adopted by the committee on fair wages, a minimum wage. Must provide not merely for the bare subsistence but for the preservation of the efficiency of the worker and for this purpose the minimum wage must also provide for some measure of education, medical requirements and amenities. It was also pointed out that this was a distinction between the bare subsistence or minimum wage and a statutory minimum wage. The former is a wage which could be sufficient to cover the bare physical needs of a worker and his family that is to say which has to be paid to the worker irrespective of the capacity of the industry to pay and the statutory minimum wage I s however is minimum which is prescribed by the statute and it may be higher that the bare subsis--tence or minimum wage providing for some measures of education medical requirement and amenities. It was further observed that the fair wage is a mean between the living wage and the minimum wage. It may be constructive to quote hereinbelow paras. 263 of the Judgment, which reads as follows "(263) We have carefully examined all the proceedings of the Wage Board and the different tables and statements prepared by them. Neither in the proceedings nor in any of the tables do we see satisfac--tory evidence to show that the capacity of the industry to pay was examined by the Board. In fixing the wage structure. As we have already observed, it was no doubt open to the Board not to attach undue importance to the statements of profit and loss accounts submit--ted by various newspaper establishments, but, since these statements pridta facie show that the trade was not making profit it was all the more necessary for the Board to satisfy itself that the different classes of the newspaper establishments would be able to bear the burden imposed by the wage structure which the Board had decided to fix. Industrial adjudication is familiar with the method which is usually adopted to determine the capacity of the employer to pay the burden sought to be imposed on him. If the industry is divided into different classes it may not be "necessary to consider the capacity of each individual unit to pay but it would certainly be necessary to consider the capacity of the respective classes to bear the burden imposed on them. A cross-section of these respective classes may have to be taken for careful examination and all relevant factors may have to be borne in mind in deciding what burden the class considered as a whole can bear.
If possible, an attempt can also be made, and is often made, to project the burden of the wage structure into or three succeeding years and determine how it affects the financial position of the employer. The whole of the record before the Board including the Chairman's note gives no indication at all that an attempt was made by the Board to consider the capacity of the industry to pay in this manner. Indeed, the proceedings show that the demands made by the representatives of the employees and the concessions made by the employers' representative were taken as rival contentions and the Chairman did his best to arrive at his final decision on the usual basis of give and take. In adopting this course, all the members of the Board seem to have lost sight of the fact that tire essential prerequisite of deciding the wage structure was to consider the capacity of the industry to pay and this, in our opinion, introduces a fatal infirmity in the decision of the Board. If we had been satisfied that the Board had considered this aspect of the matter, we would naturally have been reluctant to accept any challenge to the validity of the decision on the ground that the capacity to pay had not been "properly considered'. After all, in cases of this kind where special Boards are set up to frame wage structures, this Court would normally refuse to constitute itself into a Court of appeal on questions of fact ; but, in the present case, an essential condition for the fixation of wage structure has been completely 'ignored and so there is no escape from the conclusion that the Board has contravened the mandatory requirement of section 9 and in consequence its deci--sion is ultra vires the Act itself."
(iv) As regards the case reported in AIR 1972 SC 1972, it may be mentioned that the question before the Supreme Court was, whether Katibs were calligraphists as to entitle them to the benefits of the Wage Board recom--mendations. The Labour Court Dheli held that the Katibs were calligraphists as defined in the Wage Board recommendations and that they were entitled to the rates of. Wages prescribed by the Central Government Notification dated October, 27, 1967. It may be advantageous to reproduce hereinbelow para. 13 of the judgment, which is very instructive and which reads as follows :- "13. This takes us to the question whether the further requirement of the Katibs performing journalistic work is established on the evidence. Neither the expression 'journalistic work' nor 'Journalist' has been defined either in the Act or in the Wage Board Recommendations. The history of the legislation leading up to the Act has been elaborately considered by this Court in Express Newspapers (Private) Ltd. v. Union of India (1959) SCR 12 (AIR 1958 SC 578). The definition of 'working journalist' in S. 2(f ) of the Act deals with three aspects (I) A person whose principal avocation is that of a journalist and who is employed as such in or in relation to any newspaper establishment, is a working journalist ; (2) In the expression 'working Journalist' is also included 11 categories of persons mentioned therein ; and (3) sub--clauses (1) and (2) exclude persons mentioned therein from the definition of 'working journalist'."
Normally, when the Wage Board Recommendation has included calli--graphist as a Working Journalist and has also specified who is a Calligraphist, it should not be difficult to accept the contention of the respondent that they do journalistic work. But Mr. V. S. Desai learned counsel for the appellant, contended that before a person can be a working journalist, he must satisfy two conditions, namely, (1964) 3 SCR 100=AIR 1964 SC 279, He must be a person whose principal avocation is that of a journalist ; and (2) He must be employed as such or in relation to any establishment as specified in the. Definition. It is no doubt true that this Court in the Management of Express Newspapers Ltd. v. B. Somayajulu (1), when dealing with the definition of a working journalist contained in S. 2 (b) of Act 1 of 1955, which is substantially similar to S. 2 (f ) of the Act, has laid down the above two requirements. In the said decision this Court was considering whether a person who claimed to be a part-time correspondent in the moffusil area was a "working journalist" under the inclusive part of the definition in S. 2 (b) of Act 1 of 1955. At the time when this decision was given there was no definition of "Calligraphist" as now given by the Wage Board ; nor was that category in the inclusive part in S. 2(f ). The Wage Board's definition merely requires that he should be an Artist "who performs journalistic work and also calligraphs matters." There is no requirement in this definition that he should be a journalist whose principal avocation is that of a journalist. It is a matter of considerable doubt whether one of the conditions to be satisfied as he laid down by this Court that he must be a person whose principal avocation is that of a journalist when interpreting the inclusive part of the definition as contained in S. 2(f ) of the Act will still apply. If Mr. Desai's contention is to be accepted S. 2(f ) of the AM omitting the matters not relevant for our purpose will have to be read as follows; "Working journalist" means a person whose principal avocation is that of a journalist and who is employed as such in, or in relation to, any newspaper establishment and includes a calligraphist who is an artist who performs journalistic work and also calligraphs matters." It needs no explanation to say that the above reading will not be a very happy one. When once the Wage Board has given the definition of a Calligrashist and included persons coming under that category in the definition of a "working journalist" the only test to be applied will be whether the person concerned satisfies the requirements of the definition given by the Wage Board. We have already referred to the fact that it is no longer open to the appellant to question the jurisdiction of the Wage Board when it included 'Calligraphists in the definition of "Working Journalists." Once the jurisdiction of the Wage Board is conceded the approach to be made is only to find out where a person who claims to be a calligraphist satisfies the definition as given by the Wage Board. No doubt the definition of calligraphist will have to be read along with the definition of "Artist" given by the Wage Board. We have already held that the Labour Court's finding that Katibs are artists as defined by the Wage Board is correct."
(v) Reverting to the case reported in PLD 1977 Lah. 852, it may be observed that the facts of the above case were that the above petition under Article 199(1) (a) of the Constitution of Pakistan 1973 was filed by the petitioner, who besides being an Advocate, a citizen and a tax-prayer was also an office-bearer of Jamat-i-lslami, which was a party to the Alliance known as the Pakistan National Alliance (P. N. A.). The petitioner through the above petition sought direction against the Television Corporation, Lahore, and the Pakistan Broadcasting Corporation, Lahore to provide equal time to the P. N. A. And the P. P. P. On the television and radio and should also provide coverage in the news item more or less . Equal ,to that of the Pakistan People's Party. A Full Bench of the Lahore High Court while dealing inter alia with the above question observed that the function of staging election programmes, election features, and disseminating news inrespect of general elections or election matters has been undertaken by thetwo Corporations of their own and it is not the Court which had asked them to undertake and that there was no defect in the maintainability of the writ petition on the plea that the case was not covered by the above Articles of the Constitution. The writ was allowed and the respondents were inter alia directed to cover the news fairly of both the parties.
(vi) With reference to the Word and Phrases by John B. Saunder, it. 5 may be pertinent to observe that Mr. Sharif has relied upon the definition of the term newspaper given in the above dictionary which reads as follows :- "Newspaper.-The word "newspaper" shall mean any paper containing public news, intelligence, or occurrences, or any. Remarks or observations therein printed for sale, and published in England or Ireland periodi--cally, or in parts or numbers at intervals not exceeding twenty-six days between the publication of any two such papers, parts, or numbers. Also any paper printed in order to be dispersed, and made public weekly or oftener, or at intervals not exceeding twenty-six days, containing only or principally Advertisements (Newspaper Libel and Registration Act 1881, S. 1). In this section (which deals with qualified privilege in respect of newspapers) the expression "newspaper" means any paper containing public news or observations thereon, or consisting wholly or mainly of advertisements, which is printed for sale and is published in the United Kingdom either periodically or in parts or numbers at intervals not exceeding thirty-six days (Defamation Act 1952, S. 7).
"Newspaper" includes any periodical or magazine (Accommodation Agencies Act, 1953, S. 1).
"Newspaper", in Part III of this Act (lotteries and prize competitions), includes any journal, magazine or other periodical publication (Betting, Gaming and Lotteries Act, 1963, S. 55)."
(d) From the above-cited and discussed cases and the quoted definitions of the terms in the above two well-known dictionaries, the following principles are deducible;
(i) That the business of news associations or agencies is to gather) systematically knowledge of recent occurrences of interest and to distribute reports thereof to collect news or information and to furnish reports thereof to press and to disseminate information or news for consideration.
(ii) That the terms "newspaper" means any paper containing public news, intelligence or occurrence or any remarks or observations, contained therein, for sale to the public.
(iii) That the word "newsreel" connotes photographs which at the time when they were taken represents news.
(iv) That the term `broadcasting' will not include 'telecasting'.
(v) That any enactment providing conditions of service of the journalists as a class will not be ultra vires the constitution or the fundamental rights.
(vi) That the minimum wage generally means a bare subsistence wage, but according to the concept of the minimum wage adopted by the committee on fair wages in India, a minimum wage must provide not merely for the above subsistence, but for the preservation of the' efficiency of the worker, which must include some measures of education; medical requirements and amenities.
(vii) That the living wage should enable the male earner to provide him--self and his family not merely the bare essential of food, clothing and shelter but a measure of frugal comfort including education for the children, protection against ill health, requirements of essential social needs and a measure of insurance against the more important misfortune including old age.
(viii) That the fair wage is a mean between the living wage and the minimum wage. ,
(ix) That the Katibs though not mentioned separately in the Wag Board recommendations were held to be covered by the term calligraphists mentioned in the aforesaid recommendations of the Committee on fair wages in India.
(x) That while considering the question of fair wages, the capacity t pay of the industry concerned is also relevant factor to be taken into consideration.
(xi) That a broadcasting corporation and a television corporation owe a duty to disseminate information 'or news fairly so that the view points of the various political parties during the national & provincial elections or otherwise can be projected.
(5) (a) The question which requires consideration is, as to whether the petitioner are newspaper employees within the purview of above quoted section 2(d) of the Act and whether the respondent is a newspaper establish--ment within the purview of section 2(e) of the Act. In our view, the work of the petitioners is akin to that of journalists working as newspaper employees in newspapers establishments, but in order to bring the petitioners within the purview of the newspaper employee as defined in the Act, it is incumbent to show that they are employed in any work in or in relation to, any newspaper establishment. In other words, if it is to be held that the respondent is not a newspaper establishment within the purview of section 2(e of the Act, it must follow that though the petitioner's work is similar to' some of the journalists working in the newspaper establishments, but they are not covered by the definition of the newspaper employee as given in the Act. It has been vehemently urged by the learned counsel for the petitioners that in view of the objects mentioned in the Memorandum and Article of Association of the respondent corporation, it comes within the category of an establishment set up for conducting news agency and therefore, the petitioners are covered by the above definition. In this regard the reliance has been placed inter alia on clause III and (1) (3) and (6) of the Memorandum of Association of the respondent Corporation, which reads as follows;-- "III. The objects for which the Company is established are
(1) To establish a new work of Television Stations in Pakistan by erecting, constructing, maintaining and improving Television Stations at places approved by the Government of Pakistan. Or by using facilities of any organization or institution under such arrangements or terms which may seem desirable to the Company and providing television broadcasting services by telecasting five programmes of all kinds, news pictorial and documentaries, local and foreign films of all kinds and nature for the purposes of disseminating information, education and entertainment.
(3) To carry out instructions of Government of Pakistan with regard to general pattern or polices of programmes, announcements and news etc. To be put on air from time to time and also in respect of television code of ethics and television broadcasting timing from various stations of the Company.
(6) To carry on all or any of the business of shooting-scripts, developing, processing printing, editing, telecasting and selling films of all kinds and nature, setting up studio, laboratories, shops, showroom, etc., in connection with making of films, importing and exporting of raw and developed films and producing music discs and other recorded materials.
It may be noticed that according to the above Memorandum of Association, the respondent is entitled to engage itself in any one or more of the 43 objects mentioned in clause Ill. In other :words, the objects contained in the clauses III (I) (3) and (6) relied upon by the learned counsel for the petitioners are some of the objects of the respondent Company. It is true that by disseminating news through telecasting or telecasting other political and social events, the respondent is engaged in the objects, which are covered by the newspapers. But, the question is as to whether', the respondent is an establishment set up for conducting a news agency. The words "news agency" have not been defined in the Act or in the Ordinance and, therefore, we will have to place construction the above words which are understood in common parlance. The term 'news agency',, in our view connotes an agency of which the main or the only object is to collect and gather political, social and other news for sale to the newspapers and to other agencies just like P. P. I., A. P.
P. Or Reuter' the world well-known news agency or other national news agencies operating in the various countries of the world. It is true that the respondent after collecting and gathering news items telecasts .The same on the television from its various stations in Pakistan. It is also true that it produces news pictorials and documentaries and enters into agreement with some foreign countries for exchange of the above films or for providing reciprocal facilities to the other agencies but this does not make the respondent an establishment set up for conducting news agency in the ordinary parlance as understood by the publican large. In our view the main object of the respondent corporation is to provide recreation/ entertainment, the total time consumed in telecasting news or other political and social events as compared to the recreation/entertainment programme "I meagre. Furthermore, there is no elaborate setup in the respondent corporation for gathering and collecting news items for selling to the newspaper or to other agencies, which is the, main object of a news agency.
In this regard, it may also be pertinent to mention that the petitioner in petition No. 1481/82 has been in employment of the respondent corpora--tion for nearly 4 years but at no point of time prior to the III Wage Boar Award, claimed, the- benefits of the provisions of the Act. It has been urged by Mr. Wadood that non-claiming of the benefits for a few years o account of ignorance would not constitute an estoppel against the aforesaid petitioner. The. Above contention may legally be correct, but at the same time the above fact indicates 'that :prior to the III Wage Board Award the understanding of the petitioners as well of the respondent and of their other employees was that their terms and conditions were regulated in terms of section 6 of the Essential services Act. - ,Furthermore. In the III Wage Board Award on the last page of the Gazette, there is a comparative statement of the wages/salaries of the various institutions given in terms of section 10 of the Act, which include the wages/ salaries of the respondent's employees. It may be observed that section 10 of the Act provides that in fixing rates of wages in respect of newspaper employees, the Board. Ma take into consideration the costs of living, the prevalent rate of wages of comparable employments, the circumstances relating to the newspaper industry in different regions of the country and of any other circumstance which to the Board may seem relevant. From the above comparative statement on the wages/salaries in respect of comparable employments, which include the employment in the respondent corporation, it is evident that the Wage Board has not deliberated on the question of wages/salaries and other fringe benefits payable to the respondent's employees. It may also be observed that the wages are fixed after taking into consideration the various factor i.e. The working hours, the earning capacity of the newspaper establishments and the cost of living etc. In the above Indian Supreme Court case of 1958, the Wage Board Award was held bad on the ground that the Board while determining the wages had not taken into consideration the earning capacity of the newspaper establishments. It is an admitted no such data was before the Wage Board in respect of to respondent corporation.
However, it has been vehemently contended by the learned counsel for the petitioners that the Wage Board Award provides the terms and conditions to the posts equivalent or at par with the petitioners' post and, therefore, the same can be made applicable to the petitioners. It has been further urged that the Award even provides for part time employees and .Hat in any case there are many benefits which have been granted under the Award irrespective of the designation, which the petitioners are entitled to claim. In our view unless we hold that the petitioners are newspaper employees' working in an establishment set up for conducting a news agency or syndicate, the petitioners cannot claim the benefits under the provisions of the Act or under the Award, which we are not inclined to hold for the reasons already recorded hereinabove.
(6) (a) With reference to the second contention of the learned counsel for the petitioners that the talent contracts executed between the petitioners and the respondent cannot override the provisions of the Act or the provisions of the Award, it may be observed that the reliance has been placed by the learned counsel for the petitioners on section 19 of the Act, which inter alia provides that the provisions of the Act shall have effect not withstanding anything inconsistent contained in any other law or in the terms of any award, agreement, or contract of service, whether made before or after coming into force of the Act. In support of the above contention the learned counsel for the petitioners have referred to the case of Khawaja Ghulam Sarwar v. Pakistan through the General Manager P. W. R. Lahore (PLD1962SC142), the case of E. A. Evans v. Muhammad Ashraf (PLD1964SC536), the case of Habibullah v. Government of Punjab and S others (PLD 1980 Lah. 337), the case of Management of D. C. Dewan Mohiuddin Sahib & Sons v. Secretary, United Beedi Works Union Salem and another (AIR 1.966 SC 307), and the case of Market Investigation Ltd. v. Minister of Social Security ((1969) 2 Q B , D 172).
(i) Referring to the case reported in PLD 1962 SC 142, it may be observed that the question before the Supreme Court was, whether the Railway employees as public servants were entitled to the protection provided for in sections 240 and 241 of the Government of India Act, 1935. It was urged by the railway authorities that since the appellant had executed a service agreement, they were entitled to terminate his service in terms of the above agreement. It was held that despite of the notice clause in the service agreement, the appellant was governed by the Constitutional provisions contained in the Government of India Act, 1935 and the above agreement could not negative the above constitutional provisions.
(ii) Referring to the case reported in PLD 1964 SC 536, it may be stated that in the above case the question for consideration before the Supreme Court of Pakistan was, whether a statutory tenant could contract out the protection given to him under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958. It was held that the tenant cannot contract out of protection provided by the above section and such contract would be void being against public policy.
(iii) As regards the case, reported in PLD 1980 Lah. 337, it will suffice to observe that a learned Single Judge of the Lahore High Court while dealing with the question of status of the employee, who was working for some time with the Punjab Small Industries Corporation held that the change of terms and conditions could be made on the basis of contract and action on agreed terms would be non-exceptional, yet the employer in order to rely on such plea must start on the basis of an agreement, which is not being intervened by a statutory provision. It was further held that the change of terms and conditions of service to the dis-advance of an employee of the Government or a statutory corporation already in employment cannot be .Permitted through a mutual agreement, the same being against public policy and no question of waiver or acquiescence in the circumstances would arise.
(iv) With reference to the case reported in AIR 1966 SC 370, it may be observed that the Supreme Court of India was dealing with the question whether the workmen employed by the proprietors of the Beedi concerns through the so-called independent contractors were employees of the above proprietors as to entitle them to raise a dispute under the Industrial Disputes Act, 1947, it was held that the sale of raw material to the so-called independent contractor and re-sale by, him of manufactured bidis was a mere camouflage, the nature of which was apparent from the fact that the so-called contractor never paid for the material. It was further held that the intermediaries were merely branch managers appointed by the management and the relationship of employers and employees subsisted between the employers and the bidi rollers. It was further observed by the Supreme Court that the correct approach in order to decide whether there was relationship of employee was to consider whether, having regard to the nature of the work there was due control and supervision by the employer. It may be advantageous to quote hereinbelow para. 7 of the above judgment which reads as follows; "(7) The question whether relationship of master and servant subsists between an employer and employee has been the subject of considera--tion by this Court in a number of cases. In Dharangadhara Chemical Works Ltd. v. State of Saurashtra, 1957 SCR 152 (s), AIR 1957 SC 264, it was held that the question whether a person was a workman depended on whether he had been employed by the employer and the relationship of employer and employee or master and servant subsisted between them. It was well settled that a prima facie test of such relationship was the existence of the right in the employer not merely to direct what work was to be done but also to control the manner in which it was to be done, the nature or extent of Such control varying in different industries and being by its very nature incapable of being precisely defined. The correct approach, therefore, was to consider whether, having regard to the nature of the work there was due control and supervision by the employer. It was further held that the question whether the relation between the parties was one as between an employer and employee or master and servant was a pure question of fact; depending upon the circumstances of each case. In that case, the dispute was whether certain agarias who were a class of professional Labourers, were workmen or independent contractors. The facts found in that case were that the agarias worked themselves with members of their families and were free to engage extra labour on their own account. No hours of work were prescribed. No muster rolls were maintained ; nor were working hours controlled by the master. There were no rules as regards leave or holidays and the agarias were free to go out of the factory after making arrange--ments for the manufacture of salt. Even so, though certain features which were usually to be found in a contract of service were absent, the tribunal held that on the whole the status of agarias was that of workmen and not that of independent contractors, particularly as supervision and control was exercised by the master extending to all stages of manufacture from beginning to end. This Court upheld the view of the tribunal on a review of the facts found in that case."
(v) Reverting to the case reported in (1969) 2 Q. B D 173, it may be mentioned that the facts were that a member of a penal of the part time interviewers of a company engaged in market research was supplied with the company's interviewer guide' which gave detail instruction as to the method, in which interviews were to be conducted on behalf of the company when the company was making a survey, the interviewer could be asked if she was willing to do a number of day within the fixed period if she would agree, she would be sent the particulars and details instruc--tions of the assignment including the persons, she was to interview and the questions she was to be asked. .She could also be asked to attend the company's briefing meetings or to receive instructions from the company's supervisor. She was paid for the number of days, which the company estimated the interviewer would take and expenses but provided, she-;completed the work within the allotted time. She was free to work when she choose4 during the assignment and she could also work for others. The question arose before the Minister concerned, whether she was an employed person under section 1(2) of the National Insurance Acts, 1946 and 1965 and in insurable employment within section 1(2) of the National Insurance (Industrial Injuries) Acts, 1946 and 1965. The Minister gave the decision in favour of the interviewer. Upon appeal it was dismissed by Cooke, J. And it was held that since the company retained the control over the part time interviewer, there was relationship of employer and employee. In this regard it may be advantageous to quote hereinbelow a para. From page 185, which reads as follows :- "The application of the general test may be easier in a case where the person who engages himself to perform the services does so in the course of an already established business of his own ; but this factor is not decisive, and a person who engages himself to perform services for another may well be an independent contractor even though he has not entered into the contract in the course of an existing business carried on by him, In the present case it is clear that on each occasion on which Mrs. Irving engaged herself to act as an interviewer for a particular survey she agreed with the company, in consideration of a fixed remuneration, to provide her own work and skill in the performance of a servicefor the company. I therefore proceed to ask myself two questions. First, whether the extent and degree of the control exercised by the company, if no other factors were taken into account, consistent with her being employed under a contract of service. Second, whether when the contract is looked at as a whole, its nature and provisions are consistent or inconsistent with its being a contract of service, bearing in mind the general test I have adumbrated."
(b) From the above cited and discussed cases the following principles are deducible
(i) That any service contract containing conditions in violation of any statutory provision shall not be enforceable being against the public's policy.
(ii) That any protection provided for to any person under any law cannot) be contracted out by the parties.
(iii) That a contract of service may become unenforceable if subsequent to the execution of the contract under an enactment contrary to the contract is provided.
(iv) That the workmen though employed by ostensible independent Contractor may factually be the employees of the person; who has,, employed the independent contractor.
(v) That one of the test or criterion to determine, whether there is relationship of employer and of that employee, is to ascertain, whether the person engaged, acts under the sufficient control of the person while executing his work, who has engaged him, keeping in view of the nature of the work involved.
(vi) That even a person employed part time may be an employee o the person, who employs him if the latter exercises sufficient control in context with nature of work over the former in execution of the assignment entrusted to him.
(c) Mr. Sharif has referred to one of the monthly talent contracts executed between the petitioners and the respondent in support of his argument that there was no relationship of employer and employee between the petitioners and the respondent. We have perused the terms and conditions of the above talent contract and it seems that the form prescribed is intended to regulate the engagement of Artists. In our view the above form does not over petitioners who cannot be termed as Artists with any stretch of imagination. They are employees of the respondent corporation for all intents and purposes as it is an admitted position that both petitioners are laid on monthly basis and both the petitioners are under the control and supervision of the respondent corporation having regard to the nature of the petitioners' works. The respondent corporation exercises sufficient control over the petitioners in order to make them its employees within the .Cope of the above cases cited and discussed. However, the question as to whether they are workmen/workers within the purview of the labour laws or not will depend on the definition of the term, workman or worker given in the relevant enactment enactments, which the petitioners may seek to enforce.
7. As regards the last contention of the learned counsel for the petitioners that the Act being a beneficiary Act should be given liberal construction in order to cover large number of journalist, it may be observed that reliance has been placed on the case of Pakistan Tobacco Ltd., and United Rolling Mills v. Sind Labour Appellate Tribunal and Pak. Cigarette Labour Union (Regd.) 1981 PLC 482, in which a D. B. Of this Court while construing the provisions of the Employees Cost of Living (Relief) Act (I of 1974) observed that the Act being beneficial Act is to be interpreted liberally in favour of the employees. There cannot be any cavil to the proposition enunciated in the above D. B.
Case. It is well-settled principle of law that a beneficiary enactment is to be construed liberally in order to extend its benefits to the largest number of the people of the class for whose benefit the enactment is made. The same view was taken in the case of Rehmat Ali v. Sind Labour Appellate Tribunal by a Division Bench of this Court decided on 11-3-1982, to which one of us (Ajmal Mian, J.) was a party. However, the above principle of interpretation cannot over ride the express provisions of an enactment. In other words, if a person does not fall within the ambit of the Act or does not qualify the requirements contained therein, in that event irrespective of the fact that his work may be akin to that of the person, covered by the enactment, will not entitle him to the benefits of the Act. 1n the instant case as pointed out hereinabove that in order to press into service the provisions of the Act, what is required is that the news paper' employees must be working in or in relation of a newspaper establishment, which will include an establishment set up for conducting a news agency orb syndicate. Since we have held that the respondent is not an establishment set up for conducting a news agency within the meaning of section 2(d) of the Act, we cannot extend the benefits of the Act or the Award to the petitioners, in spite of the fact that we are inclined to hold that their work is akin to some of the journalists working in newspapers or in the establish--ments set up for conducting news agencies or syndicates.
8. It was next contended by the learned counsel for the petitioners that in section 2(d) of the Act before defining the various categories of the persons, who are included in the definition of the newspaper employees., the word "includes" has been employed, which indicates that the definition given is not exhaustive. It may be observed that there cannot be any dispute to the above proposition urged by the learned counsel for the petitioners. We may observe that when an enactment employs the word "includes" in 7 definition clause, it means that the definition is not exhaustive, but i: explanatory and the definition will cover any person akin to the person; mentioned in the explanation, but where the word `means' is used in the definition clause, it indicates that the definition is exhaustive.
9. For the aforesaid reasons, we do not find any merits in the above petitions and, therefore, the same are dismissed, but in the circumstances o1 the case there will be no order as to costs.