INDEPENDENT NEWSPAPERS CORPORATION (PVT.) LTD. and anothers vs

' MUHAMMAD AFZAL LONE, J.---This judgment shall dispose of two cross Appeals Nos. 154-K/89 and 155-K/89, filed by the Independent Newspapers Corporation (Pvt.) Ltd., and the Chairman, Fourth Wage Board and Implementation Tribunal, respectively, which arise out of the same judgment dated 26-4-1989, rendered by a learned Division Bench of the High Court of Sindh, in exercise of Constitutional jurisdiction. The cause was commenced by the Independent Newspapers Corporation (Pvt.) Ltd. (hereinafter called the Corporation) which is a "Newspaper Establishment" within the meaning of section 2 (e) of the Newspapers Employees (Conditions of Service) Act, 1973, by filing two separate but almost identical Constitutional petitions, challenging the validity of paragraphs 49(x), 49 (xi), 50, 54, 55 and 56 of the decision given under section 9 (3) of the Act by the Fourth Wage Board, constituted by the Federal Government for fixing the wages in respect of the Newspaper Employees. These paragraphs are reproduced below:- "Para. 49 (x). Study and Research Allowance, --All employees falling in the classification of editorial staff as mentioned in classification of employees in various grades under the heading 'Editorial' and placed in new consolidated pay scales from grades special to III shall be paid a study and research allowance.

(xi) Every newspaper establishment in Metropolitan 'A' category shall arrange to bear the expenses for performance of Haj of two of its employees every year through drawing of lots and one employee each through the same mode by newspaper establishments in Metropolitan `B' and Regional 'A' categories.

' Para 50. In so far as the classification and categorisation of various grades of the newspaper employees is concerned, the Editor enjoys a pivotal position in a newspaper and, therefore, in keeping with the realities, he must be recognized as a unique entity and for that purpose a new grade for the Editor, the Editor-in-Chief of a newspaper and the Director-General of a news agency has been created. While doing so, I have also kept in view the position obtaining in the Pakistan Television Corporation and the Pakistan Broadcasting Corporation and other statutory Corporations financed or controlled by the Government. The Editor, the Editor-in-Chief of a newspaper and the Director-General of a news agency shall be allowed, additionally, a fringe benefit in the nature of car allowance, where such a person is using and maintaining a car of his own, at the rate of Rs,700 p.m. As maintenance allowance with a further facility of money equivalent of 250 litres of petrol p.m. In case he is provided a car at the employer's expense then he shall be entitled to free petrol up to 250 litres per month or its equivalent in value as a reimburseable expenditure.

' Para.

54. All safeguards or privileges, benefits declared as wages already allowed under the decisions of the First, Second and Third Wage Boards and not covered under this decision, shall continue to be enjoyed by the newspaper employees.

' Para.

55. A permanent/regular employee of every newspaper establishment shall on retirement from service, as provided by the contract of his employment, company or employers' employment rules or service for superannuation or termination of employment on ground of maximum age limit for service, be entitled to be paid monthly, as deferred wages, a pension at the rate of 42-1/2 per cent.

Of his last drawn basic salary. This will be without prejudice to higher rate of pension being allowed by any establishment to its employees, or as may be prescribed under the Act.

' Para.

56. All benefits allowed in paragraphs 49, 50 and 55 above are hereby declared as wages."

' It may be stated that in so far as para. 54 is concerned, only the award of gratuity to the Newspaper Employees has been brought under challenge.

2. The High Court found that in its award the Wage Board did not discuss the study and research allowance as well as the Haj expenses; maintained that the said allowance was not analogous to wages and gratuity and that the sending of two employees on Haj, as well could not be categorized as "wages". Accordingly, the inclusion of both the items within the ambit of term "wages" as defined in section 2 (h) of the Act was declared as without lawful authority. The High Court also noticed that the demand for payment of car and petrol allowance was not raised before the Wage Board. On consideration of the duties performed by the Editor and Chief Editor, it took the view that the local travelling allowance granted to them under paragraph 49 (iii) was sufficient to meet their requirements. As reflected by paragraph 50 of the award in extending this fringe benefit to the Editors and Chief Editors, the Wage Board was influenced by the position obtaining in Pakistan Television Corporation, Pakistan Broadcasting Corporation and other such statutory corporations. In the opinion of the learned Judges, as the Newspaper Establishments have to meet their liability out of their own sources these are not comparable with the Government financed corporations. The High Court thus struck down the car and petrol allowance as well. As regards the gratuity, the High Court referred to the definition of the word "wages" embodied in the Act, whereby the meanings of this term as given in the Payment of Wages Act, 1936, have been adopted and noticed that gratuity is specifically included in the definition of "wages", if so declared by the Wage Board. In this respect, the fact that the first three Wage Boards treated the gratuity as "wages" also weighed with the High Court. The grant of gratuity was thus upheld. The High Court also declined to interfere with the award of pensionary benefit and concurred with the view taken by the Wage Board that under section 2 (h) it possessed ample power to treat a particular payment as "wages", and thus held that the payment in the nature of pension, declared by Wage Board, as wages, did travel outside the scope of the definition clause.

3. Leave to appeal was granted to examine the following points:-- "(1) Whether the decision of the 4th Wage Board is within the purview of the Newspaper Employees (Conditions of Service) Act, 1973, in so far it relates to the grant of Study and Research Allowance to the Journalists, payment of Haj expenses to some of the Newspapers Employees through ballots and Car maintenance/Petrol allowance to the Editors/Chief Editors of the Newspapers?

(2) Whether the learned High Court has correctly construed the true scope and import of the various provisions of the aforesaid Act in the light of the criteria enunciated by this Court and other superior Courts.

(3) Whether the High Court in exercise of its Constitutional jurisdiction can substitute its own opinion for that of the tribunal of exclusive jurisdiction in the discretionary field?

(4) Whether the learned High Court has correctly interpreted and applied section 2 (h) of the Newspaper Employees (Conditions of Service) Act, 1973?

(5) Whether the Hon'ble High Court could interfere with the exercise of delegated power conferred on the Wage Board by the legislature in terms of aforesaid section 2 (h) of the Act?

(6) Whether impugned decision of the High Court would stand vitiated on account of misreading of the record? And

(7) Whether the High Court in the circumstances of the case was justified in overlooking excessive laches on the part of the respondent No.1 in invoking the Constitutional jurisdction and the explanation rendered could constitute a valid ground in law for overlooking such conduct amounting to acquiescence, waiver and estoppel when rights had accrued in favour of the third party in the meanwhile?"

4. From the perusal of the Board's decision we find that the study and research allowance and sending of two Newspaper employees every year for Haj and the car maintenance and petrol allowance have been awarded by it to the employees concerned for the first time; and in this respect the Fourth Wage Board's award is a departure from the awards rendered by the previous three Boards. While ascertaining the scope of its powers under the Newspaper Employees (Conditions of Service) Act; 1973, the Board referred to section 2 (h) of the Act, which defines the word "wages" as under:-- "'Wages' means wages as defined in the Payment of Wages Act, 1936 (VI of 1936) and includes any gratuity or other payment declared as wages by the Board."

' In construing this definition the Board maintained that the word "includes" was used as a word of enlargement and intended to add to the definition something which ordinarily did not fall within the fold of the term defined. The Board also referred to the expression "other payment" and in the context of its interpretation, considered it another manifestation of legislature's intendment to enlarge the import and scope of term "wages" in comparison to the meanings given to this word in the Payment of Wages Act, 1936. In the estimation of the Wage Board, the extension of the definition of wages "inherently would carry with it as a necessary concomitant, the consequences of bringing within its ambit those other payments which under the definition of wages, as given in the Payment of Wages Act, 1936, would fall outside its purview".

' This analysis led it to the assumption of power to declare as wages any other payment as comprehended by the enlarged statutory meaning and to conclude that once that power was exercised it had the effect of constituting such payment as wages for the purpose of Newspapers Employees (Conditions of Service) Act, 1973. Mr. Ikhlaq Ahmad Siddiqi, who appeared for the Board supported the reasoning which prevailed with the latter. He urged that section 2 (h) and other provisions of the Act were correctly construed by the Board. That the High Court interfered with its decision without adverting to the reasoning on which this decision is rested and erroneously observed that the Board failed to discuss the study and research allowance."

5. Mr. Khalid Ishaque, the learned counsel for Independent Newspapers Corporation vehemently objected to the award of these benefits to the employees concerned. He, however, did not seriously controvert the Board's assumption that the tenor of the interpretation clause was aimed at conferring wide powers do it to enlarge the scope of the phrase "wages" but submitted that when a decision is rendered by an administrative authority, it is essential that an appropriate balance must be struck between the adverse effects, such decision may be wrought on the person concerned and the object of the Statute sought to be achieved under such decision. In this respect the learned counsel invited our attention to the following remarks appearing at page 136 of the Judicial Review by Michael Supperstone and another:- "An appropriate balance must be maintained between the adverse effects which an administrative authority's decision may have on the rights, liberties, or interests of the person concerned and the purpose which the authority is seeking to pursue."

' According to Mr. Khalid Ishaque, the Board did not adhere to this important principle governing the exercise of authority by a Tribunal of limited jurisdiction and enlarged the scope of the interpretation clause unduly.

6. There is much weight in the contentions of Mr. Khalid Ishaque. The principle is well settled that when express statutory power is conferred on a A public functionary, it should not be pushed too far, for, such conferment implies a restraint in operating that power, so as to exercise it justly and reasonably. In the words of Scarman L.J. "excessive use of lawful power is itself unlawful" ("The Development of Administrative Law" published in Public Law 1990, page 490 at 491). Further there is a presumption that the legislature does not transgress its jurisdiction and invade the fundamental rights given by the P. Constitution. This rule is to be kept in view also in construing and enforcing the law.

7. Dealing first with the decision, compelling a Newspaper Establishment to bear the expenses of two of its employees for performing the Haj, we feel that this object may really be pious and laudable but is not co-related with the concept of wages which speaking broadly under section 2

(vi) of the Payment of Wages Act, 1936, embodying the definition of the term wages adopted under section 2 (h) of the Act, is termed as remuneration payable to an employee in respect of his employment. The remuneration is a reward for services rendered. Seemingly nomination of two persons through ballot for performing Haj by an establishment, out of the whole lot of its employees, has no nexus with the rendering of services by them, which is a prerequisite for payment of wages. It, therefore, cannot be named as wages and more appropriately may be characterised as an act of grace on the part of the employer extended by him to two of his employees, but denied to others, though placed similarly as the two. To define such an expenditure, as wages, under the cover of the expression "other payment" appearing in section 2 (h) would be going too far and wholly divorced from objectivity. We are conscious that the purpose of Newspaper Employees (Conditions of Service) Act, 1973, is the betterment of the fmancial condition of the persons employed in the Newspaper Establishment and it should receive beneficent construction but in an interpretative Worth to pragmatize this piece of legislation and treat a particular benefit as wages and then fix the rate thereof, the Wage Board cannot travel beyond the spectrum of the Constitution, overlook the impact of its decision on the Newspaper Industry, ignore the factors envisaged by section 10 of the Act, which is not exhaustive in character and determinative of all thee relevant considerations regulating the fixation of wages. The Board has to act objectively and not subjectively. We are, therefore, unable to accept grant of so large a width to the powers of the Board to brand such a benefit as wages.

8. The basis spelt out from the Board's decision for allowing research and study allowance to the editorial staff is at a no better footing. The reason advanced by the Board in justification of this payment is that to enable them to make full contribution in the development of the country they should have an access to the general and scientific knowledge and modern thought. The decision further proceeds that they are expected to maintain a high standard of journalism but cannot afford to purchase expensive books and that their pattern of life and odd duty hours do not permit them to visit public library. Mr. Ikhlaq Hussain toed this line of reasoning and canvassed restoration of the Board's decision in this behalf. As regards the car maintenance and petrol allowance, para. 50 of the decision in which these are nentioned does not convey any reason for allowing this monetary benefit to the Editor and Chief Editor except that they occupy a pivotal position in the Newspaper. It appears that in this connection the Board was influenced by the service conditions of the employees of the statutory corporations like the Pakistan Television Corporation and Broadcasting Corporation. It has already been observed that under the impugned judgment these allowances were disallowed. The learned counsel for the Board, however, criticized the rejection of these fringe benefits by the High Court.

9. After hearing the learned counsel for the parties and going through the available record, we are not persuaded to, differ with the High Court. It seems to us that while dealing out these fringe benefits to the Editors and Chief Editor, the Board did not muster sufficient material to post itself with the relevant data concerning the wages paid in other comparable employments and organizations. The statutory corporations to which reference has been made by the Board are run, controlled and aided by the Government. The appellant-corporation is no match to follow the financial pattern of the services manned by them. We may observe that in view of the nature of the office of the Editor and Chief Editor for proper discharge of their duties they are by conscience required to study and research to keep their knowledge uptodate..In any case, any expenditure in this behalf should form part of the salary structure settled by them with the employer at the time of entry into service. Likewise, in the presence of the grant of local travelling allowance, under para.49

(iii) of the 'award' as held by the High Court, the Board was not left with any valid basis to allow car and petrol allowance to the editorial staff. Indeed, F we are unable to find any fault with the view expressed by the learned Judges of the High Court in refusing these benefits.

10. Before declaring a particular monetary benefit as wages and determining the rate thereof, the Board must acquaint itself with the conditions of the Newpaper Industry in different regions of country and the capacity of the Newspaper Establishments to endure financial burden sought to be imposed on them under its decision. We regret to state that there is not even a word to this effect in the 'award' under scrutiny before us. If the Newspaper is financially not sound, unjustified labelling of some benefits conferred on the employees as wages and fixing the same at too high a rate may result in curtailment of its circulation and in case of extreme financial difficulties even shunt it out of the field of the press publication. It shall not be inapt to refer here to Article 38 (a) enshrined in the Constitution, which lays down the principle of policy compelling the State to ensure "equitable adjustment of G rights between employer and employees", conducive to social and economic justice, aimed at creating an egalitarian society. In the practical application of the law by the Board, reflected by its determinations, the mutual accommodation and harmony between the Newspaper Establishment and their employees should serve as a motivating factor.

The newspaper readers, the silent spectators, are in a way party to this exercise before the Board. It, therefore, should not be lost sight of that the newspaper is provided to the readers at a fair price, so that the process of dissemination of information flows on without impediment which is essential for successful functioning of the democracy. These are some of the guiding principles to be kept in mind by the Wage Board while rendering its award.

11. Article 33 of the Constitution included in the principles of policy casts an obligation on the State to discourage parochial, racial, tribal, sectarian and provincial prejudices. In a pluralist society rent with such diversities, the process of social harmony, strengthening of democracy and tolerance, can meaning-fully be promoted through the instrumentality of press media, which acts with a measure of objectivity as compared with the Government-controlled Radio and Television, who have to follow the policy guidelines laid down by the Governmental authorities.

12. Article 19 of the Constitution guarantees right of freedom of speech and expression. It ordains that there shall be a freedom of press subject to reasonable restrictions imposed by law elucidated therein. The freedom of expression includes the right to receive information through organs of public I opinion and the freedom of press on its turn rests on the assumption that there is a wide dissemination of information. Such dissemination inevitably contemplates absence of restraints. Thus any measure which directly or indirectly puts restraint on or curtails the circulation of newspaper, due to any factor, including cost of production and resultant increase in the price thereof should, in so far as possible, be avoided.

13. It is discernible from the record that before the Wage Board an objection was raised to the admissibility of the gratuity but it was turned down. The factors which weighed with the Wage Board were that in the previous three awards the gratuity was awarded; these were acted upon and the objection thus suffered from excessive laches. It was emphasized that the Board did not act in vacuum and the wage structure introduced under the first award, subject to modification made therein by the successor Wage Boards required continuity. The High Court affirmed this finding; was impressed by the definition clause and noticed that the gratuity is now specifically included in the definition of "wages", provided it is so declared by the Board.

14. Under section 17 of the Act some of the provisions of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 subject to other provisions of the Act, have been made applicable to the Newspaper Establishments, wherein 10 or more Newspaper employees are employed. The explanation to section 17 which is clarificatory in nature is reproduced below:-- "For the avoidance of doubt, it is hereby declared that provisions of Standing Orders 10-B and 11, clauses (6) and (8) of Standing Order 12 and Standing Order 15 of the aforesaid Ordinance shall apply only to a newspaper establishment which fulfils the conditions laid down therein."

' It is not the respondent's case that the conditions for applicability of clause (6) of Standing Order No.12 are lacking in this case. Para. 6 of Standing Order No.12 provides for payment of gratuity to the workman at a particular rate which is not relevant for the purposes of these appeals. What is relevant is the proviso to clause 6 which runs as under:-- "Provided that, where the employer has established a Provident Fund to which the workman is a contributory the contribution of the employer to which is not less than the contribution made by the workman, no such gratuity, shall be payable for the period during which such Provident Fund has been in existence."

15. The argument of Mr. Khalid Ishaque is that since the appellant-Corporation makes contribution to the Provident Fund in terms of the proviso it is not liable to pay the gratuity. The appellant's claim that it has established a Provident Fund, to which its contribution is not less than that of the Newspaper employees, has not been refuted before us.

16. It is correct that according to section 2 (h) the gratuity forms part of the wages, but the conditions regulating the payment of gratuity are to be found in section 17 read with clause (g) of Standing Order No.12. Consequently, where the contribution of the employer to the Provident Fund established by him for the benefit of the employees is not less than the contribution made by the latter, he would not be obliged to pay the gratuity to his employees at the time of their retirement. It is clear to us that while granting the gratuity, the Board failed to examine the case from this angle and the High Court fell in error in upholding the award. It hardly needs any emphasis that there is no estoppel against law. Even if the Corporation acquiesced in the previous awards, there was no bar in questioning the validity of this payment under the 4th Award, which furnished a fresh cause of action to the appellant. The direction to the appellant to pay gratuity to its employees is thus declared as without lawful authority.

16. It has already been observed that the High Court did not interfere with the treating of the pension as wages by the Board. The Wage Board has taken the view that the pension constitutes wages both in the light of the ordinary meaning of the word as well as according to the definition clause 2 (h) of the Act, which in turn embraces the definition given in section 2 (6) of the Payment of Wages Act, 1936. It is evident from the award that Mir Khalil-urRehman entered appearance before the Board on behalf of the Corporation and opposed the grant of pensionay benefits. This opposition has been reiterated before us.

17. It is to be noticed that both gratuity and pension are two distinct types of retirement benefits.

The gratuity is a service benefit for long service and the pension as laid down in Wasif Ali Mirza v.

Karnami Industrial Bank Ltd. (AIR 1931 P.C. 160) is a periodical payment of money to the pensioner for past services. As stated earlier the Board has awarded pension as well as gratuity. There is no good ground to extend both these retirement benefits to the employees. In all fairness either the pension or the gratuity should have been given, and there is hardly any justification to grant both the retirement benefits. We feel that it should be left to the appellant Corporation to pay either the gratuity or pension to its employees and settle other modalities in this regard. We may observe that though item 49 (xi) of the award relating to sending of two employees of a newspaper establishment every year for Haj has been M technically knocked down the act being charitable, it too is left to the choice of the Corporation.

18. Towards the close of his submissions the learned counsel for the Wage Board half-heartedly urged two other grounds which were also avanced before the High Court, but rejected; firstly the writ petition suffered from lathes and, therefore, it could not proceed; secondly as the Headquarters of respondent No.1 were located at Islamabad, the Constitutional petition was not entertainable in the High Court of Sindh. We, however, do not find any merit in these contentions.

The reasons given by the High Court in dispelling these arguments are well-grounded and indeed the learned counsel was unable to controvert the same.

' In the result C.A. 154-K/89 is allowed and CA. 155-K/89 partly allowed. The parties are left to bear their own costs.