' SAIYED SAEED ASHHAD, J.---This Constitutional petition has been filed by the petitioner challenging the decision dated 17-9-1997 passed by the Sindh Labour Appellate Tribunal, whereby it ordered reinstatement in service of respondent No. 3 as Sub-Editor with direction that his original seniority be retained and pay and emoluments to be determined/awarded at the rate awarded by the Wage Board. It was also ordered that the issue whether Wages/salary and other benefits were paid less than the wages awarded by the Wage Board during the course of his service will be determined by the concerned Implementation Tribunal.
2. The brief facts of the case are that the petitioner, who publishes the Daily Newspaper under the name and style of Daily Business Recorder, employed respondent No.3 as Sub-Editor vide contract dated 24-6-1992 which was to be effective from 1-7-1992 and a consolidated salary of Rs,4,340 was to be paid to him. According to the terms and conditions of the contract his appointment was on contract renewable annually and his service was liable, to be terminated at any time on one month's notice and without assigning reason and on completion of 11 months he was entitled to one month earned leave.
3. After the expiry of the first contract he was re-employed vide contract dated 11-7-1993 on a fixed monthly salary of Rs,6,006. The terms and conditions which were settled in the first contract were to be applicable to the service of respondent No.
3. After expiry of the second contract, the third contract was executed on 31-7-1994, and his pay was fixed at Rs,6,156 per month. The terms and conditions were to be the same as in the first contract. The fourth contract was executed on 1-1-1995 on a consolidated monthly salary of Rs,7,360. The terms and conditions applicable to the service of respondent No. 3 by virtue of the first contract were adopted in the fourth contract. The period of the fourth contract was to expire on 30- 6-1996 but the service of the respondent No. 3 was terminated on 23-5-1996 as it was decided not to renew his contract of service and he was directed to avail one month's earned leave with effect from 1-6-1996 to 30-6-1996. Alongwith the termination letter a cheque of Rs,14,565 was issued to him which according to the petitioner included all his dues which had become payable to him during his aforesaid service with them.
4. Respondent No.3 vide his letter dated 25-6-1996 informed the petitioner that having worked for a continuous period of four years from 1-7-1992 to 30-6-1996 he had become a permanent workman and his service could be terminated only in accordance with the provisions of law, which in his case was the Newspaper Employees (Conditions of Service) Act, 1973 (hereinafter referred to as the Act of 1973) and by virtue of section 4 of the said Act the petitioner was required to assign "good cause" in writing for terminating his service. Regarding the acceptance of Rs,14,565, it was submitted by respondent No. 3 that the said amount represented his wages for the month of May, 1996 and the salary against the earned leave and that since he was not prepared to proceed on forced earned leave, the salary by way of earned leave would be treated as wages for the month of June, 1996. He further stated that he was encasing the cheque without prejudice to his rights to pursue his claim for his reinstatement in service.
5. Since the petitioner did not reinstate respondent. No. 3 in service, he filed a grievance petition in the First Sindh Labour Court, who passed an order dated 29-5-1997, disposing of his grievance petition, whereby reinstatement of respondent No. 3 was disallowed on the ground that he was a contractual employee and was not entitled to claim the benefit of the relevant laws. However, the applicant was found to be entitled to his legal dues as no document or evidence with regard to the dues payable to him had been brought on record, therefore, the issue could not be determined.
6. The said order of the First Sindh Labour Court was impugned by respondent No. 3 before the Sindh Labour Court Appellate Tribunal, who by its aforesaid order allowed the appeal of respondent No.
3. The petitioner feeling aggrieved and dissatisfied with the order/decision of the Sindh Labour Court Appellate Tribunal has challenged the same by way of the aforesaid petition, praying for a declaration that the impugned order dated 17-9-1997 be declared as illegal, arbitrary, without jurisdiction, having no legal effect and that the same may be set aside.
7. We have heard arguments of both the parties and have also perused the relevant provisions of law. Mr. Khalid Javed, learned counsel for the petitioner admitted that respondent No. 3 being an employee of Newspaper Establishment was to be governed by the provisions of the Act of 1973. He, however, submitted that in the present case the terms and conditions of his service would not be governed by the provisions of the said Act and he would not be entitled to the benefits, rights and safeguards made available to a Newspaper Employee by the said Act inasmuch as respondent No.3 was appointed in the service of the petitioner initially vide contract dated 24-6-1992 for a period of one year effective from 1-7-1992 and had agreed to the terms and conditions embodied in the aforesaid contract. He further submitted that after expiry of the first contract, a second contract of service was entered into between the aforesaid parties; after expiry of 12 months of the second contract a third contract was entered into for a further period of 12 months and that after expiry of the contract period of the third contract a fourth contract was entered into for a period of 12 months which was to expire on 30-6-1996 but his service was terminated on 23-5-1996. He further submitted that since respondent No 3 has voluntarily executed the contracts with the petitioner wherein all the terms and conditions of service were elaborately specified and laid down, respondent No. 3 would be deemed to have waived all the rights, benefits ana safeguards available to him under the Act of 1973 and could not invoke the jurisdiction of the Labour Court against termination of his service. It was further submitted by him that assuming for the sake of arguments without conceding that the provisions of the Act of 1973 would override the terms and conditions embodied in the contracts of service and would be applicable to him, even then respondent. No. 3 could not invoke the jurisdiction of the Labour Court in pursuance of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, on the ground that the letter of termination did not assign good cause or plausible reason for termination of the service as the said requirement is applicable in the case of a permanent workman, which respondent No. 3 never was as he was being employed/recruited from year to year on contracts of 12 months each.
8. Mr. Ashraf Hussain, learned counsel for respondent No. 3 vehemently attacked the arguments advanced by Mr. Khalid Javed on behalf of the petitioner and submitted that by virtue of section 19 of the Act of 1973 the provisions of the Act of 1973 shall have effect notwithstanding anything inconsistent, therewith contained in any other law or in the terms of any award, agreement or contract of service. He further submitted that the terms and conditions embodied in the four contracts of service entered into between the petitioner and respondent No. 3 were not only inconsistents but contrary to the provisions of the said Act and, therefore, were liable to be ignored and discarded. He further submitted that section 4 of the Act of 1973 provides that the service of a Newspaper Employee shall not be terminated by Newspaper Establishment without assigning "good cause" and pointed out that the letter of termination issued to respondent No. 3 did not contain any cause or reason, what to say of "good cause" and, as such, the termination of service of respondent No. 3 was illegal and void, being contrary to the provisions of the said section 4 of the Act of 1973. He also pointed out that the Act of 1973 also provides for the notice period for termination of service which varies according to the length of service and he drew our attention to section 4 of the said Act of 1973, which provides notice periods according to the length of service as under:--
(a) one month for a period of service from three months to two years;
(b) two months if the total period of service is not less than two years but less than three years;
(c) three months if the total period of such service is not less than three years but the order of appointment provides longer term.
' It has also been contended by Mr. Ashraf Hussain that the wages/salary paid by the petitioner to respondent No. 3 under the aforesaid four contracts of service was also not in accordance with the emoluments/wages and other monetary benefits which were available to respondent No. 3 under the Act of 1973 and this action of the petitioner was also inconsistent and contrary to the provisions of section 19 of the Act of 1973. Mr. Ashraf Hussain also vehemently refuted the contention of the petitioner's counsel that respondent No.3 was a temporary employee and was not entitled to be treated as a permanent workman as defined in the Standing Orders Ordinance and was not entitled to the benefits of section 4 of the Act of 1973 as the same was available to a permanent workman as defined in the Standing Orders Ordinance. In this connection he submitted that initially respondent No. 3 was appointed for a period of 12 months, thereby making it clear that the work for which he was appointed was to last for more than 9 months and by virtue of his very first appointment he would be treated or deemed to be a permanent workman, and the fact, that he was subsequently appointed from time to time by three different contracts of service for further 12 months under each contract, goes to establish beyond any doubt that the work for which respondent No. 3 was appointed was a permanent nature and there can be no controversy with regard to the status of respondent No. 3 as a permanent workman. He submitted that the contention of the petitioner that respondent No. 3 had accepted all his legal dues and was thereby estopped from adjudicating his termination is without any substance, inasmuch as the amount representing Rs,14,565 was the salary/wages for two months and did not contain any other benefits by way of gratuity, provident fund payment in lieu, medical leave and wages for casual leave available to a newspaper workman on termination of his service. He fully supported the order of the Sindh Labour Appellate Tribunal and submitted that the same did not suffer from any illegality nor was arbitrary or without jurisdiction and was liable to be upheld.
9. We have considered the arguments advanced by the learned counsel and have perused the material on record as well as the relevant provisions of the law. The status of respondent No. 3 as an employee of a Newspaper Establishment is admitted. Conditions of service of working journalists are governed by the Act of 1973, according to which every person employed to do any work in a Newspaper Establishment is a Newspaper Employee. Since respondent No. 3 was an employee of a Newspaper Establishment, his service conditions were to be governed by the provisions of the Act of 1973 in view of section 19 thereof and no condition of service detrimental or less advantageous to the Newspaper Employee or inconsistent or contrary to the provisions of the Act of 1973 could be forced, trusted or made applicable to respondent No.
3. The contracts of service entered into between the petitioner and respondent No.3 contained terms and conditions which were less advantageous and beneficial to respondent No. 3 and were also inconsistent and contrary to the provisions of the Act of 1973, relating to the terms and conditions of an employee of the Newspaper Establishment and in view of section 19 of the Act of 1973 could not be given effect to this connection the arguments that respondent No.3 had voluntarily and of his free will executed the contract of service and had accepted the terms and conditions embodied therein, thereby impliedly waiving his rights, privileges and safeguards available to him under the Act of 1973, are without any substance inasmuch as the act of respondent No. 3 in accepting the terms and conditions of service offered by the petitioner, which were inconsistent or contrary to the terms and conditions available to him under the Act of 1973 did not amount to conduct on the part of respondent No.3 from which it could be inferred that either he had abandoned or relinquished such rights and privileges or was having knowledge or awareness of such rights and privileges. The essential ingredients of the doctrine of waiver is that the person relinquishing or abandoning his rights and privileges is fully aware and cognizant of his such rights and privileges and has neglected or ignored to enforce knowingly and consciously by some decisive act or conduct. Mere silence of the person, entitled to enjoy such rights and privileges is not sufficient for establishing waiver. For the above proposition reliance is placed on the cases; (i)
Jam Pari v. Muhammad Abdullah reported in 1992 SCM R 786; and (ii) Muhammad Saleh v.
Muhammad Shafi reported as 1982 SCM R 33.
' Respondent No. 3 vide his letter dated 25-6-1996 addressed to the petitioners emphatically stated that they had deliberatelykept him in dark and misled him about his legal status, rights and entitlements thereby refuting the requirement of knowledge and awareness of his rights and privileges available to him under the Act of 1973 and other laws. These facts were reiterated by him in paras. 9 and 10 of his affidavit-in-evidence filed in First Sindh Labour Court. In the circumstances, the question of relinquishment of such rights and privileges does not arise and it cannot be held that he had waived them.
' The contention that respondent No. 3 was estopped. From agitating and claiming his rights, privileges and safeguards on the ground that he had accepted all his legal dues which were due and payable to him by the petitioner on termination of his service without any objection and reservation is also devoid of force as the amount paid to him was by way of wages for the month of May, 1996 and salary against earned leave for the month of June, 1996, which he was entitled to in terms of the contract and no other legal dues or moneys, such as provident fund, gratuity, leave pay, etc. To which he had become entitled during the course of service with the petitioner were paid to him. Apart from the aforestated position, it is a settled principle that estoppel does not operate in respect of question of law and against statutes and for the above relia4ce is placed on the cases of: (i) Habibullah Jan v. M. Hasan Khan reported in 1991 M LD 25; and (ii) Ocean Industries Ltd. v. Industrial Development Bank reported in PLD 1966 SC 738. In the later case their Lordships of the Supreme Court held that an undertaking by a person to forego and not to press his rights available to him under an Ordinance would not amount to estoppel and the person concerned would not be restrained or estopped from claiming the rights and privileges available to him.
' The contention that respondent No.3 was a contractual employee and not a workman or a worker and could not have recourse to invoke the ;jurisdiction of the Labour Court for enforcement of the rights guaranteed to a workman under the Standing Orders Ordinance is also not tenable and is without any substance in view of sections 17 and 18 of the Act of 1973 by virtue of which the provisions of the Standing Orders Ordinance and the Industrial Relations Ordinance respectively have been made applicable to Newspaper Employees and they have been treated as workman and worker as defined in the Standing Orders Ordinance, and Industrial Relations Ordinance.
' The next contention raised on behalf of the petitioner is that respondent No.3 was a contractual employee and was not a permanent workman as he was being employed for a period of 12 months from time to time and even by virtue of the last contract and the terms thereof he was employed for a period of 12 months and, as such, he could not be deemed to be a permanent workman as according to the terms and conditions of the contract service, his service was liable to termination at any time on one month's notice or pay in lieu thereof without assigning any reason and further that after completion of 11 months service he was entitled to one month's earned leave. This contention is also not tenable and is without any substance. By virtue of the very first contract respondent No.3 was appointed for a period of 12 months which clearly suggested that the work for the performance of which he was .Appointed was to continue for more than 9 months. Standing Order No.1(a) of the Standing Order Ordinance enumerates different kinds of workmen which are classified as under:- "(i) Permanent ............................................
(ii)
(iii) ...........................................
(iv) ..........................................................
(v) ..........................................................
' Standing Order 1(b) defines a permanent workman as a worker who has been engaged to work on permanent nature likely to last more than 9 months and has satisfactorily completed a probationary period of three months in the same or another occupation in the Industrial or Commercial Establishment There is no dispute with regard to the fact that respondent No. 3, being a Newspaper Employee was a workman in view of the provisions of section 17 of the Act of 1973. In the light of the above definition of a permanent workman, respondent No. 3 would be deemed to have acquired the status of a permanent workman on completion of three months of his service as a Sub-Editor in the petitioner's establishment on the basis of first contract of service as he continued to serve for the full period of contract from which it is to be presumed that his work during first three months was found satisfactory and he was allowed to perform the work assigned to him and it was of permanent nature. The renewal of his service by means of fresh service of contract on 3 occasions in future would certainly strengthen the above presumptions. After having put in 4 years of continuous service on a coat and having performed work which was of permanent nature, respondent No. 3 had acquired the status of a permanent workman. The above proposition find supports from the pronouncement made by the Supreme Court of Pakistan in the case of Executive Engineer, Central Civil Division, Pak P.W.D. Quetta v. Abdul Aziz and others reported in PLD 1996 SC 610 = 1996 PLC 385. In this case it was observed by the Supreme Court that once it was proved that the employee .Remained in service without any interruption between a period of two years to 7 years the burden of proving that the employee was employed on work which was not of permanent nature and which could not have lasted for more than 9 months was on the employer.
In the present case the business of the petitioner is that of printing a Daily Newspaper and respondent No.3 was employed as a Sub-Editor in connection with the publication/printing of the said newspapers which was work of a permanent nature and there is no evidence on record to hold that the termination of service of respondent No.3 was on account of cessation of the work which was being performed by him and that the same had come to an end or did not last thereafter.
' Upon the above discussion, we are of the view that service of respondent No.3 in the petitioner's establishment was governed by the provisions of the Act of 1973 and the terms and conditions of his service could not be varied or altered to his detriment nor he could be deprived of his rights, privileges and the entitlements available to him, under the Act of 1973. His service could be terminated only in accordance with the provisions of section 4 of the Act of 1973 but the petitioner did not follow the provisions of the said section 4 and terminated him in accordance with the terms and conditions embodied in the contract entered into between the petitioner and respondent No. 3, which being inconsistent and contrary to the provisions of the Act of 1973, could not be made applicable to respondent No.
3. The service of respondent No. 3 was terminated illegally and the order of termination was void.
The Sindh Labour Appellate Tribunal rightly ordered his reinstatement With back benefits. We also do not find any reason to interfere with the observations and directions of the learned Sindh Labour Appellate Tribunal with regard to the rights of respondent No.3 to claim the difference of salary/wages and other monetary and fringe benefits paid to him by the petitioner during the course of his service if the same were less than what .Respondent NO.3 was entitled to receive in view of the different awards of the Wage Board.
' Accordingly, we dismiss this petition, in limine along with the listed application.