' RAJA FAYYAZ AHMED, J.---Through this Constitutional petition order dated 16-11-1995 passed by the respondent No. 1 i,e, Chairman of the Implementation Tribunal for Newspaper Employees has been assailed to be ultra vires of the provisions of the Newspaper Employees (Conditions of Service) Act, 1973 and following reliefs have been prayed:
(i) Declare the impugned order dated 16-11-1995 passed by the respondent No. 1 to be ultra vires of the provisions of the Newspaper Employees (Conditions of Service) Act, 1973 and Wage Board Decision constituted under the provision of the said Act, without lawful authority, null and void and has no binding effect.
(ii) Set aside the impugned order dated 16-11-1995 declaring that the newspaper employees in general and particularly the newspaper employees of Daily Jang, Quetta are not entitled for the Night Shift Allowance provided in Clause 7(ii) of the First Wage Board Decision for Working Journalists (Conditions of Service) Ordinance, 1960 which stands repealed by the Newspaper Employees (Conditions of Service) Act, 1973, and discontinued by the Second Wage Board Award for newspaper employees constituted under the provisions of the said repealed Act.
(iii) Grant any other relief or reliefs as may be deemed proper in the circumstances of the case.
2. Briefly stating the facts of the case are that the petitioner is a newspaper establishment within the meaning of section 2(e) of the Newspaper Employees (Conditions of Service) Act, 1973 and consequent upon the repeal of the Working Journalists (Conditions of Service) Ordinance, 1960 (Ordinance XVI of 1960) the affairs of the petitioners establishment in relation to the employment, terms and conditions of the employment are governed by the Newspaper Employees (Conditions of Service) Act, 1973.
' As it appears from the impugned order passed by the respondent No. 1, the Chairman of Daily Jang, Quetta filed a declaration under section 13(6) of Newspaper Employees (Conditions of Service) Act, 1973 on 8-9-1988 and the Jang Employees Union, Quetta filed objections to the said declaration through its General Secretary as required under Rule 9 of the Implementation Tribunal for the Newspaper Employees (Procedure and Functions) Rules, 1977 and these objections as per impugned order were received in the office of the Tribunal on 28-11-1988 wherein the following objections and claim was made by the Jang Employees Union: "(1) Night Allowance.---Journalists working for more than 14 nights in a month shall be paid @ 30% of their basic pay for each night of employment over and above the 14 nights." (Gazette of Pakistan), Extraordinary January 31, 1961. Decision of the First Wage Board of Working Journalists.
' While the declaration submitted by the management of the Daily Jang, Part III-A, page 2, Head N.A.
Shows Rs,40 (forty) only to Rs,60 (sixty) only p.m. This is worth mentioning that Rs,60 are being paid to those employees only who were recently transferred from Rawalpindi to Quetta. (Fringe benefits to the para. 7(ii) of the Gazette). This is clear violation of Wage Board Award.
(2) Haft.---Every newspaper established in the Metropolitan ' A' category shall arrange to bear the expenses of Hajj of two of its employees every year through drawing of lots and one employee each through the same mode by newspaper establishment in Metropolitan 'B' and Regional 'A' categories."
(Gazette of Pakistan Extraordinary: Act 17 of 1985, Part II, page 1840 --Head: Fringe Benefits, clause 49(xi).
' It may be mentioned that no employee of the said organisation has. So far been sent for performing Hajj. This too is a clear violation of the Wage Board Award. (Confirmed by the C.E.I.N.C.
(Ltd.) through its declaration to I.T.N.E. On 30-5-1988 (page III).
(3) Pension.---No pension is being paid to any employee as confirmed by the C.E., I.N.C. Ltd.
Through its declaration to I.T.N.E. On 30-5-1988. (page III)."
3. The petitioners submitted their written grounds of arguments on 19-10-1995 before the respondent No. 1 contending therein that the stand taken by the petitioner before the respondent No. 1 was correct and that the grant of Night Shift Transport Allowance vide First Wage Board Decision dated 31-12-1960 for the Working Journalists was made by the Wage Board under the working journalists (Conditions of Service) Ordinance, 1960 having been repealed by the Newspaper Employees (Conditions of Service) Act, 1973 which has not saved the First Wage Board dated 31-12-1960 made under the repealed Ordinance and that the decision of the First Wage Board Award for the Working Journalists has not been declared to be an award of the Full Bench of the National Industrial Relation Commission under section 12 of the Newspaper Employees (Conditions of Service) Act, 1973, therefore, the decision of the First Wage Board is not enforceable under the law for being not the award of the Full Bench of the N.I.R.C. It has further been contended in the written arguments of the petitioner submitted before the respondent No. 1 that the then Chairman of the Second Wage Board of Newspaper Employees by taking into consideration the grant of "Night Shift Transport Allowance" as made in the First Wage Board Decision came to the conclusion that the newspaper establishment do not work in the shift and the employees perform their normal duty in the night for which wages are being paid to them and that the Chairman of the Second Wage Board discarded the entire provisions of clause (7) of the First Wage Decision for working journalists and instead relief was provided to the newspaper employees vide sub-clause
(viii) of clause (10) in its decision dated 8-6-1974, without having any saving clause. As per said written arguments the decision of First Wage Board Award on the subject was not subsequently confirmed in the Second Wage Board Decision.
' It has been stated in the written arguments that the Wage Adviser's Report in respect of the demand of the employees for the grant of Night Allowance was found not justified because the Night Shift duty is a normal feature of their employment for which they get wages, (reported in the Gazette of Pakistan, Extra, June, 1980 at page 1140) and that despite repeated submissions of the representatives of the employers and comments of the Wage Adviser on the subject-matter of the Night Shift Transport Allowance: the Chairman of the Third Wage Board avoided to discuss the same in its report and failed to record its findings with reasons for allowing or disallowing the Night Shift Transport Allowance to the newspaper employees, as .Para. 7 of the First Wage Board Decision meant only for working journalists, therefore, para. 13 of the Third Wage Board Decision of 1980 is redundent, without any lawful authority nor binding upon the newspaper establishment. According to the petitioners' case before the respondent No. 1 was that paragraph 13 of Third Board Wage Decision has arbitrarily extended the benefits of para. 7 of the First Wage Board to all the newspaper employees thereby including non-journalists also and that the benefits of para. 13 of the Third Wage Board Decision, were not declared as wages by the Board nor by the Second Board, therefore, has no binding effect and similarly the Fourth and Fifth Wage Boards have also confirmed para. 13 of Third Wage Board respectively but not all the privileges safeguards, benefits etc. Which are not declared as wages and since the operation of the Second Wage Board Decision the implementation of the said objected provisions of the First Wage Board has been discontinued with effect from 1-6-1974 as the same has not been declared as wages and cannot be enforced under the provisions of the Fourth Wage Board Decision dated 28-9-1985 declaring in para. 54 that only those benefits which are declared as wages under the earlier decisions and not covered under the Fourth Wage Board Decision be allowed hence the petitioner prayed before the respondent No. 1 that the newspaper employees performing their night duties as a part of their normal duties for which they are paying wages are not entitled to claim benefit allowed to the working journalists alone by the First Wage Board Decision which too stands repealed by Act LVIII of 1973.
4. The Jang employees' union also submitted rejoinder to the written arguments filed by the petitioner controverting the contentions raised by the petitioner contended therein that the grant of night allowance as per First Wage Board Award became effective and operating from 1-1-1961 and vide sub-paragraph (ii) of paragraph 7 of the Schedule to the First Wage Board Award, it has been provided that the journalists working for more than 14 nights in a month shall be paid 0) 30% of their basic pay for each night of employment over and above the 14 nights and according to the contention of the respondents Nos. 2 and 3 raised before the respondent No.1 the night shift transport allowance and the night allowance is covered under the aforesaid sub-paragraph (ii) which is being paid according to the granted scale i,e, 30% of the basic pay. According to the stand taken by the union before the respondent No. 1 the Night Shift Transport Allowance is being paid @ Rs,10 per night and night allowance is being paid @ Rs,40 per month to certain employees of the petitioner, and according to them the right of the employees to Night Shift Transport Allowance as well as Night Allowance have been saved by the Newspaper Employees (Conditions of Service) Act, 1973: It has further been contended therein that by virtue of Second Wage Board Award Night Shift Transport Allowance and Night Allowance has been saved under clause (vi) of para. 10 of the Second Award, whereas; in the Third Wage Board Award of 28-6-1980, the rate of Night Shift Transport Allowance was raised to Rs,4.25 per night vide clause (a) of sub-para. (ii) of para. 11 and the Night Allowance allowed under the First Wage Board Award was continued vide para. 10(vi) of Second Award of 1974 which has further been continued vide paras. 12 and 13 of the Third Wage Award of 1980 and thus, the Night Shift Transport Allowance as well as Night Allowance created by the First Award of the Wage Board have been continued subsequently by the successive Awards uptodate and the rate Of the Night Allowance has been kept the same as was initially allowed i,e, 30% of the basic pay whereas; the rate of Night Shift Transport Allowance has been increased to Rs,4.25 per night. The management according to them are giving both these allowances but not according to the prescribed scale. This has been specifically mentioned in the rejoinder to the arguments filed by the petitioner that the definition of the wages defined in the Payment of Wages Act, 1936 has been adopted in the Newspaper Employees Act, 1973 which duly covers the Night Allowance and according to them it is the case of implementation of the award of the Wage Board which if not implemented would entail punishment as provided under section 55 of the Industrial Relations Ordinance, 1969 besides in this behalf powers have been delegated to the Tribunal under section 13 of the Act LVIII of 1973.
5. The management of the petitioner thereupon submitted counter-written arguments to the rejoinder of the employees' union wherein it has been admitted that the management is making payment of Night Transport Allowance to the employees who are required to attend duty between 9-00 p.m. To 5-00 a.m. At the rate prescribed by Second Wage Board Award in paragraph 10 (viii) and in the subsequent Wage Board Awards and the management is also praying Night Allowance to Calligraphists who are working in the night at the flat rate of Rs,40 or Rs,60 per month for their incentive as justure of goodwill. It has been mentioned in the counter-written arguments of the petitioner that the management is paying allowance not to all the employees who are defined working journalists in the First Wage Board Decision on the subject contained in para. 7(ii). The management of the petitioner contended therein that the Night Allowance as per para. 7(ii) of the First Wage Board Decision has not been saved by the subsequent Wage Board constituted under the provisions of Act LVIII of 1973, thefeby repudiating the contentions of the employees union that in absence of saving clause in the repealing statute i,e, Act LVIII, the Night Allowance cannot be deemed to have been saved by virtue of sections 6 and 24 of the General Clauses Act, 1897 and that section 24 of the said Act did not save the said right because of the constitution of the New Wage Board. Additionally it has been stated in the counter-arguments that the decision of the First Wage Board was never declared as an Award in terms or section 12 of the Newspaper Employees (Conditions of Service) Act, 1973, therefore, it became infructuous and incapable of its implementation under the law and the fringe benefits allowed by the First Wage Board Award for working journalists did not declare such benefits as wages for want of such power under Ordinance XVI of 1960. Further it has been stated in the counter-written arguments by the management that the night allowance allowed to the working journalists vide para. 7(ii) of the First Wage Board Decision was discarded by the Second Wage Board Decision as it did not safeguard the benefits, privileges allowed to the employees under the First Wage Board Decision, and the Fourth and Fifth Wage Board Decisions saved only those benefits etc. Of the previous decisions of the Boards regarding the claimed allowances which were already declared as wages and similarly Third Wage Board decision also did not declare the previous decisions of the Wage. Boards pertaining to such allowances as wages.
' The learned implementation Tribunal for the newspaper employee i,e, respondent No.1 having heard and considered the respective contentions of the parties passed the impugned order dated 16-11-1995 to the extent that the employees of the Daily Jang, Quetta are entitled to the payment of the Night Shift Allowance at rate given in para. 7 (ii) of fringe benefits of First Wage Board Award with effect from 27-11-1988.
6. We have heard the learned counsel for the parties at length in support of their contentions. The learned counsel for the petitioners raised the same contentions which have been made before the respondent No.1 in their written arguments dated 19-10-1995 and the counter-written arguments dated 5-11-1995 to the one filed on behalf of the employees' union. The learned counsel mainly contended that the Night Shift Allowance provided in the First Wage Board Award has not been confirmed in the subsequent awards on the subject nor the same has been saved by the repealing statute, inasmuch as; the Night Shift Allowance has not been declared as wages nor falls within the definition of wages, therefore, the demand for implementation of the Night Allowance is not permissible under the law. According to the learned counsel sections 6 and 24 of the General Clauses Act, 1897 has no application in the instant matter on account of the Night Allowance benefits having not been saved under the repealing statute. The learned counsel further contended that without recording evidence, the issue has been decided by the respondent No. 1 which otherwise had no jurisdiction to pass the impugned order except to its competency to entertain such complaint to the extent of the permissible limits within the meaning of section 13 of Act LVIII of 1973 or in the alternative it could have been referred under the relevant provisions to the competent Authority under the Industrial Relations Ordinance, 1969. The learned counsel in support of his contentions placed reliance on the reported judgments i,e, PLD 1958 SC (Pak.) 153, 1993 PLC 574 and PLD 1995 SC 66.
' The learned counsel for the respondents Nos.2 and 3 controverted the arguments put forth on behalf of the petitioners and submitted that the respondent No.1 was the only competent forum for the implementation of the rights of the Jang employees' union and to put into implementation the benefits of the allowance granted to them under the First and subsequent Wage Board Awards and the respondent No.1 has passed the impugned order in exercise of his jurisdiction vested in it under the law which passed the impugned order strictly in accordance with law. The learned counsel also made reference to sections.2, 6, 10 and 13 and to the saving clause contained in the repealing Act (LVIII) of 1973. According to the learned counsel the benefits claimed and sought to be enforced by the employees' union includes the journalists as well as non-journalists which has been successively confirmed by the subsequent Wage Board decision and duly granted by the First Wage Board Award. The learned counsel for the respondents Nos.2 and 3 referred to the decision of Sixth Wage Board Award published in the Extraordinary Gazette of Pakistan, March 14th, 1996 which provided full and complete protection to the decisions of the First, Second, Third, Fourth and Fifth Wage Boards and thus, contended that the employees' union is entitled to the grant of the payment of Night Shift Allowance at the given rate contained in the relevant paragraph of the fringe benefits of First Wage Board Award.
' The learned Deputy Attorney-General Mr. M.S. Rakhshani appearing for the respondent No.1 adopted the arguments of the learned counsel for the respondents Nos.2 and 3 and submitted that the impugned order has been passed competently and in accordance with law by the respondent No.1 which is not open to any exception.
7. For convenience the relevant paragraphs of the First, Second, Third, Fourth, Fifth and Sixth Wage Board Awards dealing with Night Shift Allowance are reproduced hereunder:- "Ist Wage Board Award.---(Promulgated through Gazette Notification dated 30th January, 1961).
The relevant para. 7 of Fringe Benefits of the Award is reproduced below: Night Shift Transport Allowance.---(i) Working Journalists employed in late night shifts shall be entitled to free transport from their employers for attending the office for work and for returning home or in the alternative such allowance as may be mutually agreed between them.
(ii) Journalists working for more than fourteen nights in a month shall be paid at the rate of 30 per cent. Of their basic pay for each night of employment over and above the fourteen nights.
2nd Wage Board Award.---(Promulgated through Gazette Notification dated July 6, 1974).
"Para. 10 (vi).---All privileges, safeguards, benefits etc. Regulating overtime, night duty, apprenticeship, lead hazards, medical attendance, risks arising out of performance of duty, contributory provident fund etc. As provided under the relevant laws shall be admissible to newspaper employees, provided that any more favourable terms, if already in vogue in any establishment, are not to be curtailed."
3rd Wage Board Award.---(Promulgated through Gazette Notification, date 28th June, 1980).
"12. All privileges, safeguards, benefits etc. Regulating overtime, night duty, apprenticeship, lead hazards, medical attendance, risks arising out of performance of duty, contributory provident fund and gratuity etc. As provided under the relevant laws shall be admissible to newspaper employees, provided that any more favourable terms, if already in vogue in any establishment, are not to be curtailed.
13. All privileges, benefits or safeguards already allowed under the decisions of the First and Second Wage Boards and not covered under this decision, shall continue to be enjoyed by the newspaper employees.
' While these benefits have been declared "Wages" under para.
14. This reads as under:--
14. All benefits allowed in para. 11 above are hereby declared as wages."
4th Wage Board Award.---(Promulgated through Gazette Notification, dated 16th October, 1985).
53. All privileges, safeguards, benefits, etc. Regulating overtime, night duty, apprenticeship, lead hazards, medical attendance, risks arising out of performance of duty, contributory provident fund and gratuity, etc. As provided under the relevant laws shall continue to be admissible to newspaper employees provided that any more favourable terms, if already in vogue in any establishment, are not to be curtailed.
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.
5th Wage Board Award.---(Promulgated through Gazette Notification, dated 13th January, 1991).
85. All safeguards or privileges, benefits declared as wages already allowed under the decisions of the First, Second, Third and Fourth Wage Boards and not covered under this decision, shall continue to be enjoyed by the newspaper employees.
6th Wage Board Award.---(Promulgated through Gazette Notification, dated March 14, 1996 relevant paragraphs 78 and 79 reproduced hereunder: "78. All privileges, safeguards, benefits, P.I.C. Regulating overtime, night duty, apprenticeship, lead hazards, medical attendance, risks arising out of performance of duty, contributory provident fund and gratuity, etc. As provided under the relevant laws shall continue to be admissible to newspaper employees provided that any more favour terms, if already in vogue in any establishment, are not to be curtailed.
79. All safeguards or privileges, benefits declared as 'wages already allowed under the decisions of First, Second, Third, Fourth and Fifth Wage Boards and not covered under this decision, shall continue to be enjoyed by the newspaper employees."
' Working Journalists (Conditions of Service) Ordinance, 1960 was promulgated on 27th April, 1960 to regulate certain conditions of service of working journalists and other persons employed in newspaper establishments. Under section (c) newspaper employee has been denied which include any journalist and any other person employed to do any work in, or in relation to, and any newspaper establishment, whereas; the term "working journalist" has been defined in section 2(f) of the Ordinance which reads as under:- "2(f) ' working journalist' means a person who is a whole time journalist and is employed as such in, or in relation to, any newspaper establishment, and includes an editor, a leader writer, newspaper sub-editor, feature writer, reporter, correspondent, copy-tester, cartoonist, news-photographer, calligraphist and proofreader, but does not include any such person who--
(i) is employed mainly in a managerial or administrative capacity, or
(ii) being employed in supervisory capacity performs, either by the nature of the duties attached to his office or by reason of the powers vested in him, functions mainly of a managerial nature."
' Whereas; ' wages' have been defined in section 2(g) whereby any remuneration capable of being expressed in terms of money, payable to a working journalist by a newspaper establishment in, or in relation to, which he is employed. The definition of the working journalist given in section 2(f) of the Ordinance excludes the other employees of the newspaper establishment not defined, in this subsection whereas; "the . Newspaper employee" defined in section 2(c) covers and includes the working journalist as well as the other mentioned employees of the establishment to do any work in, or in relation to, any newspaper establishment, therefore, evidently the aforesaid group of the working journalist has been distinguished from the remaining employees of the establishment not falling within the definition of working journalist given in section 2(f) of the Ordinance.
' The First Wage Board Award has been constituted, under section 8 of Ordinance XVI of 1960 who gave its decision within the meaning of section 9 of the Ordinance and was published in the Gazette of Pakistan dated 30-1-1961 in terms of section 10 of the Ordinance which came into operation within the meaning of subsection (2) of section 10 of the Ordinance whereas; by virtue of section 12 the decision of the Board has a binding effect on all the employers in relation to the newspaper establishments and every working journalist shall be entitled to be paid wages at the rate which shall, in no case be less than the rate of wages fixed by the Board and under section 13 of the Ordinance the Wage Board has been empowered even to fix interim rates of the wages for the working journalist and any interim rate of wages so fixed shall also be binding on all the employers in relation to the newspaper notification, order or rule issued, form prescribed, proceedings commenced, or action taken under that Ordinance, shall so far as it is not in consistent with the provisions of the Act, continue in force and be deemed to have been made, issued or taken under the provisions of this Act."
' Subsection (2) of section 24 of the Act saves and ensures, continuity of the enforcement of any actions, notifications, proceedings, etc. Under the repealed Ordinance so far as these are not inconsistent with the provisions of the Act and only those actions, notifications, proceedings, orders taken, issued or passed, will be treated to be void only to the extent of inconsistency and not otherwise, therefore, there is no cavil to the proposition that the decision of the First Wage Board Award on the subject in question has been duly saved and moreover; section 24 of the General Clauses Act, 1897 though contain a similar provisions but comparatively scope of its applicability stands enlarged than those contained in subsection (2) of section 24 of the repealing Act, therefore, it has been specifically provided in subsection (2) of section 24 that without prejudice to the provisions of section 24 of the General Clauses Act, 1897, meaning thereby that in addition to the savings under subsection (2) of section 24 of the General Clauses Act will have also full application in the context of the repeal of the Working Journalists (Conditions of Service)
Ordinance 1960. The contention of the learned counsel for the petitioners that the benefits granted under the First Board Decision has not been saved and that section 24 of the General Clauses Act, 1897 has no application in this behalf, is without any force.
' Prior to the promulgation of the Second Wage Board Award issued though Notification, dated July 6, 1974 the Newspaper Employees (Conditions of Service) Act, 1973 was enacted. The object of this Act is to constitute a Wage Board for fixing wage rates for journalist as well as non-journalist newspaper employees; provide for effective implementation of the decision of the Wage Board, application of the Industrial Relations Ordinance, 1969 and the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 to newspaper employees and newspaper establishments and to provide for security of the service, hours of work and medical care.
' Under section 2(d) the term "newspaper employee" means any person employed to do any work in or in relation to, any newspaper establishment and includes--
(i) A whole time journalist, including an editor, a leader writer, newspaper editor, feature writer, reporter, correspondent, copy tester, cartoonist, news-photographer, calligraphist and proofreader; and
(ii) A whole time non-journalist, including a manager, clerk, stenotypist, printing engineer, lino type operator, composer, type-setter, photo studio attendant, printing worker, an accountant and an office peon. The scope of the newspaper employee and the working journalist in this Act as compared to that given in the Ordinance XVI of 1960 including the persons falling under the definition of working journalist has been enlarged and as such the Act No. LVIII of 1973 applies to all the abovementioned employees of the newspaper establishment who are to work in any such establishment whereas the term ' wages: has been given in section 2(h) of the Act, as per ' wages' defined in the Payment of Wages Act, 1936 including any gratuity or other payment declared as wages by the Board."
' The definition of 'wages' as defined in the Payment of Wages Act, 1936 is given below for ready reference:-- "(vi) ' wages' means all remuneration, capable of being expressed in terms of money which would, if the terms of contract of employment, express or implied, were fulfilled be payable, whether conditionally upon the regular attendance, good work or conduct or other behavior of the person employed or otherwise, to a person employed in respect of his employment or of work done in such employment, and includes any bonus or other additional remuneration of the nature aforesaid which would be so payable and any sum payable to such person by reason of the termination of his employment, but does not include-- ' Though from the above definition of wages gratuity and certain other payments as part of wages has been excluded, however; it has been specifically provided in the present definition that the gratuity or over payments declared as wages by the Wage Board will also be treated as wages.
' Besides, para. (vi) of the Second Wage Board Award mentioned above, under para. (viii) night transport allowance in addition to the general transport allowance has been allowed to all such employees who are required to attend duty between 9-00 p.m. And 5-00 a.m. And the rates of this allowance per night to the various categories of the employees has been specified in para. 8 of the Second Board Award, provided that any employee if already receiving such allowance at more favourable rates, shall continue to receive the same, at the existing rates.
' By virtue of Third Wage Board Kward under paragraph 11(ii) and (iii) general transport allowance, night transport allowance has been allowed to all the employees who are required to attend duties between the 9-00 p.m. And 5-00 a.m., whereas; under sub-para. (3) of para. 11 general transport allowance (conveyance allowance) has been allowed to all the employees on the rates and for the grades specified therein. The benefits covered under paragraphs 11, 12 and 13 of the Third Wage Board Award have been declared as wages, under para. 14 of the Award. Similarly, under para. 13 of the Third Wage Board Award all the safeguards or privileges, benefits declared as wages already allowed under the decisions of the First, Second, and Third Wage Boards and not covered under the decision shall continue to be enjoyed by the newspaper employees; which accordingly confirms the validity of the benefits granted to the employees by the First, Second, and Third Wage Boards Awards and likewise the privileges, safeguards, benefits, etc. Regulating overtime, night duty ;provided under the relevant laws have also been protected to continue as may be admissible to such employees.
' The learned counsel for the petitioners has referred to the report of Wage Board Adviser to the Third Wage Board whereby he opined that there was no justification for allowing the night allowance @ 30% of wages as demanded by the employees because of the night shift duty being the normal feature of the employment for which they get their wages and that the night allowance did not fall within the purview of the term wages. It may be noted that the opinion of the Wage Adviser was not binding to the Board nor was it accepted in the final Award and the Wage Board in its Third Award granted specifically the night transport allowance to the employees, in para. No. 11
(ii) which reads as under: "Night Transport Allowance.---Para. 11(ii) night transport allowance may be allowed to all such employees who are required to attend duties between 9-00 p.m. To 5-00 a.m. At Rs,2.80 per night in case of grades V to VIII employees and Rs,4.25 per night for employees in grades Ito IV."
' The accrued benefits under the First Wage Board Award were not altered or changed which accordingly in our view remained intact even consequent upon the promulgation of the Second and Third Wage Boards Award, therefore, the journalists working for more than 14 nights in a month would remain entitled to be paid at the rate of 30% of their basic pay for each night of the employment over and above the 14 nights.
' Paras. 53 and 54 of the Fourth Wage Board Award confirmed that the benefits, privileges etc. Admissible in the earlier laws, continue to be enjoyed by the newspaper employees. Besides, the safeguards or privileges, benefits declared as wages allowed under the decisions of the First, Second and Third Wage Boards and not covered under the decision of the Fourth Wage Board Award and under the paragraph 85 of the Fifth Wage Board Award all the safeguards, privileges and benefits etc. Allowed under the earlier laws and not covered under this Award would continue to be enjoyed by the newspaper employees. Similarly under para. 79 of the Sixth Wage Board Award all such safeguards or privileges, benefits declared as wages already allowed under the decision of the First, Second, Third, Fourth and Fifth Wage Boards and not covered under the decision shall continue to be enjoyed by the newspaper employees, while under the caption fringe benefits para. 75 all the employees of the newspaper establishment have been declared to be entitled to the benefits of the general transport allowance, a night transport allowance who are required to attend duties between 9-00 p.m. To 5-00 a.m. Against the rates and grades specified in sub-paras. (i) and (ii); which benefits allowed under paragraph 75 have been declared as wages under para. 80 of the Sixth Wage Board Award.
' The learned counsel for the petitioners did not take any exception to the fact noticed in para. 8 of the impugned order wherein with reference to the declaration filed by the management it has been pointed out that in the relevant column of the declaration pertaining to the night allowance it has been mentioned by the management that 16 employees are receiving night allowance at the rate of Rs,40 and Rs,60 per night and this part of the declaration filed by the petitioners goes contra to the contention of the petitioners so convassed before us on the subject. Under paras. 12 and 13 of the Third Wage Board Award all the benefits allowed under the aforesaid paragraphs have been declared as wages, therefore, in this view of the matter as well, the objected allowance would fall within the definition of wages as defined under the Payment of Wages Act.
In our considered view the benefits granted under First Wage Board Award have been confirmed in the subsequent Awards on the subject which have been duly saved by the repealing Statute under section 24 of the Act and in addition to the saving clause of the repealing Statute by virtue of the provisions of subsection (2) of section 24 of the Act; section 24 of General Clauses Act, 1897 will have its full application in protecting anything done, appointment made notification, proceedings commenced or action taken under the repealed Ordinance except to the extent of inconsistency with the ,provisions of the repealed Act but in absence of such inconsistency, the benefits accrued to the employees pursuant to the decision of the First Wage Board under the Ordinance has been saved and confirmed by the subsequent decision of the Boards. The learned Implementation Tribunal rightly concluded that the benefits granted to the employees under the First Wage Board Award has been saved and continued. The issue agitated before the respondent No. 1 purely involved the legal questions which did not call for recording of the evidence by the respondent No. 1, therefore, the contention of the learned counsel for the petitioners that recording of evidence was essential, is not sound. The learned counsel also contended that the respondent No. 1 was not competent to entertain the claim of the union for the enforcement of the benefits granted to it, is also without any substance for the reason that under section 13 of the Act not only without prejudice to section 64 of the Ordinance (I.R.O.) the Tribunal is competent to try an offence punishable under section 55 of the Ordinance, if it relates to failure to implement any decision of the Board but competent and empowered under subsection (5) of section 13 of the Act to hold an enquiry for the purpose of implementing the decision of the Board and to exercise the same powers so far as may be required and with the necessary modifications as the Commission may exercise or follow for the purpose of adjudicating an industrial dispute under the Ordinance. The learned counsel for the petitioners in fact contended that the benefits granted to the employees of the newspaper establishment by the First Wage Board Award is neither admissible nor enforceable hence the reported judgment of the Hon'ble Supreme Court cited by the counsel in support of his contention i,e, PLD 1958 SC (Pak.) 153 is not helpful to him, as the quoted authority pertained to the validity of the Award given under the Industrial Disputes Act, 1947 with regard to the increase of wages was challenged. The other cited case-law 1993 PLC 574 pertained to the matter regarding the individual dispute brought before the Tribunal, also has no relevancy pertaining to the matter in hand for the reason that the present issue was agitated before the respondent No. 1 by the union of the establishment. As above discussed the respondent No.1 was the competent forum to adjudicate the dispute pertaining to the enforcement of the Wage Board Award, therefore, the case-law reported in PLD 1995 SC 66 has no application in the matter in hand nor of any assistance to the contentions raised before us by the learned counsel for the petitioners.
In view of the above discussion we are of the considered opinion that the employees of the Daily Jang, Quetta are entitled to the payment of the night shift allowance at the rate given in para. No. 7(ii) of fringe benefits of the First Wage Board Award due to these benefits having been confirmed, saved and continued under the repealing law and in the subsequent awards, thus, the respondent No. 1 has rightly held them to be entitled for such benefits with effect from 27-11-1988.
' For the foregoing reasons the petition being meritless is dismissed, with costs.