MUNIR A. SHEIKH, J. -- This appeal by leave of the Court is directed against the judgment dated 5.1.1998 of the High Court of Sindh, Karachi by which Constitutional Petition No. D-1857/1997 filed by the appellant against the judgment dated 17.9.1997 of the Sindh Labour Appellate Tribunal of acceptance of appeal of respondent No. 3 and' his reinstatement in service, has been dismissed.
2. The facts of the case emerging from the submissions made by the learned counsel for both the parties which are not in dispute, are that respondent No. 3 was employed by the appellant as Sub- Editor on contract basis through contract of service executed on 24.6.1992 between the parties which was to take effect from 1st July, 1992 and was for a period of one year including one month earned leave which according to its terms was also subject to annual renewal. However, on the completion of one year, another contract was executed on 11.7.1993 for a further period of one year on the expiry of which third similar contract was executed on 31st July, 1994 for a period of one year with effect from 16.7.1994. The last similar contract was executed on 1st July, 1995 for a period of one year i.e., 11 months plus one month earned leave with effect from 1st July, 1995, the date of the execution of agreement.
3. According to the appellant, the services of the respondent No. 3 were kept on contract basis at his own request, for according to him it was more beneficial as regards emoluments and other dues as compared 'to those who were absorbed permanently in-the service as Sub-Editors in Grade-ill by the Wage Board Award. The contract contained a stipulation that the services of the respondent No. 3 could be terminated on one month notice from either side without assigning any reason.
4. The appellant through notice dated 23.5.1996 terminated the services of respondent No. 3.
Feeling aggrieved, he filed a grievance petition. Before the Labour Court which was contested by the appellant. The Labour Court through judgment dated 29.5.1997 dismissed the said grievance petition by upholding the plea of the appellant that respondent No. 3 was not a permanent workman/employee of the appellant and being a contract employee as such termination of his services being in accordance with the terms and conditions of his service contract was not illegal.
5. Feeling dissatisfied with the judgment of the Labour Court dated 29.5.1997, respondent No. 3 filed appeal before the Labour Appellate Tribunal which was accepted through judgment dated 17.9.1997. It was held that though respondent No. 3 was appointed from time to time through contract but he had acquired the status of a permanent workman on account of his continuity of service without break from the date of his initial employment in 1992, therefore, his services could not be terminated without assigning good reasons.
6. The appellant assailed this ,judgment through Constitution Petition No, D-1857/1997 before the High Court of Sindh, Karachi which has -been dismissed through the impugned judgment dated 5.1.1998 against which this appeal by leave has been directed.
7. Leave was granted in the following terms:- "Mr. M.L. Shahani, learned counsel for the petitioners has invited our attention to the second proviso to Section 4 of the Newspaper Employees (Conditions of Service) Act, 1973 and argued that even in case the Tribunal was of the view that on account of his length of service, the respondent was a permanent workman and entitled to a notice as required by Section 4 his services could nevertheless be terminated by the employer at any time on payment of wages in lieu of such notice. Therefore, according to the learned counsel, the judgment of the High Court is liable to be reviewed on this ground alone.
The second contention of Mr. Shahani was that the respondent No. 3 on being informed through notice that his service contract was not to be renewed, accepted the same and vide his reply dated 24.5.1996, requested for settlement of his dues. Consequently, the conduct of the said respondent disentitled him to claim relief of reinstatement .
As the questions raised by the learned counsel require consideration, leave is granted."
8. It may be mentioned here that terms and conditions of service of a newspaper employee as to termination of his service are governed by the provisions of Newspaper Employees (Conditions of Service) Act, 1973 and West Pakistan Industrial and Commercial Employment (Standing Orders)
Ordinance, 1968 so far as they are not inconsistent or in conflict with the provisions of the former Act by operation of Section 17 of the said Act barring those provisions, of the said Ordinance the applicability of which has been excluded to the newspaper employees viz Clauses (1) and (2) of Standing Order No. 12.
9. The submission made by the learned counsel for the appellant that respondent No. 3 being a contract employee, his services could be terminated in terms thereof without assigning any reason is of no avail in view of unambiguous, clear and overriding terms of Section 19 of the Newspaper Employees (Conditions of Service) Act, 1973 (hereinafter called the Act) which, provide that the provisions of the said Act would take effect notwithstanding anything contained to the contrary in the agreement between the employer and the employee. Section 4 of the Act governs the matters as regards termination of service of a newspaper employee which does not make any distinction between a temporary workman, a permanent workman or a contract employee, therefore, order of termination of service of an employee has to be tested on the touch stone of the provisions of this Section and the same is justiciable if challenged by the employee before a Court of law.
10. It would be advantageous to reproduce Section 4 of the Act in extensor- "Section 4 of Newspaper Employees (conditions of Services), Act, 1973. - The services of a newspaper employee shall not be terminated by a newspaper establishment without good cause shown, through a notice, in writing, of, such termination--
(a) of one month, if the total period of continuous service of the newspaper employee with the newspaper establishment is not less than three months but less than two years;
(b) of two months, if the total period of such service is not less than two years but less than three years; and
(c) of three months, if the total period of such service is not less than three years: Provided ,that if the order of appointment of the newspaper employee provides notice of a longer period, notice shall be given in accordance with the terms of such order: Provided further that the services of a newspaper employee may be terminated at any time on payment of wages in lieu of the requisite notice."
It is clear from its terms which have been expressed in negative mandate that services of a newspaper employee shall not be terminated by the Newspaper Establishment without good cause shown, through a notice in writing. It is, therefore, mandatory requirement of this provision that the decision to terminate service of newspaper employee must, be based on good cause.
After such a decision had been taken, the termination would be made through a notice. After such a notice of termination is served, the provisions of Clauses (a), (b) and (c) of the Act would come into play in view of which such an employee would not stand relieved immediately from his assignment before the expiry of the periods mentioned in these clauses which are determinable with reference to total length of continuous service of such an employee. However, by virtue of second proviso to This section, it has been made permissible for the employer if he wanted to 'relieve the employee immediately that instead of waiting for the expiry of the period applicable to such, an employee to pay him the pay in lieu thereof.
11. The argument of learned counsel for the appellant is that the legal effect of the second proviso is that the employer is also relieved of the requirement of making decision of termination on good cause. We are afraid, the argument in our considered view is not sustainable. If this argument is accepted, not only the main provision of Section 4 to which this second proviso is attached would be rendered redundant but the entire Act would become ineffective and the purpose for which the same was enacted i.e., to, safeguard and secure the newspaper employees against the arbitrary and whimsical order of termination by the Newspaper Establishment would also fail and frustrate.
According to the well established principles of interpretation of Statutes and in particular proviso attached to the main section is that the same operates as an exception and cannot render redundant or ineffective the substantial provisions of the main section. Notice mentioned in this section and in lieu thereof payment of salary for the period of notice does not relate to the earlier provisions of Section 4 of the Act which require negative command as observed above that services of newspaper employee shall not be terminated except on good cause.
12. The next question arises as to whether Section 4 the Act in relation to termination of service of the employee would govern the matter or Order 12(3) of the West Pakistan Industrial and Commercial (Standing Orders) Ordinance, 1969 while determining the question whether the decision of termination of service is sustainable. The said Order is also reproduced below in extenso for facility of reference:- "The services of workman shall not be terminated, nor shall a workman be removed, retrenched, discharged or dismissed from service, except by an order in writing which shall explicitly state the reason for the action taken: In case a workman is aggrieved by the termination of his services or removal, retrenchment, discharge or dismissal, he may take action in accordance with the provisions of Section 25-A of the. Industrial Relations Ordinance, 1969 (XXIII of 1969) and thereupon the provisions of the said section shall apply as they apply to the redress of an individual grievance."
13. Before entering upon the discussion on the above question, it may be mentioned that according to Section 17 of the Act, provisions of Order 2 and Clauses (1) and (2) of Standing Order 12 (West Pakistan Industrial and Commercial (Standing Orders) Ordinance, 1968 are not applicable to the newspaper employees and the other provisions of the said Ordinance have been made applicable only if they are not in consistent or in conflict with the provisions of the former Act.
Since application of sub-section (3) of Order 12 of Ordinance, 1968 has not been excluded to the newspaper employees, therefore, this provision of the said Order would continue to apply to them unless the same is found to be either in consistent or in conflict with any provisions of the Act. A comparative study of both these provisions as reproduced above would show that according to Order 12(3) of the West Pakistan Industrial and Commercial (Standing Orders) Ordinance, 1968, the employer is required to record reasons in support of, decision to terminate, etc., the services of workman without describing as to what should be the grounds on which the same could be made whereas in Section 4 of the Act, it has been provided that termination cannot take place except on good cause which provides some guidelines to the employer as regards grounds on which the same could be made. To this extent, both the provisions are ,in consistent with each other.
Therefore, by virtue of Section 17 of the Act, Section 4 of the Act shall prevail.
14. Having found that according to Section 4 of the Act, the services of the respondent could not be terminated without good cause, learned counsel for the appellant when questioned as to whether there is any material available on the record to ascertain the grounds on which services of the respondent was terminated stated that there is none. He, however, argued that in a given case where the employee knew, and was made known at the time of joining the services the ground of his termination, it was not necessary to repeat the same in the decision of termination of service.
His argument was that when the respondent was employed for a period of one year, it was made known to him that after the expiry of the said period, his services would be terminable which should be taken as a ground of termination of his service.
15. The submission has no merits. As observed above, the mandatory requirement of Section 4 of the Act is that order of termination must be based on good cause. Mere fact that an employee was given service for a fixed period under the contract and expiry of that period, as argued, being the basis of termination of service could be justified if it is held that it is a good cause with which we are unable to agree. Since it is a question of termination of service of an employee, therefore, the reasons of his termination which may constitute good cause primarily, among others, should relate to the performance of his duties and conduct and other cause of similar nature and not that his period under the contract has expired. If it is allowed to be used by the employer for termination of his service, the same would amount to nullify the Provisions of Section 4 of the Act.
16. Learned counsel for the appellant submitted with reference to letter dated 24.5.1996 followed by letters dated 30.5.1996 and 30.6.1996 written by the respondent raising demand from the appellant to settle his accounts and payment of his dues which estopped him from challenging the order of termination from service. This argument has been repelled by the Sindh Labour Appellate Tribunal and the learned Judges of Division Bench in High Court in the impugned judgment by relying upon a chain of reported "judgments in which it was held that mere acceptance of dues by the workman whose services had been terminated did not operate as estoppel against him and debar him from seeking his legal ramedies against the order of termination of service. In those cases, the workmen after receiving order of termination had received all the dues payable to them according to their terms and conditions of service and inspite of that it was held that they were not debarred from seeking legal remedies available 'to them against the order of termination of service. In the present case, perusal of the letters issued by the respondent to the appellant shows that the respondent did not demand any benefit or amount which Was over and above the benefits and amount payable to him under the terms and conditions of the service contract. If actual receipt of the dues by a workman whose services had been terminated was held not to operate as estoppel against his right of seeking legal remedies against the order of termination, how could mere demand by the respondent that his dues should be paid after settlement of accounts could be held to operate as estoppel against him which according to him had not yet been settled according to his satisfaction and full amount not paid to him, therefore, the respondent had a right to approach the Labour Court for redressal of his grievance against the act of termination , of service of the appellant.
17. Learned counsel for the appellant lastly argued that under Sub-Clause (2) of Section 19 of the Act, those contracts of service of the employees which were more beneficial to them were saved from the operation of the provisions of the Act. He argued that the amount of pay payable under the contract of service 'of the respondent was higher than the amount of pay payable to employees of his status, therefore, in this manner, it was more beneficial to him, as such, the terms thereof relating to termination of service should be enforced.
18. We are afraid, the argument in our view is plainly unsound as it is based on the wrong assumption as if the terms of the agreement of a newspaper employee, under sub-section (2) of Section 19 of the Act are to be compared with the terms of the agreement of the other employees in the same category in order to ascertain whether the same grant him rights or privileges in respect of any matter which is more favourable to him. Whereas the terms of this provision of the Statute are clear and unambiguous that the same area to be compared with the rights and privileges "to which an employee is entitled under the Act, therefore, keeping in view this criteria, the terms of the agreement of the respondent with the appellants as regards termination of service cannot be regarded more favourable to him, for under Section .4 of the Act, his services could not be terminated except on good cause whereas a right is being claimed under the agreement that his services could be terminated at any time without any reason merely because the period for which he was employed, had expired.
19. For the foregoing reason's, this appeal has no merits which is accordingly dismissed with no order as to costs.