' This case was initiated suo motu and registered on 16-6-1993.
2. The Management of Daily "Jang", Rawalpindi (respondent) was directed by the then Hon'ble Chairman, I.T.N.E., Mr. Justice Mian Fazle Mahmood vide Notice No,IT-5-64/93, dated 16-6-1993 to furnish the following information in accordance with the provisions of section 13(6) of the Newspaper Employees (Conditions of Service) Act, 1973 regarding the implementation of the 5th Wage Board Award, announced on 18-10-1990 and made effective from 15-4-1990:-
(i) Whether Interim Relief has been paid to the Newspaper Employees;
(ii) the extent of the implementation of the 5th Wage Board Award, inter alia fitment, point to point fixation and grant of other payments and fringe benefits declared as wages by the Board;
(iii) whether the arrears arising as a result of Wage Board Decision, dated 18th December, 1990 have been duly paid by your Newspaper Establishment to the Newspaper Employees by or before 30-6-1991, as directed by the Board in its Award.
3. The Management i,e,, Mir Javed Rehman, Chief Executive, Independent Newspapers Corporation (Pvt.) Limited (respondent) vide its letter No,Nil, dated 10th July, 1993 submitted:--
(i) That the Interim Relief as per Order, dated 8th February, 1990 was paid to employees of the Daily 'Ring', Rawalpindi;
(ii) that the 5th Wage Board Award has been fully implemented as per prescribed fitment formula.
Fringe benefits allowed by subparagraphs (i) to (ix) of paragraph 80 of the 5th Wage Board Decision have been granted to the employees. Benefits allowed by the 4th Wage Board Decision in sub-paragraphs (x), (xi) of paragraph 49 and as well as in paragraph 50 were declared without lawful authority by the High Court stands confirmed by the Hon'ble Supreme Court in Civil Appeals Nos.154-K and 155-K of 1989. As such paragraphs 81 and 85 of the 5th Wage Board Decision need no compliance. Pension was provided to the employees vide paragraph 55 of 4th Wage Board Decision and as well as by paragraph 86 of the 5th Wage Board Decision. In view of the decision of the Hon'ble Supreme Court, dated 12th November, 1992, in aforementioned Civil Appeals, this facility cannot be extended to the employees;
(iii) the arrears arising under the Wage Board Decision, dated 18th December, 1990 have already been paid to the employees working in the Daily. 'Jang', Rawalpindi.
4. The reply received, as mentioned above, was accordingly sent on 19-7-1993 to the President and the General Secretary of "Jang Employees Union", Rawalpindi for their comments with the directions that their reply, if any, should reach this Tribunal within 15 days from the receipt of the said notice.
5. The Collective Bargaining Agent (C.B.A.) of the Daily "Jang and Press Employees' Union", Rawalpindi responded, promptly, and sent their reply to this Tribunal on 27-7-1993. For the sake of convenience the same is reproduced as under:--{{URDU TEXT}}
6. A copy of the reply received from the "Union" was resultantly endorsed to the Chief Executive, Daily "Jang", Rehman Plaza, Murree Road, Rawalpindi for his replication.
7. In response, on August 17, 1993, Mir Javed Rehman, Chief Executive, Independent Newspapers Corporation (Pvt.) Limited made the following submission:-- "The President of Daily Jang and Press Workers' Union, Rawalpindi has stated that point to point fixation was not implemented. The calculations according to Fitment Formula prescribed in paragraph 77 of the 5th Wage Board Award differs with the schedules of point to point fixations appended at the end of the decision. In 100 fixations of Metropolitan 'A' Category only 48 fixations are according to fitment formula. We, therefore, preferred to follow the fitment formula which is an integral part of Wage Board Award and also provides comparatively uniform relief for all the employees."
8. The Chief Executive, in the last paragraph of his submission also alleged:-- "A letter dated 14th February, 1991 in this regard was also written to Mr. Mushtaq Ahmed Sudhan, the then President of Daily Jang and Press Workers Union, Rawalpindi and Chairman of Supreme Council of C.B.A. Unions Jang Group (INCL) and Press Workers, who was also a representative of the Newspaper Employees in the 5th Wage Board (his name appears at Serial No,12 of the list of Members of the 5th Wage Board). In his reply to above letter which was received by us on 17th February,. 1991 he had expressed his full agreement with the contents of our above letter except the schedule of payment of dues. The dues were later on paid to all employees."
9. This case was fixed for arguments after the receipt of the replication filed by the Management/Respondent and the C.B.A., by my learned brother, Mr. Justice Mian Fazle Mahmood, the then sitting Judge of the Lahore High Court/Chairman, Implementation Tribunal for Newspaper Employees (I.T.N.E.) on 16-9-1993.
10. The case was, however, adjourned to 20-9-1993 and then to 21-9-1993 at the request of the C.B.A.
11. In 1994, Mr. Justice Mian Fazle Mahmood was succeeded by my learned brother, Mr. Justice (R)
Mian Dilawar Mahmood, as the Chairman, I.T.N.E., Islamabad.
12. This case once again came before His Lordship for arguments on 25-5-1995. The Hon'ble Chairman directed the Management/Respondent to file the prescribed declaration form as required under section 13(6) of the Newspaper Employees (Conditions of Service) Act, 1973.
13. In compliance with the said directions the declaration was filed on 30-11-1995. The Collective Bargaining Agent (C.B.A.) were objected and stated that the declaration form so submitted by the declarant was incorrect/incomplete. The Management/Respondent accordingly undertook to complete the same.
14. Thereafter, the case was adjourned, time and again, to allow for the completion of the requisite declaration form. The declaration form was finally completed and submitted to this Tribunal on 14- 4-1996. The Union raised the objection that the pay of the employees had been wrongly fixed by the management. The case was adjourned for seeking clarification. The Union, on the other hand, filed a list of the employees whose pay it was alleged, was fixed wrongly.
15. A perusal of the various order sheets would show that the case was adjourned for arguments on one pretext or the other, mainly because of the non-availability of the learned counsel for the Management namely, Mr. Muhammad Ali Mazhar, Advocate as it was submitted that he was either busy before the Lahore High Court, Lahore or the Sindh High Court, Karachi.
16. For the first time this case came before me on 16-8-2000 for hearing. The C.B.A./Union was represented by Mr. Ghulam Abbas Butt, President, assisted by Mr. Nasir Mahmood Chishti, General Secretary, Daily Jang and Press Workers' Union, Rawalpindi. The Management/Respondent was represented by Mr. Riffat Mahmood, Assistant Establishment Officer assisted by Mr. Muhammad Shahzad Anwar, Computer Operator, Daily "Jang", Rawalpindi.
17. After having heard the parties at length and going through the record of the case carefully, I had on 16-8-2000, recorded the following order:-- "After hearing the parties and going through the file, it appears that grievance of 22 employees had already been redressed, whereas the grievance of the remaining 10 employees has not been redressed so far. In this connection the order of my learned predecessor, of 27th May, 2000 is on the file. A perusal of the list (pages, 2, 3 and 4) would show that a few of these employees have been given increases of 12/13/14% whereas the rest of the employees were given increase of 15%.
' The management has been directed to let this Tribunal know, within one month, as to why 15% increase was not given to the said employees and would appreciate if the said employees are also given increase of 15%, so as to settle this dispute, pending for the last more than 7 years, once and for all.
' Adjourned. Date in office.
(Sd.)
(Justice (A) Jawaid Nawaz Gandapur), Chairman, I.T.N.E.
18. Since the matter could not be settled amicably, therefore, the case was fixed on 18-4-2001 for hearing the arguments. The parties were heard at length (more than three hours) and the judgment was reserved.
19. The crux of the matter, according to the Union, is that the formula for the fixation of pay as given in the 5th Wage Board Award (at page 23) and published in the official Gazette Extraordinary, dated January 13, 1991, under the heading "Fitment", is in contradiction with the Schedules mentioned in para. 88 and appended with the Award.
20. The contention of the Management/Respondent in paras. Nos.5 and 6 of their comments filed on 22-9-2000, on the other hand, is as under:--
(5) That the employees who had been granted 15% increase did not add any monetary impact or effect as even after granting them 15% increase on the sum called aggregate, they immediately fitted into their new basic pay. While the employees who had been granted less than 15% were also fitted in the same criteria in their new basic pay. Therefore, had these employees would have granted 15% increase on flat rate then they would have crossed from the stage of immediate next higher stage in the new consolidated pay scale and in such situation they should have been granted an additional/premature increment and in this particular circumstance, the ration of increase would be even more than 15% increase which is not permissible rather beyond the intentions, scope and spirit of the Award.
(6) That it is respectfully submitted that this is not the matter of few per cent. Increase, rather it is a matter of fixation of.The basic pay in the next higher stage immediately available after adding 10 to 15% increase that is why this discretion was left open for the employer to decide which employee should be granted what rate of increase to make him eligible for the new basic at next higher stage in the new consolidated pay scales. For the convenience and ready reference of this Hon'ble Tribunal, an illustration of fixation of concerned employees is stated below:--
(1) Mr. Adnan Muzaffar and (2) Mr. Azhar Sultan were working in Grade-III of the Pay scale under the Fourth Wage Board Award and their existing basic pay was at Rs,1,450 under Pay Scale (1350-100- -2850).
' After the promulgation of the Fifth Wage Board Award all pay scales were revised and their fixation was made as per fitment formula provided therein. Corresponding Pay Scale (2400--150-3900) in the basic pay of Rs,1,450 of the aforesaid employees, interim relief of Rs,800 was merged which made the sum called aggregate at Rs,2,250. The next higher stage available in the revised pay scale was at Rs,2,550, therefore, an increase @ 13% was added which made the basic pay of Rs,2,542. Consequently these persons were fixed at the stage of basic pay of Rs,2,550 which was next higher to Rs,2,542. Had they been granted 15% increase then there next stage for fixing their basic pay would be at Rs,2,700 and the net impact and effect of such increase emerged to be 20% which is against the intent of the Award."
21. To understand the Fitment formula, as given in para. 77(i) it would be necessary to reproduce the same here:-- Fitment-77: ' Without prejudice to the rights protected by the Newspaper Employees, as protected by the proviso to section 19 of the Act, the fitment of the present Employees in the Newspaper Establishments in the new pay scales applicable to their respective grades under this decision shall be made in the following manner:--
(i) The existing pay, and the interim relief granted by me by order dated 8-2-1990 shall be merged in respect of each employee separately into sum to be called the aggregate. A sum approximately equal to 10% to 15% of the said aggregate shall be added thereon. The employee's pay shall be fixed at such stage of the new consolidated pay scale as the next higher to the sum so reckoned.
The amount so arrived at shall be regarded as the basic pay of the employees concerned in the new pay scale."
(ii) ........
22. The Management/Respondent relied on the above Fitment formula whereas the C.B.A. (Union) placed reliance on paras. 64 and 88 of the 5th Wage Board Award which are to the following effect:--
(64) I am of the opinion that the existing pay of the employees with the addition of the relief amount announced by me by order dated 8-12-1990, and a further increase of 10% or so superseded to these, as in the Schedule-II appended hereto, would meet the ends of justice."
(88) The necessary Schedule (seven) are being appended at the end of this decision for clarification of its various provisions."
23. The contention/point of view/opinion of the Management and the C.B.A., as far as I could understand, is that the Union places reliance on the Schedules appended to the Award, whereas the Management relies upon the formula governing the fixation of pay as given in para. 77 of the Award.
24. It is apparent from the order-sheet dated 16-8-2000 of this Tribunal that the main grievances of the employees have already been redressed by the Management. The issue now relates to 10 employees only who were allowed an increase of 12% to 14% on the aggregate as per para. 77 of the Award, before fixing their pay in the new consolidated pay scales, prescribed by the 5th Wage Board Award. The Union, on the other hand, pleaded that the pay of these 10 employees be also fixed after making an addition of 15% on the aggregate of their existing pay and Interim Relief which they were getting before the announcement of the 5th Wage Board Award.
25. Keeping in view the abovementioned submissions of the parties and by reverting back to the Fitment formula, governing the fixation of pay of the Newspaper Employees, I am of the considered view that the Management has been purposely/intentionally given the discretion, by the Wage Board, to fix the pay of a Newspaper Employee keeping in view the following components:--
(1) The existing pay. meaning thereby that the monthly rate of basic pay to which an employee was entitled on the date of coming into force of the decision of the 5th Wage Board Award i,e,, 15th April, 1990;
(2) The Interim Relief granted under the 5th Wage Board Award vide: Interim Relief Order dated 8- 2-1990.
' These two components i,e,, existing pay and the Interim Relief are to be merged in respect of each employee, separately, into one sum to be called "the aggregate". In other words, in making an aggregate of an employee the merger into one sum of these two components is essential and cannot be avoided.
(B) The third component reads as under:--
(3) A sum approximately equal to 10% to 15% of the said aggregate shall be added thereon,"
26. The third component would, therefore, clearly mean that on the merged amount of components Nos.1 and 2 the allowed percentage (10% to 15%) shall be added by the Management/Respondent.
27. In other words the Award has not adopted a uniform rate/policy in the case of addition of a certain fixed percentage over the existing pay and the interim relief to which an employee was entitled on coming into force of the 5th Wage Board Award. The rate of percentage which thus appears in the 5th Wage Board Award is between 10% to 15%. The Award has accordingly given the Management the discretion to add a sum anywhere between 10% to 15%, over the aggregate arrived at/calculated above. The management has done so in an appropriate/equitable manner.
28It is observed that the addition made by the Management is neither less than 10% nor more than 15% and falls between the two limits in each case. Therefore, following the spirit of the Fitment formula, as contained in para. 77(i) of the 5th Wage Board Award, the Management has rightly exercised the discretion given to it under the 5th Wage Board Award.
29.Before parting with the case, I would like to add that the 5th Wage Board Award was made effective w,e,f, 15-4-1990 and was published in the official Gazette on 13-1-1991. This Tribunal has to implement the "Wage Board Award" as it is and has not been vested with the powers to modify or vary the same. It is for the successor Wage Board to modify or vary the same. This was actually done by the "6th Wage Board Award" to the extent contained therein.
30.It may be pertinent to observe that the Newspaper Employees' Unions were at liberty to challenge the provisions of the 5th Wage Board Award, which they felt were against their interest, before the concerned Courts, i,e, The High Courts and the Hon'ble Supreme Court. However they chose not to do so. The Newspaper Employees were duly represented by their nominated members on the 5th Wage Board. These members were well-aware of the Fitment formula and could have challenged the same. It is a well established principle that the law helps the vigilant but not always the indolent.
31. For the reasons enumerated above this Tribunal is of the considered view that it cannot go beyond the fitment formula as laid down in the 5th Wage Board Award regarding the fixation of pay of the Newspaper Employees.
32. This case, initiated suo moto, is devoid of substance. Accordingly it is decided that the action of the Management/Respondent of daily "Jang", Rawalpindi, is in accordance with the 5th Wage Board Award and merits no intervention.
33. The case stands closed. File be consigned to the record room after completion.