' This is an appeal against the decision dated 30-6-1977 of Punjab Labour Court No, 2 Lahore.
2. Abdulah Malik, respondent is a Chief Reporter of daily 'Imroze. He was not given his due increment of Rs, 60 per mensem in his service with effect from 1st July, 1975 and that in addition to this loss Rs, 430 were deducted from his wages for the month of November, 1975 without any rhyme or reason. He served a grievance notice on 16.12-1975 but no reply was received. He thereupon, on 24.1-1976 filed a petition under section 25-A of Industrial Relations Ordinance, 1969 before the Labour Court. The appellant not only resisted the petition on merits but also raise the following preliminary objections before the Labour Court "(1) That the respondent in not a workman and as such has no locus standi to file an application under section 25-A of Industrial Relations Ordinance, 1969.
(2)That the Wage-Board constituted under the Newspaper Employees (Conditions of Service) Act, 1973 has exclusive jurisdiction in the matter.
(3)That the respondent sent grievance notice on 16-12-1975 although the cause of action accrued to him on 1.8-1975 and as such the grievance notice was barred by time.
(4)That the decision of the Wage Board for journalists came into force w. e. f.
1.74974 and the existing pay of the respondent prior to new pay scale was Rs, 1,155 but by clerical mistake the respondent's pay was increased to Rs, 1470 and as such he was already drawing Rs, 315 in excess as compared to the new pay scale fixed for his category and in the circumstances the respondent has no action of any grievance under the provisions of law."
' These legal objections were disposed of vide order dated 21-7-1976 of Punjab Labour Court No, 1, which at that time had jurisdiction to entertain the petition. The Labour Court rejected the first three preliminary objection,. As regards preliminary objection No, 4 it observed that since it related to the merits of the case, it should be dealt with while deciding the case on merits. No appeal was filed against that decision. In April, 1977 this case stood transferred to Punjab Labour Court No, 2 in view of the change in territorial jurisdiction. Punjab Labour Court No, 2, vide decision under appeal, accepted the petition in the following terms :- "So I direct the Management that his yearly increments should be awarded to the petitioner and the balance from 1-7-76 up-to-date may be paid to him elongwith Rs, 430 wrongly deducted from his wages within two weeks of the date of announcement of this order."
3. Aggrieved by the above decision, Progressive Papers Limited through its Chief Executive, appellant have preferred this appeal.
4. The learned counsel for the appellant contended that, even though no appeal was filed against the decision dated 21-7-1976 of Punjab Labour Court No, 1 on preliminary objections when it was given, he had a right under the law to challenge that decision in this appeal. The point for determination is as to whether that decision can now be challanged even though the appeal against the interim decision on preliminary objections has become barred by time.
5. In the case of Banda Khan v. Hakim Mohammad lahaq, it was observed :- "One last point made by the learned counsel for the respondent may also be briefly noticed. Mr. K.
A. Ghani argued that once the defence of a tenant is struck off under subsection (6) of section 13 of the Ordinance, the only order that can be passed in the mutter is the one directing him to put the landlord into possession of the property, and, therefore, the tenant could not be heard even in appeal against that order. The argument certainly has the merit of being ingenious, but it has no substance. When the question raised in the appeal is precisely whether the defence was legal and properly struck off, then to say that the tenant is debarred from raising that question is, to say the least, a very curious position to take. It is well established that if the legality of an order is being challenged, then for the purpose of those proceedings in which the challenge is made, the order is sub judice and open to scrutiny, provided, of course that there is no other legal bar in the way of the Court to examine the order in question."
6. In the case, of Mian Mohammad Abdullah v. Sheikh Nawab Din it was observed :- "The appellant has next contended that inasmuch as the aforesaid interlocutory order for deposit of rent was appealable and no appeal bad been preferred from it and the appeal having become barred by time, the respondent could not legally challenge the order of deposit in an appeal from the order of eviction. The contention is untenable, Firstly because the respondent is not compelled by law to appeal from ally interlocutory order. He can wait until the final decision and then appeal against it on all such grounds at are available to him. The interlocutory order, no doubt is an order constituting the final decision, and it seems unreasonable that its legality cannot be challenged-in an appeal from the final decision." {{BLUR PAGE}}
7. In the case of GhOont Hussain and othw v. Khan Mohammad and others, it was observed "No appeal appeal was filed in this case against the preliminary decree. A preliminary decree for partition establishes the right of the plaintiff nalition. In this case even a Commissioner for partition had been eppointed by the preliminary decree. By virtue of section 97 of the C. P. C. n pasty as debarred from challenging the correctness of a prellrninre 4ccrr.t., Lel an appeal against the final decree. So ordinarily the present appellants could not go behind the preliminary decree and show that it was wrong. The position, however, is different when there was no jurisdiction to pass the preliminary decree at *IL If this preliminary decree was produced in collateral proceedings it would have to be disregarded on the ground that it was passed without jurisdiction. I do not think its effect can be different in the same proceedings. Had it been a matter of some doubt on the question of fact I would not allow the objection to be raised at all. The necessary facts are, however,1 2 3 admitted in the plaint and it is apparent that if the final decree be without jurisdiction the preliminary decree is necessarily so."
8, In the case of The Province of East Pakistan v. Mohammad Hassain bibs it was held that the entire matter is reopened and becomes sub jutitee on filing of the appeal arid has to be decided in accordance with the law then prevailing.
9. In the light of the-above decisions, I hold that the interim decisionlA d 21-7-1977 can be challenged in the main appeal. The learned counsel) the appellant reiterated the preliminary objection taken before the Labour rtY -,e'..1rhinary Objection No, 1.-Tbe respondent who is a Chief "_::;..o.Rer of daily %wow' is a newspaper employee within the meaning of viciton 2(d) (1) of Newspaper Employees (Conditions of Service)
Act, 1973, under which all newspaper employees are workman, except those mentioned in section 18 of the said Act, which reads as under :- {{BLUR PAGE}} ' Ordinance XXIII of 1969. To Apply to Newspaper Employees.-Subject to the other provisions of this Ordinance, the provisions of the Ordinance shall apply to, or in relation to, newspaper employees, as they apply to, in relation to, workmen within the meaning of the Ordinance ' Provided that nothing in this section applies to a newspaper employee-
(I) who is employed mainly in a managerial or administrative capacity, or
(a) who, being employed in a supervisory capacity, performs, either because of the nature of duties attached to his office or by reason of the powers vestted in him, functions mainly of a managerial nature.
' There is no evidence on the record to prove that the respondent was employed mainly in a managerial or administrative or supervisory capacity. The onus was on the appellant to prove that the respondent was not a workman, which he failed to prove. Since the appellant failed to discharge the onus placed upon him, the presumption would arise In favour of the respondent. I am fortified in this view by the judgment in the case of Jasmine Cotton & Silk Mills, Karachi v.
Shujahat Ali.
10. In view of the above, this preliminary objection was rightly dismissed by the Labour Court.
' Preliminary Objection No, 2.-The Wage Board was constituted under section 9 of the Newspaper Employees' (Conditions of Service) Act, 1973 in order to fix the rates of wages in respect of newspaper employees. It had nothing to do with the grievance involved in the present case.
Therefore, this objection was also rightly rejected.
' Preliminary Objection No, 3.-From the perusal of the record I find that the respondent was not given his" due increment of Rs, 60 per mensem in his wages with effect from 1st July, 1975. This came to his knowledge on 1.8-1975 when he was not given his due increment, therefore, the cause of action accrued to him for the first time from that date when he was not given his due increment.
In the petition it was alleged that the respondent had regularly been requesting the appellant to restore his annual increment and the appellant had been assuring him that the withheld increment would be restored to him. This is evident from para 2 on merits of the written statement, in which it was stated that the matter was under investigation by the Management and if it was found later that the respondent was entitled to an increment with effect from 1-7-1975, the same would be paid to him from the said date. In view of the above, the contention of the respondent that he had been agitating the matter before the Management to restore his increment and the Managemeat had been assuring him that the withheld increment would be restored, stands proved. Therefore, the petitioa of the respondent would be within time. This preliminary objection is accordingly rejected.
11. On merits I find that the appellant has no case at all. The respondent was entitled to his annual increment with effect from 1-7-1975, which bag been unjustly withheld and that the deduction of Rs,4 5 430 from his wages for the month of November, 1975 was uncalled for. In this connection the following statement of Mr. Abdur Ranf', Incharge Establishment, who was the solitary witness on behalf of the appellant, is relevant t- " Yearly increment according to the wage Board Award was not given to the petitioner.
' This is correct that the petitioner was drawing Rs, 1,155 as basic wages before the implementation of the Wage Board Award. After the Wage Board Award pay of an employee was fixed after the inclusion of Interim Relief and Dearness Allowance. It is also correct that the pay of the petitioner was fixed as Rs, 1,470 p. m. By including interim relief and dearness allowance. In this respect there was no clerical mistake committed by the establishment in the case of the petitioner."
' Thus from the above it is clear that there was no clerical mistake as alleged by the appellant.
12. I accordingly, uphold the decision of the Labour Court and dismiss the appeal. PLD 1964 Kar. 61 1971 SCMR 336 PLD 1954 Lah. 655 PLD 1965 SC 1 1974 PLC Note 28 at p. 17