' This petition which starts the present litigation between the parties sets forth that:--
(a) vide: Ist Wage Board Award, notified through Notification dated 30-1-1961, the Journalists who worked for more than 14 Nights in a month, were required to be paid by the Newspaper Owners 30% of their Basic Pay as Night Allowance;
(b) that the subsequent Wage Board Awards announced, from time to time, maintained the above position;
(c) that, resultantly, the Employees of Daily Jang Quetta approached the Respondent- Management for the grant of the said Night Allowance, which was refused;
(d) and hence the Jang Employees Union, Quetta tiled a petition: Case No,IT-8-3/88 (Mr. Noor Muhammad Noor, General Secretary, Jang Employees Union, Quetta v. Daily Jang, Quetta) in this Tribunal for the implementation of the Award.
2. This Tribunal vide its order 16-11-1995 decided the said case in favour of the Employees of Jang Quetta, and directed the respondent management to pay the Night Allowance w,e,f, 27-11-1988.
3. The respondent challenged the same before the Balochistan High Court by tiling Writ Petition No,20 of 1996 titled:-- Independent Newspapers Corporation Pvt. Limited, Karachi through Muhammad Azhar, Manager, Daily "Jang", Quetta---Petitioner versus
1. The Chairman of the Implementation Tribunal for Newspaper Employees (Labour Wing) C.D.A. Block No,2 G-6, Islamabad and others---Respondents
4. The Balochistan High Court dismissed the petiton by its order dated 1 7-1997.1t was held:-- "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.
(Sd.) RAJA FAYAZ AHMAD, JUDGE (Sd.) MIR MUHAMMAD NAWAZ MIRZA, JUDGE, ' Announced: ' On 1st July, 1997".
5. Dissatisfied with the Order of the Balochistan High Court, the respondent (Daily Jang Quetta) approached the Supreme Court of Pakistan by tiling Appeal No,14-6 of 1997 titled:-- ' Independent Newspapers Corporation ' Pvt. Limited, Karachi Company incorporated under the Companies Ordinance, 1984, owner of Daily Jang Quetta through Muhammad Azhar, Manager Daily Jang Quetta---Appellant versus ' The Chairman of the Implementation Tribunal for Newspaper Employees (Labour Wing), C.D.A.
Block No,2, 1st Floor, Islamabad---Respondent ' for the redress of its grievance and prayed that the order of the High Court being illegal, without jurisdiction and void be set aside.
6. The Supreme Court finding no merits in the appeal dismissed the same by it's order dated 27-4- 2001. The relevant portion of the judgment is reproduced as under:-
10. From a bare reading of this paragraph, it is clear that it was intended expressly that all privileges, benefits and safeguards which were allowed under the decision of the First, Second and Third Wages Board and not covered expressly under this decision would continue to be enjoyed by the newspaper employees. The expression "declared as Wages" after the expression "benefits" in this para. Would not alter the clear intention that all those privileges and benefits were ordered to be continued to be paid/granted to the employees. Even the appellant and the learned counsel for the appellant were not in ambiguity in this respect that all privileges granted under the Third Wage Board Award were ordered to he continued to be paid under the Fourth Wage Board Award as at the leave granting stage, it was contended that since the said privileges or benefits were not allowed or continued by the Third Wage Board, therefore, on that score, the same were no longer payable to them, for the relevant period which was admittedly a period covered by the Fourth Wage Board Award. We are clear in our mind that by mere use of the expression "declared as wages" in paragraph 54 of the Fourth Wage Board Award, it was not intended that these benefits should be withdrawn, rather the intention as observed above was that these benefits should be continued.
11. For the forgoing reasons, we do not find any merits in this appeal which is accordingly dismissed with no order as to costs.
(Sd.) Sheikh Riaz Ahmad, J.
(Sd.) Munir A. Sheikh, J.
(Sd.) Syed Deedar Hussain Shah, J.
' Announced on 27-4-2001
7. The respondent thereafter, tiled review petition before the Supreme Court (Civil Review Petition No,282 of 2001 in Civil Appeal No,1406 of 1997).
8. The said review petition was also dismissed by the Appex Court by a short order dated 16-10- 2001. The same is to the following effect:-- "Sheikh Salah-ud-Din, AOR requests for adjournment stating that Mr. Asadullah Siddiqui, learned counsel for the petitioner has sent a request for the adjournment through Fax on account of his indisposition. It is not available on the record. Learned AOR states that he has a copy of the same.
He was asked to argue the case for it has been made clear by this Court to the learned counsel that in case adjournment is declined. AOR may be asked to argue the case. Learned AOR says that he cannot argue the case as he has not prepared the same."
2. We have gone through the review application and also the judgment under review and find that the petitioner, in fact, wants re-hearing of the case which is not permissible under review jurisdiction.
3. In our view, it is not a case of mistake apparent on the face of the record. Resultantly this petition is hereby dismissed.
(St.) Muhammad Bashir Jehangiri, J.
(Sd.) Munir A. Sheikh, J.
(Sd.) Rana Bhagwandas, J.
' Islamabad ' 16-10-2001
9. The respondent (Management of the Daily Jang) then filed a Second Review Petition (No,282 of 2001) for which there is no provision in Law. This review petition was resultantly' returned to the respondent by the Assistant Registrar, holding that the same was not entertainable.
10. The Assistant Registrar of the Supreme Court addressed the following Letter (No C.R.P.
No,282/2001-SCJ dated 24th November, 2001) to the respondent Daily Jang:-- ' You are informed that the above cited second review petition filed by you is not entertainable under the Supreme Court Rules, 1980.
' The same is returned to you in original being not entertainable.
(Sd.)
(NOORUL HASSAN KHAN)
Assistant Registrar (Civil) for Registrar.
11. Surprisingly the Respondent Jang filed an appeal against the said order before the Supreme Court. The appeal was also returned to the respondent on 23-1-2002 as the same was also held to be not maintainable under Order 17, Rule 5 of the Supreme Court Rules, 1980.
12. Letter No, CRP. 282/2001-Supreme Court dated 2nd May, 2002 reads:-- "With reference to his letter dated Nil received on 27-4-2002, this is to inform him that Civil Review Petition No,282 of 2001 came up for hearing before this Court on 16-10-2001 and the same was dismissed.
2. Sh. Salahuddin, A.O.R. For the petitioner filed a second review petition which was returned to him on 24-11-2001 being not entertainable. The . Said A.O.R. Then filed a civil misc. Appeal against the order of A.R. (C) which was also returned to him on 23-1-2002 being not entertainable under Order XVII. Rule 5, Supreme Court Rules, 1980.
(Sd.)
(NOORUL HASSAN KHAN)
Assistant Registrar (Civil).
' Noor Muhammad Noor, ' Calligraphist, ' Ex-General Secretary, ' Jang Employees Union. Quetta."
13. The Daily Jang and Press Workers Union, Rawalpindi (The petitioners now before this Tribunal) approached the Daily Jang by filing applications dated 1-11-2001 and 14-12-2001, with the request that they be also paid "Night Allowance" as per the orders of the Supreme Court dated 27-4-2001.
The said Order is to the following effect:-- "JUDGMENT ' MUNIR A. SHEIKH, J.--This appeal, by leave of the Court is directed against the judgment dated 1-7- 1997 of the High Court of Balochistan, Quetta through which Constitutional Petition No,20 of 1996 filed by the appellant against the order dated 16-11-1995 of respondent No,1 Chairman of the Implementation Tribunal allowing private respondents allowance at the rate of 30% of their basic pay for each night of employment over and above the fourteen nights, has been dismissed.
2. The dispute between the appellant and the private respondents relates to their (respondents) entitlement to claim allowance at the rate of 30% of their basic pay for each night of employment over and above the fourteen nights. This dispute arose in the manner that in the First Wage Board Award, the working Journalists in the night shift were also granted allowance in the following terms as contained in para-7 thereof:- "7(1)Working Journalists employed in the late night shifts shall be entitled to free transport from their employer 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% of their basic pay for each night of employment over and above the fourteen nights".
3. It appears that the allowance given at (1) above of this paragraph was transport allowance granted to the employees working in the night shifts whereas the allowance (ii) was admissible to those working Journalists who would work for more than fourteen nights in a month which was not night shift transport allowance. In the Second Wage Board Award sub-para. (iv) of para. 9 general transport allowance at a flat rate mentioned therein was granted to working Journalists which was similar to as given in para-5 of the First Wage Board Award mentioned above. In sub-para (viii) of the Second Wage Board Award instead of allowance granted to the Working Journalists in Para. 7(i) in the First Award night transport allowance was granted in the terms mentioned below:-- "(viii) Night transport allowance.---In addition to the General Transport Allowance, a night transport allowance shall be allowed to all such employees who are required to attend duty between 9-00 p.m. And 5-00 a.m. This allowance is to be paid at the rate of Rs,3 per night to each employee belonging to the Grades Ito IV and at the rate of Rs,2 per night to each employee belonging to the Grade V to VIII provided that any employee who is already receiving such allowance at more favourable rates, shall continue to receive it at the existing rates".
4. It appears that no provision was made in this awards as to the grant of allowance of the nature as had been allowed in Para. 7(ii) of the First Wage Board Award. In the Third Wage Board Award, general and night transport allowance was allowed and the demand by the working Journalists for grant of night allowance at the rate of 30% of wages was expressly raised. It was recommended that the same should be declined. It was, however, provided in para-13 of this Award that all privileges, safeguards, benefits, etc. Already allowed under the decision of the First and Second Wage Board Awards and not covered under the said decision, would continue to be enjoyed by the newspaper empoyees. *The respondents having not been paid the said allowance as provided in Para. 7(ii) of the First Wage Board Award filed appication before the Impementation Tribunal for a direction for the payment of such allowance. The Impementatin Tribunal alowed the said application through order dated 16-11-1995 and the appellant was directed to pay the said allowance with effect from 27-11-1988. The appellant challenged this order before the High Court of Balochistan, Quetta through Constitutional Pettion which has been dismissed through the impugned judgment dated 1-7-1997 against which this appeal by leave is directed.
' Underlining added for emphasis.
5. A limited question as to whether the Jouranists working *for more than fourteen nights in a month were entitled to claim allowance at the rate of 30% of their basic pay of each night of their empoyment over and above the fourteen nights is required to be decided. The case of the appellant before the Impelmentation Tribunal as also the High Court and before this Court as is manifest from the leave granting order was that since the Third Wage Board Award, the respondnets had been expressly declined the grant of the said allowance as such, they were not entitled to claim such allowance at the relevant time.
6. We have gone through the Third Wage Board Award and find that a claim was raised by the respondents that they should be paid the said allowance irrespective of number of nights in a month. The matter was discussed and it was reported/recommended that they should not be granted this allowance. However, while delivering the award, the Wage Board in para.13 provided that all privileges, safeguards, benefits, already allowed under the decision of the First and Second Wage Board Award and not covered under the said decision/3rd Wage Board Award would continue to be enjoyed by the employees.
7 . Learned counsel for the appellant submitted that though in the First Wage Board Award, Journalists working for more than fourteen nights in a month were ordered to be paid allowance at the rate of 30% of their basic pay for each night of employment but no such allowance was allowed to them in the Second Wage Board Award and since in the Third Wage Board Award, it was recommended expressly in the report to the authority that they should not be allowed such allowance at all, therefore, the same shall be deemed to have been declined expressly, as such, the expression used in para.13 of this Award/Third Wage Board Award that all privileges, safeguards, benefits etc. Would continue to be enjoyed by the Journalists if in respect thereof, nothing had been provided in the said award would not benefit the respondents, for in this award, it was recommended that the same should not be allowed to them.
8. We are afraid; the argument by the learned counsel for the appellant is devoid of any force. It is correct that the respondents raised demand before the Third Wage Board about not only continuation of the said allowance but also that the same should be paid irrespective of nature of working nights but it was recommended by the Reporting Authority that the same should not be allowed all but in the decision itself, this recommendation was not expressly approved, therefore, in terms of para-13 of this award, it shall be deemed to have not been covered by the same, therefore, all those privileges, safeguards, benefits etc, already allowed to the respondents in the First and Second Wage Board Award shall be deemed to have been allowed and continued, therefore, the allowance granted to Journalists working for fourteen nights at the rate of 30% of their basic pay for each night of employment over and above the fourteen nights would be deemed to have been approved and granted to the respondents, therefore, there was no illegality in the decision of the Implementation Tribunal and the impugned judgment of the High Court. *. Underlining added for emphasis.
9. Learned counsel for the appellant when faced with this difficulty tried to overcome it by saying that in the Fourth Wage Board Award of 1985 which was the award applicable at the relevant time and the period for which the said allowance was claimed, the same had been expressly done away with. He referred to paragraph 54 of the said award which provides as under:-- "54. All safeguards or privileges, benefits declared as wages already allowed under the decision of the First, Second and Third Wage Boards and not covered under this decisions shall continue to be enjoyed by the newspaper employees".
10. From a bare reading of this paragraph, k is clear that it was intended expressly that all privileges, benefits and safeguards which were allowed under the decision of the First, Second and Third Wages Board and not covered expressly under this decision *would continue to be enjoyed by the newspaper employees. The expression "declared as wages" after the expression "benefits" in this para. Would not alter the clear intention that all those privileges and benefits were ordered, to be continued to be paid/granted to the employees. Even the appellant and the learned counsel for the appellant were not in ambiguity in this respect that all privileges granted under the Third Wage Board Award were ordered to be continued to be paid under the Fourth Wage Board Award as at the leave granting stage, it was contended that since the said privileges or benefits were not allowed or continued by the Third Wage Board Award therefore, on that score, the same were no longer payable to the (sic) for the revant period which was admittedly a period covered by the Fourth Wage Board Award. We are clear in our mind that by mere use of the expression "declared as wages" in paragraph 54 of the Fourth Wage Board Award, it was not intended that these benefits should be withdrawn, rather the intention as observed above was that these benefits should be continued. Underlining added for emphasis.
11. For the foregoing reasons, we do not find any merits in this appeal which is accordingly dismissed with no order as to costs.
(Sd.) SHEIKH RIAZ AHMAD, J.
(Sd.) MUNIR A. SHEIKH, J.
(Sd.) SYED DEEDAR HUSSAIN SHAH, J.
' Announced on 27-4-2001.
14. It appears that the said applications filed by the Employees of the Jang Rawalpindi were not responded to by the respondent Newspaper Management. Therefore the petitioners (Workers Union, Rawalpindi) have now approached this Tribunal with the prayer that Messrs Independent Newspapers Corporation Pvt. Limited/Jang Group of Newspapers, through its Chief Executive (the Respondent), be directed to pay the Night Allowance to the Petitioners/Complainants w.e.f 27-11- 1988 *in accordance with the order of the I.T.N.E. Dated 16-11-1995 recorded in favour of the Jane Employees Union, Ouetta, against the Respondent newspaper and upheld not only by the Balochistan High Court (dated 1-7-1997) but also by the Supreme Court of Pakistan Order dated 27-4-2001.
15. The Tribunal directed the Respondent Management to file its written comments. Comments were filed on 28-3-2002. The relevant portion is quoted:-- "(3) That the claim of alleged night allowance pertains to an individual right and only accrued to person who falls within the domain and ambit of working Journalists as provided and envisaged under Clause (7)(ii) of the First Wage Decision. Therefore right if any is an individual right and the alleged Union/General Secretary have no right to espouse the cause of individual grievance of working Journalists.
(4) That in the First Wage Board Decision promulgated under the provisions of Working Journalists (Conditions of Service) Ordinance, 1960, under Clause (ii) of paragraph (7) a night shift transport allowance was granted to the working Journalists at the rate of 30% of their basic pay for each night of over and above the fourteen nights. It is misconceived to say by the applicant that all the units of the respondents had applied to the management for the payment of Night Allowance, first of all the applicant's assertion is misconceived, further the applicant has nothing to do with other units, it should be confined to its own case and not to plead the case of others. As a matter of fact, it is submitted that only this allowance was claimed by the union of Daily Jang Quetta first time.
During Fourth Wage Board decision. The application of the union of Daily Jang Quetta was allowed by this Honourable Tribunal and in paragraph (13) of the order dated 16th November, 1995 it was clearly mentioned as under:-- "In view of the above discussion, it is hereby held that the petitioners are entitled to the payment of Night Shift Thansport Allowance as admissible under paragraph 7 of the Fringe Benefits of the First Wage Board Award which was promulgated on 31st December, 1960 and came into effect on 1st January 1961. The employees of the newspapers, however are not entitled the payment of the said allowance from the date of the promulgation of the Award. The employees filed their petition objections to The declaration of the Management on 28th November, 1988. Therefore, they are entitled to the payment of the said allowance from 27th November 1988". *. Underlining added for emphasis.
(5) That only the Union of Daily Jang, Quetta had raised the plea of night allowance during the Fourth Wage Board decision in reply to the declaration filed by Daily Jang Quetta. The applicant's union has nothing to do with the union of Daily Tang Quetta or their objections to the declaration of the Fourth Wage Board decision. It is also a false statement on the part of applicant that the Management has ever said the other unions of its establishment to wait for the decision of Quetta union case, no such statement was given by the Management. The applicant has raised all such false assertions to link its case with Quetta union which is not sustainable and totally a wrong plea.
(6) That however, after allowing the application of Daily Jang union Quetta by this Honourable Tribunal, the Respondent had challenged the order in different Courts. The order of the Tribunal in Quetta case was affirmed by the Balochistan High Court and then Honourable Supreme Court which was dismissed on 16th October, 2001. Since the advocate of the Respondent was indisposed hence he could not attend the hearing. The Review Petition. No,282 of 2001 was dismissed in his absence on the ground that petitioner in fact wants re-hearing of the case which is not permissible under review jurisdiction.
(7) That after dismissal of review petition in the absence of advocate, the learned advocate Mr. Asadullah Siddiqui filed an application under Order XXXIII rule 6 of the Supreme Court Rules 1980 in which his inabilities not to appear in the case was fully mentioned with, the prayer that the order dated 16th October, 2001 may be recalled and an opportunity may be granted to him for making his submissions on the review petition in the interest of justice. *Photocopy of the application is enclosed herewith and marked as Annexure R-1.
(8) That the aforesaid application was filed in the Honourable Supreme Court but the learned Assistant Registrar (Civil) returned the same to the advocate on record vide letter dated 24th November, 2001 with the remarks that the second review petition is not entertainable under the Supreme Court Rules, 1980.
(9) That after the return of the aforesaid application by the learned Assistant Registrar (Civil), the Advocate for the respondent Company has moved an application under Order 5 of Rule 3 of the Supreme Court of Pakistan Rules with the prayer that order of the Registrar dated 24-11-2001 may be set aside, application under Order 33 under rule 6 may be entertained and counsel be graciously allowed to make his submissions in Review Petition. No,282 of 2001.
(10) That the application for setting aside' the Registrar's Order dated 24-11-2001 has been moved on the following grounds:--
(a) That the application under Order 33 rule 6 of the Supreme Court Rules was filed for recall of the Order dated 16-10-2001 whereby the review application was dismissed in the absence of the counsel for the appellant and it was not for the review of the Order dated 20-4-2001 passed in Civil Appeal No,1406 of 1997.
(b) That the application under Order 33 rule 6 is competent under the inherent powers of the Court to do complete justice between the parties and for granting an opportunity to the counsel for the appellant to make submissions in the Civil Review Petition No,282 of 2001 which has been decided in his absence due to illness.
(c) That it is most respectfully submitted that this Honourable Court has always favoured adjudication of disputes on merits and the interest of justice also requires that the appellant is provided an opportunity to make his submissions in the civil review petition. {{FOOT NOTE}} Underlining added for emphasis. {{FOOT NOTE}} For/on behalf of the Respondent ' Karachi ' Dated. 27-3-2002.
(Sd.) DR. ZIAUDDIN AHMAD ZIA, (Group Director HRD).
(Sd.) Advocate for the respondent."
16. A copy of the comments filed by the Respondent-Management was given to the Petitioners/Complainant to enable it to tile rejoinder, if any. The rejoinder was tiled on 22-5-2002 wherein it was submitted:-- ' REJOINDER BY THE APPLICANT ' 1 to 3. Paras 1 to 3 of the comments of the Respondent are not admitted as stated. Mr. Pervaiz Shaukat lawfully applied for the acceleration of that date. The respondent has never denied the position of the applicant as C.B.A. There is no other union in the Respondent establishment at Rawalpindi and the respondent had all along been recognizing the petitioner' as C.B.A. Section 25- A I.R.O. Specifically authorizes C.B.A. To move the Labour Court on behalf of individual.
' 4 & 6. As regards paras 4, 5 & 6 of the comments of the respondent, the same are denied being irrelevant. The judgment of different Courts have only interpreted the 1st Wage Board decision. As regards the applicability of Ist Wage Board decision it will apply of its own force.
' 7 to 11. As regards paras 7 to 11 of the comments of the respondents the same relates to different stages of the proceedings of the case in the august Supreme Court of Pakistan and a letter dated 2-5-2002 by the Registrar of the said august Court. (attached as Annexure ' AA' with this rejoinder) clinches the matter.
'
12. Para 12 of the comments is denied. The contents of the application are clear, specific and full of details, List of workers has been attached and the calculated amount has been shown/C.B.A. Has the right to maintain the application. The application is bonafide and is legal. The claim of the CBD on behalf of individual is proper and is maintainable. As regards the review before august Supreme Court, Annexure ' AA' is attached and is clear.
' It is, therefore, humbly prayed that the application No,IT- 138/ 2002/C/JJG be accepted with costs.
' DAILY JANG & PRESS WORKERS UNION (REGD.)
' Islamabad ' 22-5-2002 Through (Sd.) KHALID MEHMOOD), General Secretary.
17. Reverting now to the present petition, filed by the Daily Jang and. Press Workers. Union, Rawalpindi, dated, 18-1-2002, it may be stated that date of the petition filed by Mr. Noor Muhammad Noor, the then General Secretary of Daily Tang Workers Union, Quetta, with respect to the applicability of order of the I.T.N.E., dated 16-11-1995, w. e. f. 27-11-1988, the following points are to be determined:-- "Whether Mr. Noor Muhammad Noor, the then General Secretary of the Daily Jang Workers Union, Quetta had cited the then Management of the Daily Jang, Quetta as party or he had made the controlling company i,e, Independent Newspapers Corporation (Pvt) Limited as the respondent Management, who controlled all the newspapers/publications of Jang Group of Newspapers."
18. Chaudhry Sadiq Muhammad Warraich Advocate for complainant and Mr. Muhammad Ali Mazhar Advocate for respondent present and heard at length. I have carefully perused the file, Mr. Noor Muhammad Noor the then General Secretary of Daily Jang Workers Union, Quetta did not cite the Independent Newspapers Corporation Pvt. Limited as the respondent Management. In fact he had made Mr. Muhammad Azhar, the then Manager at Daily Jang, Quetta as the Respondent.
19. Had Mr. Noor Muhammad Noor, the then General Secretary Daily Jang Workers Union, Quetta cited the party as Independent Newspapers Corporation Pvt. Limited then there would have been no doubt as to the applicability of that Order in all the Establishments of the Company i,e,, the Independent Newspapers Corporation Limited (I.N.C.L) W.e.f. 27-11-1988, the date from which this Tribunal had allowed the relief to the Newspaper Employees of Daily Jang Quetta (applicants).
Since Mr. Noor Muhammad Noor failed to do so, therefore the date of applicability of the said order i,e,, 27-11-1988 would not apply to the present case.
20. For the reasons, enumerated in the order of the Apex Court of Pakistan dated 27-4-2001 in the Jang Quetta case (para No,4 above) I hold that although the Employees of Daily Jang, Rawalpindi are indeed entitled to the payment of "Night Shift Allowance" but only w,e,f, 18-1-2002, the date on whith they had filed this petition with I.T.N.E.
21. The rest of the claim of the petitioner does not merit consideration and is accordingly refused.
The petitioner/complainant may now approach the respondent-Management of Daily Jang for the payment of the Nigh Shift Allowance due to them w,e,f,, 18-1-2002. If the respondent-Management fails to pay the amount to the petitioners (Employees of Daily Jang Rawalpindi) within a period of 60 days, then they may approach this Tribunal for the execution of this order.
22. Costs to follow the events.