THE HIGH COURT OF SINDH, KARACHI

 

Constitution Petition No.D-86 of 2014

Constitution Petition No.D-88 of 2014

 

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Date                   Order with Signature(s) of Judge(s)

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Present:

 

Muhammad Ali Mazhar, J.

Abdul Maalik Gaddi, J.

 

The CEO, Daily Jasarat          

Azad Papers (Pvt.) Ltd.             ………….                         Petitioner

 

 Versus

 

 

The Federation of Pakistan

& others                                   …………                          Respondents

 

Syed Shoa-un-Nabi Advocate for the Petitioners.

Chaudhry Latif Sagar Advocate for Private Respondents.

Shaikh Liaquat Hussain Standing Counsel for Respondents No.1 to 3.

 

 

Date of hearing              :         19.10.2016

 

 

JUDGMENT

 

Abdul Maalik Gaddi, J. – We intend to decide captioned petitions by a consolidated judgment having similar facts and law.

 

2.       Through these constitution petitions, the petitioner has assailed the legality and propriety of the judgments dated 22.11.2013 passed by the learned Chairman, Implementation Tribunal for Newspaper Employees, Islamabad in Cases Nos.IT/S/580/12/C and IT/S/581/12/C, filed by the private respondents for recovery of dues and arrears under 7th Wage Board Award,whereby the learned Tribunal after examining the contentions of the parties allowed the aforesaid applicationsof private respondents and directed the petitioner to make their payments/dues, which are mentioned in the impugned judgments.

 

3.       The necessary factsout of which the present petitions arise are that Hamid RiazDogar was employed with the petitioner on 08.03.1995, as Bureau Chief, Lahore and worked with them more than seventeen (17) years,while Shahid Mian was employed with the petitioner on regular basis as Junior Clerk on 20.08.1977 and worked with them about thirty five (35) years. The case of the said private respondents is that the 7th Wage Board Award was passed and on the basis of which they submitted applications alongwith details of their dues to the petitioner for implementation of the said Award but the petitioner was reluctant to implement the same. According to the said respondents, they are claiming their benefits on the premises that other newspaper establishments have already implemented the said Award. Upon failure of implementation of the said Award by the petitioner, the private respondents filed their separate applications before the Implementation Tribunal for Newspaper Employees, Islamabadfor payment of arrears and salaries as per 7th Wage Board Award.

 

4.       The petitioner contested the said applications and filed their written statements in both casesstating therein that condition of 7th Wage Board Award were not bearable by the petitioner, however, according to the petitioner, during the period of service, the petitioner paid all salary benefits and other allowances as admissible under the law to the private respondents.

 

5.       The learned Tribunalafter framing of the issues, recording of evidence and documents on record passed the impugned judgments, which have been assailed through these petitions.

6.       It is contended by the learned counsel for the petitioner that the impugned judgments passed by the Implementation Tribunal for Newspapers Employees are against the facts and law and the said Tribunal has not appreciated the evidence and documents on record as according to him, during the period of service, the petitioner paid all salary benefits and other allowances as admissible under the law to the private respondents. He has further submitted that 7th Wage Board Award is not bearable by the petitioner.Per learned counsel, the respondent Shahid Mian filed an application in the Tribunal for the sum of Rs.8,94,024/- but in the very next paragraph, he had revised the claim to Rs.23,35,720/-, which according to him, was without justification and this amount was not properly considered by the Inspector appointed by the Tribunal,whereas, the claim of Hamid Riaz Dogar has also not substantiated through cogent evidence. However,during the course of arguments, learned counsel for the petitioner has reiterated the facts and grounds, which he has urged in the memo of petitions and prayed for allowing the petitions and set-aside the impugned judgments.

 

7.       Conversely learned counsel for the private respondents has supported the impugned judgments by arguing that the impugned judgments passed by the Tribunal are perfect in law and has been passed after taking into consideration all material facts involved in the case. Per learned counsel, it has not been shown that findingsareagainst the evidence on record. According to him, learned Tribunal has given cogent reasons in support of his findings, which is based on evidence and documents on record, therefore, the impugned judgments do not call for any interference from this Court. During the course of arguments, learned counsel has also reiterated the same facts and grounds, which he has urged in the commentsalready filed on behalf of private respondents in these petitions. However, under aforesaid mentioned facts and circumstances, heprayed that these petitions are liable to be dismissed.

 

8.       Learned Standing Counselhas placed his reliance on the comments filed in this case in which it is stated that the matter is between an employer and an employee of a newspaper. As a consequence of a decision of the Implementation Tribunal for Newspaper Employees, which is an independent forum mandated to decide matters arising out of Wage Board Award under the Newspaper Employees (Condition of Service Act), 1973. Therefore, the Ministry is not competent to interfere in the said matter.

 

9.       Arguments heard and record perused.

 

 

10.     It appears from the record that the private respondents had filed applications for payment of their wages and arrears under the 7th Wage Board Award alongwith details calculation of their outstanding dues against the petitioner before the Implementation Tribunal for Newspaper Employees. Petitioner/Management filed their written statements in which the employment of the private respondents with the petitioner was admitted, however, the stance of the petitioner was that the conditions made in 7th Wage Board Award were not bearable and the claims of the private respondents are not based on correct calculation. In order to prove their case, the private respondents appeared before the Tribunal and recorded their evidence stating therein the same facts, which they have urged in their applications alongwith calculation of their arrears against the management. On the other hand, on behalf of management,Muhammad Muneer, Bureau Chief Daily Jasarat Karachi at Islamabad appeared before the Tribunal. In his evidence, he admitted the employment of the private respondents with the petitioner. He in the cross examination admitted that Hamid Riaz Dogar is a Special Correspondent of the management. He also admitted that he cannot tell as to whether the management has implemented the 7th Wage Board Award or not. He also replied in cross examination that he is not aware about the payment of arrears of the private respondent. The private respondent Hamid Riaz Dogar has submitted the calculation and has claimed his wages as arrears since 01.08.2000 to 31.12.2012 of Rs.23,39,657/-. The said private respondent is admittedly employed by the management and his designation is mentioned in Schedule-II of the 7th Wage Board Award. There is no rebuttal on behalf of the management about the calculation of the said respondent. Even the management has not challenged the calculation submitted by the said respondent in his evidence. In the case of private respondent Shahid Mian, the stance of the management is that Shahid Mian submitted resignation on 22.10.2012, which was accepted on 23.10.2012. Shahid Mian claimed his arrears of wages of Rs.23,35,720/-. The management has taken the stance that the said Shahid Mian was not whole time employee of the management and is not entitled for any wages.

 

11.     Under Section 2(d)(ii) of the Newspapers Employees (Conditions of Service) Act, 1973, the designation of whole time non-journalist including Manger, Clerk and others, working in the office have been defined as Whole Time non-journalists. Appointment of Shahid Mian is admitted. He calculated his wages and submitted before the Tribunal. Management has not rebutted this claim in his evidence.

 

12.     Learned counsel for the petitioner contended that the 7th Wage Board Award was not bearable by the petitioner. There is no merit in this contention. Record shows that the petitioner has neither produced any material before learned Tribunal that financially he did not have the capacity to pay the arrears of the respondents as per 7th Wage Board Award nor lead any evidence in this regard. By merely saying that 7th Wage Board Award was not bearable by the petitioner, did not relieve the petitioner from his liabilities to pay the same to the respondents especially, when the 7th Wage Board Award is fully applicable and binding upon management under Section 15 of the said Act. As regard to next contention of the petitioner that 7th Wage Board Award is still sub-judice before the Hon’ble Supreme Court, therefore, Tribunal had no power/jurisdiction to entertain and decide the same. This contention of the petitioner is self-contradictory from his earlier contention. Record shows that this plea was not taken by the petitioner before the Tribunal in his written statement. It is well established law that Court cannot allow any party to take altogether new stance before the higher forum, which was not taken by him at the first instance. Apart from this, when we confronted from the learned counsel for the petitioner that have he any documentary proof which shows that 7th Wage Board Award is still sub-judice before the Hon’ble Supreme Court, he avoided to reply the same. On the other hand, learned counsel for private respondents draws the attention of this Court that the decision of 7th Wage Board Awardhas been upheld by the Hon’ble Supreme Court and the said judgment of the Hon’ble Supreme Court has been reported in the case of All Pakistan Newspapers Society and others v. Federation of Pakistan and other reported asPLD 2012 SC 1.

 

13.     The petitioner has concealed/suppressed the real facts from this Court, which alone is sufficient to disentitle him from discretionary relief. It is settled law that jurisdiction of this Court being discretionary and equitable in nature could be refused, if conduct of the party would disentitled him to grant of relief. It is an axiomatic principle of law that he who seeks equity must come with clean hands, reference, if any, can be made to the case of Inayat Khan and others v. Allah Ditta and others reported as 2007 SCMR 655.

 

14.     Here in this case, the petitioner has not approached to this Court with clean hands, therefore, isnot entitled to any relief on this ground alone.On meritswe have also examinedthe pleadings of the parties, documentsand evidence on recordas well asreport of Mazhar Hanif, Inspector Newspaper Establishments showing that the learned Tribunal has rightly decided the claims of the private respondents. For the sake of convenience, it would be advantageous to reproduce paragraph No.3 of the Report of Mazhar Hanif, Inspector Newspaper Establishments, which reads as follows:-

           

“3.     The management has not filed any account statement in rebuttal of the claim statement filed by the applicant. The stance taken by the management that the conditions of 7th wage board award are not bearable has no force at all. As for as available record is concerned the claim of the petitioner is correct as per category Metropolitan “A” of the newspaper however earned leave and medical leave record is available with the management and it can be verified by them.”

 

 

15.     It has been brought on record that the circulation of the petitioner’s newspaper falls within the category of Metropolitan ‘A’ of the newspaper. No objection has been filed against the report submitted by the said Inspector, which goes to un-rebutted. Respondent Shahid Mian has also filed application before the Tribunal for submission of better statement of his claim at the initial stage of the case clarifying his actual claim of Rs.23,35,720/-, which has also not been challenged/rebutted by the petitioner before the Tribunal. All these facts indicate that the respondents have successfully proved their cases.

 

16.     In view of above facts and circumstances of the case, no perversity, illegality and incorrectness have been found in the impugned judgments, learned Implementation Tribunal while passing the impugned judgments has appreciated all the facts involved in the case. No illegality has been pointed out. We, therefore, under the facts and circumstances of the case, find no merits in these petitions, which are dismissed alongwith pending applications, however, as per Nazir’s report an amount of Rs.8,94,024/- (Rupees Eight Lac Ninety Four Thousand Twenty Four only) is lying in the office as per order of this Court dated 02.03.2016. The said amount alongwith its profits, if any,be delivered to the private respondent Shahid Mian under receipt.

 

Karachi.

Dated: 11.01.2017

JUDGE

 

JUDGE

 

 

 

 

 

 

Faizan A. Rathore/