P L D 1967 Supreme Court 179 (PLP)

CORNELIUS, C. J.‑The appellant in this case is the Colony Textile Mills Ltd., which in the year 1962, acquired the establishment of the Civil and Military Gazette, Lahore, a leading English daily paper and thereafter continued to produce and publish it until the 3rd September 1963. The principal respondents are 12 working journalists, who were employed by the appellant‑Company to work on the staff of that paper. Each had a separate contract and these contracts had not expired when on the 3rd September 1963, the appellant Company, without previous notice stopped publication of the Civil, and Military Gazette on account of having sustained continuous financial losses in the enterprise. No action was taken to terminate the services of the 12 journalists for a cansiderable period. Being dissatisfied with the conditions under which they were being retained, on the 20th September, they sent a strike notice to the Management making a number of demands. The first was that the newspaper should be restarted, but this demand was later withdrawn. The other demands related to payment of various dues. The Conciliation Officer commenced proceedings, whereupon the employer filed a written statement in which it was inter alia objected that there was is fact no "industrial dispute" between the .parties, as the publication of the newspaper had been stopped permanently or the 3rd September 1963. From that date onward there was not the slightest possibility of its being revived. The enterprise had been closed down permanently and irrevocably for reason; unconnected with any industrial dispute or with the terms and conditions of the service of the employees. The claim was that as from the 3rd September 1963, the connection of employment had ceased to exist between the appellant‑Company and the aforesaid journalists. This written statement was filed on the 8tb October 1973. The Conciliation ‑ Officer however continued with the proceedings and on the 18th October 1963, issued a certificate of failure, thereby enabling the matter to be brought before a Court under the Industrial Disputes Ordinance, for adjudication and determination of the dispute. Such an application was made by the journalists and on the l8th November 1963, the Industrial Court issued summons to the employer for a hearing on the 30th January 1964. On the 9th October 1963, the journalists served another strike notice on the employer‑Company, making certain additional demands, viz., (I) to resume the delivery of newspapers and periodicals, which had previously been supplied to the editorial stall', (2) to allow the journalists to use the library, (3) to supply reference books, (4) to re‑appoint two peons to attend on the Editor and the staff and (5) to continue to pay the journalists their wages on or before the 7th of each month, as required by law. The Conciliation Officer issued summons and the employer‑Company raised the same objections as before to his jurisdiction, which being overruled, another certificate of failure was issued on the 21st December 1963. In the meantime, on the 19th December 1963, the employer Company by letter, informed the 12 journalists that their employment had been terminated with back effect from the 3rd September 1963, when the newspaper had been closed down and they were consequently not entitled to receive any salary or other remuneration and further that they were not expected to attend the office. At the same time, the employer‑Company expressed its willingness to settle with them the reasonable compensation due to them on account of the pre‑mature termination of their contracts. This was followed by an application to the Industrial Court by the journalists making a complaint of a criminal offence against the employer‑Company for illegal termination of their services during the pendency the industrial dispute, without the permission of the Conciliation Officer of the Court. Before any further proceedings could take place in the industrial Court, the employer‑Company on the 3rd January 1964, moved a writ in the High Court for quashment of the two certificates of failure issued by the Conciliation Officer and of all consequential orders. The ground taken was that there was no "industrial dispute" which could be brought before the Conciliation Officer for conciliation, or later: before the Industrial Court. The question which arose for decision was whether at the time when the certificates were issued, there was in existence a condition of employment between the Colony Textile Mills Ltd., and the journalists in question. The High Court came to the conclusion that at the time of the issue of the first strike notice, the condition of employment was still in existence. Despite the stoppage of the publication of the newspaper on the 3rd September 1963, the establishment of the press had not been dissolved, but the machinery and assets‑in‑trade had remained intact. There was no complete and effectual winding up of the business of the printing and publication of the paper until long after. Therefore, the industry must be held not to have been closed down on the 3rd September 1963. Reference‑ was made to the following facts in support of there conclusions. On the 18th September 1963, notices were issued by the Company to the staff concerned in this case requiring them to attend punctually in office. This was interpreted as an indication that the condition of master‑and servant was still maintained despite the stoppage of publication of the newspaper. On an intermediate date, namely, the 7th October 1963, which was . after the strike notice of the 20th September 1963, a letter was issued to one of the journalists in question, Mr. Waheed‑uz‑Zafar, to‑ the effect that as the newspaper had ceased publication, therefore "your special allowance of Rs. 209 for additional duties of Acting News Editor is hereby withdrawn." It was added moreover "henceforth you will get your salary against your .actual post of Shift Incharge." Moreover, there was an allegation by the journalists that following the closure of publication of the japer, there had been talks between the Management and themselves and it was then suggested that either the Civil and Military Gazette might be revived or another journal might be started, or in the alternative, they might be paid compensation for the balance of the period of their contracts. Apprehending prejudice to their interest as a result of these talks, these employees formed a Union of their own on the 19th September 1963 and on the following day issued the strike notice. Relying on these matters and holding that the actual termination of the services of the journalists took effect from the 19th December 1963, when the letter mentioned . above was issued to them (informing them that their contracts had ended with the stoppage of the newspaper) the learned Judges in the High Court came to the conclusion that the demands in the strike notice of the 20th September 1963, were made at a time when the industry had not ceased to exist, but the condition of employment continued and there was jurisdiction in the Industrial Court to deal with the demands of the journalists as an "industrial dispute".. Accordingly, it was held that the certificate of failure issued on the 18th October 1963, was validly granted under lawful authority, but as to the second certificate, the finding given was that the demands in the second notice of the 9th October 1963, were competent only in relation to an existing industry , and that they did not "remain a live issue, but abate altogether after the termination of the services of the workmen." Accordingly, it was held that the second failure certificate of the 21st December 1963 was issued without jurisdiction. Inconsequence of this order, the Industrial Court was enabled to proceed with the dispute arising upon the first Failure Certificate only. Special leave to appeal was granted to the employer Company to consider the question of jurisdiction particularly on the basis that the industry had ceased to exit on the 3rd September 1963 and also to consider the contention that the A journalists did not come within the category of "working journalists" for the purposes of the Working Journalists (Conditions of Service) Ordinance, 1960. On this point, it had been held by the High‑Court that up to the time of the formal termination of their service, viz., the 19th December 1963, the journalists in question although they were not actually working on any newspaper, nevertheless remained whole‑time journalists employed by the petitioner‑Company as such, and therefore, were within the definition of "working journalists." No move was made by the journalists to challenge the finding of the High Court regarding the second strike notice. ' Mr. Ijaz Hussain Batalvi arguing the case for the appellant Company has made no reference to the second of the points on which leave was granted to appeal. It is indeed an offshoot of the first question, namely, whether the industry itself had ceased to exist on the 3rd September 1963. On this point, the view taken by the learned Judges in the High Court seems to us to be plainly correct. The mere stoppage of publication of the Civil and Military Gazette did not have the effect of dis organising or breaking up the entire unit, composed of machinery and equipment as well as personnel, which together constituted the industry whose visible product was the newspaper. The machinery and equipment and so far as we know the personnel were in condition as a working unit and readily available to continue the production and publication of the paper, if the employer‑Company had so desired, for a considerable period after the 3rd September 1963. The sudden stoppage was due to the employer‑Company's order to this industrial unit to halt its processes, but it did not have the effect of breaking up the industrial unit. Therefore, the argument that the industry as such ceased to exist with the sudden stoppage of publication of e the newspaper is clearly not tenable. With reference to these 12 journalists there is clear evidence to show that they were still treated as employees of the employer‑Company up to at any rate the 9th October 1963. On the 18th September, they received a peremptory notice from the employer‑Company requiring them to attend office regularly and punctually. The order was apparently accepted and complied with. Its very issue was dependent upon the existence of a condition in which the employer‑Company was competent to require certain conduct from its employees, namely, the journalists, and the latter were bound, as a condition of their employment to obey the notice. A state of continuing employment on that date may directly be inferred from this single letter. Further, on the 9th October 1963, a letter was issued to Mr. Waheed‑uz‑Zafar directly affecting the conditions of his employment. It deprived him of a certain allowance, which he had previously been drawing, as Acting News Editor and this was understandable, since there was no newspaper being produced, but the letter also laid down that for the future he would receive emoluments as a Shift Incharge. No such letter could have issued, if there had not been in existence on the 9th October 1963, a condition of employment between the employer‑Company and Mr. Waheed uz‑Zafar. The allegation of the journalists that there were talks with the employer‑Company in regard to suggestions that' the newspaper may be revived or another journal may be published in its place and failing that, that the journalists might be compensated for breach of their contract has direct relevance to the contention that the condition of employment was still in existence until it was terminated on the 19th December 1963. The fact that each had a separate contract of service does not have any bearing on the question whether or not they were entitled to raise an "industrial dispute" on the date of issue of the first certificate of failure. The existence of a different mode of relief did not debar them from seeking relief under the Industrial Disputes Ordinance. We note that on the strength of the law as laid down in the Hotel Metropole case Hotel Metropole Ltd., v. Hotel Metropole Employees' Union and another (P L D 1964 S C 633), it was open to the respondents to contend that the question of their employment being , in exis tence on the dates in question was within the exclusive jurisdiction `' of the Industrial Court which was seized of the case. This contention was however, not raised. The appeal is accordingly dismissed with costs. A. H. Appeal dismissed.