2008 PLP 368 (PLC)

JUSTICE (R.) TANVIR BASHIR ANSARI (CHAIRMAN).

This judgment shall also decide case No.IT(N.-W.F.P.)6/2000/C titled Mr. Zulfiqar Ali Khan v. Daily Mashriq, Peshawar as identical questions of law and fact are involved in both cases. Briefly the facts are that Zulfiqar Ahmad was engaged as Advertisement Manager. Petitioner Amjad Ali Khan was appointed as Business Manager. Both the petitioners claim that they were orally terminated in September, 1998. They challenged the oral termination before the Labour Court, Peshawar. However, the Labour Court dismissed the grievance petition. The petitioners further assailed the order of the Labour Court before the Labour Appellate Tribunal. The petitioners were reinstated by the Labour Appellate Tribunal although without back-benefits.

2. The petitioners as well as the respondent-Establishment filed separate Civil Petitions for Leave to Appeal before the Honourable Supreme Court. Vide order, dated 30-9-2003, both the petitioners were reinstated in service to join at Karachi, upon the statement made by the respondent-Establishment. The Honourable Supreme Court observed that if the petitioner(s) failed to join duty at Karachi their services would stand terminated.

3. According to the record the petitioners were allowed further period of time to join the duty at Karachi and ultimately it was on 27-8-2004 that the petitioners joined their duty at Karachi. It is also submitted by the petitioners that both of them continued working at Karachi upto December, 2004, whereafter they were unable to continue the service at Karachi on account of their illness.

4. During the course of submissions made by the learned counsel for the respondent it transpires that on account of the continued absence of the petitioners, disciplinary proceedings were initiated by the respondent-Establishment. The petitioners submitted replies to the charge-sheet but failed to appear in the inquiry proceedings and as a result both the petitioners were dismissed from service vide dismissal order, dated 9-5-2006.

5. While the petitioners contend that they are entitled to the payment of salaries in accordance with the applicable Wage Board Award throughout the period of their valid service, it is controverted by the learned counsel for the respondent on the ground that firstly the petitioners were reinstated without back-benefits and secondly after the initiating of disciplinary proceedings, the petitioners have now been dismissed from service vide order, dated 9-5-2006.

6. It is further contended by the petitioner that previously the daily Mashriq was owned by the National Press Trust N.P.T. having its Head Office at Karachi. The daily Mashriq was categorized as Metropolitan `A'. It is claimed by the petitioners that as the said newspaper was originally categorized as Metropolitan `A', it would continue to retain the said category despite privatization and despite the publication of the newspaper from Peshawar and that it was incorrect for the respondent to treat the category of the post privatization newspaper as Regional `A' category on the ground that it was now being published from Peshawar which according to the management was covered in category Regional `A' under the relevant Wage Board Award.

7. The learned counsel for the petitioner(s) has made reference to para.67(g) of 6th Wage Board Award to contend that at best of the privatization of the daily Mashriq shall only amount to a change of ownership or proprietorship of the Establishment and under the provision of para.67(g) any change in the ownership or proprietorship of an Establishment shall not affect the category in which such , an establishment is placed for the time being under the scheme.

8. The learned counsel for the petitioner(s) further argued that even after privatization, daily Mashriq commenced publication of the newspaper also from Islamabad besides the publication at Peshawar and that this fact would further substantiate their contention that the daily Mashriq belonged to Metropolitan `A' category as Islamabad was included in the cities which are categorized in the Wage Board Awards as Metropolitan `A'. In order to support his contention, the learned counsel for the petitioner(s) has produced copy of the newspaper dated 10-5-2006 which shows as follows:--

9. It is further urged that even prior to privatization, Daily Mashriq was being published at Peshawar and that the petitioners were also working at Peshawar. Upon privatization their terms and conditions of service could not be altered to their disadvantage by altering the category of the newspaper from Metropolitan `A' to Regional `A'. Mr. Shumail Ahmad the learned counsel for the petitioners contended that no change of category can take place except in accordance with Rule 14 of the I.T.N.E.(P&F) Rules, 1973 and that any such change of category would be of no legal effect.

10. It is further submitted that as per Exh.D.W.I./X-3, the respondent-Establishment has paid emoluments to at least two Grade-II employees according to Metropolitan `A' category and that refusal to treat the petitioners in the same manner amounts to actionable discrimination.

11. It is finally contended that the reinstatement of the petitioners shall be considered with effect from 16-6-2003 and that the petitioners shall be entitled to their emoluments with effect from the date of reinstatement.

12. On the other hand the learned counsel appearing for the respondent establishment submits that the petitioners cannot derive any advantage of the previous category of Daily Mashriq as the petitioners had voluntarily accepted the golden handshake scheme upon privatization and had discontinued their earlier appointment under the N.P.T. by obtaining a huge amount as per the golden handshake formula. After thus serving their earlier appointment, the petitioners were appointed afresh with effect from 1-10-1995 by the private owner of daily Mashriq at Peshawar. He contends that the provisions of section 67(g) are subject to the scheme of the 6th Wage Board Award. Elaborating the scheme it is submitted that as per the definition clause viz. para.66(iii) and (iv), the city of Peshawar which does not fall within Metropolitan `A' category shall fall in Regional `A' category. He particularly made reference to para.67(c) to submit that all newspapers published from Hyderabad, Multan, Faisalabad, Peshawar and Quetta would be included in Regional `A' category.

13. Mr. Ejaz Anwar, Advocate further submitted' that neither the publication of the newspaper prior to its privatization at Peshawar nor the claimed subsequent publication from Islamabad could alter the category of the newspaper from Regional `A' to Metropolitan `A'. Reference Was made to para.67(j) to submit that a new edition of the newspaper already in publication shall bear the same category as its parent newspaper regardless of the place of its publication.

14. The learned counsel for the respondent controverted the plea of discrimination raised by the petitioners on the ground that any payments made to any employee more than the emoluments fixed for Regional `A' category, was occasioned on account of the contractual obligation with particular employee and that no one has been paid as per Metropolitan `A' category.

15. It is lastly contended that the petitioners are estopped from claiming Metropolitan `A' category before this Tribunal as according to para.57 of the 6th Wage Board Award, such a demand was raised before the learned Wage Board but was rejected for the time being with the observation that the employees if so advised might re-agitate the same with better evidence before the next Wage Board. According to the learned counsel the category in respect of the city of Peshawar remained unchanged even in the subsequent viz. 7th Wage Board Award.

16. Arguments have been heard and record perused.

17. The salient features of this case on the factual side are by and large admitted by both the parties.

18. It transpires from the record that the petitioners had indeed received the golden handshake benefits upon the privatization of the erstwhile Daily Mashriq being then owned by the National Press Trust. Having thus, received their terminal benefits, the petitioners had severed their previous service and cannot derive any benefit from their previous service. Upon privatization the petitioners were appointed afresh w.e.f. 1-10-1995 by the private owner at Peshawar: The office order, dated 11-6-1995 referred to by the learned counsel for the respondent is not controverted by the petitioners. It is further not denied by the petitioners that the services of the petitioners were terminated firstly in September, 1998. In fact, in para.4 of the instant application it is admitted that the petitioners regarded themselves as having been verbally terminated from service. In fact the petitioners had challenged this termination before the Labour Court through a petition which was dismissed. The petitioners were however, reinstated upon appeal by the Labour Appellate Tribunal although without back-benefits.

19. As noted supra, the Honourable Supreme Court vide order, dated 30-9-2003 directed both the petitioners to be reinstated in service and to join service at Karachi. Ultimately on 27-8-2004 the petitioners joined their duty at Karachi but again discontinued their services in December, 2004. Disciplinary proceedings were taken against the petitioners for their unauthorized absence. The petitioners were dismissed from service vide order, dated 9-5-2006.

20. A narration of the above would show that there are three specific periods for which the claim of the petitioners is urged. Amjad Ali Khan (a) 1-10-1995 to 30-9-1998 (b) 1-10-1998 to 31-12-1998 (stay order by Civil Court) (c) 27-8-2004 upto December, 2004. Zulfiqar Ahmad (a) 1-7-1995 to 30-9-1998 (b) 1-10-1998 to 31-12-1998 (stay order by Civil Court) (c) 27-8-2004 upto December, 2004.

21. This would bring us to the moot point raised by the petitioners as to whether the petitioners even after privatization would continue to claim Metropolitan `A' category for fixing their wages despite the fact that after privatization daily Mashriq started its publication from the city of Peshawar which is categorized in the 6th Wage Board Award as Regional `A'.

22. In order to appreciate the contention of the learned counsel for the petitioners para.67(g) of the 6th Wage Board Award is reproduced as under: "Any change in the ownership or proprietorship of an establishment shall not affect the category in which such an establishment is placed for the time being under the above scheme." The contention that the factum of privatization shall only imply a mere change of ownership or proprietorship and would not affect the original category of the newspaper overlooks two important legal considerations. Firstly before privatization, the Head Office of Daily Mashriq was at Karachi which under the scheme/provisions of the 6th Wage Board Award fell in the category of Metropolitan `A'. It is not disputed that after privatization the Head Office/the place of publication of daily Mashriq, Peshawar changed from the city of Karachi to the city of Peshawar which according to para.67(c) read with 66(iii) and (iv) squarely fell within the category of Regional `A'. It is thus, futile for the petitioners to argue that despite the publication at Peshawar, the respondent-Establishment would continue to enjoy the status of category Metropolitan `A'. To grant this contention would in fact negate the very scheme of the 6th Wage Board Award. Secondly as per para.57 of the 6th Wage Board Award, the employees had raised a specific demand that as cities such as Peshawar, Quetta and Hyderabad had expanded, these cities be declared as Metropolitan Centres. The learned Wage Board considered this demand in the light of the evidence produced, by the employees before the Wage Board but was not found tenable. It was concluded in the 6th Wage Board Award that this very demand was rejected for the time being with the observations that the employees if so advised might re-agitate it with better evidence before the next Wage Board. There is nothing on the record to suggest that a such demand was granted in the subsequent Wage Board Award and it shall not be open for the petitioners to re-agitate this matter through the instant petition(s). Resultantly the contention claiming the status of the city of Peshawar as a Metropolitan Centre and consequently the claim of daily Mashriq, Peshawar to be of Metropolitan `A' category is devoid of force.

23. The next submission made by the learned counsel for the petitioners is that as the daily Mashriq is also being published from Islamabad (which city has been placed in category Metropolitan `A'), the daily Mashriq, Peshawar should also be classified as category Metropolitan `A'. This submission of the learned counsel for the petitioners run counter to' the provisions of para.67(j) of the 6th Wages Board Award. For ready reference the said provision of law is reproduced as under: "A new edition of a newspaper already in publication shall bear the same category as its parent newspaper regardless of the place of its publication, provided it is published in the same language as the parent newspaper and bears the same name." "Even if it is granted that a news edition of the daily Mashriq is being published also from Islamabad, it would not change the category of the parent newspaper which in this case shall be Regional `A' for Peshawar. It is not disputed that both the daily Mashriq, Peshawar and the daily Mashriq published at Islamabad bear the same name and are published in the same language.

24. It is thus, concluded that the publication from Islamabad would not alter the Regional `A' category of daily Mashriq, Peshawar which is the parent edition after privatization.

25. As far the further submission of the learned counsel for the petitioner that there can be no change of category except in accordance with Rule 14 of the I.T.N.E. (P&F) Rules, 1977, suffice it to say that the change of category of daily Mashriq, Peshawar has occasioned on account of the legal process of privatization of the erstwhile daily Mashriq which was owned by the National Press Trust. It would also need no gainsaying that both the petitioners had tacitly accepted the process of privatization by expressly receiving the benefit of golden handshake scheme. In such a situation no benefit can be derived by the petitioners from referring to Rule 14 of the Rules of 1977. This contention is rejected.

26. The final submission for the petitioners that two employees of Grade-II have been paid in accordance with Metropolitan `A' category criterion is also not well-founded. Firstly as per para.57 of the 6th Wage Board Award the demand of the employees claiming Metropolitan `A' category for Peshawar was rejected and' secondly there is substance in the submission of the learned counsel for the respondent that these employees were not paid as per Metropolitan `A' category but were paid on contractual basis. During course of submissions, a query was put to the learned counsel for the respondent-Establishment as to whether the petitioners have been paid all their dues for the period(s): Amjad Ali Khan (a) 1-10-1995 to 30-9-1998 (b) 1-10-1998 to 31-12-1998 (stay order by Civil Court) (c) 27-8-2004 upto December, 2004. Zulfiqar Ahmad (a) 1-7-1995 to 30-9-1998 (b) 1-10-1998 to 31-12-1998 (stay order by Civil Court) (c) 27-8-2004 upto December, 2004.

27. The learned counsel for the respondent has frankly conceded that sums are outstanding in favour of petitioner Zulfiqar Ahmad and Amjad Ali Khan for the aforesaid period as calculated for Regional `A' category. The said dues are worked out as per statement annexed to this judgment as Annexure 'A' which shall be read as part and parcel of this judgment.

28. The upshot of the above discussion is that the claim of the petitioners that they should be paid in accordance with Metropolitan `A' category is wholly without force and is rejected. The petitions to this extent are rejected. No case for contempt of Court is also made out by the petitioners nor has the same been pressed. Resultantly the petition(s) are dismissed. However, as it has been conceded by the learned counsel for the respondent that the above stated amount(s) in respect of the petitioners is still outstanding, the respondent-Establishment is directed to make the aforesaid payment to the petitioners within three weeks with compliance report to the Registrar of this Tribunal. In the alternative recovery shall be effected as per law. H.B.T./1-IT/N.-W.F.P. Order accordingly.