1978 PLP 225 (PLC)

This is an appeal against the decision dated, 30-6-1977 of Punjab Labour Court No. 2, Lahore.

2. Abdullah 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, 1973 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 i the following preliminary objections before the Labour Court: "(1) That the respondent In not a workman and as such has no locus sandi 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 Jurisdtion 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 a9 such the grievance notice was barred by time. (4) That the decision of the Wage Board for journalists came into force w. e. f. 1-7-1974 and the existing pay of the respondent prior to now pay sale was Re. 1,155 but by clerical mistake the respondent's pay was increased to Rs. 1470 and as such he was already drawing Re. 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 ride 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 objec tions. As regards preliminary objection No. 4 It observed that since it related to the merits of the case, 1t should be dealt with while deciding the case on merits. No appeal was filed against that decision. In April, 1977 this cam stood transferred to Punjab Labour Court No. 2 in view of the change in territorial jurisdiction. Punjab Labour Court No. 2, ride decision under appeal, accepted the petition in the following terms r "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 alongwith lea. 430 wrongly deducted from his wages within taro weeks of the date of announcement of this order."

3. Aggrieves 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 giver, 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 challenge even though the appeal against the interim decision on preliminary objections has become barred by time.

5. In the case of Aando Khan v. Hakim Mohammad Ishaq (P L D 1964 Kar.61), 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 and, therefore, the tenant could not be heard even in appeal 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 ix debarred from raising that question is, to say the least, a very curious position to take. It is well establi shed 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 examined order in question."

6. In the cast, of Mrs, Mohammad Abdullah v. Sheikh Nawab Din (1971 S C M R 336) was observed: "The appellant has next contended that inasmuch as the aforesaid interlocutory order for deposit of rent was appeal able and no appeal bad been preferred from it and the appeal having became barred b 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 fro& every interlocutory order. He can wait until the final decision an then appeal against it on all such grounds as are available to him The interlocutory order, no doubt is an order constituting the fins decision, and it seems unreasonable that its legality cannot be challenged-in an appeal from the final decision."

7. In the case of Ghulam Hussain arid others v. Khan Mohammad and others (P L D 1954 Lah. 655), it was observed: "No appeal was filed in this case against the preliminary decree. I preliminary decree for partition establishes the right of the plaintiff to partition. In this case even a Commissioner for partition had bee appointed by the preliminary decree. By virtue of section 97 of the C. P. C. a party is debarred from challenging the correctness of i preliminary decree in 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 all. 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, 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 Hussain Mia (P L D 1965 S C 1) it was held that the entire matter is reopened and becomes sub judice on filing of the appeal and has to be decided in accordance with the law then prevailing.

9. In the light of the-above decisions. I hold that the interim decision dated 21-7-1977 can be challenged in the main appeal. The learned counsel for the appellant reiterated the preliminary objection taken before the Labour Court. Preliminary Objection No.

1. The respondent who is a Chief Reporter of daily 'Imroze is a newspaper employee within the meaning of section 2(d) (t) of Newspaper Employees (Conditions of Service) Act, 1973, under which all newspaper employees are workmen, except those mentioned in section 18 of the said Act, which reads as under: 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 capa city, or . (ii) 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 vetted 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 do Silk Mills. Karachi v. Shujakar Ali (1974 P L C Note 28 at p.l7) 10. 4n view of the above, this preliminary objections was rightly dismis sed by the Labour Court. Preliminary Objection No. 2 The Wage board was constituted under section 9 of the Newspaper employees' (Conditions of Service) 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 the objection was also rightly rejected. Preliminary Objection Vo. 3 From the perusal of the record I find that the respondent was not given his due increment of Rs. 60 per mensem 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 eras no given his duo increment. In the petition it was alleged that era 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 hire. This is evident from para 2 on merits of tae written statement, in which it was stated that the matter was under investigation by the Management and if it was found late flu tie 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 incre ment and the Management had been assuring him that the withheld increment would be restored, stands proved. Therefore the petition of the respondent would be within time. This preliminary objection is accordingly rejected.

11. On merits I find that the appellant bas no case at all. The res pondent was entitled to his annual increment with effect from 3 -7 a -1975, which bas been unjustly withheld and that the deduction of Re. 430 from his wages for the month of November 1975 was uncalled for. l I this connection the following statement of Mr. Abdur Rauf, Incharge Establishment, who was the solitary witness on behalf of the appellant, is rele vant: " 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 Bond 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 wag 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: These 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. Appeal dismissed.