SC rejects employers’ petitions against 7th wage award
By: Nasir Iqbal
ISLAMABAD: The Supreme Court held on Wednesday that the Newspaper Employees (Conditions of Service) Act 1973 (NECOSA) was not against the Constitution and said the Oct 2001 Seventh Wage Board Award would continue to hold the field.
“We are not inclined to interfere with the May 31, 2011 Sindh High Court (SHC) verdict (of upholding the Seventh Wage Board Award in favour of newspaper workers),Â” announced Chief Justice Iftikhar Mohammad Chaudhry while dismissing the three petitions moved by newspaper owners but with costs.
Before announcing the verdict, the chief justice observed that the court had received a resolution of the APNS on Tuesday night but it was too late and the judgment had already been written.
The petitioners had not only appealed against the SHC judgment but also challenged the constitutionality of the NECOSA as well as the powers of the Implementation Tribunal for Newspaper Employees (ITNE). The 7th wage award was constituted by the government on July 8, 2000, for fixing wages of newspaper employees. Former Supreme Court judge Justice Raja Afrasiab Khan was appointed to head the board along with 10 members, five each nominated by employers and employees.
Authored by the chief justice, the verdict rejected the argument that the 7th wage award was no more applicable since more than a decade had passed. “The argument has no substance because no period of time has been fixed under section 11 of the NECOSA.”
Similarly, redundancy or superfluity could also not be attributed, therefore, the NECOSA was not superfluous and it could not be declared ultra vires of the Constitution, the 75-page verdict emphasised.
The scheme of the NECOSA makes it abundantly clear that a comprehensive procedural-cum-substantive code has been provided to newspaper employees by the legislature because of the nature of the duties which they perform necessarily other than the workers or workmen as defined in the Factories Act or the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968.
Therefore, by means of NECOSA, their rights and obligations had been protected, the verdict explained.
It is the prerogative of the federal government, under section 9(1) of the NECOSA, to constitute whenever it so considers necessary by notification in the official gazette, the wage board for fixing the wages of the newspaper employees.
The three petitions were moved against the SHC judgment by All Pakistan Newspapers Society (APNS), Messers Independent Newspapers Corporation (Pvt) Limited, Messers Pakistan Heralds Publications, Messers Nadai Millat (Pvt) Limited, Messers Kawaish Publications (Pvt) Limited, News Publication (Pvt) Limited, Messers J&S Enterprises (Pvt) Limited, Messers The Nation Publications (Pvt) Ltd, Messers Ibrat (Pvt) Ltd, Messers Emmay Zed Publications (Pvt) Limited, Messers Zamana Group of Publications, Pir Sufaid Shah Hamdard, Aghaz Publications (Pvt) Ltd and Marvi Publications.
Referring to the arguments that legislature had completely abdicated its powers by making excessive delegation of powers to the wage board without any guidelines, the verdict explained that the legislature could delegate authority to subordinate or outside authorities for carrying laws into effect and operation. What is prohibited by the legislature is the delegation of its function to make laws but not the authority to another agency.
About the powers of the ITNE to recover wages as arrears of land revenue of public demand, the verdict said, such powers, if exercised, could not be considered contrary to the due process of law or against Article 9 of the Constitution that ensured about the security of the person. On the revenue side as well as in the banking matter or the Cooperative Societies Act, such powers are available to the authorities as Collectors of Revenue.
Therefore, the court is of the opinion that the tribunal (ITNE) cannot be debarred from implementing the award in the absence of which it would not be possible to implement the award because the chairman of the board becomes functus officio after pronouncement of the award, which the board has to do in 180 days of its constitution, and its publication in the official gazette.
If the award was not implemented, the verdict said, the entire exercise undertaken would be a futile one because no remedy was available to implement the same. Therefore, under the special circumstances and keeping in view the background on the basis of which the newspaper employees had been treated as a separate class from employees working in different industries would be left with no remedy. “It is a cardinal principle of law that where there is a right, there is a remedy,” the judgment said.