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Newspaper Employees (Conditions of Service) Act (LVIII of 1973)---

‑‑ Ss. 2 (d) & 17 read with West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S. Os. 12, 13& 14‑ ‑Newspaper employee"‑Officer on Special Duty incharge of circulation of newspaper‑Employed to do work in and in relation to newspaper‑Covered by definition of "newspaper employee" under Newspaper Employees (Conditions of ‑Service) Act, 1973‑Provisions of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 (excluding clauses (1) & (2) of S. O. 12 and S. O. 2) applicable to such employee as if he were workman'‑Entitled to maintain grievance petition against termination of service‑Termination purportedly made on account of retrenchment necessitated due to continuous losses‑No tangible evidence to establish loss or labour any retrenchment adduced‑Evidence otherwise indicative that two Sub‑Editors engaged after impugned termination order‑Function for which such Officer on Special Duty employed continuing to exist‑Retrenchment . of single person, in circumstances, held, not justified‑Employer, however, held, could adjust him in his lower substantive post of Sub- Editors in case post of Officer on Special Duty Circulation no longer existed‑Grievance petition‑Industrial Relations Ordinance (XXIII of 1969), S. 25‑A.

Ainuddin Khan for Appellant.

M. L. Shahani for Respondent.

Date of hearing: 12th April, 1983.

DECISION

This appeal is directed against the decision of the learned Vth Labour Court, given on 29th November, 1982, allowing the grievance petition preferred by the respondent employee against the termination of his services and directing the appellant to reinstate the respondent in service with full back benefits.

2. The facts of this case, shortly stated, are that the Hilal‑e-Pakistan is a Sindhi newspaper which is being presently run by the Shaikh Sultan Trust under M. L. O. No. 21, dated 15th October, 1977. The respondent was originally appointed in the Hilal‑e‑Pakistan as Junior Sub‑Editor on 1st February, 1973. On 2nd February, 1976, he was promoted as Senior Sub‑Editor and placed in Grade II as envisaged by the Wage Commission Award. From 1st July, 1979 he was allowed to work as Manager with additional remuneration of Rs: 300 per month as charge allowance. Finally, with effect from 16th February, 1980, the respondent was posted as Officer on Special Duty and placed incharge of the Circulation Depart ment. On his appointment as O. S. I). he was placed in Grade I according to the award of the Wage Commission. On 30th September, 1980, the services of the respondent were terminated on the. ground of general retrenchment. The respondent challenged the orders of his retrenchment through a grievance petition preferred on 24th December, 1980. Before that, he served a grievance notice, dated 8th October, 1980, upon the Managing Committee of the Daily Hilal‑e‑Pakistan. No reply to the said grievance notice appears to have been given to him.

3. The grievance petition of the respondent was resisted by the appel lants on the ground firstly, that the respondent was not a workman and hence was not entitled to file and maintain a grievance petition against the termination of his services, secondly, that the grievance petition is time barred having been filed beyond the period specified in section 25‑A. I. R. O. and thirdly, that the services of the respondent were terminated bona fide on account of a general retrenchment necessitated by huge losses having been incurred in the running of the Hilal‑e‑Pakistan. The learned Labour Court has repelled all these contentions and has held that the respondent was entitled to file and maintain the grievance petition, that the petition was in time and that there was n o evidence to indicate that the Hilal‑e‑Pakistan had incurred any losses.

4. I have heard Mr. Ainuddin Khan, Advocate for the appellant, and Mr. M. L. Shahani, who appeared for the respondent employee. Mr. Ainuddin assailed the impugned decision of the learned Labour Court on the following grounds :‑‑

(i) that the respondent is not a workman and hence is not entitled to file and maintain the grievance petition preferred by him ;

(ii) that no grievance notice was served by the respondent upon the employer as required by law ;

(iii) that the grievance petition preferred by the respondent was time barred ; and

(iv) that there is no evidence on the record that any person junior to the respondent was retained in service in the cadre or the grade in which he was employed.

4. In support of his first contention that the respondent was not a workman and hence was not entitled to file and maintain a grievance petition Mr. Ainuddin relied upon the definition of "newspaper employee" as given in section 2 (d) of the Newspaper Employees. (Conditions of Service) Act, 1973, and contended that the said section did not include O. S. D.'s on which post the respondent was working at the time of the termination of his services. The definition of "Newspaper Employee" as given in the above Act reads as follows :‑

"Newspaper employee means any person employed to do any work in or in relation to, any newspaper establishment and includes‑

(i) a whole time journalist, including an editor, a leader writer; news editor, feature writer, reporter, correspondent, copy tester, cartoonist, news photographer, calligraphist and proof‑reader ; and

(ii) a whole‑time non‑journalist, including a manager, clerk, steno‑ typist, printing engineer, linotype operator, composer, type‑setter, photo studio attendant, printing worker, an accountant and an office peon,"

It will be observed that the above definition is in two parts, the first part indicates what a newspaper employee means and the second part states who are the person who are included in the said definition. A newspaper employee, according to the above definition, means a person employed to do any work in or in relation to any newspaper establishment. It is not disputed that as O. S. D. Incharge of the circulation of the Hilal‑e-Pakistan the respondent was employed to do work in and in relation to a newspaper. The respondent, thus, would fall within the first part of the definition of "newspaper employee" governed by the work "means". It might further be pointed out that the definition of "newspaper employee" includes a whole‑time non‑journalist. As O. S. D. Incharge of the Circulation the respondent was a whole‑time non‑journalist required to do work in or in relation to a newspaper. He would, therefore, also fall in the second part of the definition of the newspaper employee controlled by the word "includes". It has been provided in section 17 of the Newspaper Employees (Conditions of Services) Act, 1973; that the provisions of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, except the provisions contained in Standing Order 2 and clauses (I) and (2) of Standing Order 12, shall apply to newspaper estab lishments as if they were industrial establishments to which the provi sions of the West Pakistan Industrial 'and Commercial Employment (Standing Orders) Ordinance, 1968, had been applied and as if a newspaper employee were a workman within the meaning of that Ordinance. Since the respondent squarely falls within the definition of "newspaper employee" as given in the aforesaid Act, the provisions of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, except the provisions specifically excluded, would apply to the establishment of the appellants as also to the respondent. In the case reported as Pak News Ltd. v. Sind Labour Court No. 2 (1975 P L C 802), a learned Single Judge of the Karachi High Court held that the Circulation Manager of the Daily Millat run by Pak News Ltd., is a newspaper employee for the purposes of the Newspaper Employees .(Conditions of Service) Act, 1973, and the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, and was entitled to file and maintain a grievance petition against termination of his services. In the case reported as Chairman, National Press Trust, Islamabad v. Iqbal Hussain Bukhari, it was similarly held by this Tribunal that the Press Manager of the Morning News was a newspaper employee as also a workman for the purposes of the Standing Orders and was entitled to maintain a grievance petition against the termination of his services. I would, accordingly, repel the contention of Mr. Ainuddin that the respondent was not a work man and hence was not entitled to prefer and maintain a grievance petition against the termination of his services.

5. Coming to the next contention of Mr. Ainuddin that no grievance notice was served by the respondent upon the employer I will refer to paragraphs 3 and 4 of the grievance petition of the respondent which read as follows :‑

"(3) That the applicant sent grievance notice which was received by the respondent on 9th October, 1980 but has not been replied so far. (A Copy of grievance notice is attached and marked 'B').

(4) That the cause of action arose to the applicant on 30th September, 1980, for which the grievance was sent on 9th October, 1980, within the area of P. S. Arambagh, which is under the jurisdiction of this Honourable Court. The application is within time."

In the legal objections filed by the appellant on 10th February, 1983. no objection eras taken that the grievance notice was not served upon the employer and in fact it is tacitly admitted that the respondent had sent the grievance notice to the respondent on 8th October, 1980 which in fact is the claim of the respondent. Even in the reply statement no specific denial is made of the receipt of the grievance notice and it is merely stated in regard to paragraph 3 of the grievance petition that the same is not within the knowledge of the respondent. In other words the contention is that the respondent is not aware whether the grievance notice was received by the respondent on 9th October, 1980 but has not been replied so far. No denial was made of the assertions made in paragraph 4 of the grievance petition that the cause of action arose to the respondent on 30th September, 1980 and that the grievance notice was sent on 8th October, 1980. It may further be mentioned that the grievance notice, which is at page 31 of the record of the learned Labour Court, was sent to" the Managing Committee of the Daily Hilal‑e‑Pakistan while the reply was filed by Nasir Brohi, the Editor of Hilal‑e‑Pakistan, to whom the grievance notice was not addressed. The respondent, in his evidence has reiterated the facts stated in his grievance petition. No question was suggested to him indicating that he had not sent the grievance notice to the respondent on 8th October, 1980 as asserted by him in his grievance petition. All that he was asked in cross‑examination was in regard to the postal and acknowledgment receipts pertaining to the grievance notice and he stated that the receipts were with his Advocate. In view of all these circum stances, particularly the circumstance that the appellants have not explicitly disputed and denied the receipt of the grievance notice, the appellants ,are deemed to have received the grievance notice on 9th October, 1980.

6. It next falls to be considered whether the grievance petition of the respondent is time‑barred. I have already held that the grievance notice, dated 8th October, 1980, was served upon the respondent on 9th October, 1980, as asserted by the respondent in his grievance notice and in his affidavit before the learned Labour Court. The limitation in the instant case would begin to run from 10th October, 1980 since the day from which such period is to be computed has to be excluded, as provided in section 12 (1) of the Limitation Act. As admittedly no reply to the grievance notice was given by the appellants to the respondent, the respondent was entitled to file his grievance petition within two months and fifteen days from 10th October, 1980. As the grievance petition was filed on 24th December, 1980, it was in time. I would, therefore, repel the contention of Mr. Ainuddin Khan that the grievance petition was time‑barred.

7. The services of the respondent were terminated on the ground of exigencies of service and heavy losses continuously suffered by Hilal‑e‑Pakistan. What those exigencies of service were have neither been explain ed nor there is any evidence on record in this behalf. As regards the claim of heavy losses continuously suffered by Hilal‑e‑Pakistan there is only the bare word of the witness of the .appellants, Nasir Brohi, that due to heavy losses continuously suffered by the organization it was decided to retrench the staff as well as officers. No particulars or extent of those losses nor any statement of accounts were produced and hence as observed by the learned Labour Court there is no tangible evidence in support of the contention of the appellants that in fact the Hi lal‑e‑Pakistan had been continuously suffering losses. If the newspaper in fact had been continu ously suffering losses, as alleged by the appellants, it should not have been difficult for the appellants to substantiate their claim by producing documentary evidence including balance‑sheets and statements of profit and loss account, which, however, were not produced. The failure on the part of the appellants to produce documents and evidence which could easily have been produced suggests that the production of such evidence would have been unfavourable to the appellants. In any case, since there is no tangible evidence to substantiate the allegations of the appellants that the organization had been continuously suffering losses, I am unable to accept this contention of the appellants.

8. It is also claimed by the appellants that a large number of emp loyees, including officers, had been retrenched at the time the services of the respondent had been terminated. Again no tangible evidence in support of this allegation has been produced. Perhaps the best evidence on this point would have been copies of the orders terminating the services of such employees but such copies were not produced. The only evidence adduced by the appellants in this behalf is the bare statement of their witness, Nasir Brohi, that services of 35 employees were terminated due to retrenchment. Although this witness claims that a large number of employees were retrenched‑ at the time that the services of the respondent were terminated, he has admitted that after 30th September, 1980, when the services of the respondent were terminated, two Sub‑Editors were engaged on contract basis. It is not understood under what circumstances additional staff was engaged when it is claimed that a large number of employees were retrenched. The engagement of the additional staff runs counter to the claim of the appellants that retrenchment was found necessary. The witness, Nasir Brohi, has further admitted that six persons were working as Sub‑Editors at the time that the services of the respondent were terminated. Apparently all the six Sub‑Editors remained in service when the services of the respondent were terminated. The employment of six Sub‑Editors and the further increase in the number of Sub‑Editors by appointment of two other Sub‑Editors suggests that the Hilal‑e‑Pakistan was doing good business and would run counter to the contention of the appellants that it was running in huge losses and hence retrenchment was considered necessary.

9. An essential part of the work of running of a newspaper is its circulation. In fact the financial stability of a newspaper depends mainly on its circulation. It is, therefore, necessary that some responsible person must be Incharge of the circulation of the newspaper. If the respondent, who according to the appellants, witness, Nasir Brohi, was working as Manager Circulation, was removed from service some other person must have been put incharge of this work. The appellants, however, have concealed the fact who has been put incharge of this work. If a person junior to the respondent has been put incharge of this work. then the action of the appellants would be in contravention of the provisions of Standing Orders 13 and 14. Even if a bona fide retrenchment in the appellants, establishment was considered necessary the respondent could have been accommodated in his substantive post of Sub‑Editor. Mr. M. L. Shahani, the learned counsel for the respondent, submitted at the bar that the respondent was ready and willing to work in his substantive post of Sub‑Editor if the post of O. S. D. or the Manager Circulation is no longer available or exists.

10. It was finally contended by Mr. Ainuddin Khan that the respon dent had not challenged the retrenchment effected by the appellants but had only claimed that persons junior to him had been retained in service. The respondent was challenging the orders of terminating of service in which the ground for termination of services stated was that the termina tion had become necessary on account of continuous losses suffered by the newspaper. In other words the ground for the termination of services/ retrenchment was on account of continuous losses. I have already shown that there is no tangible evidence in support of the claim of the appellants that the Hilal‑e‑Pakistan organization had continuously suffered losses or that there was any bona fide retrenchment.. The retrenchment of a single .4 individual and that too when he was employed to do an essential func tion relating to a newspaper which function and work continues to exist cannot be justified.

11. For the reasons discussed by me above I would concur in the view taken by the learned Labour Court and would dismiss the appeal is regard to the reinstatement in service of the respondent. Before parting I would like to observe in view of the statement at the bar made by Mr. M. L. Shahani that it would be open to the appellants to post the respon dent as Sub‑Editor provided that the post of Manager or O. S. D. Circula tion no longer exists.

12. In view of the fact that the proceedings before the learned Labour Court dragged on for over two‑and‑a‑half years. I would reduce the back benefits to sixty per cent.

Appeal dismissed.

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