P L D 2004 Supreme Court 600

 
Present: Iftikhar Muhammad Chaudhary, Sardar Muhammad Raza Khan and Falak
Sher, JJ
 
ALL PAKISTAN NEWSPAPERS SOCIETY and others---Petitioners
 
Versus
 
FEDERATION OF PAKISTAN and others---Respondents
 
Constitutional Petition No.35 of 2002, decided on 8th April, 2004.
 
(a) Words and phrases----
 
----"Entertain"---Meanings.
 
The State Life Insurance Employees Federation v. Federal Government of Pakistan (1994) PLC
(C.S.) 964; Mitra's Legal and Commercial Dictionary, p.270; Words and Phrases by Surendra
Malik, p.232; Hidustan Commercial Bank v. Punnu Sahu AIR 1970 SC 1384 and Pakistan Steel
Peoples Worker's Union v. Registrar of Trade Unions, Karachi 1992 PLC 715 ref.
 
(b) Constitution of Pakistan (1973)-----
 
----Art. 184(3)---Supreme Court Rules, 1980, O.V, R.3 & O.XXVII, R.7---Constitutional
petition before Supreme Court---Refusal of Registrar to entertain such petition---Single Judge of
Supreme Court accepted appeal filed under O.V, R.3 of Supreme Court Rules, 1980 and directed
office to entertain such petition, register same and fix before the Bench---Petitioner in response
to question of maintainability of such petition raised by respondent contended that as order
passed by Single Judge had attained finality, thus, such question could not be re-opened---
Validity---Expression "entertain" would be defined in its ordinary Dictionary meanings i.e. "to
receive"---O.XVII, R.7 of Rules, 1980 was mandatory in nature---Such petition would be heard
by a Bench consisting of not less than two Judges of Supreme Court---Single Judge was fully
aware that entertain ability of such petition could only be decided by a Bench consisting of not
less than two Judges of Supreme Court, thus, he had accepted appeal to the extent of registering
such petition---Contention of petitioner was repelled in circumstances.
 
Civil Aviation Authority, Islamabad and others v. Union of Civil Aviation Employees and
another PLD 1997 SC 781 ref.
 
(c) Supreme Court Rules, 1980----
 
----O. V, R.3 & O.XVII, R.5---Appeal under O.V. R.3 or O.XVII, R.5 of Supreme Court Rules,
1980 against order of Registrar---Single Judge of Supreme Court, while disposing of such
appeal, could not decide question of maintainability of a petition.
 
(d) Administration of justice--
 
----Judges of Supreme Court, responsible to administer justice, are fully aware of relevant
provisions of law on the subject and unless it is proved otherwise, it would be deemed that orders
have been passed in. accordance with law.
 
(e) Constitution of Pakistan (1973)-----
 
----Art. 184(3)---Constitutional petition before Supreme Court--Admission of such petition for
regular hearing and its subsequent dismissal for being non-maintainable---Validity---Question of
maintainability of such petition would be open for consideration---Such petition once admitted
for hearing even in accordance with rules by requisite number of Judges could be dismissed
subsequently on failure of petitioner to establish violation of any fundamental rights under Chap.
I, Part II of the Constitution.
 
State Life Insurance Employees Federation v. Federal Government of Pakistan 1994 PLC (C S.)
964 rel.
 
(f) Constitution of Pakistan (1973)---
 
----Art. 184(3)---Constitutional petition before Supreme Court---Delay in raising objection as to
jurisdiction of Court and maintainability of such petition---Effect---Delay caused by any party in
raising such objection, ipso facto, would not constitute a ground to overrule such objection and
assume jurisdiction without determining whether essential conditions had been fulfilled by
claimant to persuade Court that same had jurisdiction to decide such case.
 
(g) Jurisdiction-----
 
--------Determination of jurisdiction by Court seized with the matter is one of the important
elements in administration of justice as if justice has been provided basing upon corum non
judice orders, then same would have no legal sanction behind it.
 
(h) Constitution of Pakistan (1973)-----
 
----Art. 184(3)---Invoking original jurisdiction of Supreme Court under Art.184(3) of the
Constitution---Essentials conditions---Art.184(3) of the Constitution provided an expeditious and
inexpensive remedy for protection of fundamental rights from legislative and executive
interference---Such jurisdiction would be exercised subject to establishing by petitioner, by
furnishing convincing evidence, as to non availability of any other adequate remedy and that
question of public importance with reference to enforcement of fundamental rights had been
made out---Without establishing such essential conditions, Supreme Court would not assume
such jurisdiction.
 
Benazir Bhutto v. Federation of Pakistan PLD 1988 SC 416 and Abdur Rehman v. Haji Mir
Ahmed Khan PLD 1983 SC 21 rel.
 
(i) Words and phrases-----
 
----"Class or Representative action"---Meanings.
 
Black's Law Dictionary, p.249 ref.
 
(j) Newspapers Employees (Conditions of Service) Act (LVIII of 1973)--
 
----Ss. 2(d) & (h)---S.R.O. No.744(I)/2001, dated 25-10-2001--Constitution of Pakistan (1973),
Art.184(3)---Constitutional petition before Supreme Court by Society of Newspapers Workers
challenging vires of 7th Wage Board Award---Maintainability---Such award being valid to the
extent of working journalists to all intents and purposes, would not give rise to question of public
importance involving fundamental rights of petitioner to their extent.
 
(k) Newspapers Employees (Conditions of Service) Act (LVIII of 1973)-----
 
----Ss. 2(d) & 9---Constitution of Pakistan (1973), Art. 184(3)--Constitutional petition before
Supreme Court challenging validity of 5th Wage Board Award as being violative of fundamental
rights and the Constitution and in excess of jurisdiction of Wage Board--Maintainability---Such
controversy could hardly be questions of public importance---Challenge to validity of award
would depend on investigation into disputed questions of fact, claims and counter claims of
parties involving appreciation of voluminous evidence on record---Such investigation under Art.
184(3) of the Constitution might not be permissible particularly, when questions raised were not
of public importance---Supreme Court dismissed petition.
 
(l) Words and phrases----
 
----"Ratio decidendi"---Connotation.
 
Fundamental Law of Pakistan by A.K. Brohi, p.609 and Modern English Legal System from
Smith and Bailey ref.
 
(m) Words and phrases-----
 
----"Obiter dicta"---Connotation.
 
Judicial Dictionary of Words and Phrases 5th Edn. p.1721; Law Lexicon Vol. II, p.243; Words
and Phrases Vol. 29, p.16 and Shorter Constitution of India 12th Edn. p.141 ref.
 
(n) Words and phrases----
 
----"Ratio decidendi" and "Obiter dicta"---Distinction.
 
Law Lexicon Vol. II, p.243 ref.
 
(o) Precedent---
 
----Issue raised in subsequent case before Bench of Supreme Court comprising of three Judges
stood earlier resolved by a Bench of Supreme Court comprising of five Judges---Effect---Bench
comprising of three Judges could not take different view qua judgment passed by a Bench
comprising of five Judges, which had binding effect upon such issues.
 
Province of East Pakistan v. Azizul Islam PLD 1963 SC 296; Province of East Pakistan v. Sirajul
Haq Patwari PLD 1966 SC 854, Pir Baksh v. Chairman, Allotment Committee PLD 1987 SC
145; Multiline Associates v. Ardeshir Cowasjee PLD 1995 SC 423; Muhammad Saleem v. Fazal
Ahmed 1997 SCMR 314; Babar Shehzad v. Said Akbar 1999 SCMR 2518; Ardeshir Cowasjee v.
Karachi Building Control Authority 1999 SCMR 2883; Zulfiqar Mehdi v. Pakistan International
Airlines Corporation 1998 SCMR 793 and Watan Party v. Chief Executive PLD 2003 SC 74 fol.
 
(p) Words and phrases-----
 
----"Question of public importance"---Connotation.
 
Manzoor Elahi v. Federation of Pakistan PLD 1975 SC 66 fol.
 
(q) Newspapers Employees (Conditions of Service) Act (LVIII of 1973)-----
 
----Ss. 2(d) & 9---S.R.O. No.744(I)/2001, dated 25-10-2001--Constitution of Pakistan (1973),
Art.184(3)---Dispute between employer and employees relating to payment of wages under
7th Wage Board Award---Constitutional petition before Supreme Court challenging validity of
such Award being , violative of fundamental rights of petitioners (employers) and ultra vires the
Constitution--Maintainability---Petitioners had got fundamental right to establish business of
newspapers, but their fundamental right was not that how they would be managing finances to
run business, which would include payment of wages to their employees---If petitioners had no
finances, .then their business was bound to collapse---Mere non-availability of funds would not
involve fundamental rights of petitioners nor same would give rise to a question of public
importance---Dispute between employer and employees in terms of Newspapers Employees
(Conditions of Service) Act, 1973 would not give rise to a question of public importance being
an essential condition to attract jurisdiction of Supreme Court under Art. 184(3) of the
Constitution---Supreme Court dismissed petition while observing that petitioners, if desired or
advised, might avail appropriate remedy before competent forum in accordance with law.
 
Zulfiqar Mehdi v. Pakistan International Airlines Corporation 1998 SCMR 793 and Watan Party
v. Chief Executive PLD 2003 SC 74 rel.
 
(r) Constitution of Pakistan (1973)-----
 
----Art. 184(3)---Words "public importance" as used in Art. 184(3) of the
Constitution---Supreme Court would consider each case on its own merits, whether element of
"public importance" was involved in enforcement of fundamental rights irrespective of
individual's violations of the infractions of a group or a class of persons.
 
Benazir Bhutto v. Federation of Pakistan PLD 1988 SC 416 fol.
 
Abdul Hafeez Pirzada, Senior Advocate Supreme Court, Afzal Siddiqui, Senior Advocate
Supreme Court, Akram Chaudhry, Senior Advocate Supreme Court and M.S. Khattak,
Advocate-on-Record for Petitioners.
 
Raja Muhammad Irshad, D.A.-G. and Nasir Saeed Sheikh, Standing Counsel for Respondents
Nos. 1(a)(b), 2, 5-8.
 
Nemo for Respondents Nos. 3(i) to 3(iii).
 
Ch. Naseer Ahmed Bhutta, Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record
for Respondent No.3(vii).
 
Abid Hasan Minto, Senior Advocate Supreme Court and Ch. Akthar Ali Advocate-on-Record for
Respondents Nos. 3(vi) to 3(x) & v(i) to V(iii).
 
Raja Muhammad Akram, Senior Advocate Supreme Court for Respondent No.3(viii).
 
Muhammad Akram Sheikh, Senior Advocate Supreme Court and M.A. Zaidi,
Advocate-on-Record for Respondent No.4.
 
Respondent No.6 (in person).
 
Muhammad Aurangzeb, Dy. Secy. M/o L&M; Tariq Saeed Hashmi, S.O.M/o. L&M; Tahira Zia,
JS M/o Information; Zaheer Ahmed Ch., Dy. Secy. and Sheraz Latif, Director Media for the
Department.
 
Dates of hearing: 5th to 8th April, 2004.
 
JUDGMENT
 
IFTIKHAR MUHAMMAD CHAUDHARY, J.---Above noted petition has been filed by the
petitioners under Article 184(3) of the Constitution of Islamic Republic of Pakistan [hereinafter
referred to as the Constitution].
 
2. Essential facts which have given rise to instant petition are that on 8th July, 2000, Government
of Pakistan constituted the 7th Wage Board under the Newspapers Employees (Conditions of
Service) Act (LVIII of 1973) [hereinafter referred to as the Act, 1973], for the purpose of fixing
the rates of wages of the newspaper employees. The Wage Board (hereinafter referred to as `the
Board'), comprising of 10 members, five each representing the employer and employees and the
Chairman Mr. Justice Raja Afrasiab Khan (Retd.) Judge of the Supreme Court of Pakistan,
pronounced its award, published by the Government of Pakistan vide S.R.O. No.744(I)/2001,
dated 25th October, 2001.
 
3. It is stated that petitioners represented to the Government of Pakistan through Secretary,
Information and Media Development and Secretary Labour Manpower and Overseas Pakistanis
for the redressal of their grievances against the award but no relief was given to them. Thus
petitioners invoked the original jurisdiction of this Court and filed instant petition, inter alia,
challenging the Constitutionality of the newspapers `Employees (Conditions of Service Act,
1973 being violative of the fundamental rights of the petitioners and ultra vires the Constitution,
and the award being void ab initio and of no legal effect and consequences.
 
4. The Registrar of the Court vide following order declined to entertain the petition:--
 
"Take notice that the above cited Constitution petition filed by you is not entertainable as
it relates to the grievance of a section of the people and not the whole of the nation, as
such, it does not come within the ambit of Article 184(3) of the Constitution of Islamic
Republic of Pakistan, 1973 as held by this Court vide its judgment titled as Syed Zulfiqar
Mehdi v. P.I.A. and another, reported as 1998 SCMR 793.
 
This petition is, therefore, returned herewith in original alongwith its paper books.
 
(Sd.)
Assistant Registrar (Civil)
For Registrar.
 
Against the aforesaid cider of the Registrar, petitioners preferred Civil Miscellaneous Appeal
No.23 of 2002 before a learned Single Judge in Chambers under Order V, Rule 3 of the Supreme
Court Rules, 1980 [hereinafter referred to as the Rules, 1980] which has been accepted vide
order dated 16th July, 2003 which reads as under thus:--
 
"In view of the rule laid down in the judgment dated 9-10-1996 passed in Constitutional
Petition No.30 of 1996, Civil Aviation Authority, Islamabad and others v. Union of Civil
Aviation employees and another PLD 1997 SC 781 and number of other cases relied
upon by the learned counsel for the appellant this civil miscellaneous appeal is accepted,
order dated 8-7-2002 of the Registrar set aside and the office is directed to entertain the
Constitutional petition, register it and fix before the Bench."
 
5. In compliance of the aforesaid order, office fixed the petition before the Court.
 
6. On 23rd January, 2003 during the pendency of petition, Mr. Muhammad Akram Sheikh, Senior
Advocate Supreme Court for respondents objected on the maintainability of the petition. The
objection has been recorded as under:--
 
"It has been seriously argued that this petition under Article 184(3) of the Constitution of
Islamic Republic of Pakistan is not maintainable. Mr. Makhdoom Ali Khan,
Attorney-General for Pakistan is present and accepts the notice to address this Court on
the question of maintainability of this petition. Relist on 25th of February, 2003"
 
7. Learned counsel for the petitioners was asked to first of all address arguments on the
maintainability of the petition in view of above objection. Thus he got recorded following
formulations for consideration:--
 
(a)        The order dated 16th July, 2002 passed by learned Single Judge accepting Civil
Miscellaneous Appeal No.23 of 2002 filed by petitioners is final thus cannot be
re-opened.
 
(b)        The expression `entertainable' as it has been used in the order dated 16th July, 2002 is
synonymous with the word `maintainable', and it has always been considered
interchangeably by this Court as well as also by the Indian Supreme Court in context of
corresponding provisions of the Article of Indian Constitution to Article 184(3) of the
Constitution.
 
(c)        Article 184(3) of the Constitution confers special original jurisdiction on the Court
notwithstanding the fact that identical relief could be granted by the High Court in
exercise of the jurisdiction under Article 199 of the Constitution, subject to the condition
laid down therein, therefore, in view of the principle that no provision of the
"Constitution is redundant, and Court is bound to give effect to its each part, instead of
non-suiting the petitioners after a period of two years, from the date of filing of petition,
it may be disposed of on merits in the interest of justice.
 
(d)        It is the consistent practice of the judicial forums in Pakistan that the Courts always
extend their jurisdiction instead of curtailing the same on technical grounds, therefore,
instant petition be disposed of on merits.
 
(e)        That to avoid the multiplicity of the litigation between the parties before the different
High Courts of the country, where a good number of the Constitution petitions under
Article 199 of the Constitution would be filed by the owners of 256 Newspapers,
Magazines, Journals, etc., if instant petition is not found competent for hearing which
besides increasing the pendency of the cases would also involve huge expenditure,
therefore, to provide inexpensive remedy to both the sides, in the interest of justice,
petition may be heard on merits.
 
8. Mr. Muhammad Akram Sheikh, learned Senior Advocate Supreme Court in reply to above
arguments contended as follows:--
 
(i)         The question of entertaining the petition by Mr. Justice Munir A. Sheikh (as he then was)
vide order dated 16th July, 2003 is not final because in the Supreme Court, according to
Rules, cases are not heard by the learned Judges sitting singly like the High Courts and
particularly in respect of the petition under Article 184(3) of the Constitution, a Bench of
at least two Hon'ble Judges hear the petition in terms of Order XXV, Rule 7 of the Rules,
1980, therefore, order dated 14th July, 2003 passed by a learned Judge in Chambers in
Civil Miscellaneous Appeal at the best, could be construed as an order directing the
petition to be placed before the Court for decision according to law.
 
(ii)        The expression `entertainable' and `maintainable' are not interchangeable because the
Court comprising at least two Hon'ble Judges can dismiss such petition at any stage.
Reliance was placed by him on State Life Insurance Employees Federation v. Federal
Government of Pakistan 1994 PLC (C.S.) 964.
 
9. It is to be noted that as per the definition of expression `entertain' by Mitra's Legal and
Commercial Dictionary (page 270) and Words and Phrases by Surendra Malik (page 232) are
identical i.e. `entertainment' means `proceed to consider on merits' or `adjudicate upon', whereas
the expression `entertain' has also been defined in Hindustan Commercial Bank v. Punnu Sahu
AIR 1970 SC 1384 and Pakistan Steel Peoples Worker's Union v. Registrar of Trade Unions,
Karachi 1992 PLC 715 referred to by the learned counsel for petitioners according to which, it
means not merely filing of an application or institution of proceedings but would mean
adjudicated upon or proceed to consider on merits. In these judgments such definition has been
assigned to the expression `entertain' with reference to the specific provision of the law discussed
therein. Therefore, for the purpose of instant case, expression `entertain' would be defined with
reference to the Rules, 1980, which regulate the proceedings of this Court.
 
Learned counsel for petitioners stated that under Order V, Rule 1(6) of the Rules, 1980, the
Registrar exercises the powers of the Court in respect of the matters enumerated therein, which
also includes the powers of registration of petitions, appeals, suits and other matters but the
Registrar vide order dated 8th July; 2002 declined to register the petition as such against this
order, miscellaneous appeal was fled before the Judge in the Chambers under Order V, Rule 3 of
the Rules 1980. The learned Judge after having taken into consideration the order passed by this
Court in Constitution Petition No.30 of 1996 and the judgment in case of Civil Aviation
Authority v. Union of Civil Aviation Employees PLD 1997 SC 781 and in number of other cases
relied upon by the petitioners' counsel, accepted the civil miscellaneous petition and set aside the
order of the Registrar dated 8th July, 2002 with the direction to the office to entertain the
petition, register it and fix before the Bench. Therefore, according to him, this order has achieved
finality, therefore, question of maintainability of the petition is not open to debate.
 
It is to be seen that under the scheme of the Rules 1980, there are two types of provisions, one
which deals in respect of filing of ordinary petitions for leave to appeals, etc., and secondly there
are some of the provisions which are meant for dealing of special types of cases like, application
for enforcement of fundamental rights under Article 184(3) of the Constitution, Habeas Corpus,
Mandamus, Prohibition, Certiorari, Quo Warranto, etc. Order XXV of the Rules, 1980. Rule 7 of
Order XXV provides that such applications shall be heard by a Bench consisting of not less than
two Hon'ble Judges of the Court, therefore, with all humility at our command, we are of the
considered opinion that the learned Single Judge while disposing of appeal filed before him,
either under Order V, Rules 3 or under Order XVII, Rule 5 of the Rules, 1980, cannot decide the
question of maintainability of a petition. Thus with reference to these rules in the instant case,
expression 'entertain' would be defined in its ordinary dictionary meanings i.e. 'to receive'. This
definition seems to be more appropriate because the learned Single Judge in Chamber has
directed the office 'to entertain the Constitution petition, register it and fix before the Bench'.
Needless to observe that the Hon'ble Judges responsible to administer justice are fully aware
about the relevant provisions of law on the subject and unless it is proved otherwise, it would be
deemed that E orders have been passed in accordance with law. Since Order XXV, Rule 7 of the
Rules 1980 is mandatory in nature, therefore, learned Single Judge was fully aware that entertain
ability of petition under Article 184(3) of the Constitution can only be decided by a Bench of not
less than two members of this Court. Thus he accepted the miscellaneous appeal only to the
extent of registering the petition by using the word `register it'.
 
It is to be noted that if a petition has been admitted for hearing even in accordance with rules by
the requisite number of the Hon'ble Judges, the same can also be dismissed subsequently as it
had happened in the judgment relied upon by the learned counsel Mr. Muhammad Akram
Shiekh, Senior Advocate Supreme Court i.e. State Life Insurance Employees Federation (ibid),
wherein the petition has been admitted but it was dismissed subsequently on coming to the
conclusion that the petitioner has failed to establish that any fundamental rights under Chapter I,
Part II of the Constitution has been violated, therefore, the argument raised in this behalf by the
learned counsel for petitioners being devoid of force is repelled and it is held that question of
maintainability of petition under Article 184(3) of the Constitution is open for consideration.
 
10. Learned counsel for petitioners made another attempt to dislodge the impression that the
question of maintainability of the petition is not open for consideration on the premises that at
this belated stage after a period of about two years from the date of institution of petition, it
would not be in the interest of justice to non-suit the petitioners on a technical ground,
particularly in view of the fact that when the respondents remained indolent as they did not raise
n objection on maintainability of the petition at the earliest.
 
Mr. Muhammad Akram Sheikh, learned Senior Advocate Supreme Court for respondents
seriously controverted to this argument of the petitioners counsel and pointed out that after
institution of the petition, it was not enlisted for hearing for a considerable time. However, on the
first effective date of hearing i.e., 23rd January, 2003 he being counsel of one of the respondents
raised objection on its maintainability. Later on case could not proceed for one or the other
reasons, which too cannot be attributable to the respondents, however, no sooner the hearing of
the petition commenced, they raised the objection on its maintainability. Similar was the position
of the official respondents because while submitted concise statement they also took exception to
the maintainability of the petition.
 
A perusal of case file transpired that effective hearing of the case took place on 23 rd January,
2003, when learned counsel for respondents specifically objected on the maintainability of the
petition. Relevant contents of the order have already been reproduced in the para. supra.
Subsequent thereto the Federation of Pakistan i.e. respondent No.1 in the concise statement
categorically raised the objection about the maintainability of the petition. Surprisingly thereafter
effective hearing of the case could not take place. However, on 23rd February, 2004, when the
matter came up for hearing on the pointation of the respondents' counsel, learned counsel for
petitioners was called upon to address the Court on the question of maintainability of the
petition. Therefore, the contention raised by the learned counsel being contrary to the facts
available on record needs no serious consideration. However, it may be noted that delay caused
by any of the parties in raising objection on the jurisdiction of the Court including the
maintainability of the proceedings, ipso facto, do not constitute a ground to overrule the
objection and assume the jurisdiction without determining whether essential conditions have
been fulfilled by the claimant to persuade the Court that it has -jurisdiction to decide the case.
Needless to observe that in the administration of justice determination of the jurisdiction by the
Court seized with the matter is one of the important elements because if justice has been
provided basing upon corum non judice orders, it would I have no legal sanction behind it. Thus
with reference to instant case jurisdiction under Article 184(3) of the Constitution has to be
exercised subject to establishing by the petitioners that question of public J importance with
reference to the enforcement of fundamental rights has been made out. If both these essential
components are missing then the Court would not assume the jurisdiction.,
 
11. Learned counsel for petitioners contended that to; avoid the multiplicity of the litigation and
to provide inexpensive remedy, entertaining of the instant petition would advance cause of
justice. In support of his contention he has cited definition of Class or representative action"
from Black's Law Dictionary (page 249) according to which "a class action provides a means by
which, where a large group of persons are interested in a matter, one or more may sue or be sued
as representative of the class without needing to join every member of the class". On the question
of providing inexpensive remedy, he referred the case of Benazir Bhutto v. Federation of
Pakistan PLD 1988 SC 416 wherein it has been observed that "it is obvious from the language of
Article 184(3) that it provides a direct access to the highest judicial forum in the country for the
enforcement of Fundamental Rights. It caters for an expeditious and inexpensive remedy for the
protection of Fundamental Rights from legislative and Executive interference". As far as the
propositions discussed in this authority are concerned, there is no cavil with the same. However,
before applying stated procedural principles, it is all the more necessary to look whether proof
has been provided that proceedings have been instituted validly, after having fulfilling the
conditions precedent for assuming jurisdiction by the Court and no other adequate remedy is
available. Undoubtedly, without establishing the essential conditions mentioned in Article 184(3)
of the Constitution and furnishing convincing evidence that no other adequate remedy is
available, the argument raised by the learned counsel for petitioners seems to be premature. In
this behalf, however, reference to the case of Abdur Rehman v. Haji Mir Ahmed Khan PLD
1983 SC 21 would not be out of context, wherein it has been held that "the High Court can
exercise the Constitutional jurisdiction only on proof of non availability of adequate remedy". In
this report the petitioner had a right of appeal having wide scope and he instead of availing the,
same, invoked the Constitutional jurisdiction of the High Court, therefore, in this context the
principle highlighted above was pronounced.
 
12. Learned counsel for petitioners then contended that:--
 
(1)        Instant petition involves the question of fundamental right of the public under Article 19
of the Constitution because freedom of press is a people's personal right rather than the
proprietary rights of petitioners and if it is not protected from the exorbitant financial
burdens being imposed upon the petitioners through 7th Wage Board Award, except the
few amongst the petitioners, others would be forced to close down their business,
resulting in dissemination of information to the general public.
 
(2)        The freedom of press is not only the right of the petitioners but it is the right of the
people of Pakistan, therefore, question of public importance is involved in the instant
petition, thus petition is maintainable under the law.
 
(3)        An oppressive law i.e. the Act, 1973 has been promulgated by the Government to keep
its hold upon the press because one man has been authorized to pronounce Wage Award
by delegating him excessive authority against which no right of appeal, revision and
review is provided, therefore, it being a law ultra vires the Constitution deserves to be
struck down.
 
13. On the other hand learned counsel appearing for respondents contended that:
 
(a)        Instant petition does not involve enforcement of any of fundamental rights of the
petitioners, therefore, the same is not maintainable nor it gives rise to the question of
public importance, as such, deserves to be dismissed.
 
(b)        A larger Bench of this Court comprising of five Hon'ble Judges in Constitution Petition
No.3-K of 1999 decided on 14th December, 1993, has held that Wage Board Award
hardly constitutes a question of public importance, therefore, instant petition is not
maintainable under Article 184(3) of the Constitution.
 
(c)        The controversy between the parties relates to dispute between the two groups i.e.
employer and employees, arising out of the 7th Wage Board Award, therefore,, no
question of curtailing the freedom of press arises.
 
(d)        The vires of the Act, 1973 is under consideration in I.-C.A. arising out of the judgment of
the Lahore High Court, in Writ Petition No.8926 of 1996, declaring that 6th Wage Board
Award does not suffer from any legal infirmity, therefore, till its decision, in view of the
judgment in the case of Manzoor Elahi v. Federation of Pakistan PLD 1975 SC 66 the
question of Constitutional status of the Act, 1983 may be postponed.
 
(e)        Besides it, on account of non-providing remedy of appeal, revision or review, a law
cannot be struck down.
 
14. Before dilating upon the contentions of the parties counsel, summarized hereinabove, we
consider it appropriate to record the statement of Mr. Abdul Hafeez Pirzada, learned Senior
Advance Supreme Court; made by him at the bar that "petitioners/owners of the newspapers are
ready and willing to implement the 7th Wage Board Award to the extent of working journalists.
As far as the implementation of the award qua the non-working journalists including Qasid,
peons, Malis, etc. are concerned, it is not implementable because their wages have been
increased arbitrarily/discriminately qua the employees enjoying equal status working in the other
organizations". This statement has narrowed down the scope of the controversy between the
parties. Although learned counsel for respondents particularly Mr. Muhammad Akram Sheikh,
Senior Advocate Supreme Court has pointed out that there is no distinction between the working
and non-working journalists, as section 2(d) of the Act, 1973 only defines the newspapers
employees, therefore, the award has to be applied to all the newspapers employees without any
discrimination. Be that as it may, on the basis of the statement so made by the learned counsel
for petitioners, it can safely be held that the award is valid for all intent and purposes to the
extent of working journalists, therefore, it does not give rise to question of public importance
involving fundamental rights of the petitioner to their extent.
 
In addition to above, it may be seen that this Court in its earlier decision in Constitution
Petition No.3-K of 1990, dated 14th December, 1993, while dismissing a petition under Article
184(3) of the Constitution against interim 5th Award, pronounced by the five Hon'ble Judges has
held that the controversy does not give rise to the question of public importance. For
convenience relevant para. from the judgment is reproduced hereinbelow;--
 
"……………. Petitioners Nos. 2 to 9, who are owners and publishers of newspapers,
magazines and other publications while petitioner No. 1 is their representative body, have
raised the questions whether the Act is violative of fundamental rights and whether the
award is "viotative of the Constitution and in excess of jurisdiction of the Wage Board".
These questions in the relevant controversy can hardly be questions of public importance
Furthermore, challenge to the validity of the award depends on investigation into
disputed questions of fact, claims and counter claims of the parties involving appreciation
of voluminous evidence on record. Such investigation under Article 184(3) may not be
permissible particularly when questions raised are not of public importance. "
 
15. Learned counsel for petitioners contended that the above judgment was pronounced in a
petition which has become infructuous, therefore, the observations made therein are obiter dicta,
as such have no binding force on present proceedings.
 
16. In the Constitution Petition No.3-K of 1990 which has been disposed of on 14th December,
1994 by means of above judgment, initially interim award pronounced by 5th Wage Board was
challenged before this Court under Article 184(3) of the Constitution. During its pendency, the
Wage Board announced the final award, therefore, learned counsel appearing for petitioners
submitted an application seeking amendment, which was declined and by means of above order
petition as a whole was dismissed. As such question for consideration would be as to whether
observation recorded by a larger Bench of this Court is an obiter dicta or it is the ratio decidendi
of the judgment?
 
17. Mr. Muhammad Akram Sheikh, learned counsel appearing for respondents to resolve the
controversy relied upon Fundamental Law of Pakistan by A.K. Brohi (page 609) to substantiate
that judgment of five Hon'ble Judges has got binding effect on present proceedings being the
ratio decidendi of the judgment. He referred to the following principles, from the above Book:--
 
"How to Determine the Ratio Decedendi of a case.--We would, to begin with, notice
some of the important definitions that have been offered by prominent English Jurists, of
terms like Ratio Decidendi and Obiter Dicta with a view to discovering the rule by resort
to which the binding authority of a judicial precedent and its application to the facts of a
given case could be determined:
           
1. "The underlying principle of a judicial decision", says Stephen in his commentaries on
the Laws of England, Vol. 1, p. 11, "which forms its authoritative element for the future,
is termed Ratio Decidendi. It is contrasted with an Obiter Dictum, or that part of a
judgment which consists of the expression of the Judge's opinion on a point of law which
 is not directly raised by the issue between the litigants. Obiter dicta are often valuable
though not binding, statement of the law."
 
2. Sir John Salmond in his Jurisprudence says (at p.1910):
 
"A precedent, therefore, is a judicial decision which contains in itself a principle. `The
underlying principle which this forms its authoritative element is often terms the ratio
decidendi. The concrete decision is binding between the parties to it, but it is the abstract
ratio decidendi which alone has the force of law as regards the world at large."
 
3. So also Professor Chipman Gray-says in his book `Nature and the sources of Law'
about a judicial precedent (p.261).
 
"It must be observed that a common law not every opinion expressed by a Judge forms a
judicial precedent, two things must concur: it must be, in the first place, an opinion given
by a Judge, and, in the second place, it must be an opinion the formation of which is
necessary for the decision of a particular, case; in other words, it must not be obiter
dictum."
 
4. Similarly, Professor C.K.Allen, in his `Law in the making' says (at p.241).
 
"Any judgment of any Court is authoritative only as to that part of it, called the ratio
decidendi, which is considered to have been necessary to the decision of the actual issue
between the' litigants. It is for the Court, of whatever degree, which is called upon to
consider the precedent, to determine what the true ratio decidendi was."
 
5. In Halsbury's Laws of England (Volume 19, Second Edn, para.556) the rule is stated as
follows;
 
"It may be laid down as a general rule that that part alone of a decision of a Court of law
is binding upon Courts of co-ordinate jurisdiction and inferior Courts which consists of
the enunciation of the reasons or principle upon which the question before the Court has
really been determined. This underlying principle which forms the only authoritative
element of a precedent is often termed the ratio decidendi."
 
Besides the above, he also referred definition of `ratio decidendi' from Smith and Bailey on The
Modern English Legal System.
 
1. RATIO AND DICTUM
 
" ... ... ... ... The ratio decidendi of a case is any rule of law expressly or impliedly treated
by the Judge as a necessary step in reaching his conclusion, having regard to the line of
reasoning adopted by him, or a necessary part of his direction to the jury .. .. ... ...
 
On the definition of the obiter dicta, reliance was placed on the following books:--
 
 1. Stroud's Judicial Dictionary of Words and Phrases (5th Edition) (page 1721)
 
"OBITER DICTA" Obiter dicta are what the words literally signify, namely, statements
by the way. If a Judge thinks it desirable to give his opinion on some point which is not
necessary for the decision of the case, that of course has not the binding weight of the
decision of the case, and the reasons for, the decision (Flower v. Ebbo Vole Steel, Iron &
Coal Co. (1934) 2 K.B. 132, 154).
 
2. The Law Lexicon [Vol.II] (page 243).
 
"OBITER DICTA, DICTA AND RATIO DECIDENDI" The question which is necessary
for the determination of a case would be the ratio decidendi the statements made in
passing are in the nature of obiter dicta.
 
3. Words and Phrases [Vol. 29] (page 16).
 
"Obiter dicta" is that part of an opinion which does not express any final conclusion on
any legal question presented by case for determination or any conclusion on any principle
of law which it' is necessary to determine as basis for final conclusion on one or more
questions to be decided by Court."
 
4. Shorter Constitution of India [12th Edition] (page 141).
 
"Obiter dicta.--(1) An obiter dictum is an observation by a Court on a legal question
suggested by a case before it, but not arising as to require decision. It is not binding as a
precedent, because the observation was unnecessary for the decision pronounced by the
Court.       
 
(2) But though not binding as a precedent, an obiter of the Supreme Court, being the
highest Tribunal, is worthy of respect and considerable weight."
 
(3) But the law which will be binding under Art.141 would extend only to observations
on points raised and decided by the Court, in a case. It is, therefore, a practice of the
Court not to make any pronouncement, particularly in Constitutional matters, on points
not directly raised for its decision.
 
(4) While the decision in a judgment of the Supreme Court cannot be assailed on the
ground that certain aspects were not considered or the relevant provisions were not
brought to the notice of the Court, the position is different as regards obiter.
 
(5) Because an obiter-is not binding as the law declared under Art.141, it cannot be relied
upon solely.--
 
            "to hold certain statutory rules as invalid."
 
It is to be noted that in the Constitution Petition No.3-K of 1990, newspaper owners i.e.
petitioners before us challenged interim 5th Wage Board Award as well as the Act of 1973 being
violative of the Articles 4, 18, 19 and 25 read with Article 2-A of the Constitution as well as
arbitrary and unreasonable/ultra vires the Constitution etc. pending decision of the petition, the
Wage Board announced its award. Petitioner sought permission to amend the petition but the
Court did not grant the permission to amend the petition as application for amendment was filed
after a period of 2 years but the Court proceeded to examine the question about its
maintainability and opined that "relevant controversy can hardly be questions of public
importance". It may be that these findings were given by five Hon'ble Judges, taking into
consideration law already available .on the subject, in the light of facts and circumstances of the
case. Therefore, such findings cannot be considered to be obiter dicta as the questions pondered
upon were very much involved in the matter as per the contents of the petition which has been
referred to hereinabove. Thus the judgment dated 14th December, 1993 in Constitution Petition
No.3-K of 1990 has settled the question T that challenging of award of the Wage Board does not
give rise to a question of public importance involving enforcement of any of the fundamental
rights, conferred by Chapter I, Part II of the Constitution.
 
18. Next question for examination would be as to whether a different view qua the judgment
dated 14th December, 1993, passed by a Bench comprising of five Hon'ble Judges, can be taken
by this Bench comprising three Judges in the light of the arguments raised before us by the
learned counsel for the petitioners. Answer to this question is in negative in view of the ratio
decidendi of the following cases:--
 
S.No. Citation Conclusion/discussion
1. Province of East In this judgment binding effect of the judgment
Pakistan v. Azizul reported in AIR 1959 SC 814 on the same point was
Islam PLD 1963 SC considered and it was held that if the learned Judges of
296 relevant at 308  the High Court are inclined to take different view, they
should have, in accordance with the rules of their own
Courts, referred the matter to a larger Bench.
2 Province of East In this case principle discussed in the case of Province
Pakistan v. Sirajul Haq of East Pakistan (ibid) has been followed.
Patwari PLD 1966 SC
854 relevant at 923      
3 Pir Baksh v. Chairman, Relevant portion from this judgment is reproduced
Allotment Committee hereinbelow:--
PLD 1987 SC 145  
relevant at  163).          "In a controversy raising a dispute inter parties, the
thing adjudged is conclusive as between the parties
both on question of fact and law, but as to what the
Court decides generally is the ratio decidendi. or rule
of law for which it is the authority. It is this ratio
decidendi which is applicable to subsequent cases
presenting the same problem between third parties not
involved in the original case nor will either of the
original parties be bound in a subsequent dispute with a
 third party. It will be misnomer to say that this rule of
law acts in rem, this is, as against the whole world as
conceptually the applicability of the rule of law is
either founded on the doctrine of, precedent as under
the English law or rule of stare decisis, and none of the
doctrines in its application is inflexible for what has
been recalled elsewhere in or the judgment. Therefore,
the judgment cannot act in rem, as is sought to be
argued.
 
The above principles have been reiterated in the cases of Multiline Associates v. Ardeshir
Cowasjee PLD 1995 SC 423 and Muhammad Saleem v. Fazal Ahmed 1997 SCMR 314. For
sake of convenience relevant para. from the last noted judgment is reproduced hereinbelow:--
 
We, therefore, hold that the earlier judgment of equal Bench in the High Court on the same point
is binding upon the second Bench and if a contrary view had to be taken, then rest constitution of
larger Bench should have been made.
 
Likewise, above principle has further been reaffirmed in the cases of Babar Shehhzad v. Said
Akbar 1999 SCMR 2518 and Ardeshir Cowasjee v. Karachi Building Control Authority 1999
SCMR 2883. Relevant para. from me latter is reproduced hereinbelew:--
 
"           ..          ....        ..It may be pointed out that a Bench of the same number of Judges
of the same High Court, o- of the Supreme Court, cannot deviate from the view of an
earlier Bench as rightly has been held in the case of Multiline Associates v. Ardesher
cowasjee and others PLD 1995 SC 423 (supra) in relation to the High Court. "
 
19. It is to be observed that number of judgments were cited at the bar by both the sides to
elucidate that what is the definition of public importance. Mr. Abid Hassan Minto, learned
counsel emphasized that basic judgment in this behalf is in the case of Manzoor Elahi v.
Federation of Pakistan PLD 1975 SC 66. Relevant para there-from reads as a thus:--
 
"Now, what is meant by a question of public importance. The term `public' is invariably
employed in contradistinction to the terms private or individual, and connotes, as an
adjective, something pertaining to, or belonging to the people, relating to a nation, State
or community. In other words, it refers to something which is to be shared or participated
in or enjoyed by the public at large, and is not limited or restricted to any particular class
of the community. As observed by the Judicial Committee of the Privy Council in
Hamabai Framjee Petit v. Secretary for India in Council (ILR 39 Bom 279) while
construing the words `public purpose' such a phrase, `whatever else it' may mean---must
include a purpose, that is an object or aim, in which the general interest of the
community, as opposed to the particular interest of individuals is directly and vitally
concerned'. This definition appears to me to be equally applicable to the phrase `public
importance'."
 
20. Raja Muhammad Akram, learned Advocate Supreme Court contended that after the
pronouncement of above judgment, a good number of cases have been decided by this Court
involving question of life and liberty of a citizen but in none of the cases the controversy relating
to a dispute of the payment of wages between the employer and an employee has been
considered to be a question of public importance We may observe that as far as petitioners are
concerned, they have got a fundamental right to establish the business of newspapers but it is not
their fundamental right that how he/they would be managing finances to run the business, which
also include payment of wages to its/their employees because if he/they have no finances, then
his/their business is bound to collapse and merely non-availability of the funds would not involve
fundamental rights of the petitioners nor it will give rise to a question of public importance
because if this argument is accepted then in respect of every industrial dispute between
employers and employees relating to the payment of wages, either of them would be filing a
petition under Article 184(3) of the Constitution without considering whether such dispute has
given rise to the question of public importance or not.
 
21. Thus, we feel no hesitation in holding that each case put up before the Court under Article
184(3) of the Constitution has to be determined on its own merits, as it has been observed in the
case of Benazir Bhutto (ibid) relevant para. therefrom is reproduced hereinbelow:-
 
"Having regard to the connotation of the words `public importance' it will be for the
Supreme Court to consider in each case whether the element of `public importance' is
involved in the enforcement of the Fundamental Rights irrespective of the individual's
violations of the infractions of a group or a class of IX persons."
 
22. Learned counsel for petitioners, however, contended that this Court in respect of identical
subject-matter i.e. relating to dissemination of information to general public through cable, TN.
and F.M. Radio Stations, has admitted a Constitution Petition being No.30 of 1996, inter alia, to
examine that the term `freedom of press' as occurring in Article 19 of the Constitution also refers
to `freedom of radio, T.V. and other modern mass media'. On our query he stated that this
petition is pending and yet has not been decided. In this behalf firstly it is to be noted that
petition was filed against the State run machinery i.e. T.V. etc. wherein a question of granting the
licence to operate the Cable System, T.V. F.M. Radio Station by the Federal Government of
Pakistan to some private persons involved and the case of petitioner is that citizen of Pakistan
has got an equal right to receive information through these medias, therefore, licence in respect
thereto cannot be issued arbitrarily; secondly no comments in this behalf are required to be made
as the matter is still pending adjudication on the file of this Court. Besides it, with reference to
the case in hand, it is to be observed that five Hon'ble Judges of this Court have already
pronounced the judgment, ratio decidendi of which is that the controversy between the
petitioners and respondents does not constitute a question of public importance therefore, being
judgment of an authoritative nature has binding effect upon the issues which already stand
resolved.
 
23. Raja Muhammad Akram learned counsel for respondents stated that in an identical case
where a dispute has arisen between two groups i.e. employers and employees namely Zulfiqar
Mehdi v. Pakistan International Airlines Corporation 1998 SCMR 793 this Court did not grant
relief to the petitioner and dismissed the petition by making following observations:--
 
"11. We now proceed to examine the controversies raised by the petitioners in the above
cases in the light of the above stated principles. The issues arising in a case, cannot be
considered as a question of public importance, if the decision of the issues affects only
the rights of an individual or a group of individuals. The issue in order to assume the
character of public importance, must be such that its decision affects the rights and
liberties of people at large. The objective `public' necessarily implies a thing belonging to
people at large, the nation, the State or a community as a whole. Therefore, if a
controversy is raised in which only a particular group of people is interested and the body
of the people as a whole or the entire community has no interest, it cannot be treated as a
case of public importance Firstly, the controversy raised in the above petitions that the
petitioners who were dismissed under M.L.R. 52 were not allowed back-benefits on
re-employment in the service of P.I.A.C. cannot be treated as on issue of "public
importance" as the decision of this issue is hardly of any significance to the people at
large or to the whole community."
 
He pointed out that above dictum has been approved again by five Hon'ble Judges of this Court
in the case of Watan Party v. Chief Executive PLD 2003 SC 74. For convenience relevant para.
therefrom is reproduced hereinbelow:--
 
"The issues arising in a case, cannot be considered as a question of public importance. If
the decision of the issues affects only the rights of an individual or a group of individuals.
The issue in order to assume the character of public importance, must be such that its
decision affects the rights and liberties of people at large. The adjective `public'
necessarily implies a thing belonging to people at large, the nation, the State or a
community as a whole. Therefore, if a controversy is raised in Which, only a particular
group of people is interested and the body of the people as a whole or the entire
community has no interest, it cannot be treated as a case of public importance."
 
Therefore, he contended that the principle laid down in. the case of Zulfiqar Mehdi (ibid) has
been approved by five Hon'ble Judges in Watan Party's case, as such on the question of public
importance qua dispute between employers and employees has become final and it cannot be
overruled by this Bench unless larger Bench is constituted in this behalf. We; are in agreement
with him.
 
24. We enquired from Mr.Afzal Siddiqui, Senior Advocate Supreme Court who is holding brief
on behalf of the petitioners to explain that in view of the different provisions of the Act, 1973
which essentially deals with the terms and conditions of the newspapers employees including
fixation of the wages, may be higher or lesser, if a dispute has arisen, whether it would constitute
a question of public importance. He could A not answer satisfactorily except saying that
pronouncement of Wage Board Award if implemented will curtail the freedom of press. We are
not impressed from his this explanation in view of the discussion made hereinabove, therefore,
we are inclined to hold that a dispute between employ' and employees in terms of the Act, 1973
would not give rise to the question of public importance one of the essential conditions to attract
he jurisdiction of this Court under Article 184(3) of the Constitution.
 
25. Raja Muhammad Akram learned Advocate Supreme Court cited a good number of judgments
from the Indian Jurisdiction to contend that non providing of right of appeal, review or revision
in the Act, 1973 cannot be considered a valid reason to strike down the same. He also cited the
judgment on the point that newspaper employees have got an absolute right of life and liberty
under Article 9 of the Constitution which is tagged with earning of livelihood and on account of
nonpayment of their wages, the employer cannot enforce fundamental right enshrined in Article
19 of the Constitution. These questions are left open for the time being lest it may cause
prejudice to the case of any of the parties if put up before appropriate forum at a latter stage.
 
Thus for the foregoing reasons, instant petition under Article 184(3) of the Constitution of
Islamic Republic of Pakistan is not maintainable, therefore, the same is dismissed. Petitioners
may avail appropriate remedy before the competent forum, if desired or advised, to accordance
with law. No order as to costs.
 
S.A.K./A-43/S                                                                                     Petition dismissed.