CIVIL

All Pakistan Newspaper Society and others vs Federation of Pakistan and others-08/04/2004

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.

IN THE SUPREME COURT OF PAKISTAN

( Appellate Jurisdiction )

Present
Mr. Justice Iftikhar Muhammad Chaudhry

Mr. Justice Sardar Muhammad Raza Khan

Mr. Justice Falak Sher

CONSTITUTION PETITION NO. 35 OF 2002.

All Pakistan Newspaper Society … Petitioners
and others

Versus

Federation of Pakistan and others … Respondents

For the Petitioners … Mr. Abdul Hafeez Pirzada, Sr.ASC,

Mr. Afzal Siddiqui, Sr.ASC

Mr. Akram Chaudhry, Sr. ASC

Mr. M.S. Khattak, AOR.

For the respondents … Raja Muhammad Irshad, DAG

[1(a)(b),2,5-8] Mr. Nasir Saeed Sheikh, Standing Counsel

For the respondents : N.R.

[3(i) to 3(iii)]

For Respondent : Ch. Naseer Ahmed Bhutta, ASC

3(vii) Ch. Akhtar Ali, AOR

For respondent No. : Mr. Abid Hasan Minto, Sr. ASC

[3(vi) to 3(x) & V (i) to V(iii)] Ch. Akhtar Ali, AOR.

For respondent : Raja Muhammad Akram, Sr. ASC

[3(viii)]

For respondent No.4 : Mr. Muhammad Akram Sheikh, Sr.ASC

Mr. M.A. Zaidi, AOR

Respondent No.6 : In person.

For Department. : Mr. Muhammad Aurangzeb,

Dy. Secy. M/o L & M.

Mr. Tariq Saeed Hashmi, SO. M/o L & M

Mrs. Tahira Zia, JS M/o Information.

Mr. Zaheer Ahmed Ch. Dy. Secy.

Mr. Sheraz Latif, Director Media.

Date of hearing. : 5th to 8th April, 2004.

JUDGMENT

IFTIKHAR MUHAMMAD CHAUDHRY, J. – Above noted petition has been filed by the petitioners under Article 184(3) of the Constitution of Islamic Republic of Pakistan [herein after 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 (Condition 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 SRO No.744(1)/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 vs. P.I.A. & 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 order of the Registrar, petitioners preferred Civil Misc. Appeal No.23/2002 before a Learned Single Judge in Chambers under Order V Rule 3 of the Supreme Court Rules, 1980 [herein after 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 versus 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 misc. 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, Sr. ASC 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 C. Misc. 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 Sr. ASC in reply to above arguments contended as follows:-

i) The question of entertaining the petition by Mr. Justice Munir A. Sheikh (as then he 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 C. Misc. A. 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 (CS) 964).

9. It is to be noted that as per the definition of expression ‘entertain’ by Mitra’s Legal & Commercial Dictionary (page 270) and Words & 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 Hidustan Commrl. 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) the Rules of 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, Misc. appeal was filed 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 Misc. 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 Rule 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 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 entertainability of petition under Article 184(3) of the Constitution can only be decided by a bench not less then two members of this Court. Thus he accepted the Misc. 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 Sheikh, Sr. ASC 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 1 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 any objection on maintainability of the petition at the earliest.

Mr. Muhammad Akram Sheikh, learned Sr. ASC 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 respondent raised objection on its maintainability. Later on case could not proceed for one or the other reason, 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 submitting 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 23rd 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 its 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 element because if justice has been provided basing upon corum non judice orders, it would 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 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 then 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 give 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 ICA arising out of the judgment of the Lahore High Court, in W.P. No.8926/1996, 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 herein above, we consider it appropriate to record the statement of Mr. Abdul Hafeez Pirzada, learned Sr. ASC, 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 narrow down the scope of the controversy between the parties. Although learned counsel for respondents particularly Mr. Muhammad Akram Sheikh, Sr. ASC 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 with out 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 herein below : –

“…………Petitioners No.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 “violative 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 Decidendi 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 rules 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 principles of a judicial decision”, says Stephen in his Commentaries on the Laws of England, Vol.1, p.II, “which forms its authoritative element for the future, is termed Ratio Decidendi. It is constrasted 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 thus 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. In order that an opinion may have the weight of a 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 Ed. 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 reason 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 & 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. Ebbw Vale 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 decidenti. 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 in such manner 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 noted 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 herein above. Thus the judgment dated 14th December 1993 in Constitution Petition No.3-K of 1990 has settled the question 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 1 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:-

Sr.No.

Citation

Conclusion/discussion

1-Province of East Pak. v. Azizul Islam (PLD 1963 SC 296 relevant at 308)

In this judgment binding effect of the judgment reported in AIR 1959 SC 814 on the same point was considered and it was held that if the learned Judges of 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 Pak. v. Sirajul Haq Patwari (PLD 1966 SC 854 relevant at 923)

In this case principle discussed in the case of Province of East Pak. (ibid) has been followed.

3. Pir Baksh v. Chairman, Allotment Committee (PLD 1987 SC 145 relevant at 163)

Relevant portion from this judgment are reproduced herein below:-

“In a controversy raising a dispute inter parties, the thing adjudged is conclusive as between the parties both on questions 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 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 herein below:-

“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 request for constitution of larger Bench should have been made.”

Likewise, above principle has further been reaffirmed in the cases of Babar Shehzad v. Said Akbar (1999 SCMR 2518) and Ardeshir Cowasjee v. Karachi Building Control Authority (1999 SCMR 2883). Relevant para from the latter is reproduced herein below:-

“……………………It may be pointed out that a Bench of the same number of Judges of the same High Court, or 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. Ardsher 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 therefrom reads as under 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 vs. 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 ASC 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 case 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 herein below :-

“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 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, TV and FM 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, TV 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. FM 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, licences 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 dismiss 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 an 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 herein below:-

“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) had 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, Sr. ASC 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 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 herein above, therefore, we are inclined to hold that a dispute between employer and employees in terms of the Act, 1973 would not give rise to the question of public importance one of the essential condition to attract the jurisdiction of this Court under Article 184(3) of the Constitution.

25. Raja Muhammad Akram learned ASC 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 struck 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 non payment 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, in accordance with law. No order as to costs.

J.

J.

J.

Islamabad,

08.04.2004.


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