1992 PLP 31 (PLC)

SPED HAIDER ALI PIRZADA, J.

This judgment will dispose of the above petition along with Constitutional Petition Nos.108/80, 1010/80, 139/81, 7/82 to 14/82, 28/82, 29/82, 119/82 to 122/82, 160/82 to 163/82, 177/82, 179/82, 3/83, 61/83, 69/83, 85/83, 89/83, 90/83, 92/83, 107/83, 111/83, 113/83 to 115/83, 127/83, 138/83, 139/83, 141/83, 170/83 to 175/83, and 7/84 which involve common facts and questions of law and the impugned orders dated 13-12-1981 passed by the respondent No.

1. The brief facts giving rise to the above petitions are that the ex -employees or the legal heirs of employees filed applications before the Authority under the Payment of Wages Act, 1936 (hereinafter referred to as the Act) at Hyderabad. In the above case, gratuity and group insurance were claimed, whereas in the remaining petitions gratuity and the payment of group insurance, conveyance allowance, washing allowance, house rent, in some of the petitions compensation at five times was claimed. The above applications were resisted by the petitioners. The petitioners pleaded that the respondent No.2/applicant was like all other employees of the Public Works Department, governed by the rules contained in PWD Manual Volume 1 and P.W.D. Code and Central Public Works Accounts Code as such the provisions of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 (hereinafter referred to as the Ordinance), were not applicable by virtue of proviso 1 to clause (c) of Section 1 of the Ordinance. However, the Authority on the basis of the judgment dated 28-10-1980 passed by the Sindh Labour Appellate Tribunal (1981 PLC 491) held that the PWD Manual does not contain statutory Rules and allowed the applications. It held that the Authority had jurisdiction to entertain the applications. This was based on the basis of judgments in the case of M/s. Crescent Textile Mills v. Commissioner for Workmen's Compensation and another, 1980 PLC 222 and M/s. Crescent Textile Mills, Karachi v. The Commissioner for Workmen's Compensation, West Division, Karachi and another 1980 PLC

239. The petitioners being aggrieved by the orders passed by the Authority filed appeals before the Lower Court at Hyderabad, Sindh, which were dismissed on various dates on the ground that the appeals were not competent as the petitioners had failed to file the certificate of deposit of the amount under the Act. The petitioners being aggrieved by the above orders have filed the present petitions. The learned counsel for the parties have filed written arguments in the above petitions. Mr. Sayeed A. Shaikh, the learned counsel for the petitioners has raised the following contentions in written arguments: (1) By virtue of proviso to clause (c) of section 1 of the Ordinance the application of the Ordinance was excluded and, therefore, the Authority could not have granted the said applications on the basis of the provisions of the Ordinance. (2) The respondent No.2 is not entitled to any relief. On the other hand Messrs Ali Amjad and Nooruddin Sarki, the learned counsel for the respondents in the above petitions submitted that there are no statutory rules relating to gratuity and group insurance and other allowances and as such they are not excluded by the proviso to clause (a) of section 1 of the Ordinance. The applications before the Authority were competent and the respondent No.l has jurisdiction to entertain the applications. The orders are in accordance with law. The first point has been considered by Rr. Ajmal Mian, J., (now Judge Supreme Court) in the case of the Secretary, Irrigation Department South, Karachi v. Nasir Khan (1985 PLC 1060) in which he has come to the conclusion after giving cogent reasons that the application of the Ordinance will be excluded only in respect of the matters which have been provided by the Government. Since there are no statutory rules relating to gratuity and group insurance, the provisions of the Ordinance relating to the above two terms shall be applicable even to Government employee falling within the definition of a workman. This decision was followed by Division Bench of this Court (comprised of Ajmai Mian, and Syed Haider Ali Pirzada, JJ.) in the unreported judgment W.P. Nos.D-234, 924, 980/89 dated 29-9-1987. The decision of the Division Bench is binding on me. In this view of the matter I hold that since there are no statutory rules relating to gratuity, group insurance and other allowances, the provisions of the Ordinance relating to the above items shall be applicable. The view taken by the Authority seems to be in consonance with law. The contention of Mr. Sayeed A. Shaikh is, rejected. The second contention that the Authority has no jurisdiction to entertain the applications is also devoid of force, This contention was negatived in the case M/s. Crescent Textile Mills. v. Commissioner for Workmen's Compensation and another, (19&0 PLC 22:') and M/s. Crescent Textile Mills, Karachi v. the Commissioner for Workmen's Compensation, West Division. Karachi and another (1980 PLC 239). It is now well-settled legal position that 1 the Authority has jurisdiction to entertain such applications. I see no reason to take a different view. In this view of the matter the second contention is without force. With regard to the last contention, firstly it may be observed that under the law the petitioners had adequate alternate remedy which they failed to avail by non depositing the amount as required under the Payment of Wages Act. Secondly, these pleas were specifically taken in written objections and then deliberately have abandoned them. In the present case, it has been observed by the Authority in its decisions/orders that in written objections/statements the factual pleas were taken. But the petitioners have not led any evidence to that effect and there was also no argument by the learned lawyer on behalf of the petitioners oa those points/pleas. It is, therefore, clear that the petitioners having raised the pleas, in written objections/written statements abandoned them before the Authority. No evidence has been led by the petitioners either oral and documentary in support of such pleas. The Authority had undoubtedly jurisdiction to decide these questions but the same were not pressed before the Authority. These points cannot be agitated in this extraordinary jurisdiction for the first time as C the same were not urged before the Authority. That being so, it cannot be held that the orders passed by the Authority are invalid. In view of the above considerations it is clear that the orders passed by the Authority, the first respondent, did not suffer from want of jurisdiction. In this view of the matter I do not desire to interfere with the impugned orders. For what has been stated above, the petitions are dismissed. However, the parties will be left to bear their own costs. H.B.T./C-231/K Petitions dismissed.