2009 PLP 30 (PLC)

BIN YAMIN, J.

This order will dispose of his instant constitutional petition, filed on behalf of the petitioner, Messrs Cummins Sales and Services (Pakistan) Limited against Waheeduzzaman and two others. Brief facts of the case are that the petitioner is a limited company incorporated under the Companies Ordinance, 1984 under the name and style of Messrs Diesel Power System Limited and later on the name of the company was changed to Messrs Cummins Sales and Services (Pakistan) Limited. That respondent No.1 was employed in February, 1996 as Secretary by the petitioner-company. That respondent No.1 continued his services with the petitioner-company up till 24-9-2002 when he was relieved from his duty on his tendering resignation. He was paid Rs.1,98,133 being arrears of salary and the Provident Fund maintained by the company. This payment is also acknowledged by respondent No.1. Thereafter, in March, 2003 respondent No.1 served the petitioner-company with the notice, demanding a sum of Rs.2,10,070 on account of Gratuity on the ground that he has served with the petitioner company for more than 10 years. The said notice was replied, however, not being satisfied with the reply of the notice, respondent No.1 filed application under section 15 of the Payment of Wages Act, 1936 with respondent No.2. The said application after hearing, was disposed of by respondent No.2 with following observations:-- "In view of above the applicant has proved his case and Respondent failed to defend the same as the Respondent is required to make payment of Rs.1,86,700 to applicant along with Compensation of Rs.5,60,100 total amount Rs.7,46,800 (Rupees seven lac forty-six thousand and eight hundred) and I direct them to deposit the same in this Court within a period of one month." Feeling aggrieved with the order of respondent No.2, the petitioner filed appeal under section 17 of the aforesaid Act before Sindh Labour Court No.5 i.e. the respondent No.3. However, the said appeal of the petitioner filed before respondent No.3 was dismissed in limine on the ground that the petitioner has failed to deposit the amount as ordered by respondent No.2. Hence the same is barred under section 17(1)(a) of Payment of Wages Act, 1936. Feeling aggrieved with the order of the respondent No.3, the petitioner has filed the present constitution petition. Heard advocate for the petitioner and perused case papers. Learned counsel for petitioner submitted that when the order is patently illegal and unsustainable in law, the petitioner is entitled to maintain constitution Petition, against that order, in this regard, he relied upon Messrs Hafiz Textile Mills Limited v. Commissioner for Workmen's Compensation and Authority under Payment of Wages PLD 1993 Kar.

713. That the order, directing the petitioner to deposit the arrears as pre-condition for admission of the appeal is also in violation of Articles 2-A and 227 of the Constitution. In this regard, he relied upon the Messrs Maple Leaf Cement Factory Limited v. The Collector of Central Excise and Sales Tax (Appeals), Lahore and others 1993 MLD 1645. He, therefore, requested for admission of the constitutional petition for regular hearing and its decision on merits. The perusal of the order of respondent No.3 shows that the appeal was rejected for non-compliance with the proviso of section 17(1)(a) of the Payment of Wages Act, 1936, which reads as under:

"17 (1)(a) by the employer or other person responsible for the payment of wages under section 3, if the total sum directed to be paid by way of wages and compensation exceeds three hundred rupees: (Provided that no appeal under this clause shall lie unless the memorandum of appeal is accompanied by a certificate of the authority to the effect that the appellant has deposited with the authority the amount payable under the direction appealed against, or)" It appears that he legislature has provided this provision form safeguarding the rights of the workmen to which he is entitled at the time of dismissal of the appeal filed before the Labour Court. The perusal of the said proviso shows that its compliance by the party filing appeal is mandatory and its non-compliance debars the further hearing of the appeal. As the impugned order has been passed taking into consideration the provisions of the Law, therefore, in my opinion, the same is quite correct and legal in the circumstances of the case and does not require any interference by this Court. The law cited by the learned counsel for the petitioner is not applicable to the facts of the present case as the facts involved in those decided cases were quite different from the facts of the instant petition. Hence, finding no merits in this constitution petition, I hereby dismiss the same in limine. M.H./C-13-K Petition dismisse