1988 PLP 836 (PLC)

The appellant abovenamed has filed this appeal under section 17 of the Payment of Wages Act, 1936 being aggrieved and dissatisfied with the order dated 8‑6‑1986 passed by the Authority under the Payment of Wages Act, 1936 read with section 12(6) of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968.

2. The brief facts leading the appeal are that the appellant Murtaza Khan had filed an application in the Court of Commissioner for Workmen's Compensation an Authority under the Payment of Wages Act, West Division, Karachi bearing. Application No.143/1986 praying therein for grant of his claim of gratuity amounitng to Rs.7,259 and pleaded therein that he was permanent worker employed by opponent M/s. Diamond Rubber hills drawing Rs.2,500 per month and that he was simply paid Rs.4,402 as gratuity out of total collected amount of Rs.11,667 and thus he prayed for the payment of arrear of gratuity amounting to Rs.7,

259. The said application was contested before the said authority and the said authority dismissed the application of the applicant by impugned order dated 18th June, 1987 holding that the said Court has l1ad no jurisdiction to proceed further.

3. I have heard the learned counsel appearing for both the sides and I have also perused the relevant record.

4. Mr. Riaz Hussain Balouch the learned counsel for the appellant has attempted to assail the order of the lower Court mainly on the ground that the learned lower Court has erred in law in holding that the said Court had no jurisdiction. He argued that the gratuity was not included in the term "Wages" and for the recovery of the gratuity the authority was specifically vested with powers u/s 15(2) of Payment of Wages Act, and there was no bar of amount of Rs.1,500 as wages under the law. He argued that the appellant was workman as defined by the law and therefore he was entitled to award of gratuity. In support of his submission the learned counsel for the appellant referred me to 1981 P L C 625, 1980 P L C 521.

5. The learned counsel for the respondent argued that the learned lower Court has no jurisdiction to allow the claim of the arrear of the gratuity. He also argued that the appeal was not maintainable before this Court because there was no direction by the learned lower Court and the appeal only lies against the direction.

6. I cannot persuade myself to share such view of the learned counsel because allowing an application and also its refusal amounts to a direction as defined by law and is appealable before this Court.

7. The learned counsel for the respondent raised second contention that the Payment of Wages Act concern to person who draw wages up to Rs.1,500 per month whereas the appellant was drawing wages amounting Rs.2,500 per month and hence the Authority had no jurisdiction beyond that pecuniarly limit. This submission of the learned counsel is not also plausible because it, is not the wages that brings) a worker within the definition of workman.

8. The learned counsel for the respondent further submitted that the proper Court for seeking the relief about the payment of arrear of gratuity was before the Civil Court. In support of his such submission he referred me to an authority of the Baluchistan High Court reported at 1986 P L C 760.

9. At the moment the question now to be resolved is that before which forum the appellant can seek such remedy of payment of arrear of, gratuity.

10. The entitlement of the appellant to grant of gratuity is not disputed but simply the forum before which the appellant can seek such relief is to be seen in light of law submitted by both the counsel.

11. The learned counsel for the appellant had referred me to 1980 P L C 521, but in my humble opinion he cannot solicit the support from the said authority because the facts of that case are different from the facts of the present case. In the said case there was question about claim of Group Insurance by employee of K.D.A. whereas in the present case such are not the facts.

12. The learned counsel for the appellant had also referred me to an authority reported as 1981 P L C

625. In my humble opinion he cannot solicit the support from the said authority because that pertains to the definition of a worker, and in the present case there is no such dispute regarding the definition of workman.

13. The learned counsel for the respondent has referred me to a case Mr. Abdul Haleem Warsi v. Chief Executive Independent Newspapers Corporation Limited and three others wherein their Lordships of Mr. Nazir Ahmad Bhatti and Mr. Mir Hazar Khan Khoso of Hon'ble Quetta High Court were pleased to hold:‑ "Payment of Wages Act Section 15‑‑C.P.C. Section 8‑‑Arrears of gratuity, provident fund, recovery of‑‑Arrears of gratuity and provident fund being not included in term wages, employee, held, could not seek remedy from forum as provided in section 15 of Payment of Wages Act‑‑Employees' remedy would be in Civil Court for claims of recovery."

14. Their Lordships have been pleased to take into considration the case reported at 1984 P L C 325 wherein the said view was also held.

15. Thus their Lordships had properly setforth that the remedy for recovery of arrears of gratuity would lie before a civil Court.

16. The learned counsel for the appellant has not been able to quote any recent law of any Hon'ble High Court holding the different view. As such the view of their Lordships in the said Division Bench Authority would be binding and holds full legal fore.

17. In view of the said authority I hold that the appeal mere, be dismissed, with no order as to costs. A.E./1125/Lb.S??????????????????????????????????????????????????????????????????????????????????? Appeal dismissed.