2002 PLP 253 (PLC)
SAADI CEMENT LTD. through Chairman and another Versus FAZAL‑E‑QADIR and another
| Citation | 2002 PLP 253 (PLC) |
| Forum / Court | Peshawar High Court |
| Bench Members | Ijaz‑ul‑Hassan and Abdul Rauf Khan Lughmani, JJ |
| Parties | SAADI CEMENT LTD. through Chairman and another Versus FAZAL‑E‑QADIR and another |
Q1: What are the key laws and sections cited in 2002 PLP 253 (PLC)?
This judgment primarily cites: statutory provisions as referenced in Pakistani case law index.
Q2: Which judicial bench decided the case 2002 PLP 253 (PLC)?
The case was heard and decided by the Peshawar High Court bench comprising: Ijaz‑ul‑Hassan and Abdul Rauf Khan Lughmani, JJ.
Q3: What is the official citation format for this judgment on Pakistan Law Portal?
Cite this legal precedent as: 2002 PLP 253 (PLC) (SAADI CEMENT LTD. through Chairman and another Versus FAZAL‑E‑QADIR and another). Read the full summary and cross-referenced laws free on Pakistan Law Portal.
Representation
- Malik Muhammad Aslam for Petitioner.
- Abdur Rehman Qadir for Respondent.
- Date of hearing: 6th November, 2001.
- 4. Malik Muhammad Aslam Advocate appeared on behalf of the petitioners Management and challenged the impugned order on the ground that it has been passed in an arbitrary manner without providing any opportunity of hearing to the petitioners which has materially prejudiced the interest of the petitioners. As far as the maintainability of the Constitutional petition is concerned, learned counsel maintained that the appeal would not be an adequate remedy as the petitioners cannot avail the same without depositing amount of claim and penalty amounting to Rs. 3,74,940 in accordance with the dictates of section 17 of the Act. Concluding the arguments, it was submitted that the impugned order having been passed without lawful authority and jurisdiction is directly amenable to the Constitutional jurisdiction of this Court, even without availing the alternate remedy of filing an appeal. To substantiate the arguments, reliance has been placed on Pakistan Railways through Divisional Superintendent, P.W.R. Multan Division and 4 others v. Punjab Labour Court No.4, Multan and 3 others (1995 PLC 541), Lahore; Talpur Textile Mills Ltd. through its Manager, Tando Muhammad Khan v. The Authority under Payment of Wages Act, Directorate of Labour Welfare Hyderabad and another 1996 PLC 610, 'Municipal Corporation, Sialkot through the Administrator v. Younis Masih and others 1998 PLC 336; Messrs Halcrow Ulg, Engineering Consultant, PAT Feeder Canal Rehabilitation and Improvement Project, WAPDA and others v. The Authority under the Payment of Wages Act, Quetta and others 1999 PLC 62, 'Premier Cloth Mills Ltd. Lyallpur v. The Sales Tax Officer, Investigation Circle 11, Lahore and another 1972 SCMR 257 and The Murree Brewery Co. Ltd v. Pakistan through the Secretary to Government of Pakistan, Works Division and 2 others PLD 1972 Supreme Court 279.
- 5. Mr. Abdur Rehman Qadar, Advocate for respondent No. l on the other hand supported the impugned order and contended that alternate remedy of tiling an appeal was available to the petitioners within the meaning of section 17 of Payment of Wages Act, 1936 but the same was not availed, for the reasons, that it was obligatory upon the petitioners for making the appeal competent, to deposit with the Authority amount payable under the direction and as the amount has not been paid,‑ therefore, to circumvent to the statutory provision directly Constitutional petition has been filed, which was such, is liable to be dismissed. Additionally it has been submitted that the impugned order has been passed strictly in accordance with law and suffers from no illegality or irregularity warranting interference of this Court in the exercise of its Constitutional jurisdiction. To augment the contentions reliance has been placed on M/s S. M. Rehman & CO. v. Motabar and others PLD 1981 SC 282, Ahmed Spinning Mills Ltd. v. Authority under Payment of Wages Act and others 1990 PLC 26 Karachi, M/s. Azmat Textile Mills Ltd Karachi v. Authority under Payment of Wages, Central Division, Karachi and two others 1995 PLC 264, Pakistan Industrial Gases, Ltd. v. The Commissioner, Workmen Compensation and 2 others 1998 PLC 71, Sarhad Development Authority N.W.F.P. v. Jehanzeb and another 1999 PLC 377, Mumtaz Ahmad and another v. Assistant Commissioner and another PLD 1990 SC 1195, Sheikh Gulzar Ali & Co. v. Special Judge, Special Court of Banking and another 1991 SCMR 590, Adam Jee Insurance Company Ltd. v. Pakistan through Secretary Ministry of Finance Islamabad and another 1993 SCMR 1798. Abdur Rehman v. Haji Mir Ahmad Khan and another PLD 1983 SC 21, S. Muhammad Din & Sons Ltd. v. The Chairman, Punjab Labour Appellate Tribunal and 7 others 1989 PLC 567, The Divisional Superintendent of Pakistan Railways Lahore v. Mst. Khurshid Anwar 1994 PLC 18 (Labour Appellate Tribunal Punjab) and Sharafat Ali v. Zeenat Shirt Factory 1999 T.D. (Labour) 337.
- 7. Under Article 199 of the Constitution of the Islamic Republic of Pakistan 1973, the High Court is empowered to issue a writ, if, as borne out from sub‑Article (1), "it is satisfied that no other adequate‑remedy is provided by law. Sub‑Article (1) thus, confers on the High Court a discretion of fairly wide amptitude but at the same time it imposes a responsibility on the High Court to exercise the discretion with some circumspection. The satisfaction of the High Court envisaged by‑sub‑Article (1) that no other, adequate remedy provided in law is available to the aggrieved party is condition precedent for exercise of jurisdiction under Article 199". Adequate remedy has also been defined to mean efficacious remedy. Now, therefore, before seeking the remedy under the aforesaid Article the petitioner has to show that he has no other adequate or efficacious remedy available to him. In the instant case an appeal is provided under section 17 of the Payment of Wages Act (IV of 1936) and if an order is passed by the Authority which may not be according to law the same can be challenged in the appellate forum as provided in section 17 (ibid). Unfortunately, the petitioners instead of following proper remedy, hurriedly approach this Court in its writ petition without resorting to the remedy of appeal. We find ourselves in agreement with learned counsel for respondent that the petitioners could not be permitted to circumvent law by way of Constitutional petition and it would not be correct for this Court in its Constitutional jurisdiction to take over the function of the machinery provided by the statute. Intention of the Legislature in enacting section 17, of the Payment of Wages Act is very clear. It seems that the Legislature intended the amount covered by an order under section 15 of the said Act, to be deposited in the forum, seized of the matter; before it entertained an appeal against such an order. Such a provision cannot be allowed to be circumvented. Moreover, purpose of Article 199 of the Constitution does not appear to be to nullify the effect of a legislative provision or to make ineffective a statutory provision.
Headnotes / Summary
(a) Constitution of Pakistan (1973)‑‑‑ ‑‑‑‑Art.l99(1)‑‑‑Constitutional jurisdiction of High Court‑‑‑Exercise of discretion Alternate adequate remedy‑‑‑Scope‑‑‑Discretion of fairly wide amplitude is conferred on High Court by Art.199(1) of, the Constitution, at the same time it imposes a responsibility on the High Court to exercise the discretion with some circumspection‑‑‑Satisfaction of High Court envisaged by Art. 1990) of the Constitution that no other adequate remedy provided in law is available to the aggrieved party is a condition precedent for exercise of the jurisdiction‑‑‑Petitioner before seeking the remedy under Art. 199 of the Constitution, has to show that he has no other adequate or efficacious remedy available to him. (b) Constitution of Pakistan (1973)‑‑‑ ‑‑‑‑Art. 199(1)‑‑‑Adequate remedy‑‑‑Connotation‑‑‑Term adequate remedy has been defined to mean "efficacious remedy". (c) Payment of Wages Act (IV of 1936)‑‑‑ ‑‑‑‑Ss. 15 & 17‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition Maintainability‑‑‑Alternate remedy‑‑‑Claim of unpaid dues was decided in favour of employee against which the employer without availing remedy of appeal under S.17 of Payment of Wages Act, 1936, tiled Constitutional petition‑‑‑Validity‑‑‑Employer could not be permitted to circumvent law by way of Constitutional Petition and it would not be correct for High Court to take over the function of the machinery provided by the statute in its Constitutional jurisdiction‑‑‑Intention of Legislature behind enacting S.17 of Payment of Wages Act, 1936, was to ensure that the amount covered by order under the provisions of S.15 of Payment of Wages Act, 1936 was deposited in the forum seized of the matter, before it entertained an appeal against such order‑‑‑High Court declined to circumvent the provision of the law as the employer had not availed the adequate and efficacious remedy‑‑‑Petition was dismissed in circumstances. Pakistan Railways through Divisional Superintendent, P.W.R. Multan Division and 4 others v. Punjab Labour Court No.4, Multan and 3 others 1995 PLC 541: Talpur Textile Mills Ltd. through its Manager, Tando Muhammad Khan v. Directorate of Labour Welfare Hyderabad and another 1996 PLC 610, Municipal Corporation, Sialkot through the Administrator v. Younis Masih and others 1998 PLC 336; Messrs Halcrow Ulg, Engineering Consultant, PAT Federal Canal Rehabilitation and Improvement Project, WAPDA and others v. The Authority under the Payment of Wages Act, Quetta and others 1999 PLC 362; Premier Cloth Mills Ltd. Lyallpur v. The Sales Tax Officer, Investigation Circle 11, Lahore and another 1972 SCMR 257; The Murree Brewery Co. Ltd. v. Pakistan through the Secretary to Government of Pakistan, Works Division and 2 others PLD 1972 Supreme Court 279; M/s S. M. Rehman & Co. v. Motabar and others PLD 1981 SC 282; Ahmed Spinning Mills Ltd. v. Authority under Payment of Wages Act and others 1990 PLC 26; M/s. Azmat Textile Mills Ltd. Karachi v. Authority under Payment of Wages, Central Division, Karachi and two others 1995 PLC 264; Pakistan Industrial Gases, Ltd. v. The Commissioner, Workmen Compensation and 2 others 1998 PLC 71; Sarhad Development Authority N.W.F.P. v. Jehanzeb and another 1999 PLC 377; Mumtaz Ahmad and another v. Assistant Commissioner an another, PLD 1990 SC 1195, Sheikh Gulzar Ali & Co. v. Special Judge, Special Court of Banking and another 1991 SCMR 590; Adam Jee Insurance Company Ltd. v. Pakistan through Secretary Ministry of Finance Islamabad and another 1993 SCMR 1798, Abdur Rehman v. Haji Mir Ahmad Khan and another PLD 1983 SC 21; S. Muhammad Din and Sons Ltd. v. The Chairman, Punjab Labour Appellate Tribunal and 7 others 1989 PLC 567; The Divisional Superintendent of Pakistan Railways Lahore v. Mst. Khurshid Anwar 1994 PLC 18 and Sharafat Ali v. Zeenat Shirt Factory 1999 T.D. (Labour) 337 Karachi ref. (d) Constitution of Pakistan (1973)‑‑‑ ‑‑‑‑Art.199‑‑‑Constitutional jurisdiction‑‑‑Object‑‑‑Purpose of Art. 199 of the Constitution is not to nullify the effect of a legislative provision or to make it ineffective.
Judgment & Decree
IJAZ‑UL‑HASSAN, J.‑‑‑ The petitioners have invoked the C3nstitutional jurisdiction of this Court by tiling instant Writ Petition bearing No.278 of 2000, seeking annulment of the order, dated 8‑8‑2000 passed by respondent No.2. whereby the claim of respondent No. l regarding gratuity, unavailed earned leave, leave fair assistance and medical allowance was accepted alongwith two times compensation and the petitioners were directed to make payment to respondent No. 1 without loss of time.
2. Shortly narrated the facts relevant for the disposal of this writ petition are that Fazal‑e‑Qadar respondent No. l was employed on 26‑2‑1995 by the petitioners' management as Civil Engineer for the Project of establishing Saddi Cement Factory at village Kannalpur, near Hattar Industrial Estate, Haripur. The appointment of respondent No.1 was on purely temporary basis for specific work of nature terminable on completion of job. Respondent No. l accepted the assignment with terms and conditions and assumed his duties at a total salary of Rs. 22,000 per month which was later on enhanced to Rs.24.200 per month. His services were terminated on 31‑7‑1998. Feeling aggrieved, respondent No. 1 filed claim application under section 15(2) of Payment of Wages Act (IV) of 1936 on 7‑12‑1999 before the Authority under Payment of Wages Act, Hazara Division, Abbottabad. The application was resisted by the Management and the respondent No. 1's claim was denied.
3. A perusal of the record would reveal that the matter was fixed to 18‑7‑2000 for applicants evidence. On this date no one appeared from the Management side and they were proceeded against ex parte. Resultantly, ex parte evidence of the applicant Abdur Razzaq was recorded on 8‑.8‑2000 and the impugned order was made, which had given rise to the tiling of instant writ petition.
4. Malik Muhammad Aslam Advocate appeared on behalf of the petitioners Management and challenged the impugned order on the ground that it has been passed in an arbitrary manner without providing any opportunity of hearing to the petitioners which has materially prejudiced the interest of the petitioners. As far as the maintainability of the Constitutional petition is concerned, learned counsel maintained that the appeal would not be an adequate remedy as the petitioners cannot avail the same without depositing amount of claim and penalty amounting to Rs. 3,74,940 in accordance with the dictates of section 17 of the Act. Concluding the arguments, it was submitted that the impugned order having been passed without lawful authority and jurisdiction is directly amenable to the Constitutional jurisdiction of this Court, even without availing the alternate remedy of filing an appeal. To substantiate the arguments, reliance has been placed on Pakistan Railways through Divisional Superintendent, P.W.R. Multan Division and 4 others v. Punjab Labour Court No.4, Multan and 3 others (1995 PLC 541), Lahore; Talpur Textile Mills Ltd. through its Manager, Tando Muhammad Khan v. The Authority under Payment of Wages Act, Directorate of Labour Welfare Hyderabad and another 1996 PLC 610, 'Municipal Corporation, Sialkot through the Administrator v. Younis Masih and others 1998 PLC 336; Messrs Halcrow Ulg, Engineering Consultant, PAT Feeder Canal Rehabilitation and Improvement Project, WAPDA and others v. The Authority under the Payment of Wages Act, Quetta and others 1999 PLC 62, 'Premier Cloth Mills Ltd. Lyallpur v. The Sales Tax Officer, Investigation Circle 11, Lahore and another 1972 SCMR 257 and The Murree Brewery Co. Ltd v. Pakistan through the Secretary to Government of Pakistan, Works Division and 2 others PLD 1972 Supreme Court 279.
5. Mr. Abdur Rehman Qadar, Advocate for respondent No. l on the other hand supported the impugned order and contended that alternate remedy of tiling an appeal was available to the petitioners within the meaning of section 17 of Payment of Wages Act, 1936 but the same was not availed, for the reasons, that it was obligatory upon the petitioners for making the appeal competent, to deposit with the Authority amount payable under the direction and as the amount has not been paid,‑ therefore, to circumvent to the statutory provision directly Constitutional petition has been filed, which was such, is liable to be dismissed. Additionally it has been submitted that the impugned order has been passed strictly in accordance with law and suffers from no illegality or irregularity warranting interference of this Court in the exercise of its Constitutional jurisdiction. To augment the contentions reliance has been placed on M/s S. M. Rehman & CO. v. Motabar and others PLD 1981 SC 282, Ahmed Spinning Mills Ltd. v. Authority under Payment of Wages Act and others 1990 PLC 26 Karachi, M/s. Azmat Textile Mills Ltd Karachi v. Authority under Payment of Wages, Central Division, Karachi and two others 1995 PLC 264, Pakistan Industrial Gases, Ltd. v. The Commissioner, Workmen Compensation and 2 others 1998 PLC 71, Sarhad Development Authority N.W.F.P. v. Jehanzeb and another 1999 PLC 377, Mumtaz Ahmad and another v. Assistant Commissioner and another PLD 1990 SC 1195, Sheikh Gulzar Ali & Co. v. Special Judge, Special Court of Banking and another 1991 SCMR 590, Adam Jee Insurance Company Ltd. v. Pakistan through Secretary Ministry of Finance Islamabad and another 1993 SCMR 1798. Abdur Rehman v. Haji Mir Ahmad Khan and another PLD 1983 SC 21, S. Muhammad Din & Sons Ltd. v. The Chairman, Punjab Labour Appellate Tribunal and 7 others 1989 PLC 567, The Divisional Superintendent of Pakistan Railways Lahore v. Mst. Khurshid Anwar 1994 PLC 18 (Labour Appellate Tribunal Punjab) and Sharafat Ali v. Zeenat Shirt Factory 1999 T.D. (Labour)
337. We have heard at length the arguments of learned counsel for the parties. We have also gone through the record of the case with their able assistance in the light of the case‑law cited at the bar in support of their respective contentions.
7. Under Article 199 of the Constitution of the Islamic Republic of Pakistan 1973, the High Court is empowered to issue a writ, if, as borne out from sub‑Article (1), "it is satisfied that no other adequate‑remedy is provided by law. Sub‑Article (1) thus, confers on the High Court a discretion of fairly wide amptitude but at the same time it imposes a responsibility on the High Court to exercise the discretion with some circumspection. The satisfaction of the High Court envisaged by‑sub‑Article (1) that no other, adequate remedy provided in law is available to the aggrieved party is condition precedent for exercise of jurisdiction under Article 199". Adequate remedy has also been defined to mean efficacious remedy. Now, therefore, before seeking the remedy under the aforesaid Article the petitioner has to show that he has no other adequate or efficacious remedy available to him. In the instant case an appeal is provided under section 17 of the Payment of Wages Act (IV of 1936) and if an order is passed by the Authority which may not be according to law the same can be challenged in the appellate forum as provided in section 17 (ibid). Unfortunately, the petitioners instead of following proper remedy, hurriedly approach this Court in its writ petition without resorting to the remedy of appeal. We find ourselves in agreement with learned counsel for respondent that the petitioners could not be permitted to circumvent law by way of Constitutional petition and it would not be correct for this Court in its Constitutional jurisdiction to take over the function of the machinery provided by the statute. Intention of the Legislature in enacting section 17, of the Payment of Wages Act is very clear. It seems that the Legislature intended the amount covered by an order under section 15 of the said Act, to be deposited in the forum, seized of the matter; before it entertained an appeal against such an order. Such a provision cannot be allowed to be circumvented. Moreover, purpose of Article 199 of the Constitution does not appear to be to nullify the effect of a legislative provision or to make ineffective a statutory provision.
8. Authorities cited on behalf of the petitioner do not cover this case. They are distinguishable and speak of the different situation. Being distinguishable the authorities need no separate discussion.
9. Based on the above discussion we find that the petitioners have not been able to successfully demonstrate the existence of circumstances justifying the acceptance of instant petition on account of having an adequate and efficacious remedy of appeal under section 17 of the Act which they have bypassed without any sufficient reason. Resultantly, the petition having been found non‑maintainable, fails which is hereby dismissed with no order as to costs. Q.M.H./M.A.K./525/P. Petition dismissed.