1983 PLP 3227 (CLC)

.‑‑‑‑ Art. 9‑Payment of Wages Act (IV of 1936), S. 1S‑Constitu tionaI jurisdiction‑No illegality appearing to have been committed by Authority under Payment of Wages Act in refusing to decide legal objections first and no prejudice caused to petitioner by such refusal, interference declined in constitutional jurisdiction. Fazle Ghani Khan for Petitioner. Respondents in person. Date of hearing : 15th February, 1983. This constitutional petition is filed against the impugned Order, dated 10‑5‑1982 passed by the Commissioner for Workmen's Compensation and Authority under the Payment of Wages Act (West Division), Karachi, whereby it is held that legal objection on the issue of limitation raised on behalf of the petitioners would be decided at the time of recording of evidence alongwith other issues. The grievance of the petitioner is that this being the preliminary issue, in which the jurisdiction of the Authority is challenged on the grounds of limitation as well as principle of res judicata should have been decided before going into other issues, as such a serious illegality has taken place and interference under the constitutional jurisdiction is called for.

2. Briefly stated the relevant facts are that the petitioner "Iqbal Silk Factory" was a partner in the firm known as "A. Rehman Textile Industries" which was wound up and never started again. Respondents Nos. 2 to 17 were employees of the previous firm and some of them were dismissed and services of some of them were terminated way back in September and October, 1969. The affected workers approached the Director Labour for the claim of their wages on the basis of pay, annual leave and gratuity. The Labour officer filed an application under section 15 of the Payment of Wages Act before the Authority. 27 affected workers included respondents Nos. 2 to 17 in this petition. The Authority after recording the evidence and hearing the parties dismissed application vide order dated 6th June, 1970 produced as Annexure "A" with the petition. No appeal or review was preferred against this order as such it becomes final between the parties. It as staled on behalf of the petitioner that subsequently respondents Nos. 2 to 17 claiming themselves to be a Union of Workers collectively filed an applica tion under section 34, I. R. O., 1969, for their reinstatement and payment of their legal dues. This application was contested by the petitioner but ultima tely ,it was decided against the petitioner against which C. P. No. 538/74 was filed in the High Court but the same was dismissed by the learned Single Judge on 10‑5‑1976. Being aggrieved against‑ the dismissal of the petition, the petitioner filed H. C. A. 36 of 1976 before a Division Bench of this Court which has been allowed under order, dated 28,10‑1979. Respondents 2 to 17 filed petition for Special Leave to Appeal in the Supreme Court but the leave was refused. It . is further stated that now respondents 2 to 17 have filed application before respondent No. 7 under sections 15 and 16 of the Payment of Wages Act, 193 , and have claimed a sum of Rs. 17,850 by way of delayed wages/dues. This application is accompanied by another application for condonation of delay and claim is made for. increase of compensation 10 times to the extent of Rs. 1,78,

500. The petitioner filed legal objection before respondent No. 1 stating therein that application has been filed after a delay of 12 years as such it is hopelessly time‑barred and since order passed by the Authority on 6‑6‑1970 has become final between the parties, the matter cannot be reopened now by this second application and principle of res judicata will be operative. It is further stated on behalf of the petitioner that the request made by the petitioner to respondent No. 1 for deciding first the preliminary issue has been refused by the impugned order mentioned above.

3. I have heard Mr. Fazle Ghani Khan, Advocate for the petitioner. Respondents were unrepresentative but they have all appeared in the Court in response to the service of notice and one of them with permission addressed the Court on behalf of others. Respondents also have filed a written reply. Respondents have produced a certified copy of the Judgment, dated 10‑7‑1982 of III Sind Labour Court at Karabhi, which shows that petitioner had flied the appeal against the impugned order which has been dismissed. Mr. Fazle Ghani Khan has not produced the copy of this judgment alongwith petition but has explained that he has mentioned this fact in paragraph 4 of the petition that the petitioner had filed an appeal before the Labour Court but since this appeal was not maintainable, ' it was rejected for want of jurisdiction.

4. The main point for consideration in this case is whether any illegality has been committed by respondent No. 1 in passing the impugned order. Mr. Fazle Ghani Khan has contended that respondent No. 1 should live framed preliminary issue on the basis of his legal objections in which jurisdiction of the Authority was challenged on the grounds of res judi~4ta and limitation. I have read the impugned order as well as judgment dated 10‑7‑1982 passed by Third Sind Labour Court, Karachi, certified copy of which has been produced by the respondents. I have also read legal objections filed by the petitioner before respondent No. 1, copy of. which bas been produced by the petitioner as Annexure "G" alongwith the petition. Prayer is made in the legal objections is that since legal issue substantially goes to the roots of the case and the jurisdiction of the Court, hence it is prayed that before going into the merits of the case legal objections may be decided first. Relevant paragraph from the impugned order is reproduced hereunder:‑ "Present legal objections on the issue of limitation raised by the learned representative for the opponents to be decided first, will be taken up in the evidence alongwith other issues, the opponents are directed to file the written statement on 31‑5‑1982 at 10‑00 a. m."

5. In the judgment dated 10‑7‑1982 of the Third Sind Labour Court, Karachi there is a reference to subsections (3) and (4) of section 15 of the Payment of Wages Act and it is held that since the impugned order is not covered by the provisions of section 15(3) and (4) of the Payment of Wages Act as such appeal is not maintainable. It is not necessary to go into the provisions mentioned above but it will suffice to say that under these provisions procedure is laid down for deciding the applications and it has been made incumbent on the Authority to hear both the parties and after such further inquiry if it is found necessary the application is to be disposed of. Authority is also empowered to direct that penalty be paid to the employer if the application is found to be either malacious or vexatious. No particular procedure has been laid down to be followed by the Authority except that the parties must be heard or be given an opportunity to be hoard and further inquiry if necessary be made. Impugned order does not show that the legal objections raised on behalf of the petitioner have been decided against him but only shows that request has been turned down for deciding these objections first and direction has been made that these objection would be decided at the time of recording evidence alongwith other issues. In the impugned order there is also direction to the petitioner to file written statement on 31‑5‑1982. Mr. Fazle Ghani Khan has informed that written statement has also been filed. Now since written statement also has been filed no prejudice appears to have been caused because the next stage is that of recording evidence and determination of issues. The learned counsel for the petitioner has failed to convince me that there is any provision in the Payment of Wages Act which makes it mandatory for the Authority to decide preliminary issue first. Authority is not a civil Court. Provisions o: section 15 (3 & 4) do not lay down any particular procedure to be followed by the Authority excepting right of hearing to be given to both parties and further enquiry to be made by the Authority if it dorms fit. In the circumstances it can not be said that any illegality has been committed by the' Authority in refusing the request of the petitioner to decide legal objections first. In any case right of appeal under section 17 of the said Act is available after the final decision of the application. On the other hand it i3 stated on behalf of the respondents that delay has been caused by the petitioner as remedy after remedy has beer followed by the petitioner.

6. It is possible that respondent Rio. 1 might have thought that for determination of legal objections some further enquiry is necessary as contemplated by section 15 (3) of the Payment of Wages Act. Authority is also competent under subsection (4) of the same section to impose penalty if the application is found to be malicious or vexatious. At this stage justification is shown for interference as no illegality appears to have been committed and no prejudice is caused to the petitioner. Petition is therefore dismissed with no order as to costs, however, Authority is directed to give proper hearing to the petitioner on his legal objections and decide the matte on the next date of hearing. M. Y. H. Petition dismissed.