1981 PLP 498 (PLC)

Date of hearing : 9th June, 1981. The petitioner appointed respondent No. 4 as his legal adviser from 1st September 1979 on a retainership basis at Rs. 800 p, m. With regard to his duties as Legal Adviser, it was provided that he "will handle all Labour cases of all types in all Courts (even from a charge‑sheet to a worker till his dismissal) and all other relative matters concerning with discipline and smooth functioning of the Factory or other matters in which legal advice is needed". The appointment was temporary for a year and liable to be cancelled on one month's notice on either side.

2. A registered notice was sent by the petitioner to the respondent No. 4 on 12th June, 1980 informing him that his retainership was cancel led from 1st June, 1980. Respondent No. 4 filed an application for the recovery of his dues before the authority appointed under the Payment of Wages Act, 1936 on 7th July, 1980, claiming salary from February to July, 1980 = Rs. 4,800, fees for a civil suit a Rs. 1,100 , fees for ten cases before the Appellate Tribunal, Lahore = Rs. 5,500 deducting Rs. 2,600 already received, the balance being Rs. 2,900 and fee for a criminal cases = Rs. 1,100, all told Rs. 9,

900. He asked for ten times the compensation amounting to Rs. 99,900.

3. The respondent filed a reply denying all the allegations. The following issues were framed :- (1) Whether the petitioner does not come within the definition of worker and the Act. O. P. R. (2) Whether the petitioner has not come to this Court in good faith, if so, its effect. O. P. R. (3) Whether the relationship of a worker and employer does not exist between the parties and as such Court has not jurisdiction to entertain this petition. O. P. R. (4) Whether the petitioner is entitled to the claimed amount. O. P. P. (5) Relief.

4. Vide ex parte decree dated 30th September, 1980, the authority under the Payment of Wages Act, 1936 decreed the actual amount of Rs. 9,900 and two times the compensation for illegal deduction. The entire amount decreed is Rs. 29,

700. The petitioner applied for setting aside the ex parte decree but the application was rejected on 29th November, 1980. The petitioner, then, filed a revision petition before the Presiding Officer, Punjab Labour Court No 7, Gujranwala, which too was dismissed for lack of jurisdiction on 15th April, 1981. The petitioner has filed this Constitutional petition.

5. Learned counsel for the petitioner has vehemently contended that respondent No. 4 was appointed under the Companies (Appointment of Legal Advisers) Act, 1974 and he was by no means an employee of the petitioner, nor, in any sense was he a worker entitled to wages under the Payment of Wages Act, 1936. He has submitted that medical practitioner similarly appointed has been found not to be an employee entitled to remunerations under the West Pakistan Employees Social Security Ordi nance, 1965. He has relied on Sind Employees' Social Security Institution v. Dr. Mumtaz Ali Taj (P L D 1975 S C 450) and Divisional Superintendent, N. W. R., Lahore v. Muhammad Sharif (P L D 1963 S C 340). He has also submitted that when an order is without lawful authority, prior payment of amount claimed is no bar to maintain a petition. He referred to Nagina Silk Mill, Lyallpur v. The Income‑tax Officer. A‑Ward, Lyallpur (P L D 1963 S C 322). He, lastly, contended that the respondent was appointed as a legal adviser at the sum of Rs. 800 p. m. to handle all cases of all types in all the Courts and, therefore, the respondent No. 4 was not entitled to any fees for the cases in Courts,

6. Respondent No. 4 who appeared in person submitted that the petition is not maintainable because the petitioner has not deposited decretal amount of Rs. 29,

700. He has also submitted that he was entitled to a sum of Rs. 800 p. m. as retainer fee and for cases in which he appear ed in various Courts as mentioned in his application.

7. In reply, the learned counsel for the petitioner submitted that even if the respondent No. 4 was entitled to any amount, the authority under the Payment of Wages Act, 1936 having no jurisdiction in the matter the respondent No. 4 has to file a civil suit for recovery of the said amount.

8. After hearing the learned counsel for the parties at length and perusing the record, I am of the view that the authority under the Pay ment of Wages Act, 1936 had no jurisdiction to entertain the application 1of the respondent No. 4 for payment of his retainership fee or for the fees for the cases handled by him. As .is apparent from the title of the Act, it applies to wages and the lawyers do not act or work for wages but are A engaged on fees. Secondly, the aforesaid Act applies to employees and the lawyers are nobody's employees. They are representatives or advis ers of persons who engage them. The judgment of the learned Supreme Court of Pakistan reported in (P L D 1975 S C 450) quoted by the learned counsel for the petitioner who had fully prepared his brief and has made submissions with composure, is fully applicable to the facts of the case. Neither a medical practitioner nor a legal practitioner work for gain or receive wages for what they do. They belong to noble profes sions and the fees offered and received are as a token of what they do for their patients or clients and are by no means remunerations or wages for their acts. The intellect and skill they exercise can never be calculated in terms of money. Therefore, there is no doubt whatsoever that the impugned order of the authority under the Payment of Wage Act, 1936 is totally without lawful authority and of no legal effect. I might have concluded the matter at this stage and left the respondent No. 4 to seek his remedy before appropriate forum but in view of the fact that the matter has been argued at length and thrashed in open Court, I do not think that it proper or wise to allow further litiga tion at the expense of public time. Therefore, I proceed to determine as to what amount the petitioner is liable to pay to the respondent No. 4 on the basis of his contract appointing the said respondent as a legal adviser vide its letter dated 1st September, 1979 and to what extent the respondent No. 4 will be entitled to. The letter of appointment of respondent No. 4 as a legal adviser dated 1st September, 1979 reads as follows :‑ "We are pleased to inform you that we have appointed you with effect from 1st September, 1979, as our Legal Adviser on retainer ship basis on Rs. 800 per month. With regard to your duties as Legal Adviser, you will please handle all our labour cases of all types in all Courts (even from a charge‑sheet to a worker till his dismissal) and all other relative matters concerning with discip line and smooth functioning of the Factory or other matters in which legal advice is needed. You will also make yourself available to us during odd hours too." Normally lawyers are retained on a fixed fee and are entitled to sepa rate fee for appearance in Courts. This is, of course, subject to agree ment between the parties. In the present case,. it has been agreed that the legal adviser i.e. the respondent No. 4, shall "handle all Labour cases of all types in all Courts". This however excludes non‑Labour cases, like civil suits or criminal cases as mentioned in items Nos. 2 and 4 of the application of the respondent No. 4 before the authority under the Payment of Wages Act, 1936 (Annex. `D'). Further, though the legal adviser was to handle cases "in all Courts" but the Courts clearly refer red to Court in Gujranwala where the appointment was made and not at different places like Lahore, or, for that matter London. Therefore, the respondent No. 4 was entitled to fee for appearing in Courts outside Gujranwala, like he had done in ten cases before the Labour Appellate Tribunal, Lahore, for which the fees were claimed in item No. 3 of the aforesaid application. From February, 1980 (on the 12th June, 1980 the notice of termination of retainership was issued by the petitioner) till 12th July, 1980, the period of one month's notice included, the respon dent No. 4 was entitled to retainership fee of Rs. 800 p m. For the months of February, March, April, June, 1980 and for 12 days of July, 1980, it comes to Rs. 4,

319. He was also entitled to fees of the aforemen tioned cases to the extent of Rs. 7,

700. These were not expressly denied in the reply statements either. Thus, the entire fees payable to the respondent No. 4 come to Rs. 12,

019. Admittedly, he has been paid a sum of Rs. 2,

600. The balance amount payable to him is Rs. 9,

419. Consequently, on the principle that one who seeks equity must do equity, I exercise the Constitutional jurisdiction to declare the impugned order of the authority under Payment of Wages Act, 1936 as without lawful authority and of no legal effect subject to the petitioner's discharging its liability to the respondent No. 4 to the extent of Its. 9,

419. This petition is thus allowed, with no order as to costs. Petition accepted.