1998 PLP 180 (PLC)

Mahboob Malik for Petitioners. Respondents (absent). Date of hearing: 5th December, 1997. Respondents 3 to 6 filed application before Authority under the Payment of Wages Act for recovery of dues arising out of travelling allowance and daily allowance i.e. terms and conditions of service, but no: falling within the definition of wages as given in the Payment of Wages Act, 1936. Authority under the Payment of Wages Act in spite of various objections raised in paragraphs 3 and 4 of the written statement, vide impugned order granted relief to respondents 3 to

6. The order was passed on 11-1-1989. The petitioners deposited the amount on 8-2-1989 before the Authority under the Payment of Wages Act. Vide telegram dated 9-2-1989 Authority was informed that the stay has been granted by the Labour Court. Appropriate application was also filed. It appears that in spite of stay order he released the amount to respondents 3 to 6 on 11th February, 1989. Learned first appellate Court disposed of appeal filed by the petitioners and passed the following order: "It is an admitted position that the appellants deposited the awarded amount before the Authority and the same amount has already been withdrawn by the respondents Nos. l to 4/claimants, as such the impugned order has thus being given effect as such the appeal filed by the appellants has become infructuous which is accordingly dismissed. " The appellate Court abdicated the jurisdiction on a ground that since the payment has been disbursed nothing remains to be discussed and determined. Such a slip-shod order is unwarranted and the appeal should have been decided on its own merits and all the issues should have been discussed by the appellate Court. Ordinarily when the Court finds that the order of the State functionary is not in accordance with law, the matter should have been remanded. But I am not adopting the same course as Hon'ble Supreme Court of Pakistan in the case of Waseem Ahmed Khan v. WAPDA and others 1997 SCMR 2000 has held that by virtue of incorporation of section 17(1-B)(1-C) and (1-A) WAPDA employees are civil servants and their terms and conditions fall within the purview of Federal Service Tribunal and all other Courts have no jurisdiction. Travelling allowance and daily allowance of an employee are terms and conditions of service. Authority under the Payment of Wages Act had no jurisdiction. Order passed by the Authority under the Payment of Wages Act in view of the judgment of Honourable Supreme Court is declared to be without lawful authority and quashed as such. Equally the order of the Labour Court dismissing an appeal in such manner is also declared to be without lawful authority and is quashed as such. This brings me to the relief which may be granted to the petitioners. The order which has been passed by the Authority under the Payment of Wages Act has been given effect as the said Authority has released the amount on 11th February, 1989 i.e. after the order of stay was passed by the appellate Court. The Authority under the Payment of Wages Act released the amount to respondents 3 to 6 illegally and unlawfully. The Authority under the Payment of Wages Act is charged to collect the amount from respondents 3 to 6 as it was paid to them illegally by him and pay the same to the petitioners within two weeks. In case the amount is not collected from the respondents 4 to 6, the same shall be collected from the Authority and for that matter from the salary of Authority under the Payment of Wages Act i.e. the person who has disbursed the amount on 11th February, 1989 and was working as Authority under the Payment of Wages Act i.e. Mr. Israr Ahmed Mahar. The amount may be recovered from the salary, pension or any other benefit which may have accrued or accruable to the said person, namely, Mr. Israr Ahmed. This order is being passed as the ultimate purpose of writ jurisdiction is to do complete justice between the parties and no one should be allowed to get away with ill-gotten gain. Such jurisdiction is corrective and directory which has to be tempered with equity as has been held by Honourable Supreme Court in the case of Syed Wajihul Hasan Zaidi v. Government of Punjab and others (1997 SCMR 1901). This action on the part of Authority under the Payment of Wages Act, by releasing the payment after the stay was ordered is wholly unwarranted and without any justification in law. Such tendency prevailing in the Courts of Authority under the Payment of Wages Act must by curbed. If the said person is still serving, it is expected that the Authorities shall take departmental action against such person. Officer is directed to send the copy of this judgment to Secretary, Department of Labour, Government of Sindh, Karachi and it is expected that he shall report the compliance within two months. In view of the above discussion this Constitutional petition is allowed. Since the respondents 3 to 6 are employees, therefore, no order as to costs is passed. A.A./W-18/K ???????????????????????????????????????????????????????????????????????????????????? Petition accepted.