2014 PLP 308 (PLC)

SHUJAAT ALI KHAN, J.

Through this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the petitioner has challenged order dated 10-1-2013 passed by the Authority under Payment of Wages Act, 1936 (respondent No.1).

2. Pithily, the facts as gleaned out from the instant petition are that Nazir Ahmad (respondent No.2) filed an application under section 15(2) of Payment of Wages Act, 1936, (hereinafter to be referred as the Act) before respondent No.1 inter alia claiming the gratuity. Pursuant to the notice issued, the petitioner submitted reply to the said application raising preliminary objections qua the maintainability of said application on the ground that after dismissal of respondent No.2 on 3-1-2012, his application before respondent No.1 was not competent. Respondent No.1, vide order dated 10-1-2013, turned down the objections raised by the petitioner and admitted the case for regular hearing; hence the instant petition.

3. The arguments advanced by learned counsel for the petitioner can be summed up in the words that as respondent No.2 does not fall within the category of "worker" or "workman" as defined under section 2(xxxi) of the Punjab Industrial Relations Act, 2010, his claim before respondent No.1 is not maintainable; that as respondent No.2 has not challenged the order of his dismissal, respondent No.1 is not obliged to adjudge veracity of the same; that as a matter of fact the Labour Court has the exclusive jurisdiction to adjudge upon the matter regarding termination/dismissal of a "worker" or "workman" and that when the proceedings pending before respondent No.1 are Quorum non Judice, its further continuation would be nullity in the eye of law. To substantiate his contentions, learned counsel has relied upon the cases reported as Syed Muhammad Anwar Shah and 4 others v. Manager, Pervaiz Textile Mills, Lahore (1995 PLC 530), Pakistan Railways through Divisional Superintendent, P.W.R., Multan Division and 4 others (1995 PLC 541), Muhammad Iqbal and others v. The Chairman, Municipal Committee, Jhang (1995 PLC 569) and order dated 11-12-1998 passed by this Court in case titled Makarwal Collieries Ltd. v. Muhammad Ali and others (W.P. No.22872 of 1998).

4. Conversely, learned counsel appearing on behalf of respondent No.2 while defending the impugned order submits that as proper procedure was not followed prior to dispensing with the services of respondent No.2, order of his dismissal is not tenable; that in view of amendment introduced in section 15(i) of the Act, respondent No.1 has been bestowed with the power even to adjudicate upon the question regarding payment of gratuity to workman; that the question as to whether respondent No.2 was dismissed from service would only be determined after recording of evidence and in case respondent No.1 comes to the conclusion that he was no more in service at the time of filing of application, his claim qua payment of gratuity deserves outright rejection and that in the application filed by the petitioner before respondent No.1 besides claiming gratuity other relief has also been prayed for by respondent No.2, therefore, jurisdiction of respondent No.1 cannot be taken away merely on the point of gratuity alone.

5. Learned Assistant Advocate-General states that since matter is between the two private parties and the Province of Punjab has nothing to do with the subject matter of the petition, thus it has unnecessarily been arrayed as respondent.

6. I have heard learned counsel for the parties as well as learned Assistant Advocate-General in addition to going through the documents appended with this petition and the case-law cited at the bar.

7. Firstly, taking up the question regarding powers of respondent No.1 under the Act to adjudicate upon the matters brought before it by an aggrieved "worker" or "workman", I am of the view that though initially the question of payment of gratuity was not within the domain of respondent No.1, however, by virtue of amendment introduced in the year 1973, under section 15 of the Act respondent No.1 is bestowed with the power to deal with the question of gratuity as well.

8. It is also important to mention over here that the legislator has also catered for a facility for "worker" or "workman" to bring multifarious claims through a single application before respondent No.1, thus, it is also clear that multiple claims can be filed by an aggrieved person through a single application in terms of Section 16 of the Act and respondent No.1 is bound to respond to those claims in accordance with law.

9. Now coming to the most ticklish point regarding dismissal of respondent No.2, I have noted that the claim of the petitioner is that after due procedure respondent No.2 was dismissed from service whereas plea of respondent No.2 is that order of his dismissal being relied upon by the petitioner having been passed without adopting the due procedure is inconsequential. A bird's eye view of the order issued by the petitioner regarding dismissal of respondent No.2 shows that though services of respondent No.2 were purportedly terminated by the petitioner in terms of section 15(iii) of the West Pakistan Standing Order Ordinance, 1968 but the subsequent lines that in case of any grievance respondent No.2 could meet the Chairman on 2-2-2012, smells some foul play on the part of the petitioner. Further, the following lines from the termination letter of respondent No.2 are of much significance:

10. It is important to mention over here that dismissal of respondent No.2 and issuance of second show-cause notice to him through the same letter do not coincide with each other as after dismissal of respondent No.2 there was hardly a need of issuance of second show-cause notice as has been mentioned in the afore-quoted lines. In this backdrop the plea of respondent No.2 that the question of his dismissal from service cannot be decided without recording of evidence, has some substance. Thus, respondent No.1 had committed no illegality while passing the impugned order.

11. There is no denying the fact that respondent No.1 had no jurisdiction to adjudicate upon the matter regarding dismissal/termination of a "worker" or "workman" but at the same time when conduct of the employer himself seems to be dubious and the dismissal/termination of a "worker" or "workman" has direct bearing upon his allied matters, respondent No.1 could determine as to whether he was dismissed from service or not irrespective of the question of its legality. Reliance in this regard is placed on the case reported as Habib Sugar Mills Ltd. v. Commissioner Workmen's Compensation and Authority under the Payment of Wages Act Nawabshah and another (2004 PLC 54).

12. Now coming to the objection raised by the petitioner that as respondent No.2 does not fall within the category of "worker" or "workman" as defined under section 2(xxxi) of the Punjab Industrial Relations Act, 2010, his application before respondent No.1 is not maintainable, I am of the view that since it is yet to be proved as to whether respondent No.2 was dismissed from service or is still on the roll of the petitioner, I refrain myself to give any finding on this issue lest it may prejudice the case of either party. Further, as multiple reliefs have been claimed by respondent No.2 in his application pending before respondent No.1, he cannot be knocked out merely on the ground that his claim to the extent of gratuity is not maintainable.

13. Now coming to the case-law cited by learned counsel for the petitioner, I have observed that cases of Syed Muhammad Anwar Shah and 4 others and Muhammad Iqbal and others (Supra) having been decided by the Punjab Labour Appellate Tribunal are not binding upon this Court. So far as the case of Pakistan Railways through Divisional Superintendent, P.W.R. Multan Division and 4 others (Supra) is concerned, suffice it to observe that the facts and question of law involved in the said case and that of the instant petition are entirely different, thus, the same is of no help for the petitioner.

14. For what has been discussed above, I have no hesitation in my mind to hold that respondent No.1 has the power to try an application of a worker or workman inter alia claiming gratuity etc. Consequently, instant petition is dismissed with the observation that respondent No.1 shall decide the matter between the parties on the basis of evidence to be adduced by them without being influenced by any observation contained in the impugned order passed by respondent No.1 as well as those made by this Court in the foregoing paragraphs. There shall be no order as to costs. JJK/S-28/L Petition dismissed.