2010 PLC 510 (PLP)

AHMED ALI M. SHAIKH, J.

Through this petition petitioner has prayed as under:-- (a)? Declare that the entire proceedings actions initiated and orders, if any passed by and pending in the Court of the respondent No.2 through impugned notice dated 13-10-2009 subsequent to Order dated 9-9-2009 are illegal, without jurisdiction and these are consequently-null and void ab initio; (b)? Declare that the original order dated 9-9-2009 passed by the respondent No.2 in favour of the petitioner along with 825 other workers is legally valid, intact and operative without any interruption therein; (c)? Direct the respondent No.2 to initiate recovery proceedings against respondent No.3 and ensure proper disbursement of payment in question to all workers covered by the order dated 9-9-2009 as per relevant law within the period of ten days of the directions. (d)? Direct the respondent No.1 to ensure the proper compliance of the directions to be issued to the respondent No.2 as prayed. (e)? Pass any other just appropriate order and award costs. From the pleadings it appears that the petitioner along with other workers employed in the established of respondent No.3, filed a joint application bearing No.3 of 2005 under sections 15/16 of the Payment of Wages Act, 1936, before respondent Np.2. Respondent No.3 contested the matter and ultimately on 9-9-2009 respondent No.2 decided the application in favour of the petitioner and other applicants. The operative part of the said order is reproduced as under:

"The respondent's management is therefore, directed to deposit the total payment along with arrears to be calculated and prepared list thereof to the satisfaction of the applicants in accordance with the parameters given in the above mentioned two letters (dated 30-6-2003 and 30-4-2004) issued by Government of Pakistan with this Authority within 30 days from today for onward payment to the applicants as per their respective claims to be appeared in the list duly signed by the respondents as well as applicants representative." It appears that on 24-8-2009 the respondent's side was closed and their right to cross-examine was taken away. On 16-9-2009 respondent No.3 moved an application under Rule 8(2) of Payment of Wages (Procedure) Rules, 1937 for recalling the order dated 9-9-2009 following which respondent No.2 issued a notice to the petitioner for filing objections etc. which has been impugned in these proceedings. Per learned counsel for the petitioner order dated 9-9-2009 passed by respondent No.2 is based on cogent reasons and same was passed on merits, therefore, respondent No.2 cannot entertain the application under Rule 8(2) of Payment of Wages (Procedure) Rules, 1937 nor he can recall the same, hence, the notice dated 13-10-2009 issued by respondent No.2 be quashed and respondent No.3 be directed to comply with the order dated 9-9-2009 passed by respondent No.2. Conversely, learned counsel for respondent No.3 contended that the matter was fixed on 18-8-2009 which was adjourned for 21-8-2009 for further cross of the applicant and on that day learned counsel for the respondent could not cross-examine the applicant as he was already preoccupied in High Court. Per learned counsel on 26-8-2009 he moved an application for recalling the order dated 24-8-2009 whereby the respondent's side was closed and their right to cross-examine the applicant was put to" end but such application was not decided till 9-9-2009. Subsequently, on 16-9-2009 the respondent No.3 moved an application under Rule 8(2) of Payment of Wages (Procedure) Rules 1937 for recalling the order, dated 9-9-2009 as respondent No.2 has power to entertain such application. Mr. Jawwad Sarwana, learned Amicus Curiae at the very outset contended that under Rule 8 of Payment of Wages (Procedure) Rules, 1937 the authority is empowered to set aside the order dated 9-9-2009 and rehear the application if a good cause is shown within one month of the said order. Heard learned counsel for the parties and perused the material available on record. From the bare reading of Rule 8 of the Rules, 1937, I am clear in my mind that respondent No.2 has power to entertain the application filed by respondent No.3 and decide the same in the light of the provisions of the Rule 8 of the Rules, 1937. Upon a perusal of the impugned notice dated 13-10-2009 it appears that no decision on application dated 16-9-2009 has been passed by respondent No.2 but he has merely issued a notice to the petitioner for filing objections etc. which cannot be treated as a final decision. In view of above, I direct the respondent No.2 to decide the application under Rule 8(2) of the Payment of Wages (Procedure) Rules, 1937, filed by respondent No.3 after providing proper opportunity to the parties. The above exercise shall be completed within two weeks. The petition stands disposed of in the above terms. H.B.T./A-79/K??????????????????????????????????????????????????????????????????????????????????? Case remanded.