1990 PLP 357 (PLC)

M/s. Sultan Industries, the petitioners in C.P. No. S‑45 of 1988 and C.P. S‑46 of 1988 had employed Gul Marjan and Hayat Shah as weaver and as a permanent worker respectively in their factory. Each of them by separate applications filed under section 15 of the Payment of Wages Act, 1936 before the Authority under that Act at Karachi, claimed payment of certain amount towards the gratuity, leave encashment, bonus, 5% Workers Participation Fund and over time. The petitioners resisted such applications mainly on the ground that the applications were not maintainable as being barred by time. In both the cases the Authority on the basis of the pleadings of the parties framed the following issues; (i) Whether the application is maintainable under the law. (ii) Whether the applicants' date of employment is correct according to the respondents' record? (iii) Whether the applicants are entitled to the claim or any part thereof? On the basis of evidence recorded on behalf of the parties all the three issues were answered in favour of Gul Marjan and Hayat Shah. The Authority allowed the claim of both of them to the extent of Rs.10,320 each. The petitioners have by these petitions under Article 199 of the Constitution of Pakistan questioned the orders passed by the Court of Commissioner for Workmen's Compensation and Authority under the Payment of Wages Act (East Division), Malir, Karachi, on 20‑2‑1988 in the case of Gul Marjan (Case No.CWC/PWA/E‑195/85(15) and order dated 14‑2‑1988 passed in the case of Hayat Shah (Application No. 196/84(15)). Since the facts and points of law involved in both the petitions are common, I propose to decide the same by this common judgment. Mr. S.M. Kohistani, the Advocate for the petitioners in both the petitions has urged the following grounds in support of these petitions; (i) That both the workers on an average were to draw monthly wages exceeding Rs.1,000 calculated on the basis of their daily wages. The Authority under section 1(6) of the Payment of Wages Act, 1936 at the relevant time could only assume and exercised jurisdiction where average monthly wages did not exceed Rs.1,

000. The orders impugned in these petitions have, therefore, been passed without any jurisdiction. (ii) The remedy by way of appeal as provided by law in view of above cannot be taken to be an adequate and efficacious remedy to bar the exercise of jurisdiction under Article 199 of the Constitution. The respondents in both the petitions though duly served preferred to remain absent throughout. The petitioners have for the first time taken objection to the pecuniary jurisdiction of the Authority under the Payment of Wages Act, 1936 before this Court. The only objection taken by the petitioners before the Authority was that the applications were filed by both the employees beyond a period of three years. The Authority after recording the evidence concluded that both of them have filed applications within time No such objection has now been urged on behalf of the petitioners so far as their such contention before the Authority is concerned. Objection regarding the jurisdiction of any Court, Authority or a Tribunal must o: necessity be taken by a party at the earliest possible time. If, a party fails to take such an objection at the relevant time due to any reason or omits to do so, it cannot after an adverse order is passed against it be permitted to take such an objection before any higher forums including a High Court by way of a petition under Article 199 of the Constitution. An appeal against order passed by Authority can be filed by both the employer and the employee within thirty days of passing of such order before the Labour Court constituted under the Industrial Relations Ordinance, 1969 within whose jurisdiction the cause of action had accrued as provided by section 17 of the Payment of Wages Act, 1936. The petitioners instead of filing appeals within the prescribed period preferred to file these petitions after a lapse of three months. A party that allows the time prescribed for filing of appeal to lapse cannot after the expiry of period of limitation turn round and file a petition under the Constitution. On the expiry of the period of limitation both the employees in fact acquired a vested right to have the orders in their favour executed. Such a right cannot be taken away even by way of a Constitutional Petition. The petitioners who as a matter of their own choice omit to avail of alternate remedy by way of appeal cannot be permitted to approach this Court under Article 199 of the Constitution. In view of foregoing reasons, I find no substance in these petitions, which are dismissed with no order as to costs. M.Y.H./S‑507; K Petitions dismissed.