1993 PLP 156 (PLC)

Abdul Latif Chaudhry for Respondents. Date of hearing: 3rd February, 1992. Petitioner‑Town Committee, Gakhar, has filed this Constitutional petition through its Chairman impugning the order dated 12‑8‑1991 passed by the Commissioner, Workmen's Compensation and Authority constituted under the Payment of Wages Act, Gujrat, accepting/awarding the claim for deducted wages of the respondents to the tune of Rs.11,16,

916. Facts in brief are that the respondents who are 57 in number submitted an application on 9‑12‑1989 to the Commissioner, Workmen's Compensation and Authority constituted under the Payment of Wages Act, Gujranwala, with the grievance that from 1‑1‑1980 to 30‑11‑1989 they had been working on the public holidays but were never paid any wage thereof. A further grievance was made that on Fridays they worked for 4 hours more than their scheduled time and the petitioner‑Committee did not pay them the overtime allowance. This application was resisted by the petitioner/ respondents before the Authority and following issues were framed to resolve the controversy:‑‑ The parties led their respective evidence. However, when the case was ripe for decision before the Authority at Gujranwala, the petitioner moved an application for the transfer of the same before the Punjab Labour Court No.

7. The case was, accordingly, transferred on 3‑8‑1991 to the Authority at Gujrat and was fixed for 12‑8‑1991. A grievance has been made that the learned Authority at Gujrat without affording any opportunity to the petitioner passed the impugned order in clear violation of principle of natural justice. Regarding the maintainability of the Constitutional petition, learned counsel has argued that in the facts of this case the appeal would not be an adequate remedy as the petitioner cannot avail the same unless and until the whole amount is deposited with the Court in accordance with section 17 of the Payment of Wages Act, 1936 (hereinafter to be referred as an Act). Reliance in this respect has been placed upon Arag Industries Ltd. v. Payment of Wages Act Authority etc. (1982 PLC 567). He has further argued that the petitioner‑Town Committee is not a factory within the meaning of Payment of Wages Act. The claim was also resisted on the plea that the same was time‑barred and the respondents had not shown sufficient cause for this belated approach. Learned counsel appearing for the respondents has questioned the maintainability of this Constitutional petition in the presence of appeal provided under section 17‑A under the Act and the revision under section 38(3) of the Industrial Relations Ordinance, 1969. I have considered the contentions. It is not denied by the parties that 12‑8‑1991 was the first date before the transferee Court to which the case was transferred by the order of the Punjab Labour Court No.

7. It is also reflected from the impugned order that the learned Tribunal did not give any opportunity to the petitioner to argue the case on merits as well as the maintainability of the application. The reliance of the learned counsel for the petitioner on 1982 PLC 567 qua the maintainability of the petition is apt where the learned Judge held as under:‑ "However, in this case I do not find the appeal to be an adequate remedy. After looking at provisions of section 17 of the Payment of Wages Act, I find that provio to clause (a) of subsection (1) of section 17 provides that no appeal under clause (a) was competent unless the memorandum of appeal is accompanied by a certificate of the Authority to the effect that the appellant has deposited with the Authority the amount payable under the directions appealed against. It would therefore be apparent that an appeal could be filed only after the deposit of .the money ordered to be paid to the workers by the Payment of Wages Authority whereas a petition in the High Court could be filed by the petitioner and has actually been filed by the petitioner without any deposit and it is therefore obvious that the appeal under section 17 of the Act is not an efficacious or alternate remedy as it involves the payment of .the amount ordered to be paid. I therefore hold that section 17 of the Payment of Wages Act does not provide an alternate remedy to the petitioner which could deprive them from filing a Constitutional Petition in the High Court." Relying upon the aforesaid precedent? keeping in view the amount involved and financial viability of the petitioner‑Committee at this juncture I hold that the writ petition would be maintainable. In view of the nature of the order which I am going to pass, I am not dilating upon the issue of limitation as well as the other points argued by the respective learned counsel. Since the petitioner‑Committee was not provided any opportunity of arguing the case as such I set aside the order passed by the Commissioner, Workmen's Compensation and Authority under Payment of Wages Act, Gujrat, on 12‑8‑1991 and remit the case for its decision afresh. The application of the, respondents shall be deemed pending and shall be decided by the Authority by providing full opportunity of arguing the case to the parties concerned. There shall be no order as to costs. H.B.T./T‑88/L????????????????????????????????????????????????????????????????????????????????????? Order accordingly.