1998 PLP 1382 (SCMR)

MUNIR A. SHEIKH J.

Leave to appeal is sought against the judgment dated 12-8-1996 of the Lahore High Court by which Writ Petition No. 13342 of 1994 filed by the petitioner against the orders dated 24-8-1994 and 25-9-1994 passed by the Authority under the Payment of Wages Act through which the application filed by the respondents was accepted, has been dismissed.

2. The facts in brief are that respondents Nos. 2 to 58 who were employed as sweepers by the petitioner filed a joint application under sections 15 and 16 of the Payment of Wages Act, 1936 before respondent No.l raising demand for wages, for the period starting from 1-1-1980 to 30-11-1989 as over-time for working on festivals and other holidays. The amount claimed in respect of each, thus, was to the tune of Rs.19,595.02.

3. This application was contested by the petitioner on a number of grounds including ground of limitation. During the pendency of the said application, the petitioner moved an application on 6-8-1990 for permission to amend the written statement in order to incorporate an objection therein that respondent No.1 was not vested with the jurisdiction to entertain the application. It was dismissed by respondent No.1 on 24-8-1994 on the sole ground that the case had already been fixed for hearing of final arguments and at that belated stage. the same could not be allowed.

4. Subsequently, through order dated 25-9-1994, the said application of the respondents was accepted and the petitioner ordered to deposit an amount of Rs.9,44,210.70 for disbursement to the said respondents.

5. The petitioner challenged both the orders dated 24-8-1994 and 25-9-1994 in Writ Petition No.13342 of 1994 before the Lahore High Court which has been dismissed by the learned Judge in Chamber on the main ground that the petitioner had failed to avail of alternate remedies available under the Payment of Wages Act of filing the appeal based on the strength of judgment dated 14-10-1990 delivered by this Court in Civil Appeal No.206 of 1990 against which leave to appeal has been sought.

6. Learned counsel for the petitioner has shown us a photostat copy of the said unreported judgment dated 14-10-1990 passed ~in Civil Appeal No.206 of 1990 by this Court and we find that as to question of maintainability or otherwise of the Constitutional Petition on account of non-availing of statutory remedy of appeal, it was observed as under:-- "This appeal can be disposed of on the first point and, therefore, it is not necessary to go into the question whether the High Court declined its jurisdiction rightly on the ground that statutory remedies were not exhausted before invoking Constitutional jurisdiction."

7. Learned counsel for the petitioner submitted that it was pointed out by the learned counsel at the time of hearing of the writ petition that remedy of appeal provided under the relevant law was neither adequate nor efficacious as the appellant was required to deposit the entire decretal amount before availing of the said remedy.

8. On merits, he maintained that no order could be passed for payment of any wages beyond period of three years from the date of filing of the application whereas the petitioner has been ordered to pay the wages from the date 1-1-1980 in a petition which was filed in the year 1989. It was also maintained that mere delay in. filing the application for amendment of written statement itself was no ground to reject the same, as according to law declared by superior Courts unless it was held that the same would cause prejudice to the opposite party and delay in disposal of the case whereas a law point was to be raised as to jurisdiction of respondent No.1 to entertain the petition which should have been allowed.

9. Learned counsel further argued that neither the petitioner is a factory nor the nature of duties of respondents Nos.2 to 58 was such that they could be held to be involved in manufacturing process as defined in the Act.

10. The petitioner has prima facie raised substantial questions of law which have not been dealt with adequately by respondent No.1 and the learned Judge in Chamber has dismissed the Constitutional Petition for want of availing of the remedies under the Act, therefore. leave is granted to consider:-- (1) Whether in the facts and circumstances of this case, remedy of filing appeal against the impugned orders of respondent No.1 under the relevant Act was adequate as contemplated by Article 199 of the Constitution and the exercise of jurisdiction in the Constitutional Petition, rightly declined; (2) Whether the application filed by the respondent for the recovery of disputed amount as wages was within limitation qua the wages for a period beyond' three years from the date of filing the said application: (3) Whether the discretion by respondent No.1 of declining to allow amendment in the written statement through order dated 6-8-1994 was exercised properly based on relevant consideration and did not suffer from arbitrariness.

11. The interim order shall continue till the disposal of - the appeal. M.B.A./T-3/S Order accordingly.