2003 PLP 395 (PLC)

NAZIM HUSSAIN SIDDIQUI, J.

This judgment will dispose of Civil Petitions Nos.455, 456, 457, 458, 459, 460, 461, 462 and 463 of 2002 in which common questions of facts and law are involved and the same are directed against the judgment, dated 13-2-2002 of a learned Division Bench, Peshawar High Court, Peshawar, whereby Writ Petitions Nos.43 to 51 of 2001 filed by the petitioner were dismissed.

2. It is alleged on behalf of the petitioner, Syed Match Company Ltd., hereinafter referred to as "the Company" that on 20-4-2000 a fire broke out in the Production Department of the Company and as a result of it, automatic machine was totally destroyed and became incapable for production. According to the Company, huge financial loss was caused to it and it became impossible to revive the production, therefore, the Company was constrained to lay off its workers. Further, it is alleged that thereafter, the Company was closed down and the services of its workers were terminated w.e.f. 1-6-2000.

3. It is asserted that serious efforts were made to arrange the funds for payment of dues of the workers and before so could be done, 164 workers submitted the applications for their claims under section 15(2) of the Payment of the Wages Act, 1936, hereinafter called as "the Act", before the respondent No.1, Authority under Payment of Wages Act Hazara Division Abbottabad, for recovery of their dues. The respondents claimed salary/wages from April, 2000 to June, 2000, notice pay, gratuity and earned leave 42 days together with compensation at 10 times of the amount claimed. It is alleged that the amount claimed by the respondents was highly exaggerated, inflated and did not represent actual amounts, which, if any, could be lawfully claimed by them.

4. The Company also stated that other proceedings were pending before Labour Court and an Action Committee of the workers negotiated with it and entered into two agreements, dated 14-10-2000 and 30-10-2000. According to the Company after aforesaid two agreements, the wages were paid accordingly. The respondent No. 1 accepted the claims of the respondents of these petitions, vide order, dated 15-11-2000, which contains necessary details in terms of amount granted' to them. Clause (a) of subsection (1) of section 17 of the Act reads as under:-- "(a) by the employer or other person responsible for the payment of wages under section 3, if the total sum directed to be paid by way of wages and compensation exceeds three hundred rupees: [Provided that no anneal under this clause shall lie 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 direction appealed against, or] [Underlining is for emphasis].

5. It appears that in order to avoid to deposit the amount as determined by the Authority, instead of filing appeals, the Company filed the petitions before High Court, which were dismissed by the common judgment, which has been impugned in these petitions.

6. Learned High Court, while dismissing the petitions has held that purpose of Article 199 of the Constitution is not to nullify the effect of a legislative provision or to make it ineffective.

7. It is contended on behalf of the Company that learned High Court failed to appreciate the facts in their true perspective and reached wrong conclusion. It is urged that where there is complete lack of jurisdiction or order is passed by a Court/Authority exceeding its jurisdiction or where the impugned order is unlawful, the writ could be entertained. Learned counsel also argued that gratuity is specifically excluded from the term "Wages", as defined in section 2(ii) of the Act, therefore, the claim of gratuity could not be looked into by the respondent No. 1 and by doing so the respondent No. 1 exceeded its jurisdiction, as such, said order could be impugned before High Court without preferring the appeal. Further, it is urged that these cases were not of any deduction made from the wages, but at the most the same could be termed as cases of delay in payment of wages. In support of above he cited the cases reported as (1) Lt.-Col. Nawabzada Muhammad Amir Khan v. The Controller of Estate Duty and others (PLD 1961 SC 119), (2) Pakistan through Secretary, Ministry of Defence v. The General Public (PLD 1999 SC 6), (3) Raja Muhammad Ramzan and 47 others v. Zila Council Attock and another (PLD 1992 Lahore 324), (4) Town Committee, Gakhar, Gujranwala v. Salamat Bhatti and 57 others (1993 PLC 156), (5) Talpur Textile Mills Ltd. v. the Authority under Payment of Wages Act, Directorate of Labour Welfare, Hyderabad and another (1996 PLC 610), (6) Abdul Karim v. Chairman, Punjab Labour Appellate Tribunal, Lahore and 3 others (1997 PLC 481), (7) United Business Lines S.I.E., Gujranwala and another v. Government of Punjab through Secretary, Local Government Lahore and 5 others (PLD 1997 Lahore 456), (8) Abdul Kasim v. Chairman, Punjab Labour Appellate Tribunal and others (1998 PLC 68), (9) Municipal Corporation, Sialkot through the Administrator v. Younis Masih and others (1998 PLC 336) (10) Gatron (Industries) Limited v. Government of Pakistan and others (1999 SCMR 1072)', (11) Chairman, Central Board of Revenue, Islamabad and 3 others v. Messrs Pak Saudi Fertilizer Ltd. (2000 PTD 3748), (12) Chief Engineer, AEB v. Commissioner for Workmen's Compensation Authority (2000 PLC (C.S.) 1082).

8. These are not the cases of lack of complete jurisdiction nor could be termed as mala fide. First appeal is a continuation of suit/application and factual controversy can only be resolved after sifting the evidence brought on record. It is not the discretion of a party to ignore the provisions of appeal and file Constitutional petition instead. Even, if it is assumed for the sake of arguments that the claim of the respondents was on higher side, yet, for this reason alone it could not be asserted that the respondent No.1 had no jurisdiction in the matter. In various cases, this Court has discouraged the tendency to bypass the remedy provided under the relevant statute and to press into service Constitutional jurisdiction of High Court. It is, however, true that in certain cases resort to Constitutional jurisdiction of High Court instead of availing remedy provided under the statute, may be just, but no such material is available on record for ignoring the remedy provided under section 17 of the Act. It is noted that Payment of Wages Act is primarily a beneficial legislation and has been enacted to provide relief to the workers, as such, it could not be construed otherwise. Such construction could not be placed upon its provisions, which directly or indirectly nullify the object of its legislation. Remedial statutes shall always be construed in a manner to advance the remedy, as provided in the statute and not in a mariner to defeat the legislative intendment. The writ petitions in these cases were filed to defeat the proviso (a) of subsection (1) of section 17 of the Act quoted above.

9. Learned High Court in the last para of the impugned judgment observed as follows;-- "However, in order to meet the ends of justice we observe that the petitioner-Company shall be at liberty to file an appeal in the appropriate forum and time spent by the petitioner-Company in this Court shall be excluded from the computation of the period of limitation prescribed in the law."

10. We are of the view that in order to nullify the effect of section 17(1)(a) of the Act, the jurisdiction of High Court was invoked and it was mala fide. The amount, determined by the respondent No. 1 as wages, was never deposited by the petitioners. Accordingly, we set aside the above quoted observations of High Court and leave it to the appropriate Forum/Appellate Authority to decide the issue of limitation on merits having taken into consideration all the circumstances of these cases. In fact, High, Court had no justification to pre-empt the decision of the First Appellate Court on the point of limitation.

11. In consequence, leave to appeal is refused and the petitions are dismissed. S.A.K./S-298/S Leave refused.