2006 PLP 298 (PLC)

MUHAMMAD MOOSA K. LEGHARI, J

Since both the above-noted petitions arise out of similar facts and circumstances, those are being disposed of by a single order.

2. The petitions are directed against the order dated 16-10-2004. passed by the Authority under the Payment of Wages Act, West Division, Karachi whereby it proceeded to grant claim of the Applicant/Respondent besides saddling the Petitioner with a penalty at the rate of 10 times of the delayed/deducted wages.

3. Relevant facts for the purpose of disposal of these petitions are that the Respondent after being terminated from service, approached the Authority under Payment of Wages Act and placed claim of delayed wages as provided under section 15 of the Payment of Wages Act.

4. The claim of the Respondent worker was resisted by the petitioner by filing legal objections and written statement. The Respondent appeared as his own witness and was cross-examined, however no evidence could be produced on behalf of the Petitioner and, thus, their side was closed. Consequently, the impugned order was passed.

5. In support of the petition, it has been urged on behalf of the petitioner that at the best claim of the petitioner would fall under the term, "delayed wages" for which section 15 provides a penalty to the extent of Rs.10 only. By awarding the whole claim of the Respondent worker without ascertaining the same by the Authority and further imposing a penalty of 10 times upon the petitioner, was wither borne out from the evidence iior was warranted by law. No evidence was produc4 in support of claim of the Respondent worker.

6. Conversely, a legal objection has been raised on behalf of the Respondent worker that a remedy of appeal has been provided under section 17 of the Payment of Wages Act and without exhausting such remedy, the petitioner could not invoke the constitutional jurisdiction of this Court. Thus the petition was not maintainable. Learned Counsel for the Respondent has placed reliance on the Supreme Court judgment reported in 2003 PLC 395.

7. Being faced with the above situation, learned counsel for the petitioner concedes the availability of alternate remedy. He, however, submits that under wrong advice of the counsel, the petitioner instead of approaching the Labour Court in appeal, has directly approached this Court under the constitutional jurisdiction. He, therefore, submits that in the interest of justice such observation be given that would help the petitioner to overcome the bar of limitation if an appeal is presented before the Labour Court.

8. The submissions made have been considered.

9. In the case of Sayed Match Company Ltd. v. Authority under Payment of Wages Act (2003 PLC 395), Honourable Supreme Court was pleased to hold as under:-- "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 is legislation. Remedial statutes shall always be construed in a manner to advance the remedy, as provided in the statute and not in a manner to defeat the legislative intendment. The writ petition in these cases were tiled to defeat the proviso (a) of subsection (1) of section 17 of the Act quoted above."

10. So far as the prayer of the petitioner for making observation to consider the point of limitation is concerned, the perusal of the above citation reveals that the Peshawar High Court has made such observation thereby directing the appellate forum to exclude the time spent by the petitioner in the High Court. But such observation was not approved by the apex Court, and it was ruled as under:-- "We are of the view that in order to nullify the effect of section 17(1) 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 petitioner. 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 jurisdiction to pre-empt the decision of the First Appellate Court on the point of limitation."

11. In view of the above verdict of the Honourable Supreme Court, the petitions are dismissed in limbic. H.B.T./S-14/K???????????????????????????????????????????????????????????????????????????????????? Petition dismissed.