1979 PLP 440 (PLC)

(a) Bonus for the year 1972‑73 Rs. 800 (b) Gratuity Rs. 1,700 (c) Ex gratia payment Rs. 300 Total Rs. 2,800 After exchange of notices by the counsel for both the parties, ultimately respondent No. 3 filed his claim for the aforesaid amount against the petitioner before the Court of Authority constituted under section 15 of the Payment of Wages Act, 1936. The claim was resisted by the petitioner on the ground that respondent No. 3 before his resigna tion was in receipt of remuneration of Rs. 1,535 which was more than 1,000 rupees, as such he was not a workman and was disentitled from invoking the jurisdiction of the Court of Authority under section 15 of the Payment of Wages Act, 1936. Before the Authority the petitioner contended that respondent No. 3 was receiving total emoluments of Rs. 1,

535. The break‑up of which was given as under :‑‑ Rs.

1. Basic Salary 850

2. Conveyance Allowance 100

3. Entertainment Allowance 50

4. Dearness Allowance 85

5. House Rent 450 Total 1,535 Before the Court of first instance the petitioner after opposing the claim on the grounds mentioned above, filed the written statement but produced no other evidence. Respondent No. 3 examined himself and produced certain documents and was not cross‑examined by the peti tioner. No person was examined as a witness on behalf of the petitioner. However, the Court of first instance dismissed the application of respondent No. 3 as not maintainable on the ground that his total monthly wages exceeded 1,000 rupees. In exercise of appellate jurisdiction under section 17 of the Payment of Wages Act of 1936, the Sind Labour Court No. 3 at Karachi, impleaded as respondent No. 1 in this petition, after hearing the learned Advocates appearing for both the parties and examining the record, came to the conclusion that at the relevant time respondent No. 3 was drawing wages to the tune of Rs. 1,000 per month including Rs. 850 as basic salary, Rs. 100 Conveyance allowance and 1". 50 Entertainment allowance. It was held by the learned appellate Court that house rent of Rs. 500 is not to be included in the determination of "Wages" as per clear provisions of section 2 ‑VI" of the Payment of Wages Act, 1936, where definition of "wages" is described with an express prohibition of not including in the determination of "wages", the value of any house accommodation, supply of light, water, medical attendance or other amenity, or of any service excluded by general or special order of the Provincial Government and other sums expressly excluded. The learned Appellate Court has delivered an elaborate judgment after hearing the learned Advocates appearing for both parties, which contains very cogent and convincing reasons. It is crystal clear that the said Act has expressly excluded the inclusion of value of any house accommodation or the house rent, as is usually described from the determination of "wages" as envisaged by section 2 (VI) of the said Act, hence the appellate Court while computing the salary of respondent No. 3 has excluded house rent and rightly so, as part of the salary for that specific purpose. In any case the question of payment of house rent depends upon the terms of the contract of employment and mostly it is conditional in the sense that it is payable till such time that the employer provides official residence. In case when such official residence is provided, this allowance is not paid to the employee. On the basic issue whether it is to be treated as part of wages or not relevant provision of the said Act, as mentioned above, is manifestly clear that it is not to be considered as included as part of the salary. Now the question which falls for consideration is whether Constitutional Petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 is competent or not in the instant case. The prayer in the Constitutional Petition is for declaring the order of respondent No. 1 dated 10th June, 1975 as illegal, void, without lawful authority and of no consequence and passed in excess of jurisdiction, as such it may be quashed. On the other hand, Payment of Wages Act, 1936 provides for setting Court of Authority under section 15 of the same Act, duly authorised to bear and decide for any specific area all claims arising out of deductions from the wages or delay in payment of wages or non‑payment of dues relating to Provident Fund, gratuity payable under any law or delay in the payment of wages of persona employed or paid in that area. How this Court is to be constituted is provided in subsection (1) of section 15 of the said Act. Section 17 of the same Act further provides for an appeal against the order of authority to be heard and decided by the Labour Court constituted under the Industrial Relations Ordinance, 1969 (XXIII of 1969) within whose jurisdiction the case of action, to which appeal relates, arose. Subsection (2) of section 17 of the said Act envisages that the decision of the Labour Court shall be final. In view of this position there is no further remedy of appeal after the decision of the Labour Court which is final as provided by the Payment of Wages Act, 1936 The Constitutional Jurisdiction under Article 199 of the Constitution of 1973 in the instant case can be invoked only when the order impugned is without lawful authority and of no effect, which covers only jurisdic tion defects as distinguished from a mere erroneous decision, whether on question of fact or even of law. While exercising writ jurisdiction, the High Court is concerned only with the question whether the Court or Tribunal below had acted within its jurisdiction. The Tribunal or the Court having jurisdiction under any special law to decide a matter is competent to decide it rightly or wrongly and the mere fact that decision is incorrect does not render the decision as without lawful authority. Reliance is placed on P L D 1974 S C

139. In the instance case, it cannot be said that the Sind Labour Court has acted without lawful authority or the impugned order passed is of no legal effect because the appellate Court as well as the Court of first instance have exercised their respective jurisdictions competently and correctly as conferred upon them by the Payment of Wages Act, 1936. Proper procedure as laid down has been followed, both parties have been heard and controversial question has been decided according to the provision of law. No illegality has been committed to say that the Courts below had no jurisdiction or the impugned order has been passed without lawful authority. Jurisdiction under Article 199 of the Cons titution cannot be allowed to be exercised to provide a further right to appeal when no such right is permissible under the special law. In view of the legal position stated above I am firmly of the view that the impugned order has been passed by the Court of competent jurisdic tion and invocation of jurisdiction of this Court under Article 199 is not permissible, as such the petition is dismissed. Petition dismissed.