1999 PLP 362 (PLC)

Gul Muhammad son of Abdullah Khan. Driver. Rs. 4,430.00 6 7 22/99 23/99 Muhammad Imtiaz Ali son of Chaudhry Muhammad Sharif. Sabir Hussain son of Sirajuddin. Driver Data Logger. Rs. 9,600.00 Rs. 9,600.00 All respondents filed separate applications on 22nd October, 1998, under section 15 of the Payment of Wages Act, 1936 (hereinafter referred as 'Act of 1936') claiming identical relief, therefore, prayer clause from one of them i.e. Civil Petition No. 12 of 1999, is reproduced herein below:‑‑ "The applicant prays that a direction may be issued under subsection (3) of section 15 for :‑‑ (a) Payment of is delayed wages as estimated or such greater or lesser amount as the authority may find to be due. (b) Compensation amounting to Rs.1,50,000 (c) Cost of this application Rs.1,000. " Petitioners, opposed the applications, both on the question of jurisdiction of Authority as well as on merits. It seems that the Authority assumed the jurisdiction, without considering to the objection of petitioners, therefore, they instituted Constitutional Petitions 425 to 430 of 1998, which were disposed of on 10th December, 1998, in terms; that the Authority shall dispose of the question of its jurisdiction, first of all, as ‑far as possible, within two weeks. On remand of case, vide order, dated 26th December, 1998, the Authority assumed the jurisdiction. Concluding para. of order, reads as under:‑‑ "In view of the above, without touching the merits of the case, accordingly held the Commissioner who is also an Authority under section 15 of the Payment of Wages Act, 1936, has the jurisdiction to decide cases towards grant of Gratuity/non‑payment of dues/delay in payment of wages etc. which has as such been claimed in the present application." Thereafter, the Authority decided applications on merits, vide order, dated 1st January, 1999, granting thereby, the relief as prayed for, relating to bonus of three years, gratuities, etc. As such, instant petitions, have been filed, to claim the relief; that the orders, dated 26th December, 1998 and 1st January, 1999, be declared, as without lawful authority and of no legal effect, and on setting aside the same, the applications filed by private respondents, be dismissed. Raja M. Afsar, learned counsel, on behalf of petitioners, argued that under the Act of 1936, Authority can assume jurisdiction, if applicant satisfies that he is a 'workman', as defined under the Factories Act, 1934, or that he is employed in the Establishment of Pakistan Railways or that his salary is less than Rs.3,

000. According to him, as admittedly in the cases of respondents, these three elements are lacking, therefore, the Authority had no jurisdiction. He further emphasised that although application was submitted before the Authority under the Act of 1936, but the Presiding Officer to usurp the jurisdiction, in the order, dated 26th December, 1998, by construing himself to be the 'Commissioner' under the Workman's Compensation Act, 1923) (hereinafter referred as 'Act of 1923') as well as Authority under the Act of 1936, concluded, that it has the jurisdiction to decide the case. Whereas even the Commissioner, under Standing Orders 10(c) and 12 of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 (hereinafter referred as 'Ordinance of 1968'), has no lawful authority to grant the relief, as claimed for; because for such relief, Forum of Labour Court, has been prescribed under section 25‑A of the Industrial Relations Ordinance, 1969. Thus, according to him, the impugned orders, having been passed without lawful authority and jurisdiction, are directly amenable to the Constitutional jurisdiction of this Court, even without availing the alternate remedy of filing an appeal, as it has been held in PLD 1961 SC 119; PLD 1972 SC 279; 1972 SCMR 256 and 257; 1985 SCMR 1570 and 1991 SCMR

591. Respondent No.l Mr. Akbar Azad, appeared in person and supported, both the orders, by arguing that the respondents had instituted the applications, before the Authority urider the Act of 1936 cum‑Commissioner under the Act of 1923, for grant of gratuity, bonus etc. under the Standing Orders 10(c) and 12 of the Ordinance of 1968, therefore, being in capacity of 'Authority' and 'Commissioner', had rightly assumed the jurisdiction, to grant reliefs to respondents. Reliance was placed by him on PLD 1991 SC ,

183. In our considered opinion, the principal question for concentration is; whether the impugned orders passed by respondent No.l, are with or without lawful authority and jurisdiction? In this behalf, first of all, it may be seen that the applications, dated 22nd October, 1998, were filed by respondents, before respondent No. 1, in its capacity as 'Authority' under the Act of 1936. A thorough perusal of the application, at all does not suggest that they ever made an attempt to invoke the jurisdiction of Commissioner under the Act of 1923, neither subsequent to filing of applications, ever an effort was made, to amend the same, by bifurcating the claims separately, which can be granted by the Authority and the Commissioner, under both the Statutes i.e. the Act of 1936 and the Act of 1923, respectively. It so happened that when this Court in earlier round of litigation on filing of C.Ps. Nos.425 to 430 of 1998 by petitioners directed the Authority to first of all decide the question of jurisdiction then respondent No. l to confer upon itself the jurisdiction to hear applications observed as under:‑‑ "Assuming for the sake of arguments that the present forum is not available to the applicant then the question arises where he/they can approach for the redress of grievances, if any ? So far as the provisions of the Ordinance relating to bonus and gratuity are concerned cannot be taken or treated as redundant. West Pakistan Lahore High Court had held that an Advocate/Legal Counsel although represents as party but he is more an Officer of the Court than for the party he represents, and in such cases he is duty bound to assist the Court/Tribunal and to point out as where the remedy lies so that the matter, if any, is referred to it so as to save time/money of the litigants, It would not be out of place to be mentioned here the workers are generally illiterate persons mostly lay man and oftenly proletariat and applications by them are mostly not happily worded; and on the other hand the employers are bourgoise who are well‑equipped on account of financial resources who resist such claims hundred per cent, knowingly that the worker is likely to get exhausted in due course on account of financial constraints. In view of the above, without touching the merits of the case, accordingly held the Commissioner who is also an Authority under section 15 of the Payment of Wags Act, 1936 has the jurisdiction to, decide cases towards grant of gratuity/ non‑payment of dues/delay in the payment of wages etc. which has as such been claimed in the present applications." The above observations of respondent No.1, persuades us to hold, that the Authority indirectly had admitted that it had no jurisdiction, to grant the relief of bonus and gratuity to the respondents, under the Act of 1936. Therefore, it had exercised the jurisdiction, as Commissioner under the Act of 1923. Thus, it would be imperative to examine; whether the payment of bonus and gratuity, could legitimately be granted by respondent No.l, in capacity of Commissioner under the Act of 1923, to private respondents, under Standing Orders 10(a) and 12 of the Ordinance of 1968 ? Before dilating upon this question, it may be noted that the Ordinance of 1968, was promulgated, to amend and consolidate the law, relating to industrial employment in the Province of West Pakistan, and its section 1(4)(a) provides, that it applies to every industrial establishment or commercial establishment wherein twenty or more workmen are employed, directly or through any other person whether on behalf of himself for any other person, or were so employed on any day during the preceding twelve months; and such classes of the industrial and commercial establishments as Government may, from time to time, by notification in the official Gazette, specify, in this behalf. Taking into consideration these provisions, with Standing Order 10‑C of the Ordinance of 1968, relating to payment of bonus, one can conveniently conclude, that such relief can only be granted to the workmen; because every employer making profit in any year shall pay for that year within three months of the closing of that years, to the workmen, who have been in his employment in that year for a continuous period of not less than ninety days a bonus in addition to the wages payable to such workmen. Likewise under Standing Order 12, on the termination of employment of a permanent workman, for any reason other than misconduct, one month's notice shall be given either by the employer or the workman and one month's wages calculated on the basis of average wages earned by the workman during the last three months shall be paid in lieu of notice, and as per its subsection (6), if a workman resigns from service or his services are terminated by the employer, for any reason other than misconduct, he shall, in addition to any other benefit to which he may be entitled under the Ordinance, or in accordance with the terms of his employment or any custom, usuage or any settlement or an award of a Labour Court under the Industrial Relations Ordinance, 1969, be paid gratuity, equivalent to twenty days' wags, calculated on basis of wages admissible to him in the last month of service, if he is a fixed‑rated workman or the highest pay drawn by him during the last twelve months, if he is a piece‑rated workman for every completed year of service or any part thereof in excess of six months. As we have observed hereinabove, that the relief of bonus is admissible, only to the workman. Similarly as per the provisions, referred to hereinabove, the relief of gratuity under the Ordinance of 1968, is also admissible to a workman. Mr. S.A.M. Quadri, learned counsel, stated that as respondents are workman, therefore, they are entitled for grant of both the reliefs, by the Commissioner under the Act of 1923. We afraid, the contention putforth by learned counsel is not correct, because as per section 2(i), of the Ordinance of 1968, 'workman' means; any person employed in any industrial or commercial establishment to do any skilled or unskilled, manual or clerical work for hire or reward. Since in instant case, no evidence was led on behalf of respondents before the respondent No. 1, to establish, that they were working in Industry or Commercial Establishment, therefore, in absence of such evidence, they cannot be deemed to be 'workmen'. Respondent No. 1, vehemently argued that under Standing Order 12(8) and (9) of the Ordinance of 1968, it is the Commissioner, Compensation, who determines the allocation of deposits and also gets recovered the gratuity, if it has not been paid. Raja M. Afsar; leaned counsel, contended that Sub‑Orders (8) and (9) of Standing Order 12, can be invoked, only when question of allocation of amount of gratuity, amongst the legal heirs arises, or when the heirs/dependents are not getting the gratuity. Whereas in the instant case, the respondents, admittedly are not the heirs/dependents of the deceased employees, rather they themselves are claiming, both the reliefs independently. On having gone through Sub‑Orders (8) and (9) of Standing Order 12 of the Ordinance of 1968, we are inclined to agree with the learned counsel for petitioners. At this juncture, reference to the judgment relied upon by respondent No. 1, reported in PLD 1991 SC 183 (Muhammad Habib Khan v. Pakistan Tobacco Company Limited and another) wherein, it has been held, that 'Labour Court would not be the exclusive forum for adjudication of a claim under Standing Order 10‑B, inasmuch as the special remedy under section 25‑A of the Industrial Relations Ordinance, would be only available to the workman, whereas a claim under Standing Order 10‑B was admissible to the workman as well as, in the case of his death, his heirs.' It would also be appropriate at this stage, to observe, that under Standing Order 10‑B (5) of the Ordinance of 1968, the Commissioner, Compensation, has been authorized to settle the claims of workman or his heirs, for recovery of compulsory Group Insurance. Whereas, for the purpose of Standing Order 10‑C, pertaining to payment of bonus, no such jurisdiction, has been conferred upon the Commissioner. Similarly, as far as calculation of gratuity and its payment is concerned, the allocation of the share, amongst the heirs of deceased worker and its recovery on behalf of heirs of deceased, can be undertaken by the Commissioner under Sub‑Orders (8) and (9), of Standing Order 12, but as regards the workman himself, he cannot approach the Commissioner under the Act of 1923, for the redress of his grievance, m this behalf. Thus, we are inclined to conclude; that as per the proved facts available on record, the respondents are not the 'workmen' as defined under section 2(i), nor they proved through evidence, that they are workmen', therefore, the Authority (respondent No. 1) on even exercising the jurisdiction in capacity of Commissioner under the Act of 1923, had no lawful authority to grant them relief. As we have already observed hereinabove that as per the impugned order, dated 26th December, 1998, the Authority had assumed the jurisdiction to give relief to respondents, by invoking his jurisdiction as Commissioner under the Act of 1923, but in view of the above discussion, he was not competent to do so, particularly, for the reason, that no such application was filed before him. As the jurisdiction has been assumed wrongly, without lawful authority by respondent No. 1, therefore, now the question would be; that in such situation, it was mandatory for the petitioners, to have availed the alternate remedy of filing an appeal under section 17 of the Act of 1936 or under section 30 of the Act of 1923. In this behalf the Hon'ble Supreme Court in the case of Lt.‑Col. Nawabzada Muhammad Amir Khan v. The Controller of Estate Duty and others (PLD 1961 SC 119) held that 'the rule that the Court will not entertain a writ petition when other appropriate remedy is yet available is not a rule of law barring the jurisdiction of the Court. It is a rule by which the Court regulates the exercise of its own discretion. One of the well‑recognized exceptions to the general rule is a case where an order is attacked on the ground that it was wholly without authority.' In another case, reported in PLD 1972 SC 279 (The Murree Brewery Co. Ltd. v. Pakistan through the Secretary to Government of Pakistan, Works Division and 2 others) the Hon'ble Supreme Court, reiterated the same principle, laid down in the case of Lt.‑Col. Nawabzada Amir Muhammad Khan. Yet in another judgment reported in 1972 SCMR 257 (Premier Cloth Mills Ltd., Lyallpur v. The Sales Tax Officer, Investigation Circle‑II, Lahore and another), The Hon'ble Supreme Court, relied on the case of Nagina Silk Mills v. Income Tax Officer (PLD 1963 SC 322) wherein, it was held that 'in cases of absence or excess of jurisdiction or where the impugned order suffers from illegality on the face of the record a certiorari may be granted even though the right of statutory appeal had not been availed of.' In view of the principles laid down in above judgments, by Hon'ble Supreme Court, we are inclined to hold that respondent No. 1, neither had the jurisdiction as an 'Authority' under the Act of 1936, to entertain the claim of respondents for the recovery of one months's salary in lieu of notice, as well as bonus and gratuity nor had the jurisdiction to act as 'Commissioner' under the Act of 1923, to grant them relief; because there is no evidence on record to show that respondents are 'workmen', for the purpose of Ordinance of 1968, nor the claim of gratuity, pertains to the deceased workman. Therefore, it had assumed the jurisdiction, without lawful authority vide order, dated 26th December, 1998 and as a consequence of such declaration, the subsequent order passed by respondent No.1, on merits, dated 1st January, 1999, is bound to be declared void, as it has been passed by the Forum, which had no jurisdiction. Therefore, for these reasons, the instant petitions are maintainable, even without availing of alternative remedy. For the above discussion, writs are issued, declaring the impugned orders having been passed, without lawful authority and jurisdiction. Parties are left to bear their own costs. H.B.T./764/Q Petitions allowed.