1990 PLP 350 (PLC)

(b) Constitution of Pakistan (1973)‑‑ ‑‑‑Art. 199‑‑‑Constitutional petition ‑‑‑Mixed question of law and fact‑‑‑Point not raised by petitioner before Authority‑‑‑Such point was not allowed to be raised in Constitutional petition. Chaudhry Rasheed Ahmed for Petitioner. AJMAL MIAN, CJ.‑‑ The petition is directed against order dated 12‑12 -1988 passed by the learned Sindh Labour Appellate Tribunal upon Revision filed by respondent No.2 restoring the order partly of the authority under the Payment of Wages Act. The brief facts leading to the filing of the above petition are that the respondent No. 2 was working with the petitioner Establishment as a Wireman/Trouble Shooter. He retired from the service in January, 1986. He lodged his claim inter alia for the gratuity. He was paid gratuity without including 55% of the mileage allowance, which he was getting while in employment. The respondent No. 2 filed an application before the authority under the Payment of Wages Act which by its order dated 1‑10‑1983 allowed a sum of Rs.21,317 being the difference of the gratuity amount plus 10 times compensation for with‑holding the above payment namely Rs.21,

317. Against the above order petitioner filed an appeal which was taken up by the learned First Sindh Labour Court, Karachi which by its order dated 15th March, 1987 allowed the appeal and set aside the order of the authority. Respondent No. 2 being aggrieved by the above appellate order filed Revision No. KAR‑270 of 1987 which was partly allowed by the learned Sindh Labour Appellate Tribunal at Karachi as observed hereinabove by the impugned order dated 12‑12‑1988. The petitioner being aggrieved by the impugned order has filed the present petition. In support of the above petition the learned counsel for the petitioner has raised following two contentions. That factually the respondent No. 2 was not a trouble shooter and, therefore, he was not entitled to 55% allowance. In this regard, it may be observed that the Authority as well as the learned Sindh Labour Appellate Tribunal recorded as a finding of fact that factually he was a trouble shooter and was in fact drawing the above allowance of 55% while in service. The learned Labour Appellate Tribunal has also referred to a decree passed by the learned Civil Court, Karachi in Suit No. 58/72 in which inter alia it was held that respondent No. 2 and other 18 workers were in fact part of the running staff wireman/trouble shooter. The above finding of fact which is based on reliable material cannot be disturbed in exercise of Constitutional jurisdiction. As regards the second submission the learned counsel for the petitioner has contended that since the respondent No. 2 is getting pension he is not entitled to gratuity, it will suffice to observe that this point was not raised by the petitioner either before the authority under the Wages Act or before the learned Labour Court or before the learned Sindh Labour Appellate Tribunal. This is a mixed question of fact and law and therefore cannot be allowed to be raised in the petition. The petition is, therefore, dismissed in limine. M.Y.H./D‑66/K Petition dismissed.