2002 PLP 52 (PLC)

Date of hearing: 19th June, 2001. HAMID ALI MIRZA, J.‑‑‑These two civil petitions, Civil Petition No.356‑K of 2001 filed by the private employees while Civil Petition No.359‑K of 2001 filed by Commissioner, Workmen's Compensation/Authority and others, for leave to appeal are directed against the common judgment, dated 2nd March, 2001 in Constitutional Petition No.S‑179 of 2000 filed by respondent Industrial Gases Ltd., passed by learned Judge in Chambers of Sindh High Court, Circuit Bench, Hyderabad, wherein the said respondent challenged the order, dated 4‑4‑2000 passed by respondent No.3, the Authority under Payment of Wages Act and Commissioner for Workmen's Compensation, Hyderabad, whereby Constitutional petition was allowed holding that the said respondent had no jurisdiction and the order dated 4‑4‑2000 was passed without lawful authority. Brief facts of the case are that the private petitioners were employed in Pakistan Industrial Gases Limited, a factory, respondent No. 1, when the said respondent closed the said factory on the ground of non‑production in March, 1992 and did not pay wages to the private petitioners from October, 1992 to December, 1993 as such latter filed their petition for recovery of wages before respondent No.3 which Petition No.l of 1994 was allowed. The respondent No.l challenged the said decision of respondent No.3 through Civil Petition No.S‑26 of 1994 before the Sindh High Court, Hyderabad Circuit which Constitutional petition was dismissed on 1‑3‑1995 by the learned Judge in Chambers. Thereafter, another application for claim was filed before respondent No.3 wherein the respondent No. l after filing the reply/statement before respondent No.3, preferred Constitutional Petition No:27 of 1996 before the Sindh High Court, Hyderabad Circuit which petition was dismissed on 10‑10‑1997 by the learned Judge in Chambers. During the pendency of proceedings before respondent No.3, petitioners and the respondent No. l appeared and filed affidavit, counter‑affidavit and objection respectively and ultimately respondent No.3 decided the matter in favour of petitioners on 4‑4‑2000. It may be pointed out ;hat during the pendency of proceedings before the respondent No. 3, respondent No. 1, had reached a settlement with the collective bargaining agent of respondent No. l and petitioner No. l who had signed the said settlement being the General Secretary of C.B.A. according to which the respondent No. 1 agreed to make payments of certain amount to the workers/members of C.B.A. but the said agreement was not abided by the said respondent No. l who ultimately filed a third Constitutional Petition No.S‑179 of 2000 before the Sindh High Court, Circuit Bench, Hyderabad which petition was allowed as per impugned judgment which has been challenged before this Court. We have heard learned counsel for the parties at length, perused the record and the case‑law cited by the respective counsel. The contention of the learned counsel for the petitioners in both the petitions is that the learned Judge in Chambers has misread and misinterpreted the provision of Articles 175 and 203 of the Constitution of the Islamic Republic of Pakistan and ignored the provision of Article 268, so also has misread and misapplied the decisions of this Court in cases of Sh. Liaquat Hussain (PLD 1999 SC. 504) and (ii) Mehram Ali (PLD 1998 SC 1445) and declared illegally the "Authority" created under section 15 of the Payment of Wages Act, 1936 to be an unlawful. He further submitted that the "Authority" under Payment of Wages Act is a Court as created under the Payment of Wages Act, 1936 which being existing law in terms of Article 268 of the Constitution of the Islamic Republic of Pakistan, 1973, would continue to be in force consequently the said "Authority" under Payment of Wages Act could .not be declared to be illegal and unconstitutional, considering that the "Authority" was notified in the official Gazette by the Provincial Government in terms of section 15 of the Payment of Wages Act. He also contended that .the said respondent No. l could not challenge the order of the respondent No.3 as the said respondent has earlier challenged the same through C.Ps. Nos.26 of 1994, 27 of 1996 and 8 of 1997 before the Sindh High Court consequently the said respondent was barred from filing the third Constitutional petition on the principle of estoppel. He also submitted that the person mentioned' as "Authority" possessed of necessary qualification for his appointment as "Authority" under the law. Learned counsel for the respondent submitted that the impugned order passed by the learned Judge in Chambers is legal and proper considering that the respondent Commissioner, Workmen's Compensation had no jurisdiction to decide the matter in view of the fact that the judiciary has been separated from the executive and the said respondent being not judicial officer cannot be permitted to adjudicate upon such matters under the law. He has placed reliance upon Sh. Liaquat Hussain and others v. Federation of Pakistan (PLD 1999 SC 504 at 564) and Mehram Ali and others v. Federation of Pakistan (PLD 1998 SC 1445). We have gone through the record and the case‑law cited by the learned counsel for the respondent. We find merit and substance in the contention of the learned counsel for the petitioners. The learned Judge in Chambers after hearing the arguments of the learned counsel. for the parties in the concluding para. at pages 12 and 13 of the impugned judgment has observed as follows:‑‑ "Admittedly Articles 175 and 203 of the Constitution are very clear in the wake of the arguments rendered by Mr. M.L. Shahani. The Constitution of Pakistan recognizes only such specific tribunals to share judicial powers which have been specifically provided by the Constitution itself (Federal Shariat Court, Chapter 3‑A of the Constitution). Tribunal under Article

212. Election Tribunal. Article 255 of the Constitution. any Court or Tribunal which has not founded on any of the Article of the Constitution cannot lawfully share judicial powers with the Courts referred to in Articles 175 and 203 of the Constitution and I am being fortified by the law reported in case of Sh. Liaquat Hussain and others v. Federation of Pakistan through Ministry of Law, Justice and Parliamentary Affairs, Islamabad and others (PLD 1999 SC 504, relevant page 564) wherein the Hon'ble Supreme Court has taken the view as discussed in supra and the same view has been taken by the Hon'ble Supreme Court in case of Mehram Ali and others v. Federation of Pakistan and others (PLD 1998 SC 1445). I am of the considered view that the Court of respondent No. l is not founded on any of the Articles of the Constitution and cannot lawfully share judicial power with the Courts referred to in Articles 175 and 203 of the Constitution. Arguments advanced by the learned counsel appearing for the respondent have not rendered valuable assistance to this Court and they have not been able to rebut the contentions raised by the learned counsel for the petitioner in view of authorities reported in PLD 1999 SC 504 at 564 and PLD 1998 SC 1445. Respondent No.l has passed order without jurisdiction and the present Constitutional petition has been competently filed. In result the present Constitutional petition is allowed as respondent No.1 had no jurisdiction to pass the impugned order, dated 4‑4‑2000 and he‑ has passed the impugned order without lawful authority which is quashed." Article 175 of the Constitution of the Islamic Republic of Pakistan reads as follows:‑‑ "(1) There shall be a Supreme Court of Pakistan, a High Court for each Province and such other Courts as may be established by law. (2) No Court shall have any jurisdiction as is or may be conferred on it by the Constitution or by or under any law. (3) The judiciary shall be separated progressively from the executive within (fourteen) years from the commencing day." Article 203 of the Constitution of the Islamic Republic of Pakistan runs as follows:‑‑ "Each High Court shall supervise and control all Courts subordinate to it." The Courts are creatures of Constitution and derive their powers and jurisdiction from the Constitution and they have to examine their powers A within the limits laid down by the Constitution. Article 175 of the Constitution has established Supreme Court of Pakistan and a High Court for each Province and such other Courts as may be established by law. Clause (2)(c) of Article 175 of the Constitution states "no Court shall have any jurisdiction save as is or may be conferred on it by the Constitution or by or under any law". This shows that the Constitution has conferred powers on appropriate Legislature to create and establish Courts or Tribunals B and can regulate their jurisdiction by the relevant law. The words "conferred on it by the Constitution or by or under any law" signify that the Courts or Tribunals are to exercise their powers as provided by the Constitution or by under any law. This would show that if law has been validly legislated the Courts and Tribunals would exercise their jurisdiction there-under. We are aware that numerous Tribunals in the country are functioning viz., Industrial Tribunals, Labour Appellate Tribunal, Income Tax Tribunals, Local Government Appellate Tribunals, etc., and the same are functioning and exercising their jurisdiction under respective provisions of law. An "Authority" established under section 15 of Payment of Wages Act, 1936 has C to decide the claims in respect of class of persons employed in the industry with regard to wages and such authority is to be appointed by the Provincial Government and the said legislation would fall within Item No‑

26. Concurrent Legislative List of Fourth Schedule of the Constitution consequently it is a valid law and further the said law is saved by Article 268 of the Constitution of Pakistan where-under all existing laws would have to remain in force with necessary adaptation until altered, repealed or amended by an act of appropriate Legislature and nothing contrary has been pointed out by the learned counsel for the other side that the said provision of section 15 of the Payment of Wages Act .was not made by Legislature competent to make it. It would also be pertinent to point out that direction of the "Authority" under section 15 of the said Act is subject to appeal under section 17 of the said Act before the Labour Court which is presided over by District Judge who is a Judicial Officer and would fall within judicial hierarchy and under the administrative control and supervision of the High Court, therefore, the same would not offend or be violative of the principles of independence of judiciary. The "Authority" named under section 15 of the said Act has to decide the claims in controversy in accordance with law and the said "Authority's" directions/decisions are subject to further scrutiny before the Labour Court presided over by Judicial Officer. In the circumstances no exception can be taken to the establishment or jurisdiction of the Authority/Tribunal as the same has been established through valid legislation, therefore, until and unless it is repealed in view of Article 268 of the Constitution same cannot be declared to be functioning without lawful authority, considering that clause (2) of Article 175 has expressly referred to the "Constitution or by or under any law". Admittedly Payment of Wages Act; 1936 is a time tested law in force since last about 65 years, therefore, in the circumstances stated above it cannot be declared to be violative of the principles of independence of judiciary. In addition to above it may be pointed out that there is no material on record that the Authority who passed the impugned order has not been shown to possess the required qualification provided under section 15 of the said Act. It may also be mentioned that the order passed in appeal by the Labour Court under the Payment. of Wages Act, 1936 would be subject to review by the High Court under Article 199 of the Constitution. It may also be stated that Labour Court for the purpose of adjudicating and determining any industrial dispute is deemed to be a Civil Court within the meaning of section 36 of Industrial Relations Ordinance, 1969. In a case decided by the Labour Court under section 17 of the said Act under the Payment of Wages Act when such matter is transferred to Labour Court under statutory provision its adjudication and determination by Labour Court would be proceeding under the Industrial Relations Ordinance by virtue of subsection (5)(a) of section 35 and would be amenable to the revisional jurisdiction before the Labour Appellate Tribunal. Reference may be made to National Cement Industries v. Sindh Labour Tribunal (1981 PLC 561 (D.B.). Learned Single Judge of the Lahore High Court in Pakistan through Chairmanm Pakistan Railways Board v. Maqsood Ali and others (1981 PLC 307) in a case under Payment of Wages Act decided by Labour Court under section 17 of‑the said Act gave contrary finding holding that Labour Appellate Tribunal cannot revise decision of Labour Court acting as Appellate Authority under Payment of Wages Act within ambit of power granted to it under section 38(3‑a) of Industrial Relations Ordinance However, it is settled that an order passed by Labour Court which is generally presided over by District Judge is always subject to judicial review by the High Court under Article 199 of the Constitution of the Islamic Republic of Pakistan. The facts of the cited cases of Liaquat Hussain and Mehram. Ali cited in the impugned judgment are quite different and distinguishable to the facts of the instant case. However, this Court in Mehram Ali's case came to the conclusion that certain provisions of the Anti‑Terrorism Act, 1997 were invalid in their said form as they militated against the concept of independence of Judiciary and Articles 175 and 203 of the Constitution, however, in the instant case as observed above the said provision of section 15 of Payment of Wages Act being valid law, also saved by Article 268 of the Constitution would not offend or be violative of the principle of independence of judiciary, therefore, cannot be termed to be without jurisdiction or unlawful. In view of aforesaid discussions and reasonings we find merit and substance in these petitions, therefore, the same are converted into appeals and the impugned judgment of the learned Single Judge in Chambers is set aside and appeals are allowed. Q.M.H./M.A.K./G‑76/S Appealls allowed.