1968 SCMR 317 (2) (PLP)

HAMOODUR RAHMAN, J.-This is a petition for special leave to appeal from the judgment and order of a Division Bench of the High Court of West Pakistan, Lahore, in a petition under Article 98 of the Constitution. This petition was filed by the petitioners, who are firms engaged, inter alia, in running Steel Re-rolling Mills in the Province of West Pakistan. It appears that at the direction of the Provincial Government made under section 5 of the Minimum Wages Ordinance, 1961 (Ordinance No. XXXIX of 1961) the Minimum Wages Board constituted under the said Ordinance, after conducting an enquiry and considering objections and suggestions received by it, on the 16th of November 1962, made its recommendations for fixing the minimum rates of wages for workers of all kinds employed in Steel Re-rolling Industry in West Pakistan. This was, under section 6 of the Ordinance, notified in the official Gazette on the 15th of March 1963, and declared to be the minimum rates of wages for such workers. The petitioners considering these wages inequitable to the employers applied to the Provincial Government to have the matter referred back to the Wages Board under subsection (5) of section 6 of the Ordinance. This application was accepted and the Government referred the matter back to the Board. The Board made its recommendations on the 9th of July 1966, these were accepted by Government and notified in the Gazette on the 19th of November 1966. The petitioners then finding that the second recommenda tion was more inequitable than the first sought to challenge in the High Court by a petition under Article 98 of the Constitution the validity of both the notifications. But curiously enough in the prayer portion of the writ petition the relief sought was confined to only the first notification of 1963 in the following words:- "Under these circumstances it is respectfully prayed that this Honourable Court may be pleased to pass an appropriate order restraining the respondent from enforcing the inequitable provisions of para. 2 (III) of the Annexure to Notification No. 2-2 (L-IV) 62, dated the 15th of March 1963, for the period 15th of March 1963, till the 19th of November 1966." It will thus be observed that in this prayer in effect the enforcement of even that notification was being challenged for a limited period, namely, the 15th of March 1963 to 19th of November 1966. Notwithstanding this, before the High Court the petitioners raised four contentions, namely, (i) that the revised notification was bad, because it was in effect the recommendation of the Chairman and not of the Board, as some members of the Board had from time to time abdicated their functions in favour of the Chairman and empowered him to take any decision he thought fit, (ii) that in a reference under subsection (5) of section 6 the Board was not competent to make a recommendation which was mare inequitable than the one which was referred back, (iii) that the inevitable consequence of the second reference under subsec tion (5) of section 6 was that the first recommendation became ipso facto null and void and could not be given effect to, and (iv) that Steel Re-rolling Industry being a public utility service the Provincial Government had no jurisdiction with regard to them. The High Court repelled each one of these contentions and dismissed the petition in limine. The petitioners now seek special leave to appeal. Learned counsel appearing in support of this petition has referred us to a letter addressed by the Labour Department of the Government of West Pakistan, to the Director of Labour Welfare, West Pakistan which, it is said, amount to a decision by the Government to enforce the first recommendation for the period with effect from the 15th March 1963, to the 19th of November 1966, the date of notification of the second recommendation. Reference to this letter would show that it was written on a query from the Director of Labour Welfare, West Pakistan. The Labour Department of the Government thereby simply gave the opinion that the rates declared under the second notification could not take effect retrospectively from the date of the first notification. The law Department was, however, also of the view that a second reference under subsection (5) of section 6 does not automatically cancel the prior notification. There is nothing in this letter to show that a decision of any kind had been made. The contention of the petitioners, there fore, that the Government had decided to enforce the first notification for the period between 15-3-1963 to 19-11-1966 is not supported by any order to that effect on the record. The challenge in that behalf, therefore, is premature and possibly an attempt to anticipate any action that the workers may take to enforce their claim for arrears on the basis of the first notification. The contention is that the employer is liable under section 9 A of the Ordinance to be prosecuted for payment at a rate lower than the rate declared under this Ordinance to be the minimum rate of wages and in such a case can also be made liable to punishment with imprisonment for a term which may extend to six months or with fine extending to Rs. 500 or both and, therefore, there is at least, it is urged, a threat of such penal action which gives the petitioners a cause of action to invoke the constitutional jurisdiction of the High Court. We are unable to agree. If and when the prosecution is started the petitioners will be entitled to raise it by way of a defence in that prosecution that the notification itself is illegal or ultra vires or unenforceable. Such an offence, it appears, is not cognizable under section 10 of the Ordinance except upon a complaint by the Provincial Government or by a person authorized in that behalf by such Government. The petitioners have not adduced any evidence to show that any complaint of this kind has ever been made. The High Court was, therefore, in our opinion, right in rejecting this contention, and so far as this Court is concerned it need only be said that at this stage this is an academic question. The next contention raised in support of this petition is that the second notification is itself bad, because the recommendations upon the second reference were made, in effect, by the Chairman alone, as the other members had abdicated their functions in his favour. This allegation was, however, not supported by any affidavit. Therefore, the mere assertion of the petitioners could not be accepted in view of the fact that a presumption of regularity attaches to official acts. Learned counsel has conceded that no affidavit was filed to support these allegations. In the circum stances, we are unable to see how it can be said that the High Court acted unreasonably in rejecting this ground. Lastly learned counsel then sought to contend that the second recommendation upon a second reference could not be more inequitable than the first reference. But we see no substance in this contention, for, there is no such limitation imposed upon the powers of the Board by the statute itself. No other question has been raised. This petition is, accordingly, without any substance and is dismissed. Petition dismissed.