1. ' MEHTA KAILASH NATH KOHLI, J.---Facts of the case, in brief, are that respondent No,1 Essa Khan filed an application before Authority Under the Payment of Wages Act (respondent No,3) claiming recovery of outstanding wages against petitioner and respondent No,2. It is the claim of respondent No,1 that he was engaged by petitioner with the collaboration of respondent No,2 for his trade and business on 15th June, 2003. It was further stated in the application that petitioner (contractor of B&R Department, Kalat) gave assignment of repair of Soorab Road and construction of rest house Soorab to applicant-respondent No,l. Record shows that the work started on 15th June, 2003 and was completed in the month of November, 2003, i,e, repair of 9876 feet (in length) 4' wide and 1 deep as well as repair of rest house; details of amount incurred are as under:- "(i) Road. Rs,1,88,000
(ii) Rest House Rs,11,750 Total:- Rs,1,99,750 Advance:- Rs,68,000 Balance:- Rs,1,31,750 ' It was alleged that petitioner is responsible to make payment of outstanding dues of applicant/respondent No,l.
2. ' Written statement was filed by petitioner, wherein application of applicant-respondent No,1 was contested on legal objections i,e, (i) the Court has no jurisdiction to adjudicate upon the matter; (ii) the applicant has no concern or relationship with replying respondent. On merits also, claim of applicant-respondent No,1 was denied. Similarly, respondent No,2 by way filing written statement denied the claim of applicant/respondent No,1 on legal grounds i,e, (i) the applicant has not approached the Court with clean hands (ii) no cause of action accrued to the applicant; (iii) no claim against replying respondent has been sought; (iv) replying respondent has no concern with the applicant; on merits also the application was contested.
3. ' Record reflects that petitioner and respondent No,2 failed to appear, as such, they were directed to be proceeded against ex parte, vide order dated 18th July, 2005 passed by learned Authority (respondent No,3), and; vide order dated 6th August, 2005, respondent No,3 directed petitioner to pay Rs,1,31,750 to applicant respondent No,1 as outstanding wages. Record reflects that petitioner filed application under section 15 of the Wages Act, 1936, for setting aside the order dated 6th August, 2005, passed by respondent No,3. Rejoinder to the same was filed by respondent Essa Khan, whereby; the claim of petitioner was resisted by present respondents Nos. 1 and 2 on legal as well as on factual grounds.
4. ' The learned Authority for Payment of Wages Balochistan, Quetta i,e, respondent No,3, vide his order dated 8th November, 2005, dismissed the application of petitioner. Relevant portion of the same is reproduced hereinbelow:- "... ..I have heard arguments of the parties and gone through the record and after careful perusal of case file it appears that on 14-4-2005 applicant/respondent No,1 filed an application under section 15 of the Payment of Wages Act, 1936 for recovery of outstanding amount against Mr. Ali Akbar Umrani and Aziz-urRahman and in response notices were issued to the respondents which were duly served upon them and the respondents contested the case through their counsel and also submitted their written reply and during the course of proceedings in spite of giving opportunities none of the counsel of the respondents nor respondents appeared in the Court nor informed the Court for their non-appearance. Further perusal of the case file shows that they have full knowledge about the date of hearing of the case but they intentionally and deliberately did not appear and even more no medical certificate in respect of illness has been produced in the Court from which it could be ascertained that their non-appearance was due to illness. Thus application filed appears baseless which is hereby dismissed."
5. ' Following relief has been sought in this petititon:- "It is, therefore, prayed that impugned order dated 18-7-2005, 6-8-2005 and 8-11-2005 passed by the respondent No,3 may be set aside and application of the respondent No,1 may also be dismissed, in the interest of justice, equity and fair play."
6. ' Mr. Azam Jan Zarkoon, learned counsel appearing for petitioner has contended that learned trial Court had no jurisdiction to adjudicate upon the matter, as respondent No,1 was a petty contractor and was not covered within the definition of 'workman'. It was further contended that in view of the fact that he was a petty contractor, was not entitled to the relief claimed.
7. ' Record contemplates that notice of the application was issued and written statement was filed by petitioner, thereafter he did not appear and application for setting aside ex parte order was filed, was also dismissed, whereby relief was granted to respondent No,l. Question was posed to learned counsel for petitioner that the statutory remedy was available to the petitioner by filing appeal under section 17 of the Payment of Wages Act, 1936, and, it was also pointed out that the requirement of law is that petitioner should deposit the amount before filing the appeal, learned counsel stated that the order is patently without jurisdiction, as such, in view of judgment reported in PLD 2002 SC 452, this Court has the jurisdiction to adjudicate upon the matter. The rule of alternate remedy is not inflexible, but where the Statute itself has provided remedy with certain rights and liability, then without discharging the said liability, it will not be proper to exercise jurisdiction, without having availed the said remedy. The High Court has the jurisdiction to exercise the same, where order is shown to be patently illegal and void, and, the efficacious remedy is not found to be available. Reference is made to the case of Farzand Raza Naqvi and 5 others v.
8. Muhammad Din through legal heirs and others (2004 SCM R 400), wherein, their lordships of the Hon'ble apex Court were pleased to consider that the rule of alternate remedy is not absolute, however, they were of the view that the Constitutional jurisdiction cannot be availed to substitute the right of appeal. Relevant observations at page No,404 are reproduced hereinbelow:-- "4. There is no cavil to the proposition that if the remedy of appeal is available to party under the statute, without availing such statutory remedy, the Constitutional jurisdiction of the High Court under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 cannot be invoked and the remedy of writ petition cannot be allowed to be availed as substitution of appeal."
9. ' Although the superior Courts have held in various cases that the Constitutional jurisdiction can be exercised in the presence of alternate remedy provided, if the order is shown to be without jurisdiction, void ab initio. The trial Court, who had to see whether the respondent No,1 is a 'workman' or is covered within the definition of section 2 of the payment of Wages Act, 1936.
10. Learned counsel for petitioner has failed to 'show as to why he did not appear before the trial Court and failed to prove before the competent authority that respondent No,1 was not a workman, and; the matter remained pending for a considerable time before the Authority under Payment of Wages Act and even this jurisdiction can also be exercised by the appellate authority; as the appellate authority has the same jurisdiction as that of trial Court. We while in Constitutional jurisdiction cannot interfere in the factual controversy as to whether the respondent No,1 did fall within the definition of workman, and thus; the application was competent befoie the trial Court.
11. Moreover, special provision has been put into by section 17 of the Payment of Wages Act, 1936 that in case, if decree is appealed, the Judgment-debtor has to deposit the entire amount before filing appeal. For convenience, section-17 of the Act, 1936 is reproduced herein below:-- "17. Appeal. (1) An appeal against the direction made under subsection (3) or subsection (4) of section 15 may be preferred within thirty days of the date on which the direction was made before the Labour Court constituted under the Industrial Relations Ordinance, 1969 (XXXIII of 1969) within whose jurisdiction the cause of action to which the appeal relates arose---
(a) by the employer or other person responsible for the payment of wages under section 3, if the total sum directed to be paid by way of wages and compensation exceeds three hundred rupees: ' Provided that no appeal under this clause shall lie unless the memorandum of appeal is accompanied by a certificate of the authority to the effect that the appellant has deposited with the authority the amount payable under the direction appealed against, or
(b) by an employed person or, if he has died, by any of his heirs, if the total amount of the wages claimed to have been withheld from the employed person or from the unpaid ground to which he belonged exceeds fifty rupees, or
(c) by any person directed to pay a penalty under subsection (4) of section 15.
12. (1-A) All appeals pending before any District Court under this section immediately before the commencement of Labour Laws (Amendment) Ordinance, 1974 shall on such commencement stand transferred to, and be disposed by the Labour Court within whose jurisdiction the cause of action to which the appeal relates arose.
(2) Save as provided in subsection (1), any direction made under subsection (3) or subsection (4) of section 15 shall be final."
13. ' The present petition has been filed to circumvent the said provisions of law, is also not maintainable in law. Thus, we hold that the petitioner has alternate and adequate remedy, available to him and, in view of peculiar circumstances of the case, we refrain to entertain this petition under Article-199 of the Constitution of the Islamic Republic of Pakistan, 1973.
14. ' In view of the reasons stated herein above, the petition is accordingly dismissed in limine.