SYED HAMID ALI SHAH, J.- This single order/ judgment will dispose of Writ Petition No. 9356/2005 titled "Tehsil. Nazim V. Abbas Ali and another", Writ Petition No. 9360/2005 titled Tehsil Nazim v.
Abdul Haque and another and Writ Petition No. 9362/2005 titled Tehsil Nazim v. Muhammad Saleem and another as common questions of law and fact are involved, in these petitions.
2. Abbas Ali respondent in Writ Petition No. 9356 of 2005 was appointed as Octri Clerk on 9-11-1975 and retired from service on 31-12-2002. He claimed Rs. 3,47,301.80 being amount of retirement benefits and gratuity. An application under section 15(2) of Payment of Wages Act, 1936. Was moved before the Authority. The application was accepted vide order dated 15-2-2004, whereby direction was issued to the petitioner for payment of Rs.3,47,000/- as claim and additionally like amount as compensation. An appeal against the order of authority, before Punjab Labour Court No. 3, Ferozwala was dismissed on 7-12-2004, as the appeal was filed without a certificate to the effect that amount awarded by authority has been deposited.
3. Abdul Haq respondent in Writ Petition No. 9360/2005 was appointed as Senior Clerk on 19-11-1975, he claimed Rs. 3,13,160/-. He was paid Rs. 1,45,160/- leaving a balance of Rs. 1,68,000/-. Authority vide order dated 15-9-2004 accepted the application filed under Section 15(2) and directed the petitioner to pay the claim and like amount as compensation. Order of authority was assailed before the Labour Court No. 3, wherein the appeal was dismissed vide order dated 7-12-2004 for non-deposit of amount, directed by the authority to be paid and for want of filing of the certificate to that effect.
4. Muhammad Saleem respondent in Writ Petition No. 8362/2005 joined as Sanitary Worker, who was subsequently appointed as Sanitary Supervisor, from 27-6-1998 to 30-6-2001. He claimed Rs.
75,9201- through filing application before Authority, which was accepted and petitioner was directed Vide order dated 19-2-2004 to pay the amount claimed within 30 days. An appeal against the order met the fate of dismissal vide order dated 12 4-2005, by Punjab Labour Court No. 3 Ferozwala, for non- compliance of Section 17(1) (a) Petitioner absented itself appearing in the appeals, before the Labour Court. The direction of Authority vide impugned order was based on admission of petitioner.
5. Learned counsel has submitted that respondents being the employees of Tehsil Municipal Administration are not workmen Their claim before the Authority under the Payment of Wages Act, 1936, is not maintainable. Learned counsel supported his contentions by referring to Town Committee Ghakharmandi V. Authority under Payment of Wages Act, Gujranwala and 57 others (PLD 2002 SC 452) learned counsel added that the order of Authority and of learned Labour Court, being without jurisdiction are void and can be assailed in writ petition, even without availing the remedy of appeal or other alternate remedy.
6. Learned counsel for the respondents has argued that petitioner has admitted the claim of its workers/ respondents hence estopped by its conduct to invoke Constitutional jurisdiction. Learned counsel then submitted that claims lodged before Authority are regarding gratuity and overtime, which fall respectively under the provisions of Standing Orders Ordinance,1968, and Factories Act, 1934. He went on to argue that respondents fall within the definition of worker, under the provisions of Standing Orders Ordinance, 1968 and impugned order has been passed competently by a forum, which vested with jurisdiction to entertain and adjudicate the claim of respondents.
7. Heard learned counsel for the parties and record perused.
8. The perusal of record reveals- that petitioner had not denied the claim of the respondents and on that basis the Authority accepted the application and allowed the impugned claim. The jurisdiction of the Authority was questioned on the plea that wages drawn by the respondents, at relevant time, were more than Rs. 3,000/- per month, such employee is not a workman and Authority has no jurisdiction to entertain the claims of such employees. Authority over-ruled the objection of the petitioner on the ground that provisions of Section 1(6) of Act IV of 1936, stood deleted through Labour Law Amendment Ordinance 2001. The aspect of the controversy attains finality, as the finding of Authority in this respect, have not been challenged.
9. The finding on this specific issue, have not been challenged in this petition. Petitioner conceding to the jurisdiction of Authority, had challenged the order of Authority, in appeal before Labour Court.
Learned Labour Court dismissed the appeal for non-deposit of amount, in terms of provisions of Section 17(1 )(a) of Act of 1936. Petitioner deliberately absented himself from appearing before the learned Labour Court. Law is settled through the cases Syed Match Company Ltd. v. Authority under Payment of Wages Act and others (2003 SCM R 1493) and Mughal Surgical (Pvt) Ltd. And others v Presiding Officer, Punjab Labour Court No. 7 and others (2006 SCM R 590) that compliance of Section 17(1 )(a) (ibid) is mandatory and appeal without a payment certificate is not competent. I have already followed the same view in the case Haji Sheikh Noor Din and sons v. Muhammad Fayyaz and two others (2006 PLC623) ,
10. Learned Labour Court No. 3 Ferozewala rightly dismissed the appeals filed by the writ petitioner, as the appeals were filed in contravention of the proviso to Section 17(1) (a) of the Payment of Wages Act, 1936.
11. Petitioner in these petitions has questioned jurisdiction of authority on the ground that Tehsil Municipal Administration (Town Committee) is not factory manufacturing process as contemplated in the provisions of Payment of Wages Act, 1936. Learned counsel supported his contention by referring to the cases of Town Committee Ghakharmandi v. Authority under Payment of Wages Act, Gujranwala and 57 others (PLD 2002 SC 452) and Tehsil Municipal Administration Faisalabad v. Muhammad Saleem and others (PLD 2006 SC 166). The aforementioned judgments were delivered on the interpretation of phrase "factory and manufacturing process within the contemplation of Factories Act, 1934." The Payment Wages Act, 1936 (law applicable to the case in hand) was amended through Labour Laws (Laws Amendment) Ordinance, 2001 (Ordinance LIII of 2001). Consequent Upon the amendment words "industrial establishment or commercial establishment" were inserted. With these phrases the jurisdiction of the authority stood extended to the person who are employed in any industrial and commercial establishment. Construction industry has been defined in, West Pakistan industrial and Commercial Employment (Standing Orders) Ordinance, 1968 (Ordinance VI of 1968), construction industry has been defined in Sections
(bb) of. Ordinance 1968, which is reproduced for ready reference.
Section 2 Definitions:- bb "Constructions Industry" means an industry engaged in the construction, reconstruction, maintenance, repair, alteration, or demolition of any building, railway, tramway, harbour, dock, pier, canal, inland waterway, road, tunnel, bridge, dam, viaduct, sewer, drain, water work, well, telegraphic or telephonic installation, electrical undertaking, gas work, or other work of construction as well as the preparation for or laying the foundation of, any such work or structure.
12. A Town Municipal Administration and Town Council have been included in the definition of Local Government, as provided in Section 2 (xvi) (c) of the Local Government Ordinance, 2001. Clause
(xxii) of Section 2 further defines "Municipal, Services" as:--- 'municipal services' include; but not limited to intra-city or intra or inter-town tehsil network of water supply, sanitation, conservancy, removal and disposal of sullage, refuse, garbage, sewer or storm water, solid -or liquid waste, drainage, public toilets, express ways bridges, flyovers, public roads, streets, foot paths, traffic signals, pavements and lighting thereof, public parks, gardens, arboriculture, landscaping,, bill boards, hoardings, fire fighting, land use control, zoning, master planning, classification declassification or reclassification of or commercial or residential areas, markets, housing, urban or rural infrastructure, environment and construction, maintenance or development thereof and enforcement of any law or rule relating thereto.
Functions and powers of TMA are prescribed in Section 54 of- Ordinance, 2001 which are reproduced for ready reference:-
54. Functions and powers of the Tehsil Municipal Administration-(1)
(a) ...................
(b) ...................
(c) ...................
(d) ....................
(e) ..................
(f)..........................
(g) Regulate affixing of sign-boards and advertisement (h).........................
(i).........................
(ii) sewage and sewage treatment and disposal.
(iii) ..............
(iv) sanitation and solid waste collection and sanitary disposal of solid, liquid, industrial and hospital wastes;
(v) roads and streets, other than roads falling under the jurisdiction and maintained by, the District Government of Government and streets maintained by the Union Administration or Village Council.
13. Comparing the functions of Tehsil Municipal Administration as envisaged under Section 54 of Ordinance, 2001 with the definition of construction industry as provided in Section 2 of the Ordinance 1968, it becomes clear that functions of Tehsil Municipal Administration are of the nature that Tehsil Municipal Administration, falls within the definition of construction industry and for that matter jurisdiction of authority under the Payment of Wages Act, extends to the employees of Tehsil Municipal Administration. The definition of workman as provided in section will not be relevant for the purpose of Payment of Wages Act as the Act does not provide the definition of workman. It speaks that any person employed in the factory, railway, industrial establishment or commercial establishment. The judgment cited by the petitioner (PLD 2002 SC 452) is on different facts circumstances. It was at the time when the provisions of Payment of Wages Act, were extended only to a factory or a railway. The case in hand is On different footings. The definition of industrial and commercial establishment was not brought under interpretation, before the apex Court at the relevant time.
14. The definition of Industry, Industrial and Commercial Establishments, within the Ordinance VI of 1968 and Industrial Relations Ordinance, 1969, came under consideration/firstly in the case of Agriculture Workers Union Balochistan v. The Registrar of Trade Union and others (1997 SCM R 66) and thereafter in Lahore Development .Authority V. Shafique etc. (PLD 2000 SC 207). It has been held by the apex Court that:-- "The authority is not only empowered to prepare, implement and enforce the Metropolitan Development Plan and Annual Development Programme but also prepare, implement and enforce schemes for environmental improvements. Housing, water supply, sewerage, drainage, solid waste disposal, transportation and traffic health facilities as also sell, lease, exchange and dispose of any property, undertake any work, incur any expenditure. There is no denial that in addition to rendering various services, like sewerage, water supply, drainage, solid waste disposal, the petitioner is also engaged in construction of roads, flats and houses. For the purposes of implementing its schemes, land acquired by the authority is developed by it and a part thereof is sold in form of plots to the general public through auction or negotiations as the case may be. It is thus difficult to accept the contention of the learned counsel for the petitioner that the petitioner is not rendering any service and is, therefore, not an industry within the meaning of the Industrial Relations Ordinance, 1969."
15. The above survey of law, brings to the conclusion that employees of the Tehsil Municipal Administration, fall within the definition of workman and can validly maintain their- claim before the Authority, under the Payment of Wages Act, 1936. There is another aspect of controversy, which cannot be ignored. Firstly the outstanding claims of the respondents were not disputed, but admitted by the writ petitioner before the Authority; secondly the question of jurisdiction on the grounds urged in this writ petition, was never raised before the two fora below.
16. For the foregoing these petitions have no force, and are accordingly dismissed, with no orders as to costs.