' MUHAMMAD KHALID MEHMOOD KHAN,Respondents Nos.1 to 46 filed an application under sections 15(2) and 16 of Payment of Wages Act, 1936 before the Authority under Payment of Wages Act, Gujranwala, praying that they are the employees of Municipal Committee, Wazirabad, District Gujranwala, they performed their duties 8 hours per day in the 4 weeks, the Government of the Punjab vide Notification No,SOG IV-(SA)MISC/4/84 dated 24-2-1997 fixed the working hours of the applicants as 4 hours on every Friday of the week, in spite of the said Notification they are performing their duties for 8 hours of Friday and, as such, they are entitled for the payment of overtime for 4 hours of duty performed on each Friday of the week, the respondent No,47 issued notice to the petitioner, the petitioner appeared and raised different objections as to non- availability of cause of action, that Sardar Muhammad Adeeb is not General Secretary and, as such, the application has been filed by unauthorized person, and that the respondents Nos.1 to 46 have not performed their duties for 8 hours on Friday and, as such, they are not entitled to the payment of claimed amount.
2. Both the parties adduced their respective evidence and the Authority under Payment of Wages Act, Gujranwala vide order dated 18-10-2001 accepted the claim of the respondents Nos.1 to 46 and directed the petitioner to deposit Rs,636,600 in court within 30 days for onward disbursement to the respondents Nos.1 to 46. This decision remained unexecuted till the filing of present petition, the petitioner was continuously lingering to honour the said judgment and finally a notice under section 81 of the Land Revenue Act was issued by the Tehsildar; thereafter, the petitioner filed the present writ petition on 3-6-2005.
3. Learned counsel for the petitioner submits that petitioner is not a factory and, as such, respondent No,47 has no jurisdiction to decide the grievance application of the respondents Nos.1 to 46, if any. He submits that under section 1(4) of the Payment of Wages Act, 1936 the persons employed in a factory or railway are entitled to charge overtime and admittedly the petitioner is neither a factory nor railway. He lastly added that the impugned order is void, ab initio and without jurisdiction.
4. Learned counsel for the respondents Nos.1 to 46 submits that petitioner's writ petition suffers from laches as the impugned order was passed on 18-10-2001 in the presence of the parties but the present writ petition has been filed on 3-6-2005 and, as such, the same is hopelessly barred by time. He further submits that respondents are performing their duties 8 hours on every Friday of the week and, as such, under Notification No,SOGIV-(SA)MISC/4/84 dated 24-2-1997 issued by Government of Punjab they are entitled for the payment of wages for 4 hours extra consumed for performing their duties under the order of petitioner. He submits that respondents Nos.1 to 46 being Sanitary Workers are performing their duties for cleaning the city and collecting raw material and the petitioner is earning substantial amount from selling of sewage/wastage collected by the respondents Nos.1 to 46 and, as such, the petitioner is covered under the definition of factory and, as such, respondent No,47 has rightly passed the impugned order. He further submits that petitioner has not raised this objection before the Authority nor produced any evidence showing that they are earning nothing out of garbage/raw material collected by the respondents Nos.1 to 46.
5. Learned Additional Advocate-General, Punjab half heartedly supports the contentions of the learned counsel for the respondents Nos.1 to 46; however, submits that the petitioner under the law is not a factory.
6. Heard. The dispute between the parties is about the payment of overtime claimed by the sanitary workers/ respondents Nos.1 to 46 (the employees of the petitioner). The petitioner is Tehsil Municipal Administration established under the Punjab Local Government Ordinance and respondents Nos.1 to 46 are its employees working as sanitary workers. The said respondents filed an application with the respondent No,47 under the Payment of Wages Act, 1936, the petitioner while contesting the respondents' application has not raised any objection about the jurisdiction as well as maintainability of the petition regarding the applicability of Payment of Wages Act, 1936, the petitioner remained silent for 5 years about the impugned order and when Tehsildar issued notice under section 81 of the Land Revenue Act, the petitioner filed.The present writ petition.
7. The argument of learned counsel for the petitioner is that the petitioner does not fall under the definition of factory as given in Factories Act (XXV of 1934) and, as such, the Authority under Payment of Wages Act, Gujranwala has no jurisdiction to entertain the application. He further submits that employees of petitioner are not the persons employed in factory or with railway as is defined under sections 1, 2, 3 and 2(j) of Factories Act, 1934 nor the petitioner is industrial establishment. Under section 3 of the Payment of Wages Act, 1936 the employer is bound to pay the wages required to be paid under the said Act to its employees, hence it makes no difference whether the petitioner raised objection before the Authority about its jurisdiction, the impugned order is patently illegal, void and without jurisdiction. For defending the objection of laches, he submits that no doubt under section 17 of the Payment of Wages Act, 1936 the appeal is provided but the order is without jurisdiction; hence the writ petition is maintainable being an efficacious and proper remedy. The learned counsel for the petitioner has denied this fact that the garbage and sewage collected by the petitioner from the city is raw material for its product which is fertilizer and is saleable commodity, the petitioner is not earning any profit or is collecting money. There is no cavil in the argument of learned counsel for the petitioner that Payment of Wages Act, 1936 is applicable on the factories and its employees. Factory is defined in clause (j) of section 2 of the Factories Act, 1934. The expression "manufacturing process" is also defined in section 2(g) of the Factories Act, 1934. A person is a worker within the purview of the Act, 1934, if he is in a manufacturing process or is cleaning any machinery or premises is used for a manufacturing process or in any other kind of work incidental to or connected with the subject of the manufacturing process. For ascertaining the right of the petitioner at the yardstick as defined in section 2(g) of the Factories Act, 1934, the respondents have to establish this fact that the petitioner is involved in the process of manufacturing of certain commodity and is earning something out of it. The respondents are admittedly the sanitary workers who used to collect the garbage from the city and dump the same in a specified place; the petitioner convert the garbage through mechanical dump process into a fertilizer and the extract the water for irrigation. Both the productions are the product of raw material collected by the respondent. In a factory for manufacturing certain items or commodity is a necessary ingredient as without the raw material the machinery operator or other employees of the factory could not perform their duties nor could produce any item. If the raw material is not available, the factory is unable to manufacture any product. It is an admitted fact that the respondents Nos.1 to 46 are performing their duties for collecting the raw material by cleaning city and the petitioner is generating funds and product from the raw material collected by the respondents Nos.1 to 46. No doubt, TMA is established under Local Bodies Act; however, criteria for ascertaining the right of the respondents is a nature of job performed by the respondents and product manufactured by the petitioner. The petitioner is managing different dumping stations, sewerage collections spots and depots, the petitioner is producing water for irrigation and also the manure and, as such, the nature of job of the respondents is covered under the Payment of Wages Act, 1936; that is the reason, the petitioner has not raised the objection about jurisdiction of Authority under Payment of Wages Act in the first instance and now in writ petition, they are trying to dislodge the respondents Nos.1 to 46 on the ground of jurisdiction of authority. In the court of first instance, their defence was that application has been filed by General Secretary, who is not the authorized person to do so. The petitioner remained silent for 5 years on the impugned order and continued to linger on the implementation of impugned order on one reason or the other. The nature of job of the respondents Nos.1 to 46 is not denied by the petitioner and, as such, by not denying the nature of job of the respondents the petitioner is admitting that they are the garbage collectors being the raw material of the manure and irrigation water.
8. The arguments of learned counsel for the petitioner that TMA is not a factory, is based on the assumption that factory always works in four walls but circumstances of every case are different, it is not necessary that the factory should be within four walls. The nature of the job and the outcome of the job is the basic criteria for establishing the fact whether the Authority under the Payment of Wages Act has the jurisdiction or not?
9. Learned counsel for the petitioner has relied on Town Committee, Gakhar Mandi v. Authority under the Payment of Wages Act, Cujranwala and 57 others PLD 2002 SC 452. In this case, the respondents were not pressing their case that they are collectors of garbage and, as such; the honourable Supreme Court has rightly come to the conclusion that the Town Committee is not a factory but in the present case, main argument of learned counsel for the respondents Nos.1 to 46 is that the nature of job of the respondents is to collect raw material for producing the product of manure and water for irrigation. The respondents while collecting the raw material are operating Rarrhies and are loading the garbage into Tractor Trolleys with machineries, etc. And as such nature of job of the respondents warrants that they are covered under the Payment of Wages Act, 1936 and as such the argument of learned counsel for the petitioner is not convincing.
10. As far as the argument of learned counsel for the respondents Nos.1 to 46 that the writ petition suffers from laches is concerned, not a single word has been averred in the petition why the petitioner remained silent for 5 years and why they awaited to assail the impugned order for 5 years. The argument of learned counsel for the petitioner that void order need not to be assailed, is devoid of any merit for the reason that the appeal is provided against the impugned order under the Payment of Wages Act. Under section 17 of the Payment of Wages Act, the petitioner may assail the impugned order within the time provided by law and the appellate court was fully empowered to attend the objection of the petitioner regarding maintainability and the jurisdiction of the Authority of Payment of Wages Act. No reason or excuse has been given by the petitioner about non-filing of the appeal according to law. The petitioner is trying to dislodge the legitimate claim of the respondents Nos.1 to 46 which has been ascertained by the Authority of Payment of Wages Act after the recording of evidence and hearing the parties.
11. In view of the above and in my humble opinion, the petitioner is manufacturing the products of manure, irrigation of water and is earning profits by the sale of other raw material as to broken glass, steel, etc. The main role in producing the said items is of the respondents Nos.1 to 46 who are the collectors of raw material. Therefore, the judgment referred by the learned counsel for the petitioner has distinguished facts.
12. The respondents Nos.1 to 46 have successfully proved their case and, as such, this petition fails, and is dismissed.