' SHAHID ANWAR BAJWA, J.--- Facts of C.P. No,D-1566 of 2009 are that respondent No,1 was employed by the petitioner and his employment was terminated on 4-11-2001. Five years after termination of employment respondent No,1 filed an application under section 15 of the Payment of Wages Act, praying therein that his dues along with compensation be paid to him. It is stated in the petition that proceedings were conducted by respondent No,2 ex parte and finally vide order dated December 2, 2008 it was ordered that the dues amounting to Rs,78,924.00 and compensation amounting to Rs,125,569.00 be paid by the petitioner to respondent No,2.
2. On 22-6-2009 present petitioner filed an application before the respondent-Authority. The application reads as under:-- "Application for the Recall of the order dated 2-12-2008.
' For reasons disclosed in the accompanying affidavit, it is respectfully prayed on behalf of the respondent above named that this honourable court may be pleased to recall the ex parte order dated 2-12-2008 and provide the respondent a chance to contest the matter by filing Written Statement.
' Prayer is made in the interest of justice."
' This application was dismissed by the respondent No,2 vide order dated 27-6-2009. The entire order reads as under:--- "I have gone through the application dated 22-6-2009 filed by the respondent and final order dated 2-12-2009.
' The final order passed by my learned predecessor is appealable under section 17 of Payment of Wages Act. Moreover the Authority becomes functus of issue so far as the final order dated 2-12- 2008 is concerned.
' In terms of above observation the Miscellaneous application dated 22-6-2009 filed by the respondent is disposed of."
3. Thereafter notice under section 81 of the Land Revenue Act, was issued. This Constitutional Petition was filed with the following prayers:--- "(1) Declare that the impugned orders dated 2-12-2008 and 27-6-2009 passed by respondent No,2 are bad in law and have no legal effect and are liable to be set aside.
(2) Dismiss the application of the respondent No,1, bearing No,119/2007, before the respondent No,2, being incompetent and unlawful,
(3) Suspend the operation of the execution proceedings by the respondent No,3 and the notice dated 23-6-2009; on the ex parte order dated 2-12-2008.
(4) Any other relief this honourable Court deems appropriate and proper in the circumstances of the case."
4. In C.P. No, D-1567 of 2009 the only difference is that date of termination of employment is May 27th, 2002.
5. Learned counsel for the petitioner submitted that the order passed by respondent No,2 is in violation of law. The application under section 15 of the Payment of Wages Act, 1936 was barred by law as period of limitation prescribed in law is three years and the applicant had approached the respondent-Authority almost five years after the alleged termination. He further submitted that the petitioner had no knowledge of the pending proceedings till he received notice under the Land Revenue Act. Lastly learned counsel submitted that even otherwise the order passed by respondent No,2 is in violation of law. Learned counsel relied upon Ghulam Muhammad and others v. Hafiz Ahmed and others PLD 1960 Lah.
1179.
6. Mr. Rafiullah, learned counsel for respondent No,1 submitted that the order passed by the respondent No,2 was appealable before the Labour Court under section 17 of the Payment of Wages Act, 1936 and no such appeal has been filed. He submitted that this petition in presence of the fact that no appeal has been filed against the order, passed by the authority under the Payment of Wages Act would not be maintainable. Learned counsel relied upon Mughal Surgical (Pvt.) Ltd. And others v. Presiding Officer, Punjab Labour Court No,7 and others 2005 PLC 364.
7. We have considered the submissions made by the learned counsel and have also gone through the record as well as case-law cited at the bar.
8. For ease of reference relevant provisions of law may be reproduced as under:--- ' Sections 15(3) and 15(4) of the Payment of Wages Act, 1936.
(3) When any application under subsection (2) is entertained the authority shall hear the applicant and the employer or other person responsible for the payment of wages under section 3, or give them an opportunity of being heard, and, after such further inquiry (if any) as may be necessary, may, without prejudice to any other penalty to which such employer or other person is liable under this Act, direct the refund to the employed person or, if the applicant is one of the heirs of an employed person the payment to such applicant of the amount deducted, or the payment of the delayed wages together with the payment of such compensation as the authority may think fit, not exceeding ten times the amount deducted in the former case and not exceeding ten rupee in the latter: ' Provided that no direction for the payment of compensation shall be made in the case of delayed wages if the authority is satisfied that the delay was due to-
(a) a bona fide error or bona fide dispute as to the amount payable to the employed person, or
(b) the occurrence of an emergency, or the existence of exceptional circumstances, such that the person responsible for the payment of the wages was unable, though exercising reasonable diligence, to make prompt payment, or
(c) the failure of the employed person to apply for or accept payment.
(4) If the authority hearing any application under this section is satisfied that it was either malicious or vexatious, the authority may direct that a penalty not exceeding fifty rupees be paid to the employer or other person responsible for the payment of wages by the person presenting the application.
' Section 17 of the Payment of Wages Act.
17. Appeal.--- (1) An appeal against a 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 (XXIII 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 be unless the memorandum of appeal is accompanied by a certificate of the authority to the effect that the appellant has deposited within 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 wages claimed to have been withheld from the employed person or from the unpaid group to which he belonged exceeds fifty rupees, or
(c) by any person directed to pay a penalty under subsection (4) of section 15.
' Rule 8 of the Payment of Wages (Procedure) Rules, 1937, may also be reproduced as under:- "8. Appearance of parties.--- (1) If the application is entertained the Authority shall call upon the employer by a notice in Form E to appear before him on a specified date together with all relevant.
Documents and witnesses, if any, and shall inform the applicant of the date so specified.
(2) If the employer or his representative fails to appear on the specified date, the Authority may proceed to hear and determine the application ex parte.
(3) If the applicant fails to appear on the specified date, the Authority may dismiss the application: ' Provided that an order passed under sub-rule (2) or sub-rule (3) may be set aside and the application reheard on good cause being shown within one month of the date of the said order, notice being served on the opposite party of the date fixed for hearing."
9. There are two orders of the Authority under the Payment of Wages Act in each of the petitions.
Firstly there are orders dated 2nd December, 2008, by which order payment of deducted amount and compensation has been ordered. The second order is dated 27-6-2009. By this order the Authority under the Payment of Wages Act, has dismissed application for recalling the order dated 2-12-2008. Perusal of section 17 of the Payment of Wages Act indicates that what can be challenged in appeal is the order passed under subsection (3) or subsection (4) of section 15. That was the order passed on 2-12-2008. Mr. Rafiullah is perfectly correct in arguing that this order i.e, order dated 2-12-2008 can only be challenged by filing an appeal under section 17 before the competent Labour Court and his reliance on Mughal Surgical's case (supra) is not on the mark.
However as far as order dated 27-6-2009 is concerned, it is not an order under section 15(3) or 15(4). It was order on an application for recalling order for which the provision is made in Rule 8 of the Payment of Wages (Procedure) Rules, 1937. It is nowhere provided in section 17 or in the Rules that if an application for recalling order is decided by the Authority under the Payment of Wages Act, it would be appealable before the Labour Court. The Legislature has not provided any appeal against allowing or rejection of application for recalling and order, therefore if application for recalling is decided by the Authority under the Payment of Wages Act, such decision cannot be challenged in appeal under section 17 because it is not a decision under section 15(3) or 15(4) and since no remedy is provided against such a decision on application for recalling the order writ petition would be maintainable.
10. What the authority under the Payment of Wages Act has done through order dated 27-6-2009 is that it merely held that since order dated 2-12-2008 was appealable under section 17 therefore, the application for recalling the order is dismissed. In our opinion such a conclusion by the authority under the Payment of Wages Act is not sustainable. Authority under the Payment of Wages Act should have considered the application for recalling the order in accordance with the Rule 8 of the Payment of Wages (Procedure) Rules, 1937 and thereafter should have decided this application in accordance with the law.
11. Consequently we dispose of this petition by setting aside the order dated 27-6-2009 and by directing the respondent No,2 to treat the application for recalling the order dated 2-12-2008 as pending and to decide this application in accordance with the law within a period of three months after notice to the parties. Till decision on such application no further steps in pursuance of the notice issued under section 81 of the Land Revenue Act, shall be taken. The amount deposited with the Nazir in pursuance of order dated 31-7-2010 shall not be refunded to the petitioner till application deemed to be pending before the Authority under the Payment of Wages Act is decided. These constitutional petitions along with listed applications are disposed of in the above terms.