' ASAD MUNIR, J.--- Facts relevant for the disposal of this writ petition are that on 5-7-2010 respondent No,2 filed before respondent No,1, the Authority under the Payment of Wages Act, 1936, an application under section 15 of the Payment of Wages Act, 1936, wherein respondent No,2 claimed dues of Rs,347578 on account of arrears of pay from 5-6-2005 to 30-11-2007, three months' notice pay and five months' pay as gratuity. The claim was made against the newspaper, Daily the Post, where petitioner No,1 is the Chief Executive and petitioner No,2 is the Managing Editor.
In his claim, it was asserted by respondent No,2 that he was an employee of the said newspaper from June, 2005 till 25-5-2009 when his services were terminated with immediate effect.
Respondent-Authority by its orders dated 6-7-2010 and 19-7-2010 issued notices by registered post to the petitioners issued but they did not appear whereupon on 9-8-2010 it was ordered that notice for the next date of hearing of 17-8-2010 be pasted on the premises of the petitioners. Thereafter, record appears to show that a notice for the hearing on 17-8-2010 was received in the office of the petitioners on 12-8-2010. However, no appearance was entered by the petitioners on 17-8-2010 whereupon respondent-Authority adjourned the case to 31-8-2010 and also ordered substituted service of the petitioners for the said date through publication in the press. No advertisement having been issued, respondent-Authority on 31-8-2010 adjourned the case to 15-9-2010. After noting that the publication of the notice in the newspaper had been refused as it was the policy of newspapers not to publish any advertisement against the management or proprietor of any newspaper, the respondent-Authority on 15-9-2010 ordered ex parte proceedings against the petitioners. After recording ex parte evidence and hearing the ex parte arguments of respondent No,2, the respondent-Authority, by its order dated 12-10-2010, has allowed the claim of respondent No,2 to the extent that the petitioners have been directed to deposit Rs,90,000 as his three months' notice pay and his gratuity for five years amounting to Rs,150,000. Petitioners' two applications dated 3-11-2010 and 28-12-2010 for recall of the ex parte order dated 12-10-2009 have been dismissed by the respondent- Authority vide its orders dated 20-12-2010 and 7-2-2011, respectively.
Through this writ petition, respondent-Authority's ex parte orders dated 15-9-2010 and 12-10-2010 have been challenged.
2. Learned counsel for the petitioners has contended that the petitioners have been condemned unheard and that ex parte order dated 12-10-2010 and order 15-9-2010, whereby the petitioners were proceeded against ex parte, are ex facie illegal and without lawful authority as admittedly no notice through ordinary mode or proclamation in the newspaper was issued to the petitioners for their appearance on 15-9-2010. It is further contended that the respondent No,2, being a News Editor, is not a workman and thus, cannot file his claim for wages before the respondent-Authority nor is the Act applicable to the petitioners' newspaper establishment as it is not a factory or an industrial establishment. It is further contended that the respodent No,2 was appointed as a senior sub-Editor in the daily Post for a period of one year from 1-12-2007 to 30-11-2008 at a salary package of Rs,20,000 per month and was again employed on contract basis for a period of one year from 1-1-2009 to 31-12-2009 at a salary package of Rs,30,000 per month but his contract was terminated on 23-5-2009 on account of wilful absence from duty. It is also pleaded that the petitioner, at the most, is entitled to one month's notice pay and is not at all entitled to any gratuity as his period of continuous service is less than six months.
3. In response, learned counsel for respondent No,2 has submitted that the writ petition is not competent as the impugned order has been passed under section 15 of the Payment of Wages Act, 1936, against which the remedy of appeal under section 17 ibid is provided before the Labour Court which has not been availed. In support, the learned counsel has referred to Syed Match Company Ltd. Through Managing Director v. Authority under the Payment and Wages Act, and others (2003 PLC 395), Lawrancepur Textile Mills Ltd. v. Government of the Punjab and others (PLD 2004 SC 416), Nakhshbandi Industries Limited through Factory Manager v. Authority under the Payment and Wages Act (2010 PLC 401), Ali Akbar Imrani v. Essa Khan (2006 PLC 326) Municipal Committee Kasur v. Compensation Commissioner (2000 PSC 1144)(sic). However, in support of the maintainability of this writ petition, petitioners' learned counsel has relied upon Town Committee, Gakhar Mandl v.
Authority Under the Payment of Wages Act (PLD 2002 Supreme Court 452) and Messrs Hafiz Textile Mills Limited v. Commissioner for Workmen's Compensation and Authority Under the Payment of Wages Act (PLD 1993 Karachi 709).
4. Having regard to the arguments advanced by the learned counsel for the parties and the material on record, the primary question that needs to be addressed is whether this constitutional petition is maintainable without first invoking the remedy of appeal before the Labour Court, available under section 17 of the Payment of Wages Act, 1936. Learned counsel for respondent No,2 has, inter alia, relied upon Syed Match Company Ltd. Through Managing Director v. Authority, under the Payment and Wages Act and others (2003 PLC 395) to canvass the proposition that writ jurisdiction cannot be directly invoked without availing the remedy of appeal provided under section 17 of the Payment of Wages Act, 1936. With all due deference, I may state that the said case is a leave refusing order and thus not a judgment of the Honourable Supreme Court in view of the University of Health Sciences and others v. Mumtaz Ahmad and others (2010 SCMR 767). I may, however, refer to another judgment of the honourable Supreme Court titled Town Committee, Gakhar Mandi v. Authority Under the Payment of Wages Act (PLD 2002 Supreme Court 452) where a similar question arose and it was held that, "writ of certiorari could be granted despite availability of an alternate remedy, where, for example, the impugned order was ex facie without lawful authority or where it was a case of lack or absence of or even excess of jurisdiction". Applying the afore-noted principles, the Honourable Supreme Court allowed an appeal against the judgment of the Lahore High Court who had dismissed a writ petition against the order of the Authority under the Payment of Wages Act, 1936, on the ground that the remedy of appeal had not been availed. To the same effect is Messrs Hafiz Textile Mills Limited v. Commissioner for Workmen's Compensation and Authority Under the Payment of Wages Act (PLD 1993 Karachi 709), wherein it was held that in the case of an error apparent on the face of the record, an order, passed by the Authority under the Payment of Wages Act, could be challenged through a constitutional petition even though the remedy of appeal was not availed.
5. It has been argued that the respondent-Authority has no jurisdiction as respondent No,2, being a news editor, is not a workman who cannot prefer a claim under the Payment of Wages Act, 1936, which is also not applicable as the petitioners' establishment is not a factory or industrial establishment. No precedent could be cited in support of the plea that a person other than a workman cannot press his claim under the Act. Reference may also be made to section 1(4) of the Payment,of Wages Act, 1936, which provides that the Act "applies to the payment of wages to persons employed in any factory, industrial establishment or commercial establishment". The word "workman" finds no mention in the afore-quoted provision or in any other provision of the Act and is in fact totally alien to the scheme of the Act which means that any person can file a claim for wages against his employer provided he is or was employed in a factory, industrial establishment or commercial establishment as defined in the Act. Thus, to the extent of deciding the A claims of deducted or delayed wages, the respondent-Authority has a much wider jurisdiction in terms of those who can invoke it than the Labour Court whose jurisdiction is limited to the grievances of a workman. As such, there is no merit in the petitioners' plea that the Authority had no jurisdiction to entertain the claim of respondent No,2 for being a non-workman.
6. A newspaper establishment falls within the definition of a factory given in section 2(ia) of the Payment of Wages Act, 1936, by reference to section 2(i) of the Factories Act, 1934, as it cannot be denied that the printing of a newspaper involves a manufacturing process whereby news print is converted into newspaper. In case it is assumed that the petitioners' newspaper establishment is not a factory, there would be no escape from the fact that it is a commercial establishment to which the provisions of the Payment of Wages Act, 1936, are equally applicable in view of its section 1(4) of the Act after its amendment in 2001. Thus, I find no force in the argument that the petitioners' newspaper establishment is not subject to the provisions of the Act.
7. In view of the foregoing discussion, the jurisdiction of the respondent-Authority to adjudicate upon respondent No,2's claim cannot be denied or otherwise called into question. However, it needs to be examined if this Court can exercise its constitutional jurisdiction when the impugned order dated 12-10-2010 has not been challenged in appeal provided under section 17 of the Payment of Wages Act, 1936. Following the rule in Town Committee, Gakhar Mandi v. Authority Under the Payment of Wages Act supra and Messrs Hafiz Textile Mills Limited v. Commissioner for Workmen's Compensation and Authority Under the Payment of Wages Act supra, it appears that this Court can intervene if it is found that the impugned order has been passed ex facie without lawful authority or there is an error apparent on the face of the record. Since the impugned order dated 12-10-2010 is based on order dated 15-9-2010, whereby ex parte proceedings were ordered against the petitioners, it is the latter order whose legality has to be looked into. A perusal of the order sheet of the respondent-Authority shows that on 17-8-2010, despite service of notice, the petitioners had not appeared but still the respondent-Authority found it necessary to summon the petitioners through an advertisement in the newspaper. If the Authority was satisfied that service of notice had taken place, it could have in its discretion proceeded ex parte against the petitioners on 17-8-2010 but it adjourned the case to 31-8-2010. The notice for the hearing on 31-8-2010 had to be given by means of an advertisement but this was not done or could not be done in view of the newspapers' policy of not publishing court notices against the proprietors of newspapers. On 31-8- 2010, the case was adjourned to 15-9-2010 as the advertisement had not been published nor was it subsequently published during the period leading upto 15-9-2010. Admittedly, the petitioners were not issued any I notice of the case either through ordinary mode or publication in the press for the hearing on 15-9-2010 when they were proceeded against ex parte. The petitioners could not be proceeded against ex parte for nonappearance on a date of hearing they had been given no notice of. C Service of a notice for a previous date of hearing, on which a party does not appear, cannot be regarded as relevant or valid for proceeding ex parte on a subsequent date of hearing for which no notice has been given to the party proceeded against. It appears that the order dated 15-9-2010 is based on the misconception that the earlier service of notice for the hearing on 17-8- 2010 was sufficient to proceed ex parte against the petitioners on 15-9-2010. As discussed earlier, if the service of the notice for the hearing on 17-8-2010 had been effected, the respondent-Authority could have proceeded ex parte on 17-8-2010 but decided not to do so and fixed the hearing of the case on 31-8-2010 followed by 15-9-2010 admittedly without having issued any notice to the petitioners. It would be relevant to refer here to Muhammad Swaleh and another v. Messrs United Grain and Fodder Agencies Ltd . (PLD 1964 Supreme Court 97) which lays down that a court cannot proceed ex parte on a date of hearing not notified to the party being proceeded against. As such, I find that order dated 15-9-2010 is ex facie without lawful authority with the result that the later ex parte order 12-10-2010 based thereon is also without lawful authority or certainly there is an error apparent on the face of the record.
8. Having found that the impugned orders to be ex facie without lawful authority, the question of the maintainability of this writ petition has also to be answered in the affirmative in the light of the law laid down in Town Committee, Gakhar Mandi v. Authority Under the Payment of Wages Act supra.
9. For the reasons stated above, the writ petition is allowed with the result that respondent- Authority's impugned ex parte orders dated 15-9-2010 and 12-10-2010, having been passed without lawful authority, are set aside and the respondent-Authority is directed to take a decision afresh by adjudicating upon the claim of the respondent No,2 on merits in accordance with the within a period not exceeding two months calculated from 10-6-2011 on which date the petitioners as well as respondent No,2 are directed to appear before the respondent-Authority. Parties are left to bear their own costs.