These seven (7) appeals against the orders dated 03.11.2011 passed by Mr. Muhammad Ali, Assistant Commissioner (City) ICT/Authority under the Payment of Wages Act, 1936 were filed before the Commissioner ICT whereby the applications filed by the appellants before the Authority for the recovery of delayed wages have been dismissed, impugned in these appeals.
2. Vide a Letter No, ADLW-8(50)ICT/98-39 dated 12.03.2012, the above said appeals were sent to the Registrar of this Commission by the Director Industries, Minerals & Labour ICT, Islamabad. This letter in extensor is reproduced hereinbelow:-- "MOST IMMEDIATE Government of Pakistan Directorate of Industries, Minerals & Labour Welfare Office of the Chief Commissioner ICT, Islamabad No, ADLW-8(50)ICT/98-39Islamabad, 12th March, 2012 To The Registrar, National Industrial relation Commission, Sector G-5/2, Islamabad Subject: APPEALS AGAINST ORDER DATED 03.11.2011 BY MR. MUHAMMAD ALI ASSISTANT COMMISSIONER (CITY) ISLAMABAD.
Kindly refer to the subject cited above.
2. Original appeals against order dated 03.11.2011, passed by Mr. Muhammad Ali, Assistant Commissioner (City), Islamabad submitted by the following were received in the name of Chief Commission, ICT.
(i) Khitab Hussain S/O Muhammad Abbas, through Attorney/resident/care of Muhammad Waheed, Village Sher Dhamial, Sihala, Islamabad.
(ii) Zaib Ullah S/O Karim Ullah, Shop No, 3, Plot No, 116, Peshawari Nan Centre, Ghee Mill Stop model Town, - Islamabad.
(iii) Shaiza Kausar D/o Muhammad Rukhsar, through Attoreny/resident/care of Muhammad Waheed, Village Sher Dhamial, Sihala, Islamabad.
(iv) Muhammad Irshad S/O Iman Din, resident of Village Sher Dhamial, Sihala, Islamabad.
(v) Muhammad Azam S/O Nasar Ud Din Khan, through Attoreny/resident/care of Muhammad Waheed, Village Sher Dhamial, Sihala, Islamabad.
(vi) Muhammad Waheed S/O Ghulam Raza, Village Sher Dhamial, Sihala, Islamabad.
(vii) Adul Rauf Shah S/O Fazal Karim, through Attorney/ resident/care of Muhammad Waheed, Village Sher Dhamial, Sihala, Islamabad.
3. After thoroughly examining the above said appeals, it is observed that these appeals lies to "Industrial Relation Commission" provided under the "Industrial Relation Ordinance (IRO)"
4. It is, therefore, above said appeals are submitted for appropriate action under the law.
Sd/- (Sajid Baloch)
Director Industries, Minerals & Labour ICT, Islamabad.
Copy to:--
(i) PS to the Chief Commissioner, Islamabad Capital Territory (ICT), Islamabad.
(ii) Concerned Appellants.
3. It has been noted in Para-3 of the above reproduced letter that after thoroughly examining the above said appeals, it has been observed that these appeals lie to Industrial Relation Commission provided under the Industrial Relations Ordinance (IRO). Accordingly; the same were sent for appropriate action under the law.
4. The office of the Commission without examining the question as to whether these appeals can be entertained under Section 58 of the IRA, 2012 apparently preferred under Section 17 of the Payment of Wages Act, 1936 against the orders of the Authority under Act Ibid; registered these appeals and issued process to the respondent-company. With the memo. of these appeals only copy of the order sheet maintained in the cases dated 13.11.2011 have been appended which show that vide a separate order in English Language their applications have been dismissed by the Authority. In each of these appeals; following relief has been claimed:-- "In view of the circumstances narrated above it is respectfully prayed that the impugned order dated 03.11.2011 may kindly be se-aside and the appellant be allowed to withdraw his main application filed Under Section 15 (2) of Payment and Wages Act, 1936 or the case be remanded to the trial Court for the disposal of the same in a similar manner in the interest of justice"
5. These appeals eventually were listed before this Bench and it was noticed that important question of law as to the maintainability of these appeals before the Commission is involved and; as desired by the learned Counsel for the parties, the same were adjourned enabling both the learned Counsel to prepare the brief on the legal aspect of the matter.
Also notice was directed to be issued to the Director Industries, Minerals & Labour ICT, Islamabad to show as to how these appeals lie to the Commission and under what authority of law the same have been sent to the Registrar of the Commission.
In response to show-cause the aforesaid officer appeared before the Bench and sought for time to submit reply but on the date fixed in the matter, the said officer did not attend the proceeding, however; on the subsequent date, he appeared in person and stared that report was earlier submitted to the Registrar of the Commission on 22.11.2012. On scrutiny of the documents, it transpired that in response to the notice he had submitted a common reply on 22.11.2012 in these appeals which reads as under: "That the titled appeal were filed by the aggrieved person considering the Chief Commission ICT Islamabad as Appellate Court/Labour Court against the orders passed by learned Wages Authority, ICT, Islamabad. Legal opinion was sought from the District Attorney, ICT, Islamabad and as per his opinion, cases were sent to the learned Labour Court/Industrial Relation Commission as under Section 17 of Payments of Wages Act, 1936, an appeals lies before the Labour Court against any order passed by the Wages Authority. It is further submitted that the Officer of the Chief Commissioner, ICT, Islamabad tender unconditional apology for the inconvenience caused to the Honourable Commission. The Office of the Chief Commissioner shall obey/implement any order passed by this Honourable Commission."
6. The learned Counsel for the appellants was heard to an extent on 14.05.2013. He attempted to argue that appeals against the direction/order of the Authority under the Payments of Wages Act, 1936 can be filed under Section 17 of the Act before the Labour Court but as no Labour Court has been established under IRA,, 2012 for Islamabad Capital Territory and; since original jurisdiction for individual grievance has been conferred on the Commission under Section 33 of Act X of 2012 therefore, these appeals can be heard by the Commission. The learned Counsel when confronted to the provisions of Section 58 of IRA, 2012 (X of 2012) he sought for time to further prepare himself on the law point. Accordingly; further hearing was adjourned to 11.06.2013.
7. The learned Counsel at the very outset submitted that as this Bench earlier in a case returned the appeal filed under Section 17 of the Payments of Wages Act, 1936 to the appellant for want of jurisdiction therefore, these appeals may be directed to be returned to the appellants in original alongwith the annexures to avail appropriate remedy for redressal of their grievances as may be admissible to them under the law and the Constitution.
8. It is an admitted feature of the case that the applicants (now the appellants) filed applications for the recovery of delayed wages before the Assistant Commissioner (City) Islamabad-cum-the Authority under Section 15 of the Payment of Wages Act, 1936 which were dismissed vide impugned orders dated 03.11.2011 and the right of appeal against a direction under sub-sections (3) or (4) of Section 15 has been provided by Section 17 of the said Act to Labour Court constituted under the IRO, 1969 (xxiii of 1969) within whose jurisdiction the cause of action to which the appeal relates arose. Under the present Act namely IRA, 2012, no Labour ,Court has been established, as in respect of individual grievance of a workman, original jurisdiction has been conferred on the Commission constituted under Section 53 of the aforesaid Act. In so far as the functions of the Commission and the additional powers conferred on it are concerned, have been given in Sections 54 and 57 of IRA, 2012. Whereas; Section 58 relates to appeals. Sub-section (1) of Section 58 provides that notwithstanding anything contained in this Act, or in any other law for the time being in force, any person aggrieved by an award or decision given or a sentence or order determining and certifying a collective bargaining unit passed by any Bench of the Commission may within thirty days of such award, decision, sentence or order prefer an appeal to the Commission. It would be appropriate to reproduce hereinbelow Section 58 of the Act: Section 58 Appeals.--(1) Notwithstanding anything contained in this Act, or in any other law for the time being in force, any person aggrieved by an award or decision given or a sentence or order determining and certifying a collective bargaining unit passed by any Bench of the Commission may, within thirty days of such award, decision, sentence or order prefer an appeal to the Commission.
(2) An appeal preferred to the Commission under sub-section (1) shall disposed of by the Full Bench of the Commission which shall--
(a) if the appeal is from an order determining and certifying a collective bargaining unit, have the power to confirm, set aside, vary or modify such an order.
(b) If the appeal relates to any other matter, the Full Bench may, confirm, set aside, vary or modify the decision or sentence passed and shall exercise all the power required for the disposal of an appeal.
(c) The decision of the Full Bench shall be delivered as expeditiously as possible within a period of sixty days following the filing of the appeal, provided that such decision shall not be rendered invalid by reasons of any -- delay in its delivery.
(d) The Full bench may, on its own motion at any time, call for the record of any case or proceedings under this Act in which a Bench within its jurisdiction has passed an order for the purpose of satisfying itself as to the correctness, legality, or propriety of such order, and may pass such order in relation thereto as it thinks fit: Provided that no order under this sub-section shall be passed revising or modifying any order adversely affecting any person without giving such person a reasonable opportunity of being heard.
(3) In an appeal preferred to it against the order of a bench directing the re-instatement of a workman, the Full bench may make an order staying the operation of the order of the Bench.
(4) The Full Bench shall decide such appeal within twenty days of its being preferred: Provided that, if such appeal is not decided within the period aforesaid, the stay order. of the Full bench shall stand vacated on the expiration of that period."
9. An appeal has been provided to a person aggrieved by an award or decision given or a sentence or order determining and certifying a collective bargaining unit passed by any Bench of the Commission may, within thirty days of such award, decision, sentence or order prefer an appeal to the Full Bench of the Commission under sub-section (2) of Section 58 of the said Act. The orders impugned in these appeals admittedly have not been passed by any Bench of the Commission against which no appeal lies to the Commission within the purview of Section 58 of the said Act. Right of appeal un-disputedly is a creation of statute which cannot in absence of a statutory provision be inferred or assumed by this Commission on its own and needless to state that a person aggrieved of any order or judgment cannot be left remediless and in the circumstances as emerged in these matters; the Ministry. of Law and Parliamentary affairs need to take due notice of the provisions as contained in Section 17 of the Payment of Wages Act, 1936 by amending the same suitably providing forum of appeal to a person against an order/direction of the Authority for Islamabad Capital Territory (ICT) passed/made under sub-section (3) and (4) of Section 15 of the said Act through the process of appropriate legislation.
10. The learned Counsel for the appellants in view of the above legislated legal position has submitted for the return of the appeals to seek appropriate remedy as may be admissible to them.
Thus; in view of the above reasons, these appeals are directed to be returned to the appellants or their learned Counsel against a valid discharge after retaining copies of memo. of appeals. The appellants may seek appropriate remedy as may be admissible to them under the law and the Constitution as may be deemed fit.
11. Copy of this order be sent to the Secretary Law and Parliamentary Affairs, Government of Pakistan, Islamabad for consideration and appropriate action in light of Para No, 9 supra.