' FAROOQ ALI CHANNA , J.---- Through the above petitions involving the common questions of law and facts, the petitioner has called in question the orders dated 15-7-2010 passed by the Commissioner for workmen compensation and authority under the Payment of Wages Act (hereinafter referred as Authority) allowing the applications filed by the respondents under section 15 of the payment of Wages Act, 1936 (hereinafter referred as Act, 1936) with penalty and the order dated 16-8-2010 passed by the Presiding Officer, Sindh Labour Court No,V, Karachi directing the petitioner to deposit the amount ordered by the concerned authority within a week's time.
2. Concisely facts of the case are that the respondents were ex- employees of petitioner whose services were terminated in terms of policy framed by the Government of Pakistan, the respondents filed cases challenging their terminations before the Labour Court, which were allowed vide orders dated 10-1-2005 and the petitioner was directed that retrenched employees be reinstated in service with back-benefits in accordance with law. The petitioner challenged the reinstatement of respondents by filing labour appeals and this Court passed the orders fixing the appeals for final hearing subject to furnishing bank guarantees in the sum specified plus additional amount equivalent to three months' salary to the satisfaction of Nazir, which orders the petitioner failed to comply with hence the labour appeals were dismissed. The respondents thereafter filed applications seeking back-benefits and an amount of 12 months salary in lieu of reinstatement.
The concerned labour Court allowed such applications directing the petitioner to make payment of amount of back benefits and 12 months' salary in terms of section 62 of Industrial Relations Ordinance, 2002. The petitioner made payment of 12 months salary in lieu of reinstatement however the respondents again filed applications under section 15 of the Act 1936, which were allowed vide orders dated 15-7-2010, the petitioner assailed the said orders in appeals before Sindh Labour Court No,-V, Karachi, who passed the impugned orders dated 16-8-2010 directing the petitioner to deposit the amount within a weeks' time.
3. Mr. Amel Kansi, learned advocate appearing for the petitioner has inter alia contended that the respondents filed affidavits in evidence before the Authority and the matters were fixed for cross- examination however, the respondents filed statements for withdrawal of affidavits in evidence, the Authority allowed the withdrawal of affidavits without notice to the petitioner and passed the orders dated 15-7-2010 granting the claim of respondents with compensation amount, to be deposited within 30 days. The petitioner assailed the said orders in appeal before Sindh Labour Court No,-V, Karachi, who passed the order dated 16-8-2010 that "amount as mentioned by the Authority be deposited within a weeks' time", since the orders of Labour Court were not complied with, therefore, the appeals of the petitioner were not admitted and are pending for hearing.
Learned counsel has further contended that both the Courts below have seriously erred in law and facts by not following the legal procedure available for disposal of claim of a party under the Act, 1936 as no evidence was adduced nor findings on issues after hearing both the parties have been recorded and such unilateral decisions amount to an ex parte decision against the petitioner whereby the petitioner have been deprived of his legal rights to defend cases on merits. Learned counsel for the petitioner has further contended that the orders of the labour Court being illegal are not liable to be complied with and since there is no other remedy; the said orders have been challenged by invoking the writ jurisdiction of this Court. Learned counsel for the petitioner has relied upon a case reported as Arag Industries v. Payment of Wages Act etc. (1982 PLC 567).
4. Conversely Mr. Ghulam Murtaza Saryo, learned counsel for the respondents has contended that the impugned orders are proper and in accordance with law as the petitioner has failed to make payment of back benefits as per orders mentioned above to the respondents, therefore, the Authority was legally competent to pass such orders directing the petitioner to make payment under the Act 1936. Learned counsel has further contended that the orders dated 16-8-2010 of labour Court were also in accordance with the proviso of section 17(i)(a) of the Act, 1936. Learned Counsel has further contended that the constitutional petitions against' the orders of labour Court are not maintainable; such orders are appealable under section 55 of Industrial Relations Act, 2008. Learned counsel has further pointed that the petitions before this Court are not filed by authorized person of Duty Free Shops Limited as the authorization of Mr. Syed Tayyab Raza Naqvi, who authorized Mr. Joshua Nisaruddin to sign vakalatnarna ceased to effect on June 30, 2010 whereas the above petitions were filed on 23-8-2010 about three months' after expiry of authorization in favour of Syed Tayyab Raza Naqvi. Learned counsel in support of his contentions has also relied upon the cases reported as Abu Bakar Saley Mayet v. Abbott Laboratories and another (1987 CLC 367), Ahmed Spinning Mills Ltd. v. Authority under Payment of Wages Act (1990 PLC 26), Messrs Ghafoor Textile Mills Ltd. Vi Fazal Imam and another (PLD 1981 Karachi 534), Syed Match Company Limited v. Authority under Payment of Wages Act and others (2003 PLC .395) and Tehsil Nazim T.M.A. Okara v. Abbas Ali and 2 others (2010, PLC 259).
5. The submissions made by the learned counsel for the petitioner inviting the attention of this Court towards legal lacunas/flaws in the procedure and the orders passed by the Authority are to be appealed under section 17 of the Act, 1936 before the Labour Court being Appellate Court of Authority and that the petitioner has adopted the proper procedure by filing the appeals before the Sindh, Labour Court No,V, Karachi as such the orders of Authority are pending adjudication before the competent forum, the only orders dated 16-8-2010 passed by Sindh Labour Court No,V, Karachi directing the petitioner to deposit the amount as mentioned by the Authority' within . a weeks' time are impugned in the instant petitions. The directions to deposit the amount as ordered by the Labour Court is mandatory requirement of proviso to section 17(i) (a) of the Act, 1936 and without compliance of said A provision the appeals from the orders passed under section 15 of the Act, 1936 are not competent/maintainable. It is settled proposition of taw that for the administration of justice, when a thing is to be done in particular B manner it must be done in that way and not otherwise. It has been held in a case reported as PLD 1981 Karachi 534 (supra) as under:--- "It is clear from the provisions of the above section that the order of the Authority is appealable and no appeal under clause 17(1)(a) of the Act shall lie unless the memorandum of appeal is accompanied by a certificate of the authority to the effect that the appellant has deposited with the authority, the amount payable under the direction appealed against which is obviously with a view to paying up what can be equated to a Decreetal amount, that is the money ordered to be paid by means of a final order under the proceedings itself. There is nothing wrong with the condition that the appellant has to deposit with authority, the amount payable under the direction appealed against before preferring an appeal against the orders of the authority".
The intention of the Legislature in enacting section 17 of the Act is very clear, it seems that the Legislature intended that the amount covered by an order under section 15 of the Act, 1936 is to be deposited in the Labour Court before entertaining an appeal against such an order. Such a provision clause 17(i)(a) of the Act, 1936 cannot be allowed to be circumvented. Moreover purpose of Article 199 of the Constitution of Islamic Republic of Pakistan does not appear to nullify the effect of a legislative provision or to make ineffective a statutory provision.
Apart from the above, in terms of section 55 of Industrial Relations Act every order passed by the Labour Court is appealable before the Labour Appellate Tribunal which remedy the petitioner has not availed and has invoked the constitution jurisdiction of this Court directly, which amounts to by-pass the remedy provided in the relevant statute, such tendency has been disapproved frequently by the apex Court however, with exception of certain cases. In the instant case learned counsel has failed to point out any exceptional circumstances for invoking the Constitution jurisdiction of this Court directly without availing the adequate remedy provided under the Industrial Relations Act, 2008.
Accordingly the above Constitutional petitions are dismissed.