' AQEEL AHMED ABBASI, J.--- Being aggrieved and dissatisfied with the impugned order dated 21-12- 2010 passed by the Commissioner Workmen's Compensation and Authority under Payment of Wages Act, Hyderabad, whereby the application filed under section 15 of the Payment of Wages Act, 1936 by the respondents was allowed. Messrs Zeal Pak Cement Factory Limited, Tando Muhammad Khan Road, Hyderabad though its Manager Nawab Ahmed Khanzada has filed instant Constitutional Petition with the prayer "to set aside the impugned order passed by the respondent No,1 and direct them to retry the same after hearing it fresh"
2.Brief facts giving rise to filing of instant petition are that respondent No,2 being the Labour Officer (Factories-III) Hyderabad, filed an application under section 15 of the payment of Wages Act, 1936, wherein it was contended that Messrs Zeal Pak Cement Factory Ltd. Have illegally deducted wages of 253 persons/workers employed in the petitioner's establishment for the months of August and September, 2009, which comes to Rs,30,36,000, which was requested to be returned to the employees/workeRs, On receipt of such application both the employer and manger of the petitioner's establishment were required to appear before the authority vide notice dated 13-2- 2010, however, despite effecting service of notice none of the petitioner appeared on the specified date. Thereafter, the side of the petitioner was closed and the matter was required to be proceeded ex parte in terms of Rule 8(2) of the Payment of Wages (Procedure) Rules, 1937.
However, subsequently Mr. Muhammad Ishaque Qureshi, Advocate appeared on behalf of both the, appellants by filing statement on their behalf and the matter was adjourned on his request to 19-4- 2010, when learned counsel for the petitioners filed an application under Rule 8(3) of the Payment of Wages (Procedure) Rules, 1937 with the prayer to' recall the ex parte order dated 20-2-2010 whereby their side was closed. Such application was allowed in the interest of justice and the matter was adjourned to 3-5-2010 with the directions to the petitioner to submit their reply/statement. However, the petitioners did not comply with such directions and requested for grant of further time, whereafter, the matter was again adjourned as a last chance to submit reply/statement on 10-5-2010. Despite several adjournments the petitioners did not submit reply/statement to rebut the claim filed by the Labour Officer for and on behalf of 253 persons employed in the respondent's establishment, for recovery of deducted charges along with ten times compensation. Learned counsel for the petitioners establishment filed a miscellaneous application under section 15(4) of the Payment of Wages Act, 1936 along with copy of an unregistered agreement dated 27-10-2007 allegedly to have been arrived at between Messrs Zeal Pak Cement Factory Limited Hyderabad and one Syed Ahmed Shah, contractor, whereas copy of such application was supplied to the respondent for filing counter-affidavit thereto and the petitioners were again directed to submit their reply/statement on 14-5-2010, which reply was furnished by the petitioner No,2 through counter affidavit. In the meanwhile an application under Order I, Rule 10, C.P.C. Read with section 18 of the Payment of Wages Act, 1936, duly supported by affidavit of Joint Secretary/Acting General Secretary of Messrs Zeal Pak Cement Factory Employees Union (CBA), Site Hyderabad, with regard to implead some workers who were left and their names could not be included in the list as submitted by the Labour Officer in the main application. Copy of such application was supplied to the contesting parties for filing objections, if any, and the matter was adjourned to 25-5-2010 for decision upon such application on which date the Labour Officer did not object to the grant of application under Order I, Rule 10, C.P.C. Along with section 18 of the Payment of Wages Act, 1936.
Accordingly, said application was granted by allowing intervenor to be impleaded as applicant No,2 in the main application and the matter was adjourned to 28-5-2010 for further proceedings.
On 28-5-2010, when all the parties were present, the newly impleaded applicant No,2 filed an application along with list of 15 employees stating therein that the said employees were not included in the main application filed by the Labour Officer, and presented their claim of illegally deducted Wages from August to date i,e,25-8-2010 amounting to Rs,2,83,1000 with the prayer to allow the same with ten times compensation. On 18-6-2010, the applicant No,2 as referred to hereinaliove submitted an application under Order XXXVIII, Rule 5, C.P.C. Read with section 18 of the Act, 1936, wherein it was stated that the present petitioners, with intention to obstruct and delay the execution of order that may be passed by this Authority in the above matter, are selling out their property as scrape, hence prayed for deposit of security amount from them during pendency of proceedings before the authority. Some other applications were also filed on behalf of the parties and replies thereon were also submitted. Learned counsel for the petitioners raised objection to the maintainability of the claim of respondents on the ground that none of the respondents were employed on pay roll of the petitioners' establishment, whereas, they were employed by the contractor, hence not entitled to the aforesaid claim. However, such objection of the petitioners' establishment was not treated as a valid objection by the learned Commissioner, whereas, the petitioners were given final opportunity to answer the claim of 253 plus 15 intervenors workers, but no reply was furnished inspite of considerable lapse of time, and instead delaying tactics were adopted by the petitioners' counsel by seeking unnecessary adjournments. On 22-10-2010, the respondents and the persons employed/workers made themselves available before the Authority for cross-examination, but the petitioners' side did not conduct their cross-examination. Under the aforesaid circumstances, the claim of all the respondents remained unchallenged and was deemed to be accepted by the authority, as the same could not be controverted by the petitioner's establishment.
3. In view of hereinabove facts, the learned Commissioner Workmen's Compensation/Authority, under the Payment of Wages Act, vide impugned order held as follows:--- "In the wake of the above discussion, I, therefore allow the claim of 253 persons employed filed by the Labour Officer, the application No,1 amounting to Rs,30,36000 with 5 (five) times compensation of Rs,15180000 and also allow the claim of 15 person employed, filed by Zeal Pak Cement Factory Employees Union, the applicant No,2 relating to illegal deduction of wages amounting to Rs,2831000 and impose 5 (five) times compensation of Rs,14155000, direct the respondents to deposit Rs,35202000 with this Authority within 30 days from the date of this order."
4. Learned counsel for the petitioner has argued that the impugned order passed by the learned Commissioner Workmen's Compensation is liable to be set aside as the same has been passed by the learned Commissioner, who was not lawfully appointed and properly Notified in terms of section 15 of the Act. It has been contended by the learned counsel that no proper opportunity was given to the petitioners to defend their case, whereas the claim of the respondents has been allowed on the basis of presumptions. It has been further contended that the impugned order is based on misreading and non-reading of the record, whereas, the finding of the learned Commissioner is based on surmises and conjectures. Per learned counsel, the learned Commissioner/Authority, under the garb of summary trial, has proceeded with the matter hurriedly, whereas no reasonable opportunity of being heard was provided to the petitioner to defend its case. It has been alternatively argued by the learned counsel that the application under section 15 filed by the respondents was not admitted by the lawfully appointed Commissioner, hence the subsequent proceedings and the decision are also without lawful authority, hence liable to be set aside
5. Conversely, learned counsel for respondents Nos.2 and 3 filed comments/counter-affidavit and raised preliminary objection with regard to maintainability of the instant petition. It has been vehemently argued by the learned counsel for the respondents that the instant petition is not maintainable against the impugned order passed by the Commissioner Workmen's Compensation Authority under Payment of Wages Act, on an Application under section 15 of Payment of Wages Act, 1936, as the same is an appealable order under section 17 of the said Act. It has been contended by the learned counsel that the petitioner has already filed an appeal against the impugned order under section 17 of Payment of Wages Act, 1936, whereas, instant petition has been filed in duplication of such proceedings in order to circumvent the legal proceedings as provided under the Statute and to overcome the deficiency in the appeal. Per learned counsel, in fact, instant petition has been filed with mala fide intention by the petitioner to overcome a legal objection raised by the learned Appellate Court in appellate proceedings with regard to maintainability of the appeal as the petitioner did not deposit the decrial amount as required in terms of section 17 of the Payment of Wages Act, 1936. It has been contended by the learned counsel for the respondents that the petitioner has not approached this Court with clean hands and filed instant petition with mala fide intention and in duplication of the remedy already availed by the petitioner as provided under the Statute, whereas, nothing on the merits of the claim of the respondent has been stated or even argued by the learned counsel for the petitioner. Learned counsel further contended that the plea raised by the petitioner for the first time through instant petition with regard to jurisdiction and authority of respondent No,1, who has passed the impugned order, is also frivolous and factually incorrect as the respondent No,1 namely Ghulam Sarwar Utero, vide Notification dated 27th March, 2010 was appointed as "Commissioner" under section 20 of the Workmen's Compensation Act, 1923 and "Authority" under section 15 of the Payment of Wages Act, 1936. Reference to notification dated 19th November 2008 has also been made by the learned counsel for the respondent to show that one Ziauddin Qureshi, Assistant Director Labour (BPS-17) on promotion to BPS-18 was posted as Deputy Director, (Compensation) BPS-18, and Hyderabad.
While concluding his arguments, learned counsel has contended that instant petition, besides being not maintainable in law and facts, is tainted with malice, whereas lawful dues of the poor workers are being withheld unnecessarily by the petitioners who are making an attempt to distract the lawful claim of the workers and to gain further time in this regard by filing instant petition. It has been prayed that instant petition, being devoid of any merits, may be dismissed with cost. In support of his contention, learned counsel for the respondents has placed reliance in the case of Town Committee, Gakhar Mandi v. Authority under the Payment of Wages Act, PLD 2002 SC 452.
6. Learned Additional Advocate-General has also filed objections on behalf of respondent No,1 and vehemently opposed the maintainability of the instant petition, while adopting the arguments advanced by the learned counsel for respondents 2 and 3. It has been contended that instant petition is not maintainable in law and facts, hence liable to be dismissed with cost. Copies of two Notifications regarding appointment of Commissioner/Authority as referred to hereinabove have also been, placed on record by the learned A.A.-G. Through statement dated 12-6-2013.
7. We have heard both the learned counsel as well as learned A.A.-G, and perused the record.
Admittedly, in addition to filing instant petition, the petitioner has already filed an appeal under section 17 of the Payment of Wages Act, 1936 against the impugned order before the Labour Court having jurisdiction over the case of the petitioner. It has also come on record that while filing the appeal before the Labour Court the petitioner did not deposit the amount with the Authority which was payable under the directions as contained in the impugned order, whereas, an objection has been raised as to maintainability of the appeal by the learned Labour Court for not complying with the requirement of law as contained in Proviso to clause (a) subsection (1) of section 17 of the Payment of Wages Act, 1936. When confronted with the objection. Raised by the respondents regarding maintainability of the instant petition, particularly, when the petitioner has already availed the remedy as provided under the Statute against the impugned order by way of filing an appeal under section 17 of the Act, the learned counsel for the petitioner could not satisfactorily respond to such objection and has submitted that since the impugned order has been passed by the Commissioner/Authority, who was not lawfully appointed under the Payment of Wages Act, 1936, therefore the said order is without jurisdiction, hence liable to be set aside by this Court in its constitutional jurisdiction. However, from perusal of the comments filed on behalf of the respondents, whereby copies of WO Notifications dated 19th November, 2008 and 27th March, 2010 have been placed on record showing appointment of Mr, Ghulam Sarwar Utero, Commissioner (Hyderabad) under section 20 of the Workmen's Compensation Act, 1923 and Authority under section 15 of the Payment of Wages Act, 1936, the contention of the learned counsel fat the petitioner appears to be misconceived and factually incorrect.
8. It will be advantageous to reproduce the aforesaid notifications for' the sake of relevance and record:- "GOVERNMENT OF SINDH LABOUR DEPARTMENT Karachi dated the 19th November, 2008 NOTIFICATION No,Lab(I)1-6/83-V(P):-- - On the recommendation Departmental Promotion Committee and with the approval of Competent Authority, the following Assistant Director Labour (BPS-l7), are hereby promoted to the post of Deputy Director Labour (BPS- 18), on regular basis, with immediate effect.
(1)Syed Aftab Hussain Shah (2)Mr. Sarfaraz Ahmed Awan (3)Mr. Muhammad Zia-ud-Din Qureshi II (1)On promotion to BPS-18, Syed Aftab Hussain Shah, Assistant Director Labour (BPS-17), posted as Assistant Commissioner MLWO (BPS-18), is hereby allowed to continue as Assistant Commissioner MLWO (BPS-18), with immediate effect.
(2)On promotion to BPS-18, Mr. Sarfaraz Ahmed Awan, Assistant Director Labour (BPS-17), Gulberg Town Karachi, is hereby transferred and posted as Deputy Director Labour (BPS-18), Occupational Safety and Health Centre (BPS-18) Karachi, with immediate effect vice Mr. Ali Ashraf Naqvi, transferred.
(3)Mr. Ali Ashraf Naqvi, Deputy Director Occupational Health and Safety Centre (BPS-18), Karachi is hereby transferred and posted as Deputy Director (Admn) Headquarter BPS-18, Directorate of Labour, Sindh Karachi, with immediate effect and until further order against an existing vacancy.
(4)On promotion to BPS-18, Mr. Zia-ud-Din Qureshi, Assistant Director Labour (BPS-17), posted as Assistant Director Compensation (BPS-17), West Division Karachi, is hereby transferred and posted as Deputy Director (Compensation) BPS-18 Hyderabad, with immediate effect against an existing vacancy. ALAM DIN BULLO SECRETARY TO GOVERNMENT OF SINDH."
"GOVERNMENT OF SINDH LABOUR DEPARTMENT Karachi dated the 27th March, 2010 NOTIFICATION No,Lab(I)2-1/84(P):--- With the approval of Minister Labour, Sindh following officers of Office of Additional Director Labour Hyderabad are hereby appointed/assigned the Additional Charge of the post of Commissioner Workmen's Compensation and Authority for the jurisdiction as mentioned below with immediate effect and until further ordeRs,
1. Mr. Zia-ud-Din Qureshi, Deputy Director Labour (Compensation) Hyderabad
2. Mr. Ghulam Sarwar Utero, Assistant Director Labour (BS-17) Hyderabad Commissioner' under section 20 of the Workmen's Compensation Act, 1923, 'Authority' under Section 15 of the Payment of Wages Act 1936, 'Authority' under section 12 of the West Pakistan Shops and Establishments Ordinance, 1969, for the area jurisdiction of: (i)District Jamshoro (ii)Thatta (iii)Dadu
2. Mr. Gulam sarwar utero, Assistant director (BS-17) Hyderabad.
9. From perusal of hereinabove Notifications, it has come on record that Mr. Zaiuddin Qureshi and Mr. Ghulam Sarwar Utero, were duly appointed and Notified by the competent authority as "Commissioner" under section 20 of the Workmen's Compensation Act, 1923 and "Authority" under section 15 of the Payment of Wages Act, 1936 at the relevant point of time when the proceedings under section 15 were filed by the respondents and the impugned order was passed in the instant case. As regards alternate argument of the learned counsel for the petitioner, whereby, it was contended that the appeal under section 15 in the instant matter was initially entertained and admitted when there was no Commissioner/Authority lawfully appointed under the Act, learned counsel for the petitioner was required to refer to any proceedings or admission order, which according to learned counsel for the petitioner, was either required or was passed by an Authority, which according to petitioner, was not lawfully appointed, the learned counsel could not refer to any such proceedings nor could place on record copy of such admission order in the instant case.
Learned counsel was further required to refer to any provision of law whereby an admission order, as alleged, is required to be made by the. Authority before deciding the case finally in terms of section 15 of the Payment of Wages Act, 1936, however, learned counsel for the petitioner candidly could not refer to any such Provision of the Act. Commissioner' under section 20 of the Workmen's Compensation Act, 1923, 'Authority' under Section 15 of the Payment of Wages Act 1936, 'Authority' under section 12 of the West Pakistan Shops and Establishments Ordinance, 1969, for the area jurisdiction of: District Jamshoro Theta Dadu Nothing has been argued by the learned counsel for the petitioner regarding merits of the case nor has any error or legality been pointed out by the learned counsel for the petitioner, except raising hereinabove objection with regard to appointment of Commissioner/Authority, which objection is neither factually correct nor legally sound.
10. Keeping in view hereinabove facts and circumstances of the instant case, we are of the opinion that instant petition, besides being devoid of any merits, has been filed with mala fide intention to circumvent the legal requirement of deposit of the amount in terms of Proviso to clause (a) subsection. (1) of section 17 of the Payment of Wages Act, 1936, and to bypass and abandon the forum as provided under the. Statute. A party cannot be allowed to bypass or abandon the forum provided for the purposes of redressed of grievance under a statute without any lawful and reasonable excuse. Reliance in this regard can be placed in the case of Khalid Mehmood v.
Collector of Customs 1999 SCM R 1881. Accordingly, instant petition was dismissed along with listed applications vide our short order dated 12-6-2013 and these are the reasons for such short order.