' JUSTICE (R.) RAJA FAYYAZ AHMED (CHAIRMAN).---This appeal filed under section 17 of Payment of Wages Act, 1936 against the order dated 31-3-2011 passed by the learned Assistant Commissioner (City)/Authority under Payment of Wages Act, ICT, Islamabad has been sent to this Commission by the learned District and Sessions Judge/Presiding Officer Labour Court Islamabad vide order dated 17-10-2011 on the ground that on promulgation of the IRO, 2011 (Ordinance No,V of 2011) said Labour Court has since ceased to exist for Islamabad Capital Territory (ICT) and all the functions and powers of a Labour Court have been invested in the Commission by virtue of section 53 of the said Ordinance.
2. Precise relevant facts of the case are that the Assistant Commissioner (City)/Authority under Payment of Wages Act, ICT, Islamabad vide order impugned in appeal directed the appellant Foundation to pay an amount of Rs,40000 to the petitioner (respondent No,2) within seven days from the date of the said order. This order was assailed by the appellant by filing appeal under section 17 of the Act Ibid which reads as under:--- "Appeal.--- (1) An appeal against the direction made under subsection (3) or subsection (4) of section 15 may be preferred with 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 wages and compensation exceeds three hundred rupees.
' Provided that no appeal under this clause 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 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; (1-A) All appeals pending before any District Court under this section immediately before the commencement of the Labour Laws (Amendment) Act, 1974, shall on such commencement, stand transferred to, and be disposed of by the Labour Court within whose jurisdiction the cause of action to which the appeal relates arose.
(2) Save as provided in subsection (1), any direction made under subsection (3) or subsection (4) of section 15 shall be final.
3. The appeal was listed for hearing before this Bench. The learned counsel for the appellant was asked to satisfy as to whether the appeal preferred under section 17 of the Payment of Wages Act, 1936 against the order of the Authority under the Act is maintainable before this forum and as to whether on the promulgation of IRO, 2011 the same could have been directly sent to the Commission for hearing.
' In this view of the matter with the consent of the learned counsel for the appellant and the respondent No,2, the matter was adjourned enabling the learned counsel to assist the Bench on the above mentioned points. Again the matter was listed for 31-10-2012 but on behalf of the appellant adjournment was sought for on the ground that their learned counsel is based at Lahore who could not come due to his preoccupation. On 19-2-2013 again opportunity was afforded to the learned Legal Adviser for the appellant and his attention was invited to a similar matter in which order dated 26-12-2012 was passed in Appeal No,4B(300) of 2012 by this Bench in which it was held that appeal against the order of Authority under section 17 of Act Ibid is not maintainable before the Commission.
' On 15-4-2013 the learned Legal Adviser for the appellant was heard in the light of the relevant provisions of IRO, 2011 and IRA, 2012 with regard to the maintainability of appeal before the Commission and further opportunity was afforded to the learned Legal Adviser to satisfy the Bench that appeal filed under section 17 of the Payment of Wages Act, 1936 against the order of the Authority is appealable before this Commission? On 13-5-2013 when the matter was listed for hearing, none appeared for the appellant probably due to observance of strike on the call of Punjab Bar Council for whole of the day. Thus the matter was again adjourned to 25-6-2013, on which date none appeared for the appellant consequently; the appeal was dismissed for non- prosecution. Subsequently, C.M.A. No,7A(111) of 2013 was filed for re-admission of the appeal and vide order dated 25-7-2013 the order of dismissal of appeal for non-prosecution was recalled in the interest of justice and the appeal was restored to its original number directed to be listed for preliminary hearing on 29-7-2013.
4. The learned Legal Adviser of the appellant has been heard in the light of the aforementioned facts of the case. He submitted that as appeal was sent to the Commission directly by the learned Labour Court vide order dated 17-10-2011 on the promulgation of IRO, 2011, the Labour Court in (ICT) which ceased to exist therefore, the same can competently be heard and decided by the Commission, as by virtue of section 53 of the said Ordinance and that as identical provisions have been enacted through IRA, 2012 (X of 2012), this appeal may be heard and decided on merits. The learned Legal Adviser further submitted that in respect of the individual grievance exclusive jurisdiction relating to (ICT) and trans-provincial establishments has been conferred upon the Commission which previously was conferred on the Labour Court for ICT hence, the appeal under section 17 of the Payment of Wages Act, 1936 is maintainable before the Commission while the appeal initially against the impugned order was preferred before the Labour Court (ICT) which at the relevant time was functioning but later on ceased to exist.
5. It is worthwhile to note that before the crucial date of lapse of IRO, 2011 the appropriate legislature vide its Resolution dated 17-11-2011 extended the operation of the Ordinance No, V of 2011 for a further period of one hundred and twenty days with effect from 16-11-2011 under proviso to sub- paragraph of clause (2) of Article 89 of the Constitution of Islamic Republic of Pakistan. The Ordinance was then substituted by IRA, 2012 (X of 2012).
6. The precise relevant facts of the case, as it appear from the scrutiny of the documents available on the appeal file are that the application submitted by Mr. Muhammad Ashraf (respondent No,2) to the Authority under the Payment of Wages Act (ICT) Islamabad against the appellant-foundation was decreed in his favour vide order dated 6-5-2010 whereby, the appellant-foundation was found to be liable to pay one month notice pay amounting to Rs,4000 with ten times penalty to the applicant within 30 days of the passage of order. The amount was not paid to the respondent No,2, consequently on 18-8- 2010 application for the enforcement of the above said order passed by the Authority was filed before the Authority under the Payment of Wages Act (respondent No,1). Vide order dated 31-3-2011, the respondent No,1 directed the appellant-foundation to pay the decretal amount of Rs,40000 to the petitioner within 7 days of the passage of this order. Subsequent order dated 31-3-2011 was assailed by the appellant-foundation by filing appeal under section 17 of the Payment of Wages Act, 1936 before the learned Labour Court, Islamabad. The learned Presiding Officer of the Labour Court, Islamabad vide order dated 17-10-2011 observed that since the Labour Court of Islamabad has ceased to exist in the ICT and all the functions and powers of a Labour Court have been invested in the Commission by virtue of section 53 of the IRO, 2011 therefore, the record and papers were sent to this Commission.
' It is pertinent to note that from the documents available on record, it does not transpire that the appellant-foundation had challenged the original order dated 6-5-2010 passed by the Authority whereby the application submitted by the respondent No,2 was allowed and the appellant- foundation was directed to make payment of Rs,40000 to the respondent No,2 before the Labour Court functioning for ICT at the relevant time however; the later order mentioned above passed by the Authority has been challenged under section 17 of the Payment of Wages Act before the learned Labour Court, Islamabad. Hence; it appears from the available documents that the original order passed by the Authority had attained the finality.
7. It has been observed in the order passed by the learned Labour Court dated 17-10-2011 that by virtue of section 53 all the functions and powers of Labour Court has been invested in the Commission under the said Ordinance. Undoubtedly, in respect of individual grievances and unfair labour practice, the powers were =conferred upon the Commission by virtue of the relevant provisions of IRO, 2011. Commission was constituted under section 53 of the IRO, 2011 and functions of the Commission were described in section 54 of the Ordinance to whom additional powers were also conferred under section 57 of the Ordinance ibid; whereas section 58 of the Ordinance related to appeals and provided that, notwithstanding anything contained in the Ordinance or in any other law 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 thus; it abundantly clear that remedy by way of appeal against an award or decision given or a sentence or order determining and certifying a collective bargaining unit passed by any Bench of the Commission, was available before the Commission, under subsection (1) and to be disposed of by the Full Bench of the Commission within the meaning of subsection (2) of section 58 of the Ordinance. Subsection (2) of section 56 of the Ordinance provided that an award or decision given or a sentence or order deterfnining and certifying a collective bargaining unit by any Bench of the Commission in accordance with the Ordinance shall be deemed to be order passed, award given, sentence passed, powers exercised or proceeding commenced as the case may be, by the Commission. From the plain reading of this provision it becomes quite clear that-by virtue of section 58 of the Ordinance, appeal lies to the Full Bench of the Commission only against an award, decision given or sentence or order passed by any Bench of the Commission but not an appal against the order of the Authority under the Payment of Wages Act, 1936 thus, under section 17 of the Payment of Wages Act, 1936 appeal does not lie to the Commission.
8. The IRO, 2011 has been substituted by IRA, 2012 (X of 2012) which contained identical provisions for appeal under section 58 of the Act Ibid. The Commission has been constituted under section 53 of the Act Ibid. The functions of the Commission have been described in section 54 and additional powers are invested by section 57 of the Act. By virtue of this Act and in respect of redressal of individual grievances in relation to ICT and trans-provincial establishments exclusive jurisdiction has been conferred upon the Commission under section 33 while in respect of 'unfair labour practices' relating to trans-provincial establishments exclusive jurisdiction including ICT have been invested in the Commission by virtue of subsection (3) of section (1) read with sections 31 and 32 of the Act besides all other allied and connected matters defined and enumerated in the Act.
9. For convenience and ready reference section 58 of the Act is reproduced hereinbelow:--- ' 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 subsection (1) shall be 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 powers 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 subsection 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."
10. Identical provisions as hereinabove discussed with reference to IRO, 2011, have been given in subsection (2) of section 56 of the Act whereby an order, award or sentence if passed by a Bench of the Commission shall be deemed to have been passed by the Commission against which appeal lies to the Full Bench by virtue of subsection (2) of section 58 of the Act.
11. A right of 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 who may, within thirty days of such award, decision, sentence or order prefer an appeal to the Full Bench of the Commission under subsection (2) of section 58 of the said Act.
' The order impugned in this appeal admittedly has 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 undisputedly 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 remedy less and in the circumstances as emerged in this matter; 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 an aggrieved person against an order/direction of the Authority for Islamabad Capital Territory (ICT) passed/made under subsections (3) and (4) of section 15 of the said Act through the process of appropriate legislation.
' In view of the above highlighted legal aspects of the matter the appropriate legislature may come forward to suitably amend section 17 of the Payment of Wages Act, 1936 by substituting word 'Labour Court' for the word 'Commission' thereby providing right of appeal to an aggrieved party but as in the instant matter, the aggrieved person has been deprived from the right of appeal.
' The word 'Labour Court' used in section 17 of the Payment of Wages Act, 1936 by no stretch can be substituted by the Commission for the word 'Commission' under Act X of 2012 nor the Commission has the authority and competence to 'read in' the word 'Commission' for the word 'Labour Court' by applying the doctrine of 'reading in' section 17 of the Payment of Wages Act, 1936 for ready reference is reproduced here below:--- "Appeal.--- (1) An appeal against the direction made under subsection (3) or subsection (4) of section 15 may be preferred with 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.
(d) by the employer or other person responsible for the payment of wages under section 3, if the total sum directed to be paid by wages and compensation exceeds three hundred rupees: ' Provided that no appeal under this clause 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 or
(e) 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
(f) by any person directed to pay a penalty under subsection (4) of section 15; (1-A) All appeals pending before any District Court under this section immediately before the commencement of the Labour Laws (Amendment) Act, 1974, shall on such commencement, stand transferred to, and be disposed of by the Labour Court within whose jurisdiction the cause of action to which the appeal relates arose.
(2) Save as provided in subsection (1), any direction made under subsection (3) or subsection (4) of section 15 shall be final.
12. Thus; in view of the above reasons, this appeal being not maintainable before the Commission under section 58 of the Ordinance Ibid or under section 58 of IRA, 2012 is directed to be returned to the appellant or his learned counsel against a valid discharge after retaining copy of impugned order and memo. of appeal. The appellant may avail appropriate remedy as may be admissible under the law and constitution as may be deemed fit.
13. Copy of this order be sent to the Secretary, Law and Parliamentary Affairs, Government of Pakistan, Islamabad for consideration and appropriate action.