1. ' This matter relates to Habib Textile Mills which is a subsidiary concern of the petitioner's company where a Lay-off was declared from 31st August, 1976. The Habib Textile Mills Workers Union which is a Collective Bargaining Agent for the workers filed an application under section 34 of I. R.
2. 0., 1969 in. IIIrd Sind Labour Court wherein Lay-off was challenged and claim of wages for the laid- off period for all the workers was claimed. In para. 2 of the said application it was claimed that all the workers had been laid-off and thus whole of the establishment of Habib Textile Mills had closed down. While the said application was pending before the Labour Court the respondents Nos. 2 to 82 filed a joint application for wages before the Payment of the Wages Authority for the period from 16th June, 1975 claiming the same as delayed and unpaid wages. Similarly respondents Nos. 83 to 96 and respondents Nos. 97 to 104 filed similar joint applications before the Authority. The petitioner filed legal objections that the Laid-off workers could not be entitled to wages for laid-off period and applications could not be determined by the Payment of Wages Authority and the applications were incompetent but the objections were deferred by the Authority till after recording of evidence.
3. The petitioner thereupon filed petition No, S-42/76 in the High Court but the same was dismissed in limine. Thereafter all the three applications where considered together and evidence was recorded by respondent No, 1 and they were disposed of on 14th September, 1978 and the petitioners were directed to pay a total sum of Rs. 11,865.72 to all the respondents in the three applications. The petitioner thereafter filed the present petition.
4. ' I have heard learned counsel Mr. Kamal Mansoor Alam for the petitioner and Mr. Mohammad Shafiq Qureshi for respondents Nos. 2 to 124. Before dealing with the submissions of the petitioner I will take up the preliminary objections raised by respondents that the petitioner did not avail of alternate remedy of appeal as provided under section 17 of the Act. The learned counsel has produced a number of rulings to the effect that in case alternate remedy has not been availed of then the petition is not competent. However,. In this case I do Lot find the appeal to be an adequate remedy. After looking at provisions of section 17 of the Payment of Wages Act, I find that proviso to clause (a) of subsection (1) of section 17 provides that no appeal under clause (a) was competent 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 directions appealed against. It would therefore be apparent that an appeal could be filed only after the deposit of the money ordered to be paid to the workers by the Payment of Wages Authority whereas a petition in the High Court could be filed by the petitioner and has actually been filed by the petitioner without any deposit and it is therefore obvious that the appeal under section 17 of the Act is not an efficacious or alternate., remedy as it involves the payment of the amount ordered to be paid: I therefore hold that section 17 of the Payment of Wages Act does not provide an alternate remedy to the petitioner which could deprive them from filing a constitutional Petition in the High Court.
5. ' Mr. Kemal Mansoor Alam has contended that Authority under the Payment of Wages Act, cannot determine under section 15 of the said Act whether the Lay-off declared was legal or not and since it is admitted that the Lay-off had been declared by the petitioner, therefore the Authority should have stayed its hand and should have directed the respondent to approach the Labour Court for a declaration that a Lay-off was legal. The counsel has elaborated that in case a worker had been dismissed then he could not claim his wages before Payment of Wages Authority for the period after dismissal on the basis that the dismissal was illegal, unless and until, the dismissal had been set aside by competent Labour Court. Counsel has relied upon PLD 1963 SC 340 (346) where Supreme Court in a case where a dismissed Railway employee and secured a declaratory decree from the Civil Court declaring his dismissal as illegal had thereafter had filed an application before the Payment of Wages Authority claiming his wages for the period after dismissal and the Railway Administration in that case had taken objections that the application was time-barred, the Supreme Court had observed as under :- " If he had filed a petition immediately after dismissal it would have been surely resisted on the ground that no contract subsisted between the "parties and that the authority was not entitled to enter into the question of legality are illegality of the order from removing him from the service."
6. Counsel contends that these observations of the Supreme Court show that Authority could not entertain a wages application from a dismissed employee unless a declaration had been obtained from Civil Court that dismissal was illegal. I do not agree. These observations do not have such effect. They have been made only to explain the delay which had taken place in the filing of an application for payment of wages on account of time spent for obtaining a decree from the Civil Court. The Supreme Court observations do not go to the extent of saying that in no case the Wages Authority will be competent to decide whether the contract of the service subsists or not. In any case the observations in case of dismissal cannot be used in a case where. Contract subsists but wages are not being paid on account of a claim of lay-off where the employer has got to show that he has a genuine cause of not paying the wages. He has also relied upon AIR 1959 Mad. 597 where it was held that the jurisdiction of the Payment of Wages Authority does not extend to determine whether the contract has been terminated as alleged by the employer or subsists as alleged by the employee. This was again a case of a dismissed employee. To the same effect is AIR 1959 Bom. 423, paras 3, 5 and 6. The argument of the learned counsel is based upon section 15 of the Payment of Wages Act which invests the Authority to decide all claims arising out from deduction of wages or non-payment of dues relating to profit or gratuity payable under any law or delay in payment of wages. Counsel's contention is that this is a special jurisdiction and the Authority is not invested with the general jurisdiction to decide about the legality of the termination of the contract or legality about declaration of lay-off Mr. Shafiq has on the other hand pointed out that in same judgment of PLD 1973 SC 340. It was observed that wages not necessarily mean earned wages and where the employee was ready and willing to perform work and employer was not giving the employee opportunity to render such services then in that case the employee was held to be entitled to wages. I am of the view that the jurisdiction of the Authority to award, deducted or delayed wages is not ousted as soon as the employer pleads that he has declared a Lay-off. The Authority is competent to consider and decide whether there was prima facie justification for the claim of the employer. The only difference in such cases would be that the decision of the Authority in such case would not be clothed with a finality and it would be open to challenge before the ordinary Courts or competent general Tribunal who would be able to decide whether the determination of such facts by the Authority is within law or not. It was held in PLD 1965 SC 693 (794)1 that Special Judicial Tribunal are given jurisdiction to determine certain facts, but they are not Judge of the facts which are the foundation of their jurisdiction nor could they define limits of their own jurisdiction". It was however further observed as under :- "Of course although the officer has been granted no jurisdiction to determine any facts he will have to ascertain whether the requisite circumstances exist for, otherwise he cannot pass the order, but his conclusion as to the existence of these circumstances binds nobody and it is open to any person affected to challenge his act on the ground that those circumstances do not in fact exist."
7. ' This ruling of the Supreme Court was relied upon by both sides. Mr. Kamal Mansoor Alam emphasises the earlier quotation and Mr. Shafiq relied upon the quotation which, I have quoted later in this para. I am of the view that the Supreme Court has clearly laid down that any Special Tribunal is competent to go into and determine the circumstances upon which it's jurisdiction is founded but its decision in respect of those circumstances cannot be treated as final in the same manner as its decision would be treated in respect of those matters which have been specifically entrusted by law for its decision.
8. Therefore, applying the dictum of the Supreme Court to the facts of the case before me, I am of the view that the Authority in this case could determine whether the Lay-off had been correctly declared or not, but its conclusion as to the existence of the circumstances in respect of the Lay-off could bind nobody if these circumstances did not C exist. However, initially it had the authority to go into the fact and to determine whether a Lay-off had been established or not, and therefore, its jurisdiction could not be challenged merely on the basis that it had no right to go into the legality or otherwise of the Lay-off. But, its decision could certainly be challenged if the circumstances upon which it has based its decision did not exist.
9. ' In the case before me the circumstances are that the Lay-off was declared by the petitioner on account of the suspension of its power supply by K. E. S. C. Which had been cut-off on account of non-payment of dues. I may mention here that previous to this Lay-off the petitioner had applied to Labour Court for permission to close the establishment on account of financial losses under Standing Order 11-A, but the same had been refused by the Labour Court. In this background the petitioner declared the Lay-off on 30th August, 1976 on account of lack of power supply which had been shut off on account of non-payment of dues. In these circumstances the respondents claimed that it was not a Lay-off as provided under Standing Orders as it was not a breakdown in power supply which could authorise the petitioner to declare a Lay-off under Standing Orders Ordinance, 1968. They also take the plea that in any case Lay-off beyond 14 days amounted to a closure of the establishment as provided in Explanation under Standing Order 11-A of the Standing Orders Ordinance, 1968 as it involved the entire work-strength of the factory which cannot be declared without the prior permission of the Labour Court. Respondents had merely asked for their delayed and unpaid wages and had of course incidentally mentioned in one application that it had not been paid on account of the wrong Lay-off declared. They had thus challenged the declaration of Lay-off beyond 14 days as illegal. The petitioner took the plea of legal Lay-off and wanted the authority to restrain from going into the legality of the Lay-off and hold that the application of respondents were not competent. Since the claim had been made for payment of the wages and it was being resisted by the petitioner on the defence of Lay-off therefore it was, but necessary for the authority to determine whether there was any justification for non-payment or deduction of wages on account of the claim of Lay-off or not. After going through the evidence Authority came to the conclusion that the claim for the Lay-off was not justified as'the petitioner had itself failed in the payment of dues of K. E. S. C. And had not got the electricity restored. In this respect Standing Order 11 (1) and Standing Order 11-A are worth being reproduced as under :- "11. Stoppage of work.-(1) The employer may, at any time in the event of the fire, catastrophe, breakdown of machinery or stoppage of power supply, epidemics, civil commotion or other causes beyond his control, stop any section or sections of the establishment, wholly or partially for any period or periods without notice, etc."
10. 11-A. Closure of establishment. -Notwithstanding anything contained in Standing Order 11, no employer shall (terminate the employment of more than fifty per cent of the workmen or) close down the whole of the establishment without prior permission of the Labour Court in this behalf, except in the event of fire, catastrophe, stoppage of power supply, epidemics or civil commotion.
11. Explanation.-'Close down' in this Standing Order includes lay-off of workmen beyond fourteen days where such lay-off results in closure of an establishment but does not include lock-out declared, commenced or continued in accordance with the provisions of the Industrial Relations Ordinance, 1969 (XXIII of 1969).
12. ' These provisions make it clear that it is only breakdown of the machinery or of power supply epidemic fire catastrophy, etc. Which are the result of unforeseen circumstances and calamities that a Lay-off closure of establishment is justified. The stoppage of power supply in these two provisions is not such stoppage of power supply which is the result of inaction on the part of the petitioner itself, but it refers to stoppage of power supply on account of some calamity, disorders or breakdown, etc. Which is not in control of employer. The Authority therefore came, to the right conclusion that it was not a Lay-off on account of stoppage of power supply but in fact it was closure of establishment as the Lay-off had proceeded beyond 14 days without the permission of the Labour Court, therefore, it was unauthorised as explained in Standing Order 11-A.
13. ' It was not incumbent on the part of the authority to go into the circumstances leading to the Lay- off. If the lay-off had been established to be properly declared then thereafter the jurisdiction of the Authority to award wages could be barred and not otherwise, I am therefore, of the view that the authority could go into the question whether the Lay-off had been validly declared or not. The claim of Lay-off is not the same thing, as a dismissal of any employee where the relationship of employer and employee comes to an end. 1 will consider an analogy. In the case of an application by landlord for ejectment of a tenant where tenant takes up a defence of lack of relationship of landlord and tenant, it is competent for the Rent Controller to determine whether the relationship exists or riot. If the Rent Controller determines such relationship on irrelevant consideration or insufficient material then same could be challenged before the ordinary Civil Court but not otherwise. Similarly, in the case before me, since the defence of the Lay-off had been claimed in respect of payment of wages it was necessary for the Authority to determine that question and it has committed no illegality in doing so.
14. ' Mr. Kamal has argued at length that the Payment of Wages Authority has no jurisdiction to award compensation in respect of the Lay-off period. He relied upon some Indian decisions and also upon PLD 1977 SC that payment made during the days of the stoppage of work in June and July, 1972 did not fall within the definition of term wages as contained in the Social Security Ordinance. Mr. Shafiq Qureshi met this argument by pointing out that there was difference in the definition of wages in section 2 (6) of the Payment of Wages Act from the definition of wages in the Social Security Ordinance. The council is justified in pointing out the difference as the wages in the Social Security Ordinance include payments made by employer in respect of any period of legal strike, but the Supreme Court held that it could not be extended to include payment made by employer to employee ex gratia. I am however of the view that detailed consideration of this aspect of the case is not called for in this case as the respondent had not claimed compensation for Lay-off but had claimed wages which had either been delayed or deducted. Therefore, the respondent were not claiming compensation for the Lay-off period and D hence the objection that the Authority under the Payment of Wages Act could not grant compensation for the Laid-off period is untenable in the circumstances of this case.
15. ' No other point was urged. I do not find anything wrong in the order of the Authority and I, therefore, dismiss the petition. Petit ion dismissed.