' MAHMOOD AHMAD BHATTI, J.--- By this single judgment, I intend to dispose of Writ Petitions Nos.1956 of 2014,1957 of 2014, 1958 of 2014, 1959 of 2014, 1960 of 2014, 1961 of 2014, 1962 of 2014, 1963 of 2014, 1964 of 2014, 1965 of 2014, 1966 of 2014, 1967 of 2014, 1968 of 2014 and 1969 of 2014.
2. The above petitions were filed by CoCa-Cola Beverages Pakistan Limited to assail the validity of the order dated 16-1-2014 made by the Authority appointed under the Payment of Wages Act, 1936, respondent No,2.
3. The identical prayers were made in the aforementioned writ petitions. In W.P.1956 of 2014, the following prayers were made: "(i). Allow the instant Writ Petition with costs;
(ii) Declare that the impugned order/direction dated 16-1-2014, passed by respondent No,2/Authority is void ab-initio having been issued without lawful authority and jurisdiction;
(iii) Declare that the assumption of jurisdiction by respondent No,2 over the Petition/Claim filed by respondent No,3 is illegal and devoid of any legal sanction and authority;
(iv) Declare that the Payment of Wages Act, 1936, stood repealed and is not applicable as a consequence of Eighteenth Constitutional Amendment; and the impugned proceedings as taken by respondent No,2 are coram non judice and the impugned order passed therein is illegal and hence also of no legal effect;
(v) Declare that the appointment of respondent No,2 as Authority under the Payment of Wages Act, 1936, is illegal and contrary to the mandatory provisions of applicable law;
(vi) Declare that the provisions of the Payment of Wages Act, 1936 as to the Procedure to be adopted by the Authority are ultra vires of the Constitution;
(vii) Direct and require respondents No,2 to explain and show under what authority of law, he claims to hold the office and is exercising the powers of an Authority; and (viii)Suspend the operation of impugned order dated 16-1-2014, passed by respondent No,2 by way of direction under section 15(3) of the Payment of Wages Act, 1936."
4. The facts relevant for the disposal of these petitions are that the petitioner, CoCa Cola Beverages Pakistan is a public limited company, incorporated under the Companies Ordinance, 1984. The private respondents in the writ petitions lodged claims with the Authority appointed under the Payment of Wages Act, 1936 for. Multan, seeking directions to the petitioner company to pay the purported unpaid and delayed Wages to them. They also claimed gratuity, bonuses, notice pay and amounts equivalent to the monthly wages of twenty-four months in lieu of their termination of employments.
5. The petitioner company flatly denied that the private respondents had ever been its employees.
It took the stance that it had entered into an agreement with Messrs HRSG Outsourcing Private Limited, Karachi, and that the private respondents herein were the employees of the latter company. As such the petitioner company washed its hands of any liability towards the claimant workers. At the same time, it challenged the jurisdiction of the Authority who had issued notice to it.
6. In support of their claims, the private respondents filed affidavits. The petitioner company was asked to cross-examine the deponents but for one reason or another, cross-examination could not be carried out. Eventually, the petitioner company was asked to produce evidence in rebuttal and in support of the assertions made by it. For certain reasons, it could not avail of the opportunities to produce evidence. Ultimately, its right to produce evidence was closed, paving the way for the passing of the impugned order.
7. In support of the petitions, learned counsel for the petitioner has reiterated the contentions raised in the petitions. It has been vociferously argued by him that the Authority appointed under the Payment of Wages Act, 1936 could not assume jurisdiction in relation to the writ petitioners and that the private respondents had never been in its employment. It has also been maintained by him that appeals against the orders passed by the Authority appointed under the Payment and.
Wages Act, 1936 for Multan were not filed due to the reason that writ petitions were the only efficacious and adequate remedy available to the writ petitioners. Furthermore, according to him, there is no need to file an appeal against an order to have been passed without jurisdiction. In order to bolster up and fortify his submissions, he has placed reliance upon the case-law reported as "Town Committee Gakhar Mandi v. Authority under the Payment of Wages Act Gujranwala and 57 others" (1993 PLC 156), "Messrs Halcro-ulg, Engineering Consultants, Pat Feeder Canal Rehabilitation and Improvement Project, WAPDA and others v. The "Authority" under the Payment of Wages Act, Quetta and others" (1999 PLC 362), "Arag Industries Ltd. v. Payment of Wages Act Authority etc." (1982 PLC 567), "Farzand Raza Naqvi and 5 others v. Muhammad Din through Legal Heirs and others" (2004 SCM R 400), Nagina Silk Mill, Lyallpur v. The Income Tax Officer. A-Wards, Lyallpur and The Income-Tax Appellate Tribunal, Pakistan" (PLD 1963 Supreme Court 322), "Premier Cloth Mills Ltd., Lyallpur v. The Sales Tax Officer, Investigation Circle-II, Lahore and others" (1972 SCM R 257), "Corruption in Hail Arrangements" (PLD 2011 SC 963), "Utility Stores Corporation of Pakistan Limited v. Punjab Labour Appellate Tribunal and others" (PLD. 1987 SC 447), "Telephone Industries of Pakistan (Pvt.) Ltd. Through Managing Director and another v. Commissioner Workmens' Compensation, Hazara Division at Haripur and another" (2012 PLC 155), "Lawrencepur Woollen and Textile Mills Ltd. v. Government of the Punjab and others" (PLD 2004 Supreme Court 416). "Suo Motu Case No,4 of 2010" (PLD 2012 Supreme Court 553) "Dr. Akhtar Hassan Khan Nand others v. Federation of Pakistan and others" (2012 SCM R 455), "Municipal Corporation, Sialkot through the Administrator v. Younis Masih and others" (1998 PLC 336), "Town Committee Gakhar Mandi, Gujranwala v. Authority under the Payment of Wages Act, Gujranwala and 57 others" (PLD 2002 Supreme Court 452) and "Khali Khan v. Haji Nazir and 4 others" (PLD 1997 Supreme Court 304)."
8. On the other hand, learned counsel for the private respondents have vehemently opposed the petitions, contending that they are not maintainable. They have put forward the arguments that any person feeling aggrieved by the order passed by the Authority may file an appeal under section 17 of the Payment of Wages Act, 1936. It has been asserted by them that the forum of appeal was bypassed by the petitioner company in order to evade its liability arising from the impugned orders. Attention of the Court was invited to the proviso to clause (a) of subsection (1) of section 17 of the Payment of Wages Act, 1936.
8. I have heard the arguments of the learned counsel for the parties and perused the record with their assistance.
9. Since factual controversies cannot be resolved in writ jurisdiction, I am not touching upon the arguments of the learned counsel for the petitioner that deal with or relate to the factual controversies, particularly to that limb of his arguments that focus on the order sheet kept/maintained by the Authority appointed under the Payment of Wages Act, 1936, respondent No,2. Again, I am not to deal with the question whether or not sufficient opportunities were given to the petitioner to refute the case set up by the private respondents. Once the petitioner company had entered appearance before the Authority appointed under the Payment of Wages Act, 1936 for Multan and had presented its case, A it was to look forward instead of loqking back. When the impugned orders were passed against it, it had a remedy upon open to it under section 17 of the Payment of Wages Act, 1936. It would be advantageous to reproduce subsection (1)(a) of section 17 herein.
"17. Appeal.--- (1) An appeal against the direction made under subsection or subsection (4)] of section 15 may be preferred within 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 way of 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. "(Emphasis added)
10. The petitioner company could have raised all factual and legal points before the Labour Court through appeals against the impugned order(s), including the raising of question of jurisdiction assumed by respondent No,2. In the Case of "Muhammad Ishfaq v. State" (PLD 1973 SC 368), it was held by a 4-Judge Bench of the Hon'ble Supreme Court that "it is an equally well-settled principle that if a Court not having jurisdiction wrongly exercises such a jurisdiction, an appeal lies from that decision in the same manner as an appeal lies from a decision with jurisdiction."
11. An impression could not, be dispelled that the petitioner company intended to short-circuit the proceedings and circumvent the provisions of section 17 for the reason that had it taken that route, it was imperative for it to first deposit the amounts awarded to the private respondents with the Authority in terms of proviso to clause (a) of subsection (1) of section 17 of the Payment of Wages Act, 1936. So it chose the easy way out to file the writ petitions.
12. It goes without saying that writ jurisdiction is discretionary in nature and even if the impugned orders are illegal, void, and passed without jurisdiction, this Court is not bound to interfere with the same, as has been held by the august Supreme Court of Pakistan in a chain of judgments. In this regard, reference may well be made to the judgments reported as "Nawab Syed Raunaq Ali etc. v.
Chief Settlement Commissioner and others" (PLD 1973 Supreme Court 236) and "Muhammad Baran and others v. Member (Settlement and Rehabilitation), Board of Revenue, Punjab and others" (PLD 1991 Supreme Court 691).
13. In the case of "Nawab Syea Raunaq All etc. v. Chief Settlement Commissioner and others" (PLD 1973 Supreme Court 236). It was held by the honourable Supreme Court that "An order in the nature of certiorari or mandamus is a discretionary order. Its object is to foster justice and right a wrong. Therefore, before a person can be permitted to invoke this discretionary power of a Court, it must be shown that the order sought to be set aside had occasioned some injustice to the parties. If it does not work any injustice to any party, rather it cures a manifest illegality then the extraordinary jurisdiction ought not to be allowed to be invoked."
14. The above statement of law was reiterated in "Muhammad Baran and others v. Member (Settlement and Rehabilitation), Board of Revenue, Punjab and others" (PLD 1991 Supreme Court 691) as under:- "An order in the nature of certiorari or mandamus is a discretionary order. Its object is to foster justice and right a wrong. Therefore, before a person can be permitted to invoke this discretionary power of a- Court, it must be shown that the order sought to be set aside had occasioned some injustice to the parties. If it does not work any injustice to any party, rather it cures a manifest illegality then the extraordinary jurisdiction ought not to be allowed to be invoked."
15. The observations made in the judgment reported as "Syed Match Company Ltd. Through Managing Director v. Authority under Payment of Wages Act and others" (2003 SCM R 1493) are instructive and worth reproducing. In this case also, a company had filed writ petition, rather than filing an appeal under the Payment of Wages Act, 1936. It was held by The apex Court that
5. It appears that in order to avoid to" deposit the amount as determined by the Authority, instead of filing appeals, the Company filed the petitions before High Court, which were dismissed by the Common judgment, which has been impugned in these petitions.
6. Learned High Court, while dismissing the petitions has held that purpose of Article 199 of the Constitution is not to nullify the effect of a legislative provision or to make it ineffective.
(Emphasis added).
7. It is contended on behalf of the Company that learned High Court failed to appreciate the facts in their true perspective and reached wrong conclusion. It is urged that where there is complete lack of jurisdiction or order is passed by a Court/Authority exceeding its jurisdiction or where the impugned order is unlawful, the writ could be entertained. Learned counsel also argued that gratuity is specifically excluded from the term "wages", as defined in section 2(ii) of the Act, therefore, the claim of gratuity could not be looked into by the respondent No,1 and by doing so the respondent No,1 exceeded its jurisdiction, as such, said order could be impugned before High Court without preferring the appeal. Further, it is urged that these cases were not of any deduction made from the wages, but at the most the same could be termed as cases of delay in payment of wages. In support of above, he cited the cases reported as (1) Lt.-Col. Nawabzada Muhammad Amir Khan v. The Controller of Estate Duty and others (PLD 1961 SC 119), (2) Pakistan through Secretary, Ministry of Defence v. The General Public (PLD 1999 SC 6), (3) Raja Muhammad Ramzan and 47 others v. Zila Council, Attock and another (PLD 1992 Lahore 324), (4) Town Committee, Gakhar, Gujranwala v. Sala .Mat Bhatti and 57 others (1993 PLC 156), (5) Talpur Textile Mills Ltd. v.
The Authority under Payment of Wages Act, Directorate of Labour Welfare Hyderabad and another (1996 PLC 610), (6) Abdul Karim v. Chairman, Punjab Labour Appellate Tribunal, Lahore and 3 others (1997 PLC 481), (7) United Business Lines, S.1.E., Gujranwala and another v. Government of Punjab through Secretary, Local Government, Lahore and 5 others (PLD 1997 Lahore 456), (8)
Abdul Kasim v. Chairman, Punjab Lahore Appellate Tribunal and others (1998 PLC 68), (9)
Municipal Corporation, Sialkot through the Administrative v. Younis Masih and others (1998 PLC 336), (10) Gatron (Industries) Limited v. Government of Pakistan and others (1999 SCMR 1072), (11)
Chairman, Central Board of Revenue, Islamabad and 3 others v. Messrs Pak-Saudi Fertilizer Ltd.
(2000 PTD 3748), (12) Chief Engineer, AEB v. Commissioner for Workmen's Compensation Authority (200 PLC (C.S.) 1082).
8. These are not the cases of lack of complete jurisdiction nor could be termed as make fide. First appeal is a continuation of suit/application and factual controversy can only be resolved after sifting the evidence brought on record. It is not the discretion of a party to ignore the provisions of appeal and file Constitutional Petition instead. Even, if it is assumed for the sake of arguments that the claim of the respondents was on higher side, yet, for this reason alone it could not be asserted . That the respondent No,1 had no jurisdiction in the matter. In various cases, this court has discouraged the tendency to bypass the remedy provided under the relevant statute and to press into service Constitutional jurisdiction of High Court. It is, however, true that in certain cases resort to Constitutional jurisdiction of High Court instead of availing remedy provided under the statue, may be just but no such material is available on record for ignoring the remedy provide under section 17 of the Act.. It is noted that Payment of Wages Act is primarily a beneficial legislation and has been enacted to provide relief to the workers, as such, it could not be construed otherwise.
Such construction could not be placed upon its provision, which directly or indirectly nullify the object of its legislation. Remedial statutes shall always be construed in a manner to advance the remedy, as provided in the statute and not in a manner to defeat the legislative intendment. The writ petitions in these cases were filed to defeat the proviso (a) of subsection (1) of section 17 of the Act quoted above:
9. Learned High Court in the last para of the impugned judgment observed as follows:--- "However, in order to meet the ends of justice we observe that the petitioner-Company shall be at liberty to file an appeal in the appropriate forum and time spent by the petitioner-Company in this court shall be excluded from the computation of the period of limitation prescribed in the law"
10. We are of the view that in order to nullify the effect of section 17(1) (a) of the Act, the jurisdiction of High Court was invoked and it was mala fide. The amount, determined by the respondent No,1 as wages, was never deposited by the petitioners. Accordingly, we set aside the above quoted observations of High Court and leave it to the appropriate Forum/Appellate Authority to decide the issue of limitation on merits having taken into consideration all the circumstances of these cases. In fact, High Court had no justification to pre-empt the decision of the First Appellate Court on the point of limitation."
16. Since alternative remedy was available to the petitioner company under the Payment of Wages Act, 1936, the above noted writ petitions are not maintainable. They are therefore, dismissed without any order as to costs.