' SHAHID KARIM, J.--- The Constitutional petition lays a challenge to the warrants of arrest issued against him by the respondent No,2, Tehsildar/Assistant Collector 1st Class, Lahore on 7-12-2013.
' Suffice to say that the warrants have been issued as a step for the recovery of an amount of Rs,5,41,697 (cumulatively) determined by the Commissioner Compensation/Authority under Payment of Wages Act, 1936, (The Act) vide order dated 13-11-2012 on applications of claim filed by the respondents Nos.6-8. The respondent in those applications was Chairman, New Khan Metro Bus Service, Lahore.
2. Learned counsel for the petitioner submits that Shahrez Abdullah Khan Rokhri is not the Chairman of the New Metro Bus Service, 55 Lawrence Road, Lahore and the warrant of arrest has been issued without lawful authority and without making an inquiry as to the ownership of the New Metro Bus Service. He submits that as per his information and upon instructions he can state that the shares of the company against which the liability had been determined by the court of Commissioner Compensation/Authority under Payment of Wages Act, Lahore dated 13-11-2012, had already been disposed of by the erstwhile Chairman, Mr. Aamir Hayat Khan Rokhri, who has since died. He submits that the petitioner has no relation with the company and is neither a share holder nor Director of the company and therefore, proceedings for recovery of amount cannot be initiated or commenced against the petitioner.
3. Learned counsel for the respondents Nos.6 to 8 submits that the proceedings have been initiated in accordance with law and since the recovery is to be effected against the company, the owners/Directors are liable to make over the amount ordered vide order dated 13-11-2012.
4. Learned A.A.-G. Has submitted that since there is an order by the Commissioner Compensation/Authority under Payment of Wages Act, Lahore and it has to be enforced as arrears of land revenue, therefore, the said warrants of arrest have been issued by the Assistant Collector/Tehsildar, Lahore with lawful authority.
5. Be that as it may, the question relates to the true construction of the term employer as used in the Act, and against whom an order passed on an application filed under section 15 of the Act can be enforced. The policy and tenor of the act can be culled out from a reading of the whole Act and more specifically those provisions which deal with enforcement of orders made under the Act.
There is no cavil that the said order has to be implemented yet it has to be implemented only against the 'employer or other person' responsible for the payment of wages under section 3 of the Payment of Wages Act, 1936. Section 3 of the Act falls to be noted and is engaged as the foundational basis for any determination of the issue. The said provision delineates the responsibility for payment of wages and to the extent relevant for our purpose is as follows:- Responsibility for payment of wages.--- Every employer [including a contractor] shall be responsible for the payment to persons employed by him of all wages required to be paid under this Act: ' Provided that, in the case .Of persons employed (otherwise) than by a contractor)---
(a) in factories, if a person has been named as the manager of the factory under clause (e) of subsection (1) of section 9 of the Factories Act, 1934 (XXV of 1934),
(b) in industrial establishment, if there is a person responsible to the employer for the supervision and control of the industrial establishment, ' The respondent in the order dated 13-11-2012 was an industrial establishment as defined under section 2(ii) of the Act. By section 3(b), therefore it is the person responsible to the employer for the supervision and control of the industrial establishment who owes the responsibility for payment of wages. In this regard the provisions of section 15(5) would come into play and for facility is reproduced as under:-- "Any amount directed to be paid under this section may be recovered---
(a) if the authority is a Magistrate by the authority as if it were a fine imposed by him as Magistrate; and [(b) if the authority is not a Magistrate, by the authority as an arrear of land revenue, or in the prescribed manner, by the authority distress and sale of the movable property belonging to the person by whom the amount is to be paid, or by attachment and sale of the immovable property belonging to such person.
The crucial words are. 'person by whom the amount is to be paid' and this has to be juxtaposed and read with section 3 which delineates the persons responsible for payment of wages. It is, therefore, obligatory upon the Commissioner Compensation/Authority under Payment of Wages Act, Lahore to determine as a threshold question against whom the proceedings for recovery have to be initiated and set into motion. For the purpose he should make inquires regarding the current ownership and shareholders of the New Metro Bus Service Ltd. Lahore. As stated above, it is either the employer or other person responsible for payment of wages who can be proceeded against and this has to be determined as a fact before embarking upon recovery proceedings under section 15(5) of the Act. Clearly the said provision gives the power of attachment and sale of immovable property of the employer which in this case is the company.
6. In view of above the warrants of arrest dated 7-12-2013 issued by the Assistant Collector/Tehsildar Lahore are set aside. The case is remanded back to the Commissioner Compensation/Authority under Payment of Wages Act, Lahore for determination of the issue regarding the identity of the employer or other person responsible for payment of wages of the New Metro Bus Service Company Lahore against whom proceedings for the recovery can be initiated. He shall for the purpose hear the petitioner before passing any order and make inquiry regarding the status of the petitioner with regard to the said company. The said process shall be completed by the Commissioner Compensation/ Authority under Payment of Wages Act within a period of one month or sooner from the receipt of a certified copy of this order positively and after such determination may proceed for the recovery of the amount determined vide his order dated 13-11-2012. An amount of Rs,1,46,166 had been deposited by the petitioner with the Deputy Registrar (Judi.) of this Court in pursuance of the order of this Court dated 17-3-2014. The said amount shall be remitted to the Commissioner Compensation/ Authority under Payment of Wages Act by way of security on the part of the petitioner and shall be at the Authority's disposal if the decision is made by him. Needless to mention here that the said amount shall be reimbursed to the petitioner in case he is not found liable for the payment of the amount.
' In view of above, this petition is accepted.