' The petitioner who is a private limited company registered under the Companies Act, 1913 had employed respondent No, 3 Fateh Khan as a Chowkidar in 1972. His services were however terminated w,e,f, 12th July, 1978, since he was no longer required. He was paid all his dues at the time his services were terminated. The respondent No, 3 filed an application before the Sind Labour Court No, IV under Section 25-A of the Industrial Relations Ordinance, 1969, on 1st January, 1979, claiming his wages and other dues. The Labour Court dismissed the application on the ground that Chowkidar was not a workman under the Ordinance and that the application was time barred.
Thereafter the respondent No, 3 filed an application before the Authority under Payment of Wages Act, 1936, the respondent No, 2 in respect of his claim. The petitioner refused to accept the notice from respondent No, 2 in the proceedings as a result that an ex parte order was passed against him on 16th April, 1980 for the claim of respondent No, 3 amounting to Rs, 5,307.80. The petitioner moved an application before the respondent No, 2 for setting aside the ex parte order but the same was dismissed. The petitioner then filed an appeal before the Sind Labour Court No, IV respondent No, 1, but it was also dismissed vide order dated 3rd August, 1980, on the ground that the petitioner had been grossly negligent in prosecuting his remedy and complying with the directions of the Court. The petitioner now has come in this petition for a declaration that the impugned orders dated 16th April, 1980 passed by respondent No, 2 and 3rd August, 1980 passed by respondent No, 1 are without lawful authority and of no legal effect.
2. Mr. Tariq the learned counsel has been heard for the petitioner, whereas the respondent No, 3 has been heard in person as he is unrepresented. The learned counsel for the petitioner has raised two-fold contention: firstly, that the petitioner is neither the 'factory' within the meaning of the Payment of Wages Act as defined -in clause (2) of the Factories Act 1934, nor the respondent No, 3 is a "workman" within the meaning of Factories Act, 1934, and secondly,' that the ex parte proceedings taken by the respondent No, 2 were illegal and unwarranted by the provisions of the C.
P. C. And therefore the impugned orders were illegal and without lawful authority. In support of his first contention he has drawn my attention to the definition of 'factory' as defined in clause (j) of section 2 of the Factories Act, 1934, which reads as under :- "Factory" means any premises, including the precincts thereof, whereon ten or more workers are working, on any day of the preceding 12 months, and in any part of which a manufacturing process is being carried on or is ordinarily carried on with or without the aid of power, but does not include a. Mine, subject to the operation of the Mines Act, 1923 (IV of 1923)."
' He has contended that since the petitioner's factory was closed since 1976, it cannot be termed as 'factory' within the meaning of the above mentioned definition as envisaged by section 2(1) of the Payment of Wages Act. In support of his contention that the 'factory' was closed for preceding 12 months he has relied on sole affidavit of the petitioner for the first time in this petition. He failed to raise this contention either in the original proceedings before the respondent No, 2 Payment of Wages Authority, or in appeal before the Labour Court, respondent No, 1 with the result that no evidence was led by either of the parties in support or otherwise of the contention which is being raised for the first time at this belated stage in this petition. I, therefore, find no material worth consideration on the record in support of this contention raised on behalf of the petitioner. In support of the contention that the respondent No, 3 is not a 'worker' within the meaning of the Factories Act, he has referred to the definition of 'worker' as defined in section 2(h) of the Factories Act, 1934, which reads as under :- "Worker" means a person employed directly or through an agency whether for wages or not, in any manufacturing process, or in cleaning any part of the machinery or premises used for a manufacturing process, or in any other kind of work whatsoever, incidental to or connected with the subject of manufacturing process but does not include any person solely employed in a clerical capacity in any room or place where no manufacturing process is being carried on."
Chowkidar has not been specifically excluded from the definition of a `worker' though anybody solely employed in a clerical capacity has been so excluded. 'Worker' is defined to be a person employed in any kind of work whatsoever, incidental to or connected with the subject of the manufacturing process, and in my view chowkidar cannot be excluded from the definition of a 'worker' as his services would be essential to the working of the factory and incidental to the process undertaken in the factory itself. It would also be pertinent to point out that the contention in that respect is being raised for the first time in this petition when it was not raised even before the appellate Court, the respondent No, 1 where the petitioner appears to have seriously contested the matter which resulted in the dismissal of his appeal. I would, therefore, find no force in this contention also raised on behalf of the petitioner.
3. As regards the second contention raised on behalf of the petitioner to the effect that the ex parte proceedings taken against the petitioner were illegal and unwarranted by the C. P. C., there is finding of the respondent No, 2 to the effect that the petitioner refused to accept the notice and failed to appear as a result that the ex parte proceedings were taken. In appeal respondent No, I examined the contention in that respect and ultimately dismissed the appeal on the ground that the petitioner was grossly negligent in prosecuting its remedy and respondent No, 2 was justified taking ex parte proceedings in the matter. The learned counsel for the petitioner on the basis of section 18 of the Payment of Wages Act has contended that the ex parte proceedings were not taken exactly in accordance with the provisions of C. P. C. And were, therefore, legally unjustified.
This contention is also not tenable. Firstly, for the reason' that the authority under subsection (I) of section 15 is not a full-fledged Civil Court under C. P. C. But is so only for the purpose of taking evidence. Enforcing the attendance of the witnesses and compelling the production of the documents in accordance with the relevant provisions of the Code; and secondly, that finding to this effect cannot be challenged in this petition in view of the fact that two Courts below have given concurrent finding in that respect. In my view, therefore, this contention of the learned counsel for the petitioner is also without substance.
4. In the result, this petition is dismissed with casts.