This single consolidated order shall dispose of constitutional petitions bearing numbers W.P.No.1156/2017, W.P.No.1157/2017 and W.P.No.1158/2017 as common questions of fact and law are involved.
2. These constitutional petitions challenge orders dated 01.03.2016 passed by Punjab Labour Appellate Tribunal No.2, Multan whereby three revision petitions filed by petitioner against judgments dated 13.11.2015 of Punjab Labour Court No.IX, Multan were dismissed and orders dated 12.05.2015 directing payment of salaries to private respondents passed the Authority under Payment of W ages Act, Khanewal were upheld.
3. The brief facts are that private respon dents being employees, filed applications containing therein claims for payment of wages / salaries under Section 15 (2) and 16 of the Payment of Wages Act, 1936 against the employers, Abdullah & Sons and Abdullah Textile Mills, Mian Channu. The said claims were allowed by the Authority under Payment of Wages Act on 12.05.2015 and awarded amounts of Rs.467,198/-, Rs.836,432/- and Rs.21,861,462/- with compensation to the respondents, respectively . The present petitioners as employers challenged the orders dated 12.05.2015 before the Punjab Labour Court No.IX, Multan. The Punjab Labour Court dismissed the appeals filed by petitioner on 13.11.2015 as the appeals were not accompanied by certificates of authority to the effect that the amounts directed to be paid had been deposited with it. The orders passed by the Punjab Labour Court were challenged by petitioner before the Punjab Labour Appellate Tribunal in its revisional jurisdiction which were also dismissed on 01.03.2016. The petitioners were then served with notices on 10.08.2016 issued by Additional District Collector , Khanewal for the recovery of payable amounts mentioned above.
4. Through these constitutional petitions, the petitioners have challenged the orders dated 01.03.2016 passed by Punjab Labour Appellate Tribunal No.2, Multan, order of Punjab Labour Court Multan No.IX dated 13.11.2015 and recovery notices served by the Additional District Collector dated 10.08.2016.
5. The learned counsel for petitioner has relied upon "Arag Industries Ltd. v. Payment of Wages Act Authority , etc. (1982 PLC 567) and argued that the Punjab Labour Court and Punjab Labour Appellate Tribunal were not justified to dismiss the appeal on the ground that the payable amount has not been depo sited with the authority and the courts below should have considered the questions of law and facts raised by the petitioner and decided the matter on merits. The questions regarding claim being based on fabricated documents, some of the respondents not being workmen and some others already having received wages have also been raised before this Court.
6. The learned AG has supported the orders passed by the courts below and has argued that under the law appeals unaccompanied by certificates of deposit of payable amount are not maintainable.
7. The Authority under the Payment of Wages Act had allowed the claims of the respondents on the basis of evidence available on the record. The petitioner challenged those orders in appeals, which were dismissed as not maintainable for non-compliance of condition for obtaining certificate showing deposit of payable amount. In order to determine the question of maintainability of appeals before the Labour Court Section 17(1)(a) of the Payment of Wages Act, 1936 has to be seen which reads as under: "17. Appeal.--(1) An appeal against the direction made under [sub section (3) or sub-section (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 appe llant has deposited with the authority the amount payable under the direction appealed against, or]
(b) ........................................................
(c) ........................................................ "
(emphasis supplied )
8. The proviso declares that appeal shall not lie without certificate of deposit of payable amount. Rule is that where any provision couched in negative language requires an act to be done in a particular manner then it should be done in that manner as required by the statute otherwise such act will be illegal. Reliance is placed on "Chaudhry Shujat Hussain v. The State (1995 SCMR 1249 ). In "Allied Bank of Pakistan Ltd v. Khalid Farooq (1991 SCMR 599) it has been held that "if the requirements of a statute which prescribes the manner in which something is to be done are expressed in negative language, i.e. if the statute enacts that it shall be done in such a manner and in no other manner , those requirements are in all cases absolute, and neglect to attend to them will invalidate the whole proceedings ". Keeping in view the criteria laid down in the afore-referred judgments, it is held that the proviso to the Section 17(1)(a) of the Payment of Wages Act is mandatory and appeal without observation of the same is not maintainable..
9. Section 17(1)(a) of the afore-referred Act came into consideration before the Hon'ble Supreme Court of Pakistan in judgment "Tehsil Nazim TMA, Okara v. Abbas Ali and 2 others (2010 SCMR 1437 ), wherein following observations were made: "7. We have given our anxious consideration to the contentions of learned counsel for the parties and have perused the record. The objection with regard to jurisdiction was rejected by the Authority as evident from the contents of the orders passed by the Authority in terms of section 2(6) of Labour Laws Amendment Ordinance, 2001. Petitioner being aggrieved filed three appeals before the Labour Court No.3 Ferozewala in violation of conditions prescribed under section 17 (1)(a) which contained following proviso:-- "Provided that no appeal under this clause shall lie unless the memorandum of appeal is accompanied by certificate of the authority to the effect that the appellant has deposited with the authority the amount payable under the direction appealed against."
8. Mere reading the aforesaid provision of law clearly envisages that it is condition precedent that petitioner has to file certificate along with certificate of payment which is mandatory in nature. Without compliance of the parameters and conditions prescribed in proviso of section 17(1)(a) appeals filed by the petitioner were not competent/maintainable which were rightly dismissed by the First Appellate Court and approved by the learned High Court in the impugned judgment. The order of the first Appellate Court and the impugned judgment are in consonance with the law laid down by this Court in various pronouncements. See Syed Match Company Ltd. v.
Authority under Payment of Wages Act and others 2003 SCMR 1493 , Mughal Surgical (Pvt.) Ltd. and others v.
Presiding Officer , Punjab Labour Court No.7 and others 2006 SCMR 590 and Haji Sheikh Noor Din and sons v.
Muhammad Fayyaz and 2 others 2006 PLC 623 .
9. Learned counsel for the petitioners had failed to distinguish theaforesaid precedents relied upon by the learned High Court in the impugned judgment. Even otherwise, as mentioned above, the order of the first Appellate Court and impugned judgment of the High Court are in consonance with the aforesaid provisions of Payment of Wages Act. Once the condition of Precedent was not fulfilled then the appeals filed by the petitioner before the first Appellate Court were not competent. " (emphasis supplied )
10. As per the proviso to Section 17(1)( a) of the Payment of Wages Act, 1936 , the petitioner had to obtain a certificate of the Authority to the effect that the petitioner has deposited the amount payable under the order against which the appeals were filed. Such certificate was not placed on record of the Labour Court No.9, Multan. The legislature has provided this beneficial provision to safeguard the rights of the workmen. The intention of the legislature is that in case the Labour Court dismisses the appeal filed by the employer , the wages to which the workers are held entitled, be made available with the authority , for payment to them. The perusal of said proviso shows that its compliance by the party filing appeal is mandatory and its non compliance debars the further hearing of the appeal.
11. The counsel for petitioner argued that after the 18Amendment of the Constitution of Pakistan, the Labour laws have become provincial subject and, therefore, the Payment of Wages Act is no longer applicable and Labour Court could not have dismissed the appeal by placing reliance on proviso of Section 17 (1)(a) of the Payment of Wages Act, 1936. The subjects of Labour laws were provided under entries 26, 27, 28 and 30 of the concurrent list prior to 18 Amendment of the Constitution which are reproduced as under:- "26. Welfare of labor; conditions of labor, provident funds; employer's liability and workmen's compensation, health insurance including invalidity pensions, old age pensions.
27. Trade unions; industrial and labor disputes.
28. The setting up and carrying on of labor exchanges, employment informat ion bureaus and training establishments.
29. .............................
30. Regulation of labor and safety in mines, factories and oil fields."
12. The 18 Amendment does not provide that the existing laws relating to subjects earlier falling under the Concurrent Legislative List that fall within the domain of provincial legislature after 18 Amendment would cease to hold the field. Rather the said laws were saved under Article 270AA. The provincial legislature may alter, repeal or amend those laws, if need be. For reference Article 270AA (6) is reproduced below for reference:- "270AA.Declaration and continuance of laws etc.:-...........
(6) Notwithstanding omission of the Concurrent Legislative List by the Constitution (Eighteenth Amendment) Act, 2010, all laws with respect to any of the matters enumerated in the said List (including Ordinances, Orders, rules, bye-laws, regulations and notifications and other legal instruments having the force of law) in force in Pakistan or any part thereof, or having extra-territori al operation, immediately before the commencement of the Constitution (Eighteenth Amendment) Act, 2010, shall continue to remain in force until altered, repealed or amended by the competent authority ." (emphasis supplied ).
13. The Punjab Payment of Wages Act (Amendment) Act, 2014 was notified on 19 of March, 2014 wherein certain amendments have been made in the Payment of Wages Act, 1936. Section 17 of the Act of 1936 has also been amended vide Section 10 of Amendmen t Act, 2014. The relevant portion of the Amendment Act of 2014 is as under: "1. (1) This Act may be cited as the Punjab Payment of Wages (Amendment) Act, 2014.
(2) It shall come into force at once.th th th th th
2. Amendment in Act IV of 1936. --In the Payment of Wages Act, 1936 (IV) of 1936), herein after referred to as the said Act, for the words "Provincial Government", wherever occur , the word "Government" shall be substituted.
3. Amendment in section 1 of Act IV of 1936. --in the said Act, in section 1 --
(a) in subsection (2), for the word "Pakistan", the words "the Punjab" shall be substituted; and
(b) in subsection (3), the word "Federal" shall be omitted.
4. .................................
5. .................................
6. .................................
7. .................................
8. .................................
9. ..................................
10. Amendment in section 17 of Act IV of 1936. -- In the said Act, in Section 17, in subsection (1) --
(a) for the words, comma, figures and brackets "Industrial Relations Ordinance, 1969 (XXIII of 1969)", the words, comma, figures and brackets "Punjab Industrial Relations Act, 2010 (XIX of 2010)" shall be substituted;
(b) in clause (a), for the words "three hundred", the words "ten thousand" shall be substituted; and
(c) in clause (b), for the word "fifty", the words "five hundred" shall be substituted."
14. While making the afore-referred amendments, the Provincial Legislature has retained the proviso to Section 17(1)(a) and the same continues to hold the field. The proviso to Section 17(1)(a) of the Payment of Wages Act is still a valid and existing law in view of Article 270AA (6) of the Constitution of Pakistan. The argument of learned counsel for petitioners that after the 18 amendment, the appeals could not have been dismissed by non- observance of the condition prescribed in the said proviso is without any lawful basis and is repelled.
15. The counsel for petitioners argued that in view of Article 10A of the Constitution incorporated through 18 Amendment, the Labour Court cannot refuse to entertain the appeal even in the absence of payment certificate.
The right of fair trial is subject to fulfilling the precondition prescribed by law for filing the appeal. Article 10A has to be read along with Article 4 of the Constitution. Article 10A provides as under: "For the determination of his civil rights and obligations or in any criminal charge against him a person shall be entitled to a fair trial and due process ".
(emphasis supplied )
16. Sub-Articles (1) and (2)(a) of Article 4 of the Constitution provide as under: "(1) to enjoy the protection of law and to be treated in accordance with law is the inalienable right of every citizen, wherever he may be, and of every other person for the time being within Pakistan .
(2) (a) no action detrimental to the life, liberty , body , reputation or property of any person shall be taken except in accordance with law ." (emphasis supplied )
17. Undoubtedly , Article 10A of the Constitution ensures a fair trial and due process but where fair trial and due process is subject to a condition or pre-qualification prescribed by law, then first that condition or pre-qualification is to be met with, thereafter the matter may proceed further. This is in accordance with mandate of sub-Article (1) and (2)(a) of Article 4 of the Constitution wherein it is clearly provided every person is to be treated in accordance with law and detrimental action may be taken against any person in accordance with law. Reference may be placed on Bank Alfalah Limited v. Syed Zulfiqar Ali Rizvi and 3 others (2016 CLD 618) wherein the matter relating to grant of leave to defend in banking suits came into consideration in relation to Article 10A of the Constitution and the court reached to the conclusion that the petitioner, for seeking fair trial and due process had to first make out a case for grant of leave to defend in accordance with the procedure prescribed by law.
18. The law has provided for placing certificate on payment with the appeal. It is a settled law that where law required an act to be done in a particular manner it had to be done in that manner alone and such dictate of law could not be termed as a mere technicality . Reliance is placed on Shahida Bibi v. Habib Bank Limited (PLD 2016 SC 995 = 2016 CLD 2025 ). In Zia ur Rehman v. Syed Ahmad Hussain (2014 SCMR 1015 ) the Hon'ble Supreme Court of Pakistan has held that if law requires a particular thing to be done in a particular manner , it had to be doneth th accordingly , otherwise it would be non-compliance with the legislative intent. In the present case, as the condition for filing of payment certificate is mandatory , therefore, without placing such certificate on record, the appeals filed by petitioners were not maintainable.
19. While relying upon the judgment of Hon'ble Supreme Court of Pakistan in Tehsil Nazim TAM, Okara' s case (supra) it is observed that the Labour Court as well as Labour Appellate Tribunal have rightly dismissed the appeals filed by petitioner for non-observance of proviso to Section 17(1)(a) of the Payment of Wages Act, 1936. No illegality or perversity has been pointed out in the orders passed by Punjab Labour Court No.IX, Multan and Punjab Labour Appellate Tribunal No.2, Multan whereby those orders could be declared to be without lawful authority and of no legal ef fect.
20. For what has been discussed above, the constitutional petitions bearing numbers W.P.No.1156/2017, W.P.No.1157/2017 and W.P. No.1 158/2017 being devoid of merits are dismissed .