C.M . No, 7330 of 2017 MUZAMIL AKHTAR SHABIR, J.----This is an application for restoration of the main petition which was dismissed for non-prosecution vide order dated 26.10.2017.
2. For the reasons recorded in the application, which is supported by an affidavit, the same is allowed and the main case is restored to its original number.
3. With the consent of the parties, the main case is taken up for hearing today.
M ain case
4. Through this constitutional petition, the petitioner has called in question the order dated 19.02.2014 passed by Punjab Labour Appellate Tribunal-II, Multan whereby revision petition filed by the petitioner against the order of the Labour Court was dismissed.
5. The brief facts of the case are that the petitioner is a private limited company. Respondent No,3 who claims to be the sale supervisor of the petitioner company, filed an application under section 15 of the Payment of Wages Act, 1936 ("Act") before the authority under the said law and sought payment of his outstanding wages and compensation by alleging therein that his services were wrongly terminated by the petitioner company on 15.03.2009. The said petition was finally allowed on 25.08.2011 whereby the concerned authority directed the petitioner company to deposit an amount of Rs,2,31,831/- as salary, etc. along with onetime compensation amounting to Rs,4,63,622/- within 30 days in the court. The petitioner thereafter filed an application for recalling the order dated 25.08.2011 which was dismissed on 10.07.2011 by the authority. The petitioner company feeling aggrieved of the said order filed an appeal before the Labour Court, Multan which was dismissed on 12.12.2012 as barred by time. Thereafter the petitioner filed a revision petition before the Punjab Labour Appellate Tribunal which has been dismissed vide order dated 19.02.2014. The aforesaid orders are under challenge through this constitutional petition.
6. Learned counsel for the petitioner has argued that during pendency of the proceedings before the authority under the Act, the petitioner appeared in the court and filed an application for dismissing the complaint filed by respondent No,3 but the learned Presiding Officer was transferred and new Presiding Officer was appointed after lapse of two and half months whereas the petitioner did not attend the court as the staff of the court had informed the petitioner that whenever new officer takes charge, the petitioner would be informed through notice. However, without informing the petitioner through notice, in his absence the court had decided the matter against the petitioner. An application for recalling the said order was also dismissed and appeal and revision against the said. order before the higher forums has met the same fate. However, it is argued that as the petitioner was not served through notice before passing of the order, therefore, the said order is liable to be set-aside.
7. On the other hand, learned counsel for respondent No,3 has argued that if it be presumed that order by the authority was passed in the absence of the petitioner even then the appeal filed by the petitioner could not proceed as the petitioner had not complied with the condition of deposit of the entire amount with the authority before filing of appeal provided under section 17 of the Act.
Besides the said appeal was also time barred. Even otherwise, the revision filed before the revisional court was barred by time whereas the petitioner had knowledge of decision of the appeal, therefore, he is not entitled to any relief.
8. Heard. Record perused.
9. Initially the respondent No, 3 filed a petition under section 15 of the Act before the concerned authority seeking payment of wages and compensation for his wrongful dismissal in which the petitioner filed an application for dismissing the complaint, however, in the absence of the petitioner the complaint was decided against the petitioner and in favour of the respondent No,3.
An application for recalling the said order was dismissed. An appeal against the same was dismissed in the presence of the petitioner as time barred by the Labour Court. Even the revision filed there-against was dismissed as barred by time by the Labour Appellate Court. Not only the appeal was barred by time, the same was not accompanied by a certificate required under the proviso attached to section 17 of the Act, that the amount determined by the Authority had been deposited, which is a condition precedent for filing the appeal. The section 17 of Payment of Wages Act, 1936 is reproduced below: "17. Appeal.---(1) An appeal against the direction made under subsection (3) 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
(b) ..................................................................................................
(c) ..................................................................................................
(emphasis supplied)
From the perusal of the afore-mentioned provision of law it is very much crystal clear that prior to filing of an appeal against the order of Authority whereby the application is allowed, the aggrieved party is required to deposit the decretal amount before Authority and get issued certificate to that extent. The provisions of the afore referred proviso to Section 17(1)(a) is mandatory and the non- compliance of the same would result into dismissal of the appeal. Reliance in this behalf is placed on Tehsil Nazim TMA, Okara v. Abbas Ali and 2 others (2010 SCM R 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(I)(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 Haii Sheikh Noor Din and Sons v. Muhammad Fayyaz and 2 others 2006 PLC 623.
9. Learned counsel for the petitioners had failed to distinguish the aforesaid 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)
The condition of deposit of amount with the authority was mandatory and non-deposit of the same has rightly resulted into dismissal of the appeal filed by the petitioner. The learned appellate court as well as revisional court have dismissed the appeal and revision as barred by time and observed that no cogent reason had been mentioned in the application for condonation of delay.
Even today although the learned counsel for the petitioner has vehemently argued that the order of the appellate and revisional courts is not sustainable in the eye of law but no convincing reason, whatsoever, has been put forward that why the appeal and revision petition had been filed with delay when the order passed by the authority and the appellate court was well within the notice of the petitioner. Moreover, delay of each and every day has to be explained by the petitioner which has not been done. Reliance in this regard is placed on the judgments reported as Qaisar Mushtaq Ahmad v. Controller of Examinations and others (PLD 2011 SC 174) and Lt. Col. Nasir Malik v.
Additional District Judge, Lahore and others (2016 SCM R 1821).
10.For what has been discussed above, no ground to interfere in the order of the Appellate court is made out. The petition being devoid of any merits is dismissed.
C.M . No,7518 of 2017 11.As the main petition has been dismissed today, therefore, this application has become infructuous. Disposed of accordingly.