ABID AZIZ SHEIKH, J. This judgment will also decide Writ Petitions No.1437/2015, 1438/2015, 1439/2015, 1440/2015, 1441/2015 and 15934/2015 as common questions of law and facts are involved in all these constitutional petitions.
2. Facts which are common in all these petitions are that petitioner (in all these petitions) is a company engaged in manufacturing of hosiery products (hereinafter refer to as petitioner). The private respondents in all these writ petitions are employees of the petitioner (hereinafter refer to as respondents). The respondents on 15.08.2012 filed separate applications before the Authority under the Payment of Wages Act, 1936 (Authority), for payment of their dues outstanding against the petitioner. In response, the petitioner appeared on 31.12.2012 and cases were adjourned to 08.01.2013 for filing of written replies, however, on 08.01.2013, power of attorneys were filed and the cases were adjourned for filing of replies on 16.01.2013. On said date, replies were not filed, hence petitioner's right to defend was closed and all cases were adjourned for recording of evidence on 19.01.2013. Finally after recording of evidence and verbal arguments, the applications filed by respondents were allowed by the Authority through separate impugned orders dated 29.01.2013.
The petitioner (in all these petitions except in W.P. No.1441/2015) being aggrieved filed appeals before learned Punjab Labour Court, however, the same were dismissed through separate impugned orders dated 17.05.2013 for failure to deposit the decretal amount, as required under proviso to section 17(1)(a) of the Payment of Wages Act, 1936 (Act). The petitioner being aggrieved of the aforesaid orders has filed constitutional petitions No.1437, 1438, 1439 and 1440 of 2015 whereas Writ Petition No.1441 of 2015 was filed directly without availing remedy of appeal.
Subsequently petitioner also filed Writ Petition No.15934/2015 challenging the vires of section 17(1)
(a) of the Act.
3. Learned counsel for the petitioner submits that proviso to section 17(1)(a) of the Act, whereby the petitioner was required to deposit the entire decretal amount determined by the Authority for filing of appeal, is against Article 2-A and 227 of the Constitution of Islamic Republic of Pakistan, 1973 (Constitution) and the law settled by the learned Full Bench of this Court in M/s Chenab Cement Product Pvt. Ltd. and others vs. Banking Tribunal Lahore and others (PLD 1996 Lahore 672). He further submits that after the 18th Amendment in the Constitution, the payment of wages, being a provincial subject, the Act was to be adopted by the provincial legislation under Article 270-AA of the Constitution by 13.06.2011. Submits that the Punjab Payment of Wages (Amendment) Act, 2014 (Amendment Act), was introduced on 19.03.2014, therefore, the impugned orders passed by the Authority on 29.01.2013, are not under the valid law being already repealed after cut off date i.e. 13.06.2011. He further submits that not only the claims of respondents were barred by time but even the petitioner was not given fair hearing and opportunity to defend the cases, therefore, the impugned orders are not sustainable.
4. The learned counsel for the respondents on the other hand supported the impugned orders. The learned Law Officers also defended and supported the impugned legislation.
5. Arguments heard. Record perused. Section 17 (1) (a) of the Act provides appeal before the learned Labour Court against the order passed by the Authority. For convenience, section 17(1)(a) of the Act is reproduced hereunder:- "17. Appeal.- (1) An appeal against a 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 [Punjab Industrial Relations Act, 2010 (XIX of 2010)] 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 [ten thousand] 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]"
Plain reading of proviso to section 17(1)(a) of the Act manifests that no appeal under section 17 of the Act 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. In these petitions admittedly the petitioner neither deposited the amount payable as directed by the Authority nor appended with the appeals the required certificates. In the circumstances the learned Appellate Court has lawfully dismissed the appeals filed by the petitioner vide separate orders dated 17.05.2013.
6. The argument of the learned counsel for the petitioner that proviso to section 17(1)(a) of the Act is unconstitutional being a clog on the right of appeal, has no force, in view of law already settled by the august Supreme Court as well as by this Court on the subject. The august Supreme Court in Mughal Surgical (Pvt.) Ltd. and others vs. Presiding Officer, Punjab Labour Court No.7 and others (2006 SCMR 590), in response to argument that proviso to section 17 (1) (a) of the Act is a clog on the right of the petitioner, held as under:- "10. Reliance had been rightly placed by the learned Judge in Chamber on the case of Syed Match Company Limited 2003 SCMR 1493 by distinguishing the same from other cases decided by this Court on the ground that the Payment of Wages Act, 1936 was a law which had been enacted for the benefit of the workmen and had to be interpreted and applied in the spirit which had led to the enactment of the said law. The judgments cited by the learned Advocate Supreme Court were the judgments arising out of enactments other than the Payment of Wages Act 1936 and were no precedent for deciding the present case. It may be added that the right of appeal is not a natural or an inherent right of litigants but is a statutory right granted by different laws under different enactments and such a right had to be considered and examined in the light of the conditions prescribed by the law granting the said right. Needless to add that under the enactment in the C.P.C. or the Cr.P.C. every order and decision is not appealable and we know that even under the C.P.C. there are provisions which prohibit grant of interim relief unless the decretal amount was deposited."
Similarly the apex Court in Tehsil Nazim, TMA, Okara vs. Abbas Ali and 2 others (NLR 2011 Labour 121) held that once the condition of section 17(1)(a) is not fulfilled, the appeal was lawfully dismissed. The relevant observations are reproduced hereunder:- "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 Ferozwala 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 a 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 alongwith 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. and others v.
Presiding Officer, Punjab Labour Court No. 7 and others (2006 SCMR 590) and Haji Sheikh Noor Din and Sons vs. Muhammad Fayya z 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. See Mansab' Ali's case (PLD 1971 SC 124)."
7. In Syed Match Company Limited through Managing Director vs. Authority Under Payment of Wages Act and others (2003 SCMR 1493), the honourable Supreme Court held that filing of constitutional petition instead of availing the remedy of appeal by depositing the amount due is to nullify the effect of section 17(1)(a) of the Act and therefore, same is malafide. The relevant observations are as under:- "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 invokes 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."
The same view was also followed by this Court in Haji Sheikh Noor Din & Sons through Managing Director and others vs. Muhammad Fayyaz and 02 others (2006 PLC 623) and Ibrahim Abdullah/Abdullah & Sons through Managing Director vs. Abdul Latif and 24 others (2018 PLC 20). In view of above case law, the provision of section 17(1)(a) of the Act is not ultra vires of the Constitution. The case of Chenab Cement supra relied upon by learned counsel for the petitioner is not applicable, as same relates to the Banking Tribunal Ordinance, 1984 and not to any beneficial legislation for the workman, such as Payment of Wages Act, 1936, therefore, the same is distinguishable, as held by the honourable Supreme Court in Mughal Surgical case ibid.
8. The next argument of the learned counsel for the petitioner that after the 18th Amendment in the Constitution, the Act was not a valid Act from 30.06.2011 to 19.03.2014 is also misconceived. For convenience, Article 270-AA (6), (8) and (9) of the Constitution are reproduced hereunder:- "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- territorial 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.
(8) On the omission of the Concurrent Legislative List, the process of devolution of the matters mentioned in the said List to the Provinces shall be completed by the thirtieth day of June, two thousand and eleven.
(9) For purposes of the devolution process under clause (8), the Federal Government shall constitute an Implementation Commission as it may deem fit within fifteen days of the commencement of the Constitution (Eighteenth Amendment) Act, 2010.]"
9. Under Article 270-AA(6) of the Constitution, notwithstanding omission of concurrent legislative list by the 18th Amendment, all laws with respect to any matter enumerated in the said list shall remain in force in Pakistan or in part thereof and shall continue to remain in force until altered, repealed or amended by the competent Authority. Admittedly the Punjab Payment of Wages (Amendment) Act, 2014, was notified on 19.03.2014 and in said Amendment Act, the original proviso to section 17(1)(a) of the Act remained the same, therefore, not only before 19.03.2014, the condition prescribed in the proviso to section 17(1)(a) of the Act was applicable by virtue of Article 270-AA (6) of the Constitution but even after the amendment through Amendment Act, the same was applicable. Article 270AA(8) of the Constitution prescribed 13.06.2011 as a date to complete the process of devolution but it is not the cutoff date for validity of all law in respect of matters enumerated in the concurrent legislative list of the Constitution, which are to be governed under Article 270AA(6) of the Constitution and shall continue to remain in force until altered, repealed or amended by competent authority. Therefore mere fact that process of devolution was to be completed by 30.06.2011 under Article 270-AA(8) of the Constitution, will not invalidate the Act already in force, in view of Article 270-AA (6) of the Constitution.
10. This legal position was settled by honourable Supreme Court in Liaqat Hussain and others vs. Federation of Pakistan through Secretary, Planning and Development Division Islamabad and others (PLD 2012 SC 224), where it is held as under:- "19. At this juncture it is to be kept in mind that the National Education Foundation and National Commission of Human Resources have been established in terms of the National Education Fund Ordinance, (Ordinance No.XX) 2002 and the National Commission for Human Development Ordinance, (Ordinance No.XXIX) 2002. Later on, these Ordinances have been protected by the Parliament by means of 17th Constitutional Amendment and since then these forums have continuously been discharging their functions.
20. It is important to note that in the 18th Constitutional Amendment both these Ordinances along with other legal instruments, issued between the period starting from 12th October. 1999 to 31st December, 2003, have been protected under Article 270AA of Constitution. Thus, despite of 18th Constitutional Amendment both these laws, under the protection of Article 270AA, are fully operational and functional."
In the said judgment, the effect of cutoff date i.e. 30.06.2011 was also explained and it was contended by the learned Attorney General that salaries of the employees of relevant projects were released by the Federal Government till 30.06.2011 and thereafter Provinces are responsible.
However, as discussed above, the law shall remain in field in view of Article 270-AA(6) of the Constitution.
11. The same view was also expressed by this Court in Salim Javed Baig and others vs. Federal Ombudsman and others (PLD 2016 Lahore 433) where it is held as under:- "9. The Federal Act was promulgated on 11.03.2010 with jurisdiction extending to the whole of Pakistan under section 1(2) of the Federal Act. Constitution (Eighteenth Amendment) Act, 2010 was introduced on 20.04.2010. The said amendment omitted the Concurrent List from the Fourth Schedule to the Constitution, thereby enlarging and expanding the legislative domain of the provincial legislature and more importantly reinvigorating the constitutional theme of federalism and provincial autonomy. The preamble to the Amendment Act echoes the promise to establish "a Federal State wherein the Provinces have equitable share in the Federation." Admittedly, the Federal Act drew its legislative competence from entry 25 i.e., social welfare, of the erstwhile Concurrent List. Post 18th amendment, this area stands devolved into the Provinces. Under Article 270AA(6) of the Constitution, the Federal Act remains in force (as a Provincial Act, as discussed later) irrespective of the omission of the Concurrent List until such time that the Federal Act is altered, repealed or amended by the Competent Authority (legislature). Any such alteration or amendment in the law by the competent legislature does not affect its continuity and the law continues to be in force, albeit, as a provincial law, not because of the alteration or amendment but because of the constitutional declaration under the 18th amendment. It is only on repeal that the law comes to an end."
Similar view was also expressed by this Court in Lawyers Foundation for Justice through Chairman vs. Federation of Pakistan and others (PLD 2019 Lahore 43) and Ibrahim Abdullah/Abdullah & Sons through Managing Director vs. Abdul Latif and 24 others (2018 PLC 20).
12. The other grounds agitated by the learned counsel for the petitioner are in respect of the question of limitation and for closing the right of defence of the petitioner by the Authority in impugned orders dated 29.01.2013. In this regard suffice it to note that while deciding the applications of the respondents on 29.01.2013, the Authority not only specifically condoned the delay but also passed formal orders previously for closing the right of defence of the petitioner, as it failed to file replies despite opportunity. Therefore, these mixed questions of law and facts could only be examined in appeal to be filed by petitioner under section 17 of the Act. However, once the petitioner failed to file the appeal or deposit the amount due as required under proviso to section 17(1)(a) of the Act and its appeals were lawfully dismissed, for this reason, then these questions cannot be agitated and examined in these constitutional petitions.
13. In view of above discussion, all these petitions are meritless, which are accordingly dismissed. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.