FAZAL SUBHAN, J. Through this single judgment, we shall decide this as well as following seven connected writ petitions, being identical in nature.
W.P. No. 1009-A/2022.
Messrs Concrete Concepts (Pvt.) Ltd., Haripur and another v. Learned Authority Under Payment of Wages Hazara Division at Haripur and others.
W.P. No. 1010-A/2022.
Messrs Concrete Concepts (Pvt.) Ltd., Haripur and another v. Learned Authority Under Payment of Wages Hazara Division at Haripur and others.
W.P. No. 1011-A/2022.
Messrs Concrete Concepts (Pvt.) Ltd., Haripur and another v. Learned Authority Under Payment of Wages Hazara Division at Haripur and others.
W.P. No. 1012-A/2022.
Messrs Concrete Concepts (Pvt.) Ltd., Haripur and another v. Learned Authority Under Payment of Wages Hazara Division at Haripur and others.
W.P. No. 1013-A/2022.
Messrs Concrete Concepts (Pvt.) Ltd., Haripur and another v. Learned Authority Under Payment of Wages Hazara Division at Haripur and others.
W.P. No. 1014-A/2022.
Messrs Concrete Concepts (Pvt.) Ltd., Haripur and another v. Learned Authority Under Payment of Wages Hazara Division at Haripur and others.
W.P. No. 1015-A/2022.
Messrs Concrete Concepts (Pvt.) Ltd., Haripur and another v. Learned Authority Under Payment of Wages Hazara Division at Haripur and others.
2. Brief but relevant facts of the case are that the private respondents (No.4) being ex-employees of petitioner No. 1, had filed their respective applications before the Authority, Haripur, under section 15(2) of Khyber Pakhtunkhwa Payment of Wages Act, 2013 (Act) for recovery of their alleged legal dues against the present petitioner/s. It has been contended in the present petition that some un- known person appeared as their before the Authority and was given chance to file, reply but due to absence an ex-parte orders/directions were passed against them on 11.08.2020. Being aggrieved from the said orders, petitioners approached the respondent No. 1/Authority for setting aside ex- parte orders/directions or in alternate reviewing said orders on the grounds of fraud etc, however, the respondent No. 1 dismissed the said applications vide separate orders dated: 13.10.2020. Against the said orders, petitioners mistakenly preferred appeal/s before respondent No. 5/Deputy Director/Authority, which were to be returned to the petitioners but same were rejected by respondent No.5, therefore, the petitioners filed Writ Petition No. 426-A/2021 before this Court, which was allowed vide order dated: 04.04.2022 with cost and remanded the matter/s to the respondent/Authority. After remand, parties appeared before the respondent/Authority and contested the matters, and on 25.05.2022, the respondent/Authority adjourned the cases/matters for 08.06.2022 by giving last opportunity to the petitioners to deposit the costs amount and adjourned the matters to 14.06.2022. The said costs were deposited accordingly and there-after, the matters were further adjourned to 22.06.2022. On 22.06.2022 cases were again adjourned to 06.07.2022, however, when petitioners appeared before respondent/Authority on the above date, it came into their knowledge that matters was/were already decided by the respondent/Authority on 08.06.2022 without going into the record and without providing opportunity of hearing to the present petitioners, hence, feeling aggrieved, they have invoked the jurisdiction of this Court by filing present writ petitions.
3. Arguments of learned counsel for the petitioners, learned A.A.G. as well as learned counsel for ex- employees (respondent/s No.4) heard and record available gone through with their valuable assistance.
4. Perusal of record portrays that ex-employees/respondent No.4 (Claimant/s) filed their separate claims against present petitioners under section 15(2) of Act, 2013 before respondent No.1 for recovery of their respective legal dues. Petitioners in response thereof appeared and were directed to submit written replies, however, they did not turned up and their right of defence was struck off on 09.07.2020, and after recording statement's of claimants, ex-parte orders were passed against present petitioners on 11.08.2020, against which petitioners filed applications for setting aside ex- parte orders, before respondent No.1 but said applications were dismissed on 13.10.2020. Record reveals that the petitioners preferred an appeal before the learned Presiding Officer, Labour Court, Haripur but due to non-availability of certificate of the Authority in respect of deposit of payable amount, in compliance with the proviso to section 17 (1)(a) of the Act and therefore, their appeal was also dismissed. Petitioners, while, feeling aggrieved with the said order/s dated: 13.10.2020, approached this Court by filing Writ Petition (No. 426-A/2021) which was allowed by remanding the matter to respondent No.1 vide judgement dated: 04.04.2022 subject to payment of cost of Rs.
30,000/- by petitioners before respondent/Authority. In the said judgment, the order dated: 13.10.2020 of learned appellate Authority was also set-aside. After remand, parties appeared and petitioners were directed to deposit the above costs and also file written replies but they sought adjournments on the ground that petitioners are settling the matter with claimants and that they had filed review against the order of this Court and have to produce copy of order of status quo but they failed to produce copy of status quo order on 25.05.2022, hence, case was adjourned with last opportunity and with cost of Rs. 1000/- but till the date so fixed i.e on 08.06.2022, the petitioners failed to deposit cost/s i.e Rs. 30,000/- hence, vide impugned order dated: 08.06.2022, claims of the claimants were accepted with directions to the petitioners to deposit respective dues/amounts within 30 days before respondent/Authority.
5. Counsel for petitioners has submitted two pronged arguments before us, firstly:- that after remand of the case, the petitioner appeared before the Authority and was given date for payment of cost. That under the instructions of petitioners, their representative requested for time to file review petition, whereafter, opportunity was granted, however, later-on, petitioner deposited the cost amount of Rs. 2,70,000/- vide cheque dated: 14.06.2022 and has been duly received by Deputy Director Labour, Haripur, hence, impugned order is patently wrong and illegal and secondly:- after adjournment of date on 25.05.2022, the next date was fixed as 06.07.2022, as is evident from the extract of register and parcha peshi given to the petitioner, however, surprisingly impugned order was passed on 08.06.2022, hence, the impugned order being beyond the domain of the Authority and the Act, is without jurisdiction and corum-non-judice and liable to cancellation/set-aside.
6. Learned counsel for respondent, in rebuttal to the above arguments, submitted that the petitioner/representative, after appearance before the Authority had recorded on the margin of the order sheet dated: 27.04.2022 that they would file review against the judgment of this Court dated: 04.04.2022, however, it was only a ploy to delay the matter because no review petition has been filed there-after, and due to non-payment of cost imposed by this Court, the claim of respondents was allowed, which is unexceptionable.
7. After hearing the above arguments, we are of the view, that there are sufficient material on record to show that the proceedings before the Authority was not conducted in proper legal manner. Irrespective of the fact that the petitioners were acting deceitfully to prolong the matter by making a false commitment of filing review petition before this Court, however, it is also fact evident from the record that dates were adjourned on the request of petitioners and there is copy of cheque No. 1845845779 dated: 14.06.2022 and certificate of receiving of cheque of Rs. 2,70,000/-, deposited by the petitioner. The extract of cause list and parcha peshi reveals that date was adjourned to 06.07.2022, then passing of impugned order on 08.06.2022 and accepting the claim of respondents on the sole ground of non-deposit of cost amount, is not legally sustainable. There is consistent view of the superior Courts that contested and contentious issues between the parties have to be resolved and decided on merits instead of resorting to technicalities. In the case of Mst.
Gulfama v. Mst. Jamsheda and 14 others, reported in 2019 CLC Peshawar 1483, it was held by this Court that:- No person shall be deprived of his legal rights on mere technicalities. Prima facie, petitioner has a arguable case, but due to ill-advise, no proper application was filed on behalf the petitioner.
8. It is to be mentioned that S. No. 17 of the Act provides a remedy of appeal against the directions made under subsections (3) and (4) of section 15 of the Act, within 30 days from the date of directions before the Labour Court. Such appeal has to be filed only when the Authority decide the question and claims enumerated in section 15(1) of the Act. Section 17 of the Act is very much relevant, which is reproduced below: Appeal.---(1) An appeal against a 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 Khyber Pakhtunkhwa Industrial Relations Act, 2010 {Khyber Pakhtunkhwa Act No. XVI 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 five thousands rupees: 14 Page 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) by an employed person or, if he has died, by any of his heirs, if the total amount of wages claimed to have been withheld from the employed person or from the unpaid group to which he belonged exceeds three thousand rupees; or
(c) by any person directed to pay a penalty under subsection (4) of section 15;
(2) Save as provided in subsection (1), any direction made under subsection (3) or subsection (4) of section 15 shall be final.
Similarly, section 15(1)(3) and (4) are also reproduced below for the sake of understanding and convenience: - Claims out of deductions from wages or delay in payment of wages and penalty for malicious or vexatious claims.---(l) Government may, by notification in the official Gazette, appoint any Commissioner for Workmen's Compensation or other officer to be the Authority to hear and decide for any specified area all claims arising out of less payments, deductions from the wages, or non-payment of dues relating to provident fund or gratuity, bonus, overtime, leave encashment, notice pay or travelling allowance or any other emoluments payable under any law or delay in the payment of wages, of persons employed or paid in that area.
(3) When any application under subsection (2) is entertained, the Authority shall hear the applicant and employer or other person responsible for the payment of wages under section 3, or give them an opportunity of being heard, and, after such further inquiry, if any, as may be necessary, may, without prejudice to any other penalty to which such employer or other person is liable under this Act, direct the refund to the employed person or, if the applicant is one of the heirs of an employed person the payment to such applicant, of the amount deducted, or the payment of the delayed wages, together with the payment of such compensation as the Authority may deem fit, not exceeding ten times the amount deducted in the former case and not exceeding one thousand rupees in the latter: Provided that no direction for the payment of compensation shall be made in the case of delayed wages if the Authority is satisfied that the delay was due to-
(a) a bona fide error or bona fide dispute as to the amount payable to the employed person; or
(b) the occurrence of an emergency, or the existence of exceptional circumstances, such that the person responsible for the payment of the wages was unable, though exercising responsible diligence, to make prompt payment; or
(c) the failure of the employed person to apply for or accept payment.
(4) If the Authority hearing any application under this section is satisfied that it was either malicious or vexatious, the Authority may direct that a penalty not exceeding five hundred rupees be paid to the employer or other person responsible 13 Page for the payment of wages by the person presenting the application.
9. Careful Perusal of the said provision reveals that appeal under section 17 ibid can only be filed in respect of the matters enumerated in section 15(1) of the Act, and it does not include an order or decision passed by the Authority due to non-payment of cost imposed by the Court. In such a situation when no other alternate and efficacious remedy is available, then writ jurisdiction of the High Court can competently be invoked in the circumstances. In this respect guidance is derived from Haleem ur Rehman v. Province of Sindh and others, reported in 2019 SCMR 1653 [Supreme Court of Pakistan], wherein it was held that:- Mr. Abdul Salam Memon, ASC for the petitioner has contended that an efficacious alternate remedy of appeal was available to respondents Nos.3 to 7 against the order of the Commissioner cancelling their PRCs under the Sindh Permanent Resident Rules, 1971, therefore, the petitions filed by the private respondents Nos.3 to 7 were incompetent and ought to have been dismissed on this ground alone. We are of the view that in the facts and circumstances of the instant case where, after verifying the genuineness of the PRC by the office of the Deputy Commissioner, the said respondents were granted admission in the academic session 2012-13 and then all of a sudden its cancellation in the year 2017 when the holders of the PRCs had almost completed their MBBS, exposing them to uncertain consequences was a justifiable cause to invoke the writ jurisdiction of the High Court as in the circumstances, the remedy provided under the rules, to our mind, was not adequate or efficacious.
10. Similar view was also taken in the case of Commanding Officer, Frontier Works Organization, Karachi v. Haji Abdul Waheed and 2 others, 2003 SCMR 225 [Supreme Court of Pakistan], wherein, it was authoritative been held that:- We have considered the arguments of learned counsel for the petitioner and minutely examined the available record. Admittedly, Haji Abdul Waheed respondent Na. 1, as a highest bidder, was awarded the contract, by way of grant of lease through an open and transparent auction. Under the contract, he was authorized to collect royalty on Miner Minerals, as mentioned hereinabove.
Respondent No.1 is extracting Bajri, sand, stone crush from Hub River and other parts of District Lasbela, therefore, these items are liable to payment of royalty, as provided under the rules.
Initially, the petitioner-Commanding Officer, was making the payment of the above duties, but subsequently he refused to pay the same. No doubt, a civil suit was filed by respondent No. 1, as mentioned hereinabove, which was rightly withdrawn on the ground that it was not efficacious and adequate remedy. Thereafter, he approached the learned High Court. The only question before the High Court was whether the petitioner was liable to pay royalty as provided under the rules. In this connection parawise comments were filed on behalf of the petitioner, wherein it was stated that the main ground for on payment of royalty on the above items is that the Federal Government has taken the task of development and uplifting of Balochistan for bringing it at par with the other provinces of the country.
11. For these reasons, it is held that having no other efficacious remedy available to the petitioners under the Act, their petitions before this Court, under the circumstances, are maintainable, and hence, this and connected petitions are allowed. The impugned order/s is/are set-aside on cost of Rs. 2,000/- each, w be paid within two months of the passing of this judgment to the respondent/s No. 4, before the Authority. The case is remanded to the Authority, to be decided, strictly in accordance with law.