MIANGUL HASSAN AURANGZEB, J:- Through the instant writ petition the petitioner, M/s Wackenhut Pakistan (Pvt.) Ltd., impugns the orders dated 21.05.2015 and 07.03.2016 passed by the Court of the Assistant Commissioner (City) / Authority under Section 15 of the Payment of Wages Act, 1936, ICT, Islamabad ("the Authority"). Vide the ex-parte order dated 21.05.2015, the Authority had accepted the joint claim of respondents No.1 to 4 under Section 15 of the Payment of Wages Act, 1936 ("the 1936 Act") and vide the order dated 07.03.2016 the Authority had dismissed the petitioner's application under proviso to Rule 8 (3) of Payment of Wages (Procedure) Rules, 1937("the Procedure Rules, 1937"), for setting aside the ex-parte order dated 21.05.2015.
2. The facts essential for disposal of the instant petition are that on 26.09.2014 respondents No.1 to 4 filed a joint claim against the petitioner for outstanding wages and gratuity before the Authority.
The Authority vide order dated 13.10.2014 summoned inter alia the petitioner. The order dated 18.11.2014 passed by the Authority shows that the petitioner was absent and respondent No.1 produced postal receipts for the dispatch of notice to the petitioner. The Authority ordered for summoning the petitioner for 08.12.2014 through publication in the daily Jang. Since the petitioner did not appear on the next several dates of hearing, its defence was struck off vide order dated 08.02.2015. On 04.03.2015 three out of four respondents were marked as present and it was recorded that their affidavits were filed. Vide the Authority's order dated 06.04.2015, the petitioner was proceeded against ex-parte. Eventually vide order dated 21.05.2015, the Authority accepted the petition filed by respondents No.1 to 4 and the petitioner was directed to pay an amount of Rs.1,854,128/- to the said respondents within 30 days.
3. The petitioner filed an application dated 18.12.2015 for setting aside ex-parte order dated 21.05.2015. It is pertinent to mention that the affidavit annexed with the said application had been attested by an Oath Commissioner on 21.12.2015 and the said application contains filing endorsement of the Authority dated 06.01.2016. In the said application, the petitioner pleaded inter alia that it did not receive a notice of hearing and therefore was not aware of the proceedings.
Furthermore, it was pleaded that the petitioner had filed an application for the setting aside of the proceedings within one month of gaining knowledge of the ex-parte order. The Authority, after obtaining reply of respondents No.1 to 4, dismissed the said application vide order dated 07.03.2016 holding that the petitioner's application was not maintainable since the case had already been decided and could not be re-opened again. Apparently, the Authority issued warrants for the arrest of the petitioner company's officials which necessitated the filing of the instant petition.
4. Learned counsel for the petitioner, after narrating the facts leading to the filing of the instant petition, submitted that the petitioner was condemned unheard vide order dated 21.05.2015; that at no material stage was the petitioner served with a notice of the proceedings before the Authority; that the petitioner's application for setting aside ex-parte order having been filed within thirty days of knowledge was within prescribed limitation period; that vide order dated 07.03.2016, the Authority dismissed the petitioner's application for recalling the ex-parte order in a perfunctory manner without adverting to the grounds taken in the said application; that the said order dated 07.03.2016 is contrary to the law; that even if the Authority had proceeded in the absence of the petitioner, a decision on merits after going through the necessary record was required to be given; that the bare perusal of the order dated 21.05.2015 shows that the Authority has not applied its mind to the merits of the case; that under Rule 11 of the Procedure Rules, 1937 read with Section 18 of the 1936 Act, the Authority had to conduct proceedings in accordance with the relevant orders of the first Schedule of the Code of Civil Procedure, 1908 ("C.P.C."); that no notice for hearing was issued to the petitioner for the date on which it was proceeded against ex-parte; that the impugned orders lack the reasoning and do not fulfill the requirements of Section 24-A of the General Clauses Act, 1897; that the impugned orders dated 21.05.2015 and 07.03.2016 are unlawful since do not show application of mind; and that the petitioner's previous counsel did not disclose the fact about dismissal of the application for recalling of ex-parte order which caused a delay in the filing of the instant petition. Learned counsel requested for the petition to be allowed in terms of the relief prayed therein. In support of his submissions, the learned counsel for the petitioner placed reliance on the law laid down in the case of Mollah Ejahar Ali Vs. Government of East Pakistan etc (PLD 1970 SC 173), Factory Manager Burewalla Textile Mills Vs. Asghar Ali (2005 SCMR 1144), Fasih-ud-Din Khan Vs. Government of Punjab etc (2010 SCMR 1778), Secretary Ministry of Health Government of Pakistan Vs. Dr. Rehana Hameed (2010 SCMR 511), Mst. Azizan Vs. Mehr Din (1993 CLC 1187), Shahzada Zahir Shah Vs. Muhammad Usman Ghani (2005 YLR 1394), Syed Sajjad Hussain Shah Vs. Federation of Employees Cooperative Housing Societies (2003 CLC 1011), Zia Shahid Vs. Authority under the Payment of Wages Act, 1936 etc (2011 PLC 300), Dewan Salman Fibre Limited Vs. Authority under the Payment of Wages Act, 1936 etc (2018 PLC 107) and Shaukat Hussain Bhatti Vs. Khalid Latif etc (2021 MLD 497).
5.On the other hand, Mr. Khalil Ahmed / respondent No.2 appeared in-person and submitted that the impugned orders dated 21.05.2015 and 07.03.2016 passed by the Authority satisfy the requirements of substantial justice; that the petitioner company is involved in the business of providing private security; that respondents No.1 to 4 were employed as security guards with the petitioner; that the petitioner despite earning huge profits never paid to them any bonus or other fringe benefits in terms of the employment contract; that the petitioner's officials deducted Employees Old-Age Benefit contributions from respondents No.1 to 4's salaries but were not onward deposited; that the services of respondents No. 1 to 4 were terminated without advance notice, any lawful cause and without paying them the due retirement benefits; that the petitioner received the notices issued by the Authority but deliberately absented from the proceedings; that the application for recalling of order dated 21.05.2015 was filed several months after passing of the said order and were time barred; that even the instant petition has been filed with laches; and that the petitioner intends to deprive respondents No.1 to 4 of their lawful wages. Respondent No.2 requested for the petition to be dismissed.
6. I have heard the contentions of the learned counsel for the petitioner as well as respondent No.2 (Khalil Ahmed) in-person and have perused the record with their able assistance. The facts leading to the filing of the instant petition have been set out in sufficient detail in paragraphs 2 to 3 above, and need not be recapitulated.
7. The record shows that in their joint petition under Section 15 of the 1936 Act, respondents No.1 to 4 had made claims against the petitioner for recovery of gratuity and wages against several heads including leave monetization, annual bonuses, overtime, medical facility monetization, city allowance, residence allowance, transportation allowance, one month salary in lieu of notice and the amount deducted as Employees' Old-Age Benefit contributions. The Authority, after taking cognizance of the matter, issued notices vide order dated 13.10.2014 requiring appearance of the petitioner's Managing Director and Manager (Admin) who were arrayed as respondents No.1 and 2, respectively, in the said petition.
8. The subsequent orders dated 05.11.2014 and 18.11.2014 passed by the Authority show that the Authority did not make any observation as to whether the notices to the petitioner were returned or not and if returned whether they were served or not. Instead of making any such determination, the Authority vide order dated 18.11.2014 abruptly and mechanically proceeded to issue order for the publication of notices in a newspaper for procuring the petitioner s attendance. No speaking order was passed as to why the Authority had not made any efforts for affecting personal service and why it was necessary to resort to substituted mode of service. Now, under Section 18 of the 1936 Act, the Authority is invested with those powers which a Civil Court exercises under C.P.C., and under Rule 11 of the Procedure Rules, 1937 its proceedings were required to be guided, at least in substance, by the relevant Orders in the First Schedule to the C.P.C. Indeed it was not incumbent on the Authority to have strictly applied all the provisions of C.P.C. but the proceedings were required to be undertaken in an objective manner.
9. Furthermore, the order dated 04.03.2015 passed by the Authority shows that only three out of the four claimants were present and it accepted their affidavits-in-evidence. The said order dated 04.03.2015 does not show the number of affidavits which were submitted before the Authority and did not record any observation with regard to the claimant who was absent on the said date of hearing. Subsequently, while accepting the claim of respondents No.1 to 4 vide order dated 21.05.2015, the Authority did not weigh the evidence provided by the claimants in support of their claim and had not given any reasons for accepting the said claim. On the contrary, the Authority allowed the claim of respondents No.1 to 4 merely because there was nothing available in rebuttal.
The single paragraph whereby the Authority made its determination of the matter vide the order dated 21.05.2015 reads as follows:- "On the other hand, the respondents was summoned through registered dak 2 times but the respondents did not appear on any hearing. The respondent was called through newspaper, the summon advertised in daily Jang newspaper dated 02.12.2014, notifying the respondents for appearing before the Court failing which ex-parte decision would be taken. In consideration of the failuire of respondents to appear and contest the claim of the petitioners, the petition is hereby decided ex-parte. Claim of the petitioner No.1, amounting to Rs.6,49,544/-, claim of the petitioner No.2, amounting to Rs.5,68,752/-, claim of the petitioner No.3, amounting to Rs.3,17,916/-, and claim of petitioner No.4 amounting to Rs.3,17,916/- (Total Rs.1854128/-) is accepted. The respondents No.1 and 2 is directed to pay an amount of Rs.1,854,128/- within 30 days to the petitioners."
10. Under the provisions of 1936 Act, the Authority is bestowed with quasi judicial authority to decide the controversies between the parties for which the requirement of law is that a case should be decided through a reasoned and speaking judgment. Such a judgment should be pronounced after undertaking the examination of merits and demerits of a claim. This duty to pass a speaking order becomes even more important when the lis is being decided in absence of one of the contesting parties. In the case of Rehmat Ali Vs. Additional District Judge, Multan (1999 SCMR 900), wherein it was observed by the Hon ble Supreme Court that "decrees granted against the absentees, without consideration of available record or application of mind vis-a-vis the evidence available on the record have always been looked upon with disfavour by the Superior Courts."
Section 24-A of the General Clauses Act, 1897 makes it the bounden duty of public functionaries and judicial officers to decide the rights of parties objectively and with an application of mind to the merits of the case. In the case of Muhammad Amin Muhammad Bashir Limited Vs. Government of Pakistan through Secretary Ministry of Finance (2015 SCMR 630) it was held that "Section 24A of the General Clauses Act, 1897, reiterates the principle that statutory power is to be exercised "reasonably, fairly, justly and for the advancement of the purposes of the enactment" and further clarifies that an executive authority must give reasons for its decision. Any action by an executive authority which is violative of these principles is liable to be struck down. No other view is permissible."
11. In the case of Mollah Ejahar Ali Vs. Government of East Pakistan (PLD 1970 SC 173) the order impugned was a single sentence order' which read that "The application is rejected as there is no substance in it." The Hon'ble Supreme Court termed the said decision to be perfunctory and observed that if such decisions are allowed to remain in the field, it would reduce the whole judicial process to authoritarian decrees without the need for logic and reasoning. In the said judgment, it was held as follows:- "Litigants who bring their disputes to the law Courts with the incidental hardships and expenses involved do expect a patient and a judicious treatment of their cases and their determination by proper orders. A judicial order must be a speaking order manifesting by itself that the Court has applied its mind to the resolution of the issues involved for their proper adjudication. The ultimate result may be reached by a laborious effort, but if the final order does not bear an imprint of that effort and on the contrary discloses arbitrariness of thought and action, the feeling with the painful results, that justice has neither been done nor seem to have been done is inescapable.
When the order of a lower Court contains no reasons, the appellate Court is deprived of the benefit of the views of the lower Court and is unable to appreciate the processes by which the decision has been reached."
12. In the present case, the petitioner filed an application for recalling of the ex-parte order dated 21.05.2015 which was dismissed through a slip shod order dated 07.03.2016 whereby the Authority held the petitioner's application to be not maintainable for the reason that the lis has already been decided and a second decision in the matter was not permissible under the law. The Authority vide its order dated 07.03.2016 did not consider it important to discuss the averments of the parties or to refer the relevant provision of law on the subject.
13. No period of limitation has been provided in the Procedure Rules, 1937 or the 1936 Act for the filing of an application for recalling of an ex-parte order. The petitioner, in its application for recalling of the said order dated 21.05.2015, had clearly mentioned that no notices were served on him and there is no document on record to show to the contrary, therefore, under Second Part of Article 164 of the Limitation Act, 1908 the thirty days' limitation period for setting aside ex-parte order, under the principles derived from Order IX, Rule 13 C.P.C., would run from the date when the petitioner gained knowledge of such order Hence the petitioner's said application cannot be said to have been barred by limitation.
14. In view of the above, since I have held the impugned orders dated 21.05.2015 and 07.03.2016 passed by the Authority to be against law, the instant petition is allowed. Consequently, the impugned orders dated 21.05.2015 and 07.03.2016 are set-aside; and the matter is remanded to the Authority for decision afresh on the merits of the case and considering the material on the record.
The petition under Section 15 of the 1936 Act filed by respondents No.1 to 4 shall be deemed to be pending before the Authority and the petitioner should submit reply to the said petition within 15 days. There shall be no order as to costs.