' Respondent No, 2 filed an application under section 15 of the Payment of Wages Act, 1936 saying that the petitioner gave him certain material for being washed as a contractor with his own labour.
He was paid a sum of Rs, 2,000 and still there was a balance of Rs, 356.80. The application is dated 4th March, 1980. Notice was issued to the petitioner but he being abroad some body on his behalf appeared. Finally a decree for the payment of Rs, 12,356.80 was passed against him vide order dated 8th June, 1981. He was directed to deposit the above-said amount. He has filed the above- titled Constitutional petition.
2. Learned counsel for the petitioner has contended that the Payment of Wages Act did not apply as it is provided in subsection (4) of section 1 that. "It applies in the first instance to the payment of wages persons employed in any factory and to persons employed (other than in a factory) upon any railway by a railway administration or, either directly or through a sub-contractor, by a person fulfilling a contract with a railway administration." It is submitted that the respondent No, 2 was not 'employed' by the petitioner and he was an independent contractor and consequently the aforesaid Act did not apply. He further submitted that although an appeal is provided for under section 17 of the aforesaid Act but the order being without jurisdiction altogether, it is permissible for the petitioner to move a Constitutional petition. He has referred to Arag Industry Ltd. v. Payment of Wages Act Authority, etc..
3. Learned counsel appearing for the respondent 2 has referred to Messrs S. A. Haroon and others v.
The Collector of Customs, Karachi and another, Lt.-Col. Nawabzada Mohammad Amir Khan v. The Controller of Estate Duty and others and Syed Muzaffar Hussain Shah and another v.1 2 Superintendent, Central Jail, Sahiwal and othersto contend that as a general rule where right of appeal is available, parties are not entitled to maintain a Constitutional petition. He has next submitted that since the petitioner had surrendered to the jurisdiction of the Authority under the Payment of Wages Act, therefore, he is not entitled to question its jurisdiction through the aforetitled Constitutional petition. He has also submitted that by admitting payment of Rs, 2,000 to the respondent No, 2, the petitioner had admitted the claim of the said respondent and he (the petitioner) is bound to pay the balance. It is next submitted that the petition raises a controversial question of fact as to whether the respondent No, 2 was employed by the petitioner or not.
Therefore, the petition is not maintainable.
4. It is quite correct that when an appeal is available ordinarily a writ petition is not entertained but that is not an inflexible rule. In the present case the petitioner was to deposit the entire amount before he could file an appeal and the order challenged being apparently without jurisdiction as would be discussed later, in such circumstances it is permissible for the petitioner to maintain a Constitutional petition and the reliance of the learned counsel for the petitioner on the case quoted by him is quite apt.) There was no question of surrender by the petitioner to the jurisdiction of the Authority under the Payment of Wages Act. In fact, he was not present and was abroad. His nominee had sent a telegram to the Court informing about the petitioner's absence. The payment of Rs, 2,000 does not by itself amount to prove that the petitioner was liable to pay the balance amount claimed from him. As regards the contention that there is a controversial question of fact as to whether the respondent No, 2 was employed by the petitioner, it need only be said that there can hardly arise any controversy because according to the respondent No, 2's own application, he was given a contract to wash the clothes as an independent contractor. So also was his statement in Court that {{URDU TEXT}}In view of the fact that according to the respondent No, 2 himself, he was acting as a Contractor vis-a-vis the petitioner, there is no doubt that he was an employee of the petitioner and the Payment of Wages Act only applies to payment of wages to persons employed and not to those person with whom the relationship is not of an employer and an employee but that of two independent contracting parties for certain purposes.
5. In view of what has been stated above, the impugned order of the Authority under the Payment of Wages Act, the Act being not applicable in the circumstances of the case, is declared to be without lawful authority and of no legal effect. However, in the circumstances, the parties shall bear their own costs. 1982 PLC 567 PLD 1959 SC (Pak.) 177 PLD 1979 Lab. 340