This Constitution Petition has been filed challenging the order passed on 22nd May, 1980 whereby the application filed under sections 15 and 16 of the Payment of Wages Act, 1936 by the respondents No. (i) to (vii) was allowed ex parte in the absence of the employers/petitioners and application filed under rule 8 of the Payment of Wages (Procedure) Rules, 1937 was dismissed. The order dated 19th July, 1980 of the appellate Court filed against the order of dismissal of the application has also been challenged.
The brief facts of the case are that on an application filed under sections 15 and 16 of the Payment of Wages Act, 1936 by the respondents Nos. (i) to (vii) the petitioners/employers made appearance, filed their written statement and denied the clam of the above-named respondents.
On 22nd May, 1980 when the case was fixed for appearance and hearing of the application, the employers were found absent and accordingly the respondent No. 2/Authority under Payment of Wages Act, allowed the application filed by the respondents Nos. (i) to (vii) with the observation that the employers' failure to appear, and examine any evidence in defence showed that they had no material evidence in defence and that they were not therefore, interested in the case. With the above observations the respondent No. 2/Authority held as follows :- "In view of the above facts I have no alternative but allow the joint application of the applicants in the light of evidence brought by them on the record. Respondents are directed to deposit Rs.
38,180.46 as claimed within a fortnight for onward payment."
2. Thereafter on 26th May, 1980 an application under rule 8 of the Rules of 1936 was filed by the present petitioners but the same was dismissed on the ground that the Authority had no jurisdiction to revise its own orders and that the final order had already been passed on 22nd a May, 1980.
An appeal was filed against the above-mentioned order which however was dismissed by the learned IVth Sind Labour Court Karachi on the ground that the order passed on 14th June, 1980 dismissing the applica--tion filed under rule 8 was not an appealable order within the meaning of section 17 of the Payment of Wages Act.
This led to the filing of the present constitutional petition challenging the above-mentioned orders.
3. Mr. Hameed Siddiqui the learned counsel for the petitioners submitted that the order passed on 15th June, 1980 by the respondent No. 2/Authority on the assumption that he had no jurisdiction to `revise' its own orders is based upon misreading of rule 8 and that it amounts to refusal to exercise jurisdiction. It would therefore, be relevant to reproduce hereinbelow sub-rules (2) and (3) of rule 8 and the `proviso' thereto which are relevant for the purposes of appreciating the contention raised by the learned counsel.
Rule 8.-"(2) If the employer or his representative fails to appear on the specified date, the authority may proceed to hear and determine the application ex parte.
(3) If the applicant fails to appear on the specified date the authority may dismiss the application Provided that an order passed under sub-rule (2) or sub-rule (3) may be set aside and the application reheard on the good cause being shown within one month of the date of the said order, notice being served on the opposite-party on the date fixed for rehearing."
4. Mr. Ch. Rashid the learned Advocate for the respondent No. (i) to (vii) contended that the order passed by the Authority allowing the application filed under sections 15 and 16 of the Act on 22nd May, 1980 could not be treated as an ex parte order and therefore the application under rule 8 was not applicable and that the provisions of sub-rules (2) and (3) and the proviso thereto were not attracted to the facts of this case. 1 however do not find any substance in this argument as bare reading of the impugned order passed by the authority shows that the same had been passed ex parte and thus the proviso to sub-rule (2) and sub-rule (3) of rule 8 was attracted and the application moved by the petitioners for setting aside the said order was maintainable.
5. The learned counsel for the respondents then argued that the petitioners have also committed defaults earlier but the same were condoned and they were allowed to appear and that in the circumstances there is no justification for the petitioners to invoke the constitutional jurisdiction of this Court and thereby prolong and delay the proceedings which delay has already caused great hardship to the respondents (i)' to (vii). This argument however fails to take notice of the fact that the earlier defaults had already been condoned and for that reason alone the application for setting aside the ex parte order could not be refused to be `C entertained. If any authority is needed reference may be made to the case of Jan Muhammad v. Abdul Ghafoor (PLD 1966 SC 461) wherein the contention was repelled that since it was the second occasion on which the plaintiffs were seeking for restoration of their suit which had been dismissed for default, could hardly be of weight in determining the merits of their second application for restoration.
Reference may here also be made to the case of Noman Bhai v. Mr. Justice Muhammad Bux (PLD 1957 Kar.160), where relying on rule I1 of Administration of Evacuee Property Rules, 1950 which provided that the procedure laid down by Civil Procedure Code is to be followed in an inquiry by the Custodian as far as possible, it was held that such a rule imports jurisdic--tion to act under Order IX, rule 13, C. P. C.
6. Mr. Ch. Rashid then argued that the order dismissing the applica--tion for setting aside the- ex parse order was not appealable under section 17 of the Payment of Wages Act. I however do not find it necessary for the disposal of this writ petition to go into this question. The dismissal of the application under rule 8 took place on the wrong assumption that it was a case where the Authority was required to `revise' its own orders. This is an obvious case of refusal to exercise the jurisdiction vested in the Authority under the proviso to rule 8. .
7. For the reasons stated above, I allow the petition only to the extent that the order dated 14th June, 1980 passed by the Authority dismissing the application under rule 8 is declared as without lawful authority and of no legal effect as the said order amounts to refusal to exercise jurisdiction and direct the Authority (Respondent No. 2) to rehear the said application made under rule 8 and dispose it of on merits.
8. As the application under rule 8 has been ordered to be reheard, the order passed in appeal against the said order by the Respondent No. 3 on 18th July, 1980 also fails as the application itself has been restored and ordered to be reheard.
The parties are directed to appear before the Authority for the hearing of the application under rule 8 on 16th September, 1982. If for any reason the application could not be heard on that date the Authority shall dispose of the application thereafter within one month.
The above are the reasons for the short order passed.