JUDGMENT.
Petitioners above-named, being-aggrieved by order dated 20-5-1979 of the Respondent No. 2, passed in Appeal No. 13 of 1978, under section 17 (1) (b) of the Payment of Wages Act, 1936, by which order dated 22-8-1978 of the learned Commissioner for Workmen's Compensation and Authority under the Payment of Wages Act, West Division, Karachi was set aside, has filed the above petition on the following facts and grounds.
2. The respondent No. 1 Barkhurdar had filed application under section 15 of the Payment of Wages Act, claiming his wages, bonus and other allowance from September, 1975 to December, 1975. The case of the respondent No. I was, that his salary/wages were stopped, by an interlocutory order dated 19-9-1975 of National Industrial Relations Commission and the said interlocu--tory order came to an end with the dismissal of the complaint by the Senior Member of the National Industrial Relations Commission on 8-3-1976, as such, the respondent No. I became entitled to his salary/wages from 19-9-1975.
3. The case of the petitioners, is, that the respondent No. 1 was dismissed from the service were. f. 11- 7-1970 for the misconduct committed by him. The respondent No. 1 had filed an application before the First Sind Labour Court for his re-instatement in service which was dismissed by the learned Labour Court on 14-4-1971. The respondent No. 1 preferred an appeal before the Sind Labour Appellate Tribunal, which was also dismissed. In the year 1972 under the pressure and coercion of Assistant Commissioner and S. D. M., Harbour the petitioners had agreed to pay salary/wages to the respondent No. 1 on the conditions, that the respondent No. 1 will enter the office of the factory once in a month with the permission of the manage--ment in connection with the union work and the respondent No. 1 will not be given any work in the factory. The Chairman of the National Industrial Relations Commission vide orders dated 19-9-1975 had stopped the said payments to the respondent No. 1, on the ground that hp was not on the roll of the company.
4. The respondent No. 1 had led his own evidence and the evidence of witness Mahasil Khan, whereas the petitioners produced their Manager, Mr. M. Munsif. And two witnesses namely Muhammad Amin Zahid and Mahfooz Haroon.
5. The petitioners alongwith their reply statement have raised legal objections that the Payment of Wages Act does not apply to the respondent No. 1, as he is not a workman under the said Act.
6. The learned Commissioner foe Workmen's Compensation and Autho--rity under the Payment of Wages Act, West Division, Karachi, rejected the respondent No. 1's application vide his order dated 2nd August, 1978 for the reasons given in the said order, against which respondent No. 1 filed an appeal under section 17 (1) (b) of the Payment of Wages Act, 1936 which was allowed by the impugned order and consequently the petitioners have filed the above petition, on the grounds mentioned in the above petition,
7. The learned Advocate for the petitioners in support of the above petition submitted as under :-
(a) That respondent No. 2 was not employed as workman in the factory, in spite of settlements arrived at between the petitioners and the workers' union in the years 1972 and 1973. In the alternative the settlements arrived at between the parties in the years 1972 and 1973 were nullified by the latter settlements arrived at between the parties in the years 1975 and 1978 and as such the Authority under the Payment of Wages Act had no jurisdiction to entertain respondent No. 1's application, as rightly held by the Commissioner, vide his order dated 22nd August, 1978 and consequently the impugned order of respondent No. 2 cannot legally be sustained, as the same is without jurisdiction.
(b) That in view of N. I. R. C. Order dated 19-2-1975 respondent No. 1 is not entitled to claim any wages, as the said order still holds field, as the same has not been set aside till today.
(c) That the settlement between the petitioners and the union arrived at in 1972, was under the coercion and as such not binding on the petitioners.
(d) In the alternative the learned Advocate for the petitioners submitted, that the respondent No. 1 was entitled to payment of Rs. 412 per month only.
8. The learned Advocate appearing for the respondent No. 1 on the other hand submitted, that the respondent No. 1 continues to be in service of the petitioners, in view of the settlements of 1972 and 1973, which is evident from the charge-sheet dated 27th December, 1974 which was served on the respondent No. 1 and the copy thereof is available at page 119 of the R & P of the learned Commissioner. The learned Advocate for respondent No. 1 further pointed out that the second charge-sheet dated 22nd August, 1975 was also served on the respondent No. 1 which also confirms this position, so also statement of Mr. Muhammad Munsif the manager of the petitioners dated 11th March, 1978, before the learned Commissioner.
9. That the definition of term "Wages" as given in the Payment of Wages Act, 1936 is fully applicable to the respondent No. 1 and as such he is entitled to all the remuneration included in the said term.
10. That N.
1. R. C. Order dated 19th September, 1975 stood vacated, when the complaint filed by the petitioners against the respondent No. 1 and others was withdrawn and as such the respondent No. 2's order is legal and binding on the petitioners.
11. The learned Advocate for the respondent No. 1 further submitted, that on basis of settlements dated 27-10-1972 and 29th September, 1973 the petitioners paid full wages i.e. Salary plus dearness allowance etc. To the respondent No. I up to August, 1975, but on passing of N.
1. R. C. Order dated 19-5-1975 they stopped such payments and refused to restore the said payments in spite of withdrawal of the complaint filed by the petitioners, in which the said order dated 19-9-1975 was passed by N.1. R. C. As interlocutory order.
12. That N. I. R. C. Order dated 19-9-1975 although now not in existence, was without jurisdiction and as such the Petitioner could not tale shelter behind the said order.
13. I have taken into consideration the above submissions made by the learned Advocates before me and have gone through the record and proceedings of both the learned lower Courts as well as through the impugned order dated 20th May, 1979 as well as through the order dated 22nd August, 1978 of the Commissioner.
14. It is clear from settlements dated 27-10-1972 and 29th September, 1973, that respondent No. 2 was re-instated as a result of the said settlements, no doubt the management on such re- instatement did not allow the respondent No. 1 to actually work in factory, although respondent No. 1 was paid his remuneration admittedly in his capacity as a workman, under the Payment of Wages Act as a result of the said settlements upto August, 1975, till passing of N. I. R. C. Order dated 19th September, 1975. It is also clear from the submissions made by the learned Advocate for the petitioners, that the petitioners bad not objected to the settlement dated 27-2-1972 and 29th September, 1973 and in fact acted on the said settlements and paid wages to the respondent No. 1 up to August, 1975, before passing of N. I. R. C. Order dated 19-9-]975, in spite of the fact that the respondent No. I was not on the pay roll of the factory, as alleged by the petitioners. It is also admitted position, that the complaint filed by the petitioners being case No. 4 (452)/75 was withdrawn by the petitioners, in which N. I. R. C. Order dated 19-9-1975 was passed, pending disposal of the said complaint. It may be noted ;hat the complaint in question was under section 53 of Industrial Relations Ordinance read with section 16 on account of go-slow tactics alleged to have been adopted by the workers, at the alleged instigation of respondents Nos. 1 and 2 others. In view of this the order dated 19-9-1975, which was an interim order passed stoop automatically vacated, in my opinion, once the complaint in question was withdrawn by the petitioners.
15. I ha-a also gone through the order dated 19-9-1975 copy of which is available as Annexure `I' at page 71 of the above-petition as well as through the order dated 8-5-1976 of the Senior Member of N. I. R. C. On the applica--tion of respondent No. 1 which is also available at page 77 as Annexure `K'.
It is clear from both these orders, that the order dated 1 -9-1975 stood vacated on the withdrawal of the complaint in question and, therefore, ceased to exist. . Further it is clear from the order dated 8- 5-1976, that the order dated 19-9-1975 was passed without any material on record, which is also obvious from the order dated 19-9-1975 and as such the said order dated 19-9-1975, in my opinion was without jurisdiction on this ground alone and as such does not in any way restrain the petitioners from implementing) the settlements dated 27-10-1972 and 29-9-1973, which were being followed up to August, 1975 and the respondent No. 1 was being paid wages under the provisions of the Payment of Wages Act, 1936 till then.
16. The contention of the learned Advocate for the petitioners, that the respondent No. 1 is not the workman within the meaning of Payment of Wages Act, as actually he is not working in the factory, in my opinion has no force at all. It is clear from the record and proceedings of the learned trial Court, that respondent No. I had never refused to work in factory, but on the contrary has been insisting for such work, but the petitioners, on the basis of settlement agreements dated 27-10-1972 and 29th September, 1973, refused to give him work in the factory and as such respondent No. 1 cannot be deprived of all the benefits as workman; simply because the petitioners are not prepared to permit him to work in the factory and have not legally terminated his services in accordance with law. I also noticed from order dated 8-3-1976 by which the complaint in question was withdrawn by the petitioners, that the ground for withdrawal of the complaint was that the workers in question, which included the respondent No. 1 had agreed to work peacefully in future.
Except for this ground for withdrawal, there was no other ground for withdrawal of the said complaint, which is also evident from the application for withdrawal of the said complaint, which is available at page 81 as Annexure `L'. Keeping in view the above observations made by me as well as the charge-sheets dated 22nd August, 1975 and 7th July, 1976 given by the petitioners to respondent No. I, which were later on not pressed, the respondent No. 1 continues to be in the service of the petitioners on the basis of settlement agreements dated 27-10-1972 and 29th September, 1973, although for no fault of his, he is not assigned to do any work, in the factory.
17. The contention of the learned Advocate for the petitioners, that the agreements dated 27-2-1972 and 29-9-1973 were arrived at under coercion also has no force, as the petitioners till today have taken no steps to declare these settlements as illegal, null and void on this ground. The case reported in 1962 PLC 925 on which the learned Advocate for the peti--tioners has relied, is not at all applicable to the facts of the present case, as rightly observed by the respondent No. 2 in its impugned order.
18. I have carefully gone through the impugned order dated 20th May, 1979 and in my opinion, in view of the observations earlier made by me, the respondent No. 2 had the jurisdiction to pass the impugned order and further I find the impugned order is based on cogent reasons and is fully supported by the material on record and I see no reason to interfere with the impugned order.
19. Therefore, I find no force in the above petition, which is conse--quently dismissed with cost.