' MUFTAKHIRUDDIN, J.-This petition seeks to challenge the orders dated 6-2-1980 and 21-2-1980 passed by the Authority under the Payment of Wages Act, 1934 (hereinafter referred to as the Act) and the orders dated 31-5-1980 and 25-6-1980 passed by the Presiding Officer Labour Court Quetta acting as appellate authority under the said Act passed on appeal filed against the orders dated 6-2-1980 and 21-2-1980 and arise in the following circumstances.
2. The respondent Muslim Khan had made an application on 7-5-1976 before the authority under the Act and had claimed a sum of Rs, 12,686. It was alleged in the application that he had served the Quetta Club for 40 years and was dismissed from service without any cause and justification.
The claim included gratuity for 40 years of completed service besides Notice Pay and pay in lieu of' leave for three months and the cost of living allowance. The rejoinder was filed on behalf of the Quetta Club on 27-6-1976 and preliminary legal objections were raised that the claim was barred by time and no notice as required under section 25-A . Of the Industrial Relations Ordinance, 1969 was given. On merits it was asserted that since Muslim had attained the age of 84 years he was retired. The entitlement to gratuity and bonus was repudiated. Before the authority- the claimant Muslim Khan produced witnesses besides himself and on behalf of Quetta Club one Major Ghous Muhammad was examined who claimed to be the Secretary of the Quetta Club. The authority vide orders dated 19-7-1976 accepted the claim which was challenged in appeal and the Presiding Officer, Labour Court accepted the appeal. The present respondent filed a Constitutional Petition No, 45 of 1977 in the High Court of Baluchistan which was accepted on 15-10-1977 and it was held that since the appointment of the Presiding Officer, who had heard the appeal of the Quetta Club, was illegal, the order passed by him was without lawful authority and was of no legal . Effect. The result thereof was that the appeal filed on behalf of the Quetta Club was deemed to be pending. By now the Presiding Officer, Labour Court was succeeded by another encumbent who heard the appeal and disposed it off on 18-12-1978 and the case was remanded to the authority and the parties were bound down to appear before the authority on 30-12-1978 but the record shows that not only, on 30-12-1978 but on other numerous dates fixed for hearing no appearance on behalf of the Club was put in and the case lingered on. However on 7-1-1980 Mr. Qasim Bashir Advocate appeared on behalf of the Counsel for the petitioner Quetta Club and requested for adjournment.
The indulgence was shown and the case was adjourned for 6-2-1980 but it was made clear in the order that it was the last chance for the Quetta Club. On 6-2-1980 again no body appeared on behalf of the Quetta Club, neither any representative of the Club or the counsel. The authority in the circumstances proceeded ex parte and considering the statements of the witnesses on record, accepted the claim of respondent Muslim Khan and directed the Club to make payment. It appears that on coming to know this order, which as appears from the order dated 6-2-1980 was to be communicated to the Club, an application on 13-2-1980 for setting aside the order dated 6- 2-1980 (Annexure H) was made and the non-appearance on 6-2-1980 was attributed to the fault of the Clerk to note the date in the diary. This application was dismissed on 21-2-1980 (Annexure K).
The petitioner preferred an appeal before the Presiding Officer Labour Court against the orders dated 6-2-1980 (Annexure H). This appeal was dated 1-3-1980 and was presented on 4-34980. On a preliminary objection raised on behalf of the respondent that the appeal was not accompanied by a certificate of the authority to the effect that the appellant had deposited with the authority the amount payable under the directions appealed against. The objection prevailed and the appeal was found incompetent and was accordingly dismissed on 31-5-1980 (Annexure R). An application for seeking review was also dismissed vide order dated 25-6-1980 (Annexure T). The present Constitutional Petition has been filed in this Court and the orders Annexure H, K, R and T have been impugned.
3. The learned counsel appearing for the petitioner has complained that the authority was not justified in proceeding ex parte against the petitioner and the application for setting aside the Ex parte order was not legally disposed off as the reason shown for non-appearance was not allowed to be substantiated. We have perused the record of the case and from the minutes recorded in the proceedings it was found that the matter was adjourned at the instance of the counsel for the petitioner on 7-1-1980 and since no appearance was put in on behalf of the petitioner, he was proceeded ex parte. The reasons shown in the application for setting aside the order dated 6-2- 1980 did not persuade the authority to recall the order, simply because further indulgence was not shown and process of the Court not permitted to be abused, keeping in view the conduct of those who had taken upon themselves to appear for the Quetta Club, cannot be considered sufficient for the contention raised. The petitioner had placed his case (point of view) and has shown cause for the consideration of the authority but the authority did not consider the same sufficient and rejected the application on 21-2-1980. Simply because the evidence was not allowed to be produced would not render the order void. What is fair opportunity depends upon the facts of each case, and in the absence of any prejudice it remains a question of procedure and not o jurisdiction.
The reason shown for the recall of the order dated 6-2-198 is otherwise not sufficient in law. The authority did not consider the reason shown in the application but in view of the minutes recorded on 7-1-1980 did not consider sufficient for the recall of the order dated 6-2-1980. It cannot be possibly urged that such a view cannot be taken, taking n account the conduct of the petitioner before the authority, we are satisfied that the result would have been the same even if the petitioner had been heard further in view of the fact recorded on 7-1-1980 that the adjournment was at the instance of the petitioner and was the last chance and on 6-2-1980 there was none present on behalf of the Quetta Club, and during the entire period from 30-12-1978 neither any list of witnesses furnished on behalf of the Club nor any document on which the entitlement of the respondent was challenged produced. No prejudice was caused in these circumstances.
4. The High Court acts in aid of law and not to hamper the working of the agencies established by law. The superior courts have repeatedly pointed out that constitutional jurisdiction is exercised with restraint and in grave cases where the subordinate tribunals act wholly without jurisdiction or in excess of it or in violation of the principles of natural justice Or refuse to exercise the jurisdiction vested in them or there is an E error apparent on the face of the record and such act, omission or excess has resulted in manifest injustice. However extensive the jurisdiction may be, it is not so wide or large as to enable the High Court to convert itself into a Court of appeal and examine for itself the correctness of the decision impugned and decide what is the proper view to be taken or the order to b made. In Mst. Mahmooda Begum v. Chief Settlement Commissioner West Pakistan and another (1). It was held that "writ will not issue if only grievance is that order was not "proper or just", and Shabir Ahmed, J. Has pointed out at page 915 of the report :- "There is a fundamental difference between the power to hear appeals or revisions and the powers to issue writs."
The difference between appellate and revisional jurisdiction with powers of the High Court exercised in writ jurisdiction was further pointed out in Dyal Singh College Trust Society v. The Custodian of Evacuee Property, West Pakistan, Lahore and others (2) and at page 356 of the report it is pointed out :- "A Court having appellate or revisional jurisdiction can set aside an order on almost any reasonable ground unless the exercise of appellate or revisional power is limited by law to certain specified grounds but powers that can be exercised are different and limited in scope when the Court exercises powers to issue a writ."
' The error on the face of the record must be a manifest error e. g. It is based on clear ignorance or disregard of the provisions of law, and the {{FOOT NOTE}}
(1) PLD 1962 Lab. 911 (2) PLD 1962 Lab, 352 {{FOOT NOTE}} superior Courts do not substitute their own decision for decisions of the inferior Courts Abdul Matin v. Commissioner of Karachi and others (1) may be referred.
5. The orders dated 6-2-1980 and 21-2-1980 passed by the authority under the Act were appealable under section 17 of the Act and in fact the appeal was preferred but the appellate Court found that the appeal was not competent as it was not accompanied by a certificate of the authority as laid down in proviso to section 17 of the Act. This provision of the law is reproduced below :- "17. 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 Industrial Relations Ordinance, 1969 within whose jurisdiction the cause of action to which the appeal related arose."
(2) 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 three hundred rupees : 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 appeal against."
' A Court of appeal has inherent jurisdiction to determine any point, raised before it. Thus whether an appeal is competent and whether it has been prepared in proper form are all matters for the decisions of the appellate Court so constituted.
6. The learned counsel for the petitioner has contended that the cheque was deposited by the petitioner and this was in fact encashed later. This aspect of the matter has been considered by the appellate authority. The appeal dated 1-3-1980 was filed on 4-3-1980 without a certificate of the authority as required. The Presiding Officer has said :- "On 6-3-1980 the appellant produced a cheque dated 5-3-1980 drawn on Habib Bank Ltd. To the authority under the Payment of Wages Act and obtained a receipt on form meant for deposition of compensation as required by Workmen's Compensation Act."
If we presume that the said receipt is a certificate as required by the Act but the fact remains the same as it does not say that the amount has been deposited as required under the law and on the date before filing of appeal. This shows that the provision of the relevant Act has not been complied with. It has been further said :- "The receipt dated 6-3-1980 is only to the effect that a cheque amounting to Rs, 12,500 has been received. It did not say that the amount had been deposited as required under law and moreover the direction of the authority vide impugned order dated 6-2-1980 is different from that of deposited by way of Cheque.-From the above discussion it becomes clear that the Cheque has heen deposited for an amount other than the one payable under the direction of the Authority.
' It was further held that the amount mentioned in proviso to section 17 does not mean a cheque.
The learned Presiding Officer has, for his view, {{FOOT NOTE}} P D 1967 Icar. 281 {{FOOT NOTE}} relied on a judgment of Mr. Jamil Asghar (as he then was) delivered by him as Labour Appellate Tribunal Punjab reported in Muhammad Ilyas Khan v. The Divisional Superintendent Pakistan Railways, Multan (I). We are of the view that the presiding officer has determined this point in accordance with law.
7. The learned counsel for the petitioner being confronted with this position has submitted that the proviso to section 17 of the Payment of Wages Act is only directory in nature and not mandtory. The learned counsel overlooks the word "shall" used in the proviso and also the fact that this proviso was added to section 17 of the Payment of Wages Act by Act XI of 1975 and was done to safeguard the interest of the worker to secure the amount for him which is usually delayed by filing an appeal and the suspension of the orders which is usually passed by the appellate Court. This proviso is in keeping with the purposes for which the labour laws have been enacted. Such a condition as contained in proviso to section 17 of the Payment of Wages Act is also found in Income-tax Act and no Court of law in Pakistan has held that the restriction is unreasonable. In Mst. Sardar Begum v.
Lahore Improvement Trust, Lahore and 3 others (2) it was held that when law requires a particular thing to be done in a particular way, the provisions of such law must be complied with, failure to do renders proceedings invalid. In Mian Abdul Mai& and 7 others v. The Chief Administrator of Auqaf, West Pakistan, Lahore (3) it has been held that when Legislature intends a thing to be done in a particular manner, that thing must be done in that and in no other manner. The contention of the learned counsel for the petitioner is therefore repelled.
8. By this contention the learned counsel tried to suggest that there is an error of law. Even assuming that there is some force in the argument, but the mere fact that two views are possible on a question of law does not make the decision of the tribunal with jurisdiction bad on the ground that it has erred in law and the error is apparent on the face of the record, only that error can be corrected by this Court in its writ jurisdiction which is clearly apparent on the face of the record and which does not become apparent only by a process of examination of argument. If any authority for this view is needed. Batuk K. Vyas v. Surat Borough Municipality and others (4), Bashir Ahmad v.
Government of West Pakistan, Lahore and 3 others (5) Messrs Habib Mani v. The Federation of Pakistan (6) and Ghulam Nabi and another v. Khan Muhammad Afzal Khan, Settlement Commissioner, Lahore and another (7) may be referred to.
9. The petitioner had filed an application for review which was also dismissed on 25-6-1980 (Annexure T) and it was pointed out in the order that the Labour Court or Labour Appellate Tribunal do not possess any powers of review. This view was not seriously challenged by the learned counsel for the petitioner nor it can be successfully asserted in view of the law laid down in Hussain Bakhsh v. Settlement Commissioner, Rawalpindi and others (8) I was held that the right to claim review of any decision of a Court of law, like the right of appeal is a substantive right and not a mere matter of procedure. A review is not available unless it has been conferred by law. {{FOOT NOTE}}
(1) 1979 PLC 1 (2) PLD 1972 Lab. 485
(3) PLD 1972 Lah. 66 (4) AIR 1933 Born. 133
(5) PLD 1973 Lah, 92 (6) PLD 1974 Lab. 153
(7) 1970 SCMR 68 (8) PLD 1970 SC I {{FOOT NOTE}}
10. Lastly the learned counsel for petitioner contended that the respondent-was not entitled to gratuity and in this connection relied on the proviso to sub-Order (6) of Order 12 of the West Pakistan (Standing Orders) Ordinance, 1968. The Provision relied is reproduced below :- 12(6)..................
' Provided that where the employer has established a Provident Fund to which the workman is a contributor the contribution of the employer to which is not less than the contribution made by the workman, no such gratuity, shall be payable for the period during which such Provident Fund has been in existence."
' The proviso to Order 12(6) no doubt creates exception and it has been pointed out rightly by the counsel for the respondent that the elements contained in the exception were required to be first pleaded and then substantiated. This plea was not pleaded in the rejoinder filed on behalf of the Quetta Club nor any record to substantiate the same was produced before the authority. The only evidence on behalf of the petitioner is a statement of Major Ghous Muhammad who did not produce any record nor he could say that since when the fund was in existence, as such the plea nor being taken for the first time before us cannot be allowed to be raised. Besides it is dependent upon the adjudication of facts which are not admitted. We are clear in our minds that disputed questions involving investigation into facts cannot be decided by short hand method of writ. Syed Saghir Ali v. Mehar Din and others (1) may be referred.
The upshot of the above discussion is that there is no error of law apparent on the face of the record nor the orders impugned in this petition are passed in disregard of the provisions of law so as to call for our interference. The conduct of the petitioner before the authority under the Act and the incompetent appeal filed before the appellate authority does not entitle the petitioner to claim relief under our constitutional jurisdiction. The petition is accordingly dismissed with costs. The amount deposited by the Quetta Club shall be paid to the respondent forthwith and the order dated 6-7-1980 passed by this court stands vacated.
' MUHAMMAD JAFFAR NAIM, J.-I agree with the conclusions. {{FOOT NOTE}}
(1) 1968 SCMR 145 {{FOOT NOTE}}