' INAYAT ELAHI KHAN, J.-The facts giving rise to this writ petition briefly stated are that Mohammad Ibrahim Khan (respondent No, 1) was employed by the petitioner-Company (M/s. Sui Northern Gas Pipelines Ltd.) as a Tehsildar on project terms with effect from 16th July, 1970. Respondent No, 1 moved a petition for payment of outstanding dues under section 15 of the Payment of Wages Act, 1936 before the Authority under the Payment of Wages Act, but his petition was dismissed on 28th April, 1975. Respondent No, 1 then filed an appeal before the Labour Court, Peshawar which was, however, withdrawn on 30th August, 1975 for the reasons that both the parties conceded that the Labour Court had no jurisdiction in the matter. Thereafter, respondent No, 1 filed a petition under section 15 of the Payment of Wages Act read with section 6 of the Pakistan Essential Services (Maintenance) Act, 1952, before the National Industrial Relations Commission on 19th May, 1975 which was also dismissed by the N. I. R. C. For want of jurisdiction on 20th April, 1977. Respondent No, 1 then submitted a petition under section 25-A of the Industrial Relations Ordinance, 1969 before the Labour Court, Peshawar.
' The petitioner-Company again challenged the jurisdiction of the Labour Court on the ground that in view of the provisions of the Pakistan Essential Services (Maintenance) Act, 1952, and for the reasons that respondent was not a 'workman' within the meaning of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, the Labour Court had no jurisdiction. However, the application of respondent No, 1 was accepted by the Labour Court on 16th December, 1979 directing the petitioner to calculate the entitlement of respondent No, 1 regarding the overtime travelling and halting allowances and the field allowance. It was also directed that the arrears regarding the other admitted claims shall also be calculated and the amount paid to respondent No, 1 within 3 months of the order. The petitioner's appeal against the order of the Labour Court was dismissed by the Labour Appellate Tribunal on 3rd May, 1980. The petitioners then challenged the aforesaid orders by filing writ petition No, 327/80 in this Court wherein the questions of the jurisdiction of the Labour Court and that respondent No, 1 being not a 'workman' was not entitled to any relief, were specifically raised but it appears that the aforesaid objections did not prevail with the Court and the writ petition was dismissed on 8th July, 1981. The order of the Labour Court was maintained with the modification that respondent No, 1 was not held entitled to the dues for overtime for more than 3 years.
2. Respondent No, 1 then submitted an application under section 51 of the Industrial Relations Ordinance, 1969 before the Labour Court for the recovery of the outstanding amount which was accepted on 21st July, 1981. Respondent No, 1 was held entitled to the dues for overtime from 16th July, 1971 to 16th July, 1974 (period of 3 years as directed by the High Court), travelling and halting allowances amounting to Rs, 12,000, conveyance allowance of Rs, 5,700 and the field allowance amounting to Rs, 10,000 (items Nos. 5, 9, 10 and 11 of the schedule annexed to the original petition before the Labour Court). The Labour Court came to the conclusion that the authenticity of the aforesaid schedule was admitted by Mirajuddin Khan Khattak a witness of the petitioner-Company and no evidence was led in rebuttal. It was also observed that Mian Muhammad Iqbal another witness of the petitioner was specifically asked as to whether he had calculated the outstanding dues of respondent No, 1 according to the order of the Court but he intentionally avoided to give an answer. It appears that the petitioner failed to comply with the direction of the Labour Court regarding the calculation of the outstanding dues of the respondent. The order of the Labour Court dated 21st July, 1981 accepting the petition of respondent No, 1 under section 51 of the Industrial Relations Ordinance, 1969 was challenged by the petitioner in revision under section 38(3-a) of the Ordinance ibid before the Labour Appellate Tribunal, but the revision was dismissed on 18th August, 1981. The aforesaid orders are impugned in this writ petition.
3. Before dealing with the merits of the case it would be proper to refer to the preliminary objection raised by the learned counsel for the petitioner regarding the jurisdiction of the Labour Court. The learned counsel contended that in view of the pronouncement of the Honourable Supreme Court in the case of Karachi Electric Supply Corporation Ltd. v. National Industrial Relations Commission , the Labour Court did not possess the necessary jurisdiction to resolve the present dispute between the parties and' the remedy available to respondent No, 1 was to initiate criminal proceedings against the petitioner-Company before a criminal Court. It may however, be mentioned that the question involved in the cited case was regarding the termination of services and dismissal of certain employees and their reinstatement in service whereas in the present case the prayer of respondent No, 1 for reinstatement in service has already been disallowed by the Labour Court and the question was not pressed any further. The only question which required determination is regarding the entitlement of respondent No, I to the claims preferred by him. The Hon'ble Supreme Court observed that subsection (2) of section 6 of the Pakistan Essential Services (Maintenance)
Act (LIII of 1952) "renders the employee or the employer liable to penal action punishable under section 7 for contravening any rule framed by the Central Government or a direction of the specified authority regulating wages or conditions of service of persons or any class of persons engaged in such employment". It was also observed that "the power to regulate the wages and conditions of service and the violation of the Rules or directions are distinct for in the former the specified authority is merely enjoined to determine the wages and other conditions of service by issuing directions while the violations are dealt with as entailing penal consequences". It was further observed that "it is nobody's case that the specified authority had issued directions in regard to the wages or the terms and conditions of service of persons or class of persons serving1 as employees of the appellant". It is evident that during the relevant period of the service of respondent No, 1 the terms and conditions of his service were not regulated as envisaged by the Pakistan Essential Services (Maintenance) Act, 1952 and thus in the absence of any rules framed or directions issued by the specified anthority regulating the wages and terms and conditions of his service, it could not be said that the jurisdiction of the Labour Court was ousted in the matter.
Furthermore, there is no provision in the aforesaid Act for the grant of overtime and other dues claimed by the respondent. The Rules framed on 28th August, 1976 regarding the service of the petitioner-Company as also the Rules framed on 1st November, 1976 by N. I. R. C. Under section 6 of the Pakistan Essential Services (Maintenance) Act, 1952 would not be attracted to the present case for the respondent stood retired from service with effect from 31st May, 1975. Further it is clear that the case was not covered by section 5 of the Act as no offene appears to have been committed by the petitioner-Company and thus n relief could have been claimed by respondent No, 1 before a Magisterial Court. In. Javaid v. N. I. R. C. while dealing with the provisions of Pakistan Essential Services (Maintenance) Act (LIII of 1952) and the Industrial Relations Ordinance, 1969 (XXIII of 1969) it was observed that :- "There would be inconsistency between the two methods only where the wages and conditions of service have actually been regulated under the said Act and that mere issuance of a notification applying the provisions of the said Act to any class of employees or the framing of rules by the Federal Government under section 6 of the said Act delegating its powers to prescribe or regulate the wages and conditions of service of employees to whom the provisions of the Act have been made applicable, would not necessarily mean, without actually regulating their wages and conditions of service under the said Act, that the provisions of the said Ordinance relating to their wages and the terms and conditions of employment, and their right to seek' redress in respect of such matters under the said Ordinance would stand excluded."
4. It may also be mentioned that the judgment in PLD 1982 SC 125 was announced by the Hon'ble Supreme Court on 1st December, 1981 whereas the earlier writ petition bearing No, 327/80 stood decided by this Court on 8th July, 1981 wherein the question of the jurisdiction of Labour Court and the entitlement of respondent No, 1 to the dues claimed by him was finally decided between the parties. The mere fact that the proceedings under section 51 of the Industrial Relations Ordinance, 1969 for the calcula-tion, and recovery of the outstanding dues were pending before the Labour Court would not mean that the dispute between the parties regarding the questions of jurisdiction and entitlement of respondent No, 1 were also pending decision. The principle that an appeal is deemed to be continualtion of the proceedings in suit would not apply where a decree is sought to c be executed by filing an execution application Thus the petitioner cannot be permitted to reagitate the questions which stood finally resolved by they competent forums as also by this Court in writ petition No, 327/80 decided] on 8th July, 1981 and the petition for Special Leave to Appeal filed by the petitioner against the said decision was also dismissed by the Supreme Court on 5th October, 1981 as barred by time. In Income-tax Officer v. Cement' Agencies Ltd. it was observed that "the proceedings in respect of the disputed years were finally disposed of in favour of the respondent and until they are set aside in accordance with law, no fresh proceedings could be initiated in respect of these years". In Messrs Jamia Industries Ltd. Karachi v. Karachi Municipal Corporation it was held that "Correctness of a decree passed by a Court of competent jurisdiction is not a relevant consideration to its finality and operation. As erroneous decree which has become final is conclusive between the parties and may be set up as an estoppel by res judicata".
4. The learned counsel for the petitioner referred to Major Syed Walayat Shah v. Muzaffar Khan to contend that where the order of a Tribunal is found to be without jurisdiction, all successive orders based upon it are illegal and liable to be quashed. But in the case in hand the orders of the lower forums as also the order of this Court passed in writ petition No, 327/80 are not shown to have been2 3 4 5 passed without jurisdiction. In the cited case the question of law related to the jurisdiction of the successor Deputy Settlement Commissioner to review his order and it was held that if he had exercised a jurisdiction he did not possess, the High Court was quite competent to quash it and all successive orders based upon it. The learned counsel also relied on Chittaranjan Cotton Mills Ltd. v.
Staff Union wherein it was held that where the Court is not properly constituted the proceedings must be held to be corum non judice and, therefore non-existent in the eye of law. In the cited case the constitution of the Labour Court under the provisions of Industrial Dispute Ordinance 1959 has been so radically altered by the East Pakistan Labour Disputes Act, 1965 that it would not possibly be said that the Court constituted under the Ordinance of 1959 would substantially be of a similar character and complexion. Thus it was held to be a clear case of inconsistency. Reference is also made to Sartaj Industries Ltd. v. Muhammad Sharif but in the ' said case an application under section 51 of the Industrial Relations Ordinance, 1969 was dismissed in default. Another similar application filed subsequently was also dismissed in default and the application for restoration of the second petition in the circumstances was held as barred in view of Order IX, rule 9 and section 10 of Civil Procedure Code, 1908 for the reasons that failure to apply for restoration of the first application meant that the petitioner abandoned his right of fresh application under Order XXIII, rule 1(3) of the Civil Procedure Code, 1908. In these circumstances it was found that such application under section 51 of the Industrial Relations Ordinance, 1969 was not of the nature of execution proceedings entitling a decree holder to either file application for restoration or afresh application. It is obvious that the case is distinguishable and would not apply to the facts of the present case.
6. The learned counsel for respondent No, I relied on the Commissioner and another v. Mian Sher Muhammad to contend that in the writ jurisdiction the High Court cannot investigate into the disputed questions of fact for in the present writ petition the calculations as to the entitlement of respondent No, I worked out by the Labour Court have been challenged. However, a finding of fact can be interfered with in writ jurisdiction if based on no evidence or misreading of evidence. It appears that the Labour Court was not justified in granting the claim of Rs, 5,700 regarding the conveyance allowance (covered by item No, 10 of the Schedule) in as much as in the earlier decision of the Labour Court dated 16th December, 1979 the claim for the conveyance allowance was not allowed, although it was prayed for in the application under section 25-A of the Industrial Relations Ordinance, 1969. For the aforesaid reasons amount of Rs, 5,700 regarding the conveyance allowance is to be deducted from the entitlement of respondent No, 1
7. The learned counsel for the petitioner also urged that in writ petition No, 327/80 it was directed that respondent No, I was not entitled to the overtime for more than 3 years but the Labour Court had erroneously calculated the period of three years from 16th July, 1971 to 16th July, 1974. It is contended that the application under section 25-A of the Industrial Relations Ordinance, 1969 having been filed on 17th June, 1977 the period of three years would commence from 17th June, 1974 and in view of the fact that respondent No, I in his application has claimed overtime from 16th July, 1971 to 16th July, 1974 his entitlement to the overtime would only be for one month i. e. Between 16th June, 1974 to 17th July, 1974. But it appears that respondent No, 1 had preferred his claim for the first time on 15th February, 1975. The relief claimed could not be granted to him by various forums for want of jurisdiction and in this view of the matter the Labour Court while entertaining the petition under section 25-A of the Industrial Relations Ordinance, 1969 had condoned the delay. Thus counting the period of three years prior to 15th February, 1975 respondent No, 1 would be entitled to the overtime from 15th February, 1972. However, it may be mentioned that during the arguments the learned counsel for the petitioner admitted that the dues regarding the overtime as calculated by his client come to Rs, 41,665 for the relevant period. The learned counsel for the respondent also showed his willingness to accept the aforesaid amount. Therefore, we hold that respondent No, 16 7 8 shall be entitled to receive Rs, 41,665 from the petitioner for his claim regarding the overtime (covered ' by item No, 5 of the Schedule). Respondent No, 1 shall also be entitled to the arrears of other admitted claims which may be found to be still outstanding against the petitioner.
8. For the aforesaid reasons we maintain the impugned orders dated 21st July, 1981 and 19th September, 1981 passed by respondents Nos. 2 and 3, respectively with the modification stated above and dismiss the writ petition with no order as to costs.
9. The order of this Court dated 22nd November, 1981 suspending the impugned order stands vacated. PLD 1982 SC 125 PLD 1978 Kar. 64 PLD 1969 SC 322 PLD 1975 Kar. 26 PLD 1971 SC 184 PLD 1971 SC 197 1978 PLC 207 1972 SCM R 395