' This appeal is directed against order dated 6-11-1984 passed by the Authority under the Payment of Wages Act, Hyderabad whereby the learned Authority directed the appellant to deposit a sum of Rs.14,699 for payment to the respondent.
2. The respondent was said to be working as Chowkidar in the appellant's establishment. He filed an application before the learned Authority claiming a sum of Rs.9,416 + 10-times penalty. His claim in nutshell was that he was not paid increments since July, 1981 and was also refused overtime from May, 1981. This claim of the respondent was resisted on behalf of the appellant and in its reply statement while denying the claim of the respondent it was pleaded that no overtime was permissible to the employees serving in the appellant's establishment it being a Government Department increments were duly allowed and paid to him as permissible under the rules.
3. On the basis of the pleadings the learned Authority struck the following two issues:
(1) Whether the claim of the applicant is entertainable or part thereof?
(2) What should the order be?
(4) After the evidence the learned Authority allowed the claim of the respondent/applicant by the impugned order and which has now been assailed in this appeal.
5. I have heard Mr.Mohammad Bashir Awan, Advocate for the Appellant, and Mr.Yawar Hussain, learned Representative, for the Respondent. I have also considered the factual and legal position of this case.
6. The most important submission of the learned counsel for the appellant is that the impugned order was passed without any lawful authority inasmuch as the learned Authority has no jurisdiction to entertain and adjudicate upon the claim of the respondent. Learned counsel submits that the respondent was working as Chowkidar and he was not covered by the definition of workman under I.R.O., 1969, Standing Orders, Ordinance or even the Factory Act. He also submitted that the respondent was employed in the Government Department and so he was also not covered by the I.R.O., 1969 or the S.O. Ordinance and he has to seek redress only from the Service Tribunals under the provisions of Service Tribunal Act. Learned counsel placed reliance on 1981 PLC
741. In this authority it has been laid down by the Sind Labour Appellate Tribunal that Wireman employed in Electric Inspector Department would be governed by rules applicable to Civil Servants and cannot maintain his grievance petition before the Labour Courts. Mr.Yawar Hussain, learned Representative, on the other hand, submitted that the respondent was working as on work- charged basis and so even if he was employed in a Government Department he would be a workman. Accordingly, he may approach to the Labour Court for the redressal of his grievance. He has placed reliance on 1980 PLC 7. In this reported case, the Baluchistan Labour Appellate Tribunal observed that all work-charged employees are not to be treated as Civil Servants if they are otherwise covered by the definition of the term (workman) mentioned in the Factories Act or the Workmen's Compensation Act. In such cases the provisions of I.R.O. Would be applicable and so the grievance petitions can be maintained before the Labour Courts.
7. The respondent was admittedly employed as Chowkidar on 29-5-1971 in a department which is of Government of Sind. He had approached the learned Authority and so it is to be examined if the respondent/applicant could have invoked the jurisdiction of the learned Authority. The provisions of Payment of Wages Act are applicable to such persons who are employed either in any Factory or such other Organizations to which the provisions of this Act are specifically extended. There is no evidence on record to show that the provisions of this Act were made applicable to the appellant's establishment. However, I have to see, whether the establishment of the appellant is covered by the definition of Factory. This term is defined in clause (j) of section 2 of the Factories Act, 1934.
According to the definition, Factory means any premises wherein a manufacturing process is being carried on with or without the aid of power. This definition makes it clear that in order to apply the provisions of Wages Act it is essential that the person must be one employed in any premises where a manufacturing process is being carried on. The respondent has not led any evidence to show that any manufacturing process is being carried on in the establishment of the appellant or he was in any way connected with any manufacturing process. The department run. By the appellant is not manufacturing anything and so it cannot be argued on behalf of the respondent that the provisions of Payment of Wages Act are applicable to the establishment of the appellant.
This being the legal position the respondent could not approach the learned Authority nor the later could have entertained the claim of the respondent. It is an irony of fate that every case is entertained and adjudicated upon without examining if the provisions of Payment of Wages Act are applicable to a particular establishment. Unfortunately, the learned Authority also did not advert to this important legal proposition while allowing the claim of the respondent. The application of the respondent must have been dismissed if it would have been examined that the provisions of Payment of Wages Act were not applicable.
8. While going through the impugned order I also find that the learned Authority not only not considered the availability of his jurisdiction but also granted a relief which was never claimed even by the respondent. He has permitted an amount of Rs.299 towards 28 days earned leave though the applicant/respondent never claimed the same. This also shows that the learned Authority had a predetermined view of passing an order against the appellant even if such an order was not prayed by any one. In fact, such practice on the part of the learned Authority has to be deprecated and it is hoped that learned Authority would be careful in future.
9. Since the establishment of the appellant does not fall within the category of a Factory, and since the respondent does not come within the definition of a workman as defined in the S.O. Ordinance, Factories Act or I.R.O., as has been held in the above-referred Appellate Tribunals authority, the impugned order cannot be maintained as the same had been passed without any lawful authority.
In the result, the appeal is allowed and while setting aside the impugned order, the application of the respondent is dismissed.