1. Petitioners, Zafar and Associates, constitute a firm as Consulting Engineers under the Pakistan Engineering Council Act, 1975. They were engaged by a German firm by name Messrs Dr. Ing. Erich Lackner as Pakistani Technical Associates in the latter's contract with Karachi Shipyard and Engineering Works Limited, Karachi, as Consulting Engineers in execution of construction of Dry Dock No.2 and Berth No.2 and other ancillary works by an agreement dated 28th March, 1966. In pursuance of the agreement, the petitioners provided a car driver by name Mian Karam Illahi, who is the respondent No.1 in the petition, to the Resident Engineer Mr. K. Schroder, deputed by the principal German firm to supervise the work entrusted to them. The petitioners dismissed the respondent, Mian Karam Illahi, from service on 19-9-1974 as a measure of disciplinary action. The respondent Mian Karam Illahi filed an application under s6ction 25-A of the Industrial Relations Ordinance, 1969, before the IVth Junior Labour Court, Karachi. Learned Junior Labour Court set aside the order of dismissal, by its order dated 31-1-1975, on the basis of certain lacuna but left scope for fresh inquiry open and ordered that the payment of back benefit, would depend on the result of the fresh inquiry. The petitioner preferred appeal before the Vth Sind Labour Court, but their appeal was dismissed by an order dated 12-3-1984. They preferred Constitutional Petition No.425 of 1975 in this Court but that too was dismissed on 28-8-1984. However, the petitioners did not hold fresh inquiry.
2. The respondent Mian Karam Illahi made an application under the Payment of Wages Act for payment of his back benefits. The petitioners resisted the application. The learned Authority under Payment of Wages Act upheld the claim of the respondent Mian Karam Illahi for the payment of a sum of Rs.54,160 and directed the petitioners to make payment thereof within ten days of the date of the order, which was announced on 9-4-1983. The petitioners went in Appeal before the IVth Sind Labour Court, Karachi. The learned Sind Labour Court partly dismissed the appeal and partly accepted it. It dismissed the appeal in respect of the plea of the petitioners that they were not the Industrial Establishment as to be amenable to the jurisdiction of the Authority under Payment of Wages Act, and accepted the petitioner's plea that the claim of the driver, Mian Karam Illahi, needed re determination and remanded the case to the Authority for that purpose. This decision was announced on 6-8-1983. In pursuance of that order, the Authority under the Payment of Wages Act, Karachi, re-examined the case regarding the claim of the respondent. Karam Illahi for his back benefits and maintained its previous order dated 9-4-1983 that the respondent Karam Illahi was entitled to back benefits amounting to Rs.54,160. This verdict was announced on 5-5- 1984. Ultimately, the petitioners filed this Constitutional Petition on 21-5-1984 to seek declaration that order dated 5-5-1985 passed by the Authority under the Payment of Wages Act, Central Division, Block 86, Pakistan Secretariat, Karachi (respondent No.2) has been passed without lawful authority and it is of no legal effect.
3. The learned counsel for the petitioners has contended that the provisions of Payment of Wages Act, 1936, do not govern the service of the respondent Mian Karam Illahi, as he was in the employment of petitioners who do not constitute any industrial establishment within the definition of the term contained in clause II of section 2 of the said Act. He has made reference to the provision of subsections (4) and (5) of Section 1 of the said Act. They read as under:-
(4) It applies in the first instance to the payment of wages to persons employed in any factory and to persons employed (otherwise than in a factory) upon any railway by a railway administration or, either directly or through a sub-convector, by a person fulfilling a contract with a railway administration.
(5) The (Provincial Government) may after giving three months notice of its intention of so doing, by notification in the (Official Gazette), extend the provisions of the Act or any of them to the payment of wages to any class of persons employed in any industrial establishment or any class of group of industrial establishment."
4. Elucidating his contention, the learned counsel has urged that the provisions of subsection (4) did not apply to the instant case; whereas applicability of the said Act on the basis of provisions of subsection (5) thereto depends upon a notification issued by the Provincial Government and that too- in respect of an Industrial Establishment or any class or group of industrial establishments.
5. According to him, the notification issued by the Government in the gazette of Pakistan, Part I, dated 10th September, 1956 relied upon by the learned Authority and the learned Labour Court does not extend to the services under the petitioners as that notification pertains to industrial establishment operating at the Dock, Wharf or Getty within the limits of Port of Karachi. On the other hand, the learned counsel for the respondent Mian Karam Illahi, has urged that, by virtue of the aforesaid Government notification, the service of the respondent Karam Illahi under the petitioner which was to be performed at the Dock, Wharf and Getty within the limits of the Port of Karachi, the provisions of the said Payment of Wages Act, 1936, extended to him and the authority under the Payment of Wages Act did have jurisdiction to determine the claim lodged by him.
6. The question agitated in the petition is that of jurisdiction of the Authority under Payment of Wages Act. In the case of the respondent Mian Karam Illahi, the learned Authority held by its order dated 9-4-1983, that it did have jurisdiction in entertaining the proceedings instituted by the respondent Mian Karam IIlahi and adjudicated upon the claim lodged by him for his emoluments and other benefits. This decision of the learned Authority was upheld by the Labour Court No.IV, Karachi by its order dated 6-8-1983. This order was not challenged before any forum. The Authority under the Payment of Wages Act proceeded to reconsider the claim of the respondent Mian Karam Illahi in pursuance of the order of the learned Labour Court No.IV, Karachi, dated 6-8-1983 and passed the impugned order dated 5-5-1984. The petitioners have preferred appeal against the order before the learned Labour Court and the appeal is still pending as stated in Paragraph 18 of the petition. It is stated in the same paragraph of the petition, that since the Labour Court before which appeal has been filed has already given decision that the provisions of the Payment of Wages Act, 1936, extend to the case of the respondent Mian Karam Illahi, the pendency of the appeal would not stand in the way of the relief sought under the petition. This plea is not sustainable as relief under constitutional jurisdiction can be sought when there is not efficacious remedy under any other law of land. Moreover, no relief has been sought against the order of the Labour Court dated 6-8-1983 holding that the Authority under Payment of Wages Act has jurisdiction in determining the claim lodged by respondent Mian Karam Illahi. Of course, it has been agitated in paragraph 18 of the petition that the decision of the learned Labour Court vide order dated 6-8-1983 is erroneous but in that case relief could have been sought in the petition against that order. Since an Appeal has been filed against the impugned order dated 5-5-1984 of the learned Authority under Payment of Wages Act and it is pending before the learned Labour Court and no relief has been sought against the order of the learned Labour Court dated 6-8-1983, the petition is not maintainable and it is dismissed with costs.