1. By this petition filed under Article 199 of the Constitution of Pakistan, 1973 the petitioner has prayed for grant of the following relief---s: (a)"Declare that the impugned orders, dated 6-8-1983 and 23-5-1984 of the respondent No.7 and the orders, dated 9-4-1983 and 5-5-1984 of the respondent No.6 are without lawful authority and are of no legal effect, and (b)Grant such other relief as this Hon'ble Court may deem fit and proper in the circumstances of the case."
2. One Mian Karam Elahi who was a driver in the employment of the petitioner. He died during the pendency of proceedings before the Tribunals for recovery of delayed wages. The respondents Nos.1 to 5 are his legal representatives. The respondent No.6 is Authority under the Payment of Wages Act while the respondent No.7 is the appellant authority under the said Act.
(1) In order to appreciate the questions involved in this petition it is relevant to refer briefly the facts leading to the filing of this petition, which are as follows: -- (i)The above-named Karam Elahi was in the employment of the petitioner as a driver. He was dismissed from the service on 19- 9-1974, on alleged disciplinary action. However, the said order of his dismissal from service was challenged by Karam Elahi and he after serving the grievance notice filed an application under section 25-A of the Industrial Relations Ordinance, 1969 before the IVth Junior Labour Court Karachi. The said Court set aside the order of dismissal but its order, dated 31-1-1975 on the basis of certain lacunas, scope for fresh enquiry was left open. It was further directed that the payment of back benefits would depend on the result of fresh enquiry. An appeal against the said order was preferred before the Vth Sind Labour Court by the petitioner which, however, was dismissed by order, dated 1-3-1984. Feeling aggrieved by the said order the petitioner filed Constitutional Petition No.425 of 1975 in this Court but the same was dismissed on 28-8-1984. According to the learned counsel, the said petition was dismissed due to non- prosecution.
3. Thereafter no fresh enquiry was made by the petitioner/the employer. In these circumstances the order referred to above, passed by the Junior Labour Court on 31-1-1975 became final.
4. (ii)Karam Elahi thereafter made an application under Payment of Wages Act before the Authority under the said Act for payment of his back benefits. The Authority- by its order passed on 9-4-1983 directed the petitioner to make payment of a sum of Rs.54,160, to Karam Elahi within a period of 10 days of the passing of the said order . . . . .. .
5. Against the above order the petitioner filed an appeal before the IVth Sind Labour Court, Karachi who disposed it of by order dated 6-8-1983 giving certain findings and remanded the case with directions given as follows:- (i)The appeal was partly dismissed on the question that Messrs Zafar Associates were not an industrial establishment.
6. (ii)The case, however, was remanded to the Authority for the "correct determination of the claim amount". On the basis of evidence so that injustice may not done to other side. Findings were ordered to be given within one month to avoid hardship to Karam Ellahi who had been pursuing the litigation since many years.
7. Against the order passed as above by the appellate Tribunal under the said Act, the petitioner did not file any Constitutional petition challenging the same.
8. (iii)Pursuant to the direction given in the above-referred order, dated 6-8-1983, the parties appeared before the Authority under the aforementioned Act who by order passed on 5-5-1984 reached the same conclusion and directed the petitioner to pay Rs.54,160 to the said Karam Elahi.
9. (iv)Constitutional Petition No.85/84 after the decision had been given by the Authority on 5-5-1984 was filed in this Court on 21-5-1984 seeking the declaration that the said order, dated 5-5-1984 passed by the Authority under the said Act was without lawful authority and of no legal effect.
10. In the meantime the petitioner also filed an appeal before the IVth Sind Labour Court, Karachi (Appeal No.1 of 1984) under section 17 of the said Act challenging the order, dated 5-5-1984 passed by the Authority in favour of Karam Elahi. This appeal was dismissed during the pendency of the above-mentioned Constitutional Petition No.85 of 1984.
11. Though it was mentioned in the said Constitutional Petition (C.P.No.85/84) that an appeal under the said Act was not an efficacious or adequate alternate remedy and the appeal had been preferred as a matter of abundant caution yet at the time of hearing of the said Constitutional Petition No.85/84 on 28-11-1985, the fact that the said appeal had already been dismissed on 23-5- 1985 was not brought to the notice of the learned Judge of this Court who heard the said Constitutional Petition. The said petition on 28-11-1985 was dismissed with the following observations:- "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 Elahi, 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 Elahi 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 Elahi 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 petitioner 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 Elahi, 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 no 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 o Wages Act has jurisdiction in determining the claim lodged by respondent Mian Karam Elahi. 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."
12. (The underlines made by me)
13. Against the above statement of the learned Judge of this Court dismissing the Constitutional Petition No.85/84 the petitioner preferred no appeal before the Hon'ble Supreme Court of Pakistan by moving any petition for grant of leave to appeal.
2. The petitioner, however, has now filed this petition dated 15-4-1986 invoking constitutional jurisdiction of this Court claiming the relief---s already reproduced above.
3. Having heard the learned Advocate for the petitioner, I find that this petition cannot succeed. My reasons for coming to this conclusion are stated below.
14. A perusal of the record shows that the Authority under the Payment of Wages Act had directed the petitioner to pay to Karam Elahi Rs.54,160 by order passed on 9-4-1983 against which the petitioner filed an appeal. The appellant Court remanded the case to the Authority for the correct determination of the claim amount on the basis of evidence. To this order/direction given by the appellate Court on 6-8-1983 the petitioner obviously acquiesced as he did not then challenge the same. On the contrary he appeared before the Authority and took the chance of getting a favourable order. The petitioner, however, having failed to succeed before the said Authority preferred an appeal which also was dismissed by order passed on 23-5-1984.
15. The order, dated 6-8-1983 remanding-the case was not even challenged in the earlier petition (Constitutional Petition No.85 of 1984) filed by the petitioner and which was dismissed with the observations reproduced above.
16. In the circumstances by the petition filed on 18-4-1986 the, petitioner cannot justifiable seek to re- open the findings given by then order, dated 6-8-1983 to which he had obviously acquiesced. The principle laid down in the case of Murad Bibi and another v. Mst. Ramzan Bibi and others 1968 SCM R 1007 would be attracted to the facts of this case. In the cited case, order of remand passed in revision by the Settlement Commissioner giving certain directions and eliminating the petitioners as not entitled to transfer of the property" was not challenged either in revision or by a petition for writ in the High Court and thus was allowed to become final against them." Thereafter the Deputy Settlement Commissioner pursuant to directions given in the order of remand disposed of the case. The petitioner then called in question the orders passed by the Settlement Authority by a petition for writ filed in the High Court which petition, however, was dismissed by a learned Single Judge. The Letters Patent Appeal preferred, was also dismissed. The petitioners then applied for grant of leave to appeal which was dismissed by the Hon'ble Supreme Court with the observation that the order of remand having been allowed to become final could not be challenged before the High Court or before the said Court. The rule laid down as above also applies to the facts of the present case. The order of remand, dated 6-8-1983 at no stage was challenged and was allowed to become final. The petitioner participated in the proceedings pursuant to order of remand and took a chance. Having lost, he cannot turn round and now try to re-open the same question by filing this petition in 1986 in this Court.
17. For the aforementioned reasons without going into other aspects of this case, this petition, is dismissed in limine.
18. A.A.