This appeal is directed, against the order of Commissioner Workmen Compensation and Authority under the Payment of Wages Act, Karachi
2. In this appeal filed by Mr. Abdul Maboob, who is the Fireman, in the service of K.M.C. Has challenged the order of the authority, for the view, taken in appeal, that the learned Authority has failed to consider the provisions of the Payment of Wages Act and the Factory Act.
3. His claim was very simple, for the release of increments deducted from his wages since, 1972, and from 24-4-1970 to 23-2-1985.
4. In the learned Court, respondent also raised the objection that, the learned Authority has no jurisdiction and the application is also affected by time limitation.
5. In the arguments advanced, in the learned Court of the authority the precise submission of the K.
M. C. Was that the Payment of Wages Act is not applicable for, it is not a factory, in which he is employed and also he is the municipal servant, and governed by Sind Local Government Ordinance, 1979.
6. On the factual contention, the argument was also advanced that 'the applicant is not entitled to any amount, when he has not exercised option under National Scale of Pay, 1972.
7. The Court has heard Mr. Ibney Ayoob, for the aggrieved employee, and K.M.C . Representative.
8. Firstly, the question which has come before the Labour Court , whether he is employed in any factory.
9. If section 1, subsection (4) is referred in the Payment of Wages Act, it applies to the person employed in any factory, in relation to the payment of wages and to persons employed in Railway.
The word "Factory" is defined in Factory Act, where the manufacturing process is carried out.
10. Admittedly he is a Fireman employed in the Fire Brigade. The) provisions of the Payment of Wages Act, do not have application.
11. The next point will be by referring to subsection (5), which provides that the provincial government, after giving three months notice, may extend the provision after three months, issue notification that the Payment of Wages Act also will apply to the class of persons, employed in any industrial establishment. What are those industrial establishments, as in the present case, if the definition is extended of the Factory Act, it means a workshop or other establishment, in which articles are produced, adapted or manufactured, with a view to their use, transport or sale. Other classifications are not relevant to this case. Obviously therefore, it follows whether the articles are produced in the workshop or manufactured for the use in transport. If it is not the position, when he is simply a Fireman, he cannot come under this jurisdiction for the application of the Payment of Wages Act.
12. If the definition of worker, is seen, in context of the classification of clause (h), of section 2, the worker is understood relating to employment in connection with the manufacturing process or any act incidental, or connected with the subject of manufacturing process. Even the cleaning of machinery, must relate to the manufacturing process.
13. The word "worker" defined in Sind Local Government Ordinance, means any person employed in industrial or commercial establishment, to do skilled or unskilled, manual or clerical labour for hire or reward.
14. When definition of section 1 of the Standing Orders Ordinance is referred and he claims to be workman in the definition of clause 1, section 1 subsection (4) has further put limitation that, Standing Orders Ordinance applies to such class or classes of industrial or commercial establishment as the Government may from time to time by Notification in the gazette, specify, provided nothing in this Ordinance shall apply to industrial and commercial establishment if it is carried on, by or under the authority of Central or any Provincial Government, where statutory rules of services 'conduct or discipline are applicable to the workman employed therein.
15. Pointedly, this is the matter of official record that he was proceeded under the statutory disciplinary rules. Subsection (4) therefore, bars the jurisdiction regarding remedy. He is, therefore, to seek remedy before the Tribunal constituted under the Sind Local Government Ordinance.
16. In view of the matter, therefore, the point is very simple, he is not employed in manufacturing process and nothing in this Ordinance shall apply to such establishment where statutory rules of service C which are applicable to the workman employed. His further remedy under I . R.O. Is also to be examined in light of the definition of worker under that Ordinance, which definition is different from the Standing Orders, Ordinance.
17. It may also be pointed that if the Notification is not produced by the K.M.C. As required under the Payment of Wages Act, subsection (5) of section 1 which provides that the Provincial Government, after giving three months notice of intention by Notification 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, it follows that the case of the applicant if examined now in context of subsection (4) of section 1 under the Payment of Wages Act, the applicant has failed to convince the Court, that he is not employed in factory which is to be defined in the context of the definition under the Factory Act.
18. In the result, applicant /appellant has no merit on question of law and appeal is dismissed.
However, irrespective of the legal effect, if in case he does not file appeal under the provisions of the Local E Government Ordinance, he can pursue the remedy in the administrative forum. If his grievance is legtimate earnings from the sweat of his brow, his representation be considered in the administrative forum.
19. For the view taken, on the question of law, the Court has also referred the authoritative opinion, taken in the Constitutional Petition No.90 of 1982, which was submitted before the learned Authority and also referred Petition No.1709 of 1978 and Petition Ibney Ayoob, Representative for Appellant.
Muhammad Yasin Kayani for Respondent.
This appeal is directed, against the order of Commissioner Workmen Compensation and Authority under the Payment of Wages Act, Karachi.
2. In this appeal filed by Mr. Abdul Maboob, who is the Fireman, in the service of K.M.C. Has challenged the order of the authority, for the view, taken in appeal, that the learned Authority has failed to consider the provisions of the Payment of Wages Act and the Factory Act.
3. His claim was very simple, for the release of increments deducted from his wages since, 1972, and from 24-4-1970 to 23-2-1985.
4. In the learned Court, respondent also raised the objection that, the learned Authority has no jurisdiction and the application is also affected by time limitation.
5. In the arguments advanced, in the learned Court of the authority,. The precise submission of the K. M. C. Was that the Payment of Wages Act is not applicable for, it is not a factory, in which he is employed and also he is the municipal servant, and governed by Sind Local Government Ordinance, 1979.
6. On the factual contention, the argument was also advanced that 'the applicant is not entitled to any amount, when he has not exercised option under National Scale of Pay, 1972.
7. The Court has heard Mr. Ibney Ayoob, for the aggrieved employee, and K . M. C . Representative.
8. Firstly, the question which has come before the Labour Court, whether he is employed in any factory.
9. If section 1, subsection (4) is referred in the Payment of Wages Act, it applies to the person employed in any factory, in relation to the payment of wages and to persons employed in Railway.
The word "Factory" is defined in Factory Act, where the manufacturing process is carried out.
10. Admittedly he is a Fireman employed in the Fire Brigade. The provisions of the Payment of Wages Act, do not have application.
11. The next point will be by referring to subsection (5), which provides that the provincial government, after giving three months notice, may extend the provision after three months, issue notification that the Payment of Wages Act also will apply to the class of persons, employed in any industrial establishment. What are those industrial establishments, as in the present case, if the definition is extended of the Factory Act, it means a workshop or other establishment, in which articles are produced, adapted or manufactured, with a view to their use, transport or sale. Other classifications are not relevant to this case. Obviously therefore, it follows whether the articles are produced in the workshop or manufactured for the use in transport. If it is not the position, when he is simply a Fireman, he cannot come under this jurisdiction for the application of the Payment of Wages Act.
12. If the definition of worker, is seen, in context of the- classification of clause (h), of section 2, the worker is understood relating to employment in connection with the manufacturing process B or any act incidental, or connected with the subject of manufacturing process. Even the cleaning of machinery, must relate to the manufacturing process.
13. The word "worker" defined in Sind Local Government Ordinance, means any person employed in industrial or commercial establishment, to do skilled or unskilled, manual or clerical labour for hire or reward.
14. When definition of section 1 of the Standing Orders Ordinance is referred and he claims to be workman in the definition of clause 1, section 1 subsection (4) has further put limitation that, Standing Orders Ordinance applies to such class or classes of industrial or commercial establishment as the Government may from time to time by Notification in the gazette, specify, provided nothing in this Ordinance shall apply to industrial and commercial establishment if it is carried on, by or under the authority of Central or any Provincial Government, where statutory rules of services 'conduct or discipline are applicable to the workman employed therein.
15. Pointedly, this is the matter of official record that he was proceeded under the statutory disciplinary rules. Subsection (4) therefore, bars the jurisdiction regarding remedy. He is, therefore, to seek remedy before the Tribunal constituted under the Sind Local Government Ordinance.
16. In view of the matter, therefore, the point is very simple, he is not employed in manufacturing process and nothing in this Ordinance shall apply to such establishment where statutory rules of service, which are applicable to the workman employed. His further remedy under I.R.O. Is also to be examined in light of the definition of worker under that Ordinance, which definition is different from the Standing Orders, Ordinance.
17. It may also be pointed that if the Notification is not produced by the K.M.C. As required under the Payment of Wages Act, subsection (5) of section 1 which provides that the Provincial Government, after giving three months notice of intention by Notification 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, it follows that the case of the applicant if examined now in context of subsection (4) of section 1 under the Payment of Wages Act, the applicant has failed to convince the Court, that he is not employed in factory which is to be defined in the context of the definition under the Factory Act.
18. In the result, applicant /appellant has no merit on question of law and appeal is dismissed.
However, irrespective of the legal effect, if in case he does not file appeal under the provisions of the Local E Government Ordinance, he can pursue the remedy in the administrative forum. If his grievance is legtimate earnings from the sweat of his brow, his representation be considered in the administrative forum.
19. For the view taken, on the question of law, the Court has also referred the authoritative opinion, taken in the Constitutional Petition No.90 of 1982, which was submitted before the learned Authority and also referred Petition No.1709 of 1978 and Petition No. 1738 of 1970, referred by K . M . C . Legal representative and now form part of the record.