JUDGMENT Justice (Rtd.) Munawar Ali Khan (Chairman).-The appellant Barkht Ali who was Tapedar in District Nawabshah was dismissed from service by order dated 23rd August, l*a3 passed by Deputy Commissioner, Nawabshah, The departmental appeal preferred by him against the said order failed, as the Commissioner vide bis order dated 4-5-1986 up held the appellant's dismissal from service. The present appeal is directed against the aforesaid two orders.
After hearing the arguments addressed at the bar, the appeal was allowed by short order dated 2- 3-1986 which reads as under ; "Mr. Naimatullah Qureshi for the appellant present. Mr. Rasheed Akhtar Qureshi Government's counsel also present. After hearing the arguments of the learned counsel for the parties, the appeal is allowed with no order as to costs an4 the impugned order of the dismissal of the appellant is set aside. However, the case is remanded back to the Authorized Officer concerned with direction to proceed with the case afresh in accordance with the procedure laid down in the Sind Civil Servants Act (B Sk Dj Rules, 1973. Reasons to foil ow", Following are the reasons in support of the above short order. The appellant was served with show cause notice dated 15-2-1979 alleging therein that on his transfer from Tapo Lalia, Taluka Moro, he did net handover the registers specified in the notice, which were in his custody, to his successor. It was further alleged in the notice that as per report of the Mukhtiarkar Moro, the appellant had reported to him on 28-11*1978 that four registers of Patw ri Form XV of Deh Junalo were stolen away from the box by breaking open its lock. On receipt of such report, te Show-cause Notice further shows the appellant was given a letter addressed to the SHO More for lodging complaint about theft of the record, but he did not go to the SHO and instead produced the said letter along- with bis statement before Mukhtiarkar Moro that the record said to be stolen was found to be lying behind the box Despite such statement by the appellant, the record in question was not delivered by him to his successor and therefore he was charged with malafide intention of mis. Placing the public record with a view to hide some mischief played with the record. By the said Notice the appellant was also called upon to submit his reply within 14 days. It appears that the appellant submitted his reply in compliance with the Show-cause Notice.
The record shows that after the appellant submitted his reply as aforesaid, the Deputy Commissioner, Nawabshah directed the Assistant Commissioner Moro to conduct an enquiry into the allegations made against the appellant. The Assistant Commissioner after holding the necessary enquiry submitted his findings, on the basis of which the Deputy Commissioner found the appellant guilty of the charges proved against him and passed the order of his dismissal from service as mentioned above.
As provided in the aforesaid rules, the Authorized Officer had two options : First, to serve the appellant with Show-cause Notice without ordering detailed enquiry and, second to give him charge sheet accompanied bv statement of allegations, if he was of the opinion that detailed enquiry would be necessary and in that case also to name enquiry committee or enquiry officer. In the instant ease the disciplinary action commenced with service of show cause notice on the appellant, showing thereby that detailed enquiry was not contemplated. However after receiving the appellant's reply to the Show cause notice the Deputy Commissioner changed the course and directed the Assistant Commissioner to hold an enquiry. In compliance with such direction the Assistant Commissioner held the necessary enqui y and submitted his finding It is dear from the impugned order passed by the Deputy Commissioner, dismissing the appellant from service that the said order has been based entirely on the findings arrived at by the Assistant Commissioner in the enquiry conducted by him.
It is an admitted position that the appellant was not associated with the said enquiry held by the Assistant Commissioner. The same was Conducted in his absence and behind his back. Thus not only the procedure contained in the aforesaid Efficiency and Discipline Rules was thrown to wind but also the appellant had been condemned unheard. If detailed enquiry was intended to be held against the appellant, the procedure given in Rule 6 of the aforesaid Rules was to be followed in as much as that as a first step the charge-sheet along with statement of allegations had to be communicated to the appellant. This was obviously act done Further more neither the appointment of Assistant Commissioner Moro as Enquiry Officer was notified to the appellant nor the enquiry was held in his presence affording him opportunity of cross examining the witnesses examined in coarse of the enquiry. Even the statement of the accused official was not recorded in the said enquiry. Despite the above irregularities, the findings arrived at by the Assistant Commissioner in that enquiry have been made the basis of the impugned order by which the appellant was dismissed from service.
For above reasons the impugned order was not sustainable and as such the appeal was allowed and the said order was set aside, However the ease was remanded back to the Authorised Officer concerned with direction to proceed afresh in accordance with the aforesaid rules, K.Li.*.. 1987 Labour and Service Cases 226 [Lahore] Pnsent ; Raja A/raitab Khan, J.
PUUJAB SMALL INDUSTRIES CORPORATION versa* ABDUL WAHEED W. P. No. 1912 of 1983, decided on 9th May, 1987,
(a) Industrial Relations Ordinance (1969) ----- S. 25-A-Workman-Termination of services on plea of closure of project of petitioner-Respondents challenging such termination before Punjab Labour Court-Same dismissed However, Punjab Labour Appel- lote Tribunal accepting respondents* appeal with back benefits (Para. 2)
(b) Provisional Constitution Order (1981) --Article 9-Counsel for petitioner contending that petitioner Corporation being a statutory body Appellate Tribunal had no jurisdiction to entertain appeals of respondents and decide same-Such contention repelled-Same having not been raised before the Tribunal to the jurisdiction of which petitioner had itself submitted-Held ( Finding given by Tribunal based on evidence-No justification to interfere in such finding of fact in exereise of extra-ordinary writ jurisdiction-Petitions having no force- Held further : Same are accordingly dismissed. (Para. 5)
PLD 1974 SC 139 PLD ; 1982 SC (AJ & K) 64 ; PLD 1987 Lah. 263 ; PLD 1978 Tr. C. (Labour) 51 ; PLD 1980 Lah. 337.
For the Appelleet: M. N. Beg, Advocate.
For the Respondent: M. Nawaz Kasuri, Advocate.
Date of hearing : 26th 27th, 28th, 29th April and 2nd, 3rd, 5th and 9th May, 1987.
Raja Afrasiab Khan, J.-The petitioner, Punjab Small Industries Corporation (hereinafter to be known as the Corporation) has moved this Constitutional petition (W.P. No. 1912 of 1983 under Article 9 of the Provincial Constitution Order, 1981, against the respondents whereby the Punjab Labour Appellate Tribunal vide its decision dated 23-4-1983, accepted the appeal of the respondent No. 2 Abdul Waheed, directing his reinstatement to his service with back benefits.
Similarly, the Corporation has filed W.P. No. 1913 of 1983 against Muhammad Ashraf respondent, W.
P. No. 1914 of 1983 against Nazir Ahmad respondent, W. P. No 1915 of 1983 against Abdul Hamid respondent and W.P. No. 1916 of 1983 against Muhammad Sarfraz respondent, since common questions of facts and law are involved in all these connected matters, I, therefore, propose to dispose of these petitions by my consolidated order.
2. Respondents No. 2 in all these connected matters were appointed as expert bottomar, upper man, bottomar, fency leather Mistri and upper man in a section of the Corporation called the Institute of Leather Technology, Footwear Section Oujranwala. The object to run the aforesaid centre was to provide trained personnel for shoe-making industry with latest technology.
According to the Corporation, at the initial stage the project was run with useful service to the industry but later on its utility diminished rapidly as a result of whieh the Board of Directors took the decision to close the project. This is the version of the Corporation, although it is wholly refuted and denied by the contesting respondents. The Board aforesaid, directed on 14-4-1980 that the services of the staff should be sub-let. As a consequence of the decision stated above, the services of respondents No. 2 in each case were terminated with immediate effect being no longer required vide order dated 9-8-1980 (Annexures 'B'). The respondents filed grievance petitions under seetien 25-A of the Industrial Relations Ordinance, 1969, challenging the orders whereby their services were terminated before the Presiding Officer, Punjab Labour Court No. 7, Gujranwala. The learned Presiding officer of the said Court vide his orders daiod 22-2-1982 (Annexure 'C'j dismissed the petitions of the respondents. The respondents went in appeal before the Punjab Labour Appellate Tribunal, Lahore, under section 37 of the Industrial Relations Ordinance 1969, challenging the orders aforesaid. The learned Labour Appellate Tribunal vide his orders dated 20-4-1983 accepted the appeals of the respondents with back benefits.
3. The learned counsel appearing on behalf of the Corporation has submitted that the learned Tribunal has misread the evidence on record, inasmuch as the statement of Ghulam Hussain (R.W ) clearly shows that the shoe section of the institute is closed. It is stated that if the respondents are taken into service back, this shall be a great financial burden on the Corporation. It is vehemently contended by learned counsel for the petitioner that the provisions contained in the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, are not applicable to the Corporation as the Corporation is a statutory body being run by the Government and has got its statutory rules. On these premises the learned counsel stated that the learned Labour Appellate Tribunal had no jurisdiction to entertain the appeals of the respondents and to decide the same.
Learned counsel wanted to produce some additional evidence at this stage to prove that shoe section of the institute could not be leased out as per an agreement between Pakistan and West Germany. Learned counsel for respondents No. 2 in each case has taken the stand that their posts were never abolished and as suh, their services could not be terminated. It is submitted that the shoe section of the insti- (9th has been given on contract basis. It is submitted that the learned Labour Appellate Tribunal after considering the entire evidence produced by both the parties and the law appplicable and the subject, had given a finding of fact that the shoe section has not een closed ont that the posts of the respandents have not been abolished. It is next nehemently submitted that the petitioner has not come with clean hands in the High Coui t and does not deserve any discretionary relief. It is submitted that the petitioner now wants to build altogether a new ease from the one which was available to it before the learned Labour Appellate Tribunal The learned counsel forcefully argued that this was not the case of the Corporation that the shoe section of the institute had been closed, neither this plea was taken in the written statement nor in the relieving order. The learned counsel has produced before me affidavit of Mr. Zafar Saleem Advocate, Gujranwala, to disclose that R W. 1 Ghulam Hussain did not depose in his statement that shoe section of the institute is lying closed since long. Besides this, the learned counsel has also placed before the Court the hand written copy of the statement of R W. 1 which he noted while inspecting the file. It is next contended that no counter affidavit has been hied by the Corporation challenging the contents ef the affidavit of Mr, Zafar Saleem Advocate, Gujranwala. The affidavit of Mr. Zafar Saleem Advocate was that he was a counsel in the ease and appeared before the Punjab Labour Court No. 7 as such. He stated that he inspected the file and noted the statement of Ghulam Hussain Accounts Officer (R.W. 1) in its entirety and there was no mention by the said witness that the shoe section of the institute has been dosed.
4. I have heard learned counsel for the parties at great length and perused the record very minutely and I have come to the conclusion that the shoe section of the institute has not at all been closed. To begin with, the learned Punjab Labour Appellate Tribunal after considering the entire evidence on record gave a clear finding of fact that shoe section has not been closed. The learned Tribunal oas placed reliance on the written statement as well as the statement of Ghulam Husain (R.W. 1) to say that the shoe section has not been closed. The learned Tribunal has also come to the eonelusiou that steps had been taken for leasing out the shoe section and tenders for that purpose have been invited. The learned Tribunal has concluded by saying that services of the workmen could not be terminated by adopting such a device. The finding of fact arrived at by the Punjab Labour Appellate Tribunal coupled with the affidavit of Mr. Zafar Saleem Advocate, Gujranwala, I have come to the conclusion that the shoe section was not elo sed at the relevant time. The statement of R.W. 1 Ghulam Hussain Aosounts Officer did not contain the sentence, namely, "shoe section is lying closed". It was pointed out by the learned counsel appearing on behalf of the respondents that interpolations had been made in the statement of Ghulam Hussain R.W. 1, inasmuch as the sentence namely, "shoe section is lying closed" has been added in a different ink by a different band. I have myself seen the said disputed sentence with magnifying glass and I find the same is in different hand and different ink from the other statement of R.W. 1.
The learned counsel for the corporation, when confronted with this specific situation, could not explain the same in so many clear words. However, he stated that the learned Punjab Labour Court No. 7 has categorically stated in his judgment that the witness R.W, 1 Ghulam Husain has stated that 'shoe section is lying closed*. Additionally it is clear from the orders dated 9-8-1980, whereby the services of the respondents were terminated on the ground of abolition of posts. In these orders there is no mention toat the shoe section has been closed. On the request of the learned counsel for the Corporation, one Mr. Muhammad Nauman llsmani. Supervisor, was summoned in Court and he deposed that shoe section is closed since 1980 and the machinery worth 19 (nineteen) lacs it lying idle and that his services have been retained in order to look after the said machinery. I am also of the view that this officer is the employee of the Corporation and he cannot go against his instructions. The mere fact that the machinery worth laet of rupees is still installed at the spot and that he was there as supervisor will show that the sestien n question has not been closed. Is therefore, think that the finding of the learned Labour Appellate Tribunal that this device has been adopted to terminate the services of the respondents appears to be correct.
5. I am of the view that the finding given by the learned Labour Appellate Tribunal is based on evidence and I |do not find any justification to interfere in that finding of fact in the exereiee of extra-ordnary writ jurisdiction. If any authority is needed, reference may be made to Muhammad Husain Munir v, Sikandar etc. PLD 1974 SC 139, Muahmmad Suleman etc. v. Javed Iqbal etc. PLD 1983 SC AJ & K. 64 and Ama v. District . Udge, Staikoi etc. PLD 1987 Lahore 263. There is no force in the contention of the learned counsel for the Corporation that for learned Labour Appellate Tribunal had no jurisdiction to entertain the appeal. The Corporation submitted to the jurisdiction of the learned Labour Appellate Tribunal and they did not raise this plea before the siad^ Court and, therefore, now at this stage they cannot be permitted to raise the plea of jurisdiction. Furthermore, the plea of jurisdiction was raised by the Corporation before the Presiding Officer Punjab Labour Court No. 7, that the instant case does not fall in bis jurisdiction for determination. However, the learned Presiding Offieer overruled the objection and held that the Labour Court was competent to entertain and decide the matter and in that behalf reliance was placed on Saeed Ahmad Chand v.
Regional Manager, PAS & DC Lahore PLJ 1987 Tr. C. Labour 51. This view is further supported by the case of Habibullah v. Government of the Punjab etc. PLD 19c>0 Lahore 337 wherein it was held that the respondent is one of such Corporations and the functions it is entitled to perform under sections 18 and 27 of Act XV of 1973, to constitute it as a person performing functions in connection with the affairs of a Province. I respectfully follow the dictum laid down in this case for its service in the case in hand. It may be pointed out that the Corporation \ did not file any cross-objections before the Punjab Labour Appellate Tribunal so far as this part of the finding by the Presiding Officer Punjab Labour Court No. 7 was concerned. Thus the objection of the Corporation is repelled. The learned counsel wanted to produce seme additional evidence in the shape of a letter saying that the machinery installed in the institute shall not be leased out, cannot be permitted to do so at this stage. If the aforesaid letter was so much important from the point of view of Corporation, they should have produced that letter at the earliest possible opportunity. They did not do so, neither before the Punjab Labour Court No. 7, nor before the Punjab Labour Appellate Tribunal. They, therefore, cannot be allowed to produce fresh evidence at this stage in the exercise of Constitutional jurisdiction of the High Court. It is next argued by the learned counsel that the actions and orders of the Corporation stand validated by the Validating Ordinance, 19,2, and, therefore, if any irregularity has been committed by the Corporation, that stands validated. I am not persuaded to go into the validity or otherwise of the contention raised by the learned counsel for the Corporation because the same point is under consideration before the Full Bench of the Lahore High Court Therefore, I do not enter into the discussion on the plea of the learned counsel.
6. Now I take up Writ Petition No. -332/S-83 titled Muhammad Ashraf v. Punjab Small Industriea corporation etc. In this case there is slight difference from the other five connected writ petitions, inasmuch as the petitioner, Muhammad Ashraf, directly came in the High Court by moving the aforesaid writ petition against the orders of the respondent whereby his services were terminated on the ground that the post of Shoe Technologist in the institute of Leather Technology, Gujranwala, had been abolished. In this case, the learned counsel states that the petitioner does not come within the definition of a workman, and, therefore, he could not go before the Labour Court for the redress of his grievance. However, he stated that if the High Court comes to the conclusion that the orders passed by the Punjab Labour Appellate Tribunal were justified in law and upheld, then in that case, the petitioner shall also be benefited by that order. The writ petition of the petitioner was also admitted on the basis that the impugned orders terminating the services of the respondents in the connected cases were under scrutiny before the High Court, The petitioner maintained that he sent the representation to the respondent Corporation but the same was not considered at all and instead the petitioner was given the assurance by the Corporation that the cases of Abdul Waheed, Muhammad Ashraf, Narir Ahmad, Abdul Hamid and Muhammad Sarfras were pending adjudication before the Court of law and whatever would be the result in those cases, it shall be applicable in the ease of the petitioner as well and in ease the Court decides that the respondents in the other connected matters are restored in their service, the writ petitioner shall also be reinstated in his service. On the decision by the Punjab Labour Appellate Tribunal vide its order dated 20-4-1983, the petitioner moved the respondent Corporation for his reinstatement but the Corporation refused to accept the request of the petitioner. In view of this, the petitioner has come in the writ jurisdiction of the High Court.
7. Learned counsel for the petitioner prays that he may be linked with whatever might be the decision in all the other connected matters. Since this petition too is connected with the other similar matters, therefore, the delay in challenging the impugned order passed by respondent Corporation is condoned in view of the special circumstanses of the instant case. The npshot of the above discussion is that there is no force ia WP No. 912 of 1983, WP No. 1913 of 1983. WP No. 1914 of 1983. WP 1915 of 1983 aud WP 1916 of 1983 filed by the Corporation, which are accordingly dismissed leaving the parties to bear their own costs. However, WP No. 2332/S of 1983 titled Muhammad Ashraf v. Punjab Small Industries Corporation is accepted declaring the impugned orders dated 1- 10-1980 and 10-11-1980 as without lawful authority and of no legal effect, leaving the parties to bear their own costs.
K.L.K. 1987 Labour & Service Caaee 231 [Karachi] Present; Ahmed Alt U Qureshi, J.
M/s PRINCE GLASS WORKS Ltd.
Versus COMMISSIONER. SIND EMPLOYEES SOCIAL SECURITY INSTITUTION, and others M. A. No. 27/85 16 of 1986, decided on 21st April, 1987. Provincial Employees Social Security Ordinance (1963) ----- S. 65-Respondents making demand from appellant towards arrears of contribution for their secured employees with respect to house rent allowance, conveyance allowance and attendance allowance-Applications of appellants there against failing before both the Social Security Commissioner and the Soeial Security Court-Question in'olving in both the appeals requiring determination was whether house rent, attendance allowance and conveyance allowance could be considered as "wages" as defined under section 2(30) of the Social Security Ordinance No. X of 1965- Held: Attendance allowance did constitute wages whereas house rent would not constitute part of wages-Held further : That as a result the appeals are partly allowed to the extent that appellants are not liable to pay the contribution under section 20 of the Ordinance with respect to house rent allowance-Same not earing direct nexus to service rendered by employees. (Para, 12)
PLD 1978 Lah. 955, PLD 1978 Kar. 890, 1980 PLC 752, PLD 1977 S.C. 177.1982 PLC 325 and PLD 1977 S.C. 177 ref.
For the Petitioner j Khurshid Anwar Shaikh, Advocate.
For the Respondent; S. A. Sarwana, Advocate.
Date of hearing s 7th April, 1987.
JUDGMENT j Ahmad All U, Qureshi, J.-These twe Miscellaneous Appeals arc directed against the judgement of learned Presiding Officer Social Security Court No. I Karachi dated 30-5-1985 whereby he dismissed the two appeals of the appellant against the orders of the Commissioner Social Security dated 7- 3-1985 and 19-3-1985.
2. The facts leading to these appeals are that the respondent made a demand cf Is, 31,470. 24 from the appellant towards arrears of contribution for their secured employees with respect to house rent allowance, conveyance allowance and attendance allowance for the period for September, 1981, to December, 1982. The respondent further made demand from the appellant for payment of Rs. 1,05^03.57 as arrears of contribution towards the above said allowances of the secured employees from January to December, 1983. The appellant filed applications against the above said demands before the Social Security Commissioner which were dismissed and the disputes raised by them before the Social Security Court Were also dismissed vide the impugned judgement. As the parties and the questions of law and fact in both the appeals are same, I propose to dispose both appeals by one order.
3. I have heard the learned counsel for the parties.
The question involved in these appeals is whether house rent, attendance allowance and conveyance allowance can be considered as wages as defined under lection 2(30) of the Social Security Ordinance No X of 1965 (hereinafter called the Ordinance). To fully appreciate the question involved it is necessary to reproduce the definitions of wages as defined in the Ordinance. "wages" means remuneration for service paid or payable in cash or in kind to a secured person, not being less than remuneration based on the minimum raies of wages declared under the Minimum wages Ordinance, I96i (XXXIX of 1961), without taking account of deductions for any pur nose, under a contract of service or apprenticeship, expressed or implied, and shall be deemed to include any dearness allowance or other addition in respect of the cost of living aod any payment by the employer to a secured person in respect of any period of authorised leave, illegal lock-out or legal strike ; but does not include.
(?) any payment for overtime $ or (?) and sum paid to the person employed to defray special expenses entitled Dy the nature of his employment ; or
(c) any gratuity payable on discharge ; or
(d) and sum paid as bonus by the employer ; These contributions are demanded under Section 20 of the Ordinance. The learned counsel for the appellant does not press the question with regard to the payment of contribution for the conveyance allowance. Therefore the only question left for consideration by this Court is with regard to the house rent allowance and attendance allowance.
4. For the definition of the term wages as reproduced above it is clear that any remuneration that is paid or is payable to a secured person by the employer for the services rendered by him would be considered as wages. This definition would in fact include even the payment which are described in Clauses (a) to (b) but they have been specifically excluded from the definition of wages. House Rent allowance or the attendance allowance is apparently not specifically excluded from this definition of wages. Therefore, it is to be considered whether these allowances are included in the wages as defined under Ordinance.
In this context it will be necessary to see what is meant by remuneration. Word 'remuneration' is not defined in the Social Security Ordinance and therefore we have to see its dictionary meaning.
According to Black's Law Dictionary remuneration includes reward ; recompense ; salary It is further stated therein that if a man gives his services whatever consideration ho gets for giving his services seems to be remuneration for them. Word 'recompense' is defined in the same Dictionary to mean reward for services. The word 'reward' is defined in same Dictionary to Include "a recompense of premium offered or bestowed by government or an individual in return for special or extraordinary [services to be performed, or for special attainments or achievements, or sum of money paid or taken for doing or purporting to do some ast."
The definition of the wages as defined in the Social Security Ordinance and the dictionary meaning of remuneration leaves no doubt that whatever exployee gets whether in cash or kind (from his employer of the services that he renders would be remuneration and consequently wages as defined under the Ordinance.
5. The question whether attendence allowance is wages was considered in number of cases. In case of M/s National Embroidery Mills Limited v. Punjab Employees Social Security Institution (PESSI) & Others (PLD 1978 Lahore 935), the learned single Judge was of the opinion that the attendance allowences was a part of wages. This question was also considered by Division Bench of this Court in case of M/s. Bawany Textile Mills Ltd. v. Che Sind Employees Social Security Institution(SESSI (PLD 1978 Karaehi 890). It was held that "word 'payable' refers to the remuneration, which was a matter of legal obligation, an employer must pay to his workers, while the word 'paid' would additionally include all payments m de to a worker for rendition of service to the emplo> er. Therefore, expression wages covers good attendence allowance, efficiency allowance and conveyance allowance."
In 1980 P.L.C. 7.*>2(q) a learned single Judge of this Court had held that attendance allowance was not excluded from definition of wages.
6. The question with regard to these two allowances was also considered by a learned single Judge of Lahore High Court in the case of Punjab Employees Social Security Institution v Kohlnoor Textile Mills Lta. (I982PLC 325) the learne I single Judge held that bouse rent was not included in wages whereas attendance allowances fell within the definition of wages. The learned single Judge had relied upon the decision of Supreme Court in ease of iini Employees Social Security Institution v.
Dawood Cotton Mills Limited (PLD 1977 SC. P7) wherein it was observed ' that the rendering service or at least the availbilityof employees at the disposal of the employer for service was an esential requirement or pre-requisite for the payment of wages." The learned single Judge held that attendance allowance was payment for work done by the employee and as such it can be called remuneration for service and consequently fell squarely within wages. It will be advantageous to reproduce the observation of the learned single Judge so far house rent allowance is concerned t "the house rent allowance seem to stand on a different pedestal. It is paid to the employees who are not provided residential accommodation by the establishment and who take some house on lease. The allow- wance varies with the salary drawn by the employees and the place wh re living accommodation is hired. It is paid even to workers who due to some reasons or the other, do not actually work or tender service to the employer. It does not bear a direct nexus to the service rendered by the employees. It is a sort of subsidy and compensation for meeting the eost of hire charges. Therefore. I do not think it should be classified as 'wages'."
7. This judgment was also discussed by a learned single Judge of this Court in the omo of Sind Employees Social Security institution v, Amin Fabrics Limited, 19S3 PLC 182, The learned single Judge while considering the question whether conveyance allowance was wages had observed that conveyance allowance was paid to the employees by the employes in connection with his service and as such it was wages. Refering to aforesaid Lahore case the learned Judge observed that it was distinguishable as it related to house rent allowance but according to the view taken by him even house rent allowance would fall within the meaning of wages as the same is paid to the employee as a part of remuneration for the employees service.
The preponderance of Judical decision appears to be that attendanco allowance is paid or is payable to the employee for the services rendered by him as remuneration and I see no reason to disagree with the above decisions.
8. It is argued by Mr, S.A. Sarwana, learned counsel for the respondent that the house rent is also paid to the employee so long he is in service of the employer or in other words so long he renders service to employer, as it is payable under terms of contract or rules of serviee. It is contended by the leaned counsel for the appellant, that certain employees, instead of being paid house rent, are provided with house and the rent of the house payable to the employees varies from place to place and amongst different categories of employers, Mr. Sarwana argued that the house is provided or house rent is paid because of the services that the employee renders and the definition of wages under the Ordinance is Qwide enough to include even remuneration in kind, therefore, providing house instead of payment of house rent in fact amounts to remuneration in kind. It is further urged that mare fact that this remuneration was provided to 'some employees in kind or in cash would not take it out of the definition of wages and if there was any variation in the quantum of rent payable from locality to locality or amongst the different categories of employees, it would be in accordance with the terms and canditions of the service which in fact are part of implied contract of serviee between the parties.
9. However, it is contended by the learned counsel for the appellant that petition No. 225/82 for leave to appeal was filed in Supreme Court by PBSSI against the decision of the Lahore High Court reported in 1982 PLC 325, which appeal has been decided by their Lordships of Supreme Court by short order in the following terms j- "For the reasons to be recorded later on all the above connected petitions are hereby dismissed."
This order is said to have been passed with respect to petitions for Special Leave to Appeal Nos. 225 to 229 and 237 to 241 of 1982. This order is dated 23-6-1982. It may again be pointed, that in the Lahore case, the learned Judge had held that attendance allowance did constitute wages whereas house rent allowance di! Not constitute the wages as defined in the Ordinance. It is contended that as petition was dismissed by the Supreme Court it would amount to upholding the order of the learned single Judge that the house rent did not constitute wages under the said Ordinance. It is argued that this decision of the Supreme Court is binding upon this Court under Article 189 of the Constitution which reads - "Any decision of the Supreme Court shall, to the extent that it decides a question of law or is based upon or enunciates a principle of law, be binding on all other Courts in Pakistan/'
'
10. It is contended by Mr. Sarwana, that this order in fact was net a decision, as no reasons or details of the decision are expressed in this order. Word 'decision' is not defined in any law.
'Decision' according to Black's Law Dictionary is "a popular rather than technical or legal word ; a comprehensive term having no fixed, legal meaning. It may be employed as referring to ministerial acts as well as to those that are Judicial or of a judicial character. A judgment given by a competent Tribunal," It is further remarked therein "words 'decision' and 'judgment' may be used interchangeably, but in the abstract there is a shade of difference between the two. Decision is not necessarily synonymous with 'opinion', A decision of the Court is its judgment ; the opinion is the reasons given for that judgment, or the expression of the views of the Judge." 'Judgment' has been defined in the same Dictionary to include **an opinion or estimate." The formation of an opinion or notion concerning some thing by exercising the mind upon it. The official and authentic decision of a Court of justice upon the respective rights and claims of the parties to an action or suit therein litigated and submitted to its determination. Conclusion that naturally follows from the premises of law and fact. A decision or sentence of law given by Court of justice or other competent Tribunal as a result of proceedings instituted therein. Law's last word injudicial controversy.'* It is further stated therein that term judgment is also used to denote the reason which the Court gives for its decision, but this is more properly denominated an opinion.
11. Keeping these definitions in view this order of the Hon'ble Supreme Court is a decision as it has conclusively decided the dispute between the parties with regard to the question as to whether the house rent was or was not wages, though it may not be considered as judgment as no reasons for arriving at decision have been given therein, it may be noted that the word used in Article 189 is decision and not judgment. Therefore, even a decision for which no reasons are given in the order would be binding upon all the Courts in country under Article 189. It Js admitted by the learned counsel for the appellant that the Supreme Court has now directed that this petition along with the others also be reheard. The fact that the order of rehearing has been passed does not necessarily mean that the decision dated 23-6 1982 has been set aside. The decision is in force and is therefore binding upon this Court.
12.In view of the above discussion I hold that the attendance allowance constitutes a part of wages and as such the respondent could demand contribution un der section 20 of the Ordinance but in view of the decision of the Hon'ble Supreme Court the house rent allowance would not constitute part of wages as defined in Ordinance and as such no contribution under section 20 of the Ordinance is payable on this allowance. As a result the appeals of the appellant are partly allowed to the extent that the appellants are not liable to pay the contribution under section 20 of the Ordinance with respect to the house rent allowanoe.
The appeals were disposed of by a short order dated 16-4-1987. The above are the reasons in support of the above order.
K.L.Ft. 1987 Labour aid Service Caaes 234 (Lahore] Present I Maja Afrasiab Khan, J.
MAQBOOL AHMAD PATWARI versus THE STATE W.P. No*. 1348, 1519, 1523, 1990, 2043 and 2179 of 198? Decided en 17th June, 1987.
Conatitntion of Pakistan (1973] --Art. 199-Petitioners-Government servants-Transfer of-Transfers challenged alleging same based on malafides-A Iso opposed to policy deeision of Government-As ban imposed on {transfer [for 3 years- Such contention repelled-Held-Transfer an incident of service Art, 212 - Held further: A Government servant liable to transfer under section 9 of Punjab Civil Servants Act 1974-. (Para. 3)
PLD 1987 Lah. 25, ref.
For the Petitioner: M. Saleem Sebgal, Advocate.
For the Respondents: Khalil-ur-Rehman Ramday, Advocate General Punjab, Lahore.
Date of hearing j17th June, 1987.
Raja Afrasiab Khan, J.--The petitioner, Maqbool Ahmad Patwari (W.P. No. 1348 of 1987) has moved this constitutional petition against the respondents praying therein that the impugned order of his transfer from one station to another passed by respondent No. 1 on 16-3-1987 be declared without lawful authority and of no legal consequence. Similarly the petitioners Muhammad Muneef Patwari (W P. No. 1519 of 1987), Sikandar Hayat Patwari (W.P. No. 1523 of 1987), Muhammad Kabeer Patwari (W.P, No. 19^0 of 1987), Abdul Waheed Patwari (W.P. No, 2043) of 1987) and Mrs. Rafia Afzal, S.S.T, teacher (W.P. No. 2179 of 1987) have also ehalenged their transfer orders having been passed against them by the respective respondents in their cases. Since common questions of facts and law are involved in these eases, so I propose to dispose of all these cases by my one judgment.
2. The petitioners are aggrieved of the transfer orders passed against them. It is submitted that as per policy decision of the Government of the Punjab, no Government Servant can be transferred from one station to another station unless a period of three years has expired. In the eases of Maqbool Ahmad Patwari and others the main reliance is on the policy statement of the Government of the Punjab whereby a ban was imposed on the transfer* of Government servants for a period of three years. In the case of Mrs, Rafia Afzal (W.P. No. Of 198l) the petitioner has also impleaded a Member of Provincial Assembly, Halqa P.P. 30 (Kotla) District Gujrat as respondent No. 3 saying that under the influence of the said respondent, respondent No. 2 has passed the impugned order of his transfer which is based on mala fides. It is submitted that the respondent Mo. 2 has acted under the political influence of the respondent Mo. 3 and as such he has not applied his independent mind to the facts of the instant case It is contended by the learned counsel for the petitioners that the transfer orders are based on mala fides inasmuch as there was no legal justification for the transfer of the petitioners from their present stations of posting to other places. It was vehemently argued that the Government of the Punjab has categorically declared its policy regarding the transfer of Government servants saying that no Government servant can be transferred from one station to another unless a period of three years has passed. It is submitted that in all these successive transfer orders have been passed by the respondents in clear violation of the policy decision of the Government of the Punjab. On the basis of this, it is stated that these orders are clearly based on mala fides and as such, are without jurisdiction.
3. I summoned the learned Advocate Genera], Punjab to assist the Court It is submitted by the learned Advocate General that under Article 212 of the Constitution of the Islamia Republic of Pakistan, 12*73, the transfer of a Government servant is an incident of service or in ether Words the transfer is part and parcel of the terms and conditions of service of Government servants. It is next contended that under section 9 of the Punjab Civil Servants Act, 1974 (Act XIII of 1987) every civil servant shall be liable to serve anywhere within or outside the province in any post under the Government of the Punjab or the Federal Government or any Provincial Government or a local authority or a corporation or a body set up or established by any such Government. On the basis of this provision contained in section 9, the learned counsel submitted that the petitioners have no vested right to claim immunity from transfer. It is within the lawful domain of the Government to pass transfer orders in respect of each Government servant. I have heard the learned counsel for the parties at great length and have come to the conclusion that the petitioners being eivil servants are liable to serve anywhere within the province of the Punjab in accordance with the mandatory provision contained in section 9 of the Punjab Civil Servants Act, 1974. They have got no vested right to claim immunity from transfer from one station to another station. The learned counsel for the petitioners stated that the Government of the Punjab has declared its policy in the matter of transfer of Government servants wherein a ban has been imposed on the transfers of the Government servants from one station to another station for a period of three years. The learned counsel stated that the transfer orders in all these cases are in clear violation of the poliey decision of the Government. It is also maintained that the poliey of the Government has assumed the role of rule and as such the violation of this decision will definitely attract the provisions of Article 199 of the Constitution of the Islamic Republic of Pakistan.
4. 1 am afraid I cannot agree with the submissions of the learned counsel for the petitioners for the simple reason that the Government of the Punjab at one stage issued the policy statement referred to above but the same Government has reviewed its policy decision. Therefore, for all practical purposes, if the Minister for Irrigation and Power, Government of the Punjab, at one stage of the case imposed a ban on the transfer of a particular Government servant from one station to another station and that ban was meant for a period ef three years then at the second stage the tame Minister reviewed his own policy decision and passed the transfer orders against the petitioners in some of the cases. Thus the petitioners cannot successfully urge that the transfer orders are without lawful authority. The authority who bad issued the policy statement has also the authority to review the same policy. In view of this, the Minister for Irrigation and Power was competent to review its own earlier policy decision regarding the matters of transfer. It may be observed that concerned Ministe. s and the superier Government servants while sitting in their control rooms are the best judges to pass any orders wi*hin their lawful domain transferring Government servants from one place to another. The petitioners cannot possibly urge that the Ministers and superior Government servants are not competent to pass the transfer orders. It is next maintained by the learned counsel that the transfer orders in all these cases are based on mala fides. It it submitted that the mere fact that the transfer orders were parsed successively by the authorites show that these were based on malafides. There is no force in the contention of the learned counsel for the petitioners. It is always easy to urge mala fides but at the same time it is very difficult to prove the same. There is not an iota of evidencq on the record to show that the transfer orders in each case of the peti* ioners were based on malm fides. In the case of Mrs. Rafia Afzal (W.P, No. 2PP of 198 } learned counsel contended that respondent No. 2 haq passed the order under the political influence of respondent No. 3 who is a Member of Provincial Assembly. I do not find any force in the contention of the learned counsel for the petitioner inasmuch as the concerned Member of the Provincial Assembly is the representative of the people anq was competent to bring into the notice of a superior Government servant the lower category of Government servants. There was absolutely no harm if he had made certain recommendations in respect of transfer ojf the petitioner from one station to another. The mere fact that he recom-l mended that the petitioner Mrs. Rafia Afzal should be transferred will not make the order void or without lawful authority. At any rate the transferring authority passed the order in accordance with law. _ The petitioners have not been able to demonstrate before me any jurisdiotiona! Defects in the impugned orders having been passed by the campetent authority in all these cases. All the transfer orders have been passed by the authorities who were competent and their orders were within their lawful authority. These writ petitions are, therefore, incompetent on the face of them. If any authority is needed reference may be made to Begum lsmat Athar v. Punjab Government through Secretary Education and another PLD 198 Lahore 256 I respectfully follow the rule laid down in the aforesaid authority and declare that all these petitions are misconceived and as such are incompetent in law.
5. The upshot of the above discussion is that I do not find any substance in the contentions of the learned counsel for the petitioners and I proceed to dismiss all these petitions leaving the parties to bear their own costs. It cannot be held that the petitioners are left without remedies. They can move the Ministers concerned or the superior Government servants by way of representation if they are at all aggrieved of the transfer ordere. I am sure, if the petitioners are in a position to make out any grievance before the Government functionaries, they will definitely^ attend to them and will redress their grievances if any. It eannot be said that in these cases there are no adequate and speady remedies available to the petitioners. Admittedly they have got remedies before their concerned departments.