This revision application is directed against the judgment passed by the District Judge, Karachi, in appeal under section 17 of the Payment of Wages Act, 1936, whereby he allowed the appeal filed by the respondent.
2. The facts leading to this revision application are that on 15-2-1965 one Abdul Salam, since deceased, filed an application under section 15 (2) of the Payment of Wages Act, before the Commissioner for Workmen's Compensation and `Authority' under the Payment of Wages Act for recovery of delayed wages, leave salary and other allowances from the respondent. The application was decided in favour of the applicant on 8-9-1965 and the respondent was directed to pay the amount claimed by the applicant. The respondent filed an appeal against this direction which was allowed and the matter was remanded. The authority heard the matter on remand on 19-12-1965 and dismissed the application. The applicant filed an appeal which was allowed and the matter was again remanded to the authority for rehearing and was finally heard and decided on 21-12-1967 by the Authority who allowed the application and directed the respondent to pay tire sum of Rs. 5,135.00 to the applicant. The respondent filed an appeal against this direction in the District Court under section 17 of the Payment of Wages Act, 1936. Before the District Court the learned counsel for the respondent made the following points :-
(a) Appellants Hafeez Sons were not the same as Hafeez Industries and hence they were not liable.
(b) The learned Commissioner was not right in denying the right of cross-examination to the appellants.
(c) The application was not maintainable because the salary of the respondent was more than Rs.
200.00.
The learned District Judge decided points `a & b' in favour of tile applicant but on the 3rd point, raised for the first time before him, lie held that as the salary of the applicant was more than Rs.
200.00 the application filed under section 15 was not maintainable, in view of the provisions of section 1 (6) of the Payment of Wages Act, 1936, which provided as under :- , "(6) Nothing in this Act shall apply to wages payable in respect of a wage period which, over such wage period, average two hundred rupees a month, or more."
It is against this Judgment that the present revision application was filed by Abdul Salam, and after his death is being pursued by the widow and children as legal representatives of deceased Abdul Salam.
3. The learned counsel for the respondent raised a preliminary objec--petition as to the maintainability of the revision application. He contended that the judgment passed by the District Judge in appeal under section 17 of the Payment of Wages Act, 1936, was not amenable to the revisional jurisdic--petition of the high Court under section 115, C. P. C. As the District Judge while hearing an appeal under section 17 of the Payment of Wages Act is not a Court subordinate to the High Court but acts only as persona designate. In support, he placed reliance on three cases viz.:--
(1) PLD 1972 Kar. 410;
(2) PLD 1971 Lah. 875, and
(3) PLD 1970 Quetta 85.
4. (i) In the case reported in PLD 1972 Kar. 410, the point for determination before the Court was whether the Family Court under the said Act was amenable to the supervisory jurisdiction of the High Court under section 115, C. P. C. The Full Bench came to the conclusion, at para. 13 of the judgment, that revision was not maintainable as, firstly, the remedy of appeal had not been availed of, and, secondly, since section 17 provided that the provisions of C. P. C., except sections 10 and 11, did not apply to Family Courts the applicants could not invoke the revisional jurisdiction of the High Court under section 115, C. P. C.
5. (ii) In the case reported in PLD 1971 Lah. 875 also the point was same as in the first case referred to above. Both these cases are therefore not relevant.
6. (iii) In the third case from Quetta, an application under section 15 and 16 of the Payment of Wages Act had been filed by the workers before the `Authority' claiming delayed wages from WPIDC. The claim was resisted by the WPIDC on the ground that the appellants therein were not the employees of WPIDC but of a contractor Land Jamadar. The authority allowed the claim. WPIDC filed an appeal before the District Court which was allowed. The employees filed a revision in the High Court against the order passed in appeal: The High Court allowed the revision and remanded the case to the `authority' for taking additional evidence to find out if the employees were in. Direct employment of WPIDC. The `authority' on taking additional evidence found that the employees were not in the direct employ--ment of WPIDC. The employees filed a revision application directly in the High Court against the order passed by the `authority' without filing an appeal provided for by the Act. In the High Court a preliminary objection was raised on behalf of the WPIDC as to the maintainability of the revision application under section 115, C. P. C. On the ground that `Authority' under the Payment of Wages Act was not a Court subordinate to the High Court. Several cases, both, of our own Courts as well as of the Courts of foreign jurisdiction, were cited in that case for and against the maintainability of the revision application. The learned Single Judge, after giving details of the cases cited before him, preferred to follow the cases cited against the main-- tainability of revision application in the High Court and by analogy of reasoning of those cases came to the finding that the `authority' under the Payment of Wages Act functioned as persona designate and not as a Court and, as such, its orders were not amenable to the revisional jurisdiction of the High Court.
7. At the very outset, it will be noticed that in the case from Quetta, Revision application had been filed in the High Court directly against the order passed by the `authority' which was held not to be a Court. In the case before me, however, the Revision has been filed against the judgment passed in appeal by the District Court. The question that arises, therefore, is whether it makes any difference to the jurisdiction of the High Court under section 115, C. P. C: if the revision is filed against the order passed in appeal by a District Court than when it is filed aphx4t the order passed by the `authority'. In order to determine this question it is necessary to examine the relevant provisions of the Act. Section 15 provides as under: --- Section IS (1).-The Provincial Government may, by notification in the official Gazette, appoint any Commissioner for Workmen's Compensa--petition or other officer with experience as a Judge of a civil Court or as a stipendiary Magistrate to be the authority to hear and decide for any specified area all claims arising out of deductions from the wages, or delay in payment of the wages, of persons employed or paid in that area . . . . . . . . ."
8. It will be noticed, that the Provincial Government has been given a discretion to appoint any person falling in any one of the three categories as an `authority' under the Act. It may or may not appoint a Judicial Officer as the section envisages appointment of any officer as an `authority' with the only added condition that he should have had experience as a Judge of a civil Court. Also, a person appointed to hear the claims filed under the Act has been specifically designated as an "Authority" in contradistinction to a civil Court. Also, the matter is not referred to any Court of record.
All the above facts clearly suggest that the `Authority' was not intended to function as a civil Court.
Further, had the Legislature so intended, it could have easily so provided in the Act.
9. The Quetta case, would have been of assistance to the counsel if revision had been filed against the order passed by an `Authority'. This brings me to the next question whether order passed by District Court in appeal is amenable to the Revisional Jurisdiction of this Court under section 115, C.
P. C. Answer to this would depend on whether the District Judge hears the appeal against the order of the `Authority' as a Court in his capacity as a Presiding Officer of the principal civil Court in the District or as a persona designate. In order to ascertain this I have to look into the source of the powers of the appellate forum. Section 17 of the Act provides as under :- "Section 17.-An appeal against the directions made under subsection (4) of section 15 may be preferred within the stipulated period before the District Court."
10. It will be noticed that the jurisdiction to hear an appeal against the direction by an `Authority' has been conferred on a District Court, by desig--nation without anything more. It is well settled by now that when jurisdiction is conferred on an established Court without anything more the decision given by that Court is subject to all the incidents of appeal an revision as the District Judge in such a case performs his functions in the ` normal exercise of his powers under the Act as a presiding officer of the principal civil Court in the District and not as a persona designate. I may here, with great advantage, refer to the case of Fida Muhammad v. The State (1972 S & B L R 132). My Lord, the Chief Justice, after quoting with approval several cases on this very aspect of the matter, observed at para. 12 as follows: --- Para. 12.-Clearly, therefore, if jurisdiction is conferred by an Act upon a Court which is already established such as the Court of Session or the District Court without anything more than all the incidents which attach to the proceedings before such a Court would also be attracted to proceedings under the Act and no special provision would be required to enable an appeal to a higher Court or to subject the orders passed in the course of such a jurisdiction to the Revisional power of the High Court which would be attracted by reason of the fact that the High Court exercises revisional jurisdiction over the Sessions Court or the District Court in any event."
11. This very point also came up for consideration in two cases reported in PLD 1971 Lah. 756 and PLD 1971 Quetta 47. In both these cases it was held that the order passed in appeal under section 17 of the Payment of Wages Act was amenable to the revisional Jurisdiction of the High Court under section 115, C. P. C. Although this should suffice to repel the objection raised by the learned counsel for the respondent, it is interest--ing to point out that even in the cases quoted with approval in the Quetta case reported in PLD 1971 Quetta 86, the same view has been taken. Reference in this regard may be made to the cases reported in PLD 1952 Lah. 258 and AIR 1949 Bom.
188. In the first case at page 270 it was observed as under: --- "In the second case the tribunal concerned was a District Court and as such prima facie supervisory jurisdiction of the High Court."
12. In the second case at pages 192 and 193 and Column 2 respectively it was observed as under :- "With respect we do not think that the arrangement is sufficient to constitute the authority as a Court. The Authority does not become a Court substitute to the District Court merely because an appeal is provided from its decision to the District Court when the High Court entertain an application against the decision of a District Court in appeal from a decision of the Authority, the High Court exercises revisional jurisdiction over the District Court."
"P. 193.-As was pointed out by Chagla, J., in People's own Provident and General Insurance Company v. Gurachayr 47 Bom. L R 852 (AIR (20) 1944) the fact that the Act permits appeals to the District Court would give revisional powers to the High Court when the District Judge decides the appeal; but the mere fact that a statute provides an appeal to a Court from a particular body does not necessarily make that body a Court. With respect we are in agreement with this view, although that view was expressed with reference to a similar provision under the Bombay Agricultural Debtors Relief Act."
13. In view of what has been said above I have no hesitation in holding that the District Judge while exercising powers in appeal under section 17 of the Payment of Wages Act functions as a Court and not as a persona designate. That the District Court is subordinate to the High Court B cannot also be disputed, in view of section 3 of the C. P. C. Which provides that for the purposes of this Code, the District Court is subordinate to the High Court. The objection raised by Mr. Fasihuddin, advocate, for the respondent, is therefore not well founded and is repelled.
14. Having disposed of the preliminary objection raised by the learned counsel for the respondent, I will now deal with the merits of the case. It was contended by the counsel for the respondent that even if it was held that the Appellate Court under section 17 of the Act is a Court subordinate to the High Court, its judgment was not liable to be interfered with in revision, as it did not suffer from any illegality or material irregularity in exercise of its jurisdiction to call for interference in proceedings under section 115, Cr. P. C. By this Court.
15. The learned Appellate Court below in view of provisions of sec--tions 1(6) and 2 (vi) of the Payment of Wages Act, 1936, held the application filed by the applicant before the `Authority' to be not maintainable for the reason that deceased Abdul Salam had admitted in his statement before the `Authority' that his salary was Rs. 175.00 per month plus Rs. 75.00 given as dearness allowance which made wages of the applicant to be more than Rs. 200.00. The learned counsel for the applicant in reply contended before me, firstly, that the objection as to the maintainability of application on the ground of jurisdiction was never raised by the respondent earlier in his written statement before the `Authority' on any of the several occasions when the matter was remanded to the "Authority" by the Appellate Court. On the contrary, the respondent submitted to the jurisdiction till the disposal of the application on merits by the "Authority". It was, therefore, not open to the Appellate Court below to allow the raising of this point at the appellate stage, for the first time after so many years.
16. The learned counsel for the applicant next contended before us that Rs. 75.00 being the allowance was excluded from the wages as the definition of wages in section 2(vi) provided that the wages did not include the allowances stated therein and that sum of Rs. 75.00 was paid to the applicant to defray the special expenses entailed by him by nature of his employment.
17. On going through the record, I find that before the `Authority' consent issues were filed by both the parties but the objection as to the C maintainability of application on the ground urged by the respondent in appeal was never raised. The ground as to non-maintainability raised by the respondent was confined to the plea of limitation. I also find that the `Authority' in its findings on issues Nos. 3 and 4 held the monthly basic wages of the applicant to be Rs. 175.00 and allowed the application on that basis. The respondent did not challenge this fact before the `Authority' or Appel--late Court on any of the several occasions when the matter was remanded and finally decided. The learned Appellate Court has held that dearness allowance was included in the salary as the dearness allowance was paid on prevailing dearness. It will, however, be noticed that in the definition of wages given in section 2(6) it is provided that `Wages' does not include:-
(a) the value of any house accommodation, supply of light, water, medical attendance or other amenities ;
(b) any contribution paid by the employer to any pension fund and or provident fund;
(c) any travelling allowance of the value of travelling concerned ;
(d) any sum paid to the person employed to defray special expenses entailed on him, by the nature of his employment;
(e) any gratuity paid on discharge.
There is no evidence on record to show whether the applicant received any of the allowances mentioned in the clauses detailed above in addition to the salary of Rs. 175.00 and dearness allowance of Rs. 75.00. It may, therefore, well be that the dearness allowance of Rs. 75.00 included the value or increase in the value of any house accommodation, supply of light, water, medical attendance or other amenity which might have reduced the wages of the applicant below Rs.
200.00 in which case the application would be maintainable. It is true, that the point of jurisdiction could be raised at any stage, but, the plea of jurisdiction raised in this case was dependent on proof of certain facts which were not established by the leading evidence. Thus, this was not a question purely of law, but a mixed question of law and fact which could not be raised for the first time in appeal and decided in such) manner. Furthermore, the record shows that the respondent participated in 1 the proceedings before the `Authority' for several years without raising the objection raised in appeal, till the application was finally decided against him. The conduct of the respondent, in the circumstances, therefore, would show that he accepted that the wages earned by deceased Abdul Salam did not exceed Rs. 200.00 in view of definition of wages under section 2
(vi) of the Payment of Wages Act.
18. In the circumstances of the case, the learned appellate Court, was not justified in holding the application to be not maintainable on the ground stated in the judgment.
19. In view of what I have stated above, I allow this revision applica--petition and set aside the judgment passed by the Appellate Court below. In the result, the order passed by the `Authority' on 21-12-1967 stands restored.
20. The Revision Application is allowed with no order as to costs.
S. A. H.