1. AJMAL MIAN, C.J.--This petition is directed against an order dated 15-12-1982, passed by respondent No. 1. The brief facts leading to the filing of the above petition are that the petitioner and some other employees of the Railway filed two applications before the Authority under the Payment of Wages Act for claiming of two items, namely, Compensatory Allowance and the Conveyance Allowance on the ground that they were posted at Jumma Goth Railway Station which was within the limits of Karachi Municipal Corporation or part of suburban area of Karachi.
2. The above applications were resisted by respondent No. 2 and inter alia it was pleaded that the applicants were not entitled to any one of the two items as Jumma Goth Railway Station was neither within the limits of Karachi nor was part of sub-urban area of Karachi, however, the Authority, after recording evidence and hearing the parties by its order dated 5-2-1981, allowed the applications. The respondent No. 2 being aggrieved by the above order filed two appeals but the same were dismissed vide two separate orders though both dated 26-11-1981. It appears that respondent No. 2 then filed a revision under section 38(3-a) of the I.R.O. before respondent No. 1 which was allowed by the impugned order. The petitioners have, therefore, filed the present petition.
3. Mr. S. Faiq Hussain Rizvi, learned counsel for the petitioners in support of the above petition has contended as under:--
(1) That since the two orders were not passed under the I.R.O., revision under subsection (3-a) of section 38 of the I.R.O. was not competent;
(2) That in any case respondent No. 1 was not justified in setting aside the concurrent finding of fact on the question, whether Jumma Goth Railway Station was within the limits of Karachi urban area or was part of sub-urban area of Karachi.
4. On the other hand, Ch. Rasheed Ahmad, learned counsel for the respondent No.2 has urged as under:--
(1) That since there were two separate applications and two separate appeals, the above writ petition is not competent as there should have been two separate writ petitions against two separate orders passed in two separate applications and appeals;
(2) That since all the employees, who were involved in the two applications, have retired and as they have taken away the money deposited by respondent No. 2 on the basis of the undertaking given by respondent No. 2's counsel that the Railway Administration would not claim refund, the controversy has become academic:
(3) That there is no limit as to the powers under subsection (3-a) of section 38 of the I.R.O.; and
(4) That the question whether a revision is competent under subsection (3-a) of section 38 of the I.R.O. has been finally resolved by a Division Bench of this Court in the case of National Cement Industries Limited v. Sindh Labour Appellate Tribunal and 3 others reported in 1981 PLC 561, in which Zaffar Hussain Mirza (as he then was) has held that since under clause (d) of subsection (5) of section 35 of the I.R.O., the Labour Court can be assigned other jurisdiction under other laws and the providing of appeal under the Payment of Wages Act to the Labour Court is in pursuance of the above provisions and hence the Labour Court is a Court which exercises jurisdiction while hearing an appeal against an order of the Authority under the Payment of Wages Act under the I.R.O. and hence provisions of subsection (3-a) of section 38 of the I.R.O. would be attracted to. On the other hand, Mr. S. Faiq Hussain Rizvi has submitted that the learned Judges of the above Division Bench have not referred to the case of Muzaffar Ali v. Muhammad Shafi, reported in PLD 1981 SC 94, in which it has been held that right of review being a substantive right is always creation of relevant statute on the subject and the same cannot be claimed in the absence of express provisions.
5. According to the learned counsel for the petitioners since under the Payment of Wages Act no right of revision have been provided, the same cannot be claimed by virtue of subsection (3-a) of section 38 of the I.R.O. The reasoning given in the above Division Bench judgment, referred to hereinabove, seems to be correct. Admittedly a Labour Court is a Court which exercises jurisdiction under the I.R.O., the jurisdiction to hear an appeal under the Payment of Wages Act has been assigned to a Labour Court by virtue of clause (d) of subsection (5) of section 35 of the I.R.O. and, therefore, the order passed by the Labour Court will be amenable to revisional jurisdiction under subsection (3-a) of section 38 of the I.R.O.
6. Adverting to Ch. Rasheed Ahmad's contention that the above petition is defective as the same has been filed against the two separate orders passed by the Authority under the Payment of Wages Act and by the Labour Court in two separate applications and two separate appeals, it may be observed that according to Mr. S. Faiq Hussain Rizvi, learned counsel for the petitioners factually the petitioners have filed the present petition against one single order passed by respondent No. 1 in exercise of suo mote revisional jurisdiction. The above position seems to be correct as there was one single order passed by respondent No. 1 against which one Constitutional petition could have been filed.
7. As regards second submission of Ch. Rasheed Ahmad that all the petitioners have retired and they have taken away the money deposited by respondent No. 2, it may be observed that this fact has been disputed by the learned counsel for the petitioner. Ch. Rasheed Ahmad has referred to para.
(4) of the impugned order which deals with the non-service of the notice and the reason for non- service. In our view it is not necessary to go into the above factual controversy as there is not sufficient material on record to conclude that factually all the petitioners have retired from the service.
8. This leads us to the last submission of the learned counsel for the parties, whether respondent No. 1 was justified in setting aside the concurrent finding of the two competent forums in exercise of suo motu revisional jurisdiction. It has been contended by Ch. Rasheed Ahmad that there is no limit as to the power exerciseable by respondent No. 1 under the above provisions of subsection (3-a) of section 38 of the I.R.O. as it speaks of satisfying itself as to the correctness, legality or propriety of order passed in any case or proceedings referred to in the above subsection (3-a) of section 38 of the I.R.O. In our view a concurrent finding of fact cannot be set aside in exercise of suo motu revisional powers under the above provisions unless it is found to the perverse or based on no evidence or misreading of evidence. In the instant case the Authority under the Payment of Wages Act as well as the Appellate forum recorded the finding that Jumma Goth Railway Station was within the limits of Karachi Municipal Corporation on certain evidence and it was not a finding which could have been termed as perverse or based on misreading of evidence or no evidence. In this view of the matter the above finding could not have been disturbed for the reasons which found favour with respondent No. 1. Then it was contended by Ch. Rasheed Ahmad that even certain amounts were allowed which were not the subject-matter of the application filed by the petitioners. According to Mr. S. Faiq Hussain Rizvi, the Labour Court had corrected the above error. In any case if the orders passed by the Authority under the Payment of Wages Act or the Appellate Authority include any amount which was not the subject-matter of the applications and the appeal, the above error could have been corrected by the revisional authorities.
9. With the above observations the petition is allowed and the impugned order is declared as without lawful authority and of no legal effect but there will be no order as to costs.