1. By this petition, the petitioner has challenged the order dated 13-3-1988, passed by the respondent No. 1, in application No. 280 of 1983, filed by respondent No. 2 by which the petitioner was directed to pay the following sums the respondent No. 2. READ AMOUNT
1. Accumulation of EP Fund as on 30-6- 1983Rs. 5,955.00
2. Gratuity from 7-10- 1959 to 5-9-1981= 22 Years x 20=440 days; 14 months and 20 days @ Rs. 930 p.m.Rs. 13,020.00
3. Unavailed leave for 120 days @ Rs. 930 per month.Rs. 4,620.00 Total 23,595.00 The brief facts giving rise to the present petition are that the respondent No. 2 filed an application under section 15 of the Payment of Wages Act, before the respondent No. 1 inter alia stating therein that he was appointed on 7-10-1959, and on 1-10-1970 he was taken into regular cadre by the predecessor organisation of the opponent. From 1-4-1974, on inception of the opponent organisation the applicant and other employees were transferred en bloc with all assets and liabilities. That the applicant served as Mechanic in one of the Units of the opponent organisation at Jamshoro, namely 'MCP Workshop' and resigned from his job on 5-9-1981. That at the time of resigning from the job, the applicant used to receive the following monthly emoluments:-- Basic Wages Rs. 640.00 Dearness allowance Rs. 100.00 Project allowance Rs. 100.00 Conveyance allowance Rs. 75.00 Washing allowance Rs. 15.00 Total Rs. 930.00 That during his service the applicant used to contribute provident fund scheme but the opponent did not contribute equally from 1979. That the applicant was also entitled to receive gratuity under Labour Laws. That the applicant having worked for twenty-two (22) years attained the status of a permanent workman within the meaning of Labour Laws. That the opponent was liable for payment of wages to the applicant. That the applicant approached the opponent for full and final settlement of his legal dues but the opponent insisted on him to first vacate the accommodation and then approached for dues which were yet to be settled by the Head Office of the opponent at Lahore. That the applicant gave written undertaking to the opponent to settle his dues and to pay the same and thereafter he will hand over possession. That the opponent has refused to pay the dues and, therefore, the application was moved with the following prayer:-- "That the applicant, therefore, prays this Hon'ble Court be pleased to issue direction to the opponent to:--
(i) make payment of the claim as set out in the schedule or such other greater or lesser amount which is found due;
(ii) award compensation including the cost of the proceedings, as deemed just and proper in the circumstances of the case.
2. The petitioner/opponent was served with a notice and he submitted his written statement in which the assertions made by the applicant/respondent No. 2 were denied. It was further stated that the applicant was the employee of WAPDA and continued as such till he resigned. He was sent on deputation to work under the opponent organisation on his own option. The applicant resigned on 23-12-1981 and the resignation was forwarded to his parent Department which is WAPDA and the same was accepted by Chief Engineer Coordination. That the liability to pay the dues as claimed was denied. It was further submitted that WAPDA was liable to pay the dues as claimed by the applicant. That the application was not maintainable and the Court had no jurisdiction.
3. That one Aftab Hussain, Attorney of the applicant/respondent No. 2 filed his affidavit in evidence in which he denied the assertions made by the petitioner in reply statement. It was further stated that opponent is the Successor Organisation of WAPDA and was responsible for all the liabilities of the employees. That the applicant had been working under the opponent and had been getting payment from the opponent organisation which was the Employer o1 the applicant. That the opponent was liable to pay claims to the applicant.
4. That the learned respondent No.1 /Commissioner Workmen's Compensation framed the following issues:--
(1) Whether the application is not maintainable in law and this Court has no jurisdiction in the matter.
(2) Whether the applicant is entitled to the amount claimed or any part thereof.
(3) What should the order be?
5. Aftab Hussain, Attorney of the respondent filed his affidavit in evidence on behalf of the applicant on 18-7-1984 and the opponent/petitioner failed to cross-examine him till 12-2-1986 and, therefore, the side of the petitioner was closed.
6. The respondent/petitioner failed to produce evidence upto 25-4-1987 and, therefore, the side of the petitioner was closed. However, the petitioner filed an application under section 151, C.P.C. on 3-8- 1987, for re-opening the side and the same was dismissed after hearing the parties.
7. The respondent No. 1 after taking into consideration the evidence produced by the respondent No. 2 has allowed the application and directed the petitioner to pay the following amounts to the respondent:--
(1) E P fund 5,955.00
(2) Gratuity for 22 years @ 930 p.m.13,020.00
(3) Unavailed leave for 120 days @ Rs.9304,620.00 and the petitioner was directed to deposit the same forthwith. The above petition has been filed against the said order, passed by the respondent No. 1.
8. I have heard Mr. Abdul Ghani Khan, learned counsel appearing for the petitioner, Mr. Salahuddin, learned counsel appearing for the respondent No. 2 and have also gone through the documents produced alongwith the petition.
9. It was contended by Mr. Abdul Ghani Khan, learned counsel for the petitioner that section 15 of the Payment of Wages Act applies to only those who are employees workers whereas the respondent No. 2 was working as Mechanic in WAPDA, therefore, he was a civil servant. It was further contended that the respondent No. 2 was on deputation which is clear from the fact that even his resignation was forwarded by the petitioner to WAPDA and the same was accepted. He further contended that WAPDA has sent a cheque of Rs.10,000 to the petitioner towards the claim of the respondent.
10. Mr. Salahuddin, learned counsel for the respondent has contended that under section 17 of the Payment of Wages Act the petitioner had to file appeal against the impugned order and the alternative remedy being available to him, the petition was not maintainable. It was further contended that after joining the petitioner, the respondent No. 2 became employee of the petitioner for all purposes and he had nothing to do with WAPDA. That the petitioner has paid all dues to hundreds of such employees. He has further contended that respondent No. 2 is a poor mechanic and has been running in Courts since 1983. The fact that the respondent No. 2 has served under the petitioner for eleven years and the WAPDA has already sent a cheque of Rs.10,000 towards its liability as admitted by the learned counsel for the petitioner, the petitioner was liable to pay remaining amount.
11. I have considered the contentions of the learned counsel. The evidence produced by the respondent No. 2 shows that for all purposes he was employee of the petitioner (MCP) and had nothing to do with the WAPDA after joining the petitioner. In para. (9) of the application it was stated that the petitioner organisation is a company registered under Companies Act and is engaged in execution of projects in the country and overseas Estate and managing Base workshops at different places. Hundreds of workers are working in the said organisation. This fact has been admitted by the petitioner in para. 9 and of his reply statement. The evidence given by Aftab Hussain Attorney of respondent No. 2 in Court has gone unchallenged and no evidence in rebuttal has been produced although the application was filed before respondent No. 1 on 19-10- 1983 and the affidavit in evidence was filed on 18-7-1984, and the matter was decided on 13-3-1988.
12. Since the respondent No. 2 was working as mechanic with the petitioner for eleven years and he was drawing Rs. 930 per month, which included conveyance and other allowances the application before the learned respondent No. 1 was maintainable in law. Specially because, according to respondent No. 2, he was the employee of MCP and was absorbed with all assets and liabilities when the MCP was found, and the MCP was responsible for all the employees who were absorbed from WAPDA. As regards the deduction of E.P. Fund, the petitioner has admitted in para. 6 that the applicant used to contribute but the said amount after deduction from his pay was being sent to WAPDA. However, no evidence has been produced to show that the amount of contribution made by the applicant/respondent No. 2 was being sent to WAPDA. The respondent No. 2 has given due consideration to the contentions raised by the parties and the order does not suffer from any infirmity. Admittedly, the order passed by the respondent is appealable under section 17 of the Payment of Wages Act, 1936, but no appeal was filed. When the learned counsel for the petitioner was confronted with this situation, he replied that since the petitioner had to deposit the entire amount at the time of filing of appeal he thought it fit to file the present petition. The contention of the learned counsel is misconceived and untenable, and the petitioner had to file appeal as envisaged by section 17 of Payment of Wages Act, before this Court could be approached under Article 199 of the Constitution. However, it was further contended that the order passed by the respondent No. 1 was without jurisdiction and, therefore, the petition was maintainable without having resort to alternative remedy by way of appeal. I am afraid the contention is untenable inasmuch as every order termed as without jurisdiction could not be challenged in Constitutional jurisdiction. Even where the order was without jurisdiction, but substantial justice had been done to the parties it could not be challenged before High Court by way of Constitutional petition.
13. In the present case on one hand the respondent No. 1 has given cogent reasons for arriving at a decision, specially, when the evidence produced by the respondent No. 2 had gone unchallenged and no evidence was produced in rebuttal the respondent No. 2 was not confronted with the documents which are produced in this Court. The respondent No. 2 is a poor mechanic and has been running in the Courts right from 1983. He resigned from service in the year 1981. According to the petitioner, the Organisation has received Rs.10,000 from WAPDA towards the contribution made by the respondent No. 2 and he has served under petitioner for eleven years and, therefore, I am of the considered view that the order passed by the respondent No. 1 is just and fair and does not call for interference from this Court. The petition is accordingly dismissed with no order as to costs. The petitioner is directed to pay the amount awarded to the respondent No. 2 within one month without fail.