' The facts leading to the present petition are as under:- ' The respondent No, 2 filed Application No, 261 of 1986 before the respondent No, 1 who is Authority under Payment of Wages Act/Commissioner, Workmen's Compensation at Hyderabad. The respondent No, 2 stated in his application that he was employed as Assistant Foreman in the Organisation of petitioner from 26-12-1968 and up to 31-12-1974 he was an ordinary employee in the petitioner's organisation where he was provided a rent free quarter in the staff colony. On 1-1- 1975 he was reclassified as Maintenance Foreman in the category of Executive Grade-I, he was, therefore, entitled to standard accommodation as the accommodation already with him was sub- standard and it was meant for low-paid and ministerial staff. As the standard accommodation was not provided to him, he became entitled for payment of house rent which was denied to him by the petitioner. Therefore, he filed a claim for recovery of house rent which was allowed by Labour Court and it was upheld by Appellate Court. The petitioner did not pay the claim of rent. The respondent No, 2 further stated in the application that the basic wages of the applicant for the claim period average less than Rs,1,500 per month. For the purpose of jurisdiction of authority. It was also alleged that his payment of 30 days duly sanctioned was withheld and the encashment amount of 234 days earned leave was also not paid to him. He was Also entitled to gratuity as per rules but less amount was paid to him. The respondent No, 2 worked out the relief in the claim sheet which was attached to his application.
' The petitioner filed legal objections and reply statement to application of respondent No, 2 before respondent No, T stating that the application was not maintainable in law because at the time of filing of the application he was not employee of the petitioner. The application was time-barred and the respondent No,1 had no jurisdiction to entertain the application. It was further stated that the respondent No: 2 had been provided with a standard accommodation i,e, a house of two rooms, verandah, outhouses and courtyard with electricity and water. It was duly furnished with furniture, ceiling fans etc. It was not a rent-free accommodation. The rent was to be charged at seven and half per cent. Of his pay. The rate of rent was fixed as Rs,100 per room per month with effect from 3-12-1978. On 31-5-1975 pay structure of the employees including the respondent No, 2 was revised and reclassified. The accommodation in which the applicant was to reside was according to his entitlement and it did not become substandard for him. The accommodation provided to him was standard accommodation corresponding to his entitlement. He was not entitled to rent as claimed by him. The claim of respondent No, 2 was denied by petitioner who further stated that from April, 1979 to December, 1979 his basic wages were Rs,710, from January, 1980 to December, 1980 his wages were Rs,950, from January, 1981 to December, 1981, his wages were Rs,1,000, from January, 1982 to December, 1982 his wages were Rs,1,100 and from January, 1983 to December, 1983 his wages were Rs,1,150 and, therefore, the respondent No, 1 had no jurisdiction.
The petitioner in his reply statement had also explained his position as regards claim of 30 days' leave, encashment of 234 days' earned leave and the claim of gratuity. According to petitioner the relief requested by him was wrong. The application was not within time and it was time-barred. The petitioner had also stated that an amount of Rs,14,162 was payable by respondent No, 2 to petitioner and even after his retirement the respondent No,2 was illegally occupying the said accommodation.
' The authority under the Payment of Wages Act, Hyderabad, vide his order dated 20th June, 1991 allowed the claim of respondent No, 2 and directed the petitioner to make payment of Rs,77,014 to the respondent No,
2. Being aggrieved with this order this Constitution petition has been filed with the prayer that the order dated 20-6-1991 passed by respondent No, 1 in Application No,261 of 1986 be declared as illegal, without jurisdiction, null and void and of no legal effect. On 6-10-1991 this petition had been dismissed in limine. Thereafter, a Review Application was filed on the ground that the cases cited were not correctly recorded. Thereafter, the Constitutional petition was ordered to be heard de novo and the operation of impugned order was stayed till decision of Constitutional petition vide order of this Court dated 15-12-1991.
' The learned Advocate for the petitioner submitted that the respondent No, 2 was foreman. He was not a worker. He belongs to Officer Category. The petitioner-Factory is closed since 1980. There .Is no production at all. The respondent No, 2 was retired on 4-12-1983. He ceased to be employee of Factory since that date. He made application under section 15 of Payment of Wages Act in October, 1986. He claimed house rent allowance from April, 1979 to November, 1983. The application was time-barred as under section 15 he could come within three years. There was no condonation application. The petitioner had contested his application on point of limitation as also on ground that respondent No, 2 retired from services and he was no more employee under section 15(2) of the Payment of Wages Act. The documents at pages 91, 93 and 95 show his salary as Rs,1,040 which was raised to Rs,1,100. Page 93 shows his pay as Rs,1,250 and next it is Rs,1,400. Page 97 shows his salary as Rs,1,500. The amount of house rent is to be added to this salary but in case it is argued that house rent is not wages and cannot be added to salary then the question arises why did he approach authority under Payment of Wages Act. His salary is definitely a more than Rs,1,000. He was not an employee and authority was not empowered to adjudicate upon his claim. There was no prayer for compensation but Authority had granted him double compensation. The authority granted him gratuity also from definition of wages. He further submitted that time-barred application was allowed without application of condonation of delay. The respondent No, 2 did not come within definition of employee as his average impediments were above Rs,1,000. He was allowed compensation although the respondent No, 2 had not applied.For compensation. Gratuity was allowed although this is excluded from definition of wages. As a retired person he could not apply under section 15. Reliance is placed on decision reported in 1983 CLC page 213. The lower Court misread the evidence. The authority passed an obliging order allowing amount of Rs,77,140 which includes compensation is half of this amount. This has been allowed without prayer. The statutory remedy of appeal under section 17 is not exhausted because precondition is to deposit the amount which has been allowed illegally. Reliance is placed on decisions reported in 1982 PLC
567. In view of this authority Constitution petition is maintainable. He placed reliance on decisions reported in 1976 SCMR 395; 1986 PLC 560; 1986 SCMR 1121(d); 1987 PLC page 633.
' The learned Advocate for respondent No, 2 submitted that Constitutional petition cannot be filed because remedy is available under section 17. This petition was dismissed in limine on 6-10-1991.
Review Application was filed which was allowed on 15-12-1991 when it was admitted for regular hearing. He submitted that because statutory remedy is available this petition cannot pe filed. He placed reliance on decisions reported in 1974 PLC 89 which is a D.B. Decision, PLD 1981 Kar. 534, 1990 PLC 26, 1990 PLC 357, 1995 PLC 264. He further submitted that there are some decisions with contrary view. He cited these decisions as 1982 PLC 567 and PLD 1993 Kar.
713. He further submitted that the decision of Division Bench in Fazal's case was never cited in these cases. He also relied on decisions reported in PLD 1986 Lah. Page 42, PLD 1981 SC page 63 and PLD 1981 Kar. Page 42, PLD 1981 SC page 63 and PLD 1981 Kar. Page 138. He submitted that the circumstances determine whether the remedy was efficacious or not. He relied on decision, reported in 1989 PLC 16. He submitted that under section 15 Average wage of the worker is to be worked out. The period commences from April, 1979 to December, 1983 and the average salary of this period is to be taken into account. The petitioner himself has the pay rolls. This objection is without foundation. The next objections with regard to limitation and the authority had given its own reasons.
' The first question before this Court is whether the present Constitutional petition' can be entertained when statutory remedy under section 17 is available. Both parties have submitted cases on the point.. The learned Advocate for the petitioner, has relied on decision reported in 1976 SCMR page 395 wherein their Lordships have examined this aspect of law and have observed as under:-- "Taking the last point first it is well-settled that failure to have recourse to a revisional remedy does not necessarily operate as a bar to the invocation of writ jurisdiction and no axception could, therefore, be taken to the entertainment of writ jurisdiction of High Court."
' Because of this decision of Supreme Court I will not be in a position to follow D.B. Decision referred to by learned Advocate for respondent No,
2. Apart from this the learned Advocate for the applicant has placed reliance on decision reported in 1986 SCMR page 1121 placitum (g) wherein his Lordship has observed as under:-- "A finding on a question of fact by a subordinate Tribunal in total disregard of relevant material placed before it can. Be reviewed in Constitutional jurisdiction: And an order passed on the basis of such finding would be and order passed without lawful authority."
' In the present case the learned Advocate for petitioner has attacked the order of respondent No, 1 dated 20-6-1991. According to, him in this order gratuity has been allowed although this does not come within definition of wages.. The learned Advocate for respondent No, 2 did not advance any contrary arguments in support of this proposition which is reported in 1986 PLC 760 wherein it has been held that arrears of. Gratuity and Provident Fund not being included in term wages, employee could not seek remedy from Forum as provided in section 15 of Payment of Wages Act. 'The 2nd allegation levelled against the respondent No, 1 is that he had allowed compensation of huge amount without any prayer in this regard. He entertained time-barred application and he is not prepared to add: house rent allowance to salary which will deprive him of his jurisdiction. At one stage he had allowed house rent but in calculating the emoluments he did not add the house rent.
There are quite a few other grounds also but the abovementioned grounds are sufficient to show that the respondent No, 1 had exceeded his authority. Therefore, there is no difficulty in holding that the impugned order is without lawful authority, and of no legal .Effect. However, in the circumstances the parties to bear their own costs.