' TALLAAT QAYYUM QURESHI, J.---Jehanzeb respondent No,1 was employed as Lower Division Clerk on 17-4-1976 in Hazara Phosphate Exploration Project, Abbottabad, a Project of S.D.A. In the year 1991 the petitioner (SDA) served the respondent No,1 with a notice that the petitioner intends to wind-up Hazara Phosphate Exploration Project, Abbottabad. The services of the respondent No,1 were terminated due to winding up of the said project but as per the contention of respondent No,1, he was not paid full wages/dues. He filed an application on 25-8-1994 under section 15(2) of Payment of Wages Act of 1936 before the "authority" appointed under the said Act (hereinafter referred to as authority) for payment of Rs,5,22,995. The authority vide its order dated 12-6-1997 directed the petitioner to pay sum of Rs,47,545 with one time compensation and the petitioner was directed to make the payment forthwith. The petitioner filed an application on 10-10-1997 under rule 8 of Payment of Wages Rules, 1937 for setting aside the order dated 12-6-1997 but the said application was dismissed on 18-10-1997. The petitioner through this writ petition has impugned the order dated 18-10-1997.
2. Mr. Muhamamd Latif, Advocate appearing for the petitioner argued that the authority had passed ex parte order on 12-6-1997 without hearing the petitioner. Having come to know about the said order the petitioner submitted an application under rule 8 of Payment of Wages Rules, 1937 for setting aside the said order but the application was dismissed on 18-10-1997.
' He further argued that right to file appeal under section 17 of Payment of Wages Act, 1936 is very limited and no appeal has been provided against the orders passed under section 15(2). He placed his reliance on "MC, Faisalabad v. Muhammad Ashraf" 1986 PLC 509 and prayed that the impugned order dated 18-10-1997 be set aside and the application filed under rule 8 of Payment of Wages Rules, 1937 be accepted and the authority be ordered to hear and decide the case on merits.
3. On the other hand, Mr. Abdul Rehman Qadir, the learned counsel representing the respondent No,1 argued that the order dated 12-6-1997 was not passed ex parte. In fact on 8-5-1997 the defence of the petitioner/respondent was struck off and on 12-6-1997 after hearing the arguments and perusal of record the authority passed order under section 15(3) of Payment of Wages Act, 1936. This order was appealable under section 17 of the said Act. He placed reliance on "M/s. S.M.
Rehman & Company v. Motabar and others" PLD 1981 SC 282. The petitioner instead of filing appeal under section 17 preferred to file an application under Rule 8 of Payment of Wages Rules, 1937 for re-hearing of the case. The said Rule was not applicable as no ex parte decree was passed against the petitioner/respondent. The said application was rightly dismissed by the authority.
4. The learned counsel stated at Bar that the statement of P.W.1, Najeem Khan, Project Manager was recorded on 12-3-1996 and the statement of the applicant/respondent No,1 was recorded on 9-12- 1996. The learned counsel for the petitioner sought the adjournment for cross-examining the respondent No,1 but despite various adjournments did not cross-examine him. On 9-4-1997 the authority adjourned the case to 8-5-1997 for the cross-examination of respondent No,1 and for the evidence of the petitioner and warned the petitioner that in case of failure to produce evidence the case would be decided on available record. On 8-5-1997 no one appeared on behalf of the petitioner, hence the defence of the petitioner was struck off and the case was posted for 12-6-1997 on which date the authority under section 15(3) directed the petitioner/respondent to pay sum of Rs,47,545 with one time compensation.
5. The learned counsel stressed that the writ petition in hand is not maintainable on the ground that even if it is presumed for the sake of arguments that the authority had passed ex parte order on 12-6-1997 even then it was not amenable to the writ jurisdiction., He further stated that simply because the evidence was not allowed to be recorded, would not render the order of the authority void. He placed reliance on "Quetta Club Ltd., Quetta Cantt. through its Administrator v. Muslim Khan and 2 others" PLD 1983 Quetta 46.
6. We have heard the learned counsel for the parties and perused the record. The contention of the learned counsel for the petitioner that the authority has passed ex parte order against the petitioner on 12-6-1997 for setting aside of which the application under Rule 8 of Payment of Wages Rules, 1937 was given is negated by record.
7. The record reveals that on 8-5-1997 the defence of the petitioner/respondent was struck off and after hearing the arguments on 12-6-1997 the authority directed the petitioner to pay sum of Rs,47,545 with one time compensation under section 15(3). Since the petitioner had failed to cross- examine the respondent No,1 and to produce evidence, therefore, the authority rightly passed the order on 12-6-1997 which, in no case, can be termed as ex parte order. In this regard we are strengthened by the authority "Chairman, District Council, Hyderabad and another v. Haji Fasihuddin and 6 others'. 1986 MLD 209 wherein it is laid down:-- "0. XVII, R.3--Non-production of evidence--Effect--Decree passed by Court on available evidence on record where defence was closed due to non-production of evidence, held, would not be ex parte decree."
8. So far as the application, dated 10-7-1997 filed under Rule 8 of Payment of Wages Rules, 1937 is concerned, the same was rightly dismissed by the authority because the provisions of Rule 8 ibid were not attracted in the circumstances of the case. The petitioner had failed to show "good cause" for setting aside order, dated 12-6-1997.
9. The contention of the learned counsel for the petitioner that order passed by the authority on 12- 6-1997 was not appealable, is not tenable. The authority had directed the petitioner to pay Rs,47,545 with one time compensation under section 15(3) of Payment of Wages Act, 1936. This order was appealable under section 17 of the said Act. Section 17 is reproduced hereunder:-- "17. Appeal.---(1) An appeal against a direction made under subsection (3) or subsection (4) of section 15 may be preferred within thirty days of the date on which the direction was made before the lab our Court constituted under the Industrial Relations Ordinance, 1969 within whose jurisdiction the cause of action to which the appeal related arose."
(2) By the employer or other person responsible for the payment of wages, under section 3, if the total sum directed to be paid by way of wages and compensation exceeds three hundred rupees: ' Provided that no appeal under this clause shall lie unless the memorandum of appeal is accompanied by a certificate of the authority to the effect that the appellant has deposited with the authority the amount payable under the direction appeal against."
' In this regard we are guided by the dictums laid down in "M/s. S.M. Rehman & Company v.
Motabar and others" PLD 1981 SC 282 whereby their Lordships while interpreting the word "finality" in section 17(c) of the Act IV of 1936 held that:--- "Finality attaching to order of authority under section 15 of Payment of Wages Act, 1936 means that order of authority can be challenged only by way of appeal to District Court and not otherwise--no limitation, however, placed in respect of appellate order made by District Court as ordinarily constituted in which capacity such Court subordinate to High Court."
The petitioner cannot invoke Constitutional jurisdiction of this Court because alternative remedy of appeal was available to the petitioner against the order of authority. The petitioner failed to avail such remedy. Even if the decision of authority was in excess of jurisdiction or without jurisdiction such wrong could be remedied in appeal. The petitioner could not be permitted to circumvent law by impugning such decision by way of Constitutional petition .
10. We do not find any illegality or error in the impugned order and the present Constitutional petition is not maintainable in law in view of section 17 of Payment of Wages Act. The same is, therefore, dismissed in limine.