' Order dated 3-3-1985, passed by the Authority under the Payment of Wages Act, 1936, Gujrat (respondent No,1) has been challenged through this petition under Article 199 of the Constitution.
2. There is National Wood Industries Limited, Lala Musa, District Gujrat. Respondent No,2 who was Labour Officer at the relevant time, carried out an inspection of the said industry and thereafter, filed an application on 8-8-1984 before respondent No,1, who is the Authority under the Payment of Wages Act alleging therein that the industry was not paying cost of living allowance at the rate of Rs,40 per month to its workers and staff members and was also not paying over-time to them. This application was contested by the petitioners challenging the locus standi of respondent No,2 in making such an application as also the jurisdiction of respondent No,1 in the matter, inter alia, on the ground; that the employees were being duly paid cost of living allowance and that no deduction was being made from their wages; and that in any case cost of living allowance was not part of wages under the Payment of Wages Act, therefore, respondent No,1 had no jurisdiction in the matter. On the controversial pleas, issues were framed by respondent No,1 who vide its impugned order dated 3-3-1985 held that 39 workers and 21 staff members were entitled to payment of Rs,43,200 as illegal deduction of wages and that they were also entitled to two times compensation in addition to the original claim.
3. In support of this petition, it is contended by the learned counsel for the petitioner that the employees were being paid their, dues, wages and allowances that is why no complaint had ever been made by any of its workers before any authority. Reference has been made to number of affidavits, filed by the workers to show that they were being paid adequately their wages. It is contended that respondent No,2, the Labour Officer, had moved an application on account of and mala fide which had a background and the said application was not competent before respondent No, 1 . It is further contended that cost of living allowance is not part of wages under the Payment of Wages Act. Reference is also made to proviso to section 7 of the Employees Cost of Living (Relief) Act, 1973 that cost of living allowance is not part of wages for the purposes of Payment of Wages Act, 1936. He also makes reference to the statement made by respondent No,2 (complainant before respondent No,1) wherein it was admitted by him that cost of living allowance as also the over-time was not part of the wages. Accordingly, it is contended that respondent No,1 assumed the jurisdiction in a matter which did not vest in him. He has also drawn my attention to the number of affidavits of the workers placed on record of this petition, to show that they had no grievance against the petitioners as they were being paid their wages in accordance with law.
4. At the limine stage of this petition, the respondents were directed to submit their parwaise comments which have been filed, however, there was no representation on their behalf later on and were proceeded against ex parte vide order dated 22-1-1986. The case has been listed for hearing after notice to the parties but the respondents remain unrepresented.
5. The case of the petitioners before respondent No,1 as also before this Court is that all its employees were being paid their wages in accordance with law and no deduction whatsoever had been made from their wages so as to attract the application of section 15 of the Payment of Wages Act, 1936. In support of his case, the petitioner produced Muhammad Sharif, Cashier of the Factory, who made a detailed statement as also Muhammad Hussain, Electrician and Muhammad Shafi, the Manager. In support of his application, respondent No,2 appeared as witness, in his statement it was admitted by him that the staff salary register included payment of cost of living allowance and also that the cost of living allowance and the over-time were not part of wages under the law.
Respondent No,1, however, while deciding the matter did not advert to the objection as to the jurisdiction and competency of the proceedings before him and proceeded to decide the matter without touching the real controversy and, thus, assumed jurisdiction in the matter. The evidence produced by the petitioners as also the admission made by respondent No,2, to the effect that the cost of living allowance was being paid and was duly shown in the relevant register, was not attended to. Another aspect which has been totally ignored in assuming the jurisdiction in the matter is the statement of respondent No,2. He had stated that cost of living allowance and over- time was not part of wages under the law.
6. It is trite law that where the jurisdiction of an Authority is dependent upon the existence of certain facts and preconditions, such conditions and facts must exist for assuming jurisdiction or proceeding further in the matter. Reference may be made to Mehr Dad v. Settlement and Rehabilitation Commissioner, Lahore Division, Lahore and another (PLD 1974 SC 193) and Sindh Employees' Social Security Institution v. Dr. Mumtaz Ali Taj and another (PLD 1975 SC 450). In Mehr Dad's case (supra), it was held by their lordships that where jurisdiction of a Tribunal is dependent upon existence of some particular facts and the Tribunal by giving a wrong decision assumes jurisdiction in the matter, it was open for the High Court to examine the correctness of the decision and assumption of jurisdiction by the Tribunal. In the latter case the assumption of jurisdiction by a Labour Court was declared as without jurisdiction by their lordships of the Supreme Court.
7. In Sima Fabrics Ltd. v. Authority Under Payment of Wages Act, Gujranwala and 3 others (1981 PLC 498) order of the Authority was challenged in writ jurisdiction on the ground that the same was without jurisdiction. In that case an Advocate had filed a complaint before the Authority under section 15 of the Payment of Wages Act, 1936 alleging therein that as counsel for the company the fee to which he was entitled under the agreement had been withheld by the management. The authority proceeded to accept the claim which order was challenged on the ground that the professional fee of the counsel was not "wages" in terms of the Payment of Wages Act, 1936. The order of the Authority was accordingly held to be totally without lawful authority and of no legal effect.
8. Thus, once it was stated by respondent No,2 before respondent No,1 that cost of living allowance and over-time was not part of wages for the purposes of Payment of Wages Act, 1936, respondent No,1 should have declined to assume jurisdiction and proceeding further in the matter. His order as such is not sustainable.
' In view of the above the assumption of jurisdiction by respondent No,1 on an application filed by respondent No,2 and the order of respondent No,1 dated 3-3-1985 is declared as illegal and of no lull effect. This petition is accepted.
' No order as to costs.