' The petitioner, who is the employer, has invoked the Constitutional jurisdiction of this Court for challenging the decision of Commissioner under Payment of Wages Act, which order has been maintained with slight modification by the Labour Court on appeal.
2. The circumstances in which this petition has been instituted are that Abdul Aziz respondent was an employee of the petitioner who was dismissed from service long back. He instituted proceedings on 8-3-1972 under M. L.
0. No, 235. The arbitrator on 28-3-1972 passed the following order :- "According to the management the worker was dismissed. No notice was given to the worker under Standing Orders Ordinance which was mandatory. The dismissal is as such illegal. I therefore order and direct that the petitioner will be re-instated."
' The respondent then filed a claim under the Payment of Wages Act in respect of the unpaid wages amounting to Rs, 3,116.13 for the period he remained out of duty under the illegal dismissal order which had been set aside by the arbitrator. The Commissioner under the Payment of Wages Act allowed the claim in full on 20-2-1974. An appeal was preferred by the employer to the Labour Court which accepted the claim made by the employee in principle and reduced his entitlement to Rs, 1,995.31. Except for this modification in the amount due as wages to the employees the other claims made by the employee were disallowed by the Labour Court and the appeal succeeded only to that extent.
3. It has been urged by the learned counsel for the petitioner that the arbitrator under M. L.
0. No, 235 had an exclusive jurisdiction to make the award and thereby directed re-instatement and allowed consequential benefits to him. The arbitrator having passed an order of reinstatement but having kept silent with regard to back benefits, the employee could not claim it and the Authority or the Labour Court could not grant it. The finality was attaching to the award as given by the arbitrator and it could not be either modified or improved upon.
4. The legal question which requires examination in this context is where dismissal order is held to be illegal and an unconditional re-instatement order is passed by a competent authority the payment of wages or salary for the period that the employee was kept out of employment on account of the wrongful dismissal follows, as a matter of course, or is it a matter which requires decision of an authority otherwise than the arbitrator.
5. Martial Law Order No, 235 created arbitrator by para. 5 and his jurisdiction under para. 4 extended to all cases where the grievance related to termination of employment of a workman as a result of retrenchment, dismissal, discharge, lay off, lock-out or otherwise made after the 17th day of December 1970. The only exempted category of cases was that which had already been adjudicated upon by a Labour Court or Appellate Labour Tribunal. The arbitrator was to announce his award in writing and by clause (3) of para. 7 while making the award the arbitrator "may direct the re-instatement of the workman and allow consequential benefits to him or reject his application." Para. 8 made provision for the arbitrator to correct mistakes appearing on the face of the record or proceedings connected with the record. Finally, the exclusion of other jurisdictions was envisaged by para. 11 which is as follows :- "(1) Notwithstanding anything contained in any law for the time being in force or any rule, agreement or other instrument, all matters to which this Order applies shall be exclusively decided by an Arbitrator in accordance with the provisions of this order and shall not be enquired into or decided by any Court.
(2) Any order passed or award given by the Arbitrator shall be final and shall not be called in question in any manner by or before any Court.
(3) All applications or other proceedings pending in any Labour Court or appeals pending in the Labour Appellate Tribunal regarding the matters to which this order applies shall abate as soon as the dispute involved in such application, proceeding or appeal, as the case may be, is brought before the Arbitrator."
6. It follows from this scheme of the Order that all cases of termination except those already adjudicated upon had to be taken to the arbitrator. Secondly, the arbitrator had the exclusive jurisdiction to determine the legality of the dismissal, to direct re-instatement and to allow him the consequential benefits. There was also scope left for getting the paten mistakes which of course include omissions rectified by an application to the arbitrator. Finally, there was the exclusion of every other jurisdiction b making the order of the arbitrator final and not liable to interference from any quarter whatsoever.
7. An objection on the basis of these provisions was taken before the Commissioner, Payment of Wages Act, as also before the Labour Court in appeal. The object of the proceedings before the Commissioner, Payment of Wages Act, and on appeal before the Labour Court, in fact, was to seek the consequential benefits arising out of reinstatement order which the arbitrator was competent to allow but had not allowed it. It is not clear from the order whether he, after applying his mind, had refused it or it was an inadvertent omission. Whatever be the position, the jurisdiction was exclusively his and if the denial of consequential benefits, aggrieved the respondent at that stage the proper course for him was to have invoked para. 8 of the Order for getting proper rectification or for getting that matter settled by the arbitrator by a more pointed order. It was not open to the respondent to obtain the re-instatement order from the arbitrator and the consequential benefits from the Commissioner, Payment of Wages Act.
8. The Labour Court, while dealing with this question, relied on the ,decision of the Supreme Court in Divisional Superintendent, N. W. R., Lahore v. Muhammad Sharif (1), and held that "the order of the arbitrator does not debar the employee to claim the back wages and once the order of the appellant is held illegal it inter alia applies that the respondent remained an employee for the intervening period." It is not the order of the arbitrator, the words or the import thereof which confer jurisdiction or (1) PLD 1963 SC 340 deny jurisdiction. It is the subject-matter of the cause brought before the arbitrator which determines whether it was one within his exclusive competence or not.
Once it is found to be within his exclusive competence, it is not open for other authorities to take up the thread and to supplement the order which within the ambit of his powers the arbitrator could have more appropriately passed.
9. The Supreme Court decision in Muhammad Sharif' s case has no application because the civil Court had granted the declaration against the discharge on 29-9-1955. It was not then within competence of the civil Court to allow the wages. What was not within the competence of the civil Court then, could not be expected to be done by it but of necessity had to be done by some other authority and the one prescribed under the law was the Commissioner, Payment of Wages Act. The position in this case is entirely different. What the Commissioner, Payment of Wages Act is required to do was within the "jurisdiction" of the arbitrator and the arbitrator's jurisdiction in the matter was exclusive. If the wages were not linked with the termination of service and if they did not follow as a consequence to the reinstatement order but were independent of it, certainly the exclusion of jurisdiction would not be there. In this case, however, the exclusion clause clearly applied and the decisions given by the Commissioner, Payment of Wages Act and the Labour Court in the matter, "are without" jurisdiction and therefore without lawful authority and of no legal effect. It is declared to be so. In the circumstances, no order is made as to costs.