JUDGMENT M. JAVED BUTTAR, J. - This petition under Article 199 of the Constitution of Islamic Republic of Pakistan. 1973 is directed against the order dated 21.5.1995 passed by respondent No. 2- Commissioner, Faisalabad Division, Faisalabad whereby the appeal of petitioner Zafar Ali and 44 others, all employees of Encroachment Branch of respondent- Municipal Corporation, Faisalabad, has been dismissed.
2. The appellants had submitted their bills for the payment of overtime worked by them at twice the rates of their ordinary pay but the respondent-Municipal Corporation refused to pay the same and on this refusal, the appellants had Filed the above said appeal before the Commissioner.
3. The present petitioner is employed as a Beldar in the Land Branch of respondent-Municipal Corporation. Faisalabad and is working in the Encroachment Branch along with other such workers and it is alleged that most of the times they are busy in demolishing the buildings and other illegal structure more than eight hours a day and in addition to this, the petitioner and others have to remove the boards and play cards etc. From the poles and trees and sometime they work for more than 12 hours a day. In this background, the claim of the petitioner and his co-workers with the respondent-Municipal Corporation. Faisalabad, is that they are entitled, in respect of over-time worked, to pay at the rate of twice their ordinary rate of pay under sub-section (1) of Section 47 of Factories Act XXV-of 1934 which provides as under:-
(I) Where a worker -
(a) in a non-seasonal factory works for more than nine hours in any day or for more than forty- eight hours in any week, or
(b) in a seasonal factory works for more than nine hours in any day or for more than titty hours in any week, - he shall be entitled in respect of the over-time worked to pay at the rate of twice his ordinary rate of pay.
4. The claim of the petitioner. Zafar Ali and his co-workers tor their entitled to be paid for the over- time worked, at the rate of twice their .Ordinary rate of pay has a previous litigation history also which in brief is narrated hereafter. The petitioner and other such workers worked over-time for the period from 198l to 1986. The respondent-Municipal Corporation, Faisalabad refused to pay the over-time, the petitioner and 20 others, therefore, filed a joint petition under Section 15 of the Payment of Wages Act, 1936 for recovery of Rs.3,85.807.44 as over-time wages. The Authority, vide its judgment dated 22.3.1989, accepted the petition, granted the claim and held that the petitioners before it were entitled, under Section 47 (1) of the Factories Act, 1934, to the payment of wages, at the rate of twice their ordinary rate of pay for the over-time worked and passed a decree in favour of the petitioners for a sum of Rs. 3,85,807.44 and directed the respondent-Municipal Corporation to deposit the same with the Authority in time for its disbursement to the petitioners as detailed in the judgment. The appeal of the Municipal Corporation, Faisalabad was dismissed on 15.6.1989 because of the violation of Proviso to Section 17 of the Payment of Wages Act, 1936 as the Judgment-debtor had failed to deposit the decretal amount with the Authority before tiling the appeal. The order of the Punjab Labour Court was challenged by the respondent through W.P. No. 3267/90 which was dismissed in limine by a learned Single Judge of this Court on 19.5.1990. The learned Single Judge went on to hold that the petitioner before it (Municipal Corporation, Faisalabad) was guilty of fraud on Court as well as fraud on statute because while tiling the appeal before the Labour Court it had given the necessary certificate accompanying the memorandum of appeal showing the deposit of Rs. 3,85,807.44 with Authority through cheque bearing 7937911, dated 16.5.1989 which was later on dishonoured. The respondent-corporation thereafter tiled a fresh appeal before the Punjab Labour Court No. 4, Faisalabad, which too was dismissed on 13.8.1992. The petitioner and the workers were thereafter paid the over-time till 7.9.1992. An other fresh claim for the admissible over-time of Rs. 2,72.238/- for a period from 7.9.1992 to 31.10.1992 was declined by the Mayor, Municipal Corporation. Faisalabad, on 13.2.1993. Whereby he withdrew the Resolution No. 1759, passed by the House of the Corporation, regarding the payment of over-time allowances, in favour of the employees of the Land Branch, including the petitioner. This action of the Mayor of the Municipal Corporation, Faisalabad, was challenged by the petitioner and his other co-workers in an appeal before the Commissioner, Faisalabad Division, Faisalabad, which was accepted on 26.4.1993 and the Municipal Corporation, Faisalabad, was directed to pay the admissible over-time to the petitioners. The cause of action accrued afresh in favour of the petitioner and his co-workers when the Municipal Corporation again stopped payment of over-time to its employees including the petitioner j which led to filing of an appeal hy the petitioner and 44 others, all j employees of Encroachment Branch. Municipal Corporation, Faisalabad, before the Commissioner, Faisalabad Division, Faisalabad, in which it is narrated that the appellants before the Commissioner were not paid over- j time from 1.11.1992 to 31.3.1993 and their appeals are still pending for payment, thereafter over-time was again -paid to them at double the rate only for the period from 1.4.1993 to 30.6.1993 but again over-time has not been paid from 1.7.1993 up to-date. The appeal was filed on 12.2.1995 which, as mentioned above, has been dismissed by the impugned order dated 21.5.1995.
The operative part of the impugned order is reproduced 1 below:- "I have heard the appellant as well as his counsel. The appellants are employees of Municipal Corporation, Faisalabad. They claim to have done the work iq the Encroachment Branch in the late hours but according to my assessm ent in the city there is much work of removal of encroachments left to be desired. Being employees of Municipal Corporation they are duty bound o finish their work even after office hours. Zafar Ali has tried to plead the case of the appellants as their leader. This type of leadership is not desireable. The appeal is baseless and dismissed. The appellant should perform their duties to the satisfaction of their employer who will pay them the permissible over- time, if necessary."
5. The petitioner, through this Constitutional petition, is seeking a direction from this Court to the Administrator, Municipal Corporation, Faisalabad, to act according to law. To re-imburse and to continue to reimburse, over-time at the double rates of the wages for actual over-timework done in accordance with Section 47 of Factories Act, 1934. Any other relief which otherwise is deemed fit has also been prayed for.
6. In its para were comments to this petition furnished through the Administrator, the respondent- Municipal! Corporation, Faisalabad has admitted that Factories Act is applicable to the Corporation and the facts, as narrated in the writ petition, have also been admitted as correct but the payment of over time to the petitioner and the other employees of the Municipal Corporation, Faisalabad, is being denied and the petition is being resisted, on the ground that the petitioner and other such workers are not entitled to the payment of over-time and. Therefore, the over-time has been lawfully refused. The reasons of denial are not given.
7. I Have heard the learned counsel for the parties at length and have also seen the relevant record, the copy of which has been attached with this petition. Though the respondent-Municipal Corporation has admitted in its para were comments that provisions of Factories Act are applicable to it yet I have felt the necessity for dealing with the issue in detail for the guidance of all concerned and for the removal of any confusion in the minds of those who employ the workers and expect them to work over-time but do not want to pay them accordingly under the law. Necessity has been felt by me, also due to the perfunctory and superficial manner in which Mr. Riaz Ahmed Khan, the then Commissioner, Faisalabad Division, Faisalabad, dismissed the appeal of the petitioner and other employees on 21.5.1995. The operative part of the order has been reproduced above. He has not given any reason for the non-award of the over-time and the employment of such sentences like "being employees of Municipal Corporation they are duty bound to finish their work even after office hours" shows his complete ignorance of law. He has not even bothered to refer to the relevant law and rules. The phraseology employed and adopted by him in the impugned order does not show that lie is aware that people of Pakistan gained freedom and independence as far back as in 1947 and that we are no more living in the colonial era Similarly his uncalled for observation in the impugned order to the effect that "Zafar Ali has tried to plead the case of the appellants as their leader. This type of leadership is not desireable" shows his aversion .Towards the low-paid employees who merely want to be dealt within accordance with law. This also shows that high ranking officers of the rank of Commissioner of Administrative Divisions of the Province need guidance from this Court regularly.
8. It is contended by the learned counsel for the petitioner that the k provisions of Factories Act, 1934 are applicable to the employees of the Municipal Corporation, Faisalabad and those employees who fall within the definition of "workers", are entitled to the payment of wages for the over- I time worked by them at the rate of twice their ordinary rate of pay under B Section 47 (I) of the above said Act and in this regard, the learned counsel has also referred to Section 2 (g) and Section 2 (j) of the Factories Act, 1934 which are reproduced below for the purposes of reference:- 2(g). "manufacturing process: means any process -
(i) for making, altering, repairing, ornamenting, finishing or packing, or otherwise treating any article or substance with a view to its use, sale, transport, delivery or disposal, or
(ii) for pluming oil, water of sewage, or (i.e) for generating, transforming or transmitting power: 2(j) "factory" means any premises including the precincts thereof whereon twenty or more workers are working, or were working on any day of the preceding twelve months, and in any part of which a manufacturing process is being carried on with the and of power, or is ordinarily so carried on, but does not include a mine subject to the operation of the Mines Act, 1923 (IV of 1923)."
9. The above-mentioned shows that any premises including the precincts wherein twenty or more workers are working, or were previously working on any day of the preceding twelve months, and in any part of which a manufacturing process is being carried out is a "factory" under Factories Act XXV of 1934. The definition of the "manufacturing process" as provided in the Act is very were which includes altering, repairing, ornamenting etc. It thus covers the normal duties of low-paid employees of Municipal Corporations, doing manual labour like petitioner who is employed as a Beldar in the Land Branch of respondent-Municipal Corporation and the demolition of illegal structure and buildings within the limitation of Corporation is one of his normal duties. Learned counsel for the petitioner has referred to many reported judgments on the subject which are discussed here. In Ardeshir H. Bhiwandiwaia v. Stare of Bombay (1961 PLC 1097 (Supreme Court)
(India), while interpreting the similar provisions of Factories Act. 1948 of India, the Supreme Court of India, has held that even the simple concerns like salt works which consist merely of open stretches of large areas of land with some temporary shelters, in which salt is manufactured by the process of evaporation of sea-water fall within the definition of "factory" as provided in the Factories Act.
1948 which is similar to the definition of "factory" as provided in Factories Act. 1934. In this very judgment, it has also been held that "there is nothing in the definition of 'manufacturing process' which would make it necessary that this process be carried on in a building." The work can be done both in the building or in the open, in Biri Workers Union, Hyderabad v. Messrs Ajmeri Biri Works, Hyderabad (1963 PLC 914), the Industrial Court (Provincial) Karachi, held that the premises for the manufacture of biri j were a "factory" within the meaning of Section 2 (j) of Factories Act, 1934 and the workers working in such premises were accordingly entitled to the ' benefits of the Industrial and Commercial Employment (Standing Orders) Ordinance. 1960. In Lipton (Pakistan) Lid. v.
Government of Sindh (PLD j 1977 Karachi 714). a Division Bench of Sindh High Court, held that the tea mixing, blending and packing activities carried on with and of power was a "manufacturing process" within the meaning of Section 2 (g) and the premises in which such activities were carried was a "factory" within the meaning of Section 2 (j) of the Factories Act, 1934. In Municipal { Corporation, Rawalpindi v. Matloob Hussain Shah (1983 PLC 854). The Labour Appellate Tribunal, Punjab, held that Municipal Corporation. ( Rawalpindi, was maintaining water-works and supplying water on charge, ) therefore, it comes within the definition of "factory" also as by pumping water it indulges in the manufacturing process. It was also very correctly held that profit or no profit is no consideration. In WA PDA v. Shafiq-ur- \ Rehman's (1984 PLC 5). The Labour Appellate Tribunal, Punjab, while interpreting the various provisions of Industrial Relations Ordinance XXIII of 1969, West Pakistan Industrial and Commercial Employment (Standing Orders)' Ordinance. 1968 and the Factories Act. 1934 has very correctly \ held that WAPDA as a whole was covered by the definition of "industry" under Section 2 (ix) of Industrial Relations Ordinance, 1969, was covered by definition of "commercial employment" under Section 2 (b) of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 and that whole of the Power Wing of WAPDA was a "factory" and the provisions of Standing Orders Ordinance were applicable to the employees in Power Wing. In Muhammad AH Bhatti v. Punjab Labour Court No. I, Lahore and three others (1993 PLC 663), a learned Single Judge of this Court held that the preparation of 'tikkas' was a "manufacturing process" and, therefore. Bhatti Tikka House, Jail Road, Mozang. Lahore, a premises belonging to the petitioner, Muhammad Ali Bhatti, employed for the purposes of making 'tikkas' was held to be "factory" for the purposes of Section 46-A of Industrial Relations Ordinance. 1969 and the order of the Labour Court for granting benefits to the workers for the period they were illegally locked-out were upheld and the writ petition was dismissed.
10. The above-mentioned shows that respondent-Municipal Corporation. Faisalabad, has correctly admitted in its para were comments that the provisions of Factories Act are applicable to it. It is thus declared that respondent-Municipal Corporation. Faisalabad is a factory as defined in Section 2 (j) of Factories Act XXV of 1934 and the provisions of the Act are applicable to it and its employees are entitled to the benefits given to them under the same.
11. Learned counsel for the respondents has argued that the employees of the Municipal Corporation are governed by the Local Government Ordinance, 1979 and there is no provision under the same for the payment of over-time by the Municipal Corporation to its employees. The argument has no force because the workers throughout the country are governed by special laws including Factories Act XXV of 1934 and there is no specific exclusion of the same in Local Government Ordinance, 1979.
12. The writ petition is, therefore, accepted with costs throughout, the impugned order dated.
21.5.1995, passed by respondent No. 2, Commissioner, Faisalabad Division, Faisalabad, is set aside, the appeal of the petitioner and 44 others, who were appellants before respondent No. 2, shall be deemed to have been accepted and the respondent No. 1, Municipal Corporation. Faisalabad, is directed to pay the over-time to them for the period from I.M. 1992 to 31.3.1993 and for the period from 1.7.1993 up to- date. As all these low-paid employees have not been paid their due wages for such a long time, therefore, they are also held to be entitled to the profits on their claims/unpaid wages, at the bank rate, for the period for which the same were not paid to them. The respondent- Municipal Corporation, Faisalabad is also directed to continuously pay its employees/workers, in future also, in respect of their over-time worked be them, at the rate of twice their ordinary rate of pay, if they are found to be entitled to the payment of the same in accordance with the provisions of Factories Act XXV of 1934.
Writ Petition accepted.