1. ' MUHAMMAD MOOSA K. LEGHARI, J.---By consent of the learned counsel for the parties, M.As.
2. Nos.254 of 1992 and 255 of 1992 stand granted.
2. Though these petitions were fixed for hearing of the above applications, however, learned counsel for the parties have proceeded to argue the main petitions on merits and have consented to disposal of the matter at this stage. In view of the fact that these petitions pertain to the year 1989, we deem it proper to hear and decide the same with the consent of the learned counsel for the parties by this single order as similar questions of law and facts are involved.
3. ' Through these petitions the petitioners have challenged the common decisions dated 8-2-1989, passed by the learned Sindh Labour Appellate Tribunal at Karachi in Applications Nos.Hyd-29 of 1984 and Hyd-20 of 1984, whereby the revision applications filed by the petitioners were dismissed.
4. ' The facts of the case in Revision Application No,29 of 1984 are that the respondents moved Application No,78 of 1982 before the learned Authority under the Payment of Wages Act, under sections 15 and 16 of the Payment of Wages Act, 1936, for payment of the house rent which was being withheld by the petitioners. The learned authority under the Payment of Wages Act, decided the matter in 'favour of the respondents and the appeal filed by the applicants was dismissed by the learned Sindh Labour Court No,VI at Hyderabad. The revision application filed before the learned Sindh Labour Appellate Tribunal also came to be dismissed as stated above.
5. ' In Revision Application No,30 of 1984 the respondents had approached the learned Authority under the Payment of Wages Act, for the grant of relief by way of payment of conveyance allowance which was being withheld by the petitioners/applicants. The learned authority while passing an order under sections 15 and 16 of Payment of the Wages Act granted the relief prayed for by the respondents. The respondents challenged the order of the learned authority before the Sindh Labour Court No,VI at Hyderabad, in appeal which was rejected vide order, dated 5-2-1983.
6. The decision delivered by the Labour Court was challenged in revision application as stated above but the same was also dismissed. Hence these two petitions whereby the orders passed by the forums below have been called in question.We have heard Mr. Abdul Hussain Motiwala, learned counsel for the petitioner and Mr. Mehmood Hussain Siddiqui, learned counsel for the private respondents.
7. ' It was contended by the learned counsel for the petitioners that the dispute was of civil nature and the provisions of the Workmen's Compensation Act; were not attracted. It was further contended that the Provincial Government which was a necessary party, has not been impleaded as a party, and that before filing the base before the Authority under Payment of Wages Act, no notice was served. On the strength of above contentions it was urged that the order passed by all the forums below were void ab initio and without lawful authority. '
8. ' Learned counsel for the private respondents on the other hand has contended that the orders passed by all the Courts/Tribunals below were in accordance with law. The appeal filed before the learned Labour Court as well as the revision tiled before the learned Sindh Appellate Tribunal were rightly dismissed. It was further contended that the petitions were not maintainable as it has not been shown as to how the forums below have not exercised their jurisdiction properly and validly.
9. Learned counsel in support of his above contentions has relied upon the authority reported in 2000 PLC 383.
10. ' We have given our anxious consideration to the contentions raised by learned counsel for petitioner. At the outset it may be mentioned that the cases were filed and adjudicated upon under the provisions of Payment of Wages Act, 1936 and not under the provisions of Workmen's Compensation Act, as argued by learned counsel for the petitioner. Needless to mention here that the Payment of Wages Act is a Special Statute and the provisions of Code of Civil Procedure, in so far as the impleading of Government of Sindh as a necessary party, were not attracted in any manner. It may not be opt of place to mention here that even these Constitutional petitions have been filed by the Agricultural Engineer, Agricultural Machinery Division Makli Thatta District and not by the Government of Sindh. In this view of the matter if this argument of the learned counsel for the petitioner is accepted then the present petitions will not be maintainable on this score alone, the same having not been filed on behalf of or by Government of Sindh. The next argument of the learned counsel for the petitioner regarding non-service of notice upon the Government of Sindh was also of no consequence as after the enactment of Code of Civil Procedure (Amendment)
11. Ordinance, 1962 a party will not be non-suited on this score, though it was neither a civil suit, nor the provisions of Code of Civil Procedure were stricto senso applicable. Keeping in view this fact we find that this argument is absolutely misconceived and not tenable.
12. ' The Payment of Wages Act, 1936 was promulgated for the purpose of regulating the payment of wages of certain classes of persons. The terms 'wages' has been defined under section 2(vi) of the Act, which is reproduced hereunder:--
(vi) 'Wages' means all remuneration, capable of being expressed in terms of money, which would, if the terms of the contract of employment, express or implied, were fulfilled, be payable whether conditionally upon the regular attendance, good work or conduct or other behaviour of the person employed or otherwise, to a person employed in respect of his employment, or of work done in which employment, and includes remuneration of the nature aforesaid which would be so payable and any sum payable to such person by reason of the termination of his employment, but does not
(a) the value of the any house accommodation, supply of light, water, medical attendance or other amenity, or any service excluded by general or special order of the (Provincial Government);
(b) any other contribution paid by the employer to any pension fund or provident fund;
(c) any travelling allowance or the value of travelling concession;
(d) any sum paid to the person employed to defray special expenses entailed on him by the nature of his employment; or
(e) any gratuity payable on discharge.
13. According to the provisions of section 3 of the Act, the 'Employer' which includes the person responsible for the supervision and the control of the industrial establishment should be responsible for the payment to the person employed by him of all wages required to be paid under the Act.
14. ' There is no dispute with regard to the wages of the respondents. It is also not disputed that the private respondents were employed under the supervision and control of the petitioner, and the petitioner was the person responsible for the payment of their wages.
15. ' We have minutely perused the order passed by the learned Authority and find the same strictly in accordance with law. The benefits which were claimed by the respondents before the Authority are covered by the definition of 'Wages' as contained under the Payment of the Wages Act, and as such, the Authority under Payment of Wages Act, 1936, has the exclusive jurisdiction to adjudicate the matter. The adjudication was made after recording the evidence in which the petitioners were given fully opportunity to lead their evidence. From the perusal of the judgments of the forums/tribunals below we find that the judgments/decisions are well-reasoned and based on evidence. No illegal exercised of jurisdiction by the forums below was pointed out. It may, however, be observed that one of the ground taken in the memo. Of petition is that the respondents fall within the definition of "Civil Servants" and therefore, the jurisdiction of the authority was not attracted though this argument was not advanced by the, learned counsel for the petitioners at the time of hearing of this petition. However, from the evidence on record we find that the respondent were work charged employees and were specifically excluded from the purview of "Civil Servants" as defined under section 2(1)(b)(ii) of the Sindh Civil Servants Act, 1973. The workcharged employees have been held not to be the civil servants and the law is now settled on this point. If any reference is needed the case of Executive Engineer Central Civil Division Pak (PWD)
16. Quetta v. Abdul Aziz and others (1996 PLC 385) decided by the Hon'ble Supreme Court, may be referred.
17. ' An interference in Constitutional jurisdiction is permissible only where subordinate Court or Tribunal either exercised jurisdiction it did not possess or exceeded its jurisdiction or failed to exercise jurisdiction required to be exercised, or in exercise of its jurisdiction acted with material irregularity, rendering its order without lawful authority.
18. ' For the reasons as discussed hereinabove we are satisfied that interference in Constitutional jurisdiction in the instant case is not warranted. Resultantly the petitions are dismissed. Above are the reasons for the short order passed on 21-8-2001.