KHALIL-UR-REHMAN RAMDAY, J.---This appeal, through leave to this Court, is directed against an order dated 24-4-1996 passed by the' Lahore High Court in Writ Petition No,13342 of 1994 which order had however, been announced on 12-8-1996. It also impugns the orders dated 24-8-1994 and 25-9-1994 of the Authority exercising powers under the Payment of Wages Act No,IV of 1936, at Gujranwala.
2. The appellant before us is the Town Committee of Mandi which is a local council established under the Punjab Local Government Ordinance No,VI of 1979 and respondents Nos.2 to 57 are the employees of the said Committee working as sweepers, donkey-cart drivers, watermen and sewer-men.
3. The controversy, which has finally culminated in the present appeal, started with an application submitted by respondents Nos.2 to 57 before the respondent-Authority claiming, from the appellant-Committee, an amount of Rs,11,16,916.14 for the extra-labour/over-time put in by them having performed their respective duties even on public holidays from the year 1981 to the year 1989. The date of the filing of this application is not discernible for its copy placed on our record though it appears that the same had been submitted sometimes in the month of November in the year 1989. The appellant-Committee resisted this application on the ground that the claim in question was not legally tenable being barred by time. On the factual plane it was submitted that the said claim was fake and that whenever the claimants had worked on public holidays, they had been paid the requisite wages. This reply was submitted by the appellant on 8-5-1990.
4. On 6-8-1990, the Town Committee submitted an application and sought permission from the respondent-Authority to raise a further legal objection i,e, that the Authority had no jurisdiction in the matter in question. This application remained pending for more than four years and was ultimately dismissed through an order dated 24-8-1994 on the ground that the case was being heard having been remanded back to the Authority; that the remand order directed the Authority to re-hear the case from the stage where it had been transferred to Gujrat; that the matter was at the stage of passing of the final order and that it would be "Useless" to re-start the hearing from the initial stage of the preliminary objection about its jurisdiction.
5. The respondent-Authority then proceeded to finally decide the matter through an order dated 25-9-1994; accepted the claim of the private respondents herein to the extent of Rs,9,44,210.70 and directed the appellant-Committee to deposit the said amount of money with it within thirty days for onward payment of the same to the employees in question.
6. The appellant Committee questioned the abovementioned two orders i,e, the order dated 24-8- 1994 and the final order dated 25-9-1994 before the Lahore High Court through a petition bearing Writ Petition No,13342 of 1994 filed under Article 199 of the Constitution. This petition was, however, dismissed on 24-4-1996 through an order announced on 12-8-1996, essentially on the ground that the Town Committee had a right to impugn the said orders through an appeal under section 17 of the said Act of 1936 and since the said Committee had not exhausted the said remedy before approaching the High Court, therefore, a petition under Article 199 of the Constitution was not competent.
7. The Town Committee then filed an Intra-Court Appeal bearing I.C.A. No,378 of 1996 which was also dismissed through an order dated 9-9-1996 on the ground that since the impugned order of the authority was appealable therefore, an Intra-Court Appeal under section 3 of the Law Reforms Ordinance of 1972 was not maintainable.
8. This is how the appellant-Committee is now before us with this appeal.
9. The questions which required determination by us are as to whether the Authority under the Payment of Wages Act of 1936 had the jurisdiction to adjudicate upon the claim in question; whether a petition under Article 199 of the Constitution was competent in the present case without first exhausting the available statutory remedy of appeal and finally, whether the claim lodged by respondents Nos.2 to 57 was valid.
10. The core issue, however, is about the authority of the respondent-Authority to deal with the matter in question and we propose to deal, first, with this question.
11. The provisions of section 3 of the Payment of Wages Act of 1936 cast an obligation on the employer to pay wages, required to be paid under the said Act, to persons employed by it. The preamble of an enactment which briefly sets forth the object which such an enactment seeks to achieve, indicates to us in the present case, that the purpose of enacting the said Act of 1936 was not to secure payment of wages for all kinds of employees by all manner of employers but to ensure payment of wages only to "certain classes of persons employed in industry". Subsection (4) of section 1 of the Act lays down the parameters within which bounds the provision of the said Act were to operate. The provisions of the said subsection (4) of section 1 tell us that the application of the said Act of 1936 shall be restricted only to the "persons employed in any factory and to persons employed otherwise than in a factory upon any Railway by a Railway Administration". Subsection
(5) of section 1 however authorizes a Provincial Government to extend the application of the provisions of the Act of 1936 to persons employed in "any Industrial Establishment or any class or group of Industrial Establishment".
12. Respondents Nos.2 to 57 are obviously not the persons employed with the Railways. Section 2(ii) of the said Act of 1936 defines "Industrial Establishment" but the same is also not relevant for our purposes because it is not the case of the respondents that the appellant-Town Committee was an Industrial Establishment and that the Government of the Province of Punjab had extended the application of the Act in question to it.
13. Thus the provisions of the said Act No,IV of 1936 would be attracted to the case in hand only if it could be established that the appellant-Town Committee was a factory whereupon respondents Nos. 2 to 57 would become persons employed in a factory whose wages would then get protected under the Act of 1936.
14. The Payment of Wages Act of 1936 defines a "factory" through section 2(i) to mean a factory as defined in clause (j) of section 2 of the Factories Act being Act XXV of 1934. The said provision of the said Factories Act of 1934 defines a 'Factory' as under:-- "(j) 'Factory' means any premises including the precincts thereof, whereon (ten) 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 (or is ordinarily carried on with or without the aid of power), but does not include a mine, subject to the operation of Mines Act, 1923 (IV of 1923)."
The expression "manufacturing process" also stands defined by section 2(g) of the Factories Act of 1934 which reads as under:- "(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 pumping oil, water or sewage, or
(iii) for generating, transforming or transmitting power; As per section 2(g) of the Factories Act, a person is a worker within the purview of the Act of 1936, if he is employed in a manufacturing process or in cleaning any machinery or premises used for a manufacturing process or in any other kind of work incidental to or connected with the subject of the manufacturing process.
15. The answer to our question thus lies in determining whether the appellant Town Committee is engaged in any manufacturing process and whether respondents Nos.2 to 57 were employed for the purposes of or engaged in any such process.
16. The appellant Town Committee is admittedly not involved in making, altering, repairing, ornamenting, finishing or packing any article or substance with a view to its use, sale, transport, delivery or disposal. Although nothing was brought on record to demonstrate that the Town Committee was selling sewage to the cultivators for cultivation purposes yet even if it be presumed that the said Committee was engaged in some such business even then such an act would not become a manufacturing process because it is not a sale simpliciter of an article which is the deciding factor in the matter as it is the making, altering etc. And the treatment of such an article which is the real determining factor. Respondents could not show that the sewage being sold, if at all, was being sold after treating the same.
17. The Town Committee was also not generating, transforming or transmitting power nor was any evidence led to show that it was pumping oil, water or sewage or that respondents Nos. 2 to 57 were employed for pumping any oil, water or sewage.
18. Having thus examined the relevant provisions of the law regulating the subject and having considered the functions being performed by the appellant-Town Committee in the light of the evidence produced before the respondent-Authority at the trial, we find and hold that appellant Town Committee was not a factory in terms of the Payment of Wages Act of 1936 nor could respondents Nos.2 to 57 be held to be person employed in a factory.
19. As a consequence, we also hold that the respondent-Authority performing function under the Payment of Wages Act No IV of 1936 had no jurisdiction to deal with the matter in question or to pass the impugned order dated 25-9-1994. The said order is therefore, declared to be illegal and of no legal effect.
20. Jurisdiction of any forum, Court or Tribunal holding any proceedings is always the core question. It is therefore obligatory for officers presiding over such fora to determine the question of their jurisdiction whenever some doubt exists or is expressed about it, irrespective of the stage of the proceedings at which such an objection is raised. The respondent-authority was, thus, in grave error in having ignored and having failed to resolve the issue of its jurisdiction when it was sought to be urged. Its order dated 24-8-1994, cannot therefore, be justified and sustained in law.
21. It is true that as a general rule a person would not be permitted to invoke the extraordinary Constitutional jurisdiction of a. High Court under Article 199 of the Constitution if an adequate remedy was available to him to seek redress of his grievance. But then this is also equally true that such was H not an inflexible rule of law not subject to any exception. This Court has held, more than once, that a writ of certiorari for instance, could be granted, despite availability of an alternate remedy, where, for example, the impugned order was ex facie without lawful authority or where it was a case of lack or absence of or even excess of jurisdiction, reference may be made to the cases of S.A. Haroon v. The Collector of Customs PLD 1959 SC (Pak.) 177; Pakistan v. Zia-ud-Din PLD 1960 SC 440; Lt.-Col. Nawabzada Muhammad Amir Khan v. The Controller of Estate Duty and others PLD 1961 SC 119; Nagina Silk Mills v. The Income-tax Officer and others PLD 1963 SC 322; Premier Cloth Mills. Ltd. v. The Sales Tax Officer 1972 SCM R 257 and Murree Brewery Co. Ltd. v. Pakistan PLD 1972 SC
279. As has been held above, the case in hand was a case of absence of jurisdiction on the part of the respondent-Authority and the High Court was, therefore, not right in rejecting the petition under Article 199 of the Constitution only because a remedy by way of appeal was available to the petitioner before it. The order dated 24-4-1996 of the High Court passed in Writ Petition No,13342 of 1994 could, therefore, not be said to be an order justifiable in law.
22. The result is that this appeal is allowed. The impugned order dated 25-9-1994 is set aside as having been passed by the respondent-Authority without any jurisdiction. The application in question, submitted by respondents Nos. 2 to 57, before the respondent-Authority is consequently dismissed.
23. Since we have dismissed the private respondents' application before the respondent-Authority on the question of its jurisdiction, therefore, we consider it inappropriate to adjudicate upon the merits of the respondents' claim and leave the same to be decided by some competent forum, if approached for the purpose by the said respondents.
24. There shall, however, be no orders as to costs.
…and 19 more citing cases