' Order of respondent No,1, the Authority, under Payment of Wages Act, 1936, dated 14-1-2002, whereby the claim of the private respondents was accepted, has been assailed through this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, inter alia on the ground that the order is without jurisdiction:
2. The learned counsel for the petitioner has placed reliance upon Town Committee Gakhar Mandi v. Authority under the Payment of Wages Act, Gujranwala and 57 others (PLD 2002 SC 452), in support of his contention that the Authority in such-like cases has no jurisdiction and that respondent No,1, assumed the jurisdiction without deciding the issue of jurisdiction.
3. The learned counsel for the contesting respondents to the contrary contends that in a matter of claim as to Special Allowance permissible under the Punjab Employees Special Allowance (Payment) Act 1988, Authority, under the Payment of Wages Act, had jurisdiction as per section 7 of this Act. It is contended that the judgment of the Hon'ble Supreme Court had its peculiar facts and the question of jurisdiction was determinable by the Authority with reference to the evidence led by the parties in the matter.
4. Since the principal ground of challenge by the petitioner is the judgment of the Supreme Court of Pakistan in the case of Town Committee Gakhar Mandi (supra), the issue of jurisdiction of the Authority, is necessarily to be examined in the light of the principle laid down by their lordships. The perusal of the judgment shows that after considering various provisions of the Payment of Wages Act, 1936, and import thereof, question that was posed by their lordships was whether "the appellant Town Committee is engaged in any manufacturing process and whether respondents No,2 to 57 were employed for the purposes of or engaged in any such process." The matter was then examined in the succeeding paragraphs as follows:-- "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 simplicitor 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 No,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 beheld to be person employed in a factory".
5. As noted above, it is grievance of the petitioner as couched in paragraph 5 of the petition that Authority passed the order without deciding the issue of jurisdiction. In the light of the observations of their Lordships in the above mentioned case the question of jurisdiction was to be decided by the Authority on the basis of the material before it and in the light of the evidence produced before the Authority. There is no cavil that in the present case respondent No,1, did not make determination as to his jurisdiction in the matter by giving any reason and simply made a jumping conclusion that the application of the contesting respondents was maintainable before him. He was obliged to consider the evidence and the respective contentions of the parties qua his jurisdiction. This was not done by respondent No,1, his order, thus, is not sustainable in view of the judgment of the Hon'ble Supreme Court of Pakistan. Since, the appreciation of the evidence on the record should in the first instance be undertaken by the forum concerned, the matter is remitted to respondent No,
1. For determination afresh in the light of the evidence on the record and the law applicable.
' As a result of the above, order dated 14-1-2002, is declared as of no legal effect. The result would be that the petition filed by the contesting respondents shall be deemed pending before respondent No,l. Who will hear and decide the same afresh in accordance with law in the light of the observations made above. The petition is accepted in these terms. No order as to costs.