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Petitioner: MECHANICAL ENGINEER SIND VS Respondent: RASOOL BAKHSH
1986 C L C 958
1986 C L C 958
[Karachi]
Before Saeeduzzaman Siddiqui, J
MECHANICAL ENGINEER,SIND and others--Petitioners
versus
RASOOL BAKHSH and others--Respondents
Constitutional Petitions Nos. 75 to 77, 85 to 88 and 182 to1984; 6, 9, 22 and 30 of 1985, decided on 14th November, 1985.
(a) provisional Constitution Order (I of 1981)--
---Art. 9--Payment of Wages Act (IV of 1936), S. 15--West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 (VI of 1968), S.2(bb)--Constitutional jurisdiction--Finding of Authority under Payment of Wages Act to the effect that number of employees working with petitioners were over 300, neither shown to be result of misreading of evidence or non-consideration of evidence on record nor, perverse--Interference with such finding, held, not warranted in Constitutional jurisdiction.
(b) Payment of Wages Act (IV of 1936)--
---S. 15(1) & (2) as amended by Ordinance IX of 1977--Gratuity, claim for recovery of--Apart from right of a workman to apply under S.15(1) & (2) of Act for recovery of deducted wages or wages for which payment was delayed, he has a separate and independent right to make application for recovery of Provident Fund or gratuity payable to him under law in case of their non-payment.
(c) Payment of Wages Act (IV of 1936)--
---S. 15(1) & (2) as amended by Labour Laws (Amendment) Ordinance (IX of 1977)--Payment of gratuity--Retrospective operation of provisions of S.15 (as amended)--Provisions of S. 15 of Payment of Wages Act, held, were in nature of procedural law which regulated making of application by a workman before Authority under Payment of Wages Act, for recovery of wages and other dues--Procedure prescribed for recovery of dues mentioned in amendments introduced in subsections (1) and (2) of S. 15 of Act, was applicable to all dues of gratuity and Provident Fund irrespective of their period--Nothing present in amendment or Amending Ordinance to show that legislature intended that an application filed for recovery of gratuity or Provident Fund in pursuance of aforesaid amendment in law would not be applicable to dues which were payable to workman prior to period of amendment--Even if amendment brought about on 9-5-1977 in S. 15 of Act was treated. as prospective in its operation same could not effect applications before Authority under Payment of Wages Act as said amendment was in a procedural law and entitled aggrieved workers to make an application after 9-5-1977 in respect of dues which were payable to him under law prior to date of amendment.
(d) Payment of Wages Act (IV of 1936)-- ---S. 15(1) & (2)--Gratuity, payment of--Service of worker without stigma or misconduct--Gratuity payable.
(e) Payment of Wages Act (IV of 1936)--
---S. 15--West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), Ss.2(bb), 2(f), (v) & 12(6)- Gratuity--Work-charge employees--Right to receive gratuity upon termination or resignation from service to a workman is granted under section 12(6) of Ordinance VI of 1968--No provision available in Ordinance which disentitled workmen of such benefits on ground that they were work-charge employees--Petitioner) employer fully covered with meaning of "Construction Company" and "Industrial establishment" as defined in seen 2(bb) and 2(f)(v) of the Ordinance and, therefore, provisions of Ordinance were fully 'applicable to them--Definition of "workman" as given in section 2(i) read with Schedule appended to section 2(g), classifying workman, held, made it absolutely clear that in so far application of provisions of Ordinance to workman was concerned they equally applied to permanent, probationers, Badlis, temporary and apprentices.
(f) Provisional Constitution Order (1 of 1981)--
---Art. 9--Constitutional petition--Disposal on merits--Contention raised in petition relating to matter of general importance--Contention taken up for disposal on merits.
(g) West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance 1968 (VI of 1968)--
---S. (bb), (f)(v)--Functions performed by petitioners fully falling within meaning of a "Construction Company" as defined in section 2(bb) of Ordinance as well as an "Industrial Establishment" as defined in section 2(f)(v) of Ordinance--Petitioners, held, were covered under both said definitions and as such provisions-R-Ordinance applicable to them.
(h) Payment of Wages Act (IV of 1936)--
---S. 15(2)--Gratuity--Previous service--Appointment letter of workers showing that appointment offered to them was not in continuation of previous service but for all practical purposes it was a new and fresh appointment on regular basis on fresh terms and conditions--Finding of Authority under Payment of Wages Act that previous employment of respondent came to an end, held, justified and workers were entitled to maintain their claim for Brat y in respect of their past employment.
Dilkusha Enterprises Ltd. v. Abdul Rashid and others 1985 SCMR 1882; Secretary, Labour Department v. Colony Sarhad Textile Mills and others P L D 1978 S C 290; A1-Hasan Silk Mills Ltd. v. The Presiding Officer, Sind Labour Court and another P L D 1981 S C 39; Messrs Valika Textile Mills Ltd. v. Chairman, 1st Sind Labour Court, Karachi and 2 others P L D 1978 Kar. 952 and Pakistan v. Devachand Muljimal and others P L D 1968 Kar. 107 ref.
(i) Payment of Wages Act (IV of 1936)--
---S. 15(2)--Application for gratuity, filing of, by authorised agent- Application for gratuity filed before Authority by workers through their authorised agent/office-bearer of registered trade union--No defect existing in said authorisation nor any incompetency appearing on part of office-bearer of trade union to move said application--Application, held, filed to accordance with law.
(j) Provisional Constitution Order (1 of 1981)-- ---Art. 9--Constitutional jurisdiction--Alternate remedy--Where a case is decided by a tribunal acting under a special statute and that statute also provides an alternate remedy by way of appeal against decision of tribunal, then, petitioner, geld, must exhaust alternate remedy provided under statute before invoking. extraordinary jurisdiction of High Court by way of constitutional petition--When constitutional jurisdiction is invoked without exhausting alternate remedy provided under any special law, High Court would not entertain such a petition-.-In exceptional cases, however, High Court, notwithstanding existence of an alternate remedy to a petitioner under any special law, might entertain a petition on constitutional side if it was satisfied that existence of alternate remedy- under special statutes was neither speedy nor efficacious or order impugned suffered from inherent lack of jurisdiction, or excess of jurisdiction of authority /tribunal passing order--Such defects, must appear on face of impugned order and petitioner must make out a strong case.
The Tariq Transport Company, Lahore v. The Sargodha-Bhera Bus Service, Sargodha and others P L D 1958 S C (Pale) 437; Messrs
S.A. Haroon and others v. The Collector of Customs and others P L D 1959 S C (Pak) 177 and Messrs Ghafoor Textile Mills Ltd. v. Fazal imam and another P L D 1981 Kar. 534 rel.
(k) Provisional Constitution Order (1 of 1981)--
__S. 9--Payment of Wages Act (IV of 1936), S.15(2)--Constitutional petition--Alternate remedy-- Authdrity under Payment of Wages Act having jurisdiction to entertain and decide application filed by workers in respect of recovery of their dues relating to gratuity--Alternate remedy, existing by way of appeal against order of Authority under relevant statute, which was more speedy and efficacious, held, created a bar against filing of constitutional petition in High Court.
(1) Provisional Constitution Order (1 of 1981)--
---Art. 9--Payment of Wages Act (IV of 1981), S.15(2)--Constitutional petition--Alternate remedy--Petitioner failing to avail alternate remedy by way of appeal before Labour Court provided under relevant statute and it was not ,shown that condition of depositing a certain amount, ordered by Authority before availing that remedy, made that remedy illusory and inadequate--Constitutional petition, held, not maintainable.
Sharifuddin, Advocate and Zawar Hussain Jafferi, Assistant
Advocate-General for Petitioners.
Shabir Ahmed Awan and Hasan Hameedi for Respondents.
Dates of hearing: 23rd, 24th October, 4th and 5th November, 1985 JUDGMENT
By this judgment I proposed to dispose of Petitions Nos. 75/84, 76/84, 77/84, 85/84, 86184, 87/84, 88184 182/84, 1/85, 6/85, 9/85, 22/85 and 30185. Petition Nos. 75/84 to 77/84 and 85/84 to 88/84 are filed by Mechanical Engineer, Upper Sind Mechanical Division, Sukkur while Petitions 182/84 is filed by Executive Engineer, Mechanical Division, Sukkur, No. 1/85 is filed by Executive Engineer, Fresh Ground Water S.R.B. Division, SCARP, Ratodero (Larkana, Petition No. 6/85 is filed by Executive Engineer, Ghotki Division, Ghotki, Petition No. 9/85 is filed by Executive Engineer, Stores Division, Sukkur, Petition No. 22/85 is filed by Executive Engineer, Tubewell Operation Division SCARP, Khairpur and Petition No. 30/85 is filed by Executive Engineer, Workshop Division, SCARP, Khairpur. For the sake of convenience I have divided the above petitions in two groups. The first group of petitions comprises of Petition, Nos.75/84 to 77/84 and 85/84 to 88/84 while in the other group I have placed Petitions Nos. 182/84, 1/85, 6/85, 9/85, 22/85 and 30/85. I will hereinafter refer these petitions as the first group of petitions and the second group of petitions respectively in this judgment. In all these petitions the petitioners have challenged the orders of the Authority under the Payment of Wages Act passed on various dates on the petitions of respondents allowing their claim of gratuity against the petitioners. (For the sake of convenience and brevity I will hereinafter refer in this judgment the Authority under the Payment of Wages Act as "the Authority", the Payment of Wages Act as "the Act" and the West Pakistan Standing Orders Ordinance, 1968 as "the Ordinance", respectively). In the first group of petitions the claim before the Authority was preferred by the respondents through individual applications while in the second group of petitions several workers joined together preferred joint petition to the Authority for payment of gratuity due to them. Out of the second group of petitions the claim in Petitions Nos. 182/84, 9/85, 22/85 and 30/85 before the Authority was preferred by the respondents jointly through a petition signed by them while the claim in petition No. 1/85 and 6/85 was lodged by the respondents jointly before the Authority through the office-bearer of the registered trade union. It may, however, be mentioned here that in all the above petitions the applications of respondents before the Authority specified separately the amount of gratuity claimed by each worker. It may also be mentioned here that from the order of the Authority impugned in these petitions and from the contentions raised by the learned counsel before me in these petitions it is quite clear that the claims of respondents to the gratuity on merits is not disputed by the petitioners and that their entitlement to the gratuity is disputed purely on legal grounds. It is an admitted position in all these petitions that the respondents were employed by the petitioners between the period from 1968 to 1981 on different dates in work-charge establishments on work-charge basis. It is also admitted position that as and from 1-7-1982 the respondents in these petitions were offered regular appointment on regular basis by the petitioners. The respondents in Petitions Nos. 77/84, 86/84 and 88/84 did not accept the offer for regular appointment and resigned from their respective jobs with effect from 1-7-1982 while respondents in Petitions Nos. 75/84, 76/84, 85/84 and 87/84 did not report- for duty after they were offered regular appointment with effect from 1-7-1982 and, therefore, their services were terminated by the petitioners. In Petitions Nos. 182/84, 1/85, 6/85, 9/85 and 22/85 and 30/85 the respondents accepted appointments on regular basis with effect from 1-7-1982 and they were in the service of the petitioners on the date they preferred their claim before the Auhority for payment of gratuity. The claim of gratuity in all the above petitions preferred by the respondents before the Authority related upto 1st July, 1982 the date on which they were offered a , regular appointment by the petitioners. From the copies of the pleadings and the order of Authority passed thereon it is quite clear that in the first 'group' of petitions the claim of respondents was opposed by the petitioners only on two grounds, namely,
(1) that the persons employed by the petitioners were less than 50; and
(ii) that the services of respondents at the time of their resignation or termination of services was governed under the statutory Rules and, therefore, by virtue of section 1(4) of the Ordinance the provisions of the Ordinance were not applicable. Both these grounds urged by the petitioners before the Authority were repelled and on the first objection the Authority gave a categorical finding on the basis of admission made by the witnesses of the petitioners in his evidence that the number of persons employed by the petitioners were over 300. On the second objection raised before the Authority it was found that no statutory Rules were in existence which governed the employment of work-charge employees and relying on a decision given by the Labour Appellate Tribunal the Authority reached the conclusion that the respondents were entitled to the payment of gratuity under the provisions of the Ordinance. In the second group of petitions the claim of respondents before the Authority was opposed by the petitioners on the grounds which were as follows:-
(1) That the application for payment of gratuity filed by the respondent was barred by Limitation.
(2) That the respondents being civil servants and governed under the statutory rules were debarred from maintaining an application under section 15 of the Payment of Wages Act.
(3) That the Authority has no jurisdiction to entertain the applications of the respondents; and
(4) That the respondents having continued in the employment of the petitioners could not lay claim to the gratuity which was payable only either upon their resignation to termination of their services by the petitioners.
It is clear from reading of the grounds mentioned above that the two groups of petitions were opposed before the Authority on different grounds. However, when I heard these petitions together the learned counsel for the petitioners raised following contentions in support of their petitions:-
(1) That the application of the respondents before the Authority was incompetent in law and was not maintainable as the petitioners did not fall within the meaning of "commercial establishment" or an "industrial establishment" as defined in the Ordinance or a "factory" as defined in the Factories Act.
(2) That the number of the employees working with the petitioners being less than 50 the application of the provisions of Standing Orders Ordinance was excluded by virtue of the first proviso to clause (c) of section 1 of the Ordinance.
(3) That the wages as defined in section 2(vi) of the Act do not include the gratuity payable on discharge and, therefore, the application under section 15 of the Payment of Wages Act for recovery of the gratuity filed by the respondents was not maintainable.
(4) That in any case gratuity being payable on the discharge of a worker from service and not otherwise the respondents -who continued in the service of the petitioners could not legally maintain an application for payment of gratuity before the Authority.
(5) That under the law no gratuity was payable to a person who was dismissed from the service on the ground of misconduct.
(6) That the claim under section 15 of the Payment of Wages Act could be maintained only in respect of deduction made from the wages of an employee or in respect of payment of wage which has been delayed by the employer. The claim of gratuity by the respondents before the Authority did not fall in any of the two categories and, therefore, the application for recovery of gratuity was not maintainable on that account as well.
(7) That the amendments introduced in subsection (1) anti subsection (2) of section 15 of Payment of Wages Act on 9-5-1977 making it permissible for an employee to make an application f6r recovery of unpaid gratuity was not retrospective in operation and, therefore, the grant of the applications of the respondents allowing payment of gratuity before the period 9-5-1977 was without jurisdiction.
(8) That the respondents being work-charge employees and working in work-charge establishment which was of temporary nature were not entitled to payment of gratuity. That the application of respondents before the Authority in some of the cases having been filed through authorized agent was not competent in law as the alleged authority given by the respondents was not in accordance with the law.
(10) That in so far the claim of those respondents with regard to payment of gratuity who at the time of making of applications before the Authurty were in the service of the petitioners, the dispute was in substance an industrial dispute of which cognizance can be taken only by a Labour Court under the I.R.O. and not the Authority under the Act.
In reply to the above submissions of the learned counsel for the petitioners the learned counsel for the respondents jointly urged the following contentions:-
(1) That the petitions are not maintainable in law as the petitioners before the filing of Constitutional petitions failed to avail of the statutory remedy of appeal provided under section 17 of the Ac against the order of the Authority.
(2) That the grounds urged by the petitioners at the time of arguments were neither raised before the Authority nor specifically urged in the petition and as such they cannot be considered by this Court.
(3) That 'most of the grounds urged by the petitioners at the hearing of the petitions involved investigation into the factual aspect of he case which cannot be done for the first time in exercise of Writ jurisdiction by this Court.
(4) That the plea of the petitioners that the number of employees working with them was less then 50 was repelled by the Authority on the basis of the evidence produced in the Court and this being a finding of fact cannot be interfered with in the Writ jurisdiction by this Court unless it is shown that it is perverse or is based on no evidence.
(5) That the primary functions of the petitioners were specifically mentioned in every petition filed by the respondents before the Authority under the Act and these assertions of the respondents were not disputed by the petitioners. On the basis of the functions performed by the petitioners as stated in the petition before the Authority the petitioners .will clearly fall within the meaning of a "construction company" as defined in section 2(bb) and within the meaning of "industrial establishment" as defined in section 2(f) of the Ordinance.
(6) That on account of non-payment of gratuity the respondents had an independent right to file an application under section 15(1) of the Act.
(7) That the provisions of section 15 of Payment of Wages Act being procedural in nature the amendment made in the year 1977 was applicable to an application filed by the respondents in the year 1983 for recovery of gratuity which was payable to them even prior to the period of 1977 and as such the proceedings initiated by the respondents before the Authority were fully competent.
(8) That the benefit arising to workman under the Ordinance were available equally to a permanent as well as temporary employee and, therefore, the fact that the respondents were work-charge employees could not make any difference in so far as the application of the provisions of the Ordinance to them was concerned.
(9) That the petitioners having refused to recognize and give benefit to the respondents for the period of service rendered by them prior to the date they were given appointment on regular cadre their services prior to the date of the regular appointment stood terminated for all practical purposes and, therefore, they were entitled under the law to the benefit of the gratuity which accrued to them for their past services rendered on work-charge basis. _
Before considering the above contentions raised by the learned counsel for the parties I may mention here that the petitioners both before the Authority as well as in these petitions had specifically pleaded and ,raised a contention that the respondents were not entitled to invoke the provisions of the Ordinance as they were civil servants within the meaning of Civil Servants Act and their services are governed under the statutory rules framed by the Government but this contention was given up by the learged counsel for the petitioners at the hearing of these petitions. After hearing learned counsel for the parties at length I find that the contentions of the learned counsel for the respondents are not without force. I have already referred to the specific ground raised by the petitioners before the Authority while resisting the applications of respondents. It will be seen that in the first group of petitions the applications of respondents before the Authority were opposed on two grounds, namely, that the respondents were civil servants and statutory rules are applicable to them which regulatpd/governed their services and secondly that the number of employees working with the petitioners were less than 50 and, therefore, the provisions of Standing Orders Ordinance were not applicable to them. In so far the first ground urged before the Authority is concerned the petitioners have given up the same during the course of arguments of these petitions and in so far the second ground is concerned the Authority in its orders impugned in these petitions specifically held that the number of employees working with the petitioner was over 300 and this finding is based on an admission made in the cross-examination by the witness of the petitioners produced before the Authority. The learned counsel was unable to point out any material in the first group of petitions to show that the findings arrived at by the Authority with regard to the number of workers employed with them is contrary to evidence on record or is perverse. In fact not a single ground has been raised in the first group of petitions to controvert the finding of the Authority. It is not even. alleged in the petitions that the findings of the Authority that the number of employees working with the petitioners are over 300 are the result of misreading of evidence or non-consideration of evidence on record. In these circumstances none of the two grounds urged in the first set of petitions before the Authority could be held to have been established which could call for interference in the writ petitions. In so far the 10 grounds raised by the learned counsel for the petitioners in support of the petitions are concerned, out of them only ground No.2 was raised before the Authority which was repelled and I also do not find any reason to differ from the conclusion of the Authority in this regard. None of the other contentions raised in these petitions were urged before the Authority. However, contention No.l has been raised specifically in the petitions which are in the first group. But the other contentions, namely, 3 to 10 have not been specifically urged in any of these petitions. In fact contentions Nos.4, 9 and 10 did not arise at all in the first group pf petitions. In so far the first contention raised by the learned counsel for the petitioners is concerned I may mention here that in paragraph 4 of the applications filed by the respondents before the Authority in the first group of petitions the respondents had pleaded the primary functions of the petitioners as follows:-
"4. That the primarily and essentially the basic functions of the opponent division are to carry out the mechanical engineering works, which include the maintenance, repair, overhauling of heavy and light duty transport-vehicles Dragline machines used for excavation of canals, dredgers for desilting the canals, pumping sets for supply of water in canals for irrigation purposes. Equipment like tailors, heavy duty vehicles etc. are given on hire-basis to the out-agencies and rental charges including overhead departmental charges are recovered by the opponent division. More than 50 workers are employed in the opponent division."
This allegation of the respondents in their application before the Authority was admitted by the…
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