2015 P L C 26

2015 P L C 26

[Sindh High Court]

Before Shahnawaz Tariq, J

MUHAMMAD AYAZ KHAN

Versus

AUTHORITY UNDER THE PAYMENT OF WAGES ACT AND COMMISSIONER, WORKMAN COMPENSATION EAST DIVISION through Presiding Officer and another

Constitutional Petition No.S-704 of 2011, decided on 22nd August, 2014.

(a) Workmen's Compensation Act (VIII of 1923)---

----S. 23---Payment of Wages Act (IV of 1936), S.18---Civil Procedure Code (V of 1908), Ss.12(2) & 114---Criminal Procedure Code (V of 1898), S.195---Constitution of Pakistan, Art.199---Constitutional petition---Recovery of illegally retained dues of the petitioner---Application for setting aside the order of Workmen's Compensation Commissioner on the plea of misrepresentation and fraud---Applicability of C.P.C.---Scope---Establishment instead of filing appeal under S.17 of the Payment of Wages Act, 1936 invoked the constitutional jurisdiction of High Court, which petition was dismissed on the point of jurisdiction, thereafter the Establishment preferred petition for leave to appeal to Supreme Court, which also met the same fate---Contention of the petitioner was that Workmen's Compensation Commissioner had no power to set aside its order under S.12(2) C.P.C.---Validity---Under S.18 of the Payment of Wages Act, 1936, S.23 of the Workmen's Compensation Act, 1923 and S.195 of Cr.P.C., Commissioner Workmen's Compensation had very limited and restricted legal powers only to the extent of taking of evidence on oath, enforcing attendance of witnesses, compelling for production of documents and initiating contempt proceedings--- Commissioner Workmen's Compensation had no legal authority to revisit, review or recall its own order in any manner---Commissioner Workmen's Compensation and Payment of Wages Authority was not at par with the civil court and entire C.P.C. had not been conferred upon the Commissioner as such the Commissioner had no jurisdiction to review its own earlier order even if the order was obtained by misrepresentation and playing fraud upon the Commissioner, therefore, there was no scope for the Authority to invoke its jurisdiction under S.12(2), C.P.C. and its powers were strictly confined within the ambit of S.18 of the Payment of Wages Act, 1938 and S.23 of the Workmen's Compensation Act, 1923---Impugned order was set aside and Constitutional petition was allowed in circumstances.

            Messrs Ahmed Food Industries v. Sindh Labour Appellate Tribunal, 1974 PLC 225 rel.

            PLD 1973 Lah. 652; 2003 SCMR 549; 1992 SCMR 1908; 2002 MLD 1919 and 1999 SCMR 1516 ref.

(b) Civil Procedure Code (V of 1908)---

----S. 114---Review---Scope---Power of review was not a matter of mere procedure but was a question of jurisdiction and the same could not be exercised unless expressly conferred on a Tribunal by the statute under which it was exercising the power.

            Factory Manager, Burewala Textile Mills v. Asghar Ali and another 2005 SCMR 1144 ref.

            Petitioner in person.

            Khalid Imran for Respondent No.2.

            Date of hearing: 7th August, 2014.

ORDER

            SHAHNAWAZ TARIQ, J.--- Through the captioned Constitutional petition, the petitioner while invoking the extra ordinary Constitutional jurisdiction of this Court has impugned order dated 27-4-2011 passed by the Commissioner/Workmen Compensation and Authority under the Payment of Wages Act, East Division, Karachi.

2.         Precisely, facts as narrated in instant petition are that the petitioner had served the respondent No.2, Messrs Nakshabandi Industries Ltd. in capacity of electrician in Electric Department from 18-9-1989 to 13-7-2007 and was terminated from his service on 27-7-2007 without paying his legal dues, therefore, he filed application bearing No.71/2008 before the Authority under Payment of Wages Act, East Karachi Division, claiming his outstanding legal dues. It is further averred that the petitioner being a poor retired workman is suffering from hardships due to none payment of the legal dues by respondent No.2. The respondent No.2 filed written statement and issues were framed by the learned Authority and the matter was fixed for evidence. Due to absence of the respondent No.2 from the proceedings, the side of the respondent No.2 for the purpose of cross-examination to the petitioner was closed on 29-9-2009, and the matter was fixed for evidence of the respondent No.2, but respondent No.2 neither led evidence nor advanced arguments, therefore, after hearing arguments of the petitioner, the respondent No.1 vide order dated 31-10-2009 allowed the application filed by the petitioner and directed the respondent No.2 to make the payment of Rs.4,44,067 being outstanding dues of the petitioner. In addition to it, the respondent No.2 was also held liable to pay equal amount as penalty to the petitioner. The respondent No.2 instead of filing appeal under section 17 of the Payment of Wages Act, 1936, as alternate and adequate legal remedy, has invoked the Constitutional jurisdiction of this Court under Article 199 of the Constitution of Pakistan by filing C.P No.S-955 of 2009 against the impugned order passed by the learned Authority. After hearing the parties, C.P No.S-955 of 2009 was dismissed by this Court vide order dated 26-5-2010. The respondent No.2 challenged order dated 26-5-2010 before the Hon'ble Supreme Court of Pakistan by filing CPLA No.397-K of 2010 and after hearing the parties, the Hon'ble Supreme Court dismissed the paid CPLA vide order dated 11-11-2010. Thereafter the respondent No.2 filed application under section 12(2), C.P.C. read with section 151, C.P.C. before the learned Authority to recall the impugned order dated 31-10-2009. After hearing the parties, the learned Authority recalled its own order dated 31-10-2009 and restored the case to its position as it was on 29-9-2010 for cross-examination of the petitioner.

3.         The petitioner has contended that he was a permanent worker in the establishment of the respondent No.2 and served for a long period but his services were terminated on 27-7-2007 by the respondent No.2 and illegally retained his legal dues without any justification. He filed application for recovery of his outstanding legal dues but the respondent No.2 prolonged the proceedings and due to his delaying tactics, the respondent No.1 allowed his application and one time penalty was imposed upon the respondent No.2 which is provided in the law. The respondent No.2 instead of filing appeal before the Labour Court, has deliberately filed CP before this Court which was dismissed. The respondent No.2 filed CPLA before the Hon'ble Supreme Court against the order of this Court and the said CPLA was also dismissed and order of the learned Authority was maintained, therefore, the learned Authority cannot set aside its own order under section 12(2), C.P.C. and same is liable to be set aside.

4.         Mr. Khalid Imran, learned counsel for the petitioner has contended that present Constitutional petition is not maintainable as the impugned order dated 27-4-2011 is appealable before the Labour Court under the Payment of Wages Act, 1936, as such the petitioner has not availed the alternate remedy as prescribed by the law. He further submitted that it is misconceived notion on the part of the petitioner that the matter has been finally adjudicated upon by the Hon'ble Supreme Court. The subject matters before the High Court in C.P No.S-955 of 2009 and CPLA No.397-K of 2010 were totally different and both the Superior Courts adjudicate only the issue of maintainability of Constitutional petition without exhausting the remedy of appeal as provided under the law as such judgments passed by both the Superior Courts having no nexus with the order passed by the learned Authority on 27-4-2011, whereby the application under section 12(2), C.P.C. filed by the respondent No.1 was allowed and earlier order obtained by the petitioner was recalled. Learned counsel also submitted that the petitioner being a worker in the establishment of the respondent No.2 has approached the respondent No.1 for recovery of his dues, but the respondent No.1 has passed impugned order dated 31-9-2009 in hot haste when the matter was fixed for the cross-examination of the petitioner by the respondent No.2 and one time penalty was imposed which was obtained by misrepresentation. He further contended that the respondent No.1 has recalled its impugned order 31-9-2009 and restored the case to its original position as such no prejudice has been caused to the petitioner. He relied upon PLD 1973 Lahore 652, 2003 SCMR 549, 1992 SCMR 1908, 2002 MLD 1919 and 1999 SCMR 1516.

5.         I have heard the petitioner in person and Mr. Khalid Imran, learned counsel for the respondent No.2, at length and have scanned the available record and case-law cited by them meticulously. It has reflected that petitioner being the employee of the respondent No.2, Nakshbandi Industries Ltd. has filed an application for recovery of his outstanding legal dues before the Commissioner Workmen Compensation and Authority of Payment of Wages Act, East Division, Karachi, which was allowed vide order dated 31-9-2009 in favour of the petitioner.

6.         It is worthwhile to mention here that the respondent No.2 instead of filing appeal before the Labour Court as required under section 17 of the Payment of Wages Act, 1936, has invoked the Constitutional jurisdiction of this Court under Article 199 of the Constitution of Pakistan vide C.P. No.S-955 of 2009 against the impugned order dated 31-9-2009, which was dismissed by this Court vide order dated 26-5-2010. The operative part of order dated 26-5-2010 is reproduced as under:---

            "The respondent No.1 had served in the establishment of the petitioner from 18-9-1989 to 20-7-2007 in the capacity of Electrician in Electric Department and was terminated suddenly on 27-7-2007 from service without paying his legal dues, therefore, he had lodged the application before the Authority for the claim of his legal dues and it appears that before the Authority also the establishment Nakshbandi Industries Ltd. were adopting delaying tactics as the respondent No.2 is poor retired man of Labour class and he is suffering from the hardships due to non-payment of his claim of legal dues from Nakshbandi Industries Ltd. and on their behalf the proceedings are being protracted, so such delay in payment of wages of a poor person cannot be allowed. The petitioner has not availed the opportunity of appeal and deliberately omitted the same, as such I hold that the present petition is not maintainable and is hereby dismissed, along with the pending application."

7.         Amazingly, despite clear findings of this Court, regarding non filing of appeal by the respondent No.2 before the proper forum, the respondent No.2 preferred CPLA No.397-K of 2010 before the Hon'ble Supreme Court for setting aside the impugned orders dated 31-9-2009 passed by the Commissioner for Workmen Compensation and 26-5-2010, by the High Court. The Hon'ble Supreme Court after hearing both the parties dismissed said CPLA vide judgment dated 11-11-2010. The concluding portion of judgment dated 11-11-2010 is reproduced as under:---

            "After careful perusal of the case record, we find no substance in the substance in the submission of the learned counsel. Indeed, availability of alternate remedy by way of appeal under some special statute is not an absolute bar for invoking jurisdiction of the High Court under Article 199 of the Constitution, but in the instance, we find no exceptional circumstances or valid reason, which may justify the act of the petitioners for not availing such legal course under the special statute, which was an adequate alternate remedy for this purpose. This being the position, the impugned judgment of the High Court dated 26-5-2010, calls for no interference and makes this petition liable to be dismissed. Order accordingly. Leave refused."

8.         Before adjudicating the prime question of present controversy that whether the Commissioner has any legal authority to review and recall its own order, it would be appropriate to have a glance upon the relevant provisions of law which have conferred such powers upon the Commissioner. It is pertinent to mention that the powers of the Commissioner are provided in section 23 of the Workmen's Compensation Act, 1923, which are reproduced as under:---

"23.      Powers and Procedure of Commissioners.--- The Commissioner shall have all the powers of a Civil Court under the Code of Civil Procedure, 1908 (V of 1908), for the purpose of taking evidence on oath (which such Commissioner is hereby empowered to impose) and of enforcing the attendance of witnesses and compelling the production of documents and material objects and the Commissioner shall be deemed to be a Civil Court for all the purposes of section 195 and for Chapter XXXV of the Code of Criminal Procedure 1898 (V of 1898)."

9.         Section 18 of the Payment of Wages Act, 1936, also deals with the powers of the Authority which is reproduced as under:---

"18.      Powers of authorities appointed under section 15.--- Every authority appointed under subsection (1) of section 15 shall have all the powers of a Civil Courts under the Code of Civil Procedure, 1908, (V of 1908), for the purpose of taking evidence and enforcing the attendance of witnesses and compelling the production of documents, and every such authority shall be deemed to be a Civil Court for all the purposes of section 195 and of Chapter XXXV of the Code of Criminal Procedure, 1898 (V of 1898)."

10.       Likewise, section 195, Cr.P.C. also deals with prosecution for contempt of lawful authority of public servants, prosecution for certain offences against public justice and prosecution for certain offences relating of documents given in evidence.

11.       Perusal of the provisions of section 18 of the Payment of Wages Act, 1936, section 23 of the Workmen Compensation Act, 1923, and section 195 of Cr.P.C. as referred supra, clearly demonstrates that the Commissioner Workmen Compensation has been conferred with very limited and restricted legal powers only to the extent of taking of evidence on oath, enforcing attendance of witnesses, compelling for production of documents and initiating contempt proceedings. It is crystal clear that under the above referred sections the Commissioner Workmen's Compensation has no legal authority to revisit, review or recall its own order in any manner. Even in Compensation Act, 1923, and the Payment of Wages Act, 1936, the powers of review have not been conferred upon the Commissioner. The learned counsel for the respondent No.2 has vehemently emphasized that as the impugned order dated 31-9-2009 was obtained by the petitioner by misrepresentation, therefore, the learned Commissioner has rightly invoked the jurisdiction under section 12(2) C.P.C. and passed order dated 27-4-2011. During the course of arguments, the learned counsel failed to satisfy the Court that when respondent No.2 instead of filing proper appeal as provided under section 17 of Payment of Wages Act, 1936, had challenged the impugned order directly before this Court and the Hon'ble Supreme Court and failed to obtain any positive order in his favour, therefore, the respondent No.2 cannot approach the Commissioner by preferring application under section 12(2), C.P.C. for revisiting its earlier order by alleging the plea of misrepresentation or playing of fraud. In case of Messrs Ahmed Food Industries v. Sindh Labour Appellate Tribunal, 1974 PLC 225, it was explicitly held that the power of review is not a matter of mere procedure but is a question of jurisdiction and the same cannot be exercised unless expressly conferred on the Tribunal by the statute under which it is exercising powers.

I2.        It is well-settled law that Commissioner Workmen's Compensation and Payment of Wages Authority is not at par with the Civil Court and entire C.P.C. has not been conferred upon the Commissioner as such the Commissioner has no jurisdiction to review its own earlier order, even if the order is obtained by misrepresentation and playing fraud upon the Commissioner, therefore, there is no scope for the Authority to invoke its jurisdiction under section 12(2), C.P.C. and its powers are strictly confined within the ambit of the provisions of section 18 of the Payment of Wages Act, 1936, and section 23 of the Workmen's Compensation Act, 1923. Consequently, I am of the considered view that the Commissioner is not competent to exercise any other power of C.P.C. beyond the provisions referred supra. Reliance is placed upon the case of Factory Manager, Burewala Textile Mills v. Asghar Ali and another, 2005 SCMR 1144.

13.       As the sequel of the discussion made supra, the impugned order dated 27-4-2011 passed by the Commissioner for Workmen's Compensation Authority under the Payment of Wages Act, East Division, Karachi being illegal, ultra virus and without any legal authority is hereby set aside. The instant petition stands allowed as prayed.

SA/M-148/Sindh                                                                                  Petition allowed.