ORDER SHEET

IN THE HIGH COURT OF SINDH AT KARACHI

 

C.P. No.D-3993 of 2011

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ORDER WITH SIGNATURE OF JUDGE

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†† ††††††††††††††Present: Mr.Justice Muhammad Ali Mazhar

†††††††††††††††††††††††† ††††††Mr.Justice Abdul Rasool Memon†††

 

 

M/s.Akhter Textile ††† vs.††††††† Sindh Labour Appellate

Industries Ltd.††††††††††††††††††††††††††††††† Tribunal & others

 

1.For Katcha Peshi.

2.For hearing of Misc. No.18617/2011

 

 

Date of hearing: ††13.02.2014.

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Mr.Muhammad Humayun, Advocate for the Petitioner.

 

Mr.Ashraf Hussain Rizvi, Advocate for Respondents No.4.

 

Mr.Abdul Jalil Zubedi, learned A.A.G.

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Muhammad Ali Mazhar,J. The petitioner has challenged the order passed by the respondent No.1 on 30.11.2011 in Revision† Application No.WCK-12 of 2011.

 

2. The brief facts of the case are that the respondent No.4 filed an application under Section 15 of the Payment of Wages Act, 1934 before the Authority appointed under the Payment of Wages Act for the recovery of some withheld wages. The Authority vide order dated 25.1.2010 allowed the claim in the sum of Rs.10,99,268/-. The order was assailed in the Ist Sindh Labour Court, Karachi in Appeal No.10 of 2010, which was disposed of on 24.2.2011 and the case was remanded to the Authority back to decide the application afresh after framing issues and also provide opportunity to the parties to adduce evidence. This order was assailed before the learned Tribunal through the revision application. The learned Tribunal set aside the order of the Labour Court and restored the order passed by the Authority.

 

3.†††† The learned counsel for the petitioner argued that the entire impugned order of the learned Tribunal is solely based on Order 8 Rule 10 CPC. The authority below framed one of the points for determination i.e whether the signatory of written statement was competent to sign and another point was whether the matter is to be disposed of in terms of Order 8 Rule 10 CPC because written statement was not signed by a competent person. Learned counsel further argued that† Order 8 Rule 10 CPC has nothing to do with the signature of the competent person but it has altogether different implications and repercussions.

 

4.†††† It was further contended that the Tribunal relied upon the findings given by the Authority that the written statement was inadmissible, hence there could be no defence on behalf of the respondent because the signatory of the written statement had no authority on behalf of the company, so in absence of any such evidence/written statement, the claim of the applicant had gone unrebutted. It was further observed in the impugned order that there was no need to discuss the other issues when there was no defence. The learned counsel for the petitioner argued that the written statement was filed by the competent person and thereafter, affidavit in evidence was also filed by the same person who appeared in the witness box with an opportunity of cross-examination to the counsel of respondent No.4, which fact has been admitted by the learned counsel for the respondent No.4. In addition, the learned counsel for the petitioner further argued that the Authority cannot exercise the powers of civil court hence intricacies of CPC could not be attracted. He further argued that the Labour Appellate Tribunal has been† constituted under the provisions of Industrial Relations Act,† hence, it has no jurisdiction to entertain revision application for impugning the order of Labour Court passed as an appellate court under the provisions of Payment of Wages Act. In support of his contention, he relied upon the following case law.

 

2004 PLC 170 (Lawrencepur Woolen and Textile Mills Ltd. v. Government of the Punjab & other). In this case, the honíble Supreme Court held that the Authority appointed under the Payment of Wages Act does not have any inherent powers which are available to a Court of justice. It cannot render binding judgments on complicated questions of law. The process of investigating or adjudicating the claims of certain employees for giving a direction for payment of wages is not a trial of suit at law. Authority is empowered to exercise certain powers and to take judicial proceedings as are vested in a civil court under the C.P.C but only for a very limited purpose.

 

5. On the contrary, the learned counsel for the respondent No.4 argued that though in the memo of revision various grounds were urged by the respondent No.4 but the learned Appellate Tribunal has confined its order to the extent of Order 8 Rule 10 CPC and the admissibility of written statement in view of nonappearance of a person who signed and verified the written statement. He shown us the memo of revision at Page No.155 of the court file in which various grounds were agitated before the learned Tribunal including that the memo of appeal filed in the Labour Court was not accompanied by a certified true copy of the impugned order of the Authority and the appeal could have been filed only either by the occupier/owner or the Manager of the factory duly notified under the Factories Act, 1934. He further argued that even actual amount directed by the Authority was not deposited at the time of preferring the appeal. However, it was clearly, stated in the memo of revision that two affidavits in evidence were filed and cross examination was conducted by both the learned counsel before the Authority. He also questioned the jurisdiction of Labour Court to hear the appeal due to various deficiencies in the memo of appeal and non-observance of the procedure but all these grounds were ignored and not adverted by the learned Appellate Tribunal while disposing of the revision application. So far as the question raised by the learned counsel for the petitioner that revision does not lie against the order of Labour Court passed as an appellate court under the Payment of Wages Act, the learned counsel for the respondent No.4 referred to the following case law :-

 

(1)††† PLD 1991 S.C. 385 (Muhammad Hussain & others v. Islamic Republic of Pakistan). The honíble Supreme Court held in this case that the Labour Appellate Tribunal in its revisional jurisdiction was competent to revise an order made by the Labour Court under the Payment of Wages Act, therefore on this point the judgment of the High Court was reversed in which it was stated that Labour Appellate Tribunal cannot review an order.

 

(2)††† 1981 PLC 561 (National Cement Industries Ltd. v. Sindh Labour Appellate Tribunal and others.) Section 38, subsection (3-a) read with Payment of Wages Act (IV of 1936) Section 17. Revisional jurisdiction of Labour Appellate Tribunal in respect of order passed by Labour Court on appeal under Section 17 of Payment of Wages Act, 1936. Adjudication and determination by Labour Court of any matter under special law, transferred to it under statutory provision, held, proceedings under Industrial Relations Ordinance, 1969 and amenable to revisional jurisdiction of Labour Appellate Authority.

6. Both the learned counsel extensively argued the petition at katcha peshi stage for its disposal. What we have observed from the order of the Authority that only three points for determination were framed i.e. whether the signatory of the written statement was competent to sign, another point was whether the matter is to be disposed of in terms of Order 8 Rule 10 CPC, because written statement was not signed by a competent person. The third point was directly related to the case though general in nature but through which at least main controversy could have been decided whether the applicant was entitled for the relief claimed or not. In our view, Order 8 Rule 10 CPC has altogether different footing and implication. It only gives powers to the civil court to pronounce a judgment where any party from whom a written statement is so required fails to present the same within stipulated time fixed by the court, the court may pronounce judgment against him, or make such order in relation to the suit as it thinks fit.

 

7. We have no hesitation in our mind to hold that ††††Order 8 Rule 10 CPC has no application in the present case, as it does not relate to the authority of a person who signed the written statement but it merely relates to the time given by the court for filing written statement if the same is not filed within the stipulated time. The repercussions of its non-compliance are already provided under Rule 10 itself. The entire order of the tribunal is based on the non-compliance of Order 8 Rule 10 C.P.C without adverting to the other grounds raised in the revision. It is also a matter of record that earlier the claim of the respondent No.4 was rejected by the authority and on appeal to the labour court the matter was remanded for fresh decision after recording evidence. The learned labour court being appellate authority observed that the claim of the applicant requires evidence. The learned tribunal failed to consider that after remanding the matter by the labour court to the Authority whether the case was decided on merits or the petitioner was non-suited merely for the reasons that the person who signed the written statement was not authorized. It is an admitted fact that before the authority the written statement was signed and verified by Abdul Ghaffar on behalf of the petitioner. The same person also appeared in the witness box. He had also filed original power of attorney and resolution of the board of directors along with his affidavit in evidence. The same Abdul Ghaffar Manager Administration appeared in the labour court and represented the management in the case filed by the respondent No.4 but his appearance was never objected in the labour court but his appearance before the Authority was treated unauthorized.† In the labour cases what actually matters is the relationship of employer and employee and in order to decide the cases expeditiously the complexities and intricacies of civil procedure code have not been made applicable in its letter and spirit purposely to avoid the delay. The Authority under the Payment of Wages Act simply ignored and discarded the petitionerís defence on the ground that the written statement was not filed by authorized person while the petitionerís management throughout contested the proceedings and never objected or took the plea that the person who had signed the written statement or appeared in the witness box on their behalf was not authorized. The Tribunal instead of considering the order of labour court on merits simply affirmed the findings of the Authority on the applicability of Order 8 Rule 10 CPC which has no germane or nexus in the present case.

 

8. It is well settled proposition of law which has been expounded by the apex court that order passed by the labour court as an appellate court under the provisions of Payment of Wages Act can be assailed before the labour appellate tribunal under its revisional jurisdiction. This view was not only taken in the case of Muhammad Hussain (supra) but also in the case of Ghulam Mustufa reported in NLR 2002 Labour 65.

 

9. The letter of law makes it quite obvious that while exercising the revisional jurisdiction the court and or tribunal in order to explore every avenue ought to see what illegality or irregularity was committed by the court or authority below which required the correction in the revisional jurisdiction. It is basic tenet of law that the Tribunal in its revisional jurisdiction should consider whether the court below exercised the jurisdiction not vested in it by law or a jurisdiction vested in it by law was failed to be exercised and the court below has acted in the exercise of its jurisdiction illegally or with material irregularity. The impugned order shows us nothing to comprehend that the learned Tribunal has considered the order of the labour court properly which could not have been set aside through a snap decision but the proprietary demand that under the revisional jurisdiction, the tribunal must have reached to the logical conclusion as to what irregularity or illegality committed in the order of court below which was first and foremost consideration. On the contrary, the order of appellate court was set aside for the reasons that the Authority had rightly passed the order in view of Order 8 Rule 10† CPC, which is neither correct proposition or exposition of law nor the correct approach of law.††

 

10. Where a Tribunal/Court or an Authority travels beyond its jurisdiction or acted in excess of its jurisdiction or powers or commits an error apparent on the face of the record or acts outside the scope of law, this court under Article 199 of the Constitution has ample and adequate power for supervision and correction. High Court under its constitutional jurisdiction can examine the legality of an order passed by the special court or tribunal constituted under the special enactment and if the order is found illegal it can be rectified, rescinded or altered. If any order is passed in violation of law the same can be conveniently be questioned and quashed under the constitutional jurisdiction of this court to remedy any mischief arising out of an illegal order.

11. In the wake of above discussion, the petition is admitted to regular hearing. The impugned order is set aside, matter is remanded to the learned Labour Appellate Tribunal back to decide the revision application afresh within a period of two months after providing ample opportunity of hearing to the parties. The petition is disposed of along with listed application.

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††††††††††††††††††††††††††††††††††††††††††††††††††††††† †† Judge