M. NAEEM VIRK Versus GOVERNMENT OF PAKISTAN

ORDER

TANZIL‑UR‑RAHMAN, CJ.‑ ‑By this petition, the petitioner has challenged sections 2(vi), 6 and 7(2)(1) of the Payment of Wages Act, 1936. These sections are reproduced as under:‑‑

"Section 2(vi) .‑‑`Wages' mean all remuneration capable of being expressed in terms of money, which would, if the terms of the contract of employment, express or implied, were fulfilled, be payable whether conditionally upon the regular attendance, good work or conduct or other behaviour of the person employed or otherwise, to a person employed in respect of his employment or of work done in such employment, and includes any bonus or other additional remuneration of the nature aforesaid which would be so payable and any sum payable to such person by reason of the termination of his employment but does not include‑‑

(a) the value of any house accommodation, supply of light water, medical attendance or other amenity, or of any service excluded by general or special order by the Provincial Government,

(b) any contribution paid by the employer to any pension fund or provident fund;

(c) any travelling allowance or the value of travelling concession;

(d) any sum paid to the person employed to defray special expenses entailed on him by the nature of his employment;

(e) any gratuity payable on discharge.

Section 6 .‑‑All wages shall be paid in current coin or currency note or both.

Section 7(2)(i) ‑‑Deductions for subscriptions to, and for re‑payment of advances from any provident fund to which the Provident Funds Act, 1925 (XIX of 1925), applies or any recognised provident fund as defined in clause (37) of section 2 of the Income Tax Ordinance, 1979 (XXXI of 1979) or any provident fund approved in this behalf by the Provincial Government during the continuance of such approval."

2. With regard to section 2(vi) of the Act the petitioner states that the exclusion of accommodation, supply of light and water, medical attendance etc. from the meaning of the word "wages" is contrary to justice and, therefore, is repugnant to the Injunctions of Islam.

3. The following Verses of the Holy Our'an are relevant to the legality of (wage):‑--

She said: "My father invites the that he may reward thee for having watered (Our flocks) for us."

Said one of the (damsels); "O my (dear) father engage him on wages: truly the hest of men for thee to employ is the (man) who is strong and trusty."

He said: "I intended to wed one of these my daughters to thee, on condition that thou serve me for eight years."

And if they suckle your (offspring) give them their recompense.

(Moses) said: "If thou hadst wished, surely thou couldst have exacted some recompense for it."

"And if Ye wish to give your children out to nurse it is no sin for you, provided that ye pay what is due from you in kindness."

4. Ibn‑e‑Qudamah says that `wage' is a compensation whatever it may be. In his words:

(Wage is a compensation, as the Holy Qur'an says: If thou hadst wished, surely thou couldst have exacted some recompense for it) (18:77) (Ibne‑Qudamah, Vo1.5, page 433).

Al‑Zaila'i said that:

(Whatever is paid to an employee in compensation is called `wages') (Tabyeen‑al‑Haqaiq, Vol. 5, page 104).

The Majellah said in Article 404 that:

(Ujrat means what is paid for the use of a thing (kira) i.e. the price for the benefit).

5. It appears from the abovementioned juristic meanings of word Ujrat (wages) that each and every thing which is settled in the contract of Ijarah, as compensation, by mutual consent of the parties, is called Ujrah (wages). The only requirement is that the Ujrah (wages) must be specified and should be known (Malumah) to the parties. While defining the term Ijarah Zaila'i says:

(Ijrah is a contract of sale of a known usufruct with specified and known compensation). (Tabyeen‑al‑Haqaiq, Vo1.5, page 105)

6. Keeping in view the above juristic discussion it becomes clear that section 2(vi) of the law is sound and correct and nothing is found therein contrary to the Injunctions of Islam.

7. Section 6 of the Law says that the `wages' shall be paid in current coin or currency or both.

8. Coins such as Dirham and Dinar remained in common use in almost all contracts in the time of the Holy Prophet (p.b.u.h.) and during the period of Khulafa-i‑Rashidin. Such matters are governed by the principle of application of custom and usage.

9. There are several legal maxims which reflect Islamic law in this regard. It is stated in Majellatul Ahkamul Adlia;

"36. Custom is of force.

That is to say, common use and custom, whether it be general or special, is made the. arbitrator for the establishment of a Shari'ah judgment."

"37. The use of men is evidence according to which it is necessary to act."

"43. A thing known by common usage is like a stipulation which has beer made."

10. Keeping in view the abovementioned discussion it appears that section 6 of the Law does not stand contrary to the Injunctions of Islam.

11. It may further be observed that Ijarah is a contract, which is governed and regulated by the terms and conditions agreed upon at the time of the entering into the contract by the parties. When a person, enters into a service contract, regulated and governed by law, he naturally and consequently accepts, all terms and conditions specified by law, except those conditions which are found repugnant to the Injunctions of Islam. In our view, therefore, section 7(2)(i) of the Act as well does not appear to be repugnant to the Injunctions of Islam. The petition is, therefore, dismissed in limine.

M.BA./677/FSC

Petition dismissed.