RAKO PHARMACAL LTD., MULTAN Versus DR. MUNIR MUGHAL, ADDITIONAL DISTRICT JUDGE LAHORE
Imtiaz Ahmad Taj respondent No.3 was serving with petitioner No.1 as a Sales Manager which post he resigned on 20‑8‑1983. His resignation was accepted and he was asked to collect his dues. He did not receive them and instead filed a petition under section 12(2) of the Order against the Managing Director of the petitioner company alleging therein that his full dues had not been paid and consequently solicited direction of the Authority for payment of the said amount together with ten times compensation. The revision was accepted by the Managing Director, petitioner No.2, inter alia on the pleas that the Authority had no jurisdiction as Imtiaz Ahmad Taj respondent was working as Sales Manager and was drawing a monthly salary of Rs.2,000 that the petition was not maintainable and that the provisions of West Pakistan Shops and Establishment Ordinance were not applicable to petitioner No.1 being a factory registered under the Factories Act, 1934. The pleadings of the parties gave rise to the following issues:
(1) Whether the application has been filed against the proper party DPR.
(2) Whether the petitioner is entitled to file an application under Shops and Establishment Ordinance, 1969? DPR.
(3) Whether the petitioner (Imtiaz Ahmad Taj) is entitled for the amount claimed, if so, to what extent?
(4) Relief.
After recording evidence and hearing arguments the Authority came to the conclusion that Imtiaz Ahmad Taj respondent did not fall within the definition of "employee" under section 2(g) of the ibid Ordinance and was consequently not competent to file the application before the Authority. Accordingly, vide order dated 11‑3‑1985 it dismissed the petition for want of jurisdiction. This order was assailed before the learned Additional District Judge as "District Court" for purposes of the Ordinance.
2. After hearing the parties, the learned Additional District Judge disagreed with the finding recorded by the Authority and held that Imtiaz Ahmad Taj was an "employee" as defined in the Ordinance. He further held that the petition had been filed against the proper party. While deciding issue No.3, the learned Additional District Judge held respondent No.3 to be entitled to Rs. 33,346.67. Vide his order dated 27‑7‑1985, the learned Additional District Judge set aside the order dated 11‑3‑1985 passed by the Authority and ordered the petitioner company to pay the above‑mentioned amount to Imtiaz Ahmad Taj respondent No.3. Hence this writ petition.
3. Learned counsel for the petitioners has contended that respondent No.3 was an employee of a factory and, therefore, the provisions as enacted by the Ordinance were not applicable to the case. It was submitted that this question though raised before the learned Additional District Judge was not properly dealt with by him resulting in grave prejudice to the case of the petitioners. Respondent No.3 could have filed a civil suit for the redress of his grievances or pursued other remedies available to him at law. He has placed reliance on Bashir Ahmad Zia v. The Chairman, Punjab Labour Appellate Tribunal and another 1982 S C M R 407 and I.E. Saleh v. Messrs International Laboratories Ltd., Karachi and 2 others P L D 1975 Kar. 279.
4. I have heard learned counsel for the parties at great length and with their assistance have gone through the material facts and the relevant law on the subject. In the reply submitted by petitioner No.2 before the Authority to the petition filed by respondent No.3 a definite plea was raised that the petitioner company was registered as "factory" under the provisions of Factories Act, 1934 and in support thereof certificate of registration was attached. This certificate is appended with the present petition as well, as Annexure 'A'. Imtiaz Ahmad Taj respondent has not produced any document to controvert it and in these state of things I am satisfied that the petitioner company is a factory within the scope and manner of clause 'K' of section 2 of the Ordinance and this clinches the whole matter.
5. Under section 12(2) of the ibid Ordinance, no doubt, an employee is entitled to apply to the Authority soliciting a direction for the payment of, wages delayed or withheld but, at the same time, the employee has to show that the provisions of the Ordinance are applicable to the establishment in which he had been working. The enactment in question is applicable only to establishments (Commercial and Industrial) as defined in clauses (E & 0) respectively of section 2 of the Ordinance which expressly exclude a factory obviously leading to the irresistable conclusion that a factory as defined in Clause 'K' of section 2 is not an establishment within the meaning of the Ordinance. I am, therefore, clear in my mind that the Authority had no jurisdiction to entertain the petition submitted to it by respondent No.3.
6. There is yet another aspect of the matter. Subsection 6 of section . 12 of the Ordinance provides for an appeal only against a direction made by the Authority under subsection (3) or (4). The admitted position is that in the instant petition no direction was given by the Authority, contrarily it had dismissed the petition filed by Imtiaz Ahmad Taj respondent. In the absence of any direction, therefore, the appeal before the learned Additional District Judge was not competent and its entertainment by him was an act without lawful authority.
For the reasons given above, I declare that the impugned order passed by the learned Additional District Judge was without Jurisdiction and lawful authority. Consequently, accepting the petition it is set aside. The parties are, however, left to bear their own costs.
A. A. /4‑5 2/ L
Petition accepted