MOHAMMAD FAZIL Versus THE COMMISSIONER FOR PAYMENT OF WAGES & COMPENSATION, KARACHI AND ANOTHER

TUFAIL ALI A. RAHMAN, C. J.-- ‑Respondent No. 2 in this case, one Muhammad Zaheer, was admittedly the driver of a rickshaw No. KAU 1480 which, according to the case set up by him before the Commissioner for Workmen's Compensation 8t Authority under the Payment of Wages Act, belonged to the petitioner who had employed him as a driver for that rickshaw. On 11‑6‑1968, it is alleged that he met with an accident and, as a result of that, suffered an injury, on which account he made a claim which has resulted in an order by the Commissioner in favour of respondent No. 2, and against the petitioner for compensation amounting to Rs. 560 and Rs. 84 as costs. The defence of the petitioner in sub stance was that respondent No. 2 was not a workman within the meaning of the Workmen's Compensation Act and that he was receiving no wages from the petitioner who himself had taken the rickshaw in question upon an hire‑purchase basis or on instalment basis from one Adam; it was also claimed that the application of respondent No. 2 was not maintainable under section 10 of the Workmen's Compensation Act but this claim was itself based upon the two matters which I have stated and, besides these, the only other questions raised were pure questions of fact whether there was in fact an accident and the extent of the injury suffered by respondent No. 2.

2. The first question that arises in this case is whether the petition is at all maintainable before us since, admittedly by reason of section 30 of the Workmen's Compensation Act the petitioner has a right of appeal to this Court against the order complained of. Mr. Siddiqui, appearing for the petitioner, claims that since it is a condition precedent to the main taining of such an appeal that the money ordered to be paid be first deposited there is "no other adequate remedy provided by law" within the meaning of Article 98 of the 1962 Constitution. It is true that we are governed now by the 1973 Constitution but there is a parallel provision in the present Constitution, as there also was in the Interim Constitution of 1972, and so far as the existence of another adequate remedy provided by law as a bar to the exercise of our jurisdiction is concerned, the language in the relevant provision of all the three Constitutions is identical. It is to be noted that the relevant clause of Article 98 starts with the words "subject to this Con stitution, a High Court of a Province may, if it is satisfied that no other adequate remedy is provided by law so that the existence of another ade quate remedy provided by law is not a matter which merely affects our discretion to entertain or not to entertain a petition but is one which limits our jurisdiction itself. Unless we can come to the conclusion that there is no other such adequate remedy we have ourselves no power to act under Article 98 or under the corresponding Article 199 of the present constitution. It is therefore, necessary to see precisely what kind of appeal is permitted by the Workmen's Compensation Act in order to determine whether it is such a remedy as is contemplated by Article 98. Section 30 of that Act reads thus:

"30‑(1) An appeal shall lie to the High Court from the following orders of a Commissioner, namely:

(a) an order awarding as compensation a lump sum whether by way of redemption of a half‑monthly payment or otherwise or disallow ing a claim in full or in part for a lump sum;

(b) an order refusing to allow redemption of a half monthly payment;

(c) an order providing for distribution compensation among the depen dants of a deceased workman, or disallowing any claim of a person alleging himself to be such dependant;

(d) an order allowing or disallowing any claim for the amount of an indemnity under the provisions of subsection (2) of section 12; or

(e) an order refusing to register a memorandum of agreement of register ing the same or providing for the registration of the same subject to condition

Provided that no appeal shall lie against any order unless a substantial question of law is involved in the appeal and, in the case of an order other than an order such as is referred. to in clause (b), unless the amount in dispute in the appeal is not less than three hundred rupees;

Provided further, that no appeal shall lie in any case in which the parties have agreed to abide by the decision of the Commissioner, or in which the order of the Commissioner gives effect to an agree ment come to the patties;

(Provided further that no appeal by an employer under clause (a) shall lie unless the memorandum of appeal is accompanied by a certificate by the Commissioner to the effect that the appellant has depo sited with him the amount payable under the order appealed against.)

(2) The period of limitation for an appeal under this section shall be sixty days.

(3) The provisions of section 5 of the Limitation Act, 1908, shall be applicable to appeals under this section."

Clearly, and there is no dispute on this question, by reason of clause (b) of subsection (1) the order in question is appealable. There are, however, as will be seen, three provisos to subsection (1) and the first of these pro hibits an appeal unless a substantial question of law is involved and, ill the case or orders other than an order such as is referred to in clause (b), unless the amount in dispute in the appeal is not less than three hundred rupees. Clearly the second part of the proviso does not apply as the order is one such as is referred to in clause (b) and the amount in question is, in any case, higher than three hundred rupees. It is true of course that the first part of the proviso does limit the appeal to one which involves a question of law but clearly counsel could not rely on this, as indeed he did not, because invoking our Jurisdiction under Article 98 of the 196' Constitution, he would not in any case have been able to pursuade us to interfere on pure questions of fact has been held often and authoritatively that in tire exercise of this jurisdiction tire High Court will A not enter into questions of fact which were within tire competence of the Tribunal which passed the impugned order. It is unnecessary to do more than to refer to a short passage in judgment of the Supreme Court reported as the Presiding Officer v. Sadruddin Ansari (P L D 1967 S C 569), at page 579 where his Lord ship the present Chief Justice observed:

"In a proceeding of this nature disputed questions of fact will not, of course, be gone into and it is only where it is show upon the face of the record itself that the officer or the authority concerned has failed to discharge his duty, that direction of the nature contemplated by Article 98 will issue,"

1 3. The second proviso, which bars an appeal in a case in which parties have agreed to abide by the decision of the Commissioner or in which the order of the Commissioner gives effect to an agreement of parties, clearly is irrelevant and need not be further referred to.

4. It is the third proviso which provides that an appeal will be com petent only if the memorandum of appeal is accompanied by a certificate by the Commissioner to the effect that the appellant has deposited the amount payable that is really in question. In effect the proviso makes the deposit of the money a condition precedent to the maintenance of the appeal and learned counsel's argument was that his client was too poor to pay the amount in question first and that, therefore, while it may not be a principle of general application that such a condition precedent destroys the efficacy B of the remedy by way of appeal, in this particular case it did have that con sequence. Now to start with I am at least doubtful whether it is possible to hold that such a condition will not take away from the adequacy of the remedy provided by law, within the meaning of Article 98, generally, but it is yet possible to say in a given individual case that the financial condition of the petitioner is such that it ought to be so held in that particular case. After all the expression used must be interpreted so as to make the rule applicable to all cases and it can hardly be made dependent upon the actual condition of the petitioner. But, even if such an interpretation was possible it would involve an investigation of fact whether the petitioner is indeed incapable of paying this sum of money or that it would be so great a hardship upon him as to make the provision of an appeal really worthless. I do not think that we can investigate such questions of fact and in any case, the only material that we have got upon the record is what is stated in paragraph 11, of the petition, which of course is supported by affidavit, and which is in this language:

"That since the petitioner is not in a position to deposit Rs. 560 he has no other remedy available but to prefer this petition."

This is hardly sufficient to reach the kind of finding which the petitioner asks us to do even if we could enter into the question.

5. Learned counsel relied upon a number of cases for the purpose of showing that a petition under Article 99 would be maintainable in these circumstances. The first of these is the case of Anjuman‑e‑Ahmadia v. The Deputy Commissioner (P L D 1966 S C 639). This was a case where some land had been given by the Government to the appellant and the grant was eventually cancelled by Government in circumstances which it is unnecessary to detail here. A petition to the High Court challenging the cancellation was dismissed on the ground that there was an adequate alternative remedy by way of suit and the Supreme Court granted leave to consider whether a remedy by way of suit was, in the circumstances of the case one which could be described as an adequate alternative remedy. There was not a case where there was any such thing as a statutory right of appeal and their Lordships of the Supreme Court observed:

"So far as these writs are concerned it is now settled law that to dis entitle a person from such an extraordinary remedy the alternative remedy available must be a remedy in law, that is a remedium juris and one which is not less convenient, beneficial and effective if what is sought to be enforced by such in extraordinary remedy is "a legal right to the performance of a legal duty" of a public nature."

6. After referring to some English cases their Lordships then went on to say :

"Thus once it is established that the remedy sought is for the perform ance of some public duty then relief by way of an extraordinary remedy of this nature is not to be denied merely because some other remedy under the general law is available unless such alternative remedy can be considered to be equally inexpensive, expeditious, beneficial and affiacious."

7. Referring to the case of Mahboob Ali Malik v. The Province of West Pakistan (P L D 1963 Lah. 575), with approval it was held that the test laid down in that case was in no wise in conflict with what their Lordships were themselves holding. The relevant test was, in the language of the High Court, "if the relief available through the alternative remedy, in its nature and extract, is what is necessary to give the requisite relief, the adequacy of the alter native remedy must further be judged, with reference to a comparison of the speed, expense or convenience of obtaining that relief through the alternative remedy, with the speed, expense or convenience of obtaining it under Article 98. Finally their Lordships observed:

"In out view, when the relief sought for is by its nature one which lends itself to be effectively remedied by orders of the nature contemplated in paragraphs (a), (b) and (c) of sub‑Article (2) of Article 98, then the intention of the Constitution appears to be that the remedy granted by the Constitution should be made available to the citizen unless the Court is satisfied that other adequate remedy is provided by law. The other adequate remedies provided by law would, in the ordinary circumstances, have reference to the remedies provided by the parti cular statute itself which has created the right or obligation and not a general remedy at law, as for example by a suit, On the other hand, if the remedy sought for is in substance a remedy which is available under the ordinary law then a suit and not the extraordinary remedy under Article 98 should be the appropriate remedy, for, the remedy provided by this Article is not intended to be a substitute for the ordinary forms of legal action. But where this is not the case the remedy by way of a suit can hardly be considered to be an adequate alternative remedy. A suit is by no means as inexpensive or speedy or beneficial a remedy as the remedy provided by this Article."

8. How clearly in the present case there can be no question but that the remedy under the Workmen's Compensation Act and the remedy under! Article 98 are equally speedy and convenient and the only question is one of expense. Their Lordships refer to the remedy by way of suit as being clearly more expensive that is the remedy by way of an appeal to this! Court, as claimed by learned counsel, really more expensive than the remedy under the Workmen's Compensation Act? It is true that a sum of money has to be deposited but this is not the cost of the remedy; it is the necessity of paying up what can be equated to a decretal amount, that is, the money ordered to be paid by means of a final order under the proceedings itself and not as a part of the cost of the remedy. Even in ordinary civil litigation it is the usual practice of the Courts to refuse to stay execution of money decrees except upon the condition that the decretal amount be first deposited in Court. I am quite unable to think therefore, that this can be regarded as making the remedy under the Act more expensive and, therefore, do not think, with respect, that the decision of the Supreme Court applies.

9. Reference was then made by learned counsel to the case reported in P L D 1957 Supreme Court which I have mentioned earlier and reliance was placed upon the following passage at page 577:‑

"Though this Article has been couched in very wide terms it may safely be assumed that it incorporates within it orders or directions in the nature of these which could have been issued under the prerogative writs of mandamus, prohibition and certiorari. So far as these writs are concerned the principle is undoubtedly universally accepted that it would not be in the exercise of sound judicial discretion to interfere with there is another `adequate and specific legal remedy competent to afford relief upon the same subject‑matter'. It has often been held that a relief of this nature is a supplementary remedy which does not supersede legal remedies but rather supplies the want of such remedy. But it is not any and every kind of remedy which will defeat this constitutional right. In order that the other remedy should be sufficient to warrant refusal to exercise this juris diction it is necessary, as observed by Ferris in his book on Extra ordinary Legal Remedies (page 247) that the other remedy must be 'both specific and adequate' in the sense that it must be 'com petent to afford relief upon the very subject‑matter of the application and be equally convenient, beneficial and effective."'.

I respectfully agree but I am quite unable to see how this supports learned counsel. Both under the appeal provided by the Workmen's Compensation! Act and in a petition of the kind before us the forum would be the High Court and though the appeal is limited to a question of law, the jurisdiction under Article 98 can hardly be said to be wider. Indeed it is not necessarily all questions of law which will be entertained under Article 98 and in any case, questions of fact will not. The scope of the remedy by way o appeal is, therefore, in any view of the matter, not less wide than by means of a petition under Article 98.

10. Learned counsel then relied upon another decision of the Supreme Court reported in the same Volume at page 294, Ali Abbas v. Yishan Singh (P L D 1967 S C 294), This was a case in which it was found that the order of the Deputy Custodian of Evacuee Property was without jurisdiction and the order had been con firmed by the Additional Custodian in appeal. Against the maintainability of the petition it was argued that an application lay to the Custodian for review of revision. This argument, the Supreme Court rejected in these words:

"There had been in the relevant respect, an excess of jurisdiction, and the affected party could not be penalised for not throwing themselves again on the mercy of the authorities who were responsible for such excess. The proper and indeed the only authority which possessed power to correct the legal wrong thus done was the High Court acting in its jurisdiction under Article 98 of the Constitution. In order to provide that their right was allowed to the appellants, the proper order of the High Court to have made was to have directed that the Custodian himself should entertain and hear the appeal that had been presented to him.

Now in the present case there is no question of throwing the petitioner "on the mercy of the authorities who were responsible for such excess". The remedy provided is a remedy by way of appeal to this Court and not to any other Tribunal and it can hardly be said, therefore, that a resort to Article 98 is necessary for the purpose of avoiding a Tribunal which, in the circums tances of the case, cannot inspire confidence in the petitioner for the Tribunal which he is avoiding is precisely the same Tribunal whose jurisdiction he has chosen to invoke.

11. We were finally referred to an order of the Supreme Court granting leave to appeal in a particular matter which is reported in 1968 S C M R 94. Now in the first place an order granting leave is not, if I may be per mitted to say so with respect, intended to be an expression of the final opinion of the Supreme Court but one from which at most it might be deduced that in their Lordships' opinion there was a question to be examined. The case really, therefore, cannot be regarded as an authority at all but, when one looks at the facts of the case the position that emerges is hardly favourable to the petitioner. In this case the 'High Court had entertained a constitutional petition at the instance of a person who had a right of revision which he did not exercise and then applied after the period of limitation to the Court under Article 98. The petition was successful and it was the defeated party who took the matter to the Supreme Court on the ground that Article 98 should not be used at the instance of the party who has wil fully not chosen to avail himself of a remedy and, in granting leave, their Lordships observed:

"A number of grounds of objection to the judgment of the High Court are raised. One which stands out raises the question whether the jurisdiction conferred on the High Courts by Article 98 can be used for the benefit of a party which had a clear remedy under the relevant law, but has forfeited that remedy through its own default. The law seems to intend that absolute finality shall attach to the last order in Settle ment unless a revision is sought in the High Court within the prescrib ed period of limitation, which is by no means short, viz., 60 days. If resort is allowed to the writ jurisdiction, it can only be in defect of that law, and there are no words in Article 98 which can justify its use to such an end."

If at all, therefore, any expression of opinion of the Supreme Court can be drawn from the order it would seem to be rather against the petitioner.

12. I have, therefore, come to the conclusion that this petition is not maintainable and that finding, by itself, suffices to dispose of this petition but I think it right to add that, in my view, the petition would not succeed on merits even if it were held maintainable.

13. The first question that is raised in the petition is that respondent No. 2 was not a workman within the meaning of the Workmen's Compensa tion Act. This was based upon the ground that he was not in receipt of any wages from the petitioner but, as the Commissioner has pointed Gut, respon dent No. 2 was admittedly a driver of a mechanically propelled vehicle plying for public use and was thus concerned with the West Pakistan Road Trans port Workers' Ordinance and that the Workmen's Compensation Act has been extended to all workmen concerned under the said Ordinance. The position appears to have been admitted before the Commissioner and before us also, although learned counsel did make an attempt to argue the position, but he then went on the assumption that respondent No. 3 was such a workman.

14. A grievance was made before us that a notice such as is required under section 10 of the Workmen's Compensation Act was not given and that the proceedings before the Commissioner were not, therefore, maintain able. The point was not taken up in the petition before us although one of the grounds which have been mentioned was sought to be pressed into service for covering the contention. That ground which is marked `b' reads thus:

"That the application filed by respondent No. 2 under section 10 of the Workmen's Compensation Act, 1923 before respondent No. 1 is not maintainable under law as neither respondent No. 2 was in the em ployment of petitioner nor he could be treated its a workman under Workmen's Compensation Act, 1923."

Before the Commissioner also it does not appear that the ground was taken although even there it was complained that the application under section 10 of the Act was not maintainable but clearly there, as before us, the complaint was on the footing that respondent No. 2 was not a workman.

15. It was finally argued that the petitioner was not the owner of the rickshaw and, if any person was liable at all, it was one Adam from whom he had purchased it on instalment basis. But the fact that the purchase money had not yet been paid to the original owner does not make the petitioner any the less the owner of the rickshaw in question ; it can hardly be said that, if a person sells the rickshaw but does not recover the price immediately, then until he is paid he must be treated as the owner and made liable for all the obligations which in law are attached to ownership. There were indeed some other questions but these were entirely questions of fact and the learned counsel agreed that he could not urge them before us except that he argued that on the question whether the respondent was drawing three hundred rupees as wages the Commissioner had misdirected himself on law in reaching a finding in favour of respondent No. 2. The Commissioner's reasoning on this point is as follows:

"The applicant has deposed that he was getting Rs. 300 per month. There is no evidence in support of this statement. The opponent No. 2 has denied having engaged the applicant and paid him any wages.

The statement of the opponent No. 2, is not reliable as his entire state ment is full of contradictions. First he said that he had never had business of rickshaw driving f hereafter he admitted that he had hired a rickshaw from the wife of the opponent No. 1. He at one place deposed that the opponent No. I never gave possession of the rickshaw to him. But at another stage he deposed that the rickshaw was in his possession.

I therefore hold that the applicant was drawing Rs. 300 as his wages, per month."

It is true that the findings could have been more happily put but clearly there was evidence that he was being paid Rs. 300, that is to say there was his own deposition. It might be that, sitting as an original Judge, I might not on this evidence have decided the question in favour of respondent No. 2 r but that is far from saying that there was no evidence to justify the finding. When there is evidence to justify a finding within the competence of a tribunal this Court obviously will not interfere in the exercise of jurisdiction under Article 98.

16. 1 would, therefore, dismiss this petition with costs.