TOWN COMMITTEE, CHOWINDA vs ARRORA MASIH and others
The petitioner, a Town Committee, challenged orders passed by the Authority under the Payment of Wages Act, 1936, which directed the payment of back wages to respondents who were previously reinstated in service. The petitioner contended that the respondents were gainfully employed elsewhere during their termination period and thus not entitled to full back benefits. The core legal question was whether the constitutional petition was maintainable given the existence of alternative statutory remedies, and whether the petitioner had proven the respondents' gainful employment. The Court held that the petition was not maintainable under Article 199 of the Constitution of Pakistan 1973 because the petitioner failed to exhaust the statutory appellate and revisional remedies provided under the Payment of Wages Act, 1936 and the Industrial Relations Ordinance, 1969. Furthermore, the Court held that the petitioner failed to provide positive evidence of the respondents' alternative employment. The key principle laid down is that a constitutional petition is not maintainable when effective alternative statutory remedies, such as appeals or revisions, have not been exhausted by the aggrieved party.
- Is a constitutional petition maintainable against an order passed by the Authority under the Payment of Wages Act, 1936, if the petitioner has not exhausted the statutory appellate and revisional remedies?
- Does the failure to challenge an order through available statutory forums bar the filing of a writ petition?
- Is an employer required to provide positive evidence of an employee's gainful employment elsewhere to deny a claim for back wages?
- Section 15, Payment of Wages Act 1936
- Section 16(3), Payment of Wages Act 1936
- Section 17, Payment of Wages Act 1936
- Section 38, Industrial Relations Ordinance 1969
- Section 38(3-A), Industrial Relations Ordinance 1969
- Article 199, Constitution of Pakistan 1973
' Brief facts of the case are that respondents Nos,1 to 4 were employed as sweepers in Town Committee, Chowinda. Their services were terminated by the petitioner Town Committee on 6-6- 1982. Their appeal before the Deputy Commissioner, Sialkot, was dismissed on 25-9-1982. The petitioners approached the Labour Court for their reinstatement in service and ultimately vide, order dated 8-3-1987 they were directed to be reinstated in service with all back benefits since 6- 6-1982 as they were found to be jobless during the intervening period. Respondents Nos, 1 to 4 filed applications under section 15 of the Payment of Wages Act for payment of the salary from 6-6- 1982 to 30-1-1987 whereupon notices were issued to the petitioner vide Annexures C-D, E and F.
Petitioner has impugned the said node and the orders dated., 31-10-1990 and -12-124990 passed by the Authority under the Payment of Wages Act, 1936. The case of the petitioner is that respondents Nos,: Ito 4 Remained employed and having been earning money during the said period as such they are not entitled to the wages claimed by them. He has relied upon Pakistan through General Manager, P.W.R., Lahore v. Mrs A.V. Asks (PLD 1970 SC 415) wherein it was held that a civil servant can claim salary for the period he was kept out of the service. Any amount earned by him by employment or engagement in other profitable business, during such 'period_ has to_ be set off against the due salary.
3. - Learned counsel fo r respondent Nos,-1 to on the other hand states that the petitioner town committee has i1Ot challenged the order of respondent NO.5 passed tinder Section 16(3) of the Payment of Wages Act, 1936 which was appealable under section 17 of the Act and further a revision was also competent' hefore the Punjab Labour Appellate Tribunal under section 38 of the Industrial Relations Ordinance; 1969, thus petition is not maintainable.
4. I have heaid the learned counsel for the parties and gone through the record. I have already decided in similar case W.P. No,1470 of 1996 that the order passed by the Authority under the Payment of Wages Act, 1936 is appealable and said remedy, having not been availed, the petition under Article 199 of the Constitution, is. Not maintainable. The appellate order was further revisable under section 38(3-A) of the Industrial Relations Ordinance, 1969. The original order passed by the Authority having not been challenged by the petitioner by filing an appeal or revision before the concerned forums, this Constitutional petition is not maintainable against the notices issued in pursuance to the said order passed in favour of respondents Nos, 1 to 4.
5. The judgment cited by the learned counsel is not applicable to the facts of the instant case as the petitioner has not established that respondents Nos, 1 to 4 remained employed for earning their livelihood somewhere after their termination of services by the Town Committee. Unless there is a positive evidence that they have been engaged in some profitable business during the aforementioned period, it is not possible to interfere in the order passed by respondent No,5 under the Payment .Of Wages Act.
' For the above reasons, this petition is dismissed. No order as to costs.
Cited by 4 cases
- Habib Bank Ltd. etc vs Authority under Payment of Wages Act etc. 2015 LHC 6428
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- Messrs E.M. OIL MILL AND INDUSTRIES PRIVATE LIMITED COMPANY through Managing Director vs COMMISSIONER FOR WORKMEN'S COMPENSATION 2010 PLC 62
- E.M. Oil Mills & Industries vs Commissioner for Workmen Compensation 2011 C.L.R. 489