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Constitutional Petition No. 77 of 1977, decided on 25th April, 1979.

West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968)‑

‑‑ S. O. 10(2)‑Wages‑Failure to pay wages to several workers‑ Language of S. O. 10(2) fixing a day for payment of wages to workmen, failure to pay wages, held, constitutes one offence and not several offences one against each non‑payment irrespective of one or several or all workmen being not paid wages on such date.

Vonka Venkatoraman v. The Crown A I R 1935 Mad. 301 and Crescent Textile Mills Ltd., Karachi v. Federation of Pakistan P L D 1975 Kar. 732 ref.

Kamal Mansur Alam for Petitioner.

Abbas H. Faruqui for A.‑G. Sind for Respondents.

Dates of hearing : 24th and 25th April, 1979.

The respondent No. 2, Labour Officer, Inspector of Factories, filed two sets of complaints. In the first set of 1831 complaints it was alleged against the petitioner that he had failed to pay wages to his 1831 work men for the second fortnight of August, 1976 on or before 10th September, 1976. In the second set of 1831 complaints it was alleged that the peti tioner failed to pay wages to his 1831 workmen for the first fortnight of September, 1976 on or before 25th September, 1976 and the petitioner had in each case violated Standing Order 10(2) of the Schedule to the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 which is punishable under its section 7(3). The Stand Order 10(2) reads as follows :‑

"10. Payment of Wages.‑‑ (1) ............ ............

(2) All workmen shall be paid wages on a working day before the expiry of, the 7th or 10th day after the last day of the wages period, in respect of which the wages are payable if the total number of workmen employed in the establishment is 1,000 or less or exceeds 1,000 respectively."

Section 7 (3) of the Ordinance reads as follows :‑

"7(3) Whoever contravenes any of the provisions of this Ordinance, shall, if no other penalty is elsewhere provided by or under this Ordinance for such contravention, be punishable with fine which may extend to one hundred rupees."

2. The petitioner‑challenged the competency of the aforesaid com plaints on the ground that non‑payment of wages to workmen on the day specified constituted only one offence and the petitioner could not be prosecuted separately in respect of each workman. The Labour Court by its order dated 16th March, 1977 overruled this objection, which is the order impugned in this Petition.

3. Mr. Kamal Mansoor Alam, the learned counsel for the petitioner contended that the facts of the case against the petitioner attracted the provisions contained in section 71 of the Pakistan Penal Code, which provides that where anything which is an offence is made up of parts any of which parts is itself an offence, the offender shall no, be punished with the punishment of more than one of such his offence unless it be so expressly provided, and went on to argue that Standing Order 10(2) far from providing to the contrary contemplated one offence for failure to pay wages on a particular day irrespective of the number of workmen who had not been paid their wages.

4. First I will deal with the question as to what is the offence con templated under Standing Order 10(2) for if it contemplates one offence namely, non‑payment of the wages on the day specified irrespective of the number of workmen who have not been paid wages on the specified day it will be unnecessary to examine the effect of section 71 of the Pakistan Penal Code to the facts of the present case.

5. The opening words of Standing Order 10(2) are "all workmen shall be paid wages------------------------------------------------- " Furthermore two different dates have been prescribed for payment of wages depending upon the number of workmen employed in the establishment, namely, if it is 1000 or less before the expiry of the 7th day after the last day of the wage period and in the case the number of workmen exceeds 1000 before the expiry of the 10th day after the last day of wage period. The emphasis in the section therefore is on the day on which the wages were to be paid by the employer depending upon the number of workmen employed by him. If we compare this language with sec tion 5 of the Payment of Wages Act which also provides time for pay ment of wages, we find that this section by use of the language:,‑

"The wages of every person employed upon or in shall be paid before the expiry of the 7th day if the total number of persons employed are less than 1000 persons and in any other case before the expiry of 10th day after the last day of the wage period in respect of which the wages are payable."

imposes an obligation on the employer that every employee will. be paid wages on the day specified. Furthermore, section 20 of the Act provides prosecution of the person responsible for payment of wages in the event of contravention of said section 5 and section 21 which lays down the procedure for trial of offences, provides any other thing that sanction will not be given for prosecution if the employer was unable to pay wages by reason of exceptional circumstances. It will, therefore, follow that unlike Standing Order 10(2) non‑payment of wages to each workman gives rise to a separate cause of action against the employer, who may have an independent explanation in each case. In this connection I may also refer to section 9 of the Minimum Wages Ordinance, 1961 which prohibits payment of wages at the rate below the minimum rate of wages. The language of this section is

"no employer shall pay any worker wages at a rate lower than the rate declared under the Ordinance to be the minimum wage."

making its contravention an offence. The language employed makes clear that the employer would be liable separately to each workman who is paid less than the minimum wage. I may also refer to the West Pakistan Minimum Wages for Unskilled Workers Ordinance, section 3 of which reads as under :‑‑

"Every unskilled worker shall be paid wages at a rate not lower than the minimum wage specified in the Schedule to the Ordinance."

Section 4 makes the employer liable for payment of minimum wage employed either directly or through a contractor. Section 6 makes, among other things, agreements and contracts of service between an employer and employee void to the extent that they are inconsistent with the said Ordinance. Section 7 imposes a penalty on an employer who contravenes any provision with punishment which may extend to six months or fine which may extend to Rs. 2,000 or with both.

6. In comparison the language employed in Standing Order 10(2) is materially different for it fixes a day for payment of wages to workmen and, therefore the failure to so pay will constitute one offence irrespective of whether one or several or all workmen are not paid wages on that day.

7. Mr. Kamal Mansoor Alam, the learned counsel for the petitioner referred to two decisions in support of his contention that it is the language of a statute which will determine whether or not the statute creates one or several offences in a given case. The learned counsel refer red to a case reported in Vonka Venkataraman v. The Crown (A I R 1935 Mad. 301) in which the Court held that an employer who had employed four persons on Sunday without giving notice to the Inspector of Factories and without affixing a notice in the place mentioned in section 36 of the Factories Act constituted one offence and not four offences. In a Karachi case Crescent Textile Mills Led., Karachi v. Federation of Pakistan (P L D 1975 Kar. 732), the question before the Court was whether the petitioner had by installing 32 looms which were in excess of the disclosed 268 looms, had committed a separate offence in respect of each loom. The allegation against the petitioner was non‑intimation of installation of 32 additional looms under rule 57 of the Central Excise Rules, 1944. The Court rejected the contention of the Department that the words "each offence" in rule 57 convey the mean ing of non‑intimation qua each loom and held that the rule 57 being a penalty provision ought to be strictly construed and, therefore, the installation of additional looms without intimation amounted to one offence.

8. Mr. Abbas Farooqi, the learned counsel for the respondent relied on an unreported decision of a Single Judge, of this Court in Criminal Reference No. 73 of 1972. In this case it was alleged against the employer that he had committed 157 separate contraventions of the provisions contained in section 3.of the West Pakistan Minimum Wages for Unskilled Workers Ordinance, 1969. The trial Court consolidated 150 complaints, tried them together and passed a single sentence which was challenged on the ground that the joint trial of 150 offences was un warranted and illegal. The Court held that since inadequate (less than the prescribed minimum) payment of wages to each worker constituted a separate and distinct offence under section 3 of the Ordinance it was clearly necessary that a separate sentence should have been passed for each offence alleged against the employer. I have already referred to this Ordinance in the earlier part of my judgment and come to the conclusion that while section 3 of this Ordinance contemplated a separate offence in respect of each workman who is not paid a minimum wage such is not the intention which can be gathered from the language employed in Standing Order 10(2). This decision, therefore, does not help the respondent.

9. The result, therefore, is that this Petition is allowed with costs.

Petition allowed.

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