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Constitutional Petition No. 81 of 1980, decided on 7th February, 1982

‑‑ S. 2(h)‑"Worker"=Chowkidar‑Cannot be excluded from definition of a worker as his service would be essential to working of Factory and incidental to process undertaken in Factory itself.

‑‑‑ Art. 199 read with Payment of Wages Act (IV of 1936), Ss. 15(1) & 18‑Constitutinal jurisdiction of High Court‑Authority under Payment of Wages Act, 1936 taking ex parte proceedings against petitioner on his refusal to accept notice of proceedings‑Labour Court in appeal finding that petitioner had been grossly, negligent in prosecuting his remedy and complying with directions of Court‑Taking up of ex parte proceedings challenged before High Court in constitutional petition on plea that ex parse proceeding were not taken exactly in accordance with provisions of Civil Pro cedure Code, 1908 hence legally unjustified‑Authority under Payment of Wages Act, 1936, held, not a fulfedged Civil Court under Civil Procedure Code, 1908‑Findings on point further held; could not be challenged in constitutional petition because two Courts below had given concurrent findings to that effect.

Mr. Tariq for Petitioner.

Fateh Khan in the Person.

Nemo for Respondent Nos. 1 and 2.

Dates of hearing: 1st and 7th September, 1981.

The petitioner who is a private limited company registered under the Companies Act, 1913 had employed respondent No. 3 Fateh Khan as a Chowkidar in 1972. His services were however terminated w.e.f. 12th July, 1978, since he was no longer required. He was paid all his dues at the time his services were terminated. The respondent No, 3 filed as application before the Sind Labour Court No. IV under Section 25‑A of the In dustrial Relations Ordinance, 19,69, on 1st January, 1979, claiming his wages and outer dues. The Labour Court dismissed the application on the ground that Chowkidar was not a workman under the Ordinance and that the application was time barred. Thereafter the respondent No. 3 filed an application before the Authority under Payment of Wages .Act, 1936, the respondent No. 2 in respect of his claim. The petitioner refused to accept the notice from respondent No. 2 in the proceedings as a result that an ex parte order was passed against trim on 16th April, 1980 for the claim of respondent No. 3 amounting to Rs. 5,307.80. The petitioner moved an application before the respondent go. 2 for setting aside the ex parte order but the same was dismissed. The peti tioner then filed an appeal before the Sind Labour Curt No. IV respon dent No. 1, but it was also dismissed vide order dated 3rd August, 1980, on the ground that the petitioner had been grossly negligent in prosecu ting his remedy and complying with the directions of the Court. The petitioner now has come in this petition for a declaration that the impugn ed orders dated 16th April, 1980 passed by respondent No. 2 and 3rd August, 1980 passed by respondent No. 1are without lawful authority and of no legal effect.

2. Mr. Tariq the learned counsel has been heard for the petitioner, whereas the respondent No. 3 has been heard in person as he is unre presented. The learned counsel for the petitioner has raised two‑fold contention: firstly, that the petitioner is neither the factory' within the meaning of the Payment of Wages Act as defined ‑ in clause (2) of the Factories Act 1934, nor the respondent No. 3As ‑a "workman" within the meaning of Factories Act, 1934, and secondly; that the ex parte pro ceedings taken by the respondent No. 2 were it legal and unwarranted by the provisions of the C. P. C. and therefore the impugned orders were illegal and without lawful authority. In support of his first contention he has drawn my attention to the definition of 'factory' as defined in clause (j) of section 2 of the Factories, Act, 1934, which reads as under:‑

"Factory" means any premises, including the precincts thereof, whereon ten or more workers are working, on any day of the preceding 12 months, and in any part of which a manufacturing process is being carried on or is ordinarily carried on with or without the aid of power, but does not include a mine, subject to the operation of the Mines Act, 1923 (IV of 1923)."

He has contended that since the petitioner's factory was closed since 1976, it cannot be termed as 'factory' within the meaning of the above mentioned definition as envisaged by section 2(1) of the Payment of Wages Act. In support of his contention that the 'factory' was closed for preceding 12 months he has relied on sole affidavit of the petitioner for the first time in this petition. He failed to raise this con tention either in the original proceedings before the respondent No. 2 Payment of Wages Authority, or in appeal before the Labour Court, respondent No. 1 with the result that no evidence was led by either of the parties in support or otherwise of the contention which is being raised for the first time at this belated stage in this petition. 1, therefore, find no material worth consideration on the record in support of this contention raised on behalf of the petitioner. ‑ In support of the conten tion that the respondent No. 3 is not a 'worker' within the meaning of the Factories Act, he has referred to the definition of 'worker' as 46fined in section 2(h) of the Factories Act, 1934, which reads as under:‑

"Worker" means a person employed directly or through an agency whether for wages or not, in any manufacturing process, or in cleaning any part of the machinery or premises used for a manu facturing process, or in any other kind of work whatsoever, incidental to or connected with the subject of,,' manufacturing process but does not include any person solely employed in a clerical capacity in any room or place Where no manufacturing process is being carried on."

Chowkidar has not been specifically excluded from the definition of a worker' though anybody solely employed in a clerical capacity has been so excluded. 'Worker' is defined to be a person employed iii any kind of work whatsoever, incidental to or connected with the subject of the manufacturing process, and in my view chowkidar cannot be excluded from the definition of a worker' as his services would be essential to the working of the factory and incidental to the process undertaken in the' factory itself. It would also be pertinent to point out that the conten tion in that respect is being raised for the first time in this petition when it was not raised even before the appellate Court, the respondent No. 1 where the petitioner appears to have seriously contested the matter which resulted in the dismissal of his appeal. I would, therefore, find no force in this contention also raised on behalf of the petitioner.

3. As regards the second contention raised on behalf of the peti tioner to the effect that the ex parte proceedings taken against the peti tioner were illegal and unwarranted by, the C. P. C., there is finding of the respondent No. 2 to the effect that the petitioner refused to accept the notice and failed to appear as a result that the ex parte proceedings were taken. In appeal respondent No. I examined the contention in that respect and ultimately dismissed the appeal on the ground that the peti tioner was grossly negligent in pro4ecuting its remedy and respondent No. 2 was justified taking ex parte proceedings in the matter. The learned counsel for the petitioner on the basis, of section 18 of the Payment of Wages Act has contended that the ex parte proceedings were not taken exactly in accordance with the provisions of C. P. C. and were, therefore, legally unjustified. This contention is also not tenable, firstly, for the reason that the authority under subsection (1) of section 15 is not a fulfledged Civil Court under C. P. C. but also only for the purpose of taking evi dence, enforcing the attendance of tie witnesses and compelling the production of the documents in accordance with the relevant provisions of the Code; and secondly, that finding to this effect cannot be challeng‑1, ed in this petition in view of the fact that two Courts below have given' concurrent finding in that respect. In my view, therefore, this contention' of the learned counsel for the petitioner is also without substance.

4. In the result, this petition is dismissed with costs.

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