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Constitutional Petition No. 97 of 1981 , decided on 4th October. 1983.

--- Art. 9 (1) (a) (i) & (ii)-Writ-Declaratory writ-Territorial jurisdiction- Petitioner's establishment office located at Karachi ChaIlenging proceedings started by Authority under Payment of Wages Act, 1936 at Bahawalpur on application of its ex-employee at Bahawalpur on grounds that said Authority had no jurisdiction in matter-Authority at Bahawalpur neither performing functions within territorial jurisdiction of High Court, Karachi nor proceed ings taken within territorial jurisdiction of Karachi High Court Matter, in circumstances, held, not within jurisdiction of Karachi High Court and writ petition accordingly dismissed as not entertainable-Writ petition before Karachi High Court, held, could be moved if ultimate decision of Authority at Babawalpur is sought to be enforced against petitioner through some official agency at Karachi.

1979 S C M R 555 ; P L D 1976 Kar. 1084 and P L D 1976 Pesh. 666

ref.

Mazharuddin Siddiqui for Petitioner.

Raja Sikandar Khan for Respondents.

Date of hearing : 4th October, 1983.

----This petition is directed against the process issued and proceedings taken by respondent No. I as Payment of Wages Authority, Bahawalpur under section 15 of the Payment of Wages Act against M/s. Lang Newspapers, Karachi. The petitioner claims to be the owner of the Jang Newspapers. The petition has been filed stating that respondent No. 2 Syed Tabish Alwari had been employed by the petitioner in 1961 as the correspondent posted at Babawalpur. But since respondent No. 2 did not perform any function between 1st July, 1974 to 5th February, 1976 on account of his being elected as a Member of Punjab Legislative Assembly, therefore, the respondent No. 2 was treated as on leave without pay for that period. On 6th February, 1976 his ser vices were terminated and he was paid Rs. 12,365.43 is the legal dues. Respondent No. 1 did not feel satisfied and on 30th October, 1980 filed an application under Shops and Commercial Establishment Ordinance claiming that unlawfully withheld wages for the period from 1st July, 1974 to 6th February, 1976 amounting to Rs. 33,093.66 be paid to him.

2. A notice was issued to the Jang Newspaper by Payment of Wages Authority, Bahawalpur and the petitioner filed objections on 10th February, 1981 stating that the Payment of Wages Authority had no jurisdiction in the matter and that the petitioner was not carrying any business at Bahawalpur., Reply to the objections was filed by respondent No. 2 and a rejoinder was filed by the petitioner. For sometime nothing happened but on 1st October, 1981 a fresh notice was issued to the petitioner, therefore, the petitioner has come before this Court seeking relief.

3. Mr. Mazhar Siddiqui has raised a number of points in support of this petition. He submitted that an application made under Shops and Commercial Establishment Ordinance could not be entertained by Payment of Wages Authority. He further contended that appli cation under section 1.5 of Payment of Wages Act could not be made by an ex-employee. He also submitted that the claim of respondent No. 2 was time-barred. However, Mr. Raja Sikandar Khan, Advocate for res pondent No. 2 raised the preliminary objection that this Court has no jurisdiction to entertain this petition. He submitted that respondent No.l was an Officer of Punjab Government performing his functions in Baha walpur District and the proceedings were also taken at Bahawalpur and nothing has been done nor is intended to be done a Karachi and hence the respondent No. 2 being under the jurisdiction of Lahore High Court, the High Court of Sind has not jurisdiction to entertain this petition against him. Since he point of jurisdiction of this Court is an important pre liminary point, therefore, this has to be examined first. Raja Sikapdar relied upon provisions of Art. 9 of Provisional Constitution Order. The learned counsel cited 1979 S C M R 555 where their Lordships of the Supreme Court have made the following observations

The moral considerations of 'residence', etc. and the 'cause of action' qua territorial jurisdiction, even if attracted in the circum stances, do not support the petitioner's case. The cause of action partly arose at Muzafarabad and partly at Rawalpindi. The Central Government, as held in the case of Watiullah Safyani, does not reside at any one place in the realm. However, the respondent No. 2 whose order (Annexure 'B' to the writ petition) was brought under challenge, is at Rawalpindi. On this view then Peshawar High Court would have not territorial jurisdiction. The Hazara office of the respondents Nos. 1 and 2 is only one chain in the administrative set up. It has not done anything against the peti tioner nor any relief has been sought against it nor even a formal one. Indeed it has not even been pleaded as a party. That aspect of the matter either, would not confer territorial jurisdiction on the Peshawar High Court.

The question having arisen in the context of a writ petition the Peshawar. High Court was justified in refusing to exercise jurisdic tion on another ground as well. As provided in Article 199 (1)(Q) of the Constitution the impugned action or the authority taking the same should be within the territorial jurisdiction of the High Court for exercise of jurisdiction thereunder. Non: of those conditions is satisfied herein. Therefore, the refusal by the Peshawar. High Court to exercise jurisdiction is unexceptionable. The argument of the learned counsel that the petitioner has been left with no forum for seeking relief has not impressed us. There is no reason why should he not act on the observation made in the impugned order that if so advised, the Lahore High Court may be moved in this behalf."

On the other hand Mr. Mazharuddin Siddiqui, Advocate for petitioner cited before us P L D 1976 Kar. 1084 where the provision of Article 199 of Constitution of Pakistan, 1973 was discussed portion from page 1089 is reproduced as under Having observed the fact that the present constitutional provisions in this field are of wider import we may now examine the question if such declarations can be made only with respect to acts of those persons who are located within the territorial limits of a High Court, or they can embrace even acts of persons located beyond their territorial jurisdiction if such acts are done within such limits. A reference in this connection to the language of part (ii) of sub clause (a) of Article 199(1) of the Constitution would clearly show that the conditions of territorial jurisdiction of the Court is relat able only to the act done and proceeding taken, and not to the location of the person who does such act or causes such proceeding to be taken. If exception is taken to an act done and proceeding, which is so done or taken, as the case may be, within the, territorial jurisdiction of this High Court, it will always have. jurisdiction to entertain a petition challenging the legality of such act or proceed. ing. For this purpose it will not be necessary that the person causing such act to be done or proceeding to be taken should also be located within such territorial jurisdiction. This is in contrast with the provisions of part (1) of the same sub-clause where a person, to whom a direction is sought to be made, has to be located with the territorial limits of the Court making such directions.

In the present case the act complained of against respondent No. 1, the Capital Development Authority is the act of demand for the payment of Rs. 95,990.32 made through a notice issued by respondent No. 2 the City Deputy Collector of Karachi. Apart from the fact that respondent 1 'o. 2 is located within the territorial limits of this Court the act complained of is designed to be taken within such limits. This Court, therefore, has always the jurisdiction to entertain a petition challenging the legal authority to do such an act."

The Karachi case was in fact mostly based upon consideration that the City Deputy Collector, Karachi had issued the recovery proceeding in pursuance of the demand issued by the Rawalpindi Development Authority and since the City Deputy Collector, Karachi was within the jurisdiction of High Court of Sind, therefore, it was decided in that case that the High Court of Sind had jurisdiction to entertain the petition and then make the required declaration. But the present case before us is distinguishable as no action is so far being taken at Karachi by any authority against the petitioner in pursuance of any illegal order passed by any authority.

4. Mr. Mazharuddin Siddiqui also relied upon P L D 1976 Pesh. 666 0975), where the Peshawar High Court had held that it had jurisdiction to entertain a petition against the Federal Land Commission in view of he fact that the Federal Land Commission was intending to perform functions in or within the territorial jurisdiction of such High Court, namely, Upper Tanawal Area. There is no such point of fact involved in this case as respondent No, I is neat trying to perform any function at Karachi or in respect of a matter at Karachi. Mr. Mazbar wanted to argue that since the petitioner had it's office at Karachi, therefore, assump tion of jurisdiction in respect of a matter of petitioner would amount to performing functions in respect of a matter at Karachi. This argument is not correct on the face of it as respondent No. 1 is dealing with the claim of an employee of petitioner who was working at Bahawal pur and respondent No. 1 is not intending to perform any function at Karachi.

5. The relevant provision of Article 9 of the Provisional Constitu tional Order, 1981, are that a person should be performing function within the territorial jurisdiction of the High Court if a direction was desired to issue to him [Art. 9 (1) (a) (i)], and/or alternatively any act A should have been done or any proceeding should be taken within the territorial jurisdiction of the High Court [Art. 9 (1) (a) (ii)], and then alone a writ can be issued by the High Court.

6. In the present case so far the respondent No. 1 is not performing any function within the jurisdiction of this Court, nor he has so far done any act or taken any proceeding which can be declared as without lawful authority and without any legal effect. Because so far only a process ha been issued against M/s. Jang Newspaper and nothing else has been done. The petitioner can raise their objections before respondent No. 1 and if aggrieved they can file an appeal. Petitioner has also the option to move the Lahore High Court for redress of his grievance if the petitioner can substantiate that the respondent No. 1 has no authority to proceed against the petitioner or that respondent No, 2 could not file a claim under Shops and Commercial Establishments Ordinance or that it was a B time-barred claim or that respondent No. 2 had no rights under the Pay ment of Wages Act. If the petitioner wants to rely on the Karachi Authority cited by his counsel, then it can, if so advised, wait and take the risk. And in case the decision of respondent No. I goes against it and the same is sought to be enforced against the petitioner at Karachi, through any official agency at Karachi, then it. may be possible, if at all, for the petitioner to move a petition before the High Court at Karachi seeking a declaration that the order made against him was without lawful authority in case he can successfully substantiate his allegations. But so fat the petitioner cannot seek any remedy from this Court.

Consequently, this petition is dismissed on the ground that this Court has no jurisdiction to entertain the same.

A. B. Petition dismissed.

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