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Constitutional Petition No. S‑133 of 1984, decided on 16th October, 1985.
‑‑‑Ss. 1(3)(4) & 2‑‑Factories Act (XXV of 1934), S. 2(1)‑‑Words "establishment" and "factory", scope of‑‑Word "establishment" included commercial as well as industrial establishment but would not include "factory"‑‑Authority under Workmen's Compensation Act, held, had no authority to entertain grievance of employee against employer/ factory.
‑‑‑S. 15‑‑Provisional Constitution Order (1 of 1981), Art. 9‑ Constitutional jurisdiction exercise of‑‑Order of. Authority under S.15, Payment of Wages Act, 1936, being without jurisdiction, held, was passed without lawful authority and of no legal effect.
Agha Fakir Muhammad for Petitioner.
Hameed M. Siddiqui for Respondents.
Date of hearing 16th October, 1985.
The petitioner who is a private limited company has challenged the order of Commissioner for Workman's Compensation and Authority under Payment of Wages Act, Malir, Karachi, dated 15‑11‑1984 as being without jurisdiction and hence without lawful authority.
The factual background in which impugned order was passed is that the respondents Nos. 1 to 12 who are employed on daily wages in the factory of garments at Korangi Town of the petitioner moved an application before the Commissioner, Workmen's Compensation and Authority under Payment of Wages Act in respect of their claims under section 15 Payment of Wages Act, 1936. Notice of the application was issued to the petitioners who filed their objections which inter alia included tile objection with regard to want of jurisdiction on the part Of respondent No. 3. In view of the petitioners' objection the learned commissioner, Workmen's Compensation and Authority heard the objection with regard to jurisdiction as a preliminary issue. After hearing the arguments of both the parties he passed the impugned order.
I have heard the arguments of learned counsel for the parties and the petition was dismissed by short order, dated 16‑10‑1985 for reasons to follow.. Following are the reasons in support of the short order.
It appears from para. 1 of the impugned order that is soon as the petitioner raised objection that the average wages payable to the respondents per month exceed Rs.1,000 and as such the Payment of Wages Act was not applicable, the respondents took a stand that their application had been filed under West Pakistan Shops and Establishment Ordinance, 1969 and, therefore, the quantum of wages was not bar in their way.
The next contention of the learned counsel for the petitioners was that even Shops and Establishment Ordinance, 1969 is not applicable in this case. He submitted that since the respondents are employees of factory they are not governed by the said Ordinance which according to him only caters for the needs of establishments. In support of his argument he has relied upon a certificate issued by Joint Director, Labour and authorised Inspector, dated 29‑6‑1981 wherein the premises known as Messrs Smile Garments Limited situating within Korangi area has been declared as a factory as defined in section 2(j) of the Factories Act, 1934:-
As is clear from subsection (3) and subsection (4) of section 1 of the 1969. Ordinance the said Ordinance is applicable only to establishments. The word "establishment" is defined in clause (j) of section 2 of the said Ordinance in which commercial establishment as well as industrial establishment. Again the definitions of commercial establishment arid industrial establishment as given in clauses (e) and (o), respectively of the said section exclude 'factory' by express language. As such factory which has been defined in clause (j) of section 2 of the factories Act, 1934 is not an establishment within the meaning of the said Ordinance and consequently it is not governed by the sail Ordinance. Accordingly the learned Commissioner, Workmen's Compensation and Authority has no jurisdiction to entertain the H application of the respondents against the petitioner in respect of their factory. Thus, the impugned order being without jurisdiction has been passed without lawful authority and is, therefore, declared as such.
A.A.
Petition allowed.
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