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Constitutional Petition No.125 of 1981, decided on 1st October, 1986.

‑‑‑S. 17(1), proviso (a)‑‑Constitution of Pakistan(1973), Art. 199‑‑ Appeal against order of Authority under Payment of Wages Act, 1936‑ Deposit of amount payable under direction of Authority‑‑Deposit by cheque, held, would not constitute deposit within meanings of proviso (a) of S.17(1) of Payment of Wages Act, 1936‑‑High Court refusing to interfere with order of Appellate Court dismissing appeal on preliminary ground that amount deposited by cheque was not a deposit as per requirement of law‑‑‑Mere fact that a different and inconsistent view had been taken by Appellate Court in other case cannot be advanced as a ground for setting aside impugned order in exercise of writ jurisdiction.

Badshah Khan v. PECO Limited 1979 P L C 310 rel.

Col. Bashir Hussain and 10 others v . Land Acquisition Collector, Lahore Improvement Trust, Lahore and 2 others P L D 1970 Lah. 521; Nazir Ahmed v. King‑Emperor A I R 1936 P C 253; Ghulam Abbas v. State P L D 1968 Lah. 101; Muhammad Sharif v. Sh. Muhammad Rafiq Settlement and Rehabilitation Commissioner, Lahore and 2 others P L D 1968 Lah. 263; Chairman, Evacuee Trust Property, West Pakistan Lahore v. Muhammad Din and‑others P L D 1971 Lah. 217 and 1982 P L C 408 ref .

1984 P L C 1654 distinguished.

Ch.Rashid Ahmad for Petitioner.

M.A.Sayyed for Respondents.

Date of hearing: 1st October, 1986.

This Constitutional Petition is directed against the order of Presiding Officer Labour Court No. VI dismissing the appeal of the petitioner on the preliminary ground that the amount was not deposited with the Authority as required by proviso to clause (a), subsection (i) of section 17 of Payment of Wages Act.

The respondent No.1 is working as lamp man at the Kotri Railway Station. On 18‑2‑1981 the respondent No. 2 who is Commissioner Workman's Compensation and Authority under Payment of Wages Act allowed claim of respondent No. l for total sum of Rs.3,030. The petitioner was directed by respondent No.2 to deposit this amount for payment to respondent No.l. This was also stated to be the requirement of law as well for which the proviso to clause (a) of subsection (1) of section 17 was referred to, which reads as under:

Provided that no appeal under this clause shall lie unless the memorandum of appeal is accompanied by a certificate of the authority to the effect that the appellant has deposited with the authority the amount payable under the direction appealed against or.

The respondent No.3 was of the view that since the amount was deposited by cheque and not in cash, therefore, it was not deposited within the meaning of the above proviso. In support of its view the respondent No. 3 placed reliance on the case of Badshah Khan v. A PECO Limited reported in 1979 P L C 310 which was cited by the counsel of the respondent No.1 the relevant citation is as under:‑

From the perusal of the record I find that alongwith the memorandum of appeal a certificate dated 13‑12‑1976 of the Authority under the Payment of Wages Act was appended which is to the effect that a cheque for the amount had been received. The said certificate did not say that the amount had been deposited as required under law. It is well established that if law prescribed a particular mode of doing an act, it must be done in that mode to gain validity.

Mr. M. Asghar Jamil, the Chairman of Labour Appellate Tribunal who had given above ruling supported this view by referring to the following cases. The case of Col. Bashir Hussain and 10 others v. Land Acquisition Collector, Lahore Improvement Trust, Lahore and 2 others P L D 1970 La h. 521 wherein it was held: ‑

It is an accepted principle of law that if a statute requires something to be done and also prescribes the modes for doing it, the requirement of law can be fulfilled by doing the act, in the manner prescribed.

In the case of Nazir Ahmed v. King Emperor A I R 1936 P C 253 it was observed: ‑

"The rule which applies is a different and not less well‑recognised rule, namely, that where a power is given to do a certain thing in a certain way the thing must be done in that way or not at all, other methods of performance are necessarily forbidden.

In the case of Ghulam Abbas v. State P L D 1968 Lah. 101 it was held: ‑

It is well‑settled that where a power is given to a particular person to do a certain thing in a certain way the thing must be done in that way or not at all, other methods of performance are necessarily forbidden.

In the case of Muhammad Sharif v. sh. Muhammad Rafiq Settlement and Rehabilitation Commissioner Lahore and 2 others P L D 1968 Lah. 263 it was held: ‑

That when a particular act is directed by the legislature to be done in a particular manner it should be done by that and that manner alone.

In the case of Chairman Evacuee Trust Property, West Pakistan Lahore v. Muhammad Din and others P L D 1971 Lah. 217 it was held:‑

Whenever a statute limits a thing to be done in a particular manner it necessarily includes in self, a negative, viz. that the thing shall not be done otherwise.

Ch. Rashid Ahmed, who appeared for the petitioner has contended that it was a practice with the Railway that the amount was deposited through a cheque and not in cash. He has referred to two judgments of Mr. Mukhtar Ahmed Junejo the same Presiding Officer of the Labour Court one of which was reported in 1982 P L C 408, where the appeal was accompanied by a certificate that the amount was deposited within 30 days by way of a cheque with the authority which had accepted that cheque and Presiding Officer of the Labour Court had considered the deposit as valid. I have gone through the decisions. The mere fact that a different and inconsistent view had been taken by the respondent I No. 3 in other cases cannot be advanced as a ground for setting aside is impugned order.

Mr.Rasheed Ahmed has also cited the case of Hanifull reported in 1984 P L C 1654 which is a decision of this Court wherein my brother Mr. Justice K.A.Ghani had held that where the cheque for requisite amount was deposited within the period of limitation and accepted by the authority but encashed after expiry of the limitation period and certificate issued by Authority was deposited by the appellant on the same date, in the Labour Court, the argument that appeal is timebarred, was not valid. The finding of the Labour Appellate Tribunal to than effect even if alleged to be erroneous was refused to be interfered with by the High Court in constitutional jurisdiction. This ruling is also distinguishable from the facts of the present case, because it has been held clearly that such finding even it was erroneous cannot be interfered with the Constitutional Jurisdiction.

The respondent No.l is a pour lamp man and the employee of the Railway. The sum awarded to him is nut a very big amount.

I, therefore, do not propose to interfere with the finding of the respondent No.3, in, the constitutional jurisdiction of this Court, which is an equitable jurisdiction a5 well, even if it is erroneous. The Constitutional Petition is, therefore, dismissed.

A.E./5173/Lb Petition dismissed.

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