Find a Lawyer

(a) Payment of Wages Act (IV of 1936)‑‑

‑‑‑Ss.3 & 15‑‑Payment of dues‑‑Payment of dues, held, was responsibility of employer and those other persons specified in proviso to S.3 of Act IV of 1936‑‑Authority was bound to hear employer or other persons responsible for making payment before deciding claim of person employed‑‑Proceedings contemplated under S.15 of the Act could only be between person employed and employer or such other persons as specified under S.3 of the Act.

(b) Payment of Wages Act (IV of 1936)

‑‑‑Ss.3 & 15‑‑Payment of wages‑‑Petitioner not employer of respondent's husband‑‑Application filed by employee respondent's husband before Authority was not competent‑‑Order passed by Authority against petitioner for payment of wages (gratuity) to employee, was declared to be without lawful authority.

Karachi Dock Labour Board v. Ahmed and 2 others 1982 P L C 36 rel.

S.A. Sarwana for Petitioner.

S.A. Channa for Respondent.

Date of hearing: 3rd November, 1986.

This petition calls in question the order passed by the Authority under the Payment of Wages Act, dated 26‑4‑1986, directing the petitioner to pay Rs.10,600 as gratuity for 20 years to the legal representative of one Ibrahim, a dock worker.

2. The facts of the case are, that the petitioner is a statutory corporation, and was established under clause (4) of the Karachi Dock Workers (Regulations of Employment) Scheme, 1973. This scheme was framed by the Federal Government in exercise of powers conferred upon it by section 3 of the Dock Workers (Regulation of Employment) Ordinance, 1973 which was promulgated to provide for regulation of the employment of dock workers to ensure their efficient performance, expeditious and economic turn around of ships and vessels and speedy transit of goods from the port. This Ordinance was later replaced by an Act in 1974. Looking at the scheme framed under the Ordinance of 1973, the Karachi Dock Labour Board, the petitioner in this case, was constituted mainly for the purpose of regularity of employment of dock workers and to secure compensation for them. As to the relationship between the petitioner and the dock workers, Mr. S.A. Channa, learned counsel for the respondent has very candidly conceded that the petitioner is not the employer of such workers.

3. According to the case of the petitioner, on or about 14‑5‑1973, one Ibrahim son of Bawla, husband of the respondent No.1 in this case, was verified as a dock worker and his name was put on the Register. Prior to such verification, he had been working with the respondent No.4 which was doing business of Stevedoring. This Ibrahim son of Bawla is said to have worked at the port only for one day in June 1974 and one day in November 1975. Thereafter, on or about 1‑6‑1976 he applied for retirement and his application was accepted. According to the petitioner, he was not entitled to any payment according to a Settlement, arrived at on 26‑3‑1973, to which besides various persons doing stevedoring business at the port, the Dock Workers' Union and the petitioners were a party, and according to clause (10) of this settlement, a worker was entitled to payment of gratuity, the amount of such gratuity depending upon his age at the time of verification, provided that he should have been regularly taking "worthy" under the rotation system from the petitioner. Thereafter, on 12‑9‑1979 Ibrahim filed an application under section 15 of the Payment of Wages Act (hereinafter referred to as "the Act"), for payment of gratuity to him for 20 years' service amounting to Rs.10,600 and other retirement benefits amounting to Rs.8,000. The application was resisted by the petitioner on various grounds, one of which related to the jurisdiction of the Authority under the Payment of Wages Act (hereinafter referred to as "the Authority") to entertain the application with the result, that the application was rejected by the Authority by order dated 27-9-1984. Ibrahim thereafter filed appeal before the learned Third Sind Labour Court, which by its order, dated 12‑10‑1985, allowed the appeal and remanded the case to the Authority for disposal on merits. It may be pointed out that during the pendency of his appeal, Ibrahim died whereafter his widow Zulekha Bai, the first respondent in this petition, was joined as a party. The case then proceeded before the Authority which consequently passed the impugned order.

4. Before this Court, the main contention of Mr. S.A. Sarwana, learned counsel for the petitioner has been that the Authority had no jurisdiction to entertain the application as the petitioner was not the employer of the first respondent's husband. Support has been sought from an earlier decision of this Court in Karachi Dock Labour Board v. Ahmed and 2 others 1982 P L C 36 wherein my learned brother Sajjad Ali Shah, J. after referring to various provisions of the Karachi Dock Workers (Regulation of Employment) Scheme, 1973 held as under:‑

"It may be pointed out that 'Industry' is defined under section 2 of the Industrial Disputes Act, 1974 as meaning any business, trade undertaking, manufacture or calling of employers and including any calling, service, employment, handicraft or industry occupation or avocation or workmen. It may also be mentioned here that the provisions of the Dock Workers (Regulation of Employment) Act, 1948 (applicable in India) and Scheme framed thereunder are similar to the provisions of Dock Workers (Regulation of Employment) Act, 1974 and scheme framed thereunder (applicable in Pakistan). The upshot of discussion made above is that the Dock Labour Board is not an employer of the Dock Workers and also is not an industrial establishment as such the claim filed by respondent No.l before authority appointed under the Payment of Wages Act against the Chairman, Karachi Dock Labour Board was not competent and consequently both the orders impugned in this Constitutional petition are hereby set aside to be without lawful authority."

5. Although I have no hesitation in respectfully agreeing with the views expressed in this judgment, but Mr. S.A. Channa, learned counsel for the first respondent has argued that since according to section 15 of the Payment of Wages Act (hereinafter referred to as "the Act"), the Authority has been empowered to hear and decide all claims arising out of non‑payment of gratuity, the Authority had jurisdiction to decide the claim. I might have agreed with Mr. Channa, but for section 3 and subsection (3) of section 15 of the Act. Both sections 3 and 15 of the Act, for the sake of convenience are produced as follows:‑

"3. Responsibility for payment of wages.‑‑

Every employer (including a contractor) shall be responsible for the payment to persons employed by him of all wages required to be paid under this Act:

Provided that, in the case of persons employed (otherwise than by a contractor)

(a) in factories if a person has been named as the manager of the factory under clause (e) of subsection (1) of section 9 of the Factories Act, 1934 (XXV of 1934),

(b) in industrial establishments, if there is a person responsible to the employer for the supervision and control of the industrial establishment.

(c) upon railways (otherwise than in factories), if the employer is the railway administration and the railway administration has nominated a person in this behalf for the local area concerned,

the person so named, the person so responsible to the employer or the person so nominated, as the case may be, shall be responsible for such payment. If the persons are employed by a contractor, the contractor is responsible for the payment of wages."

15. Claims out of deductions from wages or delay in payment of wages and penalty for malicious or vexatious claims.‑‑(l) The Provincial. Government may, by notification in the (official Gazette) appoint any Commissioner for Workmen's Compensation or other officer with experience as a Judge of a Civil Court or as stipendiary Magistrate to be the authority to hear and decide for any specified area all claims arising out of deductions from the wages (or non‑payment of dues relating to provident fund or gratuity payable under any law), or delay in the payment of wages, of person employed or paid in that area.

(3) When any application under subsection (2) is entertained, the authority shall hear the applicant and employer or other person responsible for the payment of wages under section 3, or give them an opportunity of being heard, and, after such further inquiry if any as may be necessary, may, without prejudice to any other penalty to which such employer or other person is liable under this Act, direct the refund to the employed person or if the applicant is one of the heirs of an employed person the payment to such applicant, of the amount deducted, or the payment of the delayed wages, together with the payment of‑such compensation as the authority may think fit, not exceeding ten times the amount deducted in the former case and not exceeding ten rupees in the latter:

6. A perusal of section 3 of the Act leaves no ambiguity that it makes the employer responsible for payment of such dues of the person employed as are specified in section 15(1). Besides the employer certain other persons have also been made responsible and such persons have been specified in the proviso to section 3. Section 15(3) makes it further incumbent on the Authority to hear the employer or other person made responsible for payment of Wages under section 3 of the Act before deciding the claim of the person employed. Although section 15(1) empowers the Authority to determine claims of the persons employed relating to certain dues including those arising from non‑payment of gratuity to such persons, but the provisions of the Act nowhere indicate that such claims can be preferred against persons other than the persons referred to in section 3 of the Act. Mr. Channa has, however, vehemently argued that section 15 should be construed independently and without reference to section 3 of the Act. The learned counsel has also referred to section 19 of the Act which reads as follows:

"19. Power to recover from employer in certain cases. When the authority referred to in section 17 is unable to recover from any person (other than employer) responsible under section 3 for the payment or wages and amount directed by such authority under section 15 or section 17 to be paid by such person, the authority shall recover the amount from the employer of the employee person concerned."

A bare perusal of section 19, indicates that it cannot be interpreted independently of section 3 of the Act. No doubt, the section) provides that recovery of dues can be made from the persons other than the employer, but again reference to section 3 of the Act in section 19 clearly indicates that the persons other than the employer referred to therein are the same as specified in section 3. Furthermore, the use of the expression "persons employed" in section 15 of the Act is also of some significance. Such expression also appears in the definition) of the term "wages" as given in section 2 of the Act which is as under:

"(vi). Wages means all remuneration, capable of being expressed in terms of money, which would, if the terms of the contract of employment, express or implied, were fulfilled, by payable, whether conditionally upon the regular attendance, good work or conduct or other behaviour of the person employed or otherwise, to a person employed, in respect of his employment or of work done in such employment, ... ... ... ..."

The use of such expression in section 15 of the Act and the above definition further indicates that the proceedings contemplated under section 15 can only be between the person employed and his employer.

7. There is no contest on the point that petitioner is not the employer of the dock workers as Mr. S.A. Channa has very frankly conceded to that effect. Mr. Sarwana has drawn my attention to the definition of the word "employer in the Dock Workers (Regulation of Employment) Act, 1974, wherein the said term in relation to a dock worker has been defined as "a person by whom a dock worker is employed or to be employed". In any case, it has not been dispute by Mr. Channa that the employers of the dock workers in the instant case are the stevedores concerned and not the petitioner.

8. The upshot of the above discussion is that the proceedings before the Authority, which may be initiated by the person employed can only be against the employer of such person or such other person as has been specified in section 3 of the Act.

9. I am, therefore, clearly of the opinion that the application file by the first respondent's husband before the Authority was not competent as the petitioner was not the former's employer, and consequently the impugned order has been passed without lawful authority. It ma however, be pointed out that if according to the Settlement, reference to which .has been made earlier in this judgment, the petitioner i liable for payment of dues to the respondent No.1, resort can be haul by her to the civil Court. I, therefore, accept this petition and quasi the impugned order, dated 24‑8‑1986. There will, however, be no order as to costs, in view of the questions involved in this petition.

M.Y.H./K‑9/K

Petition accepted.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.