M/S Dewan Salman Fibre Limited Vs Learned Inspector of factories etc

li1ThE rc>%\ AOflABAD 3EPICIL h.

MIS Dewan Salman Fibre Limited through Mr. Muhammcb I *I General Manager Administration & its AttorneylLegal Repres4

VERSUS

14 Learned Authority Under Payment of Wages Hazara Division at Haripur.

2.Learned Inspector of Factories,Haripur.

Government of Khyber Pakhtunkhwa through Secretary Labour Department, Peshawar.

4 Ohulam Aksar 5/0 Muhammad Din Supervisor Utility Department 5 Muhammad Riaz 8/0 Nawab Khan Supervisor Utility Department C Sardar Zahoor-ur-Rehman S/C Fazal Dad Supervisor Spinning Sector.

7 Nazir Chughtai 5/0 Feroz Din Operator Spinning Department Respondent No 4 to OCIO Mr. Khahd Abdullah Advocate District Courts Haripur.

.. . ..RESPONDENTS

WRIT PEtITION UNDER ARTICLE 199 OF THE CONSTITUTION OF

H ISLAMIC REPUBLIC OF PAKISTAN 1973.

CJ to be TFu

EXAMINER

Respectfully Sheweth:-

05 DEC

Bench.

Authorized tJnder$e. 75F

That Petitioner is a Public Limited company incorporated under the Company Laws of Pakistan having its registered office at 1 1 4slamabad. Petitioner is affiliated . with . Karachi, Lahore and

Judgment Sheet

IN THE PESHA WAR HIGH CO

AI3BOTTABAD BENCH.

JUDICIAL DEPA .1? T1vIJNT

W.P.No.240-A!201 1.

JUDGMENT

Date of hearing ... ... 07.11.2017......................................................... Petitioner by Mr. Abdur Rehman Qadir, Advocate.

Respondents by Mr. Yasir Zahoor Abbasi, Assistant Advocate General.

SY.ED AItSHAI) ALT, J:- The petitioner seeks the constitutional jurisdiction of this Court praying that:- "It is, therefore, respectJi.iily prayed that on acceptance of instant writ petition the impugned ex-parte direction dated 09.05.2009 as well as the order dated

I

15.02.2011 may graciously be set-aside with direction to the Learned Authority/respondent No. 1 to decide the case a fresh after affordirg full opportunity of Jj e 1 . rd f petitioner, with iIdei X AMINER cost.

It is further . prayed that the execution 05 0cC 2U1/ ..', I jrocdiig s pending before the Respondent PeshawarHigh CoudAtd No. I may graciously he suspended till the !!Prized Iinderse: 73E final disposal of instant writ petition.

F

H.

2.Essentialfacts leading to filing of instant petition are that the petitioner is a private limited company and has its manu!actui ing unit in Hattar. '1 he Inspectot of Fcories, Haripur, on 02.05.2009 flIed an

application/claim under Section 15 (2) of the erstwhile Payment of Wages Act, 1936, before the Authority

established under Payment of Wages Act, 1936, in respect of the workers of the petitioner company. The said claim was accompanied with a list of workers/employees of the petitioner company. The total number of employees of the petitioners' company, as mentioned in the claim is 1732.

On 02.09.2009, a notice was issued to the petitioners.

Pursuant to the said notice, one Tariq Nazeer, allegedly a clerk of the petitioners' company, who was working in its manufacturing unit 1-lattar, appeared before the Authority and stated that the Director Operations of the petitioner company has been arrested by the District Administration under Sectiôh 3 of West Pakistan Maintenance of Public Order Ordinance 1960 ("MN)") as there was a dispute relating to the payment of salaries of the employees.

Similarly, the Labour Officer/Inspector of Factories filed flU EXfl9INER ication before the Authority wherein it was nieñtioned that one Chaudhary Ayub (Director PeshaWat

Operations) of the company is overall responsible person for administration of the accounts as well as for payment bf wages of, the employees of the petitioner company.

AccOi-dingly, on 06.05.2009, the Authority issued directions to produce Chaudhary Ayub before the Authority on 09.05.2009. On 09.05.2009, said Chaudhary Muhammad Ayub (Director Operations) was produced

before the Authority and his statement was recorded wherein he has admitted that the employees were not paid the salaries for the month of March, however, non- payment of salary is not his responsibility and payment of salaries was the responsibility of the Chief Executive through HR Administration of the company. On the said date, i.e. 09.05.2009, the following directions were issued by the Authority:-

"67i: Mohammad Ayub Director Operation Respondent No. 2 present through Police and claimant Inspector of Factories Haripur also present. Respondent No. 1, despite of notice, not prespnt. He is p/aced ex-parte.

Respondent No. 2 submitted reply statement + in which he fully admitted the claim.

Sta/ement Of claimant and respondent No. 2 were recorded. Respondent No. 2 in his statement also admitted the claim.

Keeping in view the admission of the claim by Respondent No. 2, who is incharge of the d to be True copy respondent Company, there are nothing in cert e EXAUNER dispute which rquire further evidence. Therefore, , the claim submitted by the ü 5 DECOil / claimant is hereby accepted. w h ench., The, respondents are hereby directed to peshl"Na " Authothed Under Se: 7vid 0rdns' depoit th c/aim aniunt of Rs. 1,84,35,804/- with this Authority forthwith for onward pa ymeni to affected workers.

Announced in open Court with no order as to cost. File be consigned to R.R after necessary

F

Accordingly, Inspector of Factories Haripur, filed Fl 1+

an application for execution of the directions for which notice was issued to the present petitioners. Pursuant to the notice, the present petitioner'filed an application for setting aside ex-parte directions on 12.08.2009. In the said

I •L

El

application it was claimed that they came to know about the impugned directions on 03.08.2009. Inspector of Factories, Haripur, filed reply to the said application and after hearing both the parties, the Authority vide impugned order dated 07.11.2009, dismissed the application of the petitioner. The said order was challenged before this Court through Writ Petition No. 543 of 2009. The said petition finally came up for hearing on 11.01.2011 wherein following order was passed:-

"In view of the above, this writ petition is allowed The impugned order dated 07.11.2009 passed by respondent No. 2 is set- aside and case/application fIled for setting aside exparte order dated 09.05.2009 is remanded back to Commissioner for Welfare and Compensation (Authority under the Payment of Wages Act, 1936) District Haripur for decision fresh after affording d to be trw oppoftunity to both the parties for producing EXAWrER their respective evidence and hearing in accordance with law. The application shall

C

z DEC VP All be deemed to be pending and shall be decided r CiC E.A within a period 0/one month positively. btier c. T

After remand of the case, the Authority recorded

H

the statements of the parties and through impugned order dismissed theap1kation for setting aside the directions dated 09.05.2009

Arguments heard and record perused.

The Authority in its impugned order has

stated that the present petitioner was placed ex-parte vide

order dated 09.05.2009 and that one Chaudhary Muhammad Ayub, who was the manager at the relevant time, was arrested under section 3 MPO by the local Administration and he was produced before the Authority while he was in custody. 'I'he Authority has also stated that Chaudhary Muhammad Ayub was not notified manager under the Factories Act, 1934. The record further shows that a long list of employees and their claim was provided to the Authority. In the said list various categories of the employees were mentioned. It has also been brought to our notice that all the employees mentioned in the list are not workers. The manner and mode in which Chaudhary Muhammad Ayub was produced before the Authority and his statement was recorded clearly shows that a fair aw1060fl $

opportunity of hearing and defense was not provided to the 00EC 20Th petitioner. It is further evident from the record that the cordns $ :1

present petitioner company was not served at the address

IL I

of its registered office, as at the relevant time the operation

I H

of the Factory was suspended i.e. the unit was closed and the only Director Operations of the company was in police custody. Even otherwic, the entire proceedings were carried out in haste and in a slipshod manner, thus, the principle

I

of natural justice has been seriously eroded. Indeed, the claim, as mentioned in the petition, required scrutiny and

verification from the record maintained by the petitioner company. Any authority or state functionary, performing judicial or quasi-judicial functions, who has been given an authority to administer justice and decide disputes between the parties, it is the onerous duty of that authority to provide meaningful, purposeful and effective hearing to both the parties and after giving opportunity to both the parties to put forward their claims, decide the dispute by independently applying its mind to the facts, evidence and circumstances of the case. It is a settled principle of law that justice should not only be done butit should be seen that substantial justice has been done. 1-lowever, in the present case, no opportunity of meaningful hearing has

I -

edtobe° Copy been provided to the petitioner hence, the direction in mpugned order are perverse and illegal. The order o 5 DEC mi impugned gives clear impression of an offhand and whimsical order which might be coh-ect in its result, but is

H

deficient in its contention. It was held in the case of MuI,w-nmad Arnin Muhammad Bashir Ltd. Vs Govt of Pakistan & others (2015 SCMR 630), by the august C' Supreme Court of Pakistan:-

"The exercise of any discretionary power nust be raiional and have a nexus with the objecriveH of the underlying legislation. Arbitrariness is the antithesis of the rule of Hi 1aw.; The legislature, when it confers a wide It •- .• • - •

• • I -

I

ranging power, must be deemed to have ass timed that the power will be, firstly, exercised in good faith, secondly, for the advancement of the objects of the legislation, and, thirdly in a reasonable manner. Section 24A of the General Clauses Act, 1897, reiterates the principle that statutory power is to be exercised "reasonably, fairly, justly and for the advancement of the purposes of the enactment" and further clarUles that an executive authority must give reasons for its decision. An)) action by an executive authority which is violative of these principles is liable to be struck down. No other view is permissible."

Similarly, in Dr. Zafèr Ahined Vc Mst Sizanisa and others (PU) 2002 Karachi 524), honourable Sindh I-ugh Court in para 10 of the judgment has held The last sentence in the above order manfestiy discloses the indfferent attitude of the learned Family Judge in dismissing the

I

application for setting aside the cx parte order simply on the ground that cx parte ci to be True Copy order had already been announced. Such a

EXAMINE

slipshod and rough order is to be refrained from while performing sacred duo; ofjudicial occ 2 di.spensation. Not only a Judge but by way of awaV introduction of new provision in section nzed Un derSC?S v . 24-A('2) qf the General Clauses Act every H authority, office or person making an order tinder the powers conferred by or under any enactment is required to assign/record reasons for passing the order. Indeed, if the last mentioned sentence is the only ground for passing the order dated 2 5-5-2000 it can irresistibly be opined that it is no 'reason' in the eye of law. An order shall be a speaking -lorder and more particularly while dealing with substantive rights of parties a curs'ory in' and a grothidless order 'vithout assigning reasons cannot be conceived, nor would it be .&' treated as a legal one.

H, I

Ii '. H •' .

Eq

S. 1-lence, through the impugned order, the Authority has deprived the petitioner of its right of reasonable opportunity of hearing. Besides, the order impugned is neither a speaking order nor the proceedings have been conducted in a fair and impartial manner. The said impugned order is not sustainable in the eyes of law and as such cannot be upheld under any cannon of law.

The ex-parte order cannot be upheld unless, if from the record it appears that, the conduct of the present petitioner is contumacious and unbecoming. In the present case, when there is nothing on the record to establish that the present petitioner has received any summon or notice at its registered office and Chaudhary hammad Ayub was not authorized/notified manager, .t • / then it was an appropriate case for setting aside ex-parte h ccU t

•Z'

PoS 1or der and the Authority had jurisdiction under Rule 8 of the Payment of Wages (Procedure) Rule 1937. The application was not time barred and hence, the Authority has incorrectly held that the application was time barred.

Even otherwise, the fare and saft administration of justice demands the decision of the cases on merits • always be encouraged instead of non-suiting the litigants • on technical grounds including limitation.

6.In view of the above, the present petition is allowed. Impugned order• dated 09.05.2009 and 15.09.2011 are set aside. Before parting with this judgment, we would like tortote that an amount of Its.

4.5 million has been paid and disbursed to the workers which has been admitted by the counsel appearing on behalf of respondents no. 4 to 6. The learned counsel has stated that his clients have received their dues, herice, the Authority shall decide the claim of other employees strictly in accordance with law.,

Announced Dt.07.11.2017. JU9GE Aftab/*

frkifledt0 JUDGE EXAM1tEI

ü5 DEC PeshaWaT High Court

Jusiices Sjt'd Ali-ar Shah and SveI .1shatb All