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Appeal No. 798 of 1974, decided on 2nd January, 1975.

-- Ss. 15 & 17----Court ordering deposit of disputed amount pending adjudication of application under S. 15-Order, held, void ab initio Appeal contested on plea of limitation-Bar of limitation, held, nut applicable to such beyond jurisdiction and ab initio void order-- Appeal, in circumstances, accepted and order of lower Court set aside.

P L D 1969 Lah. 1039, P L D 1962 Lah. 326 and P L h 1958 S C (Pak.) 104 rel.

Rana Irshad Muhammad for Appellant.

Mian Abdul Latif for Respondent.

This is an appeal under section 17 of the Payment of Wages Act, 1936, and has arisen in the following circumstances:

Abdul Hamid was a worker employed in the National Silk & Rayon Mills Limited, Lyallpur. He filed an application under section 15 of the Payment of Wages Act, 1936 for recovery of Rs. 1,937.50 on account of gratuity bonus, annual leave, etc., etc. The application was resisted by the employer. Issues were framed and the case was adjourned for evidence. On 9-8-73, the employer became absent and ex parte proceedings were taken against him. Ex parte evidence was recorded on the same date. On 16-8-73 a direction was, issued to the employer to deposit an amount of Rs. 1,937.50 in the Court.

On 9-8-73 an application was submitted by the employer to the effect that on account of some unavoidable circumstances his Representative reached late in the Court and before his arrival ex pare proceedings had already been ordered. It was requested that the ex parte orders may be set aside. Instead of disposing of this application the lower Court passed an ex parte order on 16-8-73, and therefore the application was taken up on 26-9-73. On that day the ex parte order was set aside but two conditions were imposed on the employer. The first condition was that the employer should pay cost to the tune of Rs. 50, and the second condition was that the employer should deposit the disputed amount in the Court which would be kept in trust. The case was adjourned to 1-10-73. On that day the proprietor was prepared to deposit the amount of cost but refused to pay the amount of Rs. 1937.50. The present appeal was filed on 19-11-73.

The first objection raised on behalf of worker was that the appeal was barred by time. In appeal, it was mentioned that the order of It.-8-73 was being challenged. In the grounds of appeal, it was mentioned that the said order was set aside by the lower Court on 26-9-73. Rana Irshad Muhammad, advocate, appearing on behalf of employer, stated that in the heading of appeal it was erroneously mentioned that the order, dated 16-8-73 was being challenged but the correct position was that the order-dated 26-9-73 was being challenged in appeal. He filed an application to the affect that it was a clerical mistake and that the appeal should be considered as an appeal against the order, stated 16-9-73 His argument was that ale question of limitation does not arise in this case; because the impugned order, dated 26th September 1973 was without jurisdiction.

I agree with the learned counsel of the employer that the order imposing condition on the employer that he should deposit an amount of Rs. 1,937.50, during the pendency of a case is ab initio void. The lower Court derives its authority to issue any direction under section 15 of the Payment of Wages Act. According to this provision the lower Court has to hear the applicant and the employer after such further inquiry as may be necessary, the Court is competent to issue direction to the employer to deposit any amount. Without adopting this procedure no direction could be issued by the lower Court, I, therefore, hold that the order of the lower Court, directing the employer to deposit the disputed amount to be kept in trust with the Court is void. There is abundant authority on the point that if an order is without jurisdiction and void then it needs 'not be formally set aside and no question would therefore arise of holding that the matter cannot be considered on merits on account of any bar of limitation.

For this proposition of law reliance can be placed on P L T) 1969 Lah. 1039, P L D 1962 Lab. 326 and I' L D 1958 S C 104. Once it is held that the impugned order is without jurisdiction the question of limitation does not arise. I bold tire appeal is within time.

For the above reasons, the appeal is accepted and the order dated 26-9-73 to the extent that the employer should deposit the amount of Rs. 1,937.50 is set aside. The effect would be that the application of the worker shall stand pending before the lower Court and it shall be disposed of on merits in accordance with law. No order as to costs.

Paraties are directed to appear before the lower Court on 13th January 1973.

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