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Writ Petition No. 3182 of 1975, decided on 21st October, 1978.

‑‑‑ Art, 199‑Writ jurisdiction‑Question involving factual inquiry Cannot be decided by High Court.

‑‑‑ S. 17 (1) and Constitution of Pakistan (1973), Art. 199‑‑Wages Claim of petitioner for arrears of pay and increment partly allow ed by Labour Court after certain concession allegedly made by petitioner but petitioner denying‑‑No material on record to con tradict Labour Court‑‑Held : Observations of Labour Court in such connection have to be given due weight‑‑Order of Labour Court not doing any harm to petitioner and dealt with sympathetic ally by all authorities below‑Petition dismissed.

Raja Said Akbar for Petitioner.

Said Ali Shah for Respondents.

Date of hearing ; 14th October 1978.

The petitioner was appointed as a work‑charge 'mistri' by the Divisional Superintendent on 1st March 1958. Later, vide order dated 30th January, 1959, he was appointed against a permanent vacancy until the appointment of a suitable senior 'mistri' under the same subordinate. It is stated by the respondent No. 1 that the petitioner worked against this post only uptil 28th November, 1960 when his services were terminated. He was, however, re‑employed on 15th March, 1964 and has been serving against that post throughout.

2. The petitioner, however, does not accept that position. His contention is that he was appointed permanently and as .he has through out served against that post, the respondent had no authority to deprive him of his pay and increments as claimed by him. The total amount was Rs. 6,872.46.

3. It is further submitted by the learned counsel that the petitioner had off and on demanded the arrears and bad been asking the authori ties to undo the wrong but as the same was not done, he made an application under section 15(2) and (3) of the Payment of Wages Act on 12th April, 1971. This application succeeded and the Commissioner vide his order dated 19th June, 1972 directed the respondents to pay a sum of Rs. 6,872.46. His request for an additional 10 times was, how ever, refused.

4. The respondent challenged this order in an appeal. It came up before the Labour Court, respondent No. 2, who vide his order dated 8th September, 1975, allowed the petitioner only a sum of Rs. 3,929.51 as arrears for the period from 28th November, 1960 to 14th March, 1964. The petitioner feels aggrieved against the order of the Presiding Officer, Punjab Labour Court‑I, and has filed the present petition.

6. The main objection of the learned counsel was directed against the following observations of the Labour Court as contained in the beginning of para. 5 :‑

"This is a common ground between the parties that the respondent was discharged from service on 28th November 1960 and he was re appointed on 15th March 1964."

The learned counsel denies that any concession was made by and on behalf of the petitioner and prays that the order based on that erro neous observation is without lawful authority.

6. I, however, do not find any merit in this submission. Apart from the fact that there is no documentary evidence or other material on record to contradict it, the observations of the Labour Court have got to be given due weight. There is also no reason why the Labour Court should have said so, if it had not been conceded. In any case, the ques tion whether the concession to that effect had been made or not cannot be decided in this Court as it will involve a factual inquiry.

7. Even otherwise I do not find any illegality in the order of the Labour Court. The petitioner's order of appointment in January, 1959, relied on by the petitioner himself (Exh. PW. 1/2), belies the contention that the petitioner had been appointed permanently by it or before. Para. 2 of the order reads as under :‑

"Muhammad Razzaq son of Allah Ditta, T.V. Works Mistri to work against the permanent vacancy until appointment of a suitable senior work Mistry under the same subordinate vice Mr. Aziz‑ur- Rehman promoted as A.L.O.W/OKR."

The petitioner had, therefore, been appointed temporarily as a stopgap arrangement. Consequently, onus lay on the petitioner to show that either from that date or from subsequent date he had been appoint ed permanently.

8. In his statement before the Commissioner as P. W. I petitioner admitted that he had been spared from 18th May, 1962 to 14th March, 1964, under the orders of the A.E.N. who according to him was not competent. He further stated that his juniors at that time were allow to continue. It appears that petitioner initiated this case on the a of document (Exh. P. W. 1/5). It was stated in that letter dated 24th September, 1965 that the non‑continuous service of work‑charge mistries be counted towards their increments. Petitioner was thus entitled to increment on the same pay scale. This is supported by petitioner's application (Exh. P W. 1/7). The right given thus was to count the uncontinuous period for the purpose of increment but not for recovery of pay or arrears for that period. I am, therefore, quite clear that the petitioner has rather benefited than been done any harm by the order of the Labour Court.

9. I may also mention here that the petitioner has been dealt with very sympathetically by all the authorities below. There is nothing on record to show that the petitioner had taken any steps against the alleged payment of reduced wages before 1968. Despite that fact the Commissioner accepted his explanation for condonation of delay and allowed him arrears without referring to any date or document.

For the reasons given above, I do not find any merit in this petition and the same is dismissed. There will be, however, no order as to costs.

Petition dismissed.

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