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Writ Petition No. 3493 of 1978, decided on 15th June., 1983.

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

‑‑S. 15‑Delayed wages‑Wages admittedly due and undisputed held up or postponed for some reasonable but not too long a period due to financial difficulties, accumulation of stock ; non‑receipt by company of its bills or internal audit snags, held, to _be delayed wages.

Chaman Lal Ishwar Lal Mehta v. Junior Inspector of Factories A I R 1942 Bom. 273; Chief Inspector of Factories, U.P. v. V.K. Modi A I R 1952 All. 804 ; Simpalax Manufacturing Co. Ltd. v. Allahuddin A I R 1945 Lah. 195 ; K. P. Mushran v. B. C. Patil A I R 1952 Bom. 235 ; Upper India Coupar Paper Mills Co. Ltd. v. I. C. Mathur A I R 1959 All. 664 and Anant Ram v. District Magistrate A I R 1956 Raj. 145 ref.

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

--‑‑Ss. 7 (2) (b) & 15‑Railway Establishment Code, r. 2044 Constitution of Pakistan (1973), Art. 199‑Deducted wages‑Railway employee (clerk) ‑ Order of transfer of employee from J to L malicious illegal and tended to destroy his seniority at placing him junior most in same category at L‑Orders of transfer set aside by civil Court‑Railway Authorities placing employee on leave due and allow ing to draw salary accordingly‑Railway Authorities making deduction from employee's wages by exercising power under rule 2044‑ Such power, held, not available to Authority, employee being never dismissed, removed or suspended‑Deductions made as such, held, unauthorised apart from being contumacious and in violation of decree by civil Court‑Deduction for absence from duty is one where absence of employee voluntary and not where employer prevents employee from performing his duty though employee willing to perform same‑Employee not at fault being prevented by Railway Authorities to perform duty‑Grant of compensation at four times wages matter within jurisdiction of Payment of Wages Authority and Appellate Labour Court not interfered with by High Court being neither illegal nor perverse but fully justified.

Muhammad Aslam Rose v. Federation of Islamic Republic of Pakistan P L D 1972 Lah. 756 ; Divisional Superintendent, P. W. R., Karachi v. Bashir Ahmad P L D 1973 S C 589 ; Divisional Superintendent, N. W. R., Lahore v. Muhammad Sharif P L D 1963 S C 340 and Ghulam Mustafa Shah v. Pakistan P L D 1963 S C 268 ref.

The Divisional Superintendent, N: W. F. P., Lahore v. Inamul Haq Buts P L D 1952 Lah. 108 ref.

(c) Payment of Wages Act (1V of 1936)‑--

S. 15‑Limitation Act (1X of 1908), Ss. 14 & 29‑Petition under S. 15, Payment of Wages Act, 1936‑Section 14, Limitation Act, 1908 applicable in so far as and to extent to which not expressly excluded -Words "or applications" in S. 29 (2) (a), Limitation Act, 1908, held, refer to any application made before persona designata such as Authority constituted under Payment of Wages Act to deal with claims of employee‑Employee pursuing his remedy in good faith before Authority under Payment of Wages Act at and on direction by Labour Appellate Court filing his application before proper Authority at G‑Authority at G allowing employee benefit of S. 14, Limitation Act, 1908 for good and valid reasons not contested before High Court‑ Objection to computation period of limitation spent before wrong forum, held, has no basis in law and rejected.

Imperial Bucket Company v. S. M. Bhagwati Basak A I R 1954 Cal. 520 rel.

Noor Ali v. Kanpur Omni Bus Service Ltd. A R I 1955 All. 707 ref

(d) Payment of Wages Act (IV of 1936)‑---

--‑‑S. 15 (2) first proviso, as amended by Act XVII of 1973 Constitution of Pakistan (1973), Art. 199‑Application for deducted wages‑ Limitation ‑ Employer neither admitting nor denying employee's claim relating to disputed period and finally passing order placing him on leave due and failing to decide his' departmental appeal because of contempt proceedings arising out of suit pending in civil Court‑Employee, held, had right to have his departmental appeal decided before preferring claim under Payment of Wages Act because dispute related to substantial question whether employer had to be treated as on leave due or on duty which alone employer had right to decide‑Fact that Employer taking five years to finally decide to treat disputed period as‑ spent on duty by employee and to pay his wages due without deciding departmental appeal constituted sufficient justification for Authority under Payment of Wages Act under second proviso to subsection (2) of S. 15 of Payment of Wages Act to receive time‑barred claim‑Question of limitation having been competently decided by Authority under Payment of Wages Act in its original jurisdiction or Labour Court in its appellate jurisdiction interference declined by High Court in constitutional jurisdiction.

Warcha Salt Mines v. Presiding Officer etc. 1981 P L C 373 ref.

F. A. Khan v. Government of Pakistan P L D 1964 S C 520 rel.

(e) Constitution of

Pakistan

----Art. 199 ‑ Constitutional petition‑Admitting order showing petition admitted to consider limited legal point‑Question of limitation decided by lower court not interfered with.

(f) Payment of Wages Act (IV of 1936)‑---

‑--‑S. 1 (4)‑Factories Act (XXV of 1934), S. 2 (j)‑Words "employed in any factory" in S. I (4) of Payment of Wages Act, held, do not mean employment as "worker" or in any manufacturing process but one employed in any capacity in premises or factory provided that such factory falls within definition of S. 2 (j) of Factories Act, 1934‑View that employee working in factory must fall within definition of "worker" as provided in S. 2 (h) of Factories Act in order to take advantage of Payment of Wages Act, held further, erroneous view of law.

Hindustan Journals Limited v. Denish A. R. Awasthi A I R 1957 Madh. Bha. 125 and V. T. Ramaswami v. Messrs Gimini Studios A I R 1968 Mad. 49 rel.

(g) Payment of Wages Act (IV of 1936)‑--

--‑‑Ss. 1 (4) & 3 (4)‑‑Persons employed in clerical capacity by Railway Administration‑Payment of Wages Act and rule of stare decisis, held, applicable‑Words "persons employed (otherwise than in factory) upon any Railway by Railway Administration" in S. 1 (4). held, are used in contradistinction to "Persons employed in any factory" occurring in subsection (4) and, therefore, persons employed in clerical capacity by Railway Administration covered by Act‑Words "upon any railway" not restricted to railway track Payment of Wages Act applicable not only to employees engaged specifically upon railway track but also to other employees of administration.

Akbar Ali and others v. The General Administration Officer, Pakistan Railways, Lahore W. P. No. 472 of 1978 distinguished. Union of India through General Manager, Northern Railway v. Mohan ‑Singh Chaudhri 1970 Lab. & Ind Cases 165=1 L R 2 Pb. 439 rel.

(h) Civil Servants Act (LXXI of 1973)‑--

‑‑S. 2 (1) (b)‑Factories Act (XXV of 1934), S. 2 (h)‑Workmen's Compensation Act (VIII of 1923), S. 2 (n)‑Service Tribunals Act (LXX of 1973), S. 2‑ Constitution of Pakistan (1973); Art. 199 Clerk in Railways administration not "worker" or "workman" as defined in Factories Act, 1934 or Workmen's Compensation Act, 1923‑Such employee covered by definition of "Civil Servant" and remedy to his grievances as to terms and conditions, of service, held, lay with Federal Service Tribunal‑‑Railways at no stage taking up objection as to jurisdiction of Authority under Payment of Wages Act and Labour Appellate Court and rather expressly conceding, their jurisdiction to deal with case‑Having permitted them to usurp jurisdiction which they did not possess Railway, held cannot turn up to have their decisions quashed as then employee would be left at mercy of limitation which has long expired‑Conduct of Railway right from start to finish being questionable and no objection ' regarding jurisdiction raised in Constitutional Petition and objection is taken up only in arguments without filing application to amend such ‑y petition which was admitted only to consider limited legal question, case not fit for exercising discretion by High Court in favour of petitioner to quash impugned order.

Ghulam Mohi‑tid‑Din v. Chief Settlement . Commissioner P L D 1964

S C 29 and Hafazuddin v. Mian Khadim Hussain P L D‑ 1965 Lah. 439 rel.

Muhammad Yousaf Ch. for Petitioner.

Respondent No. 3 in person

Nemo for Respondents Nos. 1 and 2.

J. V. Gardner (on 15‑5‑1983) for Respondent No. 5.

Dates of hearing : 15th, 22nd and 24th May, 1983.

This is a constitutional petition filed by the Assistant Works Manager (B), Pakistan Railways, Jhelum, petitioner, calling in question the judgment of the Authority appointed under the Payment of Wages Act, Gujrat, dated 16‑9‑1976, and the judgment of the Punjab Labour Court No. 6, Rawalpindi dated 16‑2‑1978 passed in appeal.

2. The brief facts of the case are that in 1967 Abdul Majid Khokhar, respondent No. 3, was working as Clerk Grade II in the Bridge Workshop, Pakistan Railways, Jhelum. On 12‑9‑1967 he fell sick and went on sick leave. During his illness, he received letter of the Railway Department dated 1‑9=1967, transferring his services to Loco Shops, Mughalpura, Lahore. Respondent No. 3 objected to the transfer on the ground of its being mala fide as it was made with the fraudulent object of defeating his chances of promotion, inasmuch as he was senior most at Jhelum, whereas he would become junior most at Lahore. On 25‑9‑1967, respondent No. 3 left the Railway Hospital and proceeded to his village for further treatment. The Railway Department, however, did not renew his leave from that date. On 18‑10‑1967, respondent No. 3 was relieved from his duty at Jhelum, so that he could take over his duties at Lahore. However, respondent No. 3 being ill and under medical treatment in his village, could not take up his duties at Lahore, but on 27‑1‑1968 filed a declaratory suit at Lahore challenging his transfer. On 31‑7‑1968, respondent No. 3 reported for duty at Jhelum, after recovering from his sickness. He was not given any duty, but his case was referred to Lahore for further orders. On 7‑10‑1968, the Civil Court directed status quo to be maintained by the parties. On 23‑12‑1969, respondent No. 3 filed a petition under Order XXXIX, rule 2(3) and section 151, C. P. C. for contempt proceedings against certain senior officers of the Railway for not permitting him to resume duty. On 28‑6‑1972, the civil Court decreed the suit in favour of respondent No. 3. On 31‑8‑1972 the Railway Headquarters directed the Jhelum authorities to allow respondent No. 3 to resume duty. On 1‑9‑1972, respondent No. 3 resumed his duty at Jhelum and demanded his arrears of salary. Since respondent No. 3 was able to prove his illness upto 30‑7‑1963, he was paid his salary, till that day. On 22‑2‑1973, the Railway Department treated the period of his absence from 31‑7‑1968 to 31‑8‑1972 as on leave due. Being aggrieved by the said order, respondent No. 3 preferred a departmental appeal against the same on 7‑7‑1973 before the Vice‑Chairman, Railway Board. Notwith standing. a number of reminders, no decision was taken on the respondent's appeal, as contempt proceedings filed by the respondent against the Railway Authorities in the civil Court were still pending, though the civil suit had been decided. On 30‑7‑1973 the Vice‑Chairman, Railway Board, reiterated his earlier stand that he could do nothing as the case was under trial in the Court of law. Thoroughly despaired by the attitude of the Railway Authorities, respondent No. 3 on 19‑8‑1974 filed an application before the Authority under the Payment of Wages Act, Lahore, demanding arrears of his wages from 31‑7‑1968 to 31‑8‑1972 and compensation for delay in its payment. On 7‑7‑1975, the Authority ordered the payment of Rs. 15,781 being his salary dues for the period 31‑7‑1968 to 31‑8‑1972. Being aggrieved by the said decision, the Pakistan Railways preferred an appeal before the Punjab Labour Court, Lahore, which accepted the appeal on 18‑2‑1976, set aside the judgment of the Authority under the Payment of Wages Act and returned the petition to respondent No. 3 for presentation before the proper forum at Gujrat. On 4‑3‑1976; respondent No. 3 again filed an appli cation before the Authority under the Payment. of Wages Act, Gujrat. Realiz ing that the claim of respondent No. 3 would be accepted, on 27‑8‑1976 the Pakistan Railway paid the sum of Rs. 17,650.68 to respondent No. 3, being salary due from 31‑7‑1968 to 31‑8‑1972, which respondent No. 3 received under protest. On 16‑9‑1976, the Authority at Gujrat', respondent No. 2, accepted the respondent's petition and granted him compensation at the rate of 4 times his wages, which. amounted to Rs. 70,602.40. Being aggrieved by the said decision, the Pakistan Railways preferred an appeal before the Punjab Labour Court No. 6, Rawalpindi, respondent No. 1, which dismissed the same on 16‑2‑1978. The Pakistan Railways then preferred the present Constitutional Petition challenging the two decisions of respondents Nos. 1 and 2, which was admitted on 5‑7‑1978 to consider the limited question where the non‑payment ‑of the wages of respondent No. 3 amounted to deduction from the wages or delayed wages, so as to entail penal compensation, which petition is now before me for disposal.

3. Learned counsel for the petitioner has made the following submissions : First, that he does not challenge or desire to recover back the actual amount of Rs. 17,650.68 paid to and received by respondent No. 3 from the Pakistan Railway, that being his actual wages due for the period from 31‑7‑1968 to 31‑8‑1972, but he only desires to challenge the balance sum awarded as compensation to respondent No. 3 by the two lower Courts. Second that the delayed wages relating to the period 31‑7‑1968 to 31‑8‑1972 having been paid to respondent No. 3 before the decision of the case, which the said respondent accepted under protest, there were no wages due on 16‑9‑1976, which the Authority could have allowed and, therefore, both the lower Courts could not have granted any compensation. In this connection the learned counsel has cited Chaman Lai Ishwar Lai Mehta v. Junior Inspector of Factories (A I R 1942 Bom.273) and Chief Inspector of Factories U. P. v.V. K. Modi (A I R 1952 All.804). Third, that both the lower Courts erred in granting compensation four times the delayed wages to respondent No. 3, whereas under section 15 (3) of the Payment of Wages Act, 1936, compensation for delayed wages could not exceed Rs. 10. In this connection learned counsel has cited. The Divisional Superintendent N.W.R. Lahore v. Inamul Haq Butt (P L D 1952 Lah.108), Fourth, that for the purposes of limitation, respondent No. 3 could not take advantage of the provision of section 14 of the Limitation Act, as the same was only applicable to civil suits and not to proceedings before the Authority, which was a persona designata. As such, respondent No. 3 could not take advantage of the period bona. fide spent by him in taking proceedings before the Authority under the Payment of Wages Act it Lahore and before the appellate Court at Lahore and that for the purposes of the proper determination of respondent No. 3's dues, the application filed before the Authority should be deemed to be that filed at Gujrat on 3‑4‑1976 and not that which was filed at Lahore on 19‑8‑1974. In this connection, learned counsel has referred to Noor Ali v. Kanpur Omnibus Service Ltd. (A I R 1955 All.707). Fifth, that if this Court considers that the period spent by respondent No. 3 before the Authority at Lahore etc. should be excluded, then wages due for the period prior to July, 1972, could not be claimed. In this connection learned counsel submits that under the first proviso to sub section (2) of section 15 of the Payment of Wages Act, an application to the Authority ‑,for claiming delayed wages had to be presented within six months from he date on which the payment of the woes fell due and though the said proviso was amended by the Payment of Wages (Amend ment) Act, XVII of 1973, on 7‑2‑1973 to extend the period to three years, the said extension could not be applied to such wages which were not claimed within the earlier limitation period of six months and in respect of which a vested right had accrued to the Pakistan Railways. In this connection, learned counsel has cited Warcha Salt Mines v. Presiding Officer, etc. (1981 P L C 373). Sixth and last, that respondent No 3 being employed in the clerical cadre and working in the Administrative Office of the Railway at Jhelum, is not a person who falls under section 1 (4) of the Payment of Wages Act so as to be governed by the said Act In this connection, it is submitted that a person employed "upon any Railway" in section 1 (4) of the said Act means a person who is working in connection with the movement of the Railway or one associated with the track, but not one who works in an Administrative Office in any town or in the Headquarter Office at Lahore. In this respect learned counsel refers to Akbar Ali and others, v. The General Administration Officer, Pakistan Railways, Lahore W. P. No. 472 of 1978. decided by the Lahore High Court on 5‑12‑1979). In this view of the matter, it is submitted that the judgments of both the lower Courts are without jurisdiction. In the alternative, it is submitted that assuming this Court holds that respondent No. 3 was covered by the Payment of Wages Act, still the Authority under the Payment of Wages. Act had no jurisdiction to entertain the respondent's claim as he, being a civil servant under section 2 (1) (b) of the Civil Servants Act, LXXI of 1973, had the right of moving the Federal Service Tribunal for the recovery of his delayed or deducted wages and com pensation thereon. On this score also it is submitted that the judgment of both the lower Courts are without jurisdiction.

4. Learned counsel for respondent No. 3 has made the following submissions : First that by virtue of section 38 (3‑a) of the Industrial Relations Ordinance, 1969 (as amended in 1977), the petitioner has an alternative remedy of invoking the revisional jurisdiction of the Punjab Labour Appellate Tribunal. In this connection learned counsel has cited National Cement Industries v. Sind Labour Appellate Tribunal (1981 P L C 561). In these circumstances, learned counsel submits that the petitioner has an alternative remedy, and, therefore, this Constitutional Petition is incompetent and he. should be directed to avail of the said alternative remedy. Second, that as the petitioner denied the total entitlement of respondent No. 3 to his wages from 31‑7‑1968 to 31‑8‑1972 and did not pay the same for eight years, notwithstanding the decree of the civil Court passed in favour of respondent No. 3 on 28‑6‑1972, that the non‑payment amounts to deduction of wages and respondent No. 3 was rightly granted compensation at the rate of four times the said deducted wages.

5. Before taking up arguments of the petitioner, I' would first deal with the preliminary objection raised by the learned counsel for respondent No. 3. According to him, the present petition is incompetent as the peti tioner has an alternative remedy of invoking the revisional jurisdiction of the Punjab Labour Appellate Tribunal. In this connection, learned counsel has cited National Cement Industries v. Sind Labour Appellate Tribunal. However this Court in Pakistan Through Chairman Pakistan Railway Board v. Maqsood Ali and others (1981 P L C 307) has already held that the Labour Appellate Tribunal cannot revise the decision of a Labour Court acting as appellate * authority under the Payment of Wages Act, .:. 36, within the ambit of the powers granted to it under section 38 (3‑a) of the Industrial Relations Ordinance, 1969. In these circumstances, the preliminary. objection of the respondent is rejected.

6. I will now take up the submissions made on behalf of the petitioner. It is the case of the petitioner that since the Railway Authorities cleared all the dues of respondent No. 3 on 27‑8‑1976, when the respondent's application under section 15 of the Payment of Wages Act was still pending before the Authority at Gujrat, there were no wages due on 16‑9‑1976, the date when the Authority passed its final order granting compensation, and since there were no wages due which the Authority could have allowed on that date, therefore, it should not have granted any compensation. Learned counsel attacks both the lower Court's orders as being passed in excess of jurisdiction on the basis of this legal objection, in this connection, learned counsel relies upon Chaman Lal v Junior Inspector. of Factories and Chief Inspector of Factories, U. B. v. V. K Modi. In both these cases, the applications before the Authority were filed after the wages due had been paid and what was claimed. was only com pensation. These cases are, therefore, distinguishable. In the instant case, when the application was first filed before the Authority at Lahore on 19‑8‑1974 and later before the Authority at Gujrat on 4‑3‑1976, after the appellate Court had decided that the earlier application had been filed in the wrong Court, not a paisa of the wages due was paid to respondent No. 3. The payment of the wages due was only made on 27‑8‑1976, during the pendency of the proceedings, which. payment was accepted by respondent No. 3 under protest. In these circumstances, nothing prevented the Authority or the appellate Court from granting compensation to the respondent, if it found that the same was due and payable to him.

7. It is next contended on behalf of the petitioner that the amount due to respondent No. 3 was for wages for the period 31‑7‑1968 to 1‑9‑1972 and that as the same was paid late, the case was one of "delayed wages", for which compensation payable under section 15 (3) of the‑ Payment of Wages Act, 1936, was only Rs. 10 maximum and compensation at the rate of four times of the "delayed wages" could not be ordered. In this connection, learned counsel has referred to .the Divisional Superintendent, N. TY. R., Lahore v. Inam‑ul‑Haq Butt. Before dealing with this matter, I would first like to say a few words about Inam‑ul‑Haq Butt's case. In this case, the employee claimed certain wages due, plus interest at the rate of 12 per cent on account of delayed wages and allowances, to which was added a sum of Rs. 1,200 by way of compensa tion. During the course of proceedings, the employee was paid his wages due. There remained for decision the question of compensation. The Authority granted him compensation at the rate of Rs. 10 for each term of six months wage period due, thus granting a total compensation of Rs. 20. In appeal, the District Judge did not agree with the view of the Authority that each period of six months should be taken as a unit, but held that for the purposes of compensation, the wage period should be taken as a unit of a month and compensation was payable in respect of each unit. He thus allowed Rs. 100 on the basis that ten months' wages were due. The Divisional Superintendent, N.W.R., thereupon, filed a revision petition in the High Court, where this Court held that claims arising out of delay in payment 'of wages should be treated as one sole claim for the entire sum overdue as wages and not as a series of separate claims for the consecutive periods involved. The High Court, therefore, awarded Rs. 10 as compen sation to the employee, .that being the maximum provided under section 15 (3) of the Payment of Wages Act, 1936. In this case, no argument was advanced on behalf of the Railway employee that the case was one of deduction and not of delayed wages, and compensation should be granted. In these circumstances, this case cannot be cited as an authority for the proposition that where there is unauthorised deduction, or where a case can be treated as one not of delayed wages, compensation cannot be granted. In the instant case, what stands out a mile is that when respondent No. 3 reported for duty at Jhelum on 31‑7‑1968, after he recovered from his sickness, the Railway Authorities refused to take him on duty, on the pretext that they had to seek instructions from their Headquarters at Lahore. Respondent No. 3 was prepared and willing to work, but the Railway Department prevented him from so doing. On 23‑12‑196 respondent No. 3 filed a contempt petition against certain officials of the Railway for preventing him from resuming his duty. On 28‑6‑1972, the civil Court decreed the suit of respondent No. 3 in his favour, setting aside the transfer order. On 31‑8‑1972, the Railway Headquarter Office at Lahore informed the office at Jhelum to permit respondent No. 3 to resume duty, which he did on 1‑9‑1972. Notwithstanding the decree of the Civil Court dated 28‑6‑1972, the Railway Authorities refused to pay an salary to respondent No. 3 for the period 31‑7‑1968 to 31‑8‑1972. To add fuel to fire, by letter dated 22‑2‑1973, the Railway Authorities too a final decision in the matter and treated respondent No‑ 3 as on leave due. Respondent No. 3 was thus constrained to file a departmental appeal against the said order, but decision thereon was indefinitely withheld. He then filed a petition for wages due for the period 31‑7‑1963 to 31‑8‑1972 together with compensation before the Authority under the Payment o Wages Act at Lahore on 19‑8‑1974. Respondent No. 3 then went through the harrowing experience of having his application thrown out by the ,appellate Court on 18‑2‑1976, on the ground that the application had been presented before the authority at Lahore, which was not competent to hear the case. He then filed his application before the Authority of Gujrat on 4‑3‑1976 and it was during the pendency of these proceedings, that the Railway Authorities, realised their error, decided to pay the sum o Rs. 17,650.68 which was due to respondent No. 3, which they did o 27‑8‑1976 and which the said respondent accepted under protest. It cannot be said that this is a bona fide case of delayed wages. Where wages, which are admittedly due and over which there is no dispute, are held up o postponed for some reasonable, but not too long, a period, due to financial difficulties, accumulation of stock, non‑receipt by a company of its bills, or internal audit snags, it would be a case of "delayed wages". In Simpalax Manufacturing Co. Ltd. v. Allahuddin (A I R 1945 Lah.195). Backett, J held that delayed wages only meant wages which were admittedly due but the payment of which had been postponed on some excuse or the other. The learned Judge did not consider the possibility of postponement, which was either malicious or too long as to be unreasonable in the extreme In K. P. Mushran v. B. C. Patil (A I R 1952 Bom.235), Chagla, C. J. held that if "delay" was given its plain and natural meaning, delay in payment of wages, would only arise when there was no dispute as to payment of wages, but the employer was only in default in not paying them on the due date. The learned Chief Justice held that where there was a dispute as to. the payment of wages, and the dispute was as to the quantum or as to whole amount of the wages, then, whether there was a deduction' of a part of the amount or the whole amount of the wages was not paid it would still be a case of unjusti fied deduction. 1n the Upper India Coupar, Paper' Mills Co, Ltd. v. I. C. Mathur. (A I R 1959 All. 664), Nasriullah Beg J, whilst dealing with the argument whether deductions referred to in the Payment of Wages Act could only relate to those as were specified in sections 7 to 13 thereof, held that deductions could relate to those which fell under the specific heads mentioned in the said sections or those that resulted from other causes and that they could also result from withholding of part of the wages or the entire amount of the wages. The learned Judge also hold that the word "deductions" in section 15 appeared to be used in a wide sense so as to include the entire deficiency which an employee could allege had been caused in the payment of wages, as a result of the withholding of the same by the employer, whether partially or wholly. The learned Judge further held that it seemed unreasonable to hold that the Legislature intended that where the employer withheld payment of one pie from the salary due, the application would be maintainable as a case of deduction, but where the employer withheld the whole salary the application would not be maintainable, as it was not a case of deduction. In Anant Ram v. District Magistrate (A I R 1956 Raj.145), where certain employees were dismissed and reinstated through various orders and they were not paid their wages for the period between their dismissal and reinstatement, Wanchoo, C.J., held that their re‑instatements clearly implied that the Authority had deducted their wages, wholly or in part, for the period between dismissal and re‑instatement, and that their cases were covered by the provisions of the Payment of Wages Act. The learned Chief Justice further held that no deductions under section 7 (2) (b) could be made from wages of employees when their absence from duty was for the period between their dismissal and re‑instatement, as the said absence was not voluntary, which alone was covered by the said provision. However, since the Railway in some of the said cases had passed orders under rule 2044 of the Railway Establishment Code, which enabled the Railway Authorities, where a railway servant who had been dismissed, removed or suspended, was re‑instated, to consider and make a specific order regarding the pay and allowances to be paid to him for the period of his absence from duty and to treat or not to treat the said period as one spent on duty, the said deductions, where such orders were passed,) were treated as deductions falling within the preview of section 7 (2) (h) of the Payment of Wages Act and the same were treated as permissible and not as unauthorised deductions. In the instant case, the initial order dated 1‑9‑1967 transferring respondent No. 3 from Jhelum to Lahore was malicious, as it tended to destroy his seniority at Jhelum and place him amongst the junior most employees in the same category at Lahore. After the said order was set aside by the civil Court on 28‑6‑1972, the Railway authorities by its order dated 22‑2‑1973 placed respondent No. 3 on leave due. This order, if implemented, would have enabled respondent No. 3 to draw full salary for such period of earned leave as had accumulated, half the salary for t‑vice the period accumulated for earned leave and no salary for the balance period. In short, the Railway Authorities, by this order, ordered the deduction from the respondent's wages by exercising the power available under rule 2044 of the Railway Establishment Code. But in Muhammad Aslam Rose v: Federation of Islamic Republic of Pakistan (P L D 1972 Lah.756 ), this Court has held that where a civil Court sets aside a termination as void, rule 2044 is not applicable to his case, as the same is only applicable where the Railway within its own internal jurisdiction holds inquiries and sets aside its orders. In this connection Divisional Superin tendent P. W. R., Karachi v. Bashir Ahmad (P L D 1973 S C 589), Divisional Superintendent N. W. R., Lahore v. Muhammad Sharif (P L D 1963 S C 340), and Ghulam Mustafa Shah v. Pakistan (P L D 1963 S C 268) may also be referred with advantage. In the present case, the civil Court declared the transfer order to be mala fide, illegal, ultra vires and therefore, not affecting the rights of the petitioner. The Railway first thwarted its implementation by not permitting respondent No. 3 to resume duty. Then it acted maliciously by acting under rule 2044. No power was available under rule 2044 of the Railway Establishment Code, to the Railway Authorities to act, as they did, as the respondent had never been dismissed, removed or suspended by them. But the Railway Authorities also did not implement their order dated 22‑2‑1973. It did not determine how much the respondent was entitled to on full pay and how much he was entitled to on half pay. It did not do anything nor paid a paisa to respondent No. 3. The respondent's appeal dated 7‑7‑1973 was not decided at all, due to the competent case pending in the Civil Court against the Railway Authorities. There cannot be any doubt that the case was, therefore, one of deduction of the full wages to which respondent No. 3 was entitled. The only question which the Authorities thus had to decide was whether the deduction was unauthorised. This is not a case of absence from duty under section 7 of the Payment of Wages Act. It is also not a case of deduction for absence from duty, as provided under clause (b) of subsection (2) of the said section. A deduction for absence .from duty under the said clause is one where the absence of the employee is voluntary and not where the employer prevents the employee from performing his duty, though the C employee is ready and willing to perform work. This is also not a case falling under sections 9 to 13, which relate to other permissible deductions. In these circumstances, the deductions made by the Railway Authorities were unauthorised, apart from being contumacious and in violation of the civil Courts decree. Both the lower Courts came to the conclusion that respondent No. 3 was illegally transferred from Jhelum to Lahore, which order was set aside by the civil Court as being illegal, mala fide and ultra vires and that thereafter he was neither allowed to resume duty nor paid his wages, but placed on leave due without any legal justification and his wages were illegally deducted by the Railway Administration Taking into consideration the long period of 9 years spent by the respondent to recover the illegal deductions made and the mental torture and virtual starvation to which he was subjected by the attitude of the Railway Authorities, it was held that respondent No. 3 was entitled to receive compensation at the rate of four times the actual amount of wages deducted. It is true that compensation at four times the wages due does appear to be slightly large and compensation not exceeding the total wages due, which itself was a large amount, would have been more than fair, but this being a matter within the jurisdiction of the Authority and the appellate Court I would not like to interfere. In view of the finding given by both the lower Courts, the grant of compensation to respondent No. 3 is neither illegal nor perverse, but in fact fully justified.

8. It is further contended on behalf of the petitioner that in comput ing the period of limitation prescribed for the application filed by him before the Authority at Gujrat, the time during which he was prosecuting with due diligence, a similar petition before the Authority and the Labour Appellate Court at Lahore against the Railway Administration, could not be excluded, as the benefit of section 14 is only applicable to civil suits and not to proceedings before the Authority under the Payment of Wages Act, which is a persona designata. In this connection, learned counsel refers to Noor Ali v. Canpur Omni Bus Service Ltd. It is, therefore, submitted that respondent No. 3 could not take advantage of the period from 19‑8‑1974 to 18‑2‑1976 bona fide spent by him in prosecuting his case before the Authority and the appellate Court at Lahore and that for the purposes of the proper determination of the said respondent's dues, the application filed before the Authority at Gujrat on 4‑3‑1976 should be deemed to be that on which the respondent's dues should be calculated. It is true that section 14 of the Limitation Act, 1908, states that in comput ing the period of limitation prescribed for any suit, the time during which the plaintiff has been prosecuting with due diligence, any other civil proceeding, whether in the Court of first instance or in a Court of appeal against the defendant, shall be excluded, where the proceeding is founded upon the same cause of action and is prosecuted in good faith in a Court which, from defect of jurisdiction, or other cause of a like nature, is unable to entertain it, but by virtue of section 29 (2) of the same Act, section 14 can be made applicable to proceedings pending before the Authority under the Payment of Wages Act. Section 29 (2) speaks of "suit, appeal or application" prescribed by any special or local law. The Payment of Wages Act prescribes for an application to be made for recovery of delayed wages or deducted wages. Thus, for the purposes of determin ing any period of limitation prescribed for such an application provided by this special law, the provision contained in section 14 is applicable, in so far as and to the extent to which it is not expressly excluded. Since the principle of section 14 is not expressly excluded by the Payment of Wages Act, it will apply to all applications made under section 15 of the said Act. In the case of Imperial Bucket Company v. S. M. Bhagwati Basak (A I R 1954 Cal.520), the. question was whether the provision of section 12 of the Limitation Act could be applied at the appellate stage, when determining the question whether an appeal before the District Judge against the decision of a West Bangal Rent Controller was within time. On the basis of the wording of section 29 (2) of the Limitation Act, it was Urged that the words "suit, appeal or application" should be deemed to refer to those suits or appeals which were filed in civil Courts. G. N. Das, J. who wrote the judgment on behalf of the Division Bench, held that in their clear meaning the words "suit" and "appeal" in section 29 (2) (a) referred to any suit or an appeal whether it was filed in a Court or before a persona designata. In these circumstances, there cannot be any doubt that the words "or application" in section 29 (2) (a) refer to any application mad before a persona designata, such as the Authority constituted under' the Payment of Wages Act to deal with claims of employees. The Authority at Gujrat allowed the benefit of the provision of section 14 to respondent No. 3 for good and valid reasons, which have not been contested before me. In these circumstances, this objection, therefore, has no basis in law and is rejected.

9. It is also contended on behalf of the petitioner that even assuming that the benefit of section 14 of the Limitation Act is given to respondent No. 3 and the application before the Authority under the Payment of Wages Act should be deemed to have been filed on 19‑8‑1974, yet compensation on the wages due for the period prior to July, 1972 should not be allowed. It is the case of the petitioner that under the first Proviso to subsection (2) of section 15 of the Payment of Wages Act, application for delayed or deducted wages has to be presented within six months from the date on which the deduction from the wages is made or from the date on which the payment of wages is due, as the case may be, and that as the said Proviso was amended on 7‑2‑1973 by the Payment of Wages (Amendment) Act, XVII of 1973, to extend the period of limitation from six months to three years, that the said amendment cannot be applied retrospectively and wages which stand time barred after the lapse of six months cannot be recovered after the amendment by applying the amended law retrospectively. In this connection, learned counsel refers to Warcha Salt Mines v. Presiding Officer In Warcha Salt Mines' case, claim for wages due, which were barred by the old period of limitation of six months and for which no application was made for extending limitation under the second Proviso to subsection (2) of section 15 of the Payment of Wages Act, was held to be time‑barred, notwithstanding the amendment in law which extended the limitation period contained in the first Proviso to that sub section from six months to three years. This would prima facie indicate that for the period prior to July, 1972, respondent No. 3 could not press any claim. However, it cannot be forgotten that the Railway Authorities did not either admit or deny the respondent's claim relating to the disputed period ill 22‑2‑1973, when it finally passed its order placing respondent No. 3 on leave due for the period 31‑7‑1968 to 31‑8‑1972. Still further, it cannot be forgotten that respondent No. 3 preferred a departmental appeal against the said decision of the Railway dated 22‑2‑1973, which was never decided, as contempt proceedings arising out of the civil suit were still pending in the Civil Court. Notwithstanding various letters written by respondent No. 3, the reply Exh. D 7 of the Vice- Chairman, Railway Board, dated 30‑7‑1974, stated that decision could not be taken because of the pending case. Respondent No. 3 had the right of having his departmental appeal decided before preferring any claim under the Payment of Wages Act, as the dispute related to a substantive question, which alone the Railway Board had the right to decide within its internal jurisdiction. The question whether respondent had to be treated on leave due or on duty had to be decided. It was not just a simple case of claiming wages, which were admittedly due, but withheld. On the principle con tained in F. A. Khan v. Government of Pakistan (P L D 1964 S C 520) the respondent had the right of having his appeal decided before embarking on litigation. Without giving any categorical finding that F. A. Khan's case applies to the instant case, I would say that the fact that the Railway Authorities took 5 years to finally decide to treat the disputed period as spent on duty by respondent No. 3 and to pay his wages due, without at all deciding his departmental appeal constituted sufficient justification for the Authority under the second Proviso to subsection (2) of section 15 of the Payment of Wages Act to L receive the time‑barred claim, in view of sufficient cause appearing on the record. The‑ Authority went into the whole history of the case before arriving at the finding that the application was not time barred. The case is one where respondent No. 3 was placed in pitiable hardship. In this constitutional jurisdiction, I would not like to interfere with the finding arrived at by the Authority in its original jurisdiction or by the Labour Court in its appellate jurisdiction, as both Courts being competent to decide the matter, had the jurisdiction to decide the same rightly or wrongly. Notwithstanding the fact that in the present constitutional petition, the petitioner did take up the plea of limitation, the writ petition was only admitted to consider the question whether the non‑payment of the entire salary for the disputed period fell within the definition of deduction, so as to entail penalty. Therefore, both on the basis of discretion and because of the admitting order, which shows that this petition was admitted to consider a limited legal point, I would not like to interfere in the decision of both the lower Courts on the question of limitation.

10. It is lastly contended on behalf of the petitioner that both the Authorities under the Payment of Wages Act and the Labour Appellate Court had no jurisdiction to entertain the respondent's claim; as he, being a clerical hand working in the Administrative Office of the Railway at Jhelum, is not a person who falls under section 1 (4) of the Payment of Wages Act so as to be able to take advantage of this Act. In this connection, it is submitted that a person employed "upon any railway" in section 1 (4) of the Payment of Wages Act means a person who is working in connection with the movement of the Railway or one associated with the track, but not one who works in an Administrative Office in any town or in the Headquarter Office of the Railway at Lahore. In this connection, learned counsel refers to Akbar Ali and others v.‑The General Administration Officer, Pakistan Railways, Lahore (W. P. No. 472 of 1978 decided by the Lahore High Court on 5‑12‑1979). 1 now turn to the Payment of Wages Act, 1936. Section 1 (4) and (5), which deal with the types of persons to which the Act applies, states as follows :‑

"(4) It applies in the first instance to the payment of wages to persons employed in any factory and to persons employed (otherwise than in a factory) upon any railway by a railway administration or, either directly or through a sub‑contractor, by a person fulfilling a contract with a railway administration.

(5) The Provincial Government may, after giving three months notice of its intention of so doing, by notification in the Official Gazette, extend the provisions of the Act or any of them to the payment of wages to any class of persons employed in any industrial establish ment or in any class or group of industrial establishments.

"Factory", "industrial establishment" and "railway administration are defined in section 2 (i), (ii) and (v) as follows :‑

(i) "factory" means a factory as defined in clause (i) of section 2 of the Factories Act, 1934 ;

(ii) "industrial establishment" means any‑

(a) tramway or motor omnibus service ;

(b) dock, wharf or jetty ;

(c) inland steam‑vessel ;

(d) mine, quarry or oilfield ;

(e) plantation ;

(f) workshop or other establishment in which articles are produced, adapted or manufactured, with a view to their use, transport or sale ;

(g) establishment of a contractor who, directly or indirectly, employs persons to do any skilled or unskilled, manual or clerical labour for hire or reward in connection with the execution of a contract to which he is a party, and includes the premises in which, or .the site at which, any process connected with such execution is carried on.

(v) "railway administration" has the meaning assigned to it in clause (6) of section 3 of the Railways Act, 1890 ;

The words "employed in any factory" in section 1 (4) of the Payment of Wages Act do not mean employed as a "worker" or in any manufacturing process, but one employed in any capacity in the premises of the factory, l provided that such factory falls within the definition of section 2 (j) of the Factories Act, XXV of 1934. 1f any authority is required for this view, Hindustan Journals Limited v. Denish A.. R. Awasthi (A I R 1957 Madh. Bah.125) and. V. T. Ramaswami v. Messrs Gimini Studies (A I R 1968 Mad.49) may be referred. Any view, therefore, that an employee working in a factory must fall within the definition of "worker", as provided in section 2 (h) of the Factories Act, 1934, in order to take advantage of the Payment of Wages Act, would be an erroneous view o the law. Section 1 (5) of the Payment of Wages Act permits the Provincial Government to extend the provisions of the Act or any of them to the payment of wages to any class of persons employed in any industrial establishment or any class or group of industrial establishments. "Industrial establishment" is defined in section 2 (ii) of the Payment of Wages Act. The trades and occupations stated in clauses (a) to (f) of the said clause (ii) have no qualifying words which show that they are limited to persons employed in any manual work or manufacturing process or work incidental or connected therewith. The establishment of a contractor referred to in clause (g) of the said clause (ii) refers to both manual and clerical labour. Similarly, the words "persons employed (otherwise than in a factory) upon any Railway by a Railway Administration" in subsection (4) of section 1 of the Payment of Wages Act clearly show that they are used in contra distinction to "persons employed in any factory" occurring in the same subsection and, therefore, persons employed in a clerical capacity by a Railway Administration are covered by the, said Act. Since a Railway generally conceived as a moving operation, the words "upon any Railway" aptly define the persons employed by a Railway Administration. This does not mean that persons not employed with the rolling stock or moving passenger trains are not covered by the said words. "Railway Administra tion" has to be construed in the manner defined in the Railways Act, IX of 1890. The word "railway" therefore, will also have to be construed in the manner defined in that Act. Under section 3 (4) of the said Act .‑

"Railway" means a railway, or any portion of a railways for the public carriage of passengers, animals or goods, and includes

(a) ... ... ... ... ... ...

(b) ... ... ... ...

(c) all stations, offices, ware houses, wharves, workshops, manufactories, fixed plant and machinery and other works constructed for the purposes of, or in connection with, a railway.

In these circumstances, the words "upon any Railway" is not restricted t the Railway track. The Payment of Wages Act is applicable not only t the employees engaged specifically upon a Railway track, but also to other employees of the Administration. 1f any authority is required for this view, Union of India through General Manger, Northern Railway v. Mohan Singh Chaudhri (1970 Lah. & Ind. Cas. 165=I L R 2 Pb. 439) may be referred. I would, therefore, humbly differ from the view as contained in Akbar Ali and others v. The General Administration Officer, Pakistan Railways, Lahore (W. P. No. 472 of 1978 decided by the Lahore High Court on 5‑12‑1979) that persons employed "upon any Railway "mean only persons who are working in connection with the movement of the Railways or in any case associated with the track, but not in a clerical capacity in its offices.. Respondent No. 3 is, therefore, a person who can take advantage of the Payment of Wages Act. The Payment of Wages Act, since its very inception, has been applied to clerical employee working in various Railways operating in this sub‑continent. A plethora . of reported cases bear testimony to this fact. The rule of .stare decisis, therefore, applies. I now turn to the second limb of the argument, namely, that respondent No. 3 being a civil servant, within the meaning of section 2 (1) (b) of the Civil Servants Act, LXXI of 1973, he had the right o moving the Federal Service Tribunal. for recovery of his delayed or deducted wages and compensation thereon. Section 2 (1) (b) of the Civil Servants Act, 1973, defines a civil served as follows :‑

"civil servant" means a person who is a member of an All Pakistan Service or of a civil service of the Federation, or who holds a .civil post in connection with the affairs of the Federation, including any such post connected with defence, but does not include‑

(i) a person who is on deputation to the Federation from any Province. or other authority ;

(ii) a person who is employed on contract, or on work‑charged basis or who is paid from contingencies ;

(iii) a person who is a "worker" or "workman" as defined in the Factories Act, 1934, or the Workmen's Compensation Act, 1923."

Since respondent No. 3 does not fall within the definition of "worker" on "workman" as defined in the Factories Act, XXV of 1934, or the Workmen' Compensation Act VIII of 1923, he falls within the definition of a "civil servants". Railway employees could have been excluded from the definition of "civil servant" to the limited extent that they had petty claims as were covered arid could be decided by the Payment of Wages Act, which would have obviated so high powered a body as the Service Tribunal wasting its time over such petty disputes, but whatever be the wisdom of the Govern ment, such an exclusion has not been made. In these circumstances, respondent No. 3's remedy lay with the Federal Service Tribunal constituted under the Service Tribunals Act, LXX of 1973, which had exclusive jurisdiction to deal with all matters relating to his terms and conditions of service with the Railway. It cannot be denied that the Federal Service Tribunal had started functioning at Islamabad in May, 1974, which fact the Railway Headquarters Office at Lahore was well aware of. The Law Office of the Railway, from where all instructions to defend litigation are issued, is situated in the Headquarters Office at Lahore. At no stage the Pakistan Railways took up the objection either before the Authority at Lahore under the Payment of Wages Act or in appeal before the Punjab Labour Court at Lahore, in the first round of litigation, or before the Authority at Gujrat under the Payment of Wages Act or in appeal before the Punjab Labour Court, Rawalpindi, in the second round of litigation, that these Courts had no jurisdiction. Rather, the Pakistan Railway, by filing the two appeals, expressly conceded the jurisdiction of the Authority appointed under the Payment of Wages Act and the Appellate Court to deal with the case and having permitted the Authority and the Court of appeal to usurp a jurisdic tion, which they did not possess, cannot now turn round, to have their decisions quashed in Ghulam Mohi‑ud‑Din v. Chief Settlement Commissioner (P L D 1964 S C 829) it was held that where a person had stood by and allowed a Tribunal to usurp a jurisdiction, which it did not possess, he could not seek the discretion of the Court in constitutional jurisdiction to have the said order quashed. If further Authority is required for this view, Hafizuddin v. Mian Khadim Hussain (P L D 1965 Lah.439) may be cited with advantage. If I should now quash the impugned orders, respondent No. 3 would be left at the mercy of limitation, which has long expired. The total conduct of the Railway Authorities right from start to finish' has been questionable. The present objection as regards jurisdiction was not even raised in the writ petition and was taken for the first time during arguments. No application was filed to v amend the writ petition. As stated earlier in para. 9 above, this petition was admitted only to consider a limited legal question, but even if I were to consider myself as not bound by the limitation imposed by the admitting order, I think this is not a fit case in which I would like to exercise my discretion‑in favour of the petitioner to quash the impugned orders.

11. For the foregoing reasons, there being no merit in this petition, the same is dismissed with costs.

Petition dismissed.

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