Find a Lawyer

Writ Petition No. 3565 of 1981, decided on 23rd November, 1982.

‑‑Art. 199 read with Payment of Wages Act (IV of 1936), Ss. 3 & 15 and Cotton Ginning Control and Development Ordinance (XXVI of 1976), S. 16 and Cotton Ginning Control and Development (Repeal) Ordinance (XXXVI of 1977)‑Limitation Act (IX of 1908), S. 5‑‑Payment of wages‑Liability of denationalized cotton factories‑Petitioner proprietress of cotton ginning factory and respondent employed as manager therein actory taken over and handed over to Cotton Trading Corporation on nationalisation and respondent continuing service therein but transferred in May, 1977 to another nationalisation factory where serving till denationalization of cotton factories on 9th October, 1977‑Pay and allowances of respondent reduced during period between nationalization and denationalization‑Authority under Payment of Wages Act, 1936 holding petitioner liable to pay amount which it considered to have been illegally deducted from respondent's remuneration and also awarding an amount towards compensation‑Labour Court dismissing appeal against order of Authority on ground that same was time‑barred by 6 days and same could not be condoned as S. 5 of Limitation Act, 1908 was not applicable‑Labour Appellate Tribunal not in existence Petitioner invoking writ jurisdiction of High Court to impugn order of Authority and appellate Court‑Order of Authority making petitioner liable to salary and allowances of respondent for period after May, 1977 when be was transferred and did not perform any service for petitioner's factory, in circumstances, held, unlawful and could not stand test of scrutiny of High Court in writ jurisdiction.

--‑‑ Art. 199 read with Payment of Wages Act (IV of 1936), Ss. 15 & 17‑Limitation Act (IX of 1908), S. 5‑Writ jurisdic tion‑Certiorari‑Lies in lieu of or a substitute ‑ of an appeal where party deprived of right of appeal for delay without, any fault or negligence if there is shown to be a meritorious case‑Labour Court (appellate Court) dismissing as time‑barred petitioner's appeal against orders of Authority under Payment of Wages Act, 1936 on grounds that delay of 6 days could not be condoned because provisions of S. 5 of Limitation Act, 1908 were not applicable‑Circumstances indicative of no element of negligence on part of petitioner in filing appeal before Labour Court‑Impugned order of Authority found to have been passed in excess of its jurisdiction causing manifest injustice to petitioner Such order, in circumstances, held, could be declared to be unlaw ful by High Court in its extraordinary jurisdiction.

Ferris' Law of Extraordinary Legal Remedies, p. 186 rel.

A. Karim Malik for Petitioner.

Ch. Aftab Mehar for Respondents.

Date of hearing : 19th September, 1982.

The events and circumstances leading to the filing of this writ petition impugning the validity of the order of the Authority under the Payment of Wages Act, 1936 (IV of 1936), Faisalabad, respondent 1, dated the 31st January, 1981, directing the petitioner to pay Rs. 7,151.93 as wages plus Rs. 2,848.07 as compensation, in all Rs. 10,000.00 to respon dent 3 and of the Punjab Labour Court No. 5, Faisalabad, respondent 2, dated the 2nd July, 1981, dismissing the petitioner's .appeal against the first mentioned order, may be shortly described as follows. Mst. Anwari Khatun, petitioner, is the proprietress of Noorani Cotton Factory, Toba Tek Singh. The factory was on lease with another firm, Noorani Cotton Corporation, from the 1st October, 1973. Jamil Ahmad, respon dent 3, was employed as manager (commercial accountant) by Noorani Cotton Corporation. On the promulgation of the Cotton Ginning Control and Development Ordinance, 1976 (XXVI of 1976), the Govern ment of Pakistan took over the factory on the 17th July, 1976, and hand ed it over to the Cotton Trading Corporation of Pakistan Limited, respon dent 4. Respondent 3 continued to serve the factory till May, 1977, when he was transferred by respondent 4 to Javid Cotton Factory, Jhang, respondent 5, where he served till the 9th October, 1977. In the meantime Noorani Cotton Factory was restored to the petitioner on the 19th September, 1977, just after coming into force of the Cotton Ginning Control and Development (Repeal) Ordinance, 1977 (XXXI of 1977).

2. While working in Noorani Cotton Factory respondent 3 was receiving Rs. 500 as basic pay and Rs. 400 in lieu of fringe benefits including rent free house, electricity, medical allowance, etc, per mensem at the time the factory was taken over by the Government. His salary was reduced to Rs. 320 and he was given Rs. 308 per mensem to cover the fringe benefits during the time Noorani Cotton Factory and Javaid Cotton Factory were running under the aegis of respondent 4. Claiming, on the basis of the guarantee given by the provisions of section 16 of the Cotton Ginning Control and Development Ordinance, 1976, to be entitled to receive while serving respondent 4 the same pay and allowances he was getting when the factory had been acquired by the Government the respondent 1 to recover the amount by which his pay and allowances had been reduced from the 17th July, 1976, to the 9th October, 1977. Respondent 1 held the petitioner, vide order of the 31st January, 1981, to be liable to pay respondent 3 Rs. 7,151.93, which it considered to have been illegally deducted from his remuneration. It further directed the petitioner to pay Rs. 2,848.07 as compensa tion to respondent 3.

3. The petitioner's appeal against the order of respondent 1 to the Punjab Labour Court No. 5, Faisalabad respondent 2, being out of time by six days was dismissed by respondent 2. As the provisions of section 5 of the Limitation Act, 1908, were not applicable to the appeal delay could not be condoned.

4. Since the Punjab Labour Appellate Tribunal was not in existence and functioning the petitioner invoked the extraordinary jurisdiction of this Court to impugn the legality of the orders of respondents l and 2.

5. The main grievance of the petitioner was that respondent 3 had not served Noorani Cotton Factory beyond May, 1977, and, therefore, she could not be burdened with the liability of payment of his remuner ation due for any period thereafter. Admittedly respondent 3 ceased to serve Noorani Cotton Corporation after May, 1977. He remained in the service of Javaid Cotton Factory, respondent 5, from May, 1977, to the 9th October, 1977, and thereafter, never joined Noorani Cotton Factory. In these circumstances by no provision of any law the petitioner can be made answerable for any pay and allowances to which respondent 3 was entitled for the period after May, 1977. The order of respon dent 1 making the petitioner pay to respondent 3 salary and allowances due for the period after May, 1977, when be did not perform any service for Noorani Cotton Factory or the petitioner is clearly unlawful and cannot stand the test of scrutiny by this Court. However, as respondent 3 was to get the same emoluments which he was drawing when Noorani Cotton Factory was nationalized, the petitioner is bound to pay him enquivalent to the deductions made from his original salary and allowances from the 17th July, 1976, upto May, 1977. This amount come to Rs. 2,856.

6. There remains to be settled the question of maintainability of the writ petition in view of the petitioner's failure to avail of the remedy of appeal within time. The learned counsel for the petitioner contend ed that at the tail end of the trial of respondent's 3 application before respondent 1 the petitioner's husband died (which fact is correct) arid duo to the grief that befell the petitioner, she lost contact with her counsel and could not get information touching announcement of the impugned order by respondent 1 in time and that as soon as she came to know of the decision she acted post haste to file appeal before the Labour Court. Relying upon the observations in Ferris' Law of Extra ordinary Legal Remedies at page 186 that where the law gives an appeal, and the party is deprived of it without any fault or negligence on his part, certiorari will lie in lieu of or as a substitute for an appeal, if there is shown to be, in addition to such cause, meritorious case, the learned counsel argued that the petitioner did not exhibit any negligence in pursuing the remedy of appeal and that as the order of the Authority directing payment of amount of Rs. 10,000 by the petitioner to respondent 3 was patently unlawful, the same could be struck down to the extent it was invalid. To appreciate the petitioner's stand it may be advantageous to refer to the proceedings of respondent 3's application before the Authority after the conclusion of the parties' evidence. On 26th October, 1980, the hearing of the application was adjourned to the 11th Novamber, 1980, for arguments. Respon dent 2's counsel was heard on the last mentioned date and for hearing arguments of the counsel for the petitioner and other respondents the case was adjourned to the 29th November, 1980. The petitioner's counsel sought another adjournment on the ground that the petitioner's husband bad died. After hearing arguments on the 21st December, 1980, the case was adjourned to the 5th January, 1981, for announce ment of judgment. As the Authority could not write order the case had to be a4journed to the 19th January, 1981, and again to the 31st January, 1981. The perusal of the record indicates that neither the peti tioner nor bier counsel was present on the 5th and 19th January, 1981, when orders adjourning the case were passed, as also on the 31st January, 1981, when the impugned order was pronounced. The Authority did not issue any notice to the petitioner or her counsel giving information of the making of the impugned order. In these circumstances the explanation furnished by the petitioner for not filing the appeal in time appears to be correct. Element of negligence on her part in matter of filing appeal against the order of the Authority is missing Therefore, the impugned order in so far as it has been passed by the Authority in excess of its jurisdiction causing manifest injustice to the petitioner can be declared to be unlawful by this Court in its extraordinary jurisdiction. Consequently the impugned order obliging the petitioner to pay any amount exceeding Rs. 2,856 to respondent 3 i declared to be unlawful and of no legal effect. The parties are left to bear their own costs.

A. F. 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.