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Application No. 245 of 1981, decided on 14th April, 1985.

‑‑S. 15‑West Pakistan Water and Power Development Authority Act (XXXI of 1958), S. (17‑B)‑Civil Servants Act (LXXI of 1973), S. 2 (ii) &(iii)‑WAPDA employee working with Mechanised Construction of Pakistan in a factory--Services terminated--- Termination order set aside by civil Court as illegal‑Claim for back benefit for intervening period‑Applicant, in circumstances, held, not a civil servant and claim within jurisdiction of Authority--- Authority allowing application.

1984 P L C 838 and 1984 P L C 1697 rel.

M. Bashir Awan for Applicant.

Ibrahim Soomro for the Opponent.

By this order I will dispose of the application filed by the applicant under section 15 of the Payment of Wages Act for recovery of back benefits from the opponent abovenamed.

Brief facts which led to filing of the case are that the applicant's services were terminated on 5th August, 1968 by the predecessor organisation i.e. M. P. O. WAPDA of the above‑named opponent. He challenged his termination order before the civil Court at Kotri and the learned Civil Judge declared the impugned termination order of the applicant as illegal. The department preferred 1st anneal before the District Judge Dadu which met the same fate. The management then preferred a second appeal in the Sind High Court at Karachi which was also dismissed by an order passed on 4th November, 1978. The order of the trial Court was maintained.

It has further been pleaded by the applicant that because his termina tion order has been declared to be illegal and without lawful authority, therefore he is entitled to all the benefits for the intervening period from 27th February, 1969 to 11th March, 1970, for which he is persistently requesting, but the opponent has failed to make the payment.

The opponent filed the written statement and denied the liability as claimed. The following issues were settled

(1) Whether the Court has the jurisdiction to try the matter and the application is maintainable in law

(2) Whether the applicant is entitled to the relief claimed or any part thereof

(3) What should the order be

The parties led their evidence. I have beard the learned Advocates and perused the record. My findings on the' issues with reasons thereof are as under : ‑

The learned Advocate for the opponent vehemently argued that since the applicant is an employee of WAPDA and having been declared as Civil Servant, he cannot maintain his application be this Court, and consequently, this Court has no jurisdiction to try the matter. He referred me to the cross‑examination of the applicant.

He further submitted that since the wages of the applicant are more than one thousand rupees, he cannot invoke the provisions of Payment of Wages Act by virtue of section 1 (6) of the Act.

He also contended that the claim of the applicant is time‑barred therefore the application on this score is liable to be dismissed.

The learned counsel Mr. Bashir Awan, for the applicant, submitted that the application is maintainable for the reasons that the applicant was borne on work-charged establishment for the claim period. He was working as worker in a factory and by virtue of section 2 (ii) and (iii) of Civil Servants Act, 1973, he is excluded from the provisions of Civil Servants Act, 1973. Moreover the service in WAPDA has been declared to be Civil Service of Pakistan in the year 1975, while the claim of the applicant is admittedly prior to the above declaration. He relied upon the following admissions of opponent witness in his cross‑examination :‑

(i) The applicant, since his appointment is working in the workshop,in Auto‑Electric Section.

(ii) The applicant worked upto September, 1970, on work-charged establishment.

(iii) from 1st October, 1970, the applicant was converted into regular service by WAPDA.

With regard to the monthly wages of the applicant, the learned counsel referred me to the claim sheet filed with the application and contended that for the entire period of claim the monthly wages of the applicant were less than Rs. 1,000 and therefore the bar contained in subsection (6) of section 1 of the Act is not attracted in this case.

Regarding the time‑barred claim, the learned counsel made the sub missions that the litigation between the parties came to an end on 4th November, 1978 when the Hon'ble Sind High Court dismissed the 2nd appeal of the opponent‑organisation, therefore the cause of action accrued to the applicant on the date when the appeal of the opponent was dismissed and the application having been filed in this Court on 5th October, 1981, is within the prescribed period of three years. Moreover Annexures A/2 and A/3, show that the applicant was bona fidely pursuing his claim.

From the above submissions, I conclude that the Court has the jurisdiction and the application is maintainable in law.

I, therefore, answer this issue accordingly.

The contention of Mr. Awan is that since the termination order of the applicant has been declared to be illegal and of no legal effect, there fore the applicant is entitled to the back benefits for the period he was kept out of the job. He cited 1984 P L C 838 and 1984 P L C 1697 wherein it has been held that if the Courts find that the termination order is illegal, the back benefits cannot be refused.

He also referred me to Exhs. A/3 which is a letter of the opponent and shows that the opponent organisation is otherwise willing and ready to make the payment of the claim, if their legal' advisor so advises. This letter was written in 1981 but uptil now, the opponent has not been able to produce its result/reply on the files of this Court.

I, therefore, hold that the applicant is entitled to the claim as set out in the claim sheet, and which has not been disputed.

The issue is answered in the affirmative.

In view of the above discussion. I allow the application and direct the opponent to deposit an amount of Rs. 7,415.03 (Rupees seven thousand four hundred and fifteen and paisa three only), in this Court within thirty days hereinafter for disbursement to the applicant.

A. E.

Application allowed.

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