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Appeal No. 4 of 1984, decided on 8th October, 1984.

‑‑‑Ss. 3 a 15‑‑"Employer"‑‑Person employing labourer or worker responsible for appointment and dismissal‑‑An employer‑‑Responsible for payment of wages though has to obtain funds from any other source‑ Executive Engineer appointing and dismissing authority of workers (petitioners)‑‑Petition before Authority resisted as not maintainable against Executive Engineer on plea that employer was Government through Finance Department being competent to allow allowances claimed as wages‑‑Plea rejected and petition against Executive Engineer, in circum stances, held, maintainable.

‑‑‑S.17‑‑Appeal against order of authority‑‑Deposit certificate‑‑Sine qua non to filing memorandum of appeal‑‑Certificate must be that amount has been deposited as per directions of Authority‑‑Authority directing deposit of amount within 30 days of date of impugned order‑‑Deposit made after expiry of such period and appeal filed without accompanying requisite certificate‑‑Appeal, in circumstances, held, not sustainable hence dismissed by Labour Court.

M. Ibrahim Soomro A.‑G.P. for Appellant.

Mohammad Bashir Awan for Respondent.

This appeal is directed against the directions given by the learned Authority appointed under the Payment of Wages Act on 15‑11‑1983 to the effect that the respondents are entitled to an amount of Rs. 60,480 and so the same be paid to them.

Succinctly the facts giving rise to this appeal are that on 21‑9‑1982, 42 persons filed an application under section 6 of Employees Cost of Living Relief Act before the Authority under the Payment of Wages Act, Hyderabad contending inter alia therein that they are employees within the meaning of the Cost of Living Relief Act, 1973, hereinafter referred as "Act of 1973", and the appellant opponent is their employer, that they were paid a sum of RS.1fO p.m. as Cost Living Allowance granted by the Government under Act of 1973 upto the month of April 1977. This CLA, was finally merged in their wages on 1‑5‑1977 at the time of the introduction of the Revised National Scales of Pay 1977. It has also been pleaded in the said application that on 1‑7‑1980 as also on 1‑7‑1981 the Government of Sind also allowed an additional CLA of Rs.40 p.m. to all the employees of the Province but the employer viz. the appellant herein failed to pay this additional granted amount of CLA, despite their repeated requests. On these premises they approached the learned Authority for the issuance of the necessary directions to the appellant /opponent.

This matter was resisted on behalf of the Government by filing reply statement on 13‑1‑1982. It was pleaded that the applicants were never governed by the Labour Laws. They were borne on work charge establishment upto 30‑6‑1982 and so were regulated by the P. W. D. Rules and Orders issued from time to time and, on their conversion into regular establishment as Civil Servants with effect from 1‑7‑1982 they were being allowed all benefits under the revised scales of pay. Rs.110 were granted to the applicants under the orders of the Finance Department not as CLA but only as Dearness Allowance and so they are not entitled to any amount under Act of 1973. It has also been pleaded that in fact the applicants had been paid a sum of Rs.150 p.m. on their conversion into regular establishment as was allowed to all the other Government servants. Finally, it has been pleaded that the employees being Civil Servants would not be entitled to the amount claimed herein and further that the learned Authority had no jurisdiction to entertain their claim.

On the pleadings of the parties the following issues were framed: ‑--

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

(2) Whether the applicants are entitled for the relief claimed, or part thereof.

(3) What should the order be

After hearing evidence, learned Authority directed the appellant to deposit the claimed amount within 30 days of the 'impugned order and hence this appeal.

I have heard Mr. M. Ibrhim Soomro, A.G.P. on behalf of the Appellant Government and Mr. Muhammad Bashir Awan, learned counsel for the respondents. I have also considered the evidence on record as also the legal submissions made at the bar.

The first contention of Mr. Soomro is that the application of the respondents was not maintainable in law because it was brought against the persons responsible for the payment of wages to them. Learned A.G.P. submits that the employer of the applicants/Respondents is Government of Sind through its Finance Department and if they have not been impleaded as partly, the learned Authority could not have issued directions to the Executive Engineer who cannot be considered" as an employer. This submission of Mr. Soomro is wholly misconceived and is repelled. According to section 3 of the Payment of Wages Act an employer means only that person who has employed the labourers or the workers and who is responsible for the appointment and dismissal, of any person. In other words, if a person is competent to appoint any employee, he would also be responsible for the payment of his wages though he may obtain funds for such payment from any other source. However, under the provisions of Payment of Wages Act the person who employs any one would be responsible for his payment and so would be employer.

Mr. Bashir Awan learned counsel for the respondents, has raised a legal plea that this appeal is not maintainable in law as the appellant has failed to comply with the directions of the learned Authority inasmuch as the directed amount was not deposited in court within 30 days of the order. Mr. Soomro, however, submits that the amount was deposited before the learned Authority. He also submits that the appeal is to be brought within 30 days of the order after computing such time as may have been spent in obtaining the required copy of the order. The appeal has undisputedly been filed within time and if amount directed to be deposited was deposited after 30 days, the appeal itself would not be incompetent as, according to Mr. Soomro the directed amount can be deposited at any time. I have considered this legal position and I agree with the learned counsel for the respondent that according to the proviso to section 17 of the Payment of Wages Act no appeal shall) be competent unless the memorandum of appeal is accompanied by all certificate of the Authority to the effect that "the appellant has deposited with the Authority the amount payable under the directions appealed against". On a plain reading of this proviso it is quite evident that the deposit certificate is sine qua non to filing the memorandum of appeal. Moreover, the certificate must be to the effect that the amount has been deposited as per the direction of the Authority and which means that the amount must be deposited within 30 days of the order impugned. In the instant case the impugned order was passed on 15‑11‑1983 directing the appellant to deposit the amount within 30 days. The appeal was filed in this court on 20‑12‑1983 without the required certificate of deposit. Not only this but, as is evident from the record itself the amount was actually deposited by the appellant on 8‑1‑1984 not only after the expiry of 30 days of the impugned order but also after 18 days of filing of the appeal itself. In nutshell the appeal was not accompanied by the required deposit certificate and so in view of the legal position enunciated above, this appeal is not sustainable in law. Accordingly, without adverting to the other pleas of the appellant I would dismiss this appeal on the sole ground that it is incompetent in view of what has been discussed hereinabove.

A. E.

Appeal dismissed.

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