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Civil Revision Petition No. 114 of 1957, decided on 27th April 1959.

(a) Pakistan Railway Establishment Code, Vol. 11, para 2126 Period of absence from duty should in fact have been treated as extraordinary leave before para. 2126 could be invoked to deprive employee of his salary.

(b) Payment of Wages Act (IV of 1936), S. 2 (vi)‑Employee willing to perform his part of contract but employer not allowing employee to do so‑Employee entitled to wages‑Position of suspended "employee almost similar to employee wrongfully dismissed or discharged.

An employee would be entitled to wages if the terms of the contract of employment are fulfilled. If the employee was willing to perform his part of the contract, but was not allowed to do so by the employer, it cannot be said that the employee had not fulfilled the terms of his contract or that he was not entitled to any wages for the period during which he was not allowed to work.

The position of a suspended employee is almost similar to that of an employee who has been wrongfully dismissed or discharged. If an employee, during the period of his suspension, can claim wages, there is no reason why an employee who has been wrong fully dismissed, should not be able to claim wages for the period during which he was not allowed to perform his duties.

Warburton v. Taff Vale Railway Company 18 T L R 420 ; Hanley v. Pease & Partners, Limited (1915) 1 K B 698 and K. P. Mushran v. B. C. Patil A I R 1952 Born. 235 ref.

(c) Payment of Wages Act (IV of 1936), S. 15 (2) second proviso‑Wages relating to period of wrongful discharge‑Employee applying for payment after getting a decree from Civil Court that the discharge was illegal, when six months' period had already long expired‑Sufficient ground for entertaining application after expiry of six months High Court refused to interfere in revision with entertaining authority's discretion : Simpalax Manufacturing Co. v. Alla‑ud‑Din A I R 1945 Lah. 195 and Messrs Bombay Cloth House v. Commissioner of Income‑tax P L D 1954 Lah. 50 ref

Syed Ali Shah for Petitioner.

Fazl‑i‑Ghani Khan for Respondent.

Dates of hearing : 6th and 20th April 1959,

The respondent, Muhammad Sharif, was an employee of the North Western Railway Administration and, at the relevant time, was working as a Booking Clerk at Gujrat. On the 6th April 1953, the Divisional Commercial Officer, Lahore, framed a charge against him on account of certain irregularities and, after some sort of inquiry, he was discharged from service with effect from the 30th June 1953. On the 7th April 1954, the respondent filed a suit in a Civil Court to challenge the order of his discharge. The Court held that the respondent's discharge from service was illegal and, therefore, he continued to be an employee of the Railway Administration. As a result of these findings, the res pondent's suit was decreed on the 9th June 1955. No appeal against the decree and judgment of the Civil Court was filed by the Railway Administration. His order of discharge was set aside and he was reinstated with effect from the 30th September 1955. As the respondent was not paid any salary for the period during which he was not allowed to work, he gave an application, on the 5th December 1955, under subsection (2) of section 15 of the Payment of Wages Act, 1936, claiming a sum of Rs. 3,006 as wages for the period between the 1st July 1953, and the 29th September 1955. The District Magistrate, as the authority under the Payment of Wages Act, by his order dated the 21st August 1956, awarded a sum of Rs. 2,858‑8‑0, as wages, to the respondent. The Railway Administration filed an appeal in the Court of the Additional District Judge, Gujrat, under section 17 of the Payment of Wages Act and that appeal having been dismissed, the Railway Administration, through the Divisional Superintendent has now moved this Court by means of revision petition under section 115 of the Code of Civil Procedure, praying for the setting aside of the judgments of the Courts below.

2. The learned counsel for the petitioner, while conceding that the respondent, Muhammad Sharif, was a person employed by the Railway Administration within the meaning of sub section (4) of section 1 of the Payment of Wages Act, 1936, and while also conceding that the provisions of this Act could apply to his case as his monthly wages averaged less than Rs. 200 per mensem, raised the following contentions :‑

"(1) the respondent did not perform any duty between the 1st July 1953, and the 29th September 1955, and, therefore, the amount claimed by him could not be considered as wages within the meaning of clause (vi) of section 2 of the Payment of Wages Act;

(2) the claim, if any, should have been preferred within a period of six months from the date when the payment of wages was withheld, and as no good grounds, as required by the second proviso to subsection (2) of section 15 of the Payment of Wages Act, 1936, were shown, the Courts below were not justified in admitting a time‑barred claim, and

(3) The respondent's absence during the period in question having been treated as extraordinary leave, within the meaning of paragraph 2126 of the Pakistan Railway Establishment Code, Volume II no wages for this period could be awarded to the respondent.

3. In my opinion, neither of the three contentions raised by the learned counsel for the petitioner has any force. It is, no doubt true that under paragraph 2126 of the Pakistan Railway Establish ment Code, Volume 11, the period during which the respondent remained absent, could be treated as a period spent on extra ordinary leave, for which no leave salary could be claimed by him, but there is no proof on the record to show that, in fact, the period during which the respondent did not work was treated by the Railway Administration as a period of extraordinary leave. Moreover, in the written statement filed before the District IA Magistrate, Gujrat, no such plea was taken up by the petitioner. The proper course for the petitioner was to have raised such a plea and if the respondent had not admitted the correctness of the allegation, the matter would have been put to issue and both parties allowed to produce evidence in support of their respective contentions. In the absence of any allegation to the effect that the period during which the respondent was not allowed to work was treated as a period spent on extraordinary leave, the conten tion raised by the learned counsel for the petitioner cannot be taken note of and the respondent's claim cannot be thrown out on any such ground.

4. As to the contention that wages could be claimed only during the period that a person performs any duty, the language of clause (d) of section 2 of the Payment of Wages Act, relied upon by the petitioner's ‑counsel, does not help him. This clause is worded as follows :‑

" Wages' means all remuneration, capable of being expressed in terms of money, which would, if the terms of the contract of employment, express or implied; were fulfilled, be payable, whether conditionally upon the regular attendance, good work or con duct or other behaviour of the person employed, or otherwise, to a person employed in respect of his employment or of work done in such employment, and includes any bonus or other additional remuneration of the‑ nature aforesaid which would be so payable and any sum payable to such person by reason of the termination of his employment, but does not include‑

(a) the value of any house‑accommodation, supply of light, water, medical attendance or other amenity, or of any service excluded by general or special order of the Provincial Govern ment ;

(b) any contribution paid by the employer to any pension fund or provident fund ;

(c) any travelling allowance or the value of any travelling concession ;

(d) airy sum paid to the person employed to defray special expenses entailed on him by the nature of his employment ; or

(e) any gratuity payable on discharge."

The words underlined by me are very significant and indicate that an employee would be entitled to wages if the terms of the contract of employment are fulfilled. If the employee was willing to perform his part of the contract, but was not allowed to do so, by the employer, it cannot be said that the employee had not, fulfilled the terms of his contract and was, therefore, not entitled to any wages for the period during which he was not allowed to work. Apart from the language of this clause, which, in my opinion, is unambiguous, and which supports the contention of the respondent, the learned counsel for the respondent referred to a number of authorities in which it was held that during the period an employee remains suspended from duty he can claim wages from the employer. In Warburton v. Taff Vale Railway Company (18 T L R 420), it was held that an employee who was suspended from duty for two weeks was entitled to his wages for that period. In Hanley v. Pease & Partners, Limited ((1915) 1 K B 698), a workman had absented himself for one day without leave from his employers. The employers did not dismiss him, but suspended him from working on the following day. Thereby he was prevented from earning the wages he would have earned on that day had he been allowed to work. It was held that the worker was entitled to wages, or damages, representing the amount of his wages, for the day he was not allowed to work. In K. P. Mushran v. B. C. Patil (A I R 1952 Bom. 235), it was held that, notwithstanding the order of suspension of an employee, the contract of employment was not suspended and, therefore, the employee was entitled to wages during the period of suspension.

5. In my opinion, the position of a suspended employee is almost similar to that of an employee who has been wrongfully dis missed or discharged. If an employee, during the period of his sus pension, can claim wages, there is no reason why an employee who has been wrongfully dismissed, should not be able to claim wages for the period during which he was not allowed to perform his duties. The contention of the learned counsel for the petitioner in this respect has, therefore, no force.

6. On the question of limitation, the learned counsel for the respondent contended that as there was a dispute about wages, without first having the order of discharge set aside by means of a suit, no application under section 15 of the Payment of Wages Act, 1936, could be presented by the respondent. He contended further that it was only after the respondent obtained a decree, declaring that he continued to be an employee of the petitioner, that he could move an application under section 15 of the Act for payment of his wages. There were thus according to the learned counsel for the respondent, sufficient reasons for extending the period of limitation under the second proviso to subsection (2) of section 15 of the Act and as the discretion was properly exercised by the Authority, whose decision was affirmed by the District Judge, this Court, in exercise of the revisional jurisdiction, cannot interfere. To support these contentions, he referred to Simpalax Manufacturing Co. v. Alla‑ud‑Dan (A I R 1945 Lah. 1959), in which it was held that delayed wages can only mean wages which are, admittedly, due and payment of which has been postponed on some excuse or another and that if there is a bona fide dispute as to the amount payable Civil Court have jurisdiction to entertain the claim, in spite of the provisions of section 22 of the Payment of Wages Act. The learned counsel also referred to Messrs Bombay Cloth House v. Commissioner of Income‑tax (P L D 1954 Lah.50) in which it was held that section 5 leaves it to the discretion of the Court to admit an appeal after the expiry of limitation if it is satisfied that there was sufficient cause for delay.

7. There can be no doubt that immediately after the res pondent was discharged from service, he could not have presented an application under section 15 of the Payment of Wags Act and that such an application could be presented only after the dispute regarding his employment had been settled by a decree of the Court and he had obtained a declaration that he continued to be a Railway employee. His case, therefore, was covered by the second proviso to subsection (2) of section. 15 of the Act and as the Authority, which entertained the application, was satisfied that there were sufficient reasons for not making the application earlier, it acted rightly in exercising the discretionary power conferred by this provision of law in favour of the respondent. As the discretion was properly exercised, this Court would not be' justified in interfering on the revisional side and in holding that the application should not have been entertained by the Authority concerned.

8. For reasons given above, I see no force in the revision petition and, hereby, dismiss the same with costs.

A. H. Petition dismissed.

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