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Appeal No. 92 of 1983, decided on 3rd January, 1984.

---Ss. 2, 3 & 15--Petition before authority--Proper party--Plea that in presence of Factory Manager Resident Director was not a proper party, held, would be upon person raising such plea--No documentary evidence produced and petitioner not given opportunity of evidence-Authority, in circumstances, held, was not justified to rely upon hearsay evidence of Labour Officer Victories).

---Ss. 2, 3 & 15--Civil Procedure Code (V of 1908), 0.1, R.10- Application in respect of deducted wages--Necessary and proper party- Objection that in presence of Factory Manager, Resident Director was not a proper party--Authority dismissing application on grounds of impleading improper party--Authority even without application could have ordered impleading necessary or proper party at any stage and application could have been amended subject to law of limitation.

---Ss. 2, 3, 15 &. 17--Application to Authority--Resident Director of employer Mills impleaded--No proof that there existed Factory Manager- Ultimate responsibility to pay claimed wages resting upon Resident Director--Application, against Resident Director, held, was maintainable--Order of Authority dismissing application on grounds of impleading improper party set-aside by Labour Court in appeal and case remanded for decision on merits.

---Ss. 15 a 17--Appeal against order of Authority--Authority dismissing application as not maintainable but also holding that applicant was entitled to claimed wages--Such contradiction in order of Authority, held, would justify interference in appeal.

Parwaz Chaudhery for Petitioner.

Syed Iqbal Ahmad Gilani for Respondent.

Date of Decision: 3rd January, 1986.

This judgment is to dispose of an appeal, under section 17 of the Payment of Wages Act, 1936, instituted by Murad Khan, here-in-after to be called appellant, against the Resident Director, Muhib Textile Mills Limited, Muzaffargarh, here-in-after to be called respondent, challenging the order, dated 7-3-1983, passed by the learned Authority Dera Ghazi Khan Region, Dera Ghazi Khan.

2. The facts necessary to understand the background are that appellant was appointed with the respondent since 29-12-1979 as Winder. As alleged, the appellant absented from duty for 10 days beginning from 27-1-1982 and his said absence led towards an action against him on behalf of the respondent. The appellant was charge-sheeted. Subsequent to charge-sheet, an enquiry was held against him which has not been concluded so far. The appellant did not move for duty and took recourse to learned Authority for payment of the wages under section 2 of the Payment of Wages Act, 1936. Before learned Authority he claimed following dues.

(i) Un-paid wages from 1-1-1982 to 26-1-1982, at the rate of Rs.600 p.m.

(ii) One month notice pay.

(iii) Gratuity for the period from 29-10-1980 to 26-1-1982.

The respondent resisted this application. In his written reply the respondent alleged that application has not been filed against a proper person. The Muhib Textile Mills Limited Muzaffargarh has a properly appointed Factory Manager, therefore, the application should lie against Factory Manager only and not the Resident Director in the light of section 3 of the Payment of Wages Act, 1936. The respondent further alleged that application did not disclose the detail of dues, therefore, was ambiguous. The appellant absented from duty for 10 days beginning from 27-1-1982 which led towards charge-sheet. The enquiry proceedings were still incomplete, therefore, the demand for gratuity was pre-mature. Moreover one month notice pay was also not due to the appellant because his services had not been terminated or dispensed with by the respondent. Regarding pay from 1-1-1982 to 26-1-1982 the respondent clarified that appellant worked only for 16 days. The pay of this period alongwith allowances comes to Rs.457.02 which the appellant himself failed to receive.

3. The learned Authority framed the following issues to dispose of the application: -

(i) Whether the application is liable to dismissal for impleading the wrong parties .

(ii) Whether the application is maintainable due to wrong prayer

(iii) Whether claim of gratuity is not premature; whether demand for salary is within the provision of law

(iv) Relief.

4. After recording the evidence of the parties, the learned Authority came to the conclusion that Muhib Textile Mills Limited, Muzaffargarh has a duly nominated Factory Manager, therefore, the application does not lie against the Resident Director under section 3 of the Payment of Wages Act, 1936. As a result of this finding the learned Authority decided issue No. 1 in favour of the respondent against the appellant and dismissed the application. In the light of this decision the learned Authority did not consider it proper to touch other issues. However, alongwith dismissal of the application the learned Authority held the appellant entitled to his un-paid wages. So far as the cost is concerned the learned Authority directed the parties to bear the same by themselves.

5. In appeal before this Court it has been alleged on behalf of the appellant that order of the learned Authority is against facts and law. To determine the appointment of Factory Manager the learned Authority examined the Labour Officer (Factories) suo motu without giving the appellant a right to cross-examine him. The Authority also failed to give finding on the rest o: the issues. It has also been contended that Resident Director was a proper and necessary party as such the application could not be dismissed. At the same time the appellant was not given a chance to re-argue the case after the statement of Labour Officer (Factories).

6. To assess the truth of appellants allegation detailed above I have gone through the record and heard the arguments on both sides. A careful perusal of the record shows that order of the learned Authority is not sustainable. The onus of issue No. 1 was on the respondent, therefore, respondent was bound to discharge it to the satisfaction of law. The evidence led by the respondent consists of only the statement of one witness which is without corroboration. The position of witness is as a party to the proceedings because he has been pursuing the case and in the given capacity his statement was not on any better footing. The appointment of a Factory Manager is a matter of record. In the said situation it was a duty of the respondent to prove the same by means of record rather than oral evidence. The respondent has detained the best evidence, consequently a presumption can be raised against him quite safely.

7. To reach at a right conclusion the learned Authority took a step to examine Labour Officer (Factories), Muzaffargarh. This move was good on the part of the learned Authority but the statement of Labour Officer also failed to resolve the controversy. According to him the Muhib Textile Mills Limited Muzaffargarh had a Factory Manager because the management told him the same. On the basis of information given to him by the Management his evidence is hearsay. Moreover he did not inspect the record, His statement was of no help at all, therefore, learned Authority was not justified to rely on it.

8. The implication of wrong parties did not justify the dismissal. In this regard I refer to the principle of law laid down in Order I, Rule 10 of C.P.C. which justifies its observance for the sake of justice. According to Order 1, Rule 10 of C.P.C. the Court may at any stage of proceedings even without the application of any party, order for implication of necessary or proper party. In case the appellant had impleaded wrong party then it could be amended subject to law of limitation.

9. Finally, in absence of Factory Manager application is quite competent against an employer under section 3 of the Payment of Wages Act, 1936. Section 3 lays down a general principle and that is that every employer including a contractor is responsible for payment of wages. An exception to this principle has been given in clause 'a' which refers to a Factory Manager. In the present case the respondent was bound to prove the exception. The respondent failed to do so, therefore, the application is competent against the Resident Director.

10. It is also notable that determination of the proper or, necessary party is necessary for the sake of execution. In this case the ultimate responsibility for payment of wages goes to the Resident Director. The objection that execution of order against Resident Director will raise complication does not arise in this case.

11. It is equally worth mentioning that learned Authority dismissed the case of the appellant and at the same time held him entitled for un-paid wages. This contradiction justifies an interference.

12. The result of this discussion is that appeal succeeds which is accordingly hereby accepted with costs. As a result of this decision I set aside the order, dated 7-3-1983 passed by the learned Authority and hold that in this case the Resident Director is a proper party. The application is quite competent so far as the parties are concerned.) The Authority is directed to give its finding on rest of the issues in accordance with law and facts. Parties are directed to appear before the learned Authority on 31-1-1984.

A. E. Appeal accepted.

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