Find a Lawyer

Appeal No.15 of 1985, decided on 20th May, 1986.

‑‑‑S. 15‑‑West Pakistan Water and Power Development Authority Act (XXXI of 1958), S.17 (1‑A)‑‑WAPDA employee transferred for good to M.C.P. an organisation registered as factory under Factories Act, 1934‑ Such employee retired while serving with M.C.P.‑‑Claim of illegal deductions towards gratuity and Provident Fund‑‑Jurisdiction of Authority under Payment of Wages Act, 1936 disputed on plea that being WAPDA employee he was a civil servant for purpose of Service Tribunal and thus remedy if any could be agitated before Service Tribunal‑‑Held, applicant being employee of factory could avail provisions of Payment‑‑of Wages Act.

‑‑‑S.15‑‑Deducted wages‑‑Claim for‑‑Employee, held, not debarred to claim amount which was less paid.

‑‑Ss. 15 & 17‑‑Deducted' amounts towards gratuity and provident fund‑ Claim for‑‑Authority awarding amounts more than actual claim without any calculations‑‑Order of Authority, in circumstances, modified by Labour Court in appeal to extent of actual claim.

M.M. Aqil for Appellant.

M. Bashir Awan for Respondent.

Wazir Khan approached the Authority under Payment of Wages Act, Hyderabad vide application No.31/81 for the payment of a sum of Rs.45,039.52 towards gratuity, provident fund, encashment of leave and 10‑times compensation for illegally deducted amount. According to his application made before the learned Authority, he was employed in the Appellant Organization, which organization was a factory and was also covered with Labour Laws, etc. He was said to have been less paid Rs.1480.57 towards gratuity, Rs.2,292 towards provident fund and Ra.3,541.25 towards leave.

2. This claim of the respondent /applicant was resisted by the appellant in the written statement filed on 15‑7‑1981. According to it, the applicant /respondent was not employed in any factory or industrial unit but was working in the workshop at Jamshoro where no manufacturing process is carried out. He was said to have been employed initially on 1‑3‑1960 and, on the creation of the appellant's organization in the year 1974, he was transferred to the appellant on deputation. He stood retired on 10‑4‑1979. It has been admitted that the applicant/ respondent is entitled to the relief of gratuity and provident fund under Labour Laws but he cannot claim encashment of leave in lieu of L.P.R. nor he had ever applied prior to his retirement. He was already paid gratuity and provident fund and he had not shown in his claim, any basis of his claim. .

3. After evidence of the parties hereto, the learned Authority allowed the claim of the respondent /applicant by order dated 14‑4‑1985 to the extent of Rs.9,624 and this order has now been assailed in this appeal.

4. I have heard Mr. M. Aqil, Advocate for the appellant, and Mr. M. Bashir Awan, counsel for the respondent. I have also considered the factual and legal propositions involved in this case.

5. The first and moat important submission of Mr. Aqil is that the learned Authority had no jurisdiction to entertain the claim of the respondent because the latter was the employee of WAPDA, and since all WAPDA, employees are civil Servant under section 17 (1‑A) of WAPDA Act, the respondent could have only approached the services Tribunal. Learned counsel has submitted that the applicant was sent on deputation by WAPDA, to M.C.P., with continuity of service and though he was retired by M.C.P. but the retirement benefits have been paid by WAPDA and further that he is also being paid pension by the WAPDA. Accordingly, he would be deemed to be the WAPDA employee and so he is a Civil Servant. Therefore, he cannot invoke the jurisdiction of the learned Authority. Learned counsel has referred to a number of decisions to the effect that the employees of WAPDA, would be Civil Servants and would not be covered by Labour Laws. Mr. Awan, on the other hand, submitted that the applicant was the employee of M. C. P., after his transfer from WAPDA, and so he was retired by M.C.P. alone. His retirement benefits were also paid by the M.C.P. and not WAPDA, nor he has been paid any pension by WAPDA, as pleaded by the appellant before this Court. No such plea was ever raised in the written statement nor any evidence to this effect was led before the learned Authority. This respondent had accordingly brought his cause before the Authority under Payment of Wages Act against the M.C.P. and so the jurisdiction is not ousted.

6. I have minutely scrutinized the evidence on record. The written statement filed by the appellant no where disclosed that the respondent remained the employee of WAPDA, that he was retired by WAPDA, that he was paid retirement benefits by WAPDA, or that any pension is being allowed to him and that too by WAPDA. The jurisdiction of the Authority was also not questioned on this ground. No evidence was also led by the appellant to prove its assertion that the applicant/ respondent remained the employee of WAPDA, and so he was a Civil Servant throughout. Admittedly the case was brought against M.C.P., which organization itself retired the respondent and which provenly paid the retirement benefits to the applicant /respondent. Merely saying by the General Secretary of the union that the applicant was sent by WAPDA, on deputation would not make the applicant an employee of WAPDA, nor he can thus be treated as a Civil Servant. The record shows that the M.E.P. was created in the year 1974 and was registered as a Company under the Companies Act as an independent organization having no connections whatsoever with WAPDA, and the employees transferred from WAPDA, to M.C.P. were transferred for good as is A evident from memorandum of Association filed as A/2 and also letters dated 4‑3‑1985 and 7‑4‑1985 alongwith its annexure. In view of this documentary evidence on record, it cannot be urged that the respondent was the employee of WAPDA, and so the learned Authority had no jurisdiction. This objection is accordingly repelled.

7. It has next been contended that the applicant /respondent was not employed in the factory and so he would not be entitled to claim the disputed amount under the provisions of Payment of Wages Act. This plea of Mr. Aqil is misconceived on the face of the record because admittedly the M.C.P. Organization is a registered factory under Factories Act, 1939 as is evident from certificate dated 28‑4‑1981 Annexure A.1 on the lower Court record. This certificate conclusively proved the applicant to be an employee of factory and so he could avail the provisions of Payment of Wages Act. This objection is accordingly repelled.

8. Mr. Aqil then submitted that while receiving the retirement benefits the applicant did not raise any protest and since he had received the entire benefits in full and final settlement he had no cause to bring this claim. This plea is also not supported by the evidence on record. There had never been the payment in full and final settlement inasmuch as the payment was made to the applicant even during the pendency of his application before the Authority on 29‑12‑1984 as per the paid voucher brought by the appellant itself on record on 2‑4‑1985 as per statement placed at page 115 of the lower Court record. Moreover, the appellant did not produce any document to show that the payments made to the applicant were received without any protests nor Mr. Aqil could show me any law which could debar an employee to claim the amount which was less paid to him. Mr. Aqil referred to documents A14 and A/5 of the lower Court record to canvass me that the applicant never showed his grievance in regard to the less payment towards gratuity and provident fund. A/4 was submitted on 9‑4‑1979 but he was to be retired with effect from 11‑4‑1979. A/5 was submitted on 20‑10‑1979 and there is nothing on record to show when the actual benefits were paid to the applicant. Accordingly, the applicant cannot be aware about his entitlement and the amount to be paid to him. He approached the Authority only when he found the payment less to what he was entitled. Accordingly, he was legally justified to maintain his claim.

9. Finally, it has bean asserted that under the Labour Laws the applicant was not entitled to encashment of unavailed leave in lieu of L.P.R. because no such L.P.R. Is permissible under Labour Laws. At the same breath Mr. Aqil submitted that the applicant had opted for pension under Pension Rules of WAPDA, and so he is being paid pension. No doubt true that the applicant is said to have opted for leave and pension rules of WAPDA, when the same rules were adopted by M.C.P. If these rules were more beneficial, the applicant legally entitled to claim benefits under these rules in accordance with the 8.0.9. As per these rules the appellant was legally bound to intimate the date of retirement well in advance and to ask for the option of the applicant if he wanted to proceed on L.P.R. This was never done and so it cannot be urged on behalf of the appellant now that since the applicant did not apply for L.P.R, he cannot claim encashment of leave. In fact, the applicant was kept on duty till last and thus he was not permitted any L.P.R. Accordingly, he was legally entitled to have the encashment upto the extent of 180 days. This was due to him and so it was rightly allowed to him by the learned Authority to the extent of 125 days, which was otherwise due to him.

10. Mr. Aqil also submitted that the learned Authority did not apply its mind while awarding the relief inasmuch as he granted the amount much more what was. actually claimed. I agree with Mr. Aqil on this point. In the application itself the applicant had claimed Rs.1,480 towards gratuity and Rs.2, 292 towards provident fund; but in the affidavit filed on behalf of the applicant, the gratuity was claimed upto Rs.1,965.90 and provident fund in the sum of Rs.2,292. The learned Authority however awarded a sum of Rs.3,340 towards gratuity and Rs.2743 in respect of provident fund. There is nothing on record to support this calculation made by the learned Authority. He is in the habit of passing such orders without properly applying his mind to the evidence on record. Accordingly, I would amend this and allow the claim of the applicant /respondent only to the extent he had claimed in his application itself and so he would be entitled to the following amounts: ‑

11. In the light of the above discussions, the appeal with the modification referred to in the penultimate paragraph is dismissed. The amount determined herein above be accordingly paid to the respondent.

A. E.

Orders accordingly.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.