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Appeal No. 19 of 1985, decided on 26th March, 1986.

‑‑‑S. 17‑‑Appeal against orders of Authority‑‑Findings regarding limitation, held, was not appealable.

1984 S C M R 1311 rel.

‑‑‑S. 15‑‑Application before Authority about claim deducted wages‑ Limitation‑‑Claim based upon decree of civil Court‑‑Decree of civil Court subjected to appeals‑‑Limitation, in circumstances, held, would run from date of final appellate order.

P L D 1964 S C 520 rel.

M. Ibrahim Soomro for Appellant.

Muhammad Bashir Awan for Respondent.

The respondent/ applicant was employed in the respondent organization. He was terminated on 5‑8‑1968, which order was set aside by the civil Court of Kotri on 28‑2‑1970. The decision of the civil Court was upheld by the District Judge, Dadu as also by the High Court of Sind on 10‑4‑1971 and 4‑11‑1978, respectively. The respondent/ applicant was then taken on duty from 12‑3‑1970 where he is said to be still working. In pursuance of the aforesaid Court decree the applicant became entitled to his wages from the date of termination till his re‑instatement in service. However, wages for the period commencing from 27‑2‑1969 to 11‑3‑1970 amounting to Rs.7,415.03 were not paid and so application under section 15 of the Payment of Wages Act, was filed before the Authority under Payment of Wages Act at Hyderabad on 25‑10‑1981.

2. This application was resisted on behalf of the appellant mainly on the points of limitation and jurisdiction. After evidence, it appears that the learned Authority overruled the legal objections and considered the applicant/Despondent entitled to the amount claimed before him. He accordingly, gave directions to the respondent by order, dated 14‑4‑1985 and this order has now been assailed in this appeal.

3. I have heard Mr. M. Ibrahim Soomro, Advocate for the appellant, and Mr. M. Bashir Awan, counsel for the respondent. I have also considered the legal proposition involved herein as also the merits of the case.

4. It has been contended by Mr. Soomro that the applicant respondent was not a workman under the provisions of Factories Act and that he was a civil servant and so he could not have approached the learned authority. His contention is based on the fact that the applicant /respondent had himself approached the civil Court for getting his termination order set aside claiming therein himself as a civil servant. Learned counsel has perhaps overlooked the change in law brought sometime in 1973 whereby, the jurisdiction of the Service Tribunal has been specified and the jurisdiction of the civil Court has been ousted. The persons employed in any factory and are not having any supervisory position have been held to be workers under the 'Factories Act and such workers are excluded from the jurisdiction of Services Tribunal. They are also not considered to be civil servants and so they are to be governed by the provisions of Payment of Wages Act. Accordingly, the learned authority had rightly entertained the present case.

5. It has next been contended by Mr. Soomro that the application before the learned authority was hopelessly time‑barred in view of the position that the applicant obtained his decree sometime in the year 1970 and so he could have brought his claim within 3 years thereof, but since this application was instituted in 1981 the claim of the applicant ought to have been rejected being barred by limitation. He also submitted that, in any case, the claim of the applicant is of recovery of the amount which tentamounts getting the decree of the civil Court executed. In fact, the applicant ought to have approached the same civil Court who had granted the decree for its execution and should not have invoked the jurisdiction of the learned authority, Mr. Bashir, on the other hand, submits that the claim of the applicant was not the execution of the decree of the civil Court but it was advanced in pursuance of the order of the civil Court. Since the applicant was a worker and since he had been denied the wages, he had no option but to resort to the provisions of Payment of Wages Act. Moreover, the order of the civil Court continued to remain pending till the final decision of the second appeal by the High Court in the year 1978. Accordingly, the cause of action to the applicant actually accrued in the, year 1978 and so his claim is within time.

6. In so far as the question of limitation is concerned suffice it to say that the learned authority has overruled the objection of limitation and held the application within time. This finding of the learned authority cannot be challenged in appeal before this Court because the question k of limitation is to be decided only by the authority and no appeal lies against the verdict recorded by the authority. Reliance is placed on 1984 S C M R 1311. Even. otherwise the plea of the appellant is not tenable because the decree of the civil Court contained to remain under attack on behalf of the appellants till the decision in second appeal. It l has been observed in P L D 1964 S C 520 that:‑

"in any case once an appeal is filed the matter becomes subjudice and when the Appellate Authority passes an order, the order of the original authority disappears and merges in the order of the appellate authority so that there remains in existence only the appellate order and this order can be made the basis of a suit‑"

It has also been held in the same case that:‑

"in spite of the fact that there was an order of dismissal in the present case limitation should not run till the matter was decided by the Appellate Tribunal."

7. In view of this dictum of the Supreme Court the present case of the respondent was rightly considered to be within time.

8. On merits, there appears to be no dispute that in pursuance of the Courts orders referred to above the applicant was entitled to the relief claimed herein and so the impugned order does not require any interference by this Court.

9. In view of the above, this appeal is dismissed. The authority is directed to pay the deposited amount to the applicant.

A. E. Appeal dismissed.

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