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Appeal No. 18 of 1985, decided on 31st July, 1986.

‑‑‑Ss. 15 & 17‑‑Claim of wages‑‑Application beyond time‑‑Effect‑ Appeal‑‑Competency to file‑‑For claim of wages if application was beyond time and Authority failed to condone delay, no appeal, held, would lie against that order‑‑Where, however, delay was condoned, still no appeal would lie against such order‑‑Appeal would be competent only against directions, if any, made under subsections (3) a (4) of S. 15 of Payment of Wages Act.

1984 S C M R 1311 fol.

‑‑‑Ss. 15 & 17‑‑Claim of Project Allowance‑‑No justification for withholding‑‑Effect‑‑Where Project Allowance was allowed to a number of similar workers by Authority in a number of cases, such direction having been upheld by Appellate Court, there would be, held, no justification in changing such view‑‑Dismissing appeal of establishment Appellate Court directed deposited amount to be paid to employee.

M. M. Aqil for Appellant.

M. Bashir Awan for Respondents.

Respondents had filed an application under sections 15 and 16 of Payment of Wages Act claiming a sum of Rs.10,720 being project allowance payable to workers for different periods. It has been the contention of the applicants before the learned Authority that similar allowance had already been permitted to other workers firstly by the learned Authority and thereafter by this Court, as specifically specified in the application itself. This claim was resisted on behalf of M.C.P. on many grounds. It was contended that the project allowance was not admissible to the applicants before their regularisation particularly when they had never worked in the workshop and they did not fall in the category of a workman. It was also pleaded that the earlier orders passed were sub judice before the Hon'ble High Court.

After evidence, the impugned order was passed which has now been assailed in this appeal. I have accordingly, heard Mr. M.M. Aqil, Advocate for the appellant, and Mr. M. Bashir Awan, counsel for the respondents. I have also considered the factual and legal position involved herein.

The main submission, and which has been advanced with sufficient force, by Mr. Aqil before me is that the very application before the learned Authority was hopelessly time‑barred and so the impugned order is liable to be set aside. He submits that to assume the jurisdiction in regard to the claim of the workers it is a condition precedent to see that the application before the Authority is within time and sufficient cause has been shown for condo nation if the same was filed beyond period of limitation. Learned counsel submits that if the learned Authority considers the application as time‑barred or it condones the delay, no appeal shall be competent against the findings in regard to the limitation but if the matter is disposed of on merits, either without considering limitation or condoning the delay, the appeal would certainly be competent and the appellate Court would also be competent to examine the proprietary and legality of the findings of the learned Authority on the point of limitation. He has repeatedly read the relevant provisions of section 15 and section 17 of P.W.A. and submitted that the learned Authority committed serious illegality in condoning the delay.

Mr. Awan submits that the appeal is competent only against the directions made under subsection (3) or subsection (4) of section 15 and no appeal shall lie against the findings recorded under subsection (2) of section 15 ibid. Learned counsel submits that point of limitation is to be decided by the Authority itself under subsection (2) and his findings shall attain finality and will never be questioned before any forum. He has placed reliance on 1984 S C M R 1311.

The authority cited by Mr. Awan is directly on this legal pro‑position. It has been held in this report as under:‑

"The first proviso to subsection (2) of section 15 lays down that limitation within which the application has to be filed whereas the second proviso authorises the condo nation of delay for sufficient cause. Subsection (3) provides the procedure to be followed where an application under subsection (2) is entertained. Section 17 provides for an appeal against the direction made under subsection (3) or subsection (4) of section 15. Here what is omitted is an appeal against an order refusing to entertain an application on the ground that it is barred by time or for sufficient cause the delay is condoned. The intention of the Legislature seems to be in that case where the application is beyond time and the Authority fails to condone the delay under the second proviso to subsection (2), no appeal shall lie against that order under section 17. On the same footing where the delay is condoned still no appeal would lie on that ground and the matter would be liable to be adjudicated upon in the manner laid down by subsection (3). If this would not have been the intention a provision would have been made in section 17 as in the case of directions made under subsections (3) and (4). Clearly, therefore, an order dismissing the application as being barred by time or condoning the delay for sufficient cause does not qualify as a direction to make it appeal-able under section 17."

In view of this dictum, the submission made by Mr. Aqil has no substance and so it is repelled.

Reverting to the merits of this case, 3 suffice it to say that the Project Allowance was allowed to a number of similar workers of M. C. P. by the learned Authority in a number of cases. The directions given by the learned Authority were later on up held by this Court in I appeal. Accordingly, I do not find any justification in changing the view earlier held by this Court on this point. It has been pleaded that this point has now been sub judice before High Court and if it is so the M. C. P., would be at liberty to take such legal action as it may consider expedient in the light of the view to be taken by the Hon'ble High Court.

In view of the above, this appeal is dismissed. The amount deposited be paid and the R and P be sent back forthwith.

A. A.

Appeal dismissed.

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