Find a Lawyer

Civil Petition for Leave to Appeal No. 173/R of 1985, decided on 28th June, 1986.

(On appeal from the judgment and order of the Lahore High Court, Rawalpindi Bench 18‑12‑1984, passed in Writ Petition No. 9889 of 1980) .

‑‑Arts. 185 & 199‑‑Payment of Wages Act (IV of 1936), S.17‑‑Writ jurisdiction‑‑Remand order‑‑Adequate remedy available in lower Court‑ Writ recalled‑‑Labour Appellate Court remanding case for decision afresh after affording opportunity to parties to produce evidence‑‑Order set aside by High Court in writ jurisdiction‑‑Order of remand not being final adjudication of claim and adequate remedy was available in law‑‑Writ petition, held, was incompetent‑‑Impugned order being in excess of jurisdiction vested under Art. 199 of Constitution of Pakistan (1973) writ already issued recalled‑‑Petition converted into appeal and allowed.

‑‑‑S. 17 (1) (a)‑‑Certificate of payment‑‑Competency of appeal‑‑Filing of certificate of payment before Labour Appellate Tribunal would be substantial compliance with law‑‑Appeal would lie when certificate is filed‑‑Provision of S.1.7 mentions only period within which amount should be deposited and not that it should be deposited before filing an appeal or after its institution .

Ch. Fazale Hussain, Advocate Supreme Court for Petitioner.

Mian Inamul Haq, Advocate Supreme Court and Ghulam Dastgir, Advocate‑on‑Record for Respondents.

Date of hearing: 28th June, 1986.

By this petition leave is sought to appeal against the judgment and order of Lahore High Court, Rawalpindi Bench, dated the 18th December, 1984 passed in Writ Petition No. 9889 of 1980.

2. Facts giving rise to this petition are that on the 13th October, 1966 West Pakistan Industrial Court, Lahore gave an award that A.C.C. Attendants were also members of the Running Staff and were entitled to Mileage Allowance as payable to the drivers and guards. After this Award, the Railway Administration started paying Mileage Allowance to the respondents; that on 19th January, 1976, in another case Mushtaq Ahmad v. Divisional Superintendent, Pakistan Railways in which the respondents were not parties, the Punjab Labour Appellate Tribunal held that A.C.C. Attendants (appellants in that appeal) were entitles; to the overtime wages as were admissible to the drivers. After this decision the Railway Administration started making payment of overtime Wages as well provisionally with effect from 19th January, 1976; that for the first time in 1977 the respondents filed applications under section 15 of the Payment of Wages Act, 1936 before the Authority claiming the arrears of overtime wages amounting to Rs.2,64,463 from the 13th October, 1966 to 19th.January, 1976. All those petitions were consolidated by the Authority, and it allowed the full claim of overtime wages ranging back to about 10 years. The Authority further allowed two times compensation amounting to Rs.5,28,926 and thus decreeing total of Rs.7,93,389 against the Railways. Direction was also given that the aforesaid amount be deposited in the Court within thirty days of the order, for disbursement to the respondents; that the petitioner, before filing the appeal, deposited the aforesaid amount by means of cheque No. 19/4324 on the 14th April, 1979 for which certificate was issued. An appeal was filed before the Labour Court No. 6. Rawalpindi. Cash payment was, however, desired by the Court and as such a total sum of Rs.7,93,389 was tendered in cash on the 16th April, 1979 and again on the 17th April, 1979 but the Clerk concerned gave remarks that the Authority was on leave and the decretal amount cannot be taken until and unless the Authority resumes, duty. It was on the 19^th April, 1979 that the amount in cash was accepted by the Authority and the previous certificate to this effect was cancelled. As the payment in cash was being made, as desired .by the Authority, the petitioner informed the Bank on the 18th April, 1979 not to make payment of the aforesaid cheque to avoid double payment; that the petitioner, thereafter, filed appeal before the Punjab Labour Court, Rawalpindi on the 16^th April,1979 under section 17 of the Payment, of Wages Act. The respondents objected that the appeal did not 'lie' because Certificate, required under section 17 of the Payment of Wages Act regarding deposit of the amount before the Authority did not accompany the Memorandum of Appeal. This objection was overruled by the learned Presiding Officer of the Appellate Court in the following words:‑

"I think the word 'lie' is not in the sense of entertaining and the words that no appeal shall lie, will not mean that no appeal shall be entertained but it will mean that no appeal shall be decided in favour of the appellants unless there is a required certificate with the Memorandum of Appeal. Since at present the Memorandum of Appeal is accompanied by the certificate, the appeal shall lie and the fact when the amount was deposited before the lower authority is not relevant,"

that the learned appellate Court further held that section 15 of the Payment of Wages Act clearly lays down that the illegally deducted wages can be claimed only within three years from the date of their deduction. The respondents had filed their applications on the 5th November, 1977. Hence, their claim from 5th November, 1974 are within time while the claims from the 13th October, 1966 to the 4th November, 1974 are clearly time‑barred; that with the above findings the appeal of Pakistan Railways was accepted and the case was remanded with the direction. that the Authority should consider the claims of the respondents from the 5th November, 1974 to the 18th January, 1976 only and should decide the case afresh by affording the parties another chance of producing evidence of their choice.

Respondents, feeling dissatisfied with the aforesaid judgment of the Appellate Court, invoked the constitutional jurisdiction of the Lahore High Court, Rawalpindi Bench in a writ petition which was allowed vide the impugned order, dated 18‑12‑1984.

3. Notices were issued to the respondents. Their counsel was present. We have heard the learned counsel for the parties. Learned counsel for the petitioner contended that the case was remanded by the learned Labour Court for decision afresh after affording opportunity to the parties to produce evidence; that this being not a final adjudication of the claim of respondents, adequate and efficacious remedy being available in the lower Court, the writ petition before the learned High Court was incompetent. It was submitted that the impugned order was in excess of the jurisdiction vested under Article 199 of the Constitution. The learned counsel further contended that the learned High Court Judge has committed an error in interpreting section 17 of the Payment of Wages Act; that deposit of the amount by means of cheque by the petitioner, was sufficient compliance of section 17 particularly by the Department of Pakistan because, as is the normal practice, no cash amount is handled by its employees; that a cheque for the required amount was tendered before the Authority on the 14th April, 1979. But since cash payment was desired by the Court, the total sum of Rs.7,93,389 was tendered in cash; that the Authority was on leave on the 16th April, 1979 and 17th April, 1979 and the Clerk concerned gave remarks that the amount could not be accepted till the Authority resumes duty. In these circumstances the learned counsel submitted that the amount was deposited on the 19th April, 1979 and the earlier certificate obtained to this effect, was cancelled; the appeal having already been filed on the 16th April, 1979. In the circumstances filing of certificate on the 19th April, 1979 would be substantial compliance of law. He next contended that even according to the decision of the learned High Court Judge, the appeal would lie when the certificate is filed. It cannot, therefore, be said that there was no competent appeal on the 9th April, 1980 when the judgment was given by the appellate Court. Hence the learned High Court has committed an error by saying that the orders passed in appeal by the Presiding Officer on the 19th April, 1980 were without lawful authority. The Authority had ordered on the 19th March, 1979 for the deposit of the amount within 30 days. The amount was received by the Authority on the 19th April, 19 9 as explained above, impliedly extending the time of deposit to that date.

4. We have examined the contentions raised by the learned counsel and find that section 17 of the Payment of Wages Act on which the judgment of the learned High Court is based, mentions only the period within which the amount should be deposited and not that it should be deposited before filing an appeal or after its institution. It would be worthwhile to reproduce the whole section 17 as follows:‑

"17 Appeal. (1) An appeal against a direction made under section (3) or subsection (4) of section 15 may be preferred within thirty days of the date on which the direction was made before the Labour Court, constituted under the Industrial Relations Ordinance, 1969 (XXIII of 1969) within whose jurisdiction the cause of action to which the appeal relates, arose.

(a) by the employer or other person responsible for the payment of wages under section 3, if the total sum directed to be paid by way of wages and compensation exceeds three hundred rupees, provided that no appeal under this clause shall lie unless the memorandum of appeal is accompanied by a certificate of the authority, to the effect that the appellant has deposited with the authority, the amount payable, under the direction appealed against, or

(b) by an employed person or, if he has died, by any of his heirs, if the total amount of wages, claimed to have been withheld from the employed person or from the unpaid group to which he belonged, exceeds fifty rupees, or

(c) by any person directed to pay a penalty under subsection (4) of section 15. We hold that contentions raised by the learned counsel are based on correct interpretation of the aforesaid provision of law.

Therefore, converting the petition into appeal we allow the appeal with costs and recall the writ resulting in the impugned order.

M. I. Appeal accepted.

Find a Lawyer Near You

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