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(a) Payment of Wages Act (IV of 1936)‑‑-

‑‑‑S. 15‑‑Transfer of Railways Order (33 of 1962) preamble‑‑Petitioner a railway employee recruited in East Pakistan before Provincialization of Railways in 1962 by Order 33 of 1962‑‑On creation of Bangladesh on 16‑12‑1971, petitioner opting for Pakistan and joined service of Pakistan Railways on 4‑2‑1975‑‑Petitioner claiming payment of salary and allowances for intervening period from 16‑12‑1971 to 3‑2‑1975 under S. 15 of Payment of Wages Act‑‑Central Government Notification dated 1‑9‑1975 allowing only Central Government employees to treat their period of absence as a period spent on duty‑‑Petitioner whose department had already been provincialised, held, could not be treated at par with Central Government employees and, therefore, contention that intervening period of absence of petitioner was to be treated as extraordinary leave without pay unexceptionable‑‑Since claim of petitioner was time barred and he submitted no application for condonation of delay with Authority, his claim, held further, was rightly rejected.

(b) Limitation Act (IX of 1908)

‑‑‑Ss. 3 & 5‑‑Limitation‑‑Condonation‑‑Delay of each and every day has to be explained.

Petitioner in person.

Ch. Rashid Ahmed for Respondents.

Date of hearing: 13th November, 1986.

This petition is directed against the two orders passed by the Authority under the Payment of Wages Act (hereinafter referred to as "the Authority") and the Fifth Sind Labour Court, Karachi, dated 9‑5‑1983 and 30‑7‑1985 respectively.

Briefly stated, the facts of the case are that before the partition of the sub‑continent, the petitioner had joined East Indian Railways in 1946 as an Assistant Guard. After the partition the petitioner opted to serve in Pakistan and joined East Pakistan Railways in October, 1947. It may be pointed out that the Railways at that time were the central subject.

The petitioner thereafter continued to work in the then East Pakistan till 16‑12‑1971 after which a new State of Bangladesh was created. Earlier in 1962, the President of Pakistan had been pleased to promulgate President's Order No. 33 of 1962 with a view to transfer Railways in each of the Provinces then existing, to the respective Provincial Governments or to an authority which may be constituted in the Province for such purpose. Thereafter, in accordance with the provisions contained in Article 9 of the aforesaid order, the petitioner opted to serve with the Government of East Pakistan. However, after creation of Bangladesh, the petitioner was allowed to resume duty as a Guard in Pakistan Railways from 4‑2‑1975. Thereafter, the petitioner served as such in Pakistan till 2‑3‑1979, on which date he retired from service.

The petitioner thereafter, filed an application, dated 16‑9‑1981, under section 15 of the Payment of Wages Act, claiming a sum of Rs.18,476 on account of salary and allowances in respect of period from 16‑12‑1971 to 3‑2‑1975. This was the period when the petitioner was forced by the circumstances to remain out of service after the fall of East Pakistan until he was absorbed in service in Pakistan. However, his application was dismissed by the Authority vide its order, dated 9‑5‑1983, holding that the application of the petitioner was miserably timebarred. The petitioner filed appeal before the learned Labour Court which upheld the order passed by the Authority and dismissed the petitioner's appeal.

I have heard the ‑petitioner who has appeared in person and Chaudhry Abdul Rashid, the learned counsel appearing on behalf of the official respondents.

The petitioner has raised a two‑fold contention before this Court. Firstly, his contention has been, that as he was originally in service of Pakistan and all his terms and conditions of service applicable to him immediately before promulgation of the aforesaid Presidential Order had remained intact vide Article 9(3)(c) of the Order, therefore, he was governed by the notification published in the official Gazette, dated 1‑9‑1975 which reads as follows:‑

The President has been pleased to decide that, in case of Central Government servants who were serving in East Pakistan at the time of its occupation by the enemy, and left East Pakistan on or after 16th December, 1971 and have reached West Pakistan, the period of their absence from the 16th December, 1971 upto the date of resumption of duty in West Pakistan, will be treated as period spent on duty.

The petitioner's second contention was that the orders passed by the Authority and the learned Labour Court, holding that his application under section 15 of the Payment of Wages Act was barred by time, were illegal and therefore, liable to be quashed

Both these contentions have failed to impress me. The Gazette Notification, to which the petitioner has referred, clearly refers to the Central Government Servants. Since after promulgation of the President's Order No. 33 of 1962, the petitioner ceased to be the employee of the then Central Government, he cannot be governed by the notification in question. Since the petitioner opted to serve in the then Province of East Pakistan, he became an employee of the Provincial Government and his claim that he should be governed by notification, dated 1‑9‑1975 does not appear to be well founded. Chaudhry Rashid Ahmed has also drawn my attention to instructions issued by the Ministry of Railways (Government of Pakistan through its letter, dated 8‑11‑1976 according to which non‑P.R.S. employees recruited before provincialisation of Railways in 1962 have not been treated at par with the Central Government servants and in their case the period between 16‑12‑1971 and their absorption in Pakistan Railways as to be treated as extraordinary leave without pay It has not been disputed by the petitioner that these instructions are attracted to the petitioner's case because irrespective of Article 9(3)(c) he was an employee of the Provincial Government. Be that as it may, but the arguments of the petitioner even if accepted would not be of any avail to him as his l application filed before the Authority appears to be miserably timebarred. Admittedly, no application for condonation of delay had been filed by the petitioner. He has, however, contended that in view of the representation addressed to the concerned Ministry by Secretary P.E. Railway Displaced Employees Welfare Association which was rejected in 1978, the claim of the petitioner before the authority was within time. This argument cannot help the petitioner now as his claim filed on 16‑9‑1981 claiming wages from 16‑12‑1971 to 3‑2‑1975 was clearly time‑barred and no application for condonation of delay had been made to the authority under the Payment of Wages Act. Under such circumstances the authority was justified in rejecting the application of the petitioner since no reason had been mentioned for condonation of the delay. It hardly needs to be mentioned that delay of each and every day had to be explained by the petitioner which admittedly he failed to do.

I, therefore, find no force in this petition which is hereby dismissed.

M. Y. H. /5176/ K Petition dismissed.

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