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‑‑S.15(2), first and second provisos & S.17‑‑Application for payment of wages‑ ‑Limitation‑‑Condonation of delay‑‑Appeal, competency of‑ Authority, under Payment of Wages Act, held, was only competent under second proviso to subsection (2) of‑S.15 of Act to condone delay in cases where claim had been preferred beyond period of three years but when delay had been condoned and directions issued by authority same would fall within ambit of subsection (3) of S.15‑‑Appeal filed against order of Authority would fall within purview of S.17 of the Act and would be competent.

(b) Provisional Constitution Order (1 of 1981)‑‑

‑‑‑Art.9‑‑Payment of Wages Act (IV of 1936), Ss.15 & 17‑‑Application for payment of wages‑‑Limitation‑‑Labour Court after considering evidence before it coming to conclusion that application filed by worker before Authority was time‑barred and no cogent grounds for condoning delay could be established by him before Authority‑‑Question whether delay should have been condoned or not on basis of evidence produced was question of fact which had been determined by Labour Court after taking into account evidence‑‑No jurisdictional error pointed out either‑ Interference declined by High Court with findings of Labour Court in exercise of its Constitutional Jurisdiction.

Muhammad Ahmed for Petitioner.

A.T. Mahmood for Respondent No.2.

Date of hearing: 3rd December, 1986.

This petition is directed against the order passed by the learned Sixth Sind Labour Court, Hyderabad, dated 12‑11‑1981, whereby the appeal filed by the respondent No.2, Pakistan Railways, was allowed and the order, dated 7‑9‑1981 passed by authority under the Payment of Wages Act (hereinafter referred to as "the authority") was set aside.

2. The facts of the case, briefly are, that the petitioner was employed by the Pakistan Railways, respondent No.2 in the case. He had joined the service of the respondent No.2 in 1947 as an optee from Indian Railways. The petitioner retired from the respondent's service on 2‑5‑1977 when he was working as Assistant Station Master at Karachi and then filed an application under section 15 of Payment of Wages Act on 28‑7‑1979, claiming wages from 20‑10‑1947 to 31‑12‑1947 and 1‑1‑1949 to 31‑11‑1961, respectively. Although it is not clear whether the wages were claimed by him as deducted or delayed wages but the order of the authority shows that an amount of Rs.22,713.25 had been claimed by the petitioner on account of wrong fixation of his pay by the respondent No.2. An application for condonation of delay was also filed by the petitioner, as otherwise, admittedly, his claim before the authority would have been time‑barred. However, the claim of the petitioner was allowed by the authority vide its order, dated 7‑9‑1981. Be that as it may, the respondent No.2 then filed appeal before the learned Sixth Sind Labour Court, Hyderabad, which allowed the appeal and set aside the order passed by the authority, holding that the claim of the petitioner before the authority was time‑barred and that the same had been wrongly condoned by the authority. Aggrieved by this order the petitioner has now filed this petition before this Court.

3. I have heard Mr. Muhammad Ahmed, learned counsel for the petitioner and Mr. A. T. Muhammad, learned counsel for the respondent No.2. None has appeared on behalf of the Sixth Labour Court which has been impleaded as respondent No.1 in this case.

4. Mr. Muhammad Ahmed has raised a two fold contention before me, firstly, that the learned Labour Court was not competent under section 17 of the Payment of Wages Act to go into the question of limitation after the same had been determined by the authority and secondly, that the finding arrived at by the learned Labour Court that the claim of the petitioner was time‑barred was erroneous on merits. As to the first contention, the argument of the counsel has been that since for condonation of delay the authority has to invoke its jurisdiction under the second proviso to subsection (2) of section 15 of the Payment of Wages Act, therefore, any direction given by the authority in this connection would fall within the purview of subsection (2) of section 15. Since under section 17 of the aforesaid Act only directions given under subsections (3) 'and (4) of section 15 are appealable, the appeal filed by the respondent before the learned Labour Court was not competent. First of all, sections 15 and 17 of the Payment of Wages Act may be reproduced for convenience of reference as follows:

"15. Claims out of deductions from wages or delay in payment of wages and penalty or malicious or vexatious claims.‑‑(1) The (Provincial Government) may, by notification in (official Gazette) appoint any Commissioner for Workmen's Compensation or other officer with experience as a Judge of a Civil Court or as stipendiary Magistrate to be the authority to hear and decide for any specified area all claims arising out of deductions from the wages (for non‑payment of dues relating to provident fund or gratuity payable under any law), or delay in the payment of wages, of persons employed or paid in that area.

(2) Where contrary to the provisions of this Act any deduction has been made from the wages of an employed person, or any payment of wages (or of any dues relating to provident fund or gratuity payable under any law) has been delayed, such person himself, or any legal practitioner, or any official of a registered trade union authorised in writing to act on his behalf, or any Inspector under this Act, (or of any heirs of an employed person who has died) or any other person acting with the permission of the authority appointed under subsection (1), may apply to such authority for direction under subsection (3):

Provided that every such application shall be presented within (three years) from the date on which the deduction from the wages was made or from the date on which the payment of the wages was due to be made as the case may be:

Provided further that any application may be admitted after the said period of (three years) when the applicant satisfies the authority that he had sufficient cause for not making the application within such period.

(3) When any application under subsection (2) is entertained, the authority shall hear the applicant and employer or other person responsible for the payment of wages, under section 3 or given them an opportunity of being heard, and, after such further inquiry (if any) as may be necessary, may, without prejudice to any other penalty to which such employer or other person is liable under this Act, direct the refund to the employed person (or, if the applicant, is one of the heirs of an employed person the payment to such applicant), of the amount deducted, or the payment of the delayed wages, together with the payment of such compensation as the authority may think fit, not exceeding ten times the amount deducted in the former case and exceeding ten rupees in the latter:

Provided that no direction for the payment of compensation shall be made in the case of delayed wages if the authority is satisfied that the delay was due to:‑‑

(a) bona fide error or bona fide dispute as to the amount payable to the employed person, or

(b) the occurrence of an emergency, or the existence of ex0ceptional circumstances, such that the person responsible for the payment of the wages was unable, though exercising reasonable diligence, to make prompt payment, or

(c) the failure of the employed person to apply for or accept payment.

(4) If the authority hearing any application under this section is satisfied that it was either malicious or vexatious, the authority may direct that a penalty not exceeding fifty rupees be paid to the employer or other person responsible for the payment of wages by the person presenting the application.

(5) Any amount directed to be paid under this section may be recovered:‑

(a) if the authority is a Magistrate, by the authority as if it were a fine imposed by him as Magistrate, and

(b) if the authority is not a Magistrate, by the authority as an arrear of land‑revenue, or, in the prescribed manner, by the authority by distress and sale of the movable property belonging to the person by whom the amount is to be paid, or by attachment and sale of the immovable property belonging to such person."

"17. Appeal.‑‑(l) An appeal against a direction made under subsection (3) of 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 8, 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;

(1‑A) All appeals pending before any District Court under this section immediately before the commencement of the Labour Laws (Amendment) Act, 1974, shall on such commencement stand transferred to, and be disposed of by, the Labour Court within whose jurisdiction the cause of action to which the appeal relates arose.

(2) Save as provided in subsection (1) any direction made under subsection (3) or subsection (4) of section 15 shall be final."

A perusal of section 17 shows that according to subsection (1), the Labour Court has been empowered to hear appeals, against the directions made under subsection (3) or (4) of section 15 of the Act. According to subsection (3) of section 15, on an application filed by a person employed in respect of any claim arising out of deductions from his wages or delay in the payment of wages, etc. the authority has been empowered to direct after holding of an enquiry, the refund of such dues to the employed person, together with the payment of compensation to him as the authority may deem fit. Subsection (4) of section 15 empowers the authority to impose penalty on account of malicious or vexatious claims made under section by persons employed. The first proviso to subsection (2) of section 15 provides that every claim shall be presented within three years from the date on which deduction of wages was made or the date from which payment of wages was due to be made, as the case may be, and the second proviso then provides that any application may be admitted after the period of three years prescribed by the first proviso when the applicant has satisfied the authority that he had sufficient cause for not making any application within such period. However, it would be too broad a proposition to advance that because in every case falling within the purview of the first and the second proviso to subsection (2) of section 15 the authority can only direct payment to the person employed after invoking its powers of condonation of delay under the second proviso to subsection (2) of section 15, the directions if given would fall within the purview of only that subsection. The second proviso to subsection (2) of section 15 only enables the authority to condone the delay in cases where the claim has been preferred beyond the period of three years but when delay has been condoned and directions are given by the authority. the same would fall within the ambit of subsection (3) of section 15. I am, therefore, clearly of the view that the appeal filed by the respondent No.l against the order of the authority clearly falls within the purview of section 17 of the Payment of Wages Act and as such the same was competent.

As far as the second argument advanced by Mr. Muhammad Ahmed is concerned the learned Labour Court after considering the evidence before it came to the conclusion that the application filed by the petitioner before the authority was time‑barred and no cogent grounds for condonation of the delay could be established by the petitioner before the authority. The question, whether the delay should have been condoned or not on the basis of the evidence produced by the petitioner was a question of fact which has been determined by the learned Labour Court after taking into account such evidence. No jurisdictional error hag been pointed out by Mr. Muhammad Ahmed and, therefore, in absence of that this Court would refuse to upset the findings of fact arrived at by the learned Labour Court. The law on the point is well‑settled and I need not dilate further on the point.

For the aforesaid reasons this petition does not have any merit and the same is dismissed. However, there will be no order as to costs.

M.Y.H./N‑16/ K

Petition dismissed.

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