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Constitutional Petition No. S‑32 of 1985, decided on 19th May, 1987

‑‑‑S.15‑‑Payment of wages‑‑Employee awarded wages by Authority under the Payment of Wages Act who proceeded on basis of respective pleas of parties and determined claim of employee‑‑Contention raised by employer, that employee remained absent from duty for a certain period and was not entitled to wages, not established by him before Tribunals below who arrived at concurrent findings on said question of fact‑‑Petition, being without force, was dismissed.

‑‑‑O.VII, R.7‑‑Rights of parties must be determined on date of suit and not on basis of rights which accrued to them after institution of suit.

Province of East Pakistan v. Major Nawab Khawaja Hasan Askary P L D 1971 S C 82 rel.

‑‑‑Art. 199‑‑Constitutional jurisdiction‑‑Question of fact Concurrent findings arrived at on question of fact by Tribunals below Such question, held, could not be reopened in constitutional jurisdiction.

Ch. Rashid Ahmad for Petitioner.

Muhammad Abdul Qadir for Respondent No.3.

Date of hearing: 14th April, 1987.

The respondent No.3 was employed with the petitioners as a fitter. The respondent filed an application under section 15 of the Payment of Wagest Act before the Authority under that Act, avering, that on or about 8‑1‑1977 the respondent had suffered an injury in the course of his employment and has remained under treatment of District Medical Officer, Karachi from 8‑1‑1977 to 12‑4‑1977. He was consequently allowed two months' sick leave and was also paid his salary upto 31st March, 1977. Thereafter, the respondent filed an application, claiming compensation on account of disability suffered by him before the Commissioner for Workmen's Compensation but the same was withdrawn by him on assurance of the petitioners that his case would be referred to Surgeon Kazi of Jinnah Hospital Karachi. However, when the respondent went to get himself examined by him, he was told that Surgeon Kazi had left for U.S.A. Thereafter, the respondent issued various reminders to the petitioners but to no avail. Thus, according to respondent, he was forced by the petitioners to remain unemployed from 1st April, 1977, and consequently the respondent claimed wages amounting to Rs. 25,463 with effect from 1st April, 1977 to 31st July, 1981. As part of the claim preferred by the respondent was time‑barred, an application under section 5 of the Limitation Act for condonation of the delay was also filed by him.

The petitioners filed written statement wherein although the claim of the respondent was not specifically denied, but it was disputed that the respondent was entitled to wages between 31‑3‑1977 and 26‑9‑1977, as according to the petitioners, the respondent had remained absent from duty unauthorisedly.

After framing issues and recording evidence the learned authority under the Payment of Wages Act (Respondent No.2) allowed the claim of the applicant in full. The delay in filing the application was also condoned by the learned authority. The petitioners then filed appeal before the learned Fifth Labour Court, Karachi but the appeal was also dismissed and the order passed by the learned authority was maintained.

I have heard Chaudhry Rasheed Ahmed, learned counsel for the applicant and Mr. Muhammad Abdul Qadir, learned counsel for the respondent No.3. None appeared on behalf of the other respondents.

Before this Court, Chaudhry Rasheed Ahmed has raised a two‑fold contention: Firstly, according to him, the services of the respondent No.3 had been terminated by the petitioners with effect from 5‑4‑1977 and, therefore, the respondent was no more employed with the petitioners and consequently his application before the respondent No.2 was not competent. His second contention was, that according to the written‑statement filed by the petitioners, the respondent had not rendered any services to the petitioners between 31‑3‑1977 and 26‑9‑1977 and, therefore, the respondent No.2 had no jurisdiction to grant wages for that period. Reliance was also placed by the counsel on an earlier judgment given by me in C.P. No. 126/83 wherein it was held that the powers given to the authority under the Payment of Wages Act did not extend to determination of questions which were fundamental in nature and were disputed by the opposite party. Mr. Muhammad Abdul Qadir on the other hand has fully supported both the impugned orders. He has further argued that since the questions determined by subordinate Tribunals were purely questions of fact, the same could not be re‑opened by this Court while exercising constitutional jurisdiction.

So far as the first contention of Chaudhry Rasheed Ahmad is concerned, there is no contest on the point that the services of the respondent No.3 were terminated by the petitioners with effect from 5‑4‑1977 on the ground of his continuous absence from duty and his application for re‑instatement was also dismissed by the learned Labour Court, as is also evident from a copy of the order of the learned Fifth Sind Labour Court, Karachi, a copy of which has been filed by the petitioner before this Court. Another copy of the decision of the learned Sind Labour Appellate Tribunal has also been filed which indicates that an appeal filed by the respondent No.3 against the order of the learned Labour Court was also dismissed. However, admittedly, the action against the respondent was taken by the petitioners after his application had already been disposed of by the respondent No.2. Accordingly to the order of the learned Labour Appellate Tribunal, such action had been conveyed to the respondent on 15‑1‑1985. At the time of filing of the written statement by the petitioners, the plea taken by them only was that the respondent No.3 had unauthorisedly remained absent from duty from 31‑3‑1977 to 26‑9‑1977. Both the learned Tribunals below therefore, proceeded on the basis of the respective pleas then raised by the parties before them and determined the claim of the respondent accordingly. Since admittedly the termination of the services of the respondent No.3 has taken place much later the same cannot be taken into consideration by this Court and it also cannot be taken as a ground of challenge to the orders passed by the learned Authority under the Payment of Wages Act or the learned Labour Court notwithstanding the fact that such termination of services took effect retrospectively, i.e. with effect from 5‑4‑1977. In the Province of East Pakistan v. Major Nawab Khawaja Hasan Askary P L D 1971 S C 82, it was held by the Supreme Court that rights of the parties must be determined as on the date of the suit and not on the basis of rights which accrued to them after the institution of the suit. I have no hesitation in taking the same view with which I am bound. This contention of Chaudhry Abdul Rasheed is therefore repelled.

So far as the next ground urged by the counsel is concerned, a plea had specifically been taken that absence of the respondent No.3 from 31‑3‑1977 to 26‑9‑1977 was unauthorised and, therefore, the respondent was not entitled to wages for that period. However, the question being purely that of fact the same had to be established by the petitioners. According to both the learned Tribunals below, the plea could not be established by the petitioners. In view of such concurrent findings of fact. This Court would be too reluctant to reopen the question. The case decided by me earlier and referred to by Chaudhry Abdul Rashid is also clearly distinguishable in view of the circumstances discussed above and is not attracted to the facts of the present case.

Consequently, I find no force in this petition and the same stands dismissed. There will however, be no order as to costs.

M. Y. H. /D‑10/ K

Petition dismissed.

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