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Petitioner: PAKISTAN RAILWAYS VS Respondent: ABDUL MAJID KHOKHAR
Court Name: Lahore High Court Judge(s): Rustam S. Sidhwa Title: PAKISTAN RAILWAYS vs ABDUL MAJID KHOKHAR Case No.: Writ Petition No, 3493 of 1978W; P. No, 472 of 1978W. P. No, 472 of 1978 Date of Judgment:1983-06-14 Reported As: 1984 PLC 281 Result: Petition dismissed
JUDGMENT
JUDGMENT ' This is a constitutional petition filed by the Assistant Works Manager (B), Pakistan Railways, Jhelum petitioner calling in question the judgment of the Authority appointed under the Payment of Wages Act, Gujrat, dated 16th September, 1976 and the judgment of the Punjab Labour Court No, 6, Rawalpindi, dated 16th February, 1978 passed in appeal. 2. The brief facts of the case are that in 1967 Abdul Majid Khokhar respondent No, 3, was working as Clerk Grade-II in the Bridge Workshop, Pakistan Railways, Jhelum. On 12th September, 1967 he fell sick and went on sick leave. During his illness, he received letter of the Railway Department, dated 1st September, 1967 transferring his services to Loco Shops, Mughalpura, Lahore. Respondent No, 3 objected to the transfer on the ground of its being mala fide as it was made with the fraudulent object of defeating his chances of promotion, inasmuch as he was senior most at Jhelum, whereas he would become junior most at Lahore. On 25th September, 1967 respondent No, 3 left the Railway Hospital and proceeded to his village for further treatment. The Railway Department, however, did not renew his leave from that date. On 18th October, 1967 respondent No, 3 was relieved from his duty at Jhelum, so that he could take over his duties at Lahore. However, respondent No, 3 being ill and under medical treatment in his village, could not take up his duties at Lahore, but on 27th January, 1968 filed a declaratory suit at Lahore challenging his transfer. On 31st July, 1968 respondent No, 3 reported for duty at Jhelum after recovering from his sickness. He was not given any duty, but his case was referred to Lahore for further orders. On 7th October, 1968 the Civil Court directed status quo to be maintained by the parties. On 23rd December, 1969 respondent No, 3 filed a petition under Order XXXIX, rule 2(3) and section 151, C. P. C. For contempt proceedings against certain senior officers of the Railway for not permitting him to resume duty. On 28th June, 1972 the
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Civil Court decreed the suit in favour of respondent No, 3. On 31st August, 1972 the Railway Headquarters directed the Jhelum authorities to allow respondent No, 3 to resume duty. On 1st September, 1972 respondent No, 3 resumed his duty at Jhelum and demanded his arrears of salary. Since respondent No, 3 was able to prove his illness upto 30th July,- 1968 he was paid his salary till that day. On 22nd February, 1973 the Railway Department treated the period of his absence from 31st July, 1968 to 31st August, 1972 as on leave due. Being aggrieved by the said order, Respondent No, 3 preferred a departmental appeal against the same on 7th July, 1973 before the Vice- Chairman, Railway Board. Notwithstanding a number of reminders, no decision was taken on the respondent's appeal, as contempt proceedings filed by the respondent against the Railway Authorities in the Civil Court were still pending, though the civil suit had been decided. On 30th July, 1973 the Vice-Chairman, Railway Board, reiterated his earlier stand that he could do nothing as the case was under trial in the Court of law. Thoroughly despaired by the attitude of the Railway Authorities, respondent No, 3 on 19th August, 1974 filed an application before the Authority under the Payment of Wages Act Lahore demanding arrears of his wages from 31st July, 1968 to 31st August, 1972 and compensation for delay in its payment. On 7th July, 1975 the Authority ordered the payment of Rs, 15,781 being his salary dues for the period 31st July, 1968 to 31st August, 1972. Being aggrieved by the said decision, the Pakistan Railways preferred an appeal before the Punjab Labour Court, Lahore, which accepted the appeal on 18th February, 1976 set aside the judgment of the Authority under the Payment of Wages Act and returned the petition to respondent No, 3 for presentation before the proper forum at Gujrat. On 4th March, 1976 respondent No, 3 again filed an application before the Authority under the Payment of Wages Act, Gujrat. Realizing that the claim of respondent No, 3 would be accepted, on 27th August, 1976 the Pakistan Railway paid the sum of Rs, 17,650.68 to respondent No, 3 being salary due from 31st July, 1968 to 31st August, 1972 which respondent No, 3 received under protest. On 16th September, 1976 the Authority at Gujrat, respondent No, 2, accepted the respondent's petition and granted him compensation at the rate of 4 times his wages, which amounted to Rs, 70,602.40. Being aggrieved by the said decision the Pakistan Railways preferred an appeal before the Punjab Labour Court No, 6, Rawalpindi, respondent No, 1, which dismissed the same on 16th February, 1978. The Pakistan Railways then preferred the present constitutional petition challenging the two decisions of respondents Nos, 1 and 2, which was admitted on 5th July, 1978 to consider the limited question where the non- payment of the wages of respondent No, 3 amounted to deduction from the wages are delayed wages, so as to entail penal compensation, which petition is now before me for disposal. 3. Learned counsel for the petitioner has made the following submission : First, that he does not challenge or desire to recover back the actual amount of Rs, 17,650.68 paid to and received by respondent No, 3 from the Pakistan Railway, that being his actual wages due for the period 31st July, 1968 to 31st August, 1972 but he only desires to challenge the balance sum awarded as compensation to respondent No, 3 by the two lower Courts. Second that the delayed wages relating to the period 31st July, 1968 to 31st August, 1972 having been paid to respondent No, 3 before the decision of the case, which the said respondent accepted under protest, there were no wages due on 16th September, 1976 which the Authority could have allowed and, therefore, both the lower Courts could not have granted any compensation, In this connection the learned counsel has cited Chaman La! Ishwar La! Mehta v. Junior Inspector of Factories and Chief Inspector of Factories UP v. V. K. Moodi . Third that both the lower Courts erred in granting compensation at four times the delayed wages to respondent No, 3, whereas under section 15(3) of the Payment of Wages Act, 1936 compensation for delayed wages could not exceed Rs, 10. In this connection learned counsel has cited The Divisional Superintendent N. W. R. Lahore v. Inamul Haq Butt . Fourth, that for the purposes of limitation, respondent No, 3 could not take advantage of the provisions of section 14 of the Limitation Act, as the same was only applicable to civil suits and not to1 2 3
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proceedings before the Authority which was a persona designata. As such respondent No, 3 could not take advantage of the period bona fide spent by him in taking proceedings before the Authority under the Payment of Wages Act at Lahore and before the appellate Court at Lahore and that for the purposes of the proper determination of respondent No, 3's dues, the application filed before the Authority should be deemed to be that filed at Gujrat on 4th March, 1976 and not that which was filed at Lahore on 19th August, 1974. In this connection, learned counsel has referred to Noor Ali v. Kanpur Omnibus Service Ltd. . Fifth, that if this Court considers that the period spent by respondent No, 3 before the Authority at Lahore, etc. Should be excluded, then wages due for the period prior to July, 1972 could not be claimed. In this connection learned counsel submits that under the first proviso to subsection (2) of section 15 of the Payment of Wages Act, an application to the Authority for claiming delayed wages had to be presented within six months from the date on which the payment of the wages fell due and though the said proviso was amended by the Payment of Wages (Amendment) Act, XVII of 1973, on 7th February, 1973 to extend the period to three years, the said extension could not be applied to such wages which were not claimed within 'the earlier limitation period of six months and in respect of which a vested right had accrued to the Pakistan Railway. In this connection, learned counsel has cited Warcha Salt Mines v. Presiding Officer, etc. . Sixth and last that respondent No, 3 being employed in the clerical cadre and working in the Administrative Office of the Railway at Jhelum is not a person who falls under section 1(4) of the Payment of Wages Act so as to be governed by the said Act. In this connection it is submitted that a person employed "upon any Railway" in section 1(4) of the said Act means a person who is working in connection with the movement of the Railway or one associated with the track, but not one who works in an Administrative Office in any town or in the Headquarter Office at Lahore. In this respect learned counsel refers to Akbar Ali and others v. The General Administration Officer Pakistan Railways, Lahore (W. P. No, 472 of 1978 decided by the Lahore High Court on 5th December, 1979). In the view of the matter, it is submitted that the judgments of both the lower Courts are without jurisdiction. In the alternative, it is submitted that assuming this Court holds that respondent No, 3 was covered by the Payment of Wages Act, still the Authority under the Payment of Wages Act had no jurisdiction to entertain the respondent's claim as he being a civil servant under section 2(1)(b) of the Civil Servants Act, LXXI of 1973, had the right of moving the Federal Service Tribunal for the recovery of his delayed or deducted wages and compensation thereon. On this score also it is submitted that the judgment of both the lower Courts are without jurisdiction. 4. Learned counsel for respondent No, 3 has made the following submissions : First, that by virtue of section 38(3-a) of the Industrial Relations Ordinance, 1969 (as amended in 1977), the petitioner has an alternative remedy of invoking the revisional jurisdiction of the Punjab Labour Appellate Tribunal. In this connection learned counsel has cited National Cement Industries v. Sind Labour Appellate Tribunal . In these circumstances, learned counsel submits that the petitioner has an alternative remedy. And therefore, this constitutional petition is incompetent and he should be directed to avail of the said alternative remedy. Second, that as the petitioner denied the total entitlement of respondent No, 3 to his wages from 31st July, 1968 to 31st August, 1972 and did not pay the same for eight years, notwithstanding the decree of the civil Court passed in favour of respondent No, 3 on 28th June, 1972 that the nonpayment amounts to deduction of wages and respondent No, 3 was rightly granted compensation at the rate of four times the said deducted wages. 5. Before taking up arguments of the petitioner, I would first deal with the preliminary objection raised by the learned counsel for respondent No, 3. According to him, the present petition is incompetent as the petitioner has an alternative remedy of invoking the revisional jurisdiction of the Punjab Labour Appellate Tribunal. In this connection, learned counsel has cited National Cement Industries v. Sind Labour Appellate Tribunal. However, this Court in Pakistan Through Chairman, Pakistan Railway Board v. Maqsood Ali and others has already held that the Labour4 5 6 7
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Appellate Tribunal cannot revise the decision of a Labour Court acting as Appellate Authority under the Payment of Wages Act, 1936, within the ambit of the powers granted to it under section 38(3-a) of the Industrial Relations Ordinance, 1969. In these circumstances, the preliminary objection of the respondent is rejected. 6. I will now take up the submissions made on behalf of the petitioner. It is the case of the petitioner that since the Railway Authority cleared all the dues of respondent No, 3 on 27th August, 1976 when the respondents application under section 15 of the Payment of Wages Act was still pending before the Authority at Gujrat, there were no wages due on 16th September, 1976 the date when the Authority passed its final order granting compensation, and since there were no wages due which the Authority could have allowed on that date, therefore, it should not have granted any compensation. Learned counsel attacks both the lower Courts order as being passed in excess of jurisdiction on the basis of this legal objection. In this connection, learned counsel relies upon Chaman Lal v. Junior Inspector of Factories and Chief Inspector of Factories U. P. v. V. K. Moodi. In both these cases, the applications before the Authority were filed after the wages due had been paid and what was claimed was only compensation. These cases are, therefore, distinguishable. In the instant case when the application was first filed before the Authority at Lahore on 19th August, 1974 and later before the Authority at Gujrat on 4th March, 1976 after the appellate Court had decided that the earlier application had been filed in the wrong Court, not a paisa of the wages due was paid to the respondent No, 3. The payment of the wages due was only made on 27th August, 1976 during the pendency of the proceeding which payment was accepted by respondent No, 3 under protest. In these circumstances nothing prevented the Authority or the appellate Court from granting compensation to the respondent. If it found that the same was due and payable to him. 7. It is next contended on behalf of the petitioner that the amount due to respondent No, 3 was for wages for the period 31st July, 1968 to 1st September, 1972 and that as the same was paid late at the case was one of "delayed wages", for which compensation payable under section 15(3) of the Payment of Wages Act, 1936 was only Rs, 10 maximum and compensation at the rate of four times of the "delayed wages" could not be ordered. In this connection learned counsel has referred to the Divisional Superintendent N. W. R. Lahore v. Inamul Haq Butt. Before dealing with this matter, I would first like to say a few words about Inamul Haq Butt's case. In this case, the employee claimed certain wages due, plus interest at the rate of 12 per cent. On account of delayed wages and, allowances, to which was added a sum of Rs, 1,200 by way of compensation. During the course of proceedings, the employee was paid his wages due. There remained for decision the question of compensation. The Authority granted him compensation at the rate of Rs, 10 for each term of six months' wage period due, thus granting a total compensation of Rs, 20. In appeal, the District Judge did not agree with that view of the Authority that each period of six months should be taken as a unit, but held that for the purposes of compensation, the wage period should be taken as a unit of a month and compensation was payable in respect of each unit. He thus allowed Rs, 100 on the basis that ten months' wages were due. The Divisional Superintendent, N.W.R. Thereupon, filed a revision petition in the High Court where this Court held that claims arising out of delay in payment of wages should be treated as a sole claim for the entire sum overdue as wages and not as a series of separate claims for the consecutive periods involved. The High Court, therefore, awarded Rs, 10 as compensation to the employee, that being the maximum provided under section 15(3) of the Payment of Wages Act, 1936. In this case, no argument was advanced on behalf of the Railway employee that the case was one of deduction and not of delayed wages, and compensation should be granted. In these circumstances, this case cannot be cited as an authority for the proposition that where there is unauthorised deduction, or where a case can be treated as one not of delayed wages, compensation cannot be granted. In the instant case, what stands out a mile
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apart is that when respondent No, 3 reported for duty at Jhelum on 31st July, 1968, after he recovered from his sickness, the Railway Authority refused to take him on duty, on the pretext that they had to seek instructions from their Headquarters at Lahore. Respondent No, 3 was prepared and willing to work, but the Railway Department prevented him from so doing. On 23rd December, 1969 respondent No, 3 filed a contempt petition against certain officials of the Railway for preventing him from resuming his duty. On 28th June, 1972 the Civil Court decreed the suit of respondent No, 3 in his favour, setting aside the transfer order. On 31st August, 1972 the Railway Headquarter Office at Lahore informed the office at Jhelum to permit respondent No, 3 to resume duty, which he did on 1st September, 1972. Notwithstanding the decree of the civil Court dated 28th June, 1972 the Railway Authorities refused to pay any salary to respondent No, 3 for the period 31st July, 1968 to 31st August, 1972. To add fuel to fire, by letter dated 22nd February 1973 the Railway Authorities took a final decision in the matter and treated respondent No, 3 as on leave due. Respondent No, 3 was thus constrained to file departmental appeal against the said order, but decision thereon was indefinitely withheld. He then filed a petition for wages due for the period 31st July, 1968 to 31st August, 1972 together with compensation before the Authority under the Payment of Wages Act at Lahore on 19th August, 1974. Respondent No, 3 then went through the harrowing experience of having his application thrown out by the appellate Court on 18th February, 1976 on the ground that the application had been presented before the Authority at Lahore, which was not competent to hear the case. He then filed his application before the Authority at Gujrat on 4th March, 1976 and it was during the pendency of these proceedings, that the Railway Authorities realised their error, decided to pay the sum of Rs, 17,650.68 which was due to respondent No, 3 which they did on 27th August, 1976 and which the said respondent accepted under protest. It cannot be said that this is a bona fide case of delayed wages. Where wages, which are admittedly due and over which there is no dispute, are held up or postponed for some reasonable, but not too long, a period due to financial difficulties, accumulation of stock, non-receipt by a company of its bills, or internal audit snags, it would be a case of "delayed wages". In Simpalax Manufacturing Co. Ltd. v. Allahuddin Backett, J. Held that delayed wages only meant wages which were admittedly due but the payment of which had been postponed on some excuse or the other. The learned Judge did not consider the possibility of postponement, which was either malicious or too long as to be unreasonable in the extreme. In K. P. Mushran v. B. C. Patil Chagla, C. J. Held that if "delay" was given its plain and natural meaning, delay in payment of wages would only arise when there was no dispute as to payment of wages, but the employers was only in default in not paying them on the due date. The learned Chief Justice held that where there was a dispute as to the payment of wages, and the dispute was as to the quantum or as to the whole amount of the wages, then whether there was a deduction of a part of the amount or the whole amount of the wages was not paid, it would still be a case of unjustified deduction. In the Upper India Coupar Paper Mills Co. Ltd. v. I. C. Mathur , Nazirullah Beg, J. Whilst dealing with the argument whether deduction referred to in the Payment of Wages Act could only relate to those as were specified in sections 7 to 13 thereof, held that deduction could relate to those which fall under the specific heads mentioned in the said section or those that resulted from other causes and that they could also result from withholding of part of the wages or the entire amount of the wages. The learned Judge also held that the word "deductions" in section 15 appeared to be used in wide sense so as to include the entire deficiency which an employee could allege had been caused in the payment of wages, as a result of the withholding of the same by the employer, whether partially or wholly. The learned Judge further held that it seemed unreasonable to hold that the Legislature intended that where the employer withheld payment of one pie from the salary due, the application would be maintainable as a case of deduction, but where the employer withheld the whole salary, the application would not be maintainable as it was not a case of deduction. In Anant Ram v. District Magistrate where certain8 9 10 11
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employees were dismissed and reinstated through various orders and they were not paid their wages for the period between their dismissal and rei-nstatement. Wanchoo, C. S., held that their ' re-instatements clearly implied that the Authority had deducted their wages, wholly or in part, for the period between dismissal and reinstatement, and that their cases were covered by the provisions of the Payment of Wages Act. The learned Chief Justice further held that no deductions under section 7(2)(b) could be made from wages of employees when their absence from duty was for the period between their dismissal and reinstatement as the said absence was not voluntary, which alone was covered by the said provision. However, since the Railway in some of the said cases had passed orders under rule 2044 of the Railway Establishment Code, which enabled the Railway Authorities, where a railway servant who had been dismissed, removed or suspended, was re-instated, to consider and make a specific order regarding the pay and allowances to be paid to him for the period of his absence from duty and to treat or not to treat the said period as one spent on duty, the said deduction, where such orders were passed, were treated as deductions falling within the purview of section 7(2Xp) of the Payment of Wages Act and the same were treated as permissible and' not as unauthorised deductions. In the instant case, the initial order dated 1st September, 1967 transferring respondent No, 3 from Jhelum to Lahore was malicious, as it tended to destroy his seniority at Jhelum and place him amongst the junior most employees in the same category at Lahore. After the said order was set aside by the civil Court on 28th June, 1972, the Railway Authorities by its order dated 22nd February, 1973 placed respondent No, 3 on leave due. This order, if implemented, would have enabled respondent No, 3 to draw full salary for such period of earned leave as he had accumulated, half of the salary for twice the period accumulated, for the earned leave and no salary for the balance period. In short, the Railway Authorities, by this order, ordered the deduction from the respondent's wages by exercising the power available under rule 2044 of the Railway Establishment Code. But in Muhammad Aslam Rose v. Federation of Islamic Republic of Pakistan this Court has held that where a Civil Court,sets aside a termination as void. Rule 2044 is not applicable to his case, as the saw is only applicable where the Railway within its own internal jurisdiction holds inquiries and sets , aside its orders. In this connection Divisional Superintendent P. W. R. Karachi v. Bashir Ahmad , Divisional Superintendent N. W. R. v. Muhammad Sharif and Ghulam Mustafa Shah v. Pakistan may also be referred with advantage. In the present case the civil Court declared the transfer order to be ma/a fide illegal, ultra vires and, therefore, not affecting the rights of the petitioner. The Railway first thwarted its implementation by not permitting respondent No, 3 to resume duty. Then it acted maliciously by acting under rule 2044. No power was available under rule 2044 of the Railway Establishment Code, to the Railway Authorities to act, as they did, as the respondent had never been dismissed, removed or suspended by them. But the Railway Authorities also did not implement their order, dated 22nd February, 1973. It did not determine how much the respondent was entitled to on full pay and how much he was entitled to on half pay. It did not do anything nor paid a paisa to respondent No, 3. The respondent's appeal, dated 7th July, 1973 was not decided at all, due to the contempt case pending in the civil Court against the Railway Authorities. There cannot be any doubt that the case was, therefore, one of deduction of the full wages to which ' respondent No, 3 was entitled. The only question which the Authorities thus had to decide was whether the deduction was unauthorised. This is not a case of absence from duty under section 7 the Payment of Wages Act. It is also not a case of deduction for absence from duty as provided under clause (b) of subsection (2) of the said section. A deduction for absence from duty under the said clause…
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