Saga Sports Pvt. Ltd. vs Authority Under Payment Of Wages

CJDA 38

JUDGMENT SHEET

LAHORE HIGH COURT, LAHORE

JUDICIAL DEPARTMENT

Writ Petition No.19601 of 2011 (SAGA Sports (Pvt.) Ltd. v. Authority under Payment of Wages Act, Sialkot and another)

JUDGMENT

Date of hearing: 08.12.2014

Petitioners by: Mr. Moeen Qureshi, Advocate.

Respondents by: Mr. Khadim Hussain Tahir Hashmi, Advocate for the respondents.

Faisal Zaman Khan, J. This petition is directed against an order dated 09.6.2011 passed by the Authority under the Payment of Wages Act, Sialkot, (Authority) by virtue of which application filed by respondent no. 2 for payment of outstanding wages which was dismissed for non prosecution vide order dated 22.11.2010 was restored.

2.The facts in brief are that respondent No.2 who was working for petitioner Company lodged his claim for payment of outstanding salaries before the Authority but the said application was dismissed for non-prosecution on 22.11.2010. Feeling aggrieved, respondent No.2 moved an application for restoration of the same on 01.1.2011, which was accepted on 09.6.2011, therefore, this petition.

3.The only ground raised by learned counsel for the petitioner is that respondent No.1 under Rule 8(3) of Payment

of Wages (Procedure) Rules, 1937 (Rules), had no authority to condone the delay while deciding an application for restoration filed beyond the prescribed period (one month).

4.Conversely, learned counsel for respondent No.2 submits that delay in filing of the restoration application was not deliberate, which was considered by the Authority and therefore delay was condoned.

5.I have heard the learned counsel for the parties and have gone through the record.

6.The governing section under which, claims are lodged is section 15 of the Payment of Wages Act, 1936 (Act). By virtue of this section, all claims arising out of deductions from wages or non-payment of dues relating to provident fund or gratuity or delay in payment of wages are to be entertained and decided by the Authority notified under the Act. An application for a claim has to be filed within three (3) years from the date, on which deduction from wages was made or when the payment became due. It has also been provided that an application beyond the said period can be entertained provided there is sufficient cause. The procedure, which is followed by the Authority for proceeding with such application, is provided in section 15 (3) of the Act, which for convenience is reproduced hereunder:

“(3) when any application under sub- section (2) is entertained, the authority shall hear the applicant and the employer or other person responsible for the payment of wages under Section 3, or give 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 application 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 not 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)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 exceptional 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 reemployed person to apply for or accept payment.”

7.From the above, it can safely be deduced that once an application is entertained by the Authority, it has to give a finding upon that irrespective of the fact that any of the party appears. It is the prerogative of the Authority either to hear the parties or to give them an opportunity of hearing and inquire into the matter, as may be necessary and thereafter give a direction/finding.

8.It shall not be out of place to mention here that under section 15 of the Act, a claim can be lodged before the Authority, even after the prescribed period of limitation (3

years) subject to satisfaction of the Authority (showing good cause). Keeping this provision in juxtaposition with Rule 8(3) of the Rules through which a period has been prescribed for filing an application for restoration, i.e. one month from the date of the order with no power to condone the delay is in derogation of the parent statue and is excessive delegation. When Authority is invested with the powers to entertain an application for payment of wages beyond the prescribed period of limitation how could an embargo be placed on its powers not to entertain an application for restoration beyond the period of limitation or to condone the delay in cases of restoration and that too through the Rules. This stipulation by not entertaining an application for restoration, beyond the period of one month is beyond the pale of the parent statue therefore, no such fetter can be placed on the powers of the Authority through Rules which the parent statue otherwise does not allow. It is settled proposition of law that in cases of inconsistency between the statue and the rules it is the rules, which must yield to the statue. Reliance can be placed on Excise and Taxation Officer, Karachi and another v. Burmah Shell Storage and Distribution Compay of Pakistan Ltd. and 5 others [1993 SCMR 338], Messrs Mehraj Flour Mills and others v. Provincial Government and others [2001 SCMR 1806], Pakistan through Secretary Finance, Islamabad and 5 others v. Aryan Petro Chemical Industries (Pvt.) Ltd., Pewshawar and others [2003 SCMR 370] and Shahzada Khurram Nazir and another v. Province of Punjab through Secretary Industries, Punjab, Lahore and 4 others [PLD 2011 Lahore 276].

9.Even otherwise, non-payment of wages is a recurring action and can be agitated within three years of arising of the cause of action. For the sake of argument, if the application for claim was dismissed for non-prosecution and

not on merit, the petitioner could re-agitate his grievance within 3 years of the date of occurrence of original cause of action. If the application filed by respondent No.2 after 40 days of the order of dismissal of the main application was not maintainable, it could be treated to be a fresh application and decided accordingly on merits as no findings on merit were rendered by the Authority.

10.Payment of Wages Act being a Special Law is meant to provide substantial justice to the employees whose wages are stopped or wrongly deducted by the employer, therefore, is a beneficial legislation. The provisions of such legislations are to be liberally construed on the score that the mandate of providing such forums is to provide speedy and inexpensive justice to the employee who is deprived of his livelihood by the employer. A jaundiced approach in this regard will manifestly frustrate the mandate of law.

11.Looking it from another angle, when the case was fixed on 02.6.2010 and 13.6.2010 the designated official was not available due to transfer and therefore the case was adjourned for the said reason. Immediately thereafter, on 22.11.2010 the application of respondent No.2 was dismissed for non-prosecution. From the above it is clear that 22.11.2010 was not a date of hearing as on the previous dates, the Authority was not available, therefore, an adverse order could not have been passed against the parties. As mandated in section 15 of the Act, if for some purpose, presence was required, a specific order could be passed for fulfilling the said purpose instead of dismissing the main case for non-prosecution.

12.The upshot of the discussion is that order passed by respondent No.1 does not require any interference therefore the same is upheld, as a sequel to which, this petition is dismissed.

13.Before parting with the judgment, it shall be beneficial for the parties to direct respondent No.1 to decide the pending claim of respondent No.2 within a period of thirty days from the receipt of a certified copy of this order. Office is directed to dispatch a copy of this judgment to the said functionary.

(Faisal Zaman Khan) Judge Approved for reporting

irshad