M/S Pak Telecom Ltd & another Vs Iqtidar Alam Khan Tahir Khel

PESHAWAR HIGH COURT, PESHAWAR.

FORM OF ORDER SHEET

Date of Order of Order or other Proceedings with Signature of Judge (s) Proceedings

10.09.2026 C.R.No. 474-P/2024.

Present: Mr. Bilal Ahmad Kakazai, Advocate, for the petitioners.

Mr. Muhammad Zafar Khan Tahirkheli, Advocate, for the respondent.

MUHAMMAD FAHEEM WALI, J.- Through the instant civil revision petition filed under Section 115 CPC, the petitioners have called in question the judgment and decree dated 30.10.2023 passed by the learned District Judge-XIV, Peshawar, whereby their appeal against the judgment and decree dated 27.04.2019 passed by the learned Civil Judge-VII, Peshawar, was dismissed.

2.Briefly stated facts of the case are that the respondent/ plaintiff instituted a suit against the petitioners/ defendants for recovery of gratuity, leave encashment and salary advance.

Upon receipt of summons, the petitioners appeared and contested the suit by filing their written statement, denying the claim of the respondent/plaintiff. Out of the divergent pleadings of the parties, seven (07) issues were framed. The learned trial Court, after recording the evidence of the parties and hearing their learned counsel, partially decreed the suit in favour of the

respondent/plaintiff vide judgment and decree dated 27.04.2019. The petitioners preferred an appeal thereagainst, which was dismissed by the learned District Judge-XIV, Peshawar, vide impugned judgment and decree dated 30.10.2023, hence, the instant revision petition.

3.The principal contention advanced by the learned counsel for the petitioners is that the jurisdiction of the Civil Court was barred under Section 22 of the Khyber Pakhtunkhwa Payment of Wages Act, 2013 (Act of 2013) read with the corresponding provisions of the Payment of Wages Act, 1936 (Act of 1936). It was urged that since the respondent’s claim relates to salary, gratuity, and leave encashment, his sole remedy lay before the special Authority established under Section 15 of the Payment of Wages Act, which is empowered to adjudicate wage claims and award compensation, thereby completely ousting the inherent jurisdiction of the Civil Court under Section 9 CPC.

4.I have heard preliminary arguments of learned counsel for the petitioners and gone through the record.

5.The preliminary issue for determination is whether Section 22 of the Payment of Wages Act, 2013 creates an absolute statutory bar against a suit instituted in a Civil Court for recovery of employment benefits such as gratuity, leave encashment, and complex contractual claims. Section 9 CPC

establishes the foundational mandate that Civil Courts have inherent jurisdiction to try all suits of a civil nature, except those whose cognizance is expressly or impliedly barred. It is an established canon of statutory interpretation that provisions excluding the jurisdiction of Civil Courts must be strictly construed and cannot be inferred by loose implication.

Reference may be made to President Zarai Taraqiati Bank Limited v. Kishwar Khan (2022 SCMR 1598). Express conferment of jurisdiction upon a special tribunal does not automatically work as an absolute ouster of Civil Court jurisdiction unless the claim falls squarely within the strict exclusionary criteria set out in the statute. For ease of reference Section 15(1) and 22 of the Act of 2013 are reproduced below:

Section 15(1)

15.Claims out of deductions from wages or delay in payment of wages and penalty for malicious or vexatious claims.---(1) Government may, by notification in the official Gazette, appoint any Commissioner for Workmen's Compensation or other officer to be the Authority to hear and decide for any specified area all claims arising out of less payments, deductions from the wages, or non-payment of dues relating to provident fund or gratuity, bonus, overtime, leave encashment, notice pay or travelling allowance or any other emoluments payable under any law or delay in the payment of wages, of persons employed or paid in that area.

Section 22

22.Bar of suits.---No Court shall entertain any suit for the recovery of wages or of any deduction from wages in so far as the sum so claimed-

(a)forms the subject of an application under section 15 which has been presented by the plaintiff and which is pending before the Authority or of an appeal under section 17; or

(b)has formed the subject of a direction under section 15 in favour of the plaintiff; or

(c)has been adjusted, in any proceeding under section 15, not to be owed to the plaintiff; or

(d)could have been recovered by an application under section 15.

6.To properly evaluate the jurisdictional challenge, it is necessary to first examine the fundamental legal character and statutory limits of the forum provided under Section 15 of the Payment of Wages Act. As authoritatively settled by the Supreme Court of Pakistan in Lawrencepur Woollen & Textile Mills Ltd. v. Government of Punjab (PLD 2004 SC 416), the Authority appointed under Section 15 is merely a quasi-judicial administrative tribunal of limited summary jurisdiction, and does not constitute a “Court” in the strict judicial sense. The Apex Court observed that the Authority possesses no inherent powers available to a Court of justice, is not bound by strict procedural or evidentiary laws, and cannot render binding judgments on complicated questions of law or conduct a full trial at law. Consequently, where an employment controversy transcends simple administrative quantification of wages and involves intricate questions of law, legal character, or statutory interpretation, the summary powers of the Section 15 Authority

prove wholly inadequate, leaving the inherent jurisdiction of the Civil Court intact.

7.The precise boundary line separating the summary jurisdiction of the Section 15 Authority from the plenary domain of the Civil Court under Section 9 CPC was meticulously delineated by the Lahore High Court in the seminal decision of Divisional Superintendent, Pakistan Railways v. The Authority under Payment of Wages Act (1981 PLC (CS) 42 Lahore). It was held that the summary jurisdiction of the Section 15 Authority operates smoothly where the contract of employment and its terms are admitted or undisputed between the parties, leaving the Authority to construe the admitted terms, determine actual wages, or decide whether an employee falls within one category or another as incidental to the main contract. Where, however, the employer and employee rely upon conflicting service instruments, or where the employer controverts the very foundation, existence, or legal basis of the relationship or entitlement itself, the Authority’s summary jurisdiction reaches its legal terminus.

Being a tribunal of summary jurisdiction, the Authority has no jurisdiction to decide which of two competing contracts holds the field, nor can it adjudicate a fundamental dispute over whether the right to a benefit exists at all. In all such cases where the foundational character or existence of the right is in

controversy, the summary forum is completely ousted, and the plenary jurisdiction of the Civil Court under Section 9 CPC remains fully alive under the maxim ubi jus ibi remedium (when there is a right, there is a remedy). Reference may be made to this court judgement in Mir Hussain v. M/s Heavy Electric Complex (2011 PLC (CS) 1445 Peshawar).

8.The petitioners’ defense regarding the statutory bar under Section 22 of the Act of 2013 is further defeated by a critical textual mismatch within the statute itself. Under Section 2(xiv)(d) of the Act of 2013, “wages” is defined as a specific term, and the Legislature has expressly excluded “any gratuity payable on discharge” from its scope. While Section 15(1) was widened to confer enabling summary powers upon the Authority to entertain claims relating to provident fund, gratuity, and bonus. On the other hand, Section 22 opens strictly with the words: “No Court shall entertain any suit for the recovery of wages or of any deduction from wages...”. Clause 22(d) referring to claims that could have been recovered under Section 15 is not an independent bar; it is governed by the opening restriction targeting suits for “recovery of wages”.

Because gratuity is expressly carved out from “wages” by Section 2(xiv)(d), a civil suit for the recovery of gratuity does not constitute a suit for “recovery of wages” under Section 22.

Since statutory ouster of civil jurisdiction must be express and

strictly construed, Section 22 does not operate as a statutory bar against a civil suit for gratuity.

9.This textual reading is reinforced, rather than displaced, by settled canons of statutory interpretation. First, as already noted in paragraph 5 above, a provision ousting the jurisdiction of the Civil Court must be construed strictly, and such ouster is never to be inferred by implication; but the corollary is equally true, a jurisdiction-conferring provision, being remedial and beneficial, may be liberally construed to extend the protection it creates, without that liberality being read back into the separate, unamended ouster clause. Second, it cannot escape notice that when the Legislature widened Section 15(1) so as to bring claims of provident fund, gratuity and bonus within the cognizance of the summary Authority, it made no corresponding amendment to the language of Section 22, which continues to speak only of suits “for the recovery of wages or of any deduction from wages”. Where the Legislature amends one provision to expand a benefit and consciously leaves an associated, textually distinct provision untouched, the omission must be presumed deliberate, and it is not for this Court to extend, by implication, an exclusionary bar that the Legislature itself declined to extend by express words because it is a settled rule of statutory construction that a case omitted [from a statute] cannot be provided with a remedy by the judges (casus omissus

non habet remedium per judices). Third, Sections 15 and 22, being parts of the same statutory scheme, must be read together and harmoniously: Section 15 operates as an additional, optional and beneficial avenue for the quick, summary recovery of specified dues, while Section 22 operates as a narrow, targeted bar confined to the specific category of claims “wages” as statutorily defined, which the Legislature chose to channel exclusively through that forum. To read Section 22 as silently expanding in lock-step with every future enlargement of Section 15 would convert a targeted exclusionary provision into an open-ended and ever-growing bar, which the strict-construction principle governing ouster clauses does not permit. Fourth, and in any event, where two constructions of an ouster provision are reasonably possible, the one that preserves rather than forecloses a litigant’s access to the ordinary courts is to be preferred, consistent with the guarantee of access to justice inherent in Articles 4, 9 and 10-A of the Constitution of the Islamic Republic of Pakistan, 1973. The textual position noted above is accordingly not an accident of drafting to be judicially cured against the employee’s interest; it reflects the deliberate and limited scope the Legislature intended Section 22 to bear.

10.Furthermore, Section 15(1) empowers the Authority to entertain non-payment of gratuity “payable under any law”. To fully comprehend the statutory landscape governing gratuity, it

is necessary to examine the scope of Standing Order 17(6) of the Khyber Pakhtunkhwa Industrial and Commercial Employment (Standing Orders) Act, 2013. Standing Order 17(6) creates a statutory entitlement for permanent “workers” to receive gratuity equivalent to thirty (30) days’ wages for every completed year of service upon resignation or termination for reasons other than misconduct. The first proviso to Standing Order 17(6) lays down a statutory set-off rule: where an employer has established a contributory Provident Fund, no statutory gratuity is payable under the Act for the period such Provident Fund existed. When Section 15(1) of the Act of 2013 empowers the summary Authority to hear non-payment of gratuity “payable under any law”, it refers specifically to this statutory gratuity under Standing Order 17(6).

11.Nor can the petitioners derive any comfort from the words “in accordance with the terms of his employment or any custom, usage or any settlement” occurring in Standing Order 17(6) of the Standing Orders Act, 2013. The statutory reference to contractual terms in Standing Order 17(6) is merely a saving and non-derogation clause intended to ensure that the statutory minimum floor of gratuity does not extinguish or curtail superior contractual benefits enjoyed under an employment agreement or company policy. It does not legally transform a private corporate policy document into “gratuity payable under

any law” within the meaning of Section 15 of the Act of 2013.

Where the employer raises a fundamental defense denying the very existence of the contractual entitlement under an internal HR policy by pleading an extraneous “either Provident Fund or Gratuity” rule, the controversy is not one arising under the Payment of Wages Act or the Standing Orders Act at all. It is a plain dispute over the existence and content of a term of the contract of service between the parties, an ordinary “suit of a civil nature” within the meaning of Section 9 CPC, triable by the Civil Court in the same manner as any other claim founded on breach of a contractual obligation.

12.In the case at hand, the respondent/plaintiff instituted an ordinary suit for recovery of money, namely gratuity, leave encashment and salary advance, said to be due and payable to him under the terms of his employment. Such a suit is, on its face, a “suit of a civil nature” within the meaning of Section 9 CPC, and the jurisdiction of the Civil Court to entertain and try it is the rule rather than the exception; it stands displaced only where a special statute expressly or by necessary implication excludes it, which, for the reasons recorded above, is not the position here. The respondent/plaintiff’s claim was not an action brought under Standing Order 17(6) for statutory worker’s gratuity. Instead, his claim was founded squarely upon the petitioner-company’s internal, contractual Gratuity Fund

Policy (Ex-PW1/6), a private service-condition document applicable to all permanent, confirmed employees, and establishing gratuity as a non-contributory benefit funded entirely by the employer, separate and distinct from the contributory Provident Fund. The employer’s Chief Executive (DW-1) expressly admitted in cross-examination that no order amending or cancelling this contractual policy had ever been issued. Whether this contractual policy continued to hold the field, and whether it entitled the respondent to gratuity independent of, and in addition to, the Provident Fund already paid to him, was accordingly a pure question of contract and fact bearing directly upon the very existence of the claimed entitlement, precisely the class of dispute which, as held in Divisional Superintendent (supra), lies beyond the summary competence of the Section 15 Authority and squarely within the ordinary, undiminished jurisdiction of the Civil Court under Section 9 CPC. No declaration of status or legal character needed to be sought or granted for this purpose; a finding, on the pleadings and evidence, that the contractual entitlement subsisted and was due sufficed to found the money decree passed by the learned trial Court.

13.Turning to the scope of revisional jurisdiction under Section 115 CPC, it is a firmly settled principle of law that the High Court in revision does not sit as a court of second appeal.

Revisional powers are strictly limited to correcting jurisdictional defects, patent illegalities, perversity, or material irregularities in the exercise of jurisdiction by subordinate courts. The High Court cannot re-evaluate or re-appraise evidence to substitute concurrent findings of fact recorded by trial and appellate courts merely because another view of the evidence might be possible. Reference may be made to Altaf Hussain v. Abdul Hameed (2000 SCMR 314).

14.The Supreme Court of Pakistan in the case of Nasir Ali v. Muhammad Asghar (2022 SCMR 1054) has held that where subordinate courts have acted within their jurisdiction without misreading or non-reading of material evidence, the High Court has no power to disturb concurrent findings of fact. It is also a settled position as established in Pir Shah Abdul Haq v.

Muhammad Irfan (2026 SCMR 1019) in that attempting to re- examine evidence to upset concurrent verdicts under Section 115 CPC is impermissible, as revisional jurisdiction is supervisory and not a third forum for re-appraisal of evidence.

Reference is also made to the judgments of this Court in Muhammad Ayaz v. Mukammil Shah (2026 YLR 571 Peshawar); Mushtaq Ahmad v. Mst. Pass Bibi (2026 CLC 1034), Masood Anwar v. Karim Bakhsh (2004 CLC 1692 Peshawar).

15.In the case at hand, both subordinate courts evaluated the

oral and documentary evidence, concurrently concluding that the respondent/plaintiff established his legal entitlement to gratuity. The petitioners failed to demonstrate any misreading or non-reading of material evidence, nor could they establish any jurisdictional perversity. The objection regarding Section 22 is rejected, as gratuity is excluded from “wages”, and the dispute, being a plain question of contract and fact as to the existence and quantum of a contractual entitlement, fell squarely within the ordinary jurisdiction of the Civil Court under Section 9 CPC.

16.For the reasons stated above, the impugned judgment and decree dated 30.10.2023 passed by the learned District Judge- XIV, Peshawar, affirming the judgment and decree dated 27.04.2019 passed by the learned Civil Judge-VII, Peshawar, is based on correct application of law and evidence, requiring no interference in the revisional jurisdiction of this Court.

Consequently, the instant civil revision petition, being devoid of merit, is hereby DISMISSED. There shall be no order as to costs.

JUDGE

Research Assistance: Mazhar Ali Khan, Research Officer. Hon’ble Mr. Justice Muhammad Faheem Wali