1987 PLP 4 (PLC)

The respondents filed Application No. 147 of 1983 before the learned Chairman, Sind Labour Appellate Tribunal, Karachi. The said appeal was heard and the learned Chairman made following observations: ‑ "The intention of the Legislature is clear that the wages payable are to be determined in respect of a wage period for which the wage allegedly not paid are payable and in case such wages over such period average more than 1,000 rupees a month, the jurisdiction of Payment of Wages Authority is barred. In the instant case the learned Authority has not determined the average wages payable a month in respect of such wages period but has determined such wages for a different period obviously for the reason that production bonus if included in it would calculate more than Rs.1,000 average a month. In my view, therefore, the Payment of Wages Authority should determine the average payable a month on the basis of the evidence to be brought on the record by the parties if they so choose, for the wage period with effect from 1‑7‑1979 to 29‑2‑1980, as to whether they would exceed Rs.1,000 average a month or not and then dispose of the case according to law. With the modification abovementioned in the impugned order the sup motu is dismissed. The matter thereafter came before Authority for disposal accordingly to law. The respondents brought further evidence on record before the Authority. The appellant neither produced any documents nor gave any oral evidence. The authority thereafter, passed an impugned order on 31‑12‑1984 whereby the Authority held that the wages payable for month were more than 1,000 per month and, therefore, the present case does not fall within the jurisdiction of the Authority. I have heard Mr. S.P. Lodhi in support of the appellant and Mr. S.M. Yaqoob appeared on behalf of the respondents. The only question for consideration in the present appeal is whether the case of the appellant is hit by section 1(6) of the Payment of Wages Act and the jurisdiction of the Payment of Wages Authority was barred. In order to appreciate, I would like to reproduce the provisions of section 1(6) of the Payment of Wages Act, 1936 which reads as under:‑ "Nothing in this Act shall apply to wages payable in respect of a wage period which, over such wage‑period, average (more than one thousand rupees a month)." In the light of this provisions, it is to be seen that the intention of the Legislature is that the wages payable are to be determined in respect of age period for which the wages are not paid though payable. The case of the appellant is this that he was removed from employment from 1‑7‑1979 till 29‑2‑1980 and thereafter he was re‑instated in service. The respondents adduced the evidence to determine the average wages per month in respect of wages period before an Authority earlier to it and the period after it. The wages are claimed for the period from 1‑7‑1979 to 29‑2‑1980. The learned Chairman Sind Labour Appellate Tribunal observed that the Authority had not determined the average wages payable a month in respect of such wages period but has determined such wages for a different period and, therefore, the Authority should determine the average wages payable a month on the basis of the evidence to be brought on the record by the parties. As of these observations by the learned Chairman the respondents brought further evidence on record. The appellant did not any evidence. It is also matter of record that the appellant not cross‑examine the respondent witness upon the documents by him. The evidence of the witness of the respondent was cross-examined in the first round of litgation but on the second round the appellant failed to cross‑examine him. The failure to cross‑examine the witness on the facts deposed in examination‑in‑chief will prove that his statement accepted. Section 1(6) of the Payment of Wages Act states about the wages 'payable' and not about the wages claimed by worker. The burden to establish that the appellant is entitled to the wages claimed by him is l upon him. The appellant stated in the application that his monthly wages were Rs. 800 per month. Contrary to this the respondents produced documentary evidence to show that wages before the period and after the period were more than Rs.1,000 per month. The appellant has also failed to show that he was reappointed by the company. The appellant has not produced documentary proof to show that he is entitled to wage which are payable and said wages are less than Rs.1,

000. The contention that the appellant was not in the employment from 1‑7‑1979 to 29‑2‑‑1980 has gone unchallenged. The respondents in the first round of litigation produced documents and proved that the appellant was drawing more than Rs.1,000 for the month of March, 1979. It is also proved by the company witness that the appellant was drawing more Rs.1,000 in November, 1981 and December, 1981. The question that when the appellant was drawing more titan Rs.1,000 in March, 1979 and, therefore, how can he draw less than Rs.1,000 from 1‑7‑1979 to 29‑2‑1980 which is the period for which the Authority has to determine the wages payable. From the evidence on record, the appellant has failed to establish that he was entitled to less than Rs.1,000 per month so as to entitle the Authority to decide the wages payable to the appellant. There is no evidence to show that appellant physically worked for the period in question and, therefore, the question of average wages payable does not arise. I have carefully considered the evidence on record and I have arrived at the conclusion that the intention of the Legislature is that the wages payable are to be determined in respect of the wages period and not the wages claimed by a worker. The burden is upon the appellant and in the present case the appellant has failed to show the average wages payable to him for period in question for simple reason that he was not in the employment. On the basis of evidence I hold that the average wages payable per month. to the appellant for the period in question would be more than Rs.1,00 on the basis of evidence produced by the respondents. The appellant has not produced any I further evidence to controvert the documentary evidence adduced by the respondents. I, therefore, hold that the Authority has no jurisdiction to decide the case of the appellant. The Authority has very rightly dismissed the case. I find no force in the present appeal which is hereby dismissed. M.Y.H. Appeal dismissed.