1978 PLP 30 (PLC)

Mr. J. B. Arif the respondent in this case was employed as Supervisor, watch and ward in the Electrical and Mechanical Workshop of Wapda, Lahore. He was involved in a theft case in February, 1.968 on 1 2‑2‑1966'. He tendered his resignation, which was not accepted on the ground that he had already been placed under suspension with effect from 13‑2‑1968. He faced the charge and consequently domestic enquiry. Ultimately on 2‑1‑1973 the Chief Engineer, Wapda Lahore after considering the record of enquiry and after affording personal hearing to the respondent found that the respondent was innocent and therefore he was exonerated. The Chief Engineer also accepted the resignation of Mr. J. B. Arif on 2‑1‑1973 after ordering his re‑instatement. He also ordered that for the period from the date of suspension till 11‑9‑1972 he might be treated on leave with pay to the extent admissible under rules and the remaining period as leave without pay. Subsistence allowance was also allowed to him from 12‑9‑1972. Mr. J. B. Arif made various representations for payment of his wages from 13‑2‑19 to 2‑1‑1973 the period during which he remained under suspension on a from which he was ultimately exonerated. No satisfactory reply to the sensation was given. He therefore ultimately on 5‑10‑1973 filed an appeal under section 15 of the Payment of Wages Act, before the learned Act of the Payment of Wags Act, Lahore seeking a direction against the Chief Engineer Electricity, WAPDA Lahore, the appellant to the effect that the appellant should pay Rs. for the period from 13‑2‑1968 to 2‑1‑1973

2. This application of the respondent pleaded utter alia that the application was barred by time and that Wapda was not an Industrial Establishment as defined under the Payment of Wages Act and the application was not maintainable and that the petitioner had resigned from service with effect from 1-2-1968 and had refused to draw payment of any kind and he was thus estopped from making the present application.

3. On the pleadings of the parties the following issues were framed by the learned, Authority under the Payment of Wages Act. (1) Whether the application is not maintainable in this Court O. P. R. (2) Whether the petitioner is estopped from making the claim against; respondent. O. P. R. (3) Whether the claim is barred by titre and what is its effect? O. P. R. (4) Whether the petitioner is entitled to the payment of Rs. 17,400 or any other amount from the respondent? O. P. R. (5) Relief.

4. Besides producing documents Exh PW 1/1 to Exh. PW 1/6 and also Exh PW 2/1 to Exh. P. W. 2/3 the respondent examined Mr. Aziz Ahmad Dar, Labour Officer of the office of the Chief Engineer Electricity and himself came in to witness box as P.W.

2. In rebuttal the respondent produced Exh. PW1/1 and also examined Mr. Muhammad Sharif, Senior Clerk of the office of the, Chief Engineer, Electricity, Lahore Region. .

5. After considering the parties evidence the learned Authority under the Payment of Wages Act decided issues 1 to 2 against the appellant and as regards issue No. 3 had held that the respondent was entitled to pay ment of Rs. 17,400 on account of wages for the period from 13‑2‑1968 to 2‑1‑1973, which had been illegally withheld by the appellant. Consequently by the order dated, 16‑9‑1976 the learned Authority directed the appellant to deposit Rs. 17,400 for payment to the respondent. The said order has been impugned through the present appeal.

6. The impugned order has been mainly challenged on the grounds that the claim of the respondent had become time barred and that resignation of the respondent had become operative with effect from 12‑2‑1968 and further that Wapda Employees (Efficiency and Discipline) Rules, 1966 were applicable to the respondent to the exclusion of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance 1968. In the memorandum of appeal it has also been contended that according to notification issued under Essential Services Act, 1952 the provisions of the said Act were made applicable to the employment of the respondent and section 7‑1 of the said Act excluding the application of Payment of Wages Act, 1936 to the case of the respondent.

7. I have carefully gone through the record of the case. The evidence oral as well as documentary led by the parties before the learned lower Court has been minutely analysed. The parties have also been heard at a consider able length. As regards the plea of limitation it is observed that the respondent remained under suspension from 13‑2‑1968 to 2‑1‑1973. He was exonerated of the charge for which he was placed under suspension, by the order of the appellant dated 2‑1‑1973. Copy whereof is Exh. P. I/4. By the case order he was re‑instated with immediate effect. After his re‑instatement he became entitled to the wages for the period during which he remained under suspension. Thus the cause of action arose to him on 2‑1‑1973. He filed an application before the Authority under the Payment of Wages Act under section 15 ibid in October 1973. It is noteworthy that by Act XVII of 1973 the first proviso of subsection (2) of section 15 of the Payment of Wages Act, 1936 was amended whereby the period of limitation for filing an application under section 15 ibid was provided as 3 years instead of 6 months. The present application has obviously been filed after the according Act XVIII of 1973 came into force. Thus at the time of institution of the present application the period of limitation for filing the application was 3 years and not 6 months. Keeping in view this amendment, the application of the respon dent filed before the Authority under the Payment of Wages Act was positively within time.

8. So far as the plea of resignation is concerned, it is true that the respondent had tendered his resignation, on 12‑2‑1868 as is clear from Exh PNI/1 the copy the resignation. Resignation became, effective only if it is accepted by the Authority competent to accept, it. By the order dated 12‑3‑1968 i.e. Exh. PW1/2 the respondent was informed by the Works Manger WAPDA E & M workshop that the resignation tendered by the him could not be accepted as he had been placed under suspension. Afterwards the respondent faced the enquiry of theft. From that charge he was exonerated ultimately on 2-1-1973. In view of this circumstance it can not be said that the respondent had resigned his job on 12-2-1968. As a matter of fact the resignation of the respondent was accepted with immediate effect,

vide the order of the Chief Engineer i.e. the appellant dated 2‑1‑1973 copy whereof is Exh. P1/4. As regards the plea that the provisions of statutory rules 8 the West Pakistan WAPDA Employees (Efficiency and Discipline) Rules, 1966 were applicable to the respondent to the exclusion of west Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 even if it be assumed that Employment such Efficiency and Discipline Rules were applicable to the case of the such respondent, his claim would not be adversely affected in much and according to said rules during the period of suspension he continued to be the employee of WAPDA and after his re‑instatement his entitlement to pay and allowance for the period for which he remained under suspension depended upon the decision of the case. In the present case admittedly the respondent was exonerated of the charge for which he was placed under suspension. He is therefore entitled to full pay and allowance for the period for which he remained under suspension, and the said period is to be treated as period spent on duty even according to the statutory rules of WAPDA. So far as the plea that the Payment of Wages Act, 1936 was not applicable to the respon dent's case in view of the notification issued under section 3 of the Essential Services Act, 1952 applying the provisions of the said Act to the employment under the appellant is concerned, it is observed that this plea was not raised before the learned Authority under the Payment of Wages Act by the appellant. Moreover there is no force in this plea, inasmuch as, the provisions of section 7‑A of the Pakistan Essential Services (Maintenance) Act, 1952 oust the operation of the Trade Unions Act, 1926 or the Industrial Disputes Ordinance, 1959 or such other laws in respect of employment to which the Essential Services Act has been applied by notification under section

3. These provisions i.e. provisions of section 7‑A of the Essential Services Act, 1952 can not by any stretch of imagination be deemed to be ousting the' because the provisions of the Payment of Wages Act are not in any manner contrary to those of the Essential eats Secretary, Labour Department, Services Act, 1952. Two judicial pieced Province of Sind, Karachi v. The National Refinery Ltd. Karachi and 9 others (1975 P L C 105) and Representative of the WAPDA Workers' Union and others v. Fazal Khalique Khan, Chairman, First West Pakistan Industrial Court, Karachi and others (1969 P L C 492) are distinguishable on facts. In both these judicial precedents the application of Payment of Wages Act, was not in issue. No other plea was raised in the memorandum of appeal or during the course of arguments to challenge the validity of the impugned order.

9. In the light of what has been said above we find no force in this appeal, which is accordingly dismissed while the impugned order is upheld.