1988 PLP 648 (PLC)

(d) Arrears of the over‑time allowance, from 1964 to 1971?????????????????????????????????????????????????????????????? .....?????????????????? Rs.3,814.50 (e) Amount of the gratuity less paid ????????????????????????????? ?..????????????????? Rs. 7,875.00 TOTAL:?????????????????????????????????????????????????????????? Rs.1,06,982.00 (Rupees one lac six thousand nine hundred and eighty two only.)" The above application was resisted by the petitioners and inter alia it was averred that the application was time‑barred, the Authority under the Act had no jurisdiction and that the application was bad in law and was not maintainable. The learned Authority framed the following issues: "(1)????? Whether or not the Application is barred by time? (2)??????? Whether or not this Authority enjoys the jurisdiction to entertain and adjudicate the present Application? (3)??????? Whether or not the Applicant is entitled to the Running Allowance and Overtime as Running Staff or any part thereof?" After recording the evidence the Authority recorded its finding that the application was within time. It was also observed that if it was barred by time, the delay was condoned. It was also held that the Authority had the jurisdiction as nothing was argued before it to point out as to why it had no jurisdiction. On merits the Authority granted the above sums claimed by respondent No.3 namely, Rs.1,06,982 plus a sum of Rs.8,55,856 being the amount of compensation eight times on account of alleged illegal deduction of the allowance from the wages. The petitioners being aggrieved by the above order filed Appeal No.1 of 1986 before the Sind Labour Court No.V Karachi, which was partly allowed, inasmuch as it was held that respondent No.3 was entitled to claim running allowance for the' period commencing from 10‑I1‑1962 to 31‑3‑1971 amounting to Rs.40,735 and not Rs.1,06,982 referred to hereinabove. It was also held that the reasonable amount of compensation would be two times of the above amount namely Rs.81,470 thus respondent No.3 was granted a total sum of Rs.1,22,

205. The petitioners being aggrieved by the above two orders have filed the present petition.

3. In support of the above petition Chaudhry Rashid Ahmed, learned counsel for the petitioners has urged as follows: (i) That the claim was time‑barred; (ii) That the Authority under the Act had no jurisdiction to entertain the application; and (iii) That in any case the learned Sind Labour Court was not justified to award two times of the amount awarded as the amount of compensation as there was no illegal deduction of the running allowance from the wages. On the other hand Mr. Khadim Hussain learned counsel for respondent No‑3 has submitted as follows: (i) That the application was within time and in any case the two Courts were competent to entertain even tune‑barred application in view of the proviso in subsection (2) of section 15 of the Act; (ii) That the Authority had the jurisdiction in the matter; and (iii) That since the learned Senior Civil Judge had given judgment on 16‑8‑1969 declaring the entitlement of the Diesel Shunting Drivers to the running allowance, non‑payment for the above decree of the Civil Court amounts to deduction.

4. Adverting to the first submission of the learned counsel for the parties, it may be observed that in the application it was alleged that the cause of action accrued on 22‑11‑1974 when the High Court dismissed the second appeal filed by the petitioners against the judgments/decrees of the two Courts below and also on 2‑9‑1981 when respondent No.3 received the aforesaid endorsement on the Divisional Superintendent's letter dated 2‑9‑1981 addressed to the Chief Personnel Officer at the Head Quarters at Lahore. It may be pointed out that under proviso 2 to subsection (2) of section 15 of the Act the Authority has been given the power even to entertain a time‑barred application In the present case the Authority has observed that if there was A any delay, the same has been condoned. From the appellate order ii seems that the learned Appellate Court also maintained the order of the Authority by observing that the Authority had rightly condoned the delay. I am inclined to hold that it was within the jurisdiction of the Authority and the Labour Court under the Act to have decided the question of limitation, and since the same has been decided in favour of respondent No.3, it cannot be said that the above decision on the question of limitation is without jurisdiction or in excess of jurisdiction warranting interference by this Court in exercise of constitutional jurisdiction. Mr. Khadim Hussain has referred to the case of Divisional Superintendent, P.W.R., Multan v. Abdul Khaliq reported in 1984 SCMR 1311 in which the Hon'ble Supreme Court while allowing the appeal on merits in respect of the order passed under the Act, observed that the condonation of delay is a question solely for consideration of the Authority. As regards the second submission of the learned counsel for the petitioners that the Authority had no jurisdiction, it may be observed that in furtherance of his above submission he has referred to the preamble of the Act and subsection (2) of section 15 of the Act. In my view a preamble to a statute cannot control or modify the provision of the statute. No reference can be made to the preamble if the provision, which is in issue, is not ambiguous. In the present case the relevant provision which requires construction is section 15 of the Act, a perusal of which indicates that there is no ambiguity as to warrant a reference to the preamble to the Act. It has been urged by Mr. Chaudhary Rasheed Ahmed that a perusal of section 151 of the Act indicates that an application under the above section of the above Act can be filed and be entertained while an applicant is still in service and not after retirement. In my view the above contention is devoid of any force. If the legal heirs of a deceased employee can maintain an application under the above section 15, 1 do not see any reason as to why a retired employed person cannot maintain an application. There is no express prohibition against the filing of an application under section 15 by a retired employed person. On the contrary the inclusion of the legal heirs as the persons competent to file an application, supports the view which I am inclined to take. This leads us to the last submission made by the learned counsel for the parties. In this behalf Chaudhary Rashid Ahmad, learned counsel for the petitioners has referred to section 7 of the Act, which inter alia provides the items, the deduction of which is permissible from the wages of employed person. He has also referred to section 15(3) of the Act which makes out a distinction between a deduction and a delay in payment, whereas in the former case the Authority has been empowered to grant compensation to the extent of 10 times of the amount illegally deducted and whereas in the latter case only a sum of Rs.10 is to be paid as the amount of compensation. I am inclined to hold that the claim of respondent No.3 cannot, be said to be in respect of an amount illegally deducted from his', wages. Deduction implies something which has been deducted from an admitted amount which is payable. In the present case respondent No.3 neither during his service, nor after retirement for a period of five years made any claim for the amount in question. It is only first time on 10‑12‑1976 that respondent No.3 had made a claim after coming to know about the above judgment of the High Court in respect of the second appeal arising out of the suit filed by 12 Diesel Shunting Drivers that he made a claim. Keeping in view the above background of the facts, I am inclined to hold that the amount which was claimed by respondent No.3 cannot be said to be an amount which was illegally deducted from his wages while he was in service. However, it can be urged that as soon as the High Court finally adjudicated upon the question of entitlement, of the diesel shunting drivers to the running allowance in 1974 and as the petitioners had not filed any further appeal against the above judgment of the High Court, they should have paid the amount and, therefore, there was delay in payment of the above amount. Chaudhary Rasheed Ahmed has referred to the case of Divisional Superintendent, Pakistan Railways v. Mst. Zareena Begum and others reported. in 1987 P L C 301, in which learned Single Judge of this Court while dealing with an identical question, held that the Authority was not competent to grant compensation 10 times of the amount awarded as non‑payment of the running allowance was not a deduction of wages.

5. I, therefore, allow the petition and declare that the amount of Rs.81,470 awarded by the learned Sind Labour Court No. v. Karachi as the amount of compensation under subsection (3) of section 15 of the Act is without lawful authority and of no legal effect and respondent No‑3 was‑entitled to a sum of Rs.10 as provided in the above subsection (3) of section

15. The petition stands disposed of in the above terms with no order as to costs. A.A. /D‑23/K? Petition accepted.