P L D 1983 Lahore 291 (PLP)

These are 38 writ petitions Nos. 1205 to 1224 of 1982 under Article 9 of Provisional Constitution Order, 1981, whereby, the Divisional Superintendent, Pakistan Railways Multan, the petitioner, wants this Court to declare the order dated 31-10-1981 of the Authority under the Payment of Wages Act (hereinafter referred as Authority) disposing of 38 applications under section 15 of the Payment of Wages Act (hereinafter referred as Act) moved by the private respondents of these writ petitions against the petitioner herein and order dated 31-13-1981 of the Punjab Labour Court No. 9, Multan, respondent No. 2 dismissing 38 appear filed by the petitioner herein against the order dated 31-10-1981 passed by respondent No. 3, to be without lawful authority and of no legal effect.

2. The facts leading up to these petitions in brief are that 38 private respondents, employees of Pakistan Railways as S. T. Es. were drawing Rs. 410 in N. P. S. No. 8, the maximum of which is Rs.

425. They were allowed an increment of Rs. 15 w.e.f. 1-12-1972 and as such the pay reached the maximum of N. P S. No. 8, despite that they were given the next increment of Rs. 15 under N. P. S. No. 8 and pay raised to Rs. 440 and so on. On 5-9-1980, the private respondents moved applications under section 15(2) of the Payment of Wages Act, claiming Rs. 4,862 relating to period form 1-12-1973 to 31-8-1980, as deducted wages, from petitioner herein, on the ground that the petitioner had refused to pay the claim which they had earned on account of their having switched over the next higher scale. They also prayed for 10 times compensation. The claim was seriously contested by the petitioner/respondent by raising preliminary objections and denying the assertions made in the application, under section 15(2) of the Act. The 38 cases were consolidated on 29-6-1980. The Authority framed the following issues Issues: (1) Whether the application is time-barred ? O. P. R. (2) Whether the application is not maintainable ? O. P. R. (3) Relief. On issue No. 1 the Authority held that the claim of the private respondents with regard to period beyond 3 years was time barred. Issue No. 2 was decided against petitioner/respondent. On Issue No. 3, the Authority found that each applicant was entitled to have Rs. 2,030 from the petitioner and directed the petitioner/respondent therein to deposit the same with Court for payment to the applicants. Feeling aggrieved, the petitioner filed appeal which was dismissed by Punjab Labour Court No. 9, respondent No. 2 on 31-12-1981. Hence these 38 writ petitions, which I propose to dispose of through single judgment.

3. The learned counsel for the petitioner has raised following points : (i) that the claim of the employees/private respondents before the Authority in fact relates to the fixation of pay for which the Authority was not competent and as such the authority while fixing the pay has acted beyond jurisdiction ; (ii) that since monthly wages of each applicant exceeded Rs. 1,000 as proved by the petitioner, the Authority could not adjudicate the dispute. He explained that the earned mileage allowances raised the pay of respondents to more than 1,000 p. m. and As such, the Authority had no jurisdiction in the matter ; (iii) that the claim has been allowed to the private respondents without legal justification inasmuch as para `H' of N. P. S. was not available to the, S. T. E's. and para. `E' should have been applied to their case. (iv) that the impugned orders being illegal, mala fide, arbitrary and ultra vises, are without lawful authority. As against this, the learned counsel for the respondents have vigorously defended the impugned orders and has also pleaded laches in filing of writ petitions as a preliminary objection. He further submitted that these being cases of concurrent findings and the decisions of - respondent No. 2 being final in the matter, there appears no legal justification for the petitioner to invoke the writ jurisdiction of this Court.

4. After having considered the arguments and gone through the material available before me, I have not been able to pursuade myself to agree with the points raised by the learned counsel for the petitioner and 11 am inclined to dismiss these petitions for the reason that the appeal of the petitioner against the impugned order of the Authority was dismissed by respondent No. 2 on 31-12-1981 whereas this writ petition has been filed on 30-10-1982 i.e. after 10 months. This delay which in the circumstances of the case is very much palpable has not been explained at all in the petition. At the stage of arguments, the learned counsel ha attempted to explain the same by submitting that the petitioner being Pakistan Railways some formalities were to be completed before filing the writ petition and that the impugned order being void, the same can be struck down at any time regardless of laches. This explanation, however, has not convinced me. I am of the opinion that since the delay is palpable enough to attract the notice, the petitioner should have explained it wit or at least without affidavit. But the delay has not been explained at all in the petition and as such the explanation sought to be given at this stage appears to be afterthought. The mere fact that the petitioner is Pakistan Railways would not make any difference because Pakistan Railways has also to be treated at par with ordinary litigant. As far the reason that the impugned order being void, the writ may be filed at any time, I am of the opinion that the Authority and Labour Court having jurisdiction accept or reject the claim, it cannot be said that the order passed by them was void enough to rule out the ]aches. For these reasons, I am convinced that these petitions suffer from laches and can be dismissed on this short ground but since the delay is of months and of not years, in the interest of justice and as a matter of abundant caution to avoid multiplicity of litigation, .I propose to enter into the merits of the case and discuss the points raised by the learned counsel. (i) As far point No. 1, I find that each applicant claimed Rs. 4,862 which to him had been illegally deducted from his wages as a result of nonpayment of benefit of switching over the next higher scale. It was, therefore, a case of payment of deducted wages without any prayer for the declaration or fixation of the pay. The Authority has simply allowed part of claim without specifically fixing the pay. The point No. I raised by the learned counsel is, therefore, without any substance. (ii) As far point No. lI, the question whether the monthly pay of the each applicant exceeded Rs. 1,000 or not is a pure - question of fact. The learned Courts below have concurrently held that the petitioners have not proved that the monthly pay exceeded Rs. 1,

000. Admittedly, the pay of the applicants/private respondents is much less than Its. 1,000 a month. The case- of the petitioner is that the pay plus earned mileage allowances (which have to included in -the pay) exceeded Rs. 1,

000. To prove it, the petitioner has relied upon Exh. R/1 which only indicates the pay and allowance of the applicants for August, 1977, August, 1.978, August, 1979 and August, 1980. To my mind, this is not sufficient to prove the monthly wages of the applicants for a period from 1-12-1973 to 31-12-1980, and as such I find no fault with the findings of the Courts below. Since it does not stand factually proved that the monthly pay of the applicants/respondents from 1-12-1973 to 31-12-1980 except for the months of August exceeded Its. 1,000, therefore, the questions whether the earned mileage allowance are part of the pay or not and whether the mileage allowance and travelling allowance are identical or not, automatically collapse. (iii) Now coming to objection No. III, the admitted position is that that respondents/S. T. Es. were drawing Rs. 410 on 1-3-1972 in N. P. S. No. 8, the maixmum of which is

425. They were allowed annual increment of Rs. 15 and that their pay-as such touched the maximum pay scale No.

8. The next increment of Rs. 15 allowed to them, therefore, raised the pay to Rs. 440, i.e. beyond maximum N. P. S. No. 8 which certainly being not permissible is inconsistent with policy of National Pay Scales. Since further increment could not be given in N. P. S. No. 8, the pay of the applicant automatically jumped to pay Scale No 9, wherein they had to be given increment of Rs. 20 in accordance with that scale and as such their pay should have been Rs. 460 and so on. The Authority has, therefore, rightly calculated the deduction. In view of this clear finding, the question whether the applicant's case falls in para. 'H' or in para 'E' of National Pay Scales has become redundant. (iv) As far the last point, I find that there is nothing on the record to show that the impugned orders are mala fide, arbitrary, ultra vires and illegal inasmuch as, the Authority had jurisdiction to allow claim or not. The Courts below have applied mind to the legal and factual aspects of the case giving sound reasons in support of the conclusions arrived at by them and have elaborately dealt with all the points raised by the petitioner herein. 8 Even, the points raised before me have been fully discussed and thrashed out by the Courts below who had exclusive jurisdiction over the matter The Order of the Punjab Labour Court in the matter is final. Despite that the same has been challenged through writ petition. Unfortunately, in our country a trend to invoke writ jurisdiction even in cases of well reasoned final orders of the Courts of exclusive jurisdiction has developed and these petitions are certainly of that type.

7. For what has been stated above, there being no merit in the petitions, the same are dismissed !caving the parties to bear their own costs. M. Y. M. ???????? Petition dismissed.