P L D 1963 Supreme Court 340 (PLP)

"wages" means all remuneration, capable of being expressed in terms of money, which would, if the terms of the contract of employment, express or implied, were fulfilled, be payable, whether conditionally upon the regular attendance, good work or conduct or other behaviour of the person employed or otherwise, to a person employed in respect of his employment or of work done in such employment ; and includes any bonus or other additional remuneration of the nature aforesaid which would be so payable and any sum payable to such person by reason of the termination of his employment, but does not include‑ (a) the value of any house accommodation, supply of light, water, medical attendance or other amenity, or of any service excluded by general or special order of the Provincial Govern ment ; (b) any contribution paid by the employer to any pension fund or provident fund ; (c) any traveling allowance or the value of travelling concession ; (d) any sum paid to the person employed to defray special expenses entailed on him by the nature of his employment ; or (e) any gratuity payable on discharge. The expression if the terms of the contract of employment express or implied were fulfilled' means that there should be a subsisting contract of employment and that the relationship of master and servant must exist between the parties. Further the definition emphasises the fact that `wages' is remuneration payable to the employee if the terms of the contract were fulfilled. From the above it is clear that when a claim is made by an employee on the ground of alleged illegal deduction or alleged delay in payment of wages the Authority concerned will have to consider several relevant facts namely, (i) whether the claimant is an employee; and (ii) if so, whether the terms of the contract have been fulfilled. Here we may mention that in a subsisting contract of employment there are certain obligations upon the employer and also upon the employee and also certain rights as between them. These obligations generally are that the employer is bound to pay wages and the employee is bound to serve. There may, however, be cases where the employee without rendering service may be entitled to his remuneration. For example where the employee would be ready and willing to render service and yet may not do so because the employer, for some reason does not give him opportunity to render that service. In such a case the mere fact that the employee is not given work or cannot render service to employer will not derogate from the right to receive wages from the employer. It also appears from the amplified portion of the definition that some emphasis has been laid on the expression any sum payble to such person by reason of the termination of the employment . This shows that any sum which is payable by reason of the termination of the employment is also wages for the purpose of the Act. Therefore, when the service of an employee is terminated without notice, in such a case the sum, which is payable to him in lieu of notice will be considered as wages though he may not render any service during that month. Enough has been said to show that the definition of `wages' cannot be confined to `earned wages' only, and that the claim of the respondent would thus be clearly covered by the definition in the Act. The facts of this case however, present no difficulty. The order of removal from service was cancelled and the claimant was reinstated to his old post. Thus the relationship of the employer and employee was not in dispute. As the employee was all along challenging the legality of the order of his removal from service, it could be said that he was all along ready and willing to render service to his employer. Hence the Authority rightly held that the mere fact that the employee was not given work by the employer will not derogate his right to receive wages. It is true that the contract of service of a Railway employee is subject to the rules laid down in the Pakistan Railway Establishment Code, Volume

11. Rule 2044 which deals with the question of pay after reinstatement is in these terms "When the suspension of a railway servant is held to have been unjustified or not wholly justifiable; or when a railway servant who has been dismissed, removed or suspended is re‑instated; the Revising or Appellate Authority may grant to him for the period of his absence from duty

(a) if he is honourably acquitted, the full pay to which he would have been entitled if he had not been dismissed, removed or suspended and, by an order to be separately recorded, any allowance of which he was in receipt prior to his dismissal, removal or suspension ; or (b) if otherwise, such proportion of such pay and allowances as the Revising or Appellate Authority may prescribe. In a case falling under clause (a), the period of absence from duty will be treated as a period spent on duty. In a case falling under clause (b), it will not be treated as a period spent on duty unless the Revising or Appellate Authority so direct." The Railway Administration, however, did not elect to make any order under this rule after re‑instatement of the employee. In these circumstances the Authority was justified to hold that the claimant was entitled to the payment of full wages for the relevant period. It was next contended that the respondent's absence during the period in question should be treated as extraordinary leave within the meaning of rule 2126 of the Pakistan Railway Establish ment Code, Volume II. The said rule is as follows: Extraordinary leave.‑(a) Extraordinary leave may be granted in special circumstances (1) when no other leave is by rule admissible, or (2) when other leave being admissible, the railway servant concerned applies in writing for the grant of extraordinary leave. Such leave is not debited against the leave account. No leave‑salary is admissible during such leave. (b) The authority which has the power to sanction leave may grant extraordinary leave as in clause (a) in combination with, or in continuation of, any leave that is admissible, and may commute retrospectively periods of absence without leave into extraordinary leave. " No such ground was taken in the written statement or even before the Authority. Nor any evidence either oral or docu mentary, was led in support of this contention. This contention was raised for the first time in revision before the High Court and the High Court was, therefore, justified in overruling this objection in the absence of proper materials. We are also unable to accede to the contention that this respondent was not entitled to the benefit of the Payment of Wages Act. Subsections (4) and (6) of section 1 of the Act are in these terms: Subsection (4).‑‑"It applies in the first instance to the payment of wages to persons employed in any factory and to persons employed (otherwise than in a factory) upon any railway by a railway administration or, either directly or through a sub contractor, by a person fulfilling a contract with a railway administration." Subsection (6).‑"Nothing in this Act shall apply to wages payable in respect of a wage‑period which, over such wage -period, average two hundred rupees a month or more." The basic pay of this respondent was Rs. 76 per month, i.e. much below Rs. 200, and hence it was conceded before the High Court that the provisions of the Act could apply to this respondent as his monthly wages averaged below Rs. 200 per month. In these circumstances the learned counsel has not pressed this point. It was lastly contended that the claim was barred by limita tion. The first proviso to subsection (2) describes limitation and says that every such application shall be presented within 6 months from the date on which the cause of action accrues. The second proviso lays down further that any application may be admitted after the said period of 6 months when the applicant satisfies the Authority that he had sufficient cause for not making the application within such period. On the 9th June 1955, the claimant obtained a declaratory decree from the Civil Court that his removal from service was illegal. The order of re‑instate ment was passed on the 29th September 1955, and the claimant rejoined his post on 30th September 1955. As the Railway Administration failed to pay arrears of his salary, he filed a petition under section 15 of the Payment of Wages Act on 5th December 1955. The Authority being of the opinion that the limitation should run from the date of the declaratory decree, held that the present application was filed in time. The High Court however, took the view that the claimant had sufficient cause for not making the application within the period mentioned in the first proviso and that his case was, therefore, covered by the second proviso to subsection (2) of section 15 of the Act. The learned counsel has found it difficult to urge that the claimant could have filed the petition before getting the order of his removal set aside by a competent Court. If he had filed a petition soon after his dismissal, it would have been surely resisted on the ground that no contract subsisted between the parties and that the Authority was not entitled to enter into the question of legality or illegality of the order removing him from service. The respondent soon after his re‑instatement filed this petition. Thus the statutory bar prescribed was removed when it was shown that there was sufficient cause in not making the said application within the prescribed period and hence no question of limitation would arise in this case. For the reasons stated above we see no force in this appeal and it is accordingly dismissed. As the respondent has appeared in person we make no order as to costs. A.H. Appeal dismissed.