P L D 1960 (W (PLP)

(2) Whether the wages in dispute fall within the definition of wages as given in the Payment of Wages Act ? (3) If so, whether they are disputed wages and as such cognizance of the application cannot be taken under the Payment of Wages Act ? (4) To what amount are the applicants entitled ? On issue No. I the learned Senior Civil Judge arrived at the con clusion that the application for a period of six months only namely, from October 1953 to March 1954, was within time and as regards the rest it was not. On issue No. 2 he held that the definition of the "wages" given in the Payment of Wages Act was wide enough to include the pay even though it was paid monthly. Discussing issue No. 3 he relied on Simpalex Manufacturing Co. Ltd. v. Alla‑ud‑Din (A I R 1945 Lah. 195) and held that the Act dealt with only the admitted wages and not the wages upon which there was a dispute between the Railway Administration and the employee. Even tually the application was dismissed with costs. An appeal against this order was rejected by the learned District Judge, Lahore, on the 24th of January 1958. The applicants have now come up on revision to this Court.

2. So far as issue No. 1 is concerned, the learned counsel for the petitioners does not dispute the judgments of the learned Courts below. In fact, it is given in section 15 itself that every application under this section shall be presented within six months from the date on which the payment of the wages was due to be made, and as admittedly the application was made beyond time, the learned Senior Civil Judge had no alternative but to dismiss it in respect of the period which was beyond six months, counting it from the date of the institution of the application. The learned counsel argued that it should be considered within time because of the publication of letter No. 561‑E‑85/0/49‑(E‑II) dated the 14th of November 1955. I am, however, unable to understand as to how does this letter enlarge the time. In section 15, second proviso added to subsection (2), it is laid down that any applica tion may be admitted after the said period of six months when the application satisfies the authority that he had sufficient cause for not making the application within such period. The non issuing of the aforementioned letter before the 14th of Novem ber 1955 can certainly not be said as a sufficient cause for not making the application within six months. The argument, how ever, advanced in this respect was completely un understandable. I am consequently of the opinion that the judgment of the learned authority on issue No. 1 is correct and must be upheld.

3. The finding on issue No. 2 has not been contested before me. So far as issue No. 3 is concerned, reliance has been placed on Simpalex Manufacturing Co. Ltd. v. Alla‑ud-Din. It was held in this case that delayed wages can only mean wages which are admittedly due, but the payment of which has been post poned on some excuse or another. Hence any bona fide disputes as to the amount payable are to be tried by the Civil Courts, for otherwise there would be no authority capable of making an order for payment when the amount is in fact due. The learned Judge in arriving at this conclusion kept in view subsection (3) of section 15 in which it is said that a direction should not be made when the delay in the payment of wages is due to a bona fide dispute as to the amount payable to the employed person. The learned Judge, however seems to have overlooked the fact that under sub section (3) it is not the payment of the delayed wages which is affected on account of the bona fide error or bona fide dispute as to the amount payable to the employed person, but what is affect ed is the payment of the compensation. The view expressed in this authority has not been accepted in Bhugwat Rai v. Union of India and another reported in (A I R 193 Nag. 136). The learned Judges in this case have relied upon Modern Mills Ltd. Managalwedhekar (A I R 1950 Bom. 342) and A. R. Sarin v. B. C. Patil (A I R 1951 Bom 423). In the latter authority they have quoted the following paragraph with approval:‑-- "We would like to make it clear, as the matter is of consider able importance, as to what we think is the jurisdiction of the Authority under the Statute. It is certainly competent to the Authority to construe the terms of the contract of employment in order to determine what wages are to be paid, and even if the contract of employment has been terminated, it is open to him to construe its terms in order to determine whether any sums are payable by reason of the termination. It would also be open to him to determine whether a person has been employ ed or not, because the question of contract of employment and the terms of the contract can only arise provided the person seeking relief was employed. The mere denial of the factum of employment cannot oust the jurisdiction of the Authority. If the employer denies or disputes the fact that the servant was employed by him, it will be for the Authority to decide that question and it is only after the question of employment has been decided that the question would arise as to what are the terms of the contract‑and what is the liability of the master under the terms with regard to' wages. It has been suggested by Mr. Seeravai that this construction of the statute really confines the jurisdiction of the Authority only to cases where wages are admitted, and Mr. Seervai says that if the Legislature intended that the Authority should only try cases of admitted wages, there was nothing easier than for the Legislature to have so stated. It is not correct that our decision leads to the conclu sion that the jurisdiction of the Authority is so limited or restricted because there may be various cases within its juris diction where the liability to wages is denied or disputed and which the Authority would still be competent to decide. The question as to whether X amount or Y amount is due under the terms of the contract is a case where wages may not be admitted. The employer may say that X amount is due and the servant, might say that Y amount is due, and the Authority would have to decide on a true construction of the terms of the contract as to what is the amount due. Therefore, the jurisdiction of the Authority really is to determine the terms of the contract in so far as they relate to the payment of wages and in so far as he has to decide the liability of the employer to pay wages under the terms of the contract." Independently of these authorities, I am of the view that the defini tion of "wages" given in the Act itself makes it perfectly clear A that the authority must decide as to what was the remuneration 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. To say that the authority has absolutely no juris diction to entertain an application under the payment of Wages Act, if the wages stated by the petitioners are denied by the employer, will defeat the Act itself and make it absolutely ineffec tive. In such a case no sooner an application is made under the Act than in order to have the application rejected, all that the employer will have to do will be to deny the wages mentioned in the application. That surely cannot be the intention of the Legislature. I am, therefore, of the opinion that the view taken in Simpalax Manufacturing Co. Ltd. v. Alla‑ud‑Din is not sound, I am at the same time in agreement with the observations made by Mahajan, J. in Kishen Chand v. Divisional Superintendent, Lahore Division, North Western Railway reported in (A I R 1948 Lah. 202), that the Act furnishes a summary remedy for wages earned in an office and not paid but it does not provide a remedy for investigation of queries which concern the office itself, in other words, whether a man should be retained in one job or should be reverted to another job. In this case, therefore, I think the Authority could go into the question as to what cadre applies to the petitioners.

4. The claim of the petitioners as regards the cadre is this that they were qualified Draftsmen and, therefore, entitled to their pay on the higher cadre. It is admitted that they were all Tracers and were promoted to Grade III Draftsmen with a certificate that they were of outstanding ability. The question, however, still remains as to whether they were qualified Draftsmen so as to entitle them to get the higher grade. Reference may be made to the copy of the letter No. 561‑E/85/O/II‑(E. IV) dated the 15th of March 1952 from the General Manager, North Western Railway, Lahore to all Divisional Superintendents and Extra‑Divisional Offices, North Western Railway. According to this letter only the persons who were technically qualified were entitled to the higher grade of Rs. 125‑

225. The words "technically qualified staff" were defined as to include such of the draftsmen as have passed either of the following standards:‑-- (1) A draftsmen's certificate from the Thompson Civil Engineering College, Roorkee, or the Government Engineering School Rasul, or (2) an Overseer's certificate from the Thompson Civil Engineering College, Roorkee, or the Government Engineering School,. Rasul, or (3) a diploma from the N.E.D. Engineering College, Karachi, or (4) an Engineering diploma or a degree of a recognised school, college or university, or (5) a complete course of apprenticeship in mechanical Engineering Workshops, preferably in a Locomotive Work shop, or (6) an Overseer's certificate from a recognised Engineering Institution holding a proficiency certificate in draftsmanship, or (7) must possess a high standard of Technical Education in Electrical and Mechanical Engineering and in addition have practical experience in Electrical Engineering or have completed a full course of training in a recognised technical institution or railway workshop. It is admitted by the learned counsel for the petitioners that none of the petitioners possess any one of these qualifications. He, how ever, argues that the definition of the words "technically qualified" is not exhaustive but inclusive. Therefore, if a person holds any other qualification not mentioned in this list, even then he would be entitled to get the pay in the higher grade. In my view, the other qualifications which a person possesses in order to entitle him to get the pay in the higher cadre should be of the saint nature as given in the letter, i.e., he should be qualified from some institution not mentioned in the list given above. Merely because a person has been working as a tracer for a very long time and C has been certified to be a man of exceptional ability, does not qualify him to get the pay in the higher cadre or be termed as a technically qualified man. I am, therefore, of the opinion that the petitioners were not entitled to the wages in the higher grade and, therefore, there is no question of the payment of delay ed wages in this case.

5. Lastly, I think the application was highly defective. The Federation of Pakistan has been cited as a respondent, although the person who should have been cited as a defendant was the person nominated by the railway Administration under section 3 of the Act. I find no force in. the revision petition which fails and is hereby dismissed with costs. K.M.A. Petition dismissed.