1989 PLP 608 (PLC)

Date of hearing: 12th April, 1986. The order dated 17-7-1985 recorded by the learned Presiding Officer. k Punjab Labour Court No. 1, Lahore is reported to be without jurisdiction and of no legal effect, whereby the case was remanded to the Authority for decision on merits.

2. The respondent is a duty clerk. His duty is to mark the duties of drivers, conductors, cleaners etc. on the buses. He claimed overtime wages for working on -- festival holidays. Since the same were disallowed, he brought a petition under section 15 of the Payment of Wages Act. The learned Authority holding that the respondent was not a person employed in a factory, dismissed his petition, but the learned lower appellate Court held that the Payment of Wages Act was applicable to the employees of PUTC and thus remanded the case for decision on merits.

3. It has been argued by the learned counsel for the petitioner that the respondent is neither a driver, nor a conductor, nor a cleaner nor a checker and 81 nor employed on mobile duty and rather works in the office, therefore, is not covered by the definition of worker given in section 2(10) of the Road Transport Workers Ordinance. The learned representative of the respondent has relied upon Notification No.I-I(L-IV)/65(I) dated 13-12-1965, which reads as under:- "In exercise of the powers conferred by subsection (5) of section 1 of the 'ayment of Wages Act, 1936 (Act IV of 1936) and with reference to the Government of West Pakistan, Labour Department's Notification No.I-I (L-IV)/65(I) dated the 28th May 1965, the Governor of West Pakistan is pleased to extend the provisions of the said Act to the payment of wages to the workers employed in the road transport service as defined in subsection (7) of section 2 of the Road Transport Workers Ordinance, 1961 (Ordinance No.XXVIII of 1961)." Subsection (7) of Section 2 of Road Transport Workers Ordinance, 1961, referred to by the learned representative reads as under:- "Road Transport Service" means a service carrying passengers or goods or both by road in vehicles for hire or reward." This is evident that by subsection (7) of Section 2 the whole service has been defined as road transport service and the only condition is that such service may be carrying passengers or goods or both by road in vehicles for hire or reward. But this is not sufficient and only those employees of the Road Transport Service can take benefit of the Payment of Wages Act who either can be said to be persons employed in a factory, or who fall within the definition of worker as defined in section 2(10) of the Road Transport Workers Ordinance. Notification referred to by the learned representative of the respondent benefits only those persons who are workers employed in the Road Transport Service as defined in subsection (7) of Section

2. The respondent, therefore, can take benefit of the notification only if he is covered by the definition of workman. According to the definition, the persons who are actually on mobile duty or who are drivers, cleaners, conductors or checkers, are covered by the definition. Obviously, the respondent is neither a driver, nor a checker, nor a conductor, nor a cleaner. Now it is to be seen if he can be said to be employed on mobile duty. The term 'mobile duty' no doubt is not defined in the Road Transport Workers Ordinance, but from the phrase it is clear that only those persons can be said to have been engaged on mobile duty who are deputed to travel on buses. A Traffic Manager ii, or a Traffic Magistrate are not covered by the definition of workman, but when they are deputed to travel by road for checking or for any other duty, they can be said to be on mobile duty. There is no evidence that the respondent during festival holidays remained on mobile duty. The learned Authority, therefore, rightly held that the respondent was not a worker and that the Payment of Wages Act was not applicable to him. The learned lower appellate Court missed to see that the notification referred to by the learned representative of the respondent again makes reference to the workers employed in the Road Transport Service as defined in subsection (7) of section 2 and without considering that, according to the nature of the duties of the respondent, he could not be said to be engaged on mobile duty and the learned lower Court wrongly held that he could apply under section 15 of the Payment of Wages Act. The learned representative of the respondent has not been able to cite any authority in which it may have been held that a duty clerk can apply under section 15 of the Payment of Wages Act or that he can be said to be engaged on mobile duty.

4. As a result of the observations made above, the revision is accepted and setting aside the impugned decision of the learned lower appellate Court, the 1 petition brought by the respondent under section 15 of the Payment of Wages Act is dismissed. AA./637/Lb.P Revision accepted.