1988 PLP 236 (PLC)

This judgment shall dispose of an appeal under section 17 of the Payment of Wages Act, 1936, instituted by the Divisional Superintendent, Pakistan Railways, Multan, to be called appellant, challenging the order of the Authority, Sahiwal, passed by it on 24‑7‑1985, whereby he has been directed to make payment of Rs. 14,984.I0 as over time wages to Mr. Intisar Ahmad, Wireman Diesel Locoshed, Pakpattan, the respondent.

2. This judgment shall also dispose of an appeal of the respondent under the same law against the same order of the Authority, Sahiwal because of denial of 10 times compensation and cost of the case to the respondent.

3. As the record shows, the respondent is employed in the Locoshed Pakpattan as Wireman Diesel. According to him, the Locoshed Pakpattan falls within the definition of a factory as such under the Factories Act, 1934, the appellant cannot make him work beyond 8 hours a day. The appellant has on the other hand kept him on duty from 1‑3‑1982 to 14‑4‑1985 daily for 12 hours. For 4 hours each day spent by the respondent in addition to prescribed working hours, the respondent is entitled to extra payment in accordance with the relevant law.

4. The respondent in the given situation calculated the amount as Rs. 14,984.10 and took recourse to the Authority, Sahiwal under section 15 of the Payment of Wages Act, 1936 for its recovery from the appellant. He also asked for 10 times compensation.

5. The appellant opposed this claim before the Authority by denying the applicability of the Factories Act, 1934 to the Locoshed Pakpattan. According to him, the Locoshed Pakpattan is governed by the Railway Servants Hours of Employment Rules, 1931, therefore, the respondent should proceed accordingly. The appellant further alleged that the establishment at Pakpattan contains 3 wiremen who perform turn by turn 8 hours duty per day. The respondent on his part has worked for 8 hours a day and not for 12 hours. By denying the validity of calculation done by the respondent as well, the appellant prayed for dismissal of the application with cost.

6. The Authority proceeded with the matter in accordance with law. It ultimately came to the conclusion that respondent's actual claim is well‑founded consequently it passed an order in his favour accordingly. It, however, did not find it a fit case for compensation and cost of the case as such it made no direction to this effect.

7. Both the parties felt aggrieved from the findings of the Authority to the extent of their own interests. Both of them, therefore, came in appeals in this Court which are presently under consideration.

8. The appellant has reagitated the same points in this Court which he took before the Authority. According to him, the Authority failed to understand the evidence. At the same time, it misinterpreted the law. The respondent agreed with the findings of the Authority to the extent of his actual claim. He challenged its correctness for denial of compensation and cost of the case. According to him, the relief was denied to him unjustifiably. For that he was fully entitled both to compensation as well as cost of the case.

9. To settle the controversy at rest I have gone through the record of the Authority and heard the arguments of the learned counsel of the parties. Keeping in view the facts and law my conclusion is that both the parties have failed to make out their cases to interfere with the findings of the Authority. Firstly I take the case of the appellant. His main stand is that the Locoshed Pakpattan does not fall within the definition of a factory. The definition of a factory and the evidence led by the respondent to bring the Locoshed Pakpattan within the framework of that definition, rebut this averment of the appellant. According to the Factories Act, 1934, the definition of a factory is as under:‑ Section 2(i) "factory" means any premises, including the precincts thereof, whereon ten or more workers are working, or were working on any day of the preceding twelve months, and in any part of which a manufacturing process is being `carried on (or is ordinarily carried on whether with or without the aid of power) but does not include a mine, subject to the operation of the Mines Act, 1923 (If of 1923); The definition refers to manufacturing process. It is necessary to reproduce the definition of manufacturing process given by the Factories Act, 1934. It is as following: Section 2. (g) "manufacturing process" means any process‑‑ (i) for making, altering, repairing, ornamenting finishing or packing, or otherwise treating any article or substance with a view to its use, sale, transport, delivery or disposal, or (ii) for pumping oil, water or sewage, or (iii) for generating, transforming or transmitting power; The evidence brought on the record by the respondent brings the Locoshed Pakpattan within the meaning of a factory. The petitioner has examined Muhammad Bashir as P.W.1 and himself as P.W.2. Both sof them say that the Locoshed Pakpattan contains 57 workers. The said Locoshed is connected with repairs of railway engine, pumping of oil and pumping of water. It also contains carriage staff. In his evidence the appellant has neither controverted the number of workers employed therein nor the function performed by the worker's. To the extent of repair, it has simply been stated that it is done by the staff attached with the engine. This statement is not convincing firstly because it is without any corroboration, secondly for the reason that it is quite confusing. It does not disclose whether staff is part of the running staff of the engine or the staff posted at the Locoshed Pakpattan.

10. After resolving the dispute about the nature of the Locoshed Pakpattan as a factory now I turn to decide whether Factories Act, 1934 shall apply to it. This proposition has been clarified by section 80 of the Factories Act, 1934. It says: Section

80. Application to Government factories.‑‑This Act shall apply to factories belonging to the Government." Admittedly the Locoshed Pakpattan is working under the Government. It is thus to be governed by the Factories Act, 1934 excluding the applicability of Railway Servants Hours of Employment Rules, 1931.

11. In this connection there is another argument which is notable. The Factories Act, 1934 came into being subsequent to Railway Servants Hours of Employment Rules, 1931. Being later in time, it shall overpower the Railway Servants Hours of Employment Rules, 1931.

12. The other objection which has been taken by the appellant is that Locoshed Pakpattan contains 3 Wiremen. Each of them performs 8 hours duty per day. This objection is equally not sound. The respondent says that third wireman was transferred during the period under consideration. In absence of his substitute, the respondent and the other wireman had to perform his duty dividing it equally. The factum of transfer has been admitted by the respondent in evidence. The admission in the given situation definitely goes in support of my findings.

13. Lastly, the appellant says that calculations have not been done correctly. It includes the holidays as well. The detail given in the application refutes this contention. The respondent has excluded the holidays from his claim for overtime payment.

14. During the course of arguments, the learned counsel of the appellant stated that respondent had to work only for 2 hours a day because number of trains coming to Pakpattan is quite few. In this connection 'he referred to the statement of his sole witness. This view point in the light of written statement is not inspiring. In his written statement, the respondent admits that nature of duty in Locoshed Pakpattan is continuous. It being continuous it does not matter whether the number of trains is small or large.

15. Finally, the appellant says that claim was time‑barred. This objection was not taken in the Court below. For that matter the respondent cannot agitate it in this Court. For the sake of arguments C I may say that claim is for the period from 1‑3‑1982 to 14‑4‑1985. The application was given on 14‑4‑1985. The period of the limitation being 3 years the whole claim is not hit by the law of limitation only for few days it goes beyond limitation which can be overlooked the reason that respondent could not explain his position in absence of objection in the Court below.

16. The respondent has asked for compensation and cost of the case. The respondent has also failed to make out his case for that. He has not stated anywhere that he took recourse to the respondent and he was denied the payment. He straightaway went to the Authority. For not allowing a proper opportunity to the appellant to look into the respondent's case, the appellant cannot be burdened any more. Further, he has not suffered any extraordinary loss to justify the compensation. So far as the cost of the case is concerned, there is no proof of that except a court‑fees of Rs.1.50. In absence of proof and in view of negligible amount of court‑fees this claim is likewise not so considerable.

17. For what has been discussed above, the finding of the Authority is perfectly correct, consequently both the appeals are hereby dismissed. A.E. /264/Lb. P Appeals dismissed.