2016 PLP 470 (PLC)

2. Two Bonuses each year For the period 1997, 1998, 1999, 2000, 2001, 2002 and 2003 (7 years) 7 X 2 = 14 months Gross pay @ Rs.10,927/- X 14 =1152,978.00 Rs.152,978.00

3. Wages for the period October, 2003 Rs.10,927.00 4. 25 days leave encashment. Rs.10,927.00 Total: Rs.371,518.00" Learned Representative has contended that from the perusal of his above schedule of claim, it is evident that the same itself is illegal, void and against the provisions of law as an employee can claim gratuity equal to only one month's gross wages/salary on completion of continuous 12 months service while the applicant in his above schedule of claim has claimed two months gross pay for one year service without showing any law or practice in vogue in the establishment. Besides, he has also claimed bonuses for seven years i.e., from 1997 to 2003 @ two months salary for each completed financial year while under Standing Order 10-C, the employer who earned profit is required to pay one month gross salary for each completed financial year while the same was vehemently denied and that under first proviso attached to Section 15(2) of the Payment of Wages Act, 1936, an application has to be presented within three years from the date the wages was due or to be paid to the employee concerned, whereas the applicant has claimed his alleged bonuses for the past seven years without giving any explanation and the respondent No.1 while filing written statement has categorically denied the said alleged claim filed by the applicant. The applicant has further contended that the respondent No.1 failed to cross-examine the applicant on his affidavit in evidence filed before the learned Authority. In this connection, the learned Labour Court after going through the R&P has observed at page-13 of its order dated 31.5.2006 which is reproduced hereunder:- "But in the instant case, it is- very clear that the respondent did not actually come in the witness box and re-affirmed the contents of his affidavit in evidence, as there is no such endorsement on his affidavit in evidence. In absence of above mandatory requirement, the evidence of the respondent could not be the sole consideration for granting the claim of the respondent as the learned Authority has failed to give any sort of plausible reason in support of its finding to allow the claim of respondent. Unless an application is legally maintainable from all corners, it cannot be granted on mere fact that it is ex parte or the other side has not contested the claim by leading evidence in rebuttal." It is further submitted by the learned Representative for respondent No.1 that while filing written statement the establishment has produced the order of promotion dated 28.1.2000 and job description of applicant and the perusal whereof reveals that he was working as Production Officer and he was not a workman under Standing Orders Ordinance, 1968, but the learned Authority has failed to consider the said aspect of the case and has allowed the claim filed by the applicant with three times penalty for which the learned Authority was not competent as it was not the case of deduction of wages and that the learned Authority has failed to consider as-to whether the applicant in the capacity of Production Officer was entitled for payment of "gratuity" and "bonuses" under Standing Orders Ordinance, 1968. There also exist no evidence on record to show that the respondent No.1 establishment has declared `bonuses' and paid to its other employees as the applicant has failed to adduce any such evidence documentary or otherwise to establish his claim before the learned Authority. Besides, the learned Authority has also failed to consider all these aspects of the case and has arbitrarily allowed the claim of the applicant and further allowed him three times penalty for which the learned Authority was not authorized to do so, particularly taking into consideration the peculiar circumstances of the above matter. Learned Advocate for the applicant has emphasized on the issue that the appeal under Section 17 filed by respondent No.1 was time barred and the same was not maintainable under the law. The learned Labour Court while dealing with the said issue had observed at page # 9 of its order dated 31.5.2006 which is as under:-- "The second ground raised in this respect on behalf of the appellant is equally very important as it goes to the very root of the impugned order as to its legality and if it is established that the impugned order is void and nullity the plea of limitation becomes immaterial because no limitation runs against a void order. Thus, the legality of the impugned order is required to be examined. In this respect the learned counsel for the appellant has attacked the legality of the impugned order on three scores firstly; that the legal procedure was not adopted by the learned Authority under the Payment of Wages Act for recording evidence of the respondents in as much as the respondent was never called and affirmed his assertions made in this affidavit in evidence irrespective of the fact that he was not cross-examined on behalf of the appellants: secondly that the learned authority has acceded its powers and jurisdictions while granting three times "delayed wages" as the impugned order has not been passed in respect of any claim of "deducted wages" where the authority could legally impose a maximum of 10 times penalty but it is a case of "delayed wages" where no more than Rs.10/- can be imposed by way of penalty; and thirdly the Authority has failed to discuss and appreciate the evidence of the respondent and failed to give its findings on the issues framed in the matter but passed the impugned order haphazardly in a slip-shod manner holding that the claim of the respondent has gone unrebutted, as the reply statement in the matter was already filed as such the learned Authority was specifically required to discuss the evidence and give its findings in respect of every issue framed in the matter." Learned Advocate for the applicant has relied on PLD 1982 SC 88 and 1982 SCMR 160, wherein it is held by the Hon'ble Supreme Court of Pakistan, that when the special law not providing applicability of Section 5 of the Limitation Act, then the provisions of Section 3 of Limitation Act will apply in such proceedings and the appeal filed beyond the period of limitation was not maintainable and that an application for condonation of delay also cannot be entertained in such proceedings. Apart from above, the learned Advocate for the applicant has also relied on a judgment of Hon'ble Division Bench of High Court of Sindh in the matter between Muhammad Noorul Ameen v. the Authority under the Payment of Wages Act, reported as 1991 PLC 758, wherein it is held that Section 5 of the Limitation Act is not applicable to the proceedings under the Payment of Wages Act, 1936. Learned Advocate for the applicant has further contended that order dated 19.10.2004 passed by the learned Authority has attained finality and since no appeal was filed within limitation period of one month, the respondent No.1 establishment could have filed Constitution Petition in the said matter and in this connection he has relied the judgment of Division Bench of Hon'ble High Court of Sindh Karachi in the case between M/s. Intertrade v. Faisal and two others, reported in 2011 PLC

208. He further relied upon two other judgments reported as reported in 1998 PLC 172 and 2006 PLC 11, whereby it is held that the provisions of Payment of Wages Act are applicable on "person employed" by virtue of Section 3 and not restricted only for the workers and he further argued that the designation is not a criteria for determining whether a person belongs to the category of a workman but the nature of duties is the deciding factor. He further contended that the applicant was employed as a workman and therefore, he was entitled to the claim filed by him before learned the Authority. As against the above assertions of learned Advocate for the applicant, learned Representative appeared on behalf of respondent No.1 establishment has also produced the following judgments/citations wherein the Hon'ble Supreme Court of Pakistan has constantly held that no limitation runs against void and erroneous order. (i) 1996 SCMR 856 (ii) 1986 SCMR 962 (iii) 1987 SCMR 1543 (iv) 2001SCMR 19 at page 21 (v) 1998 TD (Labour) Learned Representative for Respondent No.1 has submitted that the learned Authority was not empowered to impose penalty and the said impugned order is also bad in law and liable to be set aside on this score also. In this connection, he has relied the following judgments:- (1) 1995 PLC 541 in case between Pakistan Railways v. Punjab Labour Court No.4, Multan and four others passed by High Court at Lahore. (2) 1997 PLC 481 in case between Abdul Karim v. Chairman, PLAT, Lahore and three others passed by Lahore High Court. (3) 1998 PLC 71 in case between Pakistan Industrial Gases Limited versus Commissioner for Workmen's Compensation and two others passed by High Court of Sindh, at Karachi. (4) 1987 PLC 301 in case between Regional Superintendent, Pakistan Railways versus Zarina I3egum and others passed by High Court of Sindh, Karachi. I have gone through the record and proceedings of the above case and have also particularly perused the schedule attached by applicant along with his application bearing No.136/2003 under Section 15 of the Payment of Wages Act, 1936, whereby he has claimed gratuity @ two months gross-pay for one completed year of service, while he has also claimed two bonuses for each year for a period of seven years i.e., from 1997 to 2003. I am not aware as to how the applicant has filed such a claim while under Standing Order 12(6) of Ordinance, 1968, only one salary on completion of 12 months continuous service could have only been claimed while under Section 15(2), a person is restricted to file his claim within a period of three years whereas the applicant has claimed bonus for last seven years of his employment, but the learned Authority has failed to consider the said aspect of the case and it is also not established as to whether the applicant falls within the category of a "workman" as according to him, he was promoted as Production Officer on 08.11.1999 and the respondent No.1 while filing written statement has also filed his job description, but since no evidence has been properly recorded by the learned Authority, the said question could not be established on record. From the perusal of order dated 19.10.2014 passed by the learned Authority, whereby he has allowed three times penalty and as against the original claim amounting to Rs.2,73,175/- he has allowed the total amount of Rs.10,92,700/- in favour of applicant without giving any cogent reason and that the said order is not speaking one and it shows that the learned Authority has passed the same in hurriedly manner and even failed to consider the issues so framed by him in the instant case. I have also considered the impugned order dated 31.5.2006 passed by learned Presiding Officer, Labour court, and fully agree with the observations passed by him and even from the perusal of order dated 19.10.2004 by learned Authority, it is very clear that the said order is void and erroneous as the learned Authority has failed to record valid reasons for allowing claim filed by the applicant arid so much so he has failed to consider as to whether the claim filed is even maintainable under the law or otherwise, therefore, the said order is void and erroneous and it has no bearing in the eye of law which was deserved to be rejected but on the contrary, the learned Authority without considering the same has wrongly allowed three time penalty for which he was not competent under the law. I have also fully considered the arguments filed by learned Advocate for the applicant and filed by the learned Representative of Respondent No.1 and I am fortified by the rulings submitted by the learned Representative of Respondent No.1 and hold that no limitation runs against void and erroneous order and that the order passed by the learned Authority was void and erroneous and he has wrongly allowed the claim in favour of the applicant. I see no substance in the petition/Rev. Application filed by the applicant which is hereby dismissed and at the same time, I maintain the order dated 31.5.2006 passed by Presiding Officer, Sindh Labour Court No.1 at Karachi, whereby the learned Labour Court has remanded back the case to the learned Authority under the Payment of Wages Act for a fresh decision after providing full opportunity of hearing and leading evidence to the parties concerned. HBT/1/SLT Revision application dismissed.