P L D 1959 (W (PLP)

2. A preliminary objection is taken on behalf of the respon dent that a petition for revision is not entertainable by this Court, firstly, because the Commissioner appointed under the Payment of Wages Act cannot be deemed to be a Court Subordinate to the High Court within the meaning of section 115 of the Code of Civil Procedure and, secondly, because the order which is sought to be revised was appealable under section 17 (1) (b) of the Payment of Wages Act.

3. As regards the first point that the Commissioner cannot he deemed to be a Court Subordinate to this Court, the learned counsel for the respondent has placed reliance on Manager, Spring Mills v. G. D. Ambedkar (A I R 1949 Born. 188) and H. C. Mathur v. E. I. Rly (A I R 1950 All. 80). It has been held in these cases that the authority invested with jurisdiction under the Payment of Wages Act is not a Court' Subordinate to the High Court within the meaning of section 115 of the Code of Civil Procedure. In both the cases a Full Bench decision of the Lahore High Court in Works Manager Carriage and Wagon Shop, Mogalpura v. K. G. Hashmat (A I R 1946 Lah. 316) was referred to and dissented from. In the aforesaid ruling of the Lahore High Court it has been held that the authority appointed under section 15 of the Payment of Wages Act, 1936, is subject to the revisional jurisdiction of the High Court under section 115 of the Code of Civil Procedure and section 44 of the Punjab Courts Act. It is obvious that there is a conflict of judicial opinion in the matter but the rule of law laid down in Works Manager, Carriage and Wagon Shops, Mogalpura v. K. G. Hashmat is quite clear and I have no option but to follow it. I accordingly hold that the authority appointed under section 15 of the Payment of Wages Act is a Court Subordinate to this Courtl9 for the purpose of exercising revisional jurisdiction under section 115 of the Code of Civil Procedure.

4. The second objection that the order sought to be revised was appealable under the provisions of section 17 (1) (b) of the Payment of Wages Act is not without substance. Section 17 reads as follows :‑ "(1) An appeal against a direction made under subsection (3) or subsection (4) of section 15 may be preferred, within thirty days of the date on which the direction was made, before the District Court‑ (a) by the employer or other person responsible for the payment of wages under section 3, if the total sum directed to be paid by way of wages and compensation exceeds three hundred rupees, or (b) by an employed person, if the total amount of wages claimed to have been withheld from him or from the unpaid group to which he belonged exceeds fifty rupees, or (c) by any person directed to pay a penalty under sub section (4) of section 15. (2) Save as provided in subsection (1), any (direction made under subsection (3) or subsection (4) or section 15 shall be final." In this section reference has been made to subsection (3) of section 15 which is also reproduced below :‑ (3) When any application under subsection (2) is entertained, the authority shall hear the applicant and the employer or other person responsible for the payment of wages under section 3, or give, them an opportunity of being heard, and, after such further inquiry (if any) as may be necessary, may, without prejudice to any other penalty to which such employer or other person is liable under this Act, direct the refund to the employed person of the amount deducted, or the payment of the delayed wages, together with the payment of such compensation as the authority may think fit, not exceeding ten times the amount deducted in the former case and dot exceeding ten rupees in the latter: Provided that no direction for the payment of compensation shall be made in the case of delayed wages if the authority is satisfied that the delay was due to‑ (a) a bona fide error or bona fide dispute as to the amount payable to the employed person, or (b) the occurrence of an emergency, or the existence of exceptional circumstances, such that the person responsible for the payment of the wages was unable, though exercising reasonable diligence, to make prompt payment, or (c) the failure of the employed person to apply for or accept payment ". In support of his contention the learned counsel for the respon dent has relied on Mir Muhammad Haji Omar v. Divisional Superintendent, North Western Railway, Karachi (I L R 1941 Kar. 394) where it was held by Weston, J. " that direction in subsection (3) of section 15 of the Payment of Wages Act includes rejection of claim in toto and that an appeal lies under the provisions of section 17 (1) (b) to the District Court against such a decision". This judgment, however, was dissented from by Hamilton, J. In Khema Nand v. East Indian Railway (A I R 1943 All. 243) where the learned Judge expressed doubt " whether an appeal lies from an order in which no one has been directed to make any payment to the other side ".

5. After a careful consideration of the provisions of sec tions 15 and 17 of the Payment of Wages Act, I am inclined to agree with the Karachi view that an appeal lies against an order whereby the claim of the employee has been rejected in toto. The right of appeal has been provided to an employee under section 17 (1) (b) if the total amount of wages claimed o to have been withheld from him or from the unpaid group to which he belongs exceeds Rs.

50. In my opinion, it could not have been the intention of the Legislature that the employee will have the right of appeal when his claim has been reduced, and not when his claim has been rejected in toto. The word " direction " used in subsection (1) of section 17 is comprehensive enough to include the rejection of the claim of an employee in toto. The Payment of Wages Act appears to have been enacted for the benefit of the employees and a speedy and inexpensive remedy has been provided for enforcing the claim. I do not think the Legislature could have intended to deprive the labourer of his right of appeal in case his claim was rejected in toto by the authority concerned.

6. This, however, does not conclude the matter because the power to the exercise of revisional jurisdiction under section 115 of the Code of Civil Procedure vests in this Court only if no appeal lies to it. The words " and in which no appeal lies thereto " used in section 115 do not exclude the jurisdiction if the appeal lies to the District Court and not to the High Court: Though the position is somewhat anomalous but in its terms C section 115 of the Code of Civil Procedure does not apply if the order is appealable to the District Court. However, in a case of this nature, a revision though permissible will not be entertained unless there are exceptional circumstances. I am fortified in this view by a decision of the Allahabad High Court in Bisheshar Prasad Pandey v. Raghubir (A I R 1926 All. 58) where it was held‑ "Section 115 confers revisional jurisdiction on the High Court in cases in which no appeal lies to that Court. Its jurisdiction is not excluded by‑the fact that an appeal might lie to a subordinate Court ": Similarly in the case of Ma Min Baw v. Chettyar Firm (144 I C 163) it was held by Baguley, J. of the Rangoon High Court‑ " When a party has another remedy by way of appeal to a Subordinate Court or by way of a regular suit, the High Court will not as a rule interfere in revision but this is simply a rule of practice which arises from the optional nature of section 115 which says that the High Court may make such order in the case as it thinks fit. In the ordinary way when a party has a good legal remedy in a Subordinate Court, the High Court does not view with favour the case being brought before it, but under special circumstances the High Court can entertain an application in revision although another remedy is open to the party ". With the principle laid down in the aforesaid rulings I respectfully agree.

7. In the light of the principle stated above, the question which requires to be determined is whether in the circumstances of this case this revision petition should be entertained ? The learned counsel for the petitioners has not been able to point out any exceptional circumstance to bring the case within the rule laid down above. In fact the provisions of section 115 of the Code of Civil Procedure are not even otherwise attracted to the facts of this case. The decision of the trial Court that, the petitioners had failed to establish that any bonus had been declared by the respondent depended upon appreciation of the evidence adduced by the parties. The petitioners were unable to produce any reliable evidence in support of the allegation that the bonus had been declared by the respondent during the period in which the petitioners were the employees of the respondent. In this connection they relied solely on an unsigned copy of the balance‑sheet Exh. P. A/2 which shows that bonus had been declared by the respondent during the period of employment of the petitioners. This document was neither produced along with the application, nor. was relied on in the list of reliance. The document is not signed by any person at all. It is a type‑written document on the letter head of M. Hussain Chaudhri & Co. The petitioners produced Mr. Masud, Manager of M. Hussain Chaudhri & Co. as P. W.

9. He stated that his company had not audited any of the accounts of the respondent during the years 1951, 1952, 1953 and 1954. He did not admit the copy of the balance‑sheet Exh. P. A/2 as having been prepared by the firm M. Hussain Chaudhri & Co. The only relevant piece of evidence is the statement of Mr. Razi Rizvi, whose statement was recorded at Peshawar on commission. This witness was formerly employed as an accountant by the respondent and remained in their service from 1949 up to October 1955. He stated that the firm M. Hussain Chaudhri & Co., had sent him two copies of the balance‑sheet which he had handed over to his successor. He also stated that he thought that the copy Exh. P. A/2 was the same which had been supplied to him by the firm M. Hussain Chaudhri & Co. The respondent denied that the copy of the balance sheet Exh. P. A/2 was a genuine document and characterised it as a forgery. There is nothing on the record to show as to how this document came into possession of the petitioners. It has already been pointed out that this document is not signed by any one and is only a type‑written copy. In view of the circumstances narrated above, the learned Commissioner refused to rely on this document. Mr. S. A. Rahim, Managing partner of the respondent firm was also examined by the petitioners as P. W.

10. On the 12th of April 1958 he pro duced a number of documents before the Court including the assessment reports and the balance‑sheet for the year 1954. It appears that the petitioners did not get these documents exhibited at the trial. The inference is obvious that the balance sheet produced by the respondent did not show that any bonus was declared by the respondent in the year 1954. The case of the respondent from the beginning was that no bonus had been declared during the period of employment of the petitioners. Having regard to all the circumstances of the case, it is not open to the petitioners to argue that the learned Commissioner in arriving at the conclusion on this question had acted in the exercise of his jurisdiction illegally or with material irregu larity. The case is, therefore, not brought within the ambit of section 115 of the Code of Civil Procedure at all.

8. The learned Commissioner further held that the claim of the petitioners in respect of bonus was time barred. The claim of the petitioners to the arrears of pay was given up by the petitioners themselves as time barred. The proviso to subsection (2) of section 15 of the Payment of Wages Act prescribes the period within which an application is to be made regarding claims arising out of deduction from wages or delay g in payment of wages. It may be pointed out that the defini tion of " wages " includes bonus as well. The proviso reads as follows :‑ "Provided that every such application shall be presented within six months from the date on which the deduction from the wages was made or from the date on which the payment of the wages was due to be made, as the case may be: Provided further that any application may be admitted after the said period of six months when the applicant satisfies the authority that he had sufficient cause for not making the application within such period ", According to the petitioners, the last bonus was declared by the respondent in the year 1954 and the application in question was filed by the petitioners on the 18th of September 1957. Having regard to the proviso referred to above, the application was obviously barred by limitation unless the petitioners could satisfy the authority that they had sufficient cause for not making the application within the period of six months. In the application it was undoubtedly alleged by the petitioners that they had learnt about the declaration of the bonus only recently. This application was filed through Rafique Alam who appeared as P. W.

7. In his statement made at the trial on solemn affirmation, he stated in no unambiguous terms that it was in the year 1954 that he came to know for the first time that the bonus had been declared and that he had been making applications to the respondent in the year 1955 and to other departments for the payment of bonus to him and other petitioners. The claim of the petitioners that they had learnt about the declaration of the bonus only recently before the institution of the petition is thus falsified by the admission of Rafique Alam that he had learnt about the declaration of the bonus in the year 1954. It is true that while deciding this question the learned Commissioner has mainly relied on the copy of an application made by the petitioners to the Director, Labour Welfare. This copy is referred to as Exhibit R.2. This document has not been proved in accordance with law and as such it should not have been taken into considera tion. However, even if this document is excluded from con sideration; there is no evidence to show that the petitioners had sufficient cause for not making the application within a period of six months. Mr. Nasir Nazir (P. W. 6) Assistant Director of Labour Welfare Department stated that Rafique Alam had made an application relating to the non‑payment of bonus but he could not produce the application as the record was not traceable. In cross‑examination he, however, referred to the copy of that application and stated that the original application of Rafique Alam was received in the office on the 18th of May 1956. The statement of this witness makes it abundantly clear that the petitioners had been demanding bonus from the respondent in May 1956. No explanation was offered by the petitioners to show as to why they delayed in making the application under section 15 of the Payment of Wages Act till the 18th of September 1957. The question of limitation, therefore, appears to have been rightly decided by the Com missioner. Thus the petitioners have failed to establish any exceptional circumstance to enable this Court to entertain this revision petition. They have also not been able to make out a case for the exercise of revisional jurisdiction under section 115 of the Code of Civil Procedure.

9. For the aforesaid reasons there is no substance in this revision petition which is hereby dismissed with costs. K. B. A./A. H. Petition dismissed.