1976 PLP 896 (PLC(CS))

Khaliq Hussain for Respondent. This is an appeal against an order, dated 26th October; 1974, passed by the Authority, under the Payment of Wages Act, 1936, Lyallpur, whereby the appellant has been directed to make payment of Rs. 2,172 to be paid to the respondents. The appellant runs a concern of Carpet manufacturing. The respondents were his employees. They fled two applications alleging in each case that the employer failed to pay their wages for the last six months. These applications were contested. The plea of the employer was that no wages were due and on the other hand Hashmat Ali, father of the respondents was indebted to him to the tune of Rs. 3,645.80. Issues were framed and the parties were asked to produce evidence. On 23rd September 1974 it was suggested to the lower Court that the case be decided on oath. The suggestion was that Hashmat Ali, the father of the employees, should take an oath of Holy Quran in a Mosque of Jaranwala Town, to the effect that he had not paid anything to the appellant and that the appellant was liable to pay an amount of Rs. 2,172 to his sons. Both the parties agreed on the prescribed oath. The case was adjourned. On the next date of hearing a dispute arose between the parties as to whether an oath was taken in the prescribed manner or not. Hashmat Ali stated that he had taken oath whereas the appellant stated that be had not taken. As a dispute had arisen, the trial Court, framed the following issue:- "Whether an oath as prescribed in the agreement and in accordance with the orders dated 23rd September 1974, was taken and whether the employer had to pay the disputed amount." On the above issue both the parties adduced oral evidence. Hashmat Ali and his two witnesses stated that oath was taken and in rebuttal four witnesses appeared and they stated that oath was not taken. Both the parties closed their evidence and the case was adjourned for arguments. On 24th October 1974, the employer was absent. Ex parte proceedings "' were taken against him. On the same date, the trial Court recorded further evidence on merit and passed an order to the effect that the employer should pay an amount of Rs. 2,

172. The procedure adopted by the trial Court is improper. On 24th October 1974, the case was pending for arguments. The employer was present on that date. He obtained permission from the trial Court to call his counsel but he did not come back till 1-45 p. m. It was at that time when ex parte proceedings were ordered. It appears that soon after the Clerk of the Counsel appeared and stated that the respondent had fallen ill and so be was unable to attend the Court. The trial Court did not consider his matter at all. At the maximum the trial Court should have given finding as to whether the prescribed oath was taken or not. No finding on this aspect of the case was given. The trial Court was not justified to take the case on merits. The Court must have decided the issue framed by it on 28th September 1974 and if the Court found that no oath as prescribed has been taken, then and then alone it could proceed further. I am satisfied, that the trial Court took hasty proceedings in recording evidence on 26th October 1974 and the employer was not given proper opportunity for defence in this case. For the above reasons, the order of the trial Court is set aside and the case is remanded for fresh trial. The lower Court is directed firstly to give a finding on the issue framed on 28th September 1974 and thereafter, case should be disposed of in accordance with law. No order as to costs. Parties are directed to appear before the lower Court on 15th January, 1975.