1976 PLP 767 (PLC(CS))

This is an appeal under section 17 of the Payment of Wages Act, 1936, against an order dated 5th February 1974, passed by the Authority under the said Act, whereby the appellant was directed to deposit an amount of Rs. 4,800 to be paid to the respondent. The respondent Fazal Masih was an employee in the Establishment of the appellant. His services were terminated. On 20th March 1972, he applied to the Additional Deputy Commissioner, Lyallpur, who was Acting Arbitrator under the law for re-statement. The order of the Arbitrator is dated 19th April 1974 and is reproduced below:

"The case has been examined. The petitioner was laid off but was not re-appointed although his vacancy has now been filled up, the Management Representative states that there were complaints against the worker but this does not bold much water because the petitioner was never charge-sheeted nor called upon to show cause for the complaints. It is a fit case for re-instatement which is ordered but he will not be paid the wages for the intervening period." On 16th September 1972, the respondent filed an application before the Authority under the Act, claiming an a amount of Rs, 1,200 as wages from 19th April 1972 to 12th September 1972. He also claimed compensa tion amounting to ten times of the said wages. In reply to the above claim the appellant stated that the respondent did not join his duties after obtaining order, dated 19th April 1972 and so the appellant was not liable to pay any wages to the respondent. On the basis of the evidence produced by the respondent, the Authority found that the respondent him been going to the appellant but it was the appellant who refused to re-employ him. In these circumstances it was held that the appellant was liable to pay an amount of Rs. 1,200 to the employee. The compensation to the extent of three times of the wages were allowed. In this way the appellant was ordered to deposit an amount of Rs. 4,

800. The admitted facts are that the respondent was removed from service on account of layoff. He was ordered to be re-employed by the Additional Deputy Commissioner, acting as Arbitrator. The respondent had not b-.en performing any work from 19th April 1972 to 12th September 1972 for which period the wages are claimed. The first question is whether the amount claimed falls within the definition of wages. Under section 2 (vi) of the, Payment of Wages Act, "wages" means all remunerations, capable of being expressed in terms of money, which would, if the terms of the contract of employment were fulfilled, be payable. The question is whether, under these circumstances, stated above, contract of employment had come into existence or not. The case of a wrongful dismissal stands on a different footing. A wrongful dismissed employee on re-instatement is entitled to wages because terms of contract are fulfilled. On this point the case of Divisional Superintendent, N.W.R. v. Muhammad Sharif (L L C 1959-60 H C 367), may be referred to. In this case a Railway employee was dismissed on 30th June 1953 which was held illegal on 9th June 1955 by a civil Court. Employee was then re-instated but tile wages during the period of un-employment were refused to him. The High Court held: "An employee would be entitled to wages if the terms of contract of employment are fulfilled. If the employee was willing to perform his part of the contract but was not a1owed to do so by the employer, it cannot be said that the employee had not fulfilled the terms of his contract and was, therefore, not entitled to any wages for the period during which he was not allowed to work." In order to get wages, it is necessary that the contract must exist and in case where there was no existing contract between tile employer and the employee, in that case no wages would accrue. The question in this case is whether any contract exists between the parties. The respondent was laid off and so his contract of employment bad come to an end. It is not the case of any party that lay off was illegal and so the termination was wrongful. The order of the Additional Deputy Commissioner shows that after the lay off the work was started and vacancy to absorb the respon dent had arisen. In these circumstances the re-instatement was ordered. In fact, it was a case of re-employment. The order of the Additional Deputy Commissioner was an offer. It had to be accepted by the respondent and if he had joined, then and then only contract of employment had come into existence. It is an admitted fact that the respondent never joined the service. My opinion is that the reasons for joining i.e. whether the employer was guilty not to re-employ or whether the employee was guilty not to join service are immaterial. The order of the arbitrator was a mere proposal and without joining service there was no acceptance, therefore contract of employment had not come into existence. In the absence of any contract of employment there was no question of the terms to be fulfilled and so the respondent was not entitled to any wages because such a period would not fall within the term "wages". The case would have been different, if the respondent had been removed from service by a wrongful order and then he would have been re-instated. In such a position the old contract continues. If it is a case of re-employment then contract does not revive till employee joins his service. On the factual side, I am not satisfied that the respondent had been going to the employer for joining service. In this case the respondent examined three witnesses. Jamal Din (P. W. 1), Sadiq (P. W. 2), Muhammad Rashid (P. W. 3), and he himself appeared as P. W.

4. The evidence of all these witnesses is to the effect that the respondent has been working in the Mills Establishment for joining. All the witnesses are not ache employees. In fact, they were dismissed employees. Obviously, they were inimical towards the employer. Their evidence cannot be relied without a pinch of salt. In the ordinary course of nature and human conduct the respondent would have himself served a written notice to the employer. In any case it seas proper for him to approach the A. D. C., alleging that he had not been allowed to join service. It was for that officer to take proceeding under the law against the employer. No evidence has been brought on record that the respondent had been actually going to the employer for obtaining re-employment. The findings of the lower Court on this point is reversed. For the above reasons the appeal is accepted and the order of the lower Court is set aside.