2016 PLP 103 (PLC)

ALI SAIN DINO METLO, MEMBER.

The applicant seeks this Tribunal to exercise its suo motu revisional power under Section 48(5) of the Sindh Industrial Relations Act, 2013, and set aside order dated 13.01.2015 of the Labour Court No.VI, Hyderabad, dismissing its Appeal No.04/2014 as time barred.

2. Briefly, the facts are that the applicant did not pay legal dues to its workers (respondents 01 to 33) opting for separation under the Golden Handshake Scheme (GHS) offered by it in 2004.

3. After going through a long litigation before Federal Service Tribunal and the High Court of Sindh, the Authority under the Payment of Wages Act (Respondent No. 34) allowed their applications under Section 15 of the Payment of Wages Act, 1936, on 30.07.2013 and directed the applicant to deposit their legal dues total amounting to Rs.14,915,142/- within 30 days.

4. The applicant filed appeal challenging order of the Authority before the Labour Court on 23.12.2013, i.e. after 146 days instead of within 30 days prescribed under Section 17 (1) of the Payment of Wages Act, 1936.

5. The Labour Court dismissed the appeal as time barred and refused to condone the inordinate delay on the plea of the Court lying vacant; because the Presiding Officer was available up to 12th September, 2013, and from 13th November to 22nd December, 2013, and the office accepted/received applications/appeals regularly during absence of the Presiding Officer.

6. Learned counsel for the applicant argued that the applicant did not file appeal during absence of the Presiding Officer as the applicant would not have been able to get stay and, therefore, the applicant opted to file a constitutional petition in the High Court of Sindh on 25.09.2013 and obtained order of stay on 26.09.2013 and after filing appeal on 23.12.2013 got the constitutional petition disposed of as not pressed on 18.02.2014.

7. The applicant, after receiving certified copy of the order of the Authority on 04.09.2013, could have filed appeal up to 12.09.2013 and from 13.11.2013 to 22.12.2013 and could have obtained stay as during this period of 49 days the presiding officer of the Court was available. Even otherwise, office of the Court regularly accepted applications and appeals presented on all working days even in absence of the Presiding Officer. Moreover, grant of stay is not a condition or requirement for filing appeal. There is also no justification or explanation for filing appeal after 88 days of obtaining the stay. The applicant after obtaining order of stay from the High Court, could have filed appeal within time. The applicant could have also filed appeal even before filing the constitutional petition.

8. The other thing which is necessary to be mentioned is that the Hon'ble Supreme Court has consistently held that provisions of Section 5 of the Limitation Act, 1908, are not applicable and cannot be pressed into service for the purpose of condoning delay where period of limitation is prescribed by a special statue. In this regard, reference may be made to the cases of Abdul Ghaffar v. Mst. Mumtaz (PLD 1982 Supreme Court 88), Ali Muhammad v. Fazal Hussain (1983 SCMR 1239) and Allah Dino v. Muhammad Shah (2001 SCMR 286). In the first two cases delay was not condoned in filing rent appeals as the period of limitation was prescribed by the rent statues and in the latter case the period of limitation was prescribed under Section 115, C.P.C.

9. In the present case the period of limitation is prescribed under Section 17 of the Payment of Wages Act, 1936, and the Act while authorizing the original authority to condone delay in filing application under Section 15, has not authorized the appellate authority to condone delay in filing appeal under Section

17. Thus, neither the applicant had shown sufficient cause for not filing appeal within time nor the appellate authority (Labour Court) had power to condone the delay and, therefore, the Labour Court rightly dismissed the appeal as time barred.

10. On merits also, the applicant has no case. In its written statement filed before the Authority, the applicant did not dispute quantum of the legal dues claimed by the respondents nor claimed to have paid them any amount in that regard. The respondents produced sufficient documentary proof to show that they were employees of the applicant and the Administrative Officer of the applicant also admitted, in his cross-examination, that the respondents were employees of the applicant.

11. Relying upon a Share Purchase Agreement dated 27th February 2004, under which Haji Abdul Ghani Usman and Arif Habib purchased shares of the applicant company through Privatization Commission, learned counsel for the applicant contended that, while payment of the legal dues, including the gratuity, was responsibility of the applicant, the purchasers and the Commission had agreed to pay four salaries for each complete year of service to the workers opting for GHS as an additional incentive. Thus, according to the learned counsel, the purchasers and the Commission, who had to bear burden of the additional incentive in equal shares, were necessary parties and the applications were liable to be dismissed for non joinder of the necessary parties. The arguments is without any weight. In their applications, the respondents claimed only legal dues (including gratuity) which, even according to the agreement, was responsibility of the applicant. They did not claim the additional incentive of four salaries and, therefore, it would have been improper to join the purchaser and the Commission as party to suffer the litigation.

12. As regards contention of the learned counsel about the claim to be time barred, the Authority has given cogent reasons for condoning the delay, if any, in exercise of its powers under the second proviso to Section 15 (2) of the Payment of Wages Act, 1936, and no case is made out for interference in the exercise of discretion by the Authority. In the matters of pay and pension bar of limitation is not applied as their nonpayment is a continuing breach/wrong giving rise to fresh cause of action on every refusal from day to day. For this view, references may be made to the cases of Rao Solat Yaseen Khan v. Director General etc., 1995 PLC (CS) 1026, Kh. Zaheer Ahmed v. District Account Rawalpindi, 1984 PLC (CS) 386, Zardad Khan v. Chairman WAPDA Lahore 1987 PLC (CS) 181 and Rao Muhammad Yaseen Khan v. Secretary Ministry of Education, 1986 PLC (CS)

66. In all these cases the Federal Service Tribunal held that nonpayment of pay and pension is continuing wrong and every refusal would give raise to a fresh cause of action. The last case was upheld by the Supreme Court. Reference may also be made to the case of Managing Director Sui Southern Company Limited v. Ghulam Abbas and 2 others PLD 2003 SC 724 = 2003 PLC (C.S.) 796 relevant page 837.

13. In view of the above facts, circumstances and legal position, no case is made out for the exercise of suo motu revisional jurisdiction. Accordingly, the revision is dismissed. HBT/24/SLT Revision dismissed.