1982 PLP 408 (PLC)

P L D 1972 Kar. 164; P L D 1975 Kar 59 and P L D 1975 Lab 1016 rel. P L D 1979 S C 821 held not applicable. Abdul Hameed Khan for Appellant. S. F. H. Rizvi for Respondent. Appellant WAPDA has filed this appeal under section 17 of the Payment of Wages Act. Respondent was admittedly a Pump Drier at the Canal Pump Station which supplies water to the Gas Turbine Power Station, Kotri and he is employee of WAPDA. It is also admitted position that the Per sons directly connected with the generation of power are entitled to generation allowance. Respondent moved his application under section 15 of said Act to the Authority, for generation allowance at 50% of his wages. In all he claimed an amount of Rs. 8,742.12 besides the compensation at ten times of the claim. The application was opposed by the appellant who took stand that the Pump Drivers working in the power house were not directly con nected with the generation of power and they were not entitled to gene ration allowance. Appellant also took legal pleas that respondent's application was not maintainable as he was covered by the Pakistan Esential Services (Maintenance) Act. 1952 and that the application under section 15 of said Act was time barred and that he was entitled to pay and allowances as per West Pakistan WAPDA, Subordinate Employees (Pay Revision) Rules, 1972 which did no envisage grant of generation allowance. Under his order dated 19th July 1980, the Authority dismissed said application. In appeal this Court under an order dated 31st January 1981 held on the authority of P L D 1978 Kar. 64 and P L D 1982 Kar. 33 that the Authority had jurisdiction to try this case notwithstanding the provisions contained by said Act of 1952. After holding in accepted the appeal and remanded back the matter to the Authority for deter mining the point of limitation and for calculation of the exact amount payable to the respondent as generation allowance. In said order I had also held that the respondent was entitled to generation allowance. After remand the Authority gave further chance to the parties to adduce evidence and then on 8th July 1981 passed the impugned order under which claim of the respondent for generation allowance for the period 20th December 1973 to 31st December 1978 amounting to Rs. 8,756 was accepted and he was awarded compensation of Rs. 17,512 and costs of Rs.

100. Reasons for the impugned order were given in the order dated 8th July, 1981 passed in Case No. (?) of 1979 where the. Authority held that the application under section 15 was not time barred and that the respondent was entitled to generation allowance from the date of his having started working as Pump Driver. The Authority directed deposit of said amount. Hence the appeal. I have heard Mr. Abdul Hameed Khan Advocate for the appellant and Mr. Rizvi counsel for the respondent. Mr. Rizvi argued that he bad raised legal objections which requir ed to be decided first. He cited P L D 1973 Note 85 at p. 123 where it was held that before deciding the case on merits it was obli gatory for a Court to decide the aspect with regard to limitation first. In present case the appeal was filed on 15th August 1981 against an order dated 8th July 1981 although section 17 of Payment of Wages Act says that an appeal against a direction made under section 15 may be preferred within 30 days of the date on which the direction was made. The word "may" used in subsection (1) of section 17 shows that the Legislature did not put compulsion for such appeal being necessarily filed within 30 days. Conversely the Legislature did not wish strict technical note to be taken of the period within which such appeal can be filed. If the intention had been otherwise, the word "shall" would have been used in place of the word "may". Mr. A. Hameed Khan explained that the appellant could not have filed the appeal without the deposit certificate as per proviso (a) to clause (a) below subsection (l) of section 17 of said Act. Perusal of the record shows that the appellant deposit ed with the Authority the amount payable under the direction by way of cheque on 6th August 1981 and the amount of the cheque was realised by the Authority on 15th August 1981 and on 16th August 1981 the deposit certificate was issued but the appeal was already filed on 15th August 1981. Mr. Rizvi cited P L D 1973 S C 295, where it was held that the Appellate Court was bound to consider whether the appeal was within time or not. He also cited 1960 S C M R 36, where dismissal of an appeal by the High Court was held by the Supreme Court to be un exceptionable as the appellant gave no explanation for condonation of delay of one day. In 1978 S C M R 457, the petitioner sought condona tion of delay of 7 days but failed to explain delay of every day and his stand was found unsatisfactory and hence his prayer for condonation was not accepted. Mr. Rizvi also cited P L D 1973 Kar. 618 and

503. In these authorities it was held that the appellant had to show that his conduct throughout the period from passing of the impugned judg ment till filing of the appeal had been one of reasonable diligence and that he had been vigilant. These observations were made in civil suits where the technicalities are to be rigidly applied. No such rigidity can be applied to Labour cases. Wording of section 17 of Payment of Wages Act carries the element of liberal view, to be taken. This appeal could not have been admitted before production of the deposit cer tificate. In 1978 P L C 289 cited for the appellant, the deposit certificate was issued by the Authority after accepting the cheque. The cheque was not encashed and it was held that if the cheque was not encashed it cannot be said to be the non‑compliance with the requirement of law. As in the cited cases, so in the present case, the Authority should not have accepted the cheque. If the Authority accepted the cheque but some time in realizing the amount of the cheque neither for fault of the Authority was lost or for fault of the concerned bank, the blame for that cannot be placed upon the appellant. In other words appellant cannot be penalized if he deposited the amount in question within 30 days from the passing of the impugned order, by way of cheque which was accepted by the Authority, but due to some delay in realization of the amount of the cheque there was corresponding delay in issue of the deposit certificate. And consequently the appellant could not have got his appeal admit ted before 16th August 1981. I therefore hold that late filing of appeal was not due to any fault of the appellant, It was next argued that the appellant should have deposited with the Authority the amount in cash and not the cheque. Under sec tion 17 of said Act the appellant has to deposit with the Authority the amount. Mr. Justice (Retd.) Jamil Asghar, Chairman Punjab Labour Appellate Tribunal observed in 1979 P L C 1 that the "amount" does not mean a "cheque" and he held in 1978 P L C 289, that the Authority under the Payment of Wages Act should not have accepted the cheque or should not have issued the certificate until the cheque was encashed and its amount was duly received. Latter authority shows that deposit of cheque if not altogether illegal. Irregularity of depositing the cheque in lieu of cash is cured when the cheque is accepted by the Authority and its amount is realized. It was not held in 1978 P L C 289, that payment of the amount by way of cheque was not proper compliance with law. In present case the Authority issued the deposit certificate after realizing amount of the cheque on 15th August 1981. I therefore feel that' substantial compliance was made with the requirement of law, if not technical compliance. Mr. Rizvi argued that when the memo. of appeal was filed on 15th August 1981 it was not duly stamped and that the stamps were supplied on 17th August 1981. He cited 1979 S C M R 46, where it was held that where delay in making up deficiency in court‑fee was sought to be condoned the same was to be explained for each day. In cited case the appeal was returned to the counsel for being deficiently stamped. Present appeal was not returned but the appellant before being asked voluntarily supplied the required court‑fees on 17th August 1981. Hence cited case would not apply. Mr. Rizvi also cited P L D 1981 Lah. 206. where a District Judge allowed the plaintiff to make up defiency in court‑fees after expiry of limitation period to file appeal and no ex planation was furnished for failure to pay requisite court‑fee, in time and it was held that the District Judge committed irregularity in permit ting the plaintiff to make good deficiency in court‑fee. These authori ties had facts materially different from facts of the instant case. Provi sions contained by section 28 of the Court Fees Act show that an impro perly stamped document received or filed in any Court can be validated on such document being stamped under orders of the Court and in such case the document so stamped shall be treated to be valid since its receipt or filing in Court. The defect in deficiency of court‑fee can be remedied under section 28 of said Act by calling upon the appellant to make good the deficiency as held in P L D 1972 Pesh.

164. In P L D 1975 Kar. 59 and in P L D 1975 Lab. 1016 it was observed that the court‑fee was a matter of revenue and the Court Fee. Act cannot be used as a weapon of technicality against opponent. P L D 1979 S C 821 cited by Mr. Rizvi would not apply because in that case the plaintiff failed to make up deficiency of court‑fees within the period allowed by the Court. As result of this discussion I overrule the legal objection raised by Mr. Rizvi. On merits it has already been held in the previous appeal decided by this Court on 31st January 1981 that the respondent was working at the Canal Pump Station which supplied water to the Gas Turbine Power Station where electricity was generated and hence he was entitled to gene ration allowance which was given to the staff connected with generation of electricity. I did not find reason to differ with this view. Mr. Abdul Hameed Khan did not challenge finding of the Authority about the application being within time. The application was moved on 20th January, 1979. The proviso below subsection (2) of section 15 of Payment of Wages Act says that every application under section 15 shall be presented within 3 years 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. Second proviso speak about the condonation of delay. The respondent did not move the Authority for condonation of delay. Hence the application under section 15 of said Act for the period beyond 20th January, 1976 is clearly time barred. I therefore hold that the respondent is entitled to have the generation allowance for the period 20th January, 1976 to 20th January, 1979, at the rate of Rs. 145 per month. In this way the respondent is entitled to have from the appellant an amount of Rs. 5,

220. I do not agree with Mr. Rizvi that after my order dated 31st January 1981 the appellant should have paid the amount of gene ration allowance to the respondent and that his omission to do so would make him liable to pay the compensation. Under my order dated 31st January 1981 I had remanded the matter to the Authority and the exact amount was yet to be calculated. There was no occasion for the appellant to make payment of the disputed amount to the res pondent. I therefore hold that respondent is not entitled to get any compensation. Order about costs of Rs. 100 is maintained. I therefore partially accept the appeal, as above. Costs on parties.