2003 PLP 297 (PLC)

2. The breviate of the matter is that the appellants filed a Grievance Petition before the Labour Court Peshawar soliciting therein that they are doing the job of repairing electric faults in the moving train and have to remain on duty with the train and perform their duties beyond eight hours but they are not paid any overtime to which they were statedly entitled. This grievance petition was preceded by a grievance notice dated 18-5-1999 but, was not responded by the respondents. It appears that during the pendency of the grievance petition the respondents moved an application for the summary dismissal of Grievance Petition on the ground that the claim of the appellants qua over-time was not within the domain of the Labour Court. This application was resisted by the appellants and the learned Presiding Officer of the Court on acceptance of the petition of , the respondent returned the petition to the appellants holding that the claim of the appellants bears nexus with the wages as defined in section 2(vi) of the Payment of Wages Act 1936. It was held that it is for the Commissioner to give his verdict under, the law in such-like mattes.

3. The learned counsel for the appellants has assailed the order of the learned Labour Court arguing that the learned Labour Court was wrong in abdicating its jurisdiction and had wrongly held that the Commissioner shall give his verdict in the instant matter. The learned counsel-while making a reference to section 15 of the Payment of Wages Act emphatically argued that the powers of the Commissioner under the. said law are limited only to the claims out of deduction from wages or delay in payment of wages and penalty for malicious or vexatious claims. Explaining his view point the learned counsel argued that the Commissioner could only decide the matter when the respondents were earlier paying the overtime to the appellants and subsequently it was either deducted or delayed. Since the appellants were never given the extra allowance, therefore, it was within the jurisdiction of the learned Labour Court to have determined the claim of the appellants which is their guaranteed right within the meaning of section 47 of the Factories Act (XXV of 1934).

4. On the other hand the learned counsel endeavoured to defend the impugned order contending that the appellants arc required to approach for the redressal of their grievances before the National Industrial Relations Commission. Esoterically he did not recognized it to be a matter within the competence of the Commissioner even under the Payment of Wages Act as was held by the learned Labour Court. To a question as to why the grievance notice of the appellants was not responded by the respondents he answered that the claim of the appellants was not acceptable to the respondents, therefore, they did not give any reply to the grievance notice. Neither of the learned counsel could cite any judgment in support their respective contentions.

5. I have however considered the rival submissions in the light of the relevant provision of law. The arguments of the learned counsel for the appellants carries force when examined in the light of legal provisions. The right of extra pay for over time is recognized by section 47 of the Factories Act, 1934. It is in the following manner:-

47. Extra pay for overtime:

(1) Where a worker:-- (a) in a non-seasonal factory works for more than nine hours in any day or for more than forty-eight hours in any week, or (b) in a seasonal factory works for more than nine hours in any day or for more than fifty hours in any week, he shall be entitled in respect of the overtime worked to pay at the rate of twice his ordinary rate of pay." Section 25-A of the I.R.O. 1969 postulates that a worker may bring his grievance in respect of any right guaranteed or secured to him by or under any law or any award or settlement for the time being inforce to the notice of employer in writing. However according to subsection (4) thereof if the employer fails to communicate a decision within the specified time or if the worker is dissatisfied with his decision he may take the matter to his collective bargaining agent or the Labour Court. Thus it follows that their right which is secured by section 47 quoted above if denied by the employer, then matter can be taken to the Labour Court for the settlement of the controversy. Subsection (1) of section 15 of the Payment of Wages Act (IV of 1936) being extremely relevant is reproduced below:-- "Claims out of deductions from wages or delay in payment of wages and penalty for malicious or vexatious claims:

(1) The Provincial Government may, by notification in the official Gazette appoint any Commissioner for Workmen's Compensation or other officer with experience as a Judge of a Civil Court or as a stipendiary Magistrate to be the authority to hear and decide for any specified area all claims arising out of deductions from the wages. (or non-payment of dues relating to provident fund or gratuity payable under any law) or delay in the payment of wages, of persons employed or paid in that area. "

6. A bare reading of this subsection makes it abundantly clear that the powers of the Commissioner are restricted only to the matters of deduction from wages or delay in payment of wages and penalty for malicious or vexatious claim. This subsection in no manner confers any power on the Commissioner to decide whether a worker or for that matter a class of workers can be held entitled to, receive any wages for the overtime.

7. Uncontrovertedly the appellants had issued a grievance notice with regard to the rights based on section 47 of the Factories Act which remained admittedly unanswered. Thus in such a situation section 25-A of I.R.O. had to be resorted to which was invoked by the appellants by filing the grievance petition. On the facts, circumstances and legal plan given above, I am of the view that the Labour Court has the jurisdiction in the instant matter to resolve the controversy between the parties. As the authority/Commissioner mentioned by section 15 of the Payment of Wages Act has no jurisdiction to decide such like matter being possessive of very limited powers enumerated in the section itself. Consequently I allow this appeal, remit the case to the learned Labour Court Peshawar with the direction to proceed with matter in accordance with law and after recording pro and contra evidence, the matter shall be decided on its merits purely. The parties are directed to appear before the Labour Court Peshawar on 15-5-2003. The office is directed to immediately send the record of the case to the quarter concerned. No order as to costs. H.B.T./796/P Case remanded.