1987 PLP 558 (PLC)

(6) Whether the applicant is competent to file the claim? (7) Whether the application is time barred? (8) Whether the application is bad for non‑joinder of necessary party i.e. WAPDA? (9) What should the order be? The applicant's attorney filed affidavit on 22‑5‑1986, in evidence, but on the same date miscellaneous application was filed requesting this Court to first decide the preliminary legal issues. The attorney of applicant also filed counter affidavit on 7‑12‑1986, therefore, the matter was fixed for arguments over the issue of jurisdiction. Mr. Gul Muhammad Qureshi on 11‑1‑1987 insisted to argue over this issue and accordingly I heard his arguments and of Mr. Bashir Awan Advocate for applicant. Mr. Ibrahim Soomro learned Advocate of opponent also appeared and argued on the same point and relied on the pleas of Mr. Gul Muhammad Qureshi. In the light of arguments advanced by parties and citations of Mr. Bashir Awan the matter is discussed and decided as under. Mr. Gul Muhammad Qureshi has referred to the provisions of section 1(6) of the Payment of Wages Act, which prescribes that the application could be filed by employees/ workers whose wage do not exceed Rs.1,500 per month. He has also referred to the statement of salary paid to applicant for the period from 20‑8‑1984 to 19‑8‑1985, the later being the date of drafting the main application of Mr. Ishtiaq Hussain, the average of which comes to more than Rs.1,500 per month. This assumption has been arrived at by him keeping in view of the provisions as laid down in Workmen's Compensation Act, calculation of gratuity etc., wherein average of 12 months were prescribed. Mr. Bashir Awan on the other hand submitted that in the instant case average of entire period of claim has to be taken into consideration and not as assumed by Mr. Qureshi. He further referred to section 1(6) of the Payment of Wages Act which reads as under:‑‑ "Nothing in this Act shall apply to wages payable in respect of a wage period which over such wage‑period averaged more than one thousand and five hundred rupees a month". In support of his contention Mr. Bashir Awan also cited rulings/case law, and contended that according to which the average of entire claim period is to be taken. The case laws quoted were: (i) P L D 1963 Supreme Court 340 (ii) 1984 P L C p.584. (iii) 1985 P L C p.953. According to the decision of the Honourable Supreme Court (P L D 1963‑340) their Lordships have observed as under:‑‑ "The basic pay of the respondent was Rs.76 per month i.e. much below Rs.200 and hence it was conceded before the High Court that the provisions of Act could apply to this respondent as his monthly wages averaged Rs.200 per month. The second decision of the Labour Appellate Tribunal Sind appearing in P L C 1984 at p.584, says "the intention of the legislature is clear that the wages payable are to be determined in respect of a wage period for which the wage allegedly not paid or payable and in case such wages over such period average more than Rs.1,000 per month. Thus according to Mr. Awan the average per month has to be calculated from the entire period of claim. The third case referred by Mr. Awan (1985 P L C 953) also clarifies "that the wages payable are to be determined in respect of a wage period for which the wage allegedly not paid are payable." The law and case law particularly reported in 1984 P L C page 584 cited by the learned advocate of applicant is very much clear, and therefore average of the claim period is required to be calculated which according to the schedule filed alongwith the main application does not exceed Rs.1,500 per month. In view of the above discussion, I hold that this Court ha jurisdiction to try the matter and consequently the miscellaneous application of the opponent stands rejected. M.Y.H./917/Lb. Petition rejected.