2018 PLP 37 (PLC)

MUHAMMAD FARRUKH IRFAN KHAN, J.

By means of this order, I propose to decide the aforementioned writ petition as well as Writ Petition No.304/15 filed by respondent No.1 Muhammad Abdullah as they both arise out of the single judgment of the Punjab Labour Appellate Tribunal, Lahore dated 18.09.2014. (Hereinafter M/s. Phoenix Security Service (Pvt.) Ltd. shall be referred to as the petitioner, whereas, Muhammad Abdullah shall be referred to as the respondent).

2. Briefly the facts of the case are that respondent filed an application under section 15 of the Payment of Wages Act, 1936 before the Authority, which was duly contested by the petitioner by filing written reply. Out of the divergent pleadings of the parties, the learned Authority framed necessary issues, recorded the evidence thereupon and vide order dated 13.02.2012 the respondent was held entitled to recover an amount of Rs.9,52,036/- from the petitioner. Being aggrieved the petitioner filed appeal before the learned Labour Court, who vide judgment dated 14.09.2012 modified the decree of the learned Authority and the respondent was held entitled to recover total amount of Rs.7,90,900/-. Being still dissatisfied the petitioner filed revision whereupon the Punjab Labour Appellate Tribunal, vide impugned judgment dated 18.09.2014 further reduced the decretal amount to the tune of Rs.4,47,910/-. Both the parties have challenged the validity of said judgment of the learned Appellate Tribunal by way of these writ petitions.

3. Learned counsel for the petitioner at the very outset submits that he is only aggrieved of the judgment of the learned Punjab Labour Appellate Tribunal to the extent of award of overtime to the respondent; that the respondent has failed to produce any evidence qua performance of duty beyond the duty hours as such the learned Labour Appellate Tribunal was not justified in awarding him overtime; that while doing so the Appellate Tribunal has committed material illegality and irregularity which requires intervention by this Court in its Constitutional jurisdiction.

4. On the converse, learned counsel for the respondent submits that the petition filed by the petitioner is not proceedable as it is not filed by a competent person; that according to the copy of resolution dated 17.05.2013 Manager Admin and IR was authorized to file this writ petition but it has been filed by the General Manager who has no authority to do so; that in the writ petition the petitioner has questioned the legality of the judgments of the learned Labour Court and Appellate Tribunal but has not challenged the basic order of the Authority; that even if the writ petition of the petitioner is allowed in its totality even then the basic order of the Authority will remain in the field; that the witness of the petitioner has admitted that all the guards worked 156 hours over time in the month of June, 2010 and they were paid over time at the rate of Rs.10/- per hour as such keeping in view this admission on the part of the PW the learned courts below were fully justified in awarding overtime and no occasion arises for this Court to intervene with the same in its Constitutional jurisdiction.

5. In support of Writ Petition No.305/15, learned counsel for the respondent submitted that the learned Punjab Appellate Tribunal committed material illegality while intervening in the well reasoned judgment of the learned Labour Court; that both the forums below had concurrently held that the respondent was entitled for annual leave of 23 days per year for the last three years, therefore, the learned Appellate Tribunal was not justified in intervening with the same in its revisional jurisdiction; that it has also been proved on record that the case of the respondent fell within the ambit of deduction of wages but the learned Tribunal arbitrarily considered it a case of delayed wages; that the conclusion arrived at in this regard by the learned Appellate Tribunal is contrary to record; that the learned Labour Court while appreciating the material in its true perspective had rightly passed the judgment which has illegally been modified by the learned Appellate Tribunal as such the judgment of the learned Labour Court is liable to be restored.

6. I have heard the arguments advanced by the learned counsel for the parties and gone through the record.

7. First of all I would like to dilate upon the objection of the respondent that writ petition of the petitioner was filed by an incompetent person. Copy of resolution dated 17.05.2013 is available on record according to which Mr. Mahboob Alam Siddiqui son of Muhammad Manzoor, Manger Admin and IR was authorized to institute the petition on behalf of the Company but strangely the petition was filed by the General Manger of the Company and that too without mentioning the name of General Manager. Learned counsel for the petitioner has failed to show that the writ petition has been filed by a competent person. Therefore, it is held that the instant petition has been filed by an incompetent person as such the same is liable to be dismissed on this score alone. In arriving at this conclusion I am fortified by the judgment of the Hon'ble Apex Court reported as Telecard Limited through Authorized representative v. Pakistan Telecommunication Authority through Chairman (2014 CLD 415) wherein it has been laid down as under:- "It is a settled law that a lis cannot be initiated on behalf of the company which is a juristic person, without having due authority either in terms of the articles of association or by the board resolution"

8. It is also conspicuous to note that the petitioner has not challenged the order of the Authority which is the root cause of the lis, therefore, I am in agreement with the argument of the learned counsel for the respondent that even if the writ petition of the petitioner bearing No.2803/14 is allowed it would not serve any purpose to the petitioner as consequently the order of the Authority would remain in field.

9. Even on merits the petitioner has no case. Its Manager while appearing as RW1 admitted that in the month of June, 2010 all the guards worked 156 hours over time. He also failed to bring on record any material from which it could be inferred that such practice of availing over time duty from the guards was not repeated in the rest of the months. In this backdrop all the forums below were fully justified in awarding overtime to the respondent and I am not inclined to intervene in the same in Constitutional jurisdiction. Therefore, findings of the forums below on the issue of overtime are sustained.

10. Now coming to the judgment in Writ Petition No. 304/15, there is substance in the submissions of the learned counsel for the respondent that the same is contrary to the record. It was the claim of the respondent that he was entitled to 23 annual leaves which has not been rebutted by the petitioner. The petitioner has also failed to bring on record any material from which it could be inferred that said leaves were availed by the respondent as such he is not entitled to claim leaves for the last three years. The learned Appellate Tribunal while reducing the annual leaves of the respondent has referred to Section 49-B(2) of the Factories Act, 1934 which provides as under:- "If a worker fails in any one such period of twelve months to take the whole of the holidays allowed to in under subsection (1), any holidays not taken by him shall be added to be holidays to be allowed to him under subsection (1) in the succeeding period of twelve months, so however that the total number of holidays which may be carried forward to a succeeding period shall not exceed fourteen."

11. Plain reading of the above section makes it abundantly clear that it is applicable in cases where a worker was offered holidays as per the agreement between him and the employer and he himself did not avail the same. However, where the factory/ establishment refused to grant annual leave to a worker due to a contingency, then the said provision of law could not be invoked to deprive a worker by curtailing his unavailed holidays to fourteen per annum into the subsequent year. There is nothing on record to show that the respondent was offered annual leaves as per his entitlement and he failed to avail the same. It is rather evident from the record that it was the petitioner who did not allow him to avail such leaves as such the learned Tribunal was not justified in curtailing annual leaves of the respondent by applying the above-said section.

12. Even otherwise, it appears that while applying section 49-B in the case of the petitioner, the learned Tribunal remained oblivious of subsection (2) of Section 49-A of the Act ibid which reads as under:- "The provisions of this Chapter shall not operate to the prejudice of any rights to which a worker may be entitled under any other enactment, or under the terms of any award, agreement or contract of service."

13. As has been discussed supra the petitioner could not rebut the stance of the respondent that he was entitled for 23 days annual leaves as such keeping in view the provisions of subsection (2) of Section 49-A of the Act reproduced above, the respondent cannot be deprived of his rights by applying provisions of Section 49-B(2) of the Act ibid. The provisions of Section 49-B(2) could be made applicable where there was no rule for grant of annual leaves beyond the minimum fourteen days provided by the statute and the worker was offered but failed to avail its annual leaves/holidays. Where the company/factory has rules for grant of annual leaves of more than 14 days then the same has to be given overriding effect. The Payment of Wages Act, 1936 had been enacted for benefit of workmen, which would be interpreted and applied in the spirit leading to its enactment. Reliance is placed on case reported as Mughal Surgical (Pvt.) Ltd. and others v. Presiding Officer, Punjab Labour Court No.7 and others (2006 SCMR 590). Therefore, the conclusion of the learned Tribunal curtailing the unavailed annual leaves to 14 days for the purpose of compensation being contrary to the evidence available on record is liable to be set-aside.

14. Similarly, the conclusion of the learned Appellate Tribunal that the case of the respondent falls within the ambit of delayed wages is also not borne out of the record. It is an admitted fact that salary of the petitioner was fixed at Rs.7400/- but he was paid Rs.6564/- per month which is a deliberate attempt of the petitioner to deprive him of his agreed wages being his lawful right. It is also evident from the record that the respondent was neither paid gratuity, compensation of working Sundays and Gazetted holidays despite his entitlement, therefore, clearly it was a case of deducted wages, therefore, it could not be treated as delayed wages. According to subsection (3) of Section 15 of the Payment of Wages Act, 1934, compensation could be awarded upto ten times of deducted amount. The learned Authority as well as the Labour Court already while taking lenient view awarded one time compensation of deducted amount which apparently was justified to meet the ends of justice but it has illegally been disallowed by the learned Labour Appellate Tribunal. The conclusion of the learned Appellate Tribunal in this regard being contrary to available record cannot be allowed to hold field as such the same is set-aside.

15. For the reasons discussed above the Writ Petition No.2803/14 filed by the petitioner-Company is dismissed, while the Writ Petition No.304/15 filed by the respondent Abdullah is accepted as a result whereof the impugned judgment of the learned Punjab Labour Appellate Tribunal dated 18.09.2014 is set-aside and that of the learned Labour Court dated 14.09.2012 is restored. ZC/P-16/L Order accordingl