2014 PLP 393 (PLC)

FAISAL ZAMAN KHAN, J.

Respondent No.1 had been working as Accounts Assistant with petitioner No.1 and retired on 14-4-2007. Thereafter he was not paid his GP Fund etc. according to law and policy; He filed a petition under section 15 of the Payment and Wages Act before the Commissioner Workmen Compensation Authority Lahore (herein after called the Authority) on 22-11-2008 airing his grievance.

3. Vide order dated 18-6-2009, his application was accepted and petitioners were directed to deposit Rs.307,354 towards the remaining amount of GP fund within 30 days. Feeling aggrieved, of the order, both the parties preferred appeals before Labour Court No.2 Lahore. It shall not be out of place to mention here that respondent No.1 preferred an appeal praying that he may be granted compensation under section 15 of the Act ibid.

4. Through orders dated 31-8-2010 both the appeals were dismissed. As regards the appeal of respondent No.1, it was held that award of compensation is not mandatory and is discretionary, which the authority refused to exercise.

5. Feeling dissatisfied of the order passed by both the Courts below respondent No.1 preferred a Revision before the Punjab Labour Tribunal Lahore, which was accepted on 6-2-2013 and a compensation amounting to Rs.75,000 was awarded, hence this petition.

6. Learned counsel for the petitioners contend that the order passed by the Authority as well as the Labour Court were in accordance with law and they rightly refused to exercise discretion in favour of respondent No.1. It was further contended that the amount which was ascertained by the Authority, was deposited with the Court within no time and the grievance of respondent No.1 stood redressed.

7. I have heard the learned counsel for the petitioners and gone through the record.

8. The order passed by the Authority clearly signifies that an amount of Rs.827,620 was outstanding towards the GP fund of respondent No.1 but out of that only Rs.475,501 was paid to him and the remaining amount of Rs.307,354 was withheld by the petitioners.

9. It is noted by this Court that the Authority had held that the amount was deliberately withheld /deducted and not paid despite lapse of time yet no finding with reference to payment of compensation was rendered. Similarly, the order passed by the Labour Court also acknowledges deliberate withholding but refused to grant compensation on the pretext that it is not mandatory and is the discretion of the Authority. It is noted that no independent finding qua the compensation to be paid has been rendered by the Labour Court.

10. I have gone through the order passed by the Punjab Labour Appellate Tribunal which is a well reasoned order inasmuch as that although under the law, 10 times of the amount deducted could be ordered to be paid as compensation but the Tribunal showing leniency and keeping in view the lapse of the petitioners of non-payment for two years has only awarded Rs.75,000 as compensation on the assumption that if the defaulted amount was kept in a profit bearing scheme, it could have fetched the same amount.

11. It is incomprehensible that when the Authority and Labour Court came to the conclusion that payment was deliberately withheld, why they had not exercise their discretion for payment of compensation and in case they were not willing, at least reasons should have been given.

12. I have examined section 15 of Payment of Wages Act, 1936, which is reproduced below:

15. Claims out of deductions from wages or delay in payment of wages and penalty for malicious or vexatious claims. (1) .. (2) .. (3) When any application under subsection (2) is entertained, the authority shall hear the applicant and the employer or other person responsible for the payment of wages under section 3, or give them an opportunity of being heard, and, after such further inquiry (if any) as may be necessary, may, without prejudice to any other penalty to which such employer or other person is liable under this Act, direct the refund to the employed person [or if the applicant is one of the heirs of an employed person, the payment to such applicant] of the amount deducted, or the payment of the delayed wages, together with the payment of such compensation as the authority may think fit, not exceeding ten times the amount deducted in the former case and not exceeding ten rupees in the latter: Provided that no direction for the payment of compensation shall be made in the case of delayed wages if the authority is satisfied that the delay was due to

(a) a bona fide error or bona fide dispute as to the amount payable to the employed person, or (b) the occurrence of an emergency, or the existence of exceptional circumstances, such that the person responsible for the payment of the wages was unable though exercising reasonable diligence, to make prompt payment, or (c) the failure of the employed person to apply for or accept payment. (4) (5)

13. After going through the above provision of law, this Court is of the view that when the Authority comes to the conclusion that employer is liable under the provision mentioned Supra, apart from making order of payment of amount deducted, it is mandatory for the Authority to award compensation, which the authority think fit but shall not exceed 10 times of the amount deducted. The proviso to section 15(3) of the Act creates an exception to the rule of award of compensation highlighting the circumstances where no direction for payment of compensation shall be made.

14. For what has been discussed above, this court is of the view that it was mandatory for the courts below to have awarded the compensation, which they failed to do however the Punjab Labour Appellate Tribunal rightly decided the question of compensation, by way of awarding the same. As a sequel to above I find no merit in this petition and the same is dismissed. SA/M-239/L Petition dismissed.