P L D 2006 Supreme Court 166 (PLP)

SARDAR MUHAMMAD RAZA KHAN, J.

Tehsil Municipal Administrator, Faisalabad has filed these appeals with leave of the Court granted on 22-6-2005 against the judgments dated 14-10-2002 in Writ. Petitions Nos.18452 and 18453 of 2002 and the judgment dated 6-5-1999 in Writ Petition No.5938 of 1996. The judgments dated 14-10-2002 were based on a former judgment of the learned High Court rendered in Writ Petition No.5938 of 1996 on 6-5-1999.

2. The respondents in all the appeals are the employees of Tehsil Municipal Administration Faisalabad: They, most probably, were entrusted the job of removing encroachments and unauthorized occupations for which they claimed payment of overtime job. It was denied by the Administration but granted through the impugned judgments of the learned High Court, based on the judgment dated 6-5-1999 in Writ Petition No.5938 of 1996. The judgment aforesaid runs counter to the verdict given by this Court in Town Committee Gakhar Mandi v. Authority under Payment of Wages Act, Gujranwala PLD 2002 SC 452 which, no doubt came subsequent to the original judgment dated 6-5-1999 of the High Court.

3. Overtime payment is allowed under the Payment of Wages Act, 1936 only to the persons employed in a `Factory'. `Factory', on the other hand, is defined in section 2(j) of the Factories Act, 1934, meaning to be "...any premises including the precincts thereof, whereon ten or more workers are working, or were working on any day of the preceding twelve months, and in any part of which a manufacturing process is being carried on or is ordinarily carried on with or without the aid of power, but does not include a mine, subject to the operation of Mines Act, 1923 (IV of 1923)." Such definition of factory carries an important expression `manufacturing process' that must be in existence to render any precincts as `factory'. 4. `Manufacturing process' is again defined in section 2(g) of the Factories Act, 1934 as follows:-- "(g) `Manufacturing process' means any process (i) for making, altering, repairing ornamenting, finishing or packing, or otherwise, treating any article or substance with a view to its use, sale, transport, delivery or disposal, or (ii) for pumping oil, water or sewage, or (iii) for generating, transforming or transmitting power."

5. The aforesaid definition of `factory' and `manufacturing process', if minutely kept in view, would indicate that a Municipal Committee or a Municipal Administration does ,not at all fall within the definition of a `factory' and no `manufacturing process' is undertaken A therein or thereby. We would avoid rendering any further reasons or grounds because the same are elaborately discussed in our judgment of Town Committee Gakhar Mandi (supra). Once, it is determined that the Municipal Committee/Administration is not a `factory' within the meanings of Factories Act, 1934, the employees thereof cannot by any stretch of reasoning, be held as workers specifically entitled to overtime payment. Though some extra payment made to the employees at one time or at times is taken benefit of and is alleged as an estoppel against the Committee but it carries no weight because such payment was made as bonus in order only to compensate the employees. The Committee may, of its own accord pay as much bonus to the employees of any extra work but the same cannot be claimed as of right by the employees as is done by the workers working in a `Factory' defined by Factories Act, 1934.

6. Civil Appeal No.713 of 2005 concerning Zafar Ali respondent is time-barred by 1856 days. The matter of limitation and that of condonation, at the time of grant of leave, was deferred to the final hearing of appeals. In this behalf we perfectly agree with the stance taken by the Municipal Administration in Civil Appeal No.713 of 2005 that Zafar Ali respondent was himself a petitioner before the High Court, and at the same time acted as a representative of the Committee. That he made certain concessions on behalf of the Committee favouring his claim and it was he who was responsible for not bringing the impugned judgment to the notice of the administration. This act of Zafar Ali is claimed to be of utter mala fide.

7. Regardless of what Zafar Ali is alleged or proved to be involved in, once this Court has held that the employees of Committee are not the workers in a `Factory', it cannot be visualized that some of them would be disentitled and the others would become entitled merely because there against, the appeal of the committee was time-barred. The point that we intend bringing home is that the verdict of this Court already given and presently endorsed, with regard to law point involved, is a judgment in rem and not personam. The benefit of limitation, thus cannot be derived and, in the strict circumstances of the present case, it is hereby condoned though it otherwise would have made the least difference. In B some what similar circumstances, this Court had condoned a delay of 2412 days (1987 SCMR 753).

8. Consequently, for all that has been discussed above, all the three appeals are hereby accepted and the impugned judgments of the learned High Court set aside. M.H./T-1/S????????????????????????????????????????????????????????????????????????????????????????? Appeal allowed.