2000 PLP 181 (PLC)

P.W.R., Lahore v. Mrs. A.V. Issacs PLD 1970 SC 415 ref. C.M. Latif Rawn for Petitioner. Ch. Abdul Latif for Respondents. Date of hearing: 9th December, 1998. Brief facts of the case are that respondents Nos. l to 4 were employed as sweepers in Town Committee, Chowinda. Their services were terminated by the petitioner Town Committee on 6‑6‑1982. Their appeal before the Deputy Commissioner, Sialkot, was dismissed on 25‑9‑1982. The petitioners approached the Labour Court for their reinstatement in service and ultimately vide, order dated 8‑3‑1987 they were directed to be re-instated in service with all back benefits since 6‑6‑1982 as they were found to be jobless during the intervening period. Respondents Nos. 1 to 4 filed applications under section 15 of the Payment of Wages Act for payment of the salary from 6‑6‑1982 to 30‑1‑1987 whereupon notices were issued to the petitioner, vide Annexures C, D; E and F. Petitioner has impugned the said notices and the orders, dated 31‑10‑1990 and 12‑12‑1990 passed by the Authority under the Payment of Wages Act, 1936. The case of the petitioner is that respondents Nos. 1 to 4 remained employed and having been earning money during the said period and as such they are not entitled to the wages claimed by them. He has relied upon Pakistan through General Manager, P.W.R., Lahore v. Mrs. A.V. Issacs (PLD 1970 SC 415) wherein it was held that a civil servant can claim salary for the period he was kept out of the service. Any amount earned by him by employment or engagement in other profitable business during such' period has to be set off against the due salary.‑‑

3. Learned counsel for respondents Nos. 1 to 4 on the other hand states that the petitioner Town Committee has not challenged the order of respondent No.5 passed under' section 16(3) of the Payment of Wages Act, 1936 which was appealable under section 17 of the Act and further a revision was also competent before the Punjab Labour Appellate Tribunal under section 38 of the Industrial Relations Ordinance, 1969 thus petition is not maintainable.

4. I have heard the learned counsel for the parties and gone through the record. I have already decided in similar case W. P. No .1470 of 1996 that the order passed by the Authority under the Payment of Wages Act, 1936 is appealable and said remedy having not been availed, the petition under Article 199 of the Constitution is not maintainable. The appellate order was further revisable under section 38(3‑A) of the Industrial Relations Ordinance, 1969. The original order passed by the Authority having not been challenged by the petitioner by filing an appeal or revision before the concerned forums, this Constitutional petition is not maintainable against the notices issued in pursuance to the said order passed in favour of respondents Nos. 1 to 4.

5. The judgment cited by the learned counsel is not applicable to the facts of the instant case as the petitioner has not established that respondents Nos. 1 to 4 remained employed for earning their livelihood somewhere after their termination of services by the Town Committee. Unless there is positive evidence that they have been engaged in some profitable business during the aforementioned period, it is not possible to interfere in the order passed by respondent No.5 under the Payment of Wages Act. For the above reasons, this petition is dismissed. No order as to costs. H.B.T./T‑65/L Petition dismissed