P L D 1966 (W (PLP)

(d) Constitution of Pakistan (1962), Art. 98‑Mere erroneous decision by Court below‑Does not make decision "without lawful authority" within meaning of Art. 98 (2) (a). Badar‑ul‑Haq Khan v. Election Tribunal, Dacca P L D 1963 S C 704 rel. Mian Sher Alam for Petitioner. MUHAMMAD GUL, J.‑The petitioner was employed as Coolie with the Pakistan Western Railway. He was suspended from service on 18‑4‑1963 for having trespassed in a but belonging to the Railway and contumaciously refusing to vacate it. Later, however, he vacated the but and was re‑instated on 21‑7‑1963. Not being paid his salary for the period of his suspension, he applied to the Commissioner for Workmen Compensation (Senior Civil Judge, Lahore), under section 15 of the Payment of Wages Act, 1936, claiming Rs. 157 as arrears of pay due in respect of the period of suspension and also for compensation at ten times the wages. The Railway Administration, however, in the meantime, paid him his wages and contested the proceedings before the Commissioner with regard to payment of compensation. The Commissioner, vide his order dated 14‑3‑1963, allowed compensation in the sum of Rs. 1,330/85, being five times the wages, on the ground that the Railway Administration had "withheld" and not merely "delayed" payment of wages within the meaning of section 15(3) of the Act. On appeal by the Railway Administration, the learned Additional District Judge, took the view that the Railway Administration had only delayed payment of wages and had not "withheld" the payment and, therefore, reduced the amount of compensation to Rs. 10 only.

2. Aggrieved by this order, the petitioner has come in writ to question the validity of the order in appeal mainly on the following two grounds, namely‑ (1) that the impugned order passed by the learned Additional District Judge was without jurisdiction for no appeal lay under section 17 (1) of the Act in the circumstances of the case; and (2) that in any case, the Railway Administration had in the circumstances of the case "withheld" the payment of wages, and not merely delayed payment and, therefore, too, the impugned order was "without lawful authority".

3. We have heard the petitioner's learned counsel in support of the above contentions but they are devoid of substance. Under section 17 (1), an appeal lies, "if the total sum directed to be paid by way of wages and compensation exceeds Rs. 300". In this case the total sum directed to be paid was Rs. 1,330/85. But it was contended that it comprised compensation only and no part of it represented wages. According to learned counsel, the word "and" must be read in its ordinary conjunctive sense of "as well as" and therefore there was no warrant to read it in the disjunctive sense of "or". In support of this argument, he relied upon Chaman Lal v. Junior Inspector of Factories (A I R 1942. Dom. 273), which no doubt supports his contention. However, a different view was taken in a later case in Chief Inspector of Factories v. V. K. Modi (A I R 1952 All. 804), wherein it was held that there is nothing in section 17 to suggest that before an order is appealable both compensation and wages should be ordered to be paid. All that is necessary that the total sum ordered to be paid should exceed Rs.

300. It may be composed of wages alone or compensation alone or wages and compensation. If we may say so with respect, this view appears to be more reasonable. As pointed out in Maxwell on Interpretation of Statutes 1962 Edition, at page 229‑230, it is occasionally found necessary to read the conjunctions "or" and "and" one for the other to give effect to legislative intention. This was exemplified by reference to the provisions of Disabled Soldiers Act, 1601 (clause 3), regarding property to be employed. for the maintenance of "sick and maimed soldiers". It was held in R. v. Brixton Prison Governor ex parte Bidwell ((1937) 1 K B 305) that the word "and" has been used in the sense of the word "or", and, therefore, refer to Soldiers, who were either the one or the other and not only to those who were both. Reference is also made to cases in which conjunction "or" has been read as "and" when it appears more consistent with reason to do so or the result is more favourable to the subject, particularly in the interpretation of a penal statute. Accordingly, we hold that the conjunction "and" in section 17 (1) of the Act has to be read in the disjunction sense of "or" and, therefore, the appeal to the Additional District Judge was perfectly competent. This conclusion is also in consonence with the principle laid down recently in Muhammad Amin v. Jamshed AU (P L D 1963 Lah. 523) that a right of appeal is usually the creation of a statute, and in deciding whether there is a right of appeal, the principle to be followed is that the benefit of doubt should go to the party, who seeks to establish the right of appeal.

4. The appeal to the Additional District Judge having been found competent, the second point urged by learned counsel need not detain us long. The learned Additional District Judge being seizin of the matter was fully competent to decide whether, it was a case of, mere delayed payment, or of "withholding" payment to make the Railway Administration liable to pay compensation equivalent to ten times the wages withheld. On this point the deci sion of the learned Additional District Judge is unquestionable. Even otherwise, the mere fact that the decision of the learned Additional District Judge was erroneous would not make his decision "without lawful authority" within the meaning of Article 98(2)(a) of the Constitution so as to sustain a petition for writ. Supreme Court's judgment in Badar‑ul‑Haq Khan v. Election Tribunal, Dacca (P L D 1963 S C 704) followed in the case of Mian Jamal Shah are authorities on the point.

5. For the aforesaid reasons, the writ petition is without any merits and is dismissed in limine. K. B. A. Petition dismissed.