DIVISIONAL SUPERINTENDENT, PAKISTAN RAILWAYS, LAHORE Versus
Some Railway employees perform duties directly connected with the charge of moving trains. Those who come within this category are described as
(i) Drivers, (ii) Shunters, (iii) Firemen, (iv) Guards, (v) Brakesmen, (vi) Augwallas, (vii) Special Ticket Examiners.
The last mentioned category of persons were declared to be Railway employees performing duties directly connected with the charge of moving trains by means of an Award of an Industrial Court published in the Gazette, Extraordinary (West Pakistan), dated 11th August, 1962. These employees have been collectively categorised as "running staff".
2. According to rule '509 of Railway Establishment Code, Vol. 1, "running allowance" is admissible to these employees. This rule reads as follows : .
"509. Running allowance is an allowance granted to railway servants of the classes mentioned below, who perform duties directly connected with the charge of moving trains. This allowance is calculated at a rate per 100 miles run with a train carrying passenger traffic or on the basis of each trip of 8 hours performed on such train, and is in lieu of every kind of detention and travelling allowance
Drivers Guards
Shunters Brakesmen
Firemen Augwallas
According to this rule, running allowance is an allowance granted to Railway servants of the classes mentioned above who perform duties directly connected with the charge of moving trains. This allowance is to be calculated at the rate per 100 miles run with a train carrying passenger traffic or on the basis of each trip of 8 hours performed on such trains and in lieu thereof every kind of detention and travelling allowance. According to Advance Chapter No. 3 of Pakistan Railways (page 50) the running staff gets substantive pay plus average mileage up to SS per cent. of their pay when‑
(i) posted to waiting duty, including periods they remain booked off in connection with joint inquiries, ambulance classes or law courts on railway business, Pakistan National Guards duty, etc. ;
(ii) undergoing a course of study for yard foremen, assistant station masters or control examination ;
(iii) called for a personal interview by a competent authority in matters other than personal ; and
(iv) picking up duties of yard foremen, assistant station masters or control duties.
Note 1‑The average mileage for this purpose is arrived at by taking the total mileage earned during the last full month in which, while employed as a guard, mileage was earned and by dividing such total by the number of days worked. The term "average mileage" includes ballast allowance working on Sunday or recognized gazetted holidays.
Note 2‑No allowance will be given to a man for the periods he remained booked off for attending joint enquiries and law Courts if he is defendant in a case and is found blameable whether such attendance necessitates his remaining at headquarters or his being called in from an outstation.
Note 3‑The payment of mileage allowance as stated above has the approval of Railway Board also, vide their letter No. 0575‑F, dated 8th June, 1955.
Note 4‑Guards on waiting duty should be restored for 12 hours. The period of waiting duty is obviously one of inactivity and as such involves no sustained attention.
3. By a Notification (P. W. R. Gazette, Extraordinary, dated 19th July, 1963), The West Pakistan (Non‑Gazetted) Railway Servants (Pay Revision) Rules, 1963 were amended and the following amendment related to the mileage allowance of the "running staff ' ‑
"(ii) Overtime/mileage Allowance of Running staff drawing pay in consolidated scales, up to a maximum of 55 per cent. of basic pay will be taken into account for the purpose of working out "contribution to State Railway Provident Fund", "Special Contribution to P. F.", "Leave Salary", "Pension", etc."
The rates of mileage allowance, Sunday and under‑rest allowance ad missible to traffic "running staff" in addition to basic pay were given in Schedule B to the said Rules.
4. The controversy in this case relates to the running allowance payable to the running staff during "recreation leave". It would be appropriate to consider the relevant rules with regard to leave and pay receivable by an employee during leave. It would also be necessary to consider the text of the letter whereby the President of Pakistan had granted "recreation allow ance" to Railway servants proceeding on leave for rest and recreation. The relevant portion of the letter dated 11 th July, 1974 reads as follows:--
"Sub :‑Grant of Recreation Allowance to Railway Servants proceeding on leave for rest and recreation.
The above subject has been receiving the most anxious consideration of the Government for quite some time in the past. The President has now been pleased to decide that, with effect from Ist July 1974, the Railway employees, other than the teaching and other staff of Railway Schools, shall be granted the above concession as detailed below :‑‑
(i) A recreation allowance, equal to one month's pay, subject to a maximum of Rs. 1,000 (Rs. one thousand only) once in three years when a Railway servant takes leave on average pay for not less than 15 days or the recreation leave admissible in terms of sub‑para. (ii) below. A Railway servant who elects to draw recreation allowance need not necessarily travel during leave.
(ii) Railway servants, except those serving in Railway schools, may avail themselves of recreation leave of fifteen days at any time during a calendar year according to the convenience of the office concerned. The casual leave, in the year in which this leave is taken, will be reduced from 20 days to 10 days. The recreation leave will be treated as duty like casual leave and will not be debited to the leave account.
(iii) The grant of the recreation leave and allowance shall be subject to the further condition that in the year in which a Railway servant avails himself of this concession, he will have to forego one return journey free privilege pass admissible to him under the Railway Pass Rules.
(2) It has further been decided that 1/3rd of the staff should be permitted to avail of the benefit per year in a three years period, and it should be ensured that those who are to retire shortly are given preference over others. Temporary staff will become eligible for the concession when they have completed 3 years continuous service."
A bare reading of the above letter would establish that it deals with the following matters:‑
(i) Railway servants proceeding on rest and recreation leave, recreation allowance has been provided ;
(ii) The quantum of recreation allowance so provided has been determined as equal to one month's pay subject to a maximum of Rs. 1,000 (Rupees one thousand).
(iii) A Railway servant becomes so entitled to this allowance when he proceeds on recreation leave of at least 15 days at any time during the calendar year and also when he takes leave on average pay for not less than 15 days once in three years.
(iv) The grant of this recreation leave and allowance was further subject to the condition that in the year in which Railway servant avails himself of this concession he would have to forego one Return Journey Free Privilege Pass admissible to him under the Railway Pass Rules.
(v) The casual leave, in the year in which recreation leave is taken, will be reduced from 20 days to 10 days ; and
(vi) the recreation leave for this allowance has been provided is to be treated as duty like casual leave and would not be debited to the leave account of the employee.
Thus this letter has fixed the quantum of recreation allowance to be equal to one month's pay subject to a maximum of Rs. 1,000. And a Railway employee while on "recreation leave" would be entitled to get one month's pay as recreation allowance subject to a maximum of Rs. 1,000.
5. The Railway authorities have taken the view that the "running allowance" is not admissible to an employee of the category mentioned above during recreation leave and that the recreation allowance sanctioned by the aforesaid letter of 11 th July, 1974, would not include the payment of running allowance to running staff. It was for this reason that the respondents were not paid 55 % of the basic pay as part of the "recreation allowance" during the recreation leave availed by them. The respondents/railway employees moved the Authority under the Payment of Wages Act under the provisions of section 15 of Payment of Wages Act, 1936 for this illegal deduction from their wages/pay. The Authority under the Payment of Wages Act held that 55 % of the basic pay of the members of "running staff" like the respondents was part of their pay and that as they were deemed to be on duty during recreation leave 55 % of the pay cannot be deducted and that the said deductions were illegal. The Authority also awarded compensation equal to four times of the admitted claim against the Railways. The Divisional Superintendent Pakistan Railways/the present petitioner assailed the said order of the Authority by way of appeal under section 17 of Payment of Wages Act, 1936 before the Labour Court. T he Labour Court upheld the order of the Authority under the Payment of Wages Act. However, the four time compensation awarded by the Authority was found to be excessive and disproportionate to the trouble taken by the respondents and was reduced to double the amount of compensation. The present Writ Petition is directed against the aforesaid order of the Labour Court.
6. It has been submitted on behalf of the petitioner that the impugned order is erroneous and that recreation leave is to be treated as "casual leave". Reliance is placed upon Rules 157 and 511 of Pakistan Railway Establishment Code, Vol. 1. These rules read as follows:‑
"157. The General Managers of Pakistan Railways have full powers to make rules with regard to the non‑gazetted railway servants under their control provided they are not inconsistent with any rules made by the Governor‑General or the Railway Division."
"511. The General Manager of a railway is empowered to frame subsidiary rules prescribing the rates of running allowances and the detailed conditions for the grant of special running allowances, having regard to the local conditions of the railway. The rules shall, be so framed as not to permit of any discrimination on racial grounds and shall not permit, without the sanction of the Railway Division the grant of the running allowances or special running allowances‑
(1) during periods of casual leave, except special casual leave granted to cover a period of quarantine or anti‑rabic treatment;
(2) for periods of strikes ;
(3) in contravention of any rule relating to the grant of officiating pay or leave salary ; and
(4) in excess of the average running allowance or 75 per cent. of pay whichever is less, for the day on which the railway sarvant does not actually perform any running duty."
It is argued that according to these rules, "running allowance" cannot be paid during periods of casual leave. It is further submitted that the pay of running staff did not include running allowance and that 55 */o of running allowance admissible to running staff has been treated as part of pay only for specific purposes, i.e. for working out `contribution to State Railway Provident Fund', 'Special Contribution to P. F., `Leave Salary', Pension' etc., as per West Pakistan (Non‑Gazetted) Railway Servants (Pay Revision) Rules, 1963 and that it did not include "recreation leave", It was further argued by the learned Advocate‑General that the Authority under the Payment of Wages Act could not resort to interpret the Presidential Order of 1974 which dealt with the recreation allowance and recreation leave. It was further submitted that if it is established that the Authority had no jurisdiction in the matter then the question of filing an appeal against its order before the Labour Court would not arise. 1t was further contended that as the Labour Court had already taken a decision in a number of appeals against the Railway adminis tration it was not necessary to file further appeals in respect of this very controversy and the petitioner could legitimately come to this Court directly and invoke its jurisdiction under Article 199 of the Constitution.
7. Learned counsel for the respondent, on the other hand, has vehemently argued that 55% of basic pay which is paid to the running staff as mileage/running allowance is, part of the pay of the running staff and that payment cannot be withheld when a member of running staff goes on recrea tion leave. It was argued that in 78 Writ Petitions, appeals were filed before the Labour Court by the Railway administration but they were dismissed as time barred. Details of these cases are given in Schedule A to the judgment. In 90 Writ Petitions, no appeals had been filed under section 17 of the Payment of Wages Act and petitioners have come directly to this Court. Details of these cases are given in Schedule B to this judgment. Precise argument of the learned counsel for the respondents was that in 90 cases remedy of appeal was available to the petitioners but the same was not utilised and that the said Writ Petitions deserved to be dismissed on that short ground alone. It was also argued that the petitioner/Railway adminis tration was not entitled to the discretionary relief as it was found by the Labour Court to have committed interpolation in judicial record. Reference in this regard was made to the finding of the Labour Court in a case subject matter of Writ Petition No. 4649/79 entitled Divisional Superintendent, Railways v. Ghulam Masih. It was next contended that the Writ petition suffered from laches as the Labour/Appellate Court decided the matter on 13th April, 1977 while the Writ Petition was filed on 31st January, 1979. It was belated and no explanation was forthcoming on the record in respect of the long delay.
Lastly learned counsel for the respondents prayed for exemplary costs against the Railway administration/petitioner for dragging the respondents into protracted litigation for no just cause.
8. Pay/Full Pay has been defined in rule 728 of the Pakistan Railway Establishment Code, Vol. 1, in the following manner :‑
"728. For the purpose of the rules in this section ‑
(1) "Pay" or "full pay" means the pay or wages which the railway servant concerned would have drawn had he remained on duty, but it does not include any increase which might have accrued to him during the currency of the leave."
There is a note underneath this rule which reads as follows :‑
Note.‑In the case of staff entitled to running allowances "pay" shall include the average running allowances earned during the twelve months immediately preceding the date on which a railway servant proceeds on leave, subject to a maximum of seventy‑five per cent. (now 55) of average pay, for the same period, the average running allowance once determined remaining in operation during the remaining part of a financial year in cases of leave not exceeding one month."
9. Rule 707(5) of the Pakistan Railway Establishment Code. Vol. 1, relates to leave during which Leave Salary is drawn. It is worded in the following language :‑
"707(5). 'Average pay' means the pay drawn or that would be drawn by a railway servant in the permanent post held substantively by him on the date preceding that on which he proceeds on leave ; provided that the pay of staff entitled to running allowances shall include the average running allowances earned during the 12 months immediately preceding the month in which a railway servant proceeds on leave, subject to a maximum of 75 per cent. of average pay for the same period, the average running allowances once determined remaining in operation during the remaining part of a financial year in cases of leave not exceeding one month."
The maximum of 75 per cent. of average pay was modified up to a maximum of 55 per cent. of basic pay by the Pay Revision Rules, 1963 referred to above.
10. 'Casual Leave' has been defined in Advance Chapter No. 1 (Section VII, rule 6). This Rule reads as follows :‑
"6. Casual leave.‑(a) Rules 2126 (F. R. 85) does not refer to casual leave for short periods. Such leave is not recognized and not subject to any rule. Technically therefore, a Railway servant on casual leave ii not treated as absent from duty, and his pay is not intermitted. Casual leave, however, must not be given so as to cause evasion of the rules regarding‑‑
(i) date of reckoning pay and allowance ;
(ii) charge of office ;
(iii) commencement and end of leave ;
(iv) return to duty ; or so as to extend the term of leave beyond the time admissible by rules.
There is a note underneath this rule which reads as follows :‑
Note.‑The practice of granting casual leave on half pay or without pay is not covered by this rule. Under this rule, as it stands, full pay can be allowed to a railway servant on casual leave. If in any case, less than full pay iv allowed, it would amount to or imposition of a penalty not provided for in the Discipline and Appeal Rules."
11. According to the Payment of Wages (Federal Railway) Rules, 1938 wages have been defined. This relevant rule reads as follows: ‑
"Rule 5(ii).‑‑‑The gross wages of each person employed which has to be shown in the wages register will be the amount of pay due for the wage period concerned. The term "wages" includes also overtime and mileage of running staff and as these allowances have also to be paid for the wage period and within the time limit laid down, payment will be made to running staff along with the wages of a sum (representing overtime and mileage allowances) on a basis of 75 per cent. (now 55%) of pay plus such adjustment of these allowances underpaid which actually have been earned during the previous wage period."
12. Rule 722 of Pakistan Railway Establishment Code Vol. 1 deals with `Leave salary'. It reads as follows: ‑-
"722. Leave salary.‑A railway servant shall be entitled to leave‑salary equal to average pay during the leave admissible under rule 709 and to half average pay during the balance of leave taken under rule 708."
Note.‑--In respect of the leave carried forward from the Fundamental Rules to the leave rules in this section, the leave‑salary admissible shall be as defined in and calculated under the rules in this section."
13. Rule 708 lays down the limit of maximum leave which maybe granted on any one occasion to a railway servant while rule 709 deals with maximum leave on average pay on any one occasion which may be granted to a railway servant. According to this Rule railway servants of Asiatic domicile are entitled to maximum leave equal to one‑fifteenth of their service.
14. Rule 705 deals with leave during which leave salary is drawn. Sub rule (5) of this rule has already been reproduced in paragraph 8 above.
15. According to F. R. 76, Leave Account is to be maintained for each Railway servant in terms of leave on average pay.
16. In order to appreciate the controversy in this case it would also be necessary to look at the purpose of the Payment of Wages Act, 1935 and examine its general provisions. The preamble of the Act says that the purpose of the Act as to regulate the payment of wages to certain Classes of persons employed in industry. The application of the Act is restricted to wages payable in respect of a wage‑period which, over such wage‑period, average one thousand rupees a month. In other words if the wages exceed Rs. 1,000 the Act would not be applicable. Section 2 deals with definition of wages which is relevant for our purpose and has been defined in the following words: ‑
"2(vi).--‑'Wages' means all remuneration, capable of being expressed in terms of money, which would, if the terms of the contract of employment, express or implied, were fulfilled, be payable, whether conditionally upon the regular attendance, good work or conduct or other behaviour of the person employed or otherwise, to a person employed in respect of his employment or of work done in such employment, and includes any bonus or other additional remuneration of the nature aforesaid which would be so payable and any sutra payable to such person by reason of the termination of his employment, but does not include‑
(a) The value of any house accommodation, supply of light, water, medical attendance or other amenity, or of any service excluded by general or special order of the Provincial Government ;
(b) any contribution paid by the employer to any pension fund or provident fund ;
(c) any travelling allowance or the value of travelling concession ;
(d) any sum paid to the person employed to defray special expenses entailed on him by the nature of his employment ; or
(e) any gratuity payable on discharge."
Section 3 lays down that every employer (including a contractor) shell be responsible for the payment to persons employed by him of all wages required to be paid under this Act. It is also provided that in case of persons employed (otherwise than by a contractor), such as in factories, in industrial establishments, in railways, then the Manager of the Factory, the person responsible for the supervision and control of the industrial Management and the person nomination in this behalf by the Railway administration for the local areas concerned, would be responsible for the payment of wages. Section 4 provides for fixation of wage period which shall not exceed one month in any case. Section 5 deals with the time of payment of wages which in respect of railway, factory or industrial establishment having less than one thousand employees, is to be paid before the expiry of seventh day while in other cases before the expiry of the 10th day. It is also provided that where the employment of any person is terminated by or on behalf of the employer, the wages earned by him shall be paid before the expiry of the second working day from the day on which his employment is terminated. All payment of wages is required to be made on a working day. Section 6 provides that wages shall be paid in current coin or currency notes or in both. In other words payment by cheque or banker's draft is not permissible. Section 7 lays down that the wages of an employee are to, be paid to him without deductions of any kind except those authorised by or under this Act. Deductions from the wages of an employee under this Act may be of the following kinds
(a) fines ;
(b) deductions for absence from duty ;
(c) deductions for damages to or loss of goods expressly entrusted to the employed person for custody ; or for loss of money for which he is required to account, where such damage or loss is directly attributable to his neglect or default ;
(d) deductions for house‑accommodation supplied by the employer ;
(e) deductions for such amenities and services supplied by the employer as the Government may, by general or special order authorise ;‑
Explanation.‑The word 'services' in this sub‑clause does not include the supply, of tools and raw materials required for the purposes of employment.
(f) deductions for recovery of advances or for adjustment of over payments of wages ;
(g) deductions of income‑tax payable by the employed person ;
(h) deductions required to be made by order of a Court or other authority competent to make such order ;
(i) deductions for subscriptions to, and for re‑payment of advances from, any provident fund to which the Provident Funds Act, 1925 (XIX of 1925), applies or any recognised provident fund as defined in section 58‑A of the Income‑tax Act, 1922 (XI of 1922), or any provident fund approved in this behalf by the Provincial Government during the continuance of such approval ;
(j) deductions for payments to co‑operative societies approved by the Provincial Government or to a scheme of insurance maintained by the Pakistan Post Office ; and
(k) deductions, made with the written authorisation of the employed person, in furtherance of any War Savings Scheme, approved by the Provincial Government, for the purchase of securities of the Government of Pakistan or the Government of the United Kingdom."
Section 8 deals with conditions and limits subject to which fines may be imposed upon an employee and the procedure for imposing such a fine. Sections 9 to 13 empowers/authorises an employer to make certain deductions from the wages of the employee and also lays down the limits of such deductions. These deductions relate to for service rendered for recovery of advances, for payment of co‑operative societies and insurance schemes. Section 14 provides for appointment of Inspectors for the purpose of this Act. Section IS deals with the appointment of an authority to hear and decide claims arising out of deductions from the service or delay in payment of wages of persons employed or paid in that area. Since the jurisdiction of authority appointed under this section is subject‑matter of adjudication of this case, it would be pertinent to reproduce the said section in its entirety below: ‑
"15. Claims out of deductions from wages or delay in payment of wages and penalty for malicious or vexations claims.‑(1) The Provincial Government may, by notification in the official Gazette appoint any Commissioner for Workmen's Compensation or other officer with experience as a Judge of a civil Court or as stipendiary Magistrate to be the authority to hear and decide for any specified area all claims arising out of deductions from the wages, or non‑payment of dues relating to provident fund or gratuity payable under any law or delay in the payment of wages, of persons employed or paid in that area.
(2) Where contrary to the provisions of this Act any deduction has been made from the wages of an employed person, or any payment of wages has been delayed, such person himself, or any legal practitioner, or any official of a registered Trade Union authorised in writing to act on his behalf, or any Inspector under this Act, or any other person acting with the permission of the authority appointed under subsection (1), may apply to such authority for direction under subsection (3)
Provided that every such application shall be presented within three years from the date on which the deduction from the wages was made or from the date on which the payment of the wages was due to be made, as the case may be:
Provided further that any application may be admitted after the said period of three years when the applicant satisfies the authority that he had sufficient cause for not making the application within such period.
(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 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 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) 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 responsible diligence, to make prompt payment, or
(c) The failure of the employed person to apply for or accept payment.
(4) If the authority hearing any application under this section is satisfied that it was either malicious or vexatious, the authority may direct that a penalty not exceeding fifty rupees be paid to the employer or other person responsible for the payment of wages by the person presenting the application.
(5) Any amount directed to be paid under this section may be recovered‑‑
(a) if the authority is a Magistrate, by the authority as if it were a fine imposed by him as Magistrate, and
(b) if the authority is not a Magistrate, by the authority as an' arrear of land‑revenue, or, in the prescribed manner, by the authority by distress and sale of the movable property belonging to the person by whom the amount is to be paid, or by attachment and sale of the immovable property belonging to such person."
Section 16 provides that person employed in the same unpaid group, in the same establishment, may give a single application in respect of their claims. Section 17 provides for an appeal before the Labour Court constituted under the Industrial Relations Ordinance, 1969 against the order passed by the Authority under section 15 above. Section 18 lays down that the Authority under section 15 would have all the powers of the civil Court under C. P. C. Section 19 deals with the power to recover wages from the employer in terms of the order of the Authority under section 15 of the Act while section 20 provides for penalties for any violation of the order passed under the Act. Section 21 lays down the procedure for trial of offences while section 22 bars suit for the recovery of wages or any deduction within the jurisdiction of the Authority.
16‑A. The entire controversy relating to recreation allowance and its admissibility to members of running staff can be solved if the contents of the letter of the President dated 11th July 1974, is carefully scrutinized. The operative part of this letter reads as follows:‑
"(i) A recreation allowance, equal to one month's pay subject to a maximum of Rs. 1,000 (Rs. One thousand only) once in three years when a Railway servant takes leave on average pay for net less than 15 days or the recreation leave admissible in terms of sub‑pare. (ii) below. A Railway servant who elects to draw recreation allowance need not necessarily travel during leave."
According to the said para. recreation allowance equal to ore month's pay subject to a maximum of Rs. 1,000, is to be paid once in three years when a Railway servant takes leave on average pay for not less than 15 days or when he takes the recreation leave admissible according to sub‑pare. (ii). This sub‑para. reads as follows:‑
"(ii) Railway servants, except those serving in Railway Schools, may avail themselves of recreation leave of fifteen days at any time during a calendar year according to the convenience of the office concerned. The casual leave, in the year in which this leave is taken will be reduced from 20 days to 10 days. The recreation leave will be treated as duty like casual leave and will not be debited to the leave account."
This simply says that the casual leave in the year in which recreation leave is taken would be reduced from 20 days to 10 days and that the recreation leave would be treated as duty like casual leave and will not be debited to leave account. The essence of this entire letter is that a Railway servant will get one month's pay (subject to a maximum of Rs. 1,000), as recreation allowance once in three years when he takes leave on average pay for not less than 15 days. And when he takes such a leave on average pay his casual leave admissible to him in that year would be reduced from 20 days to 10 days. Moreover, this recreation leave will be treated as duty like casual leave and will not be debited to the leave account. A Railway servant belonging to the category of running staff would get recreation allowance equal to one month's pay (subject to a maximum of Rs. 1,000), when he takes leave on average pay. Now we have to see what is the pay admissible to a member of running staff. `Pay' has been defined in rule 728 of Pakistan Railway Establishment Code, Vol. 1, in the following manner:‑
"(1) "Pay"' or "full pay" means the pay or wages which the railway servant concerned would have drawn had he remained on duty, but it does not include any increase which might have accrued to him during the currency of the leave."
There is a note underneath this rule which reads as follows:‑‑
"Note.‑--In the case of staff entitled to running allowances "pay" shall include the average running allowances earned during the twelve months immediately preceding the date on which a railway servant proceeds on leave, subject to a maximum of seventy‑five per cent (now 55 %) of average pay, for the same period, the average running allowance once determined remaining in operation during the remaining part of a financial year in cases of leave not exceeding one month."
According to this rule the pay of running staff would include the average running allowances earned during twelve months immediately preceding the date on which a railway servant proceeds on leave subject to a maximum of 55 / of average pay for the same period. Rule 707(5) of the said Code deals with `leave salary'. It defines `average pay' in the following manner:‑
"707(5).‑'Average pay' means the pay drawn or that would be drawn by a railway servant in the permanent post held substantively by him on the date preceding that on which he proceeds on leave; provided that the pay of staff entitled to running allowances shall include the average running allowances earned during the 12 months immediately preceding the month in which a railway servant proceeds on leave, subject to a maximum of 75 per cent. of average pay for the same period, the average running allowances once determined remaining in operation during the remaining part of a financial year in cases of leave not, exceeding one month."
According to this rule the pay of running staff would include the average running allowance earned during the twelve months immediately preceding the month in which a railway servant proceeds on leave subject to a maximum of 75 % (now 55 %) of average pay for the same period. Similarly according to the Payment of Wages (Federal Railway) Rules, 1938, the term "wages" includes mileage allowance of running staff on a basis of 75 % (now 55 %) of pay. This relevant rule reads as follows:
"Rule 5(ii).‑--The gross wages of each person employed which has to be shown in the wages register will be the amount of pay due for the wage period concerned. The term "wages" includes also overtime and mileage of running staff and as these allowances have also to be paid for the wage period and within the time limit laid down, payment will be made to running staff alongwith the wages of a sum (representing overtime and mileage allowances) on a basis of 75 per cent. (now 55 %) of pay plus such adjustment of these allowances underpaid which actually have been earned during the previous wage period."
The cumulative effect of all the aforementioned provisions is that the pay of running staff would include running allowance when they take leave on average pay. Since recreation leave equal to one month's pay is admissible to Railway employee once in three years when he takes leave on average pay for not less than 15 days, it would imply that he would get recreation allowance equal to one month's pay subject to a maximum of Rs. 1,000 and this pay would include running allowance because a member of running staff is entitled to running allowance in all contingencies referred to above. The entire basis of the argument of the learned Advocate‑General on behalf of the petitioner is that according to rule 511, General Manager is not entitled to frame rules without the sanction of the Railway Division granting running allowance or special allowances during periods of casual leave. This may be so, but this rule would be attracted only if it is established that a member of running staff has taken casual leave. Order of the President granting recreation allowance specifically lays down that the said allowance is admissible when a Railway servant takes leave on average pay for not less than 15 days. It nowhere lays down that this leave is to be treated as casual leave. In paragraph (ii) of the said letter it is laid down that the casual leave, in the year in which this leave (recreation leave) is taken, will be reduced from 20 days to 10 days and that this recreation leave like casual leave would be treated as duty and would not be debited to the leave account. In other words the recreation leave is a leave taken on average pay. For the purpose of leave account, this leave would not be debited to the leave account of the employee and that during the period of this leave the employee would be treated as if on duty as is the case with the casual leave. The said letter is capable of no other interpretation. According to rule 2116 (Fundamental Rule No. 76) leave account is to be maintained for each railway servant in terms of leave on average pay.
Casual leave has been defined in Advance Chapter No. I, in the following manner:‑
"6. Casual leave.--‑(a) Rules 2126 (F. R. 85) does not refer to casual leave for short periods. Such leave is not recognized and not subject to any rule. Technically therefore, a Railway servant on casual leave is not treated as absent from duty, and his pay is not intermitted. Casual leave, however, must not be, given so as to cause evasion of the rules regarding‑--
(i) date of reckoning pay and allowance;
(ii) charge of office;
(iii) commencement and end of 'leave;
(iv) return to duty; or so as to extend the term of leave beyond the time admissible by rule.
There is a note underneath this rule which reads as follows:‑
"Note.‑The practice of granting casual leave on half pay or without pay is not covered by this rule. Under this rule, as it stands, fall pay can be allowed to a railway servant on casual leave. If in any case, less than full pay is allowed, it would amount to or imposition of a penalty not provided for in the Discipline and Appeal Rules."
Thus a perusal of the aforesaid rule would confirm that even when an employee goes on casual leave he has to be paid full pay and whenever less than full pay is paid it would amount to an imposition of a penalty not provided for in the Discipline and Appeal Rules.
I am fortified in the said view by the Department's own interpretation vide policy letter dated 13th November, 1974, issued by the Vice‑Chairman, Pakistan Railway, Headquarters Office, Lahore (Annex, B). It will be useful to reproduce this policy letter:‑
"Subject: Recreation Leave and Allowance.
Ref. Your letter No. 3‑E/84/BLI dt. 9‑10‑1974.
The version made in sub‑para. (2) of your letter cited above, is not correct. According to the instructions contained in the Railway Board's letter No. E‑74‑AL-1/2‑11 dated 11‑7‑1974, circulated vide this office letter of even number dated 11‑7‑1974, circulated vide this office letter of even number dated 11‑7‑74, Recreation Allowance equal to one month's pay once in 3 years is to be given when a Railway servant proceed on 15 days Recreation Leave, either Casual Leave or L. A. P.
"2. Overtime/Mileage Allowance of Running staff are to be allowed up to a maximum of 55% of their basic pay for the purpose of working out Special Contribution to Provident Fund, Leave Salary and Pension. This means that Overtime/ Mileage of Running staff is to be treated as part and parcel of their pay for the above purposes.
3. Now if a man goes on Casual Leave, which leave is not to be treated as absence from duty and his pay is not to be intermitted in terms of para. 6 Advance Chapter No. I, of personnel Manual (Reprint 1969), Running Staff is entitled for overtime/mileage allowance up to 55 f of their pay during Casual Leave. In case of L. A. P. since leave salary is also to be worked out taking into account overtime/mileage allowance up to 55 % of pay last drawn by the employee, Running staff is entitled for overtime/mileage up to 55% (i.e. as a part of leave salary).
4. The rules are very clear. While on L. A. P. an employee draw leave salary. The staff in question will, therefore, draw Recreation Allowance equal to one month's pay in addition to leave salary (which in the case of Running Staff includes 55 % Overtime/Mileage Allowance) once in 3 years subject to usual conditions.
5. You are requested to please indicate the authority under which the Running Staff is not allowed Overtime/Mileage Allowance while they are on Casual Leave."
Thus if a Railway employee goes on leave on average pay his leave salary would be worked out taking into account Overtime/Mileage Allowance up to 55 % of the pay last drawn by him. Running Staff, therefore, would be entitled for running allowance up to 55 per cent as part of their leave salary.
Learned Advocate‑General submitted that the said policy letter was merely an inter‑departmental communication and was not meant to confer any right upon the respondents. He further added that the said letter was cancelled subsequently on 26th January, 1977, by the Federal Government vide letters (Annexure J/1 and J/2) documents filed by Advocate‑General. This may be so, but the fact remains that the said policy letter of the Vice -Chairman dated 13th November, 1974, held the field for almost three years and this Court can legitimately use the said departmental construction of the President's letter in aid of interpretation. Reliance in this regard is placed upon‑
(1) Nazir Ahmad v. Pakistan P L D 1970 S C 453;
(2) Kashmir Corner v. Sind Employees' Social Security Institution P L D 1975 Kar. 36;
(3) Crown Bus Service Ltd. v. Central Board of Revenue P L D 1976 Lah. 1487.
(4) Kohi‑Noor Chemical Company Ltd. v. Sind Employees' Social Security Institution PL D 1977 S C 197.
Accordingly I subscribe to the view that the interpretation of the impugned letter as expounded by the Railway Administration itself vide its policy letter dated 13th November, 1974 on the subject and which held the field for almost three years was correct and should be re‑affirmed.
17. There is another principle relating to interpretation of Statute which I would like to press into service here and that is that if the Rule B are capable of bearing a reasonable interpretation favourable to the employ then that interpretation should be preferred. Reliance in this regard is placed upon Postmaster‑General, Eastern Circle etc. v. Muhammad Hasham (P L D 1978 S C 61).
18. In view of the above discussion I hold that the running staff of the Railway/petitioner are entitled to receive recreation allowance equal t one month's pay which in their case would include 55 % running allowance once in three years. I further hold that the running allowance admissible to the running staff subject to a maximum of 55 % would be payable to the running staff when they avail recreation leave as part of their pay in term of the Presidential letter dated 11 th July, 1974 and that any deduction and non‑payment of this running allowance would be illegal and without lawful authority. The orders of the Authority under the Payment of Wages Act as well as the Labour Court are, therefore, unexceptionable.
19. The learned Advocate‑General has also placed on the file a communication No. 32‑E/27‑II (E‑I/E) dated 20‑4‑1980 addressed to him from the Chairman, Railway Board. Para. (ii) which is pertinent in this case is reproduced below:--
"(ii) L. A. P.‑‑This means leave on average pay. During this leave an employee draws leave Salary equal to "Average pay". "Average pay" as per extent rules is calculated at the rate equal to the pay drawn by the Government Servant concerned before the commence ment of leave on Leave Salary. As mentioned against item (1) above, in the case of running staff average pay includes also the Running Allowances up to a prescribed extent (i.e. average of such allowances earned during the last 12 months subject to a maximum of 55 % of Pay). Thus, Running Staff on L. A. P. are entitled to leave Salary, the rate of which is last pay plus average Running Allowance subject to 55 % of pay."
Even according to this interpretation, members of the running staff while on L. A. P. (leave on average pay) would be entitled to recreation allowance which would mean average pay plus running allowance up to the prescribed extent that is a maximum of 55 %. This is exactly what the respondents have craved in this case and which is being denied to them by the Railway administration over last many years. It may not be out of place to mention here that the rules with regard to recreation allowance have since been changed vide Pakistan Railway Gazette Notification dated 1st June, 1977 and now a Railway employee is entitled to recreation allowance equal to a month's pay or Rs. 500 whichever is lower once in a year. According to Revision of Leave Rules notified in the Pakistan Railway Gazette of 5th October, 1978 recreation leave is now granted for 15 days in a calendar year, debit to leave account, however, is made for 10 days only.
20. The learned Advocate‑General who is appearing for the petitioner has vehemently argued that according to the definition of `wages', as given in the Payment of Wages Act, 1936, means admitted or undisputed wages and consequently a claim under section 15 of Payment of Wages Act, 1936 would only be entertained by the authority under the said Act if there was no dispute between the Railway Administration and the employee. According to him in the instant case the Railway Administration was disputing the claim of the employees with regard to the running allowance during recreation leave as part of the wages, therefore, the authority under the Payment of Wages Act had no jurisdiction to entertain the application of the employees/respondents. Reliance in this regard was placed upon Simplax Manufacturing Co. Ltd. v. Alla‑ud‑Din (AIR 1945 Lah. 195). It was held in this case that the delayed wages can only mean wages which are admittedly due, but the payment of which has been postponed on some excuse or another and that any bona fide dispute as to the amount payable is to be tried by a civil Court. The learned Judge has relied upon subsection (3) of section 15 of Payment of Wages Act to hold that direction cannot be given when delay in payment of wages is due to a bona fide dispute as to the amount payable to the employed person‑
21. I am afraid I do not agree with the view expressed in this judgment. It appears that the learned Judge Pas not properly appreciated subsection (3) of section 15.
According to subsection (3) reproduced above, when an application is made under subsection (2) in respect of deductions which have been made from the wages of an employee the authority would hear the applicant and the employer or other person responsible for the payment of wages, give them an opportunity of being heard and hold any further inquiry which may be necessary and direct the refund of the amount so deducted from the wages of the employee alongwith such compensation as the authority may think fit not exceeding ten times the amount deducted in the former case and exceeding ten rupees in the latter. According to the proviso to this subsection it is further 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 bona fide error or mistake as to the amount payable to employed person, or 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 responsible diligence, to make prompt payment, or the failure of the employed person to apply for or accept payment. Thus this proviso controls the payment of compensation which may be allowed by the authority in addition to the payment of deducted wages or delayed wages.
22. In the Modern Mills Ltd. v. R. Mangalvedhekar (A I R 1950 Bom. 342) the controversy was whether the authority under Payment of Wages Act can construe the Award of an Industrial Court in order to determine under section 15 of the said Act if the refusal of the employer to abide by the Award was authorised deduction or not. It was observed: ‑
"(3) Now, in order to understand this contention we must look at the scheme of the Payment of Wages Act, IV(4) of 1936. Section IS of the Act confers jurisdiction upon the authority that is to be appointed under subsection (1) of that section, and subsection (2) provides:
"Where contrary to the provisions of this Act any deduction has been made from the wages of an employed person, or any payment of wages has been delayed, such person himself or any legal practitioner or any official of a registered Trade Union authorised in writing to act on his behalf, or any Inspector under this Act, or any other person acting with the permission of the authority appointed under subsection (1), may apply to such authority for a direction under subsection (3)."
Therefore it is competent to the authority appointed under section 15(1) to, determine whether any deduction has been made from the wages of an employed person contrary to the provisions of the Act ; and under the definition of "wages" bonus is a part of wages. Now, section 7 lays down what are the deductions which may be made from the wages, of an employee, and sub‑clause (2)(h) provides the deductions required to be made by an order of a Court or other authority competent to make such order. The contention of Mr. Rego is that the Modern Mills refused to pay the bonus to the employee because they were required not to pay that bonus under the award of the Industrial Court. But it is for the authority under sec ion 15(2) to determine whether such a deduction made by the employers 'was an authorised deduction under section 7. If the contention of the employer is that he is required by the award not to pay the wages, it is for the authority to be satisfied that such a contention is a valid one, and in order to determine that he must costrue the award and be satisfied that the award on which the employer is relying requires the employer not to pay the bonus. It is impossible to contend, in my opinion, that it is not open to the authority under the Payment of Wages Act to construe the award in order to determine whether the deduction made by the employer was an authorised deduction or not."
23. The matter was again reconsidered in A. R. Sarin v. B. C. Patil and another (A I R 1945 Bom. 423). It was held that the scheme of the Act is to set up a special tribunal, under a special jurisdiction upon that tribunal and to cost the jurisdiction of ordinary civil Courts. Therefore the jurisdiction conferred upon the special tribunal must be strictly construed. The jurisdiction of a special tribunal cannot be inferred by implication. Jurisdiction must be expressly given, and we roust find from the language of the statute itself that there is express ouster of the jurisdiction of the civil Courts and art express conferment of such jurisdiction upon the special tribunal set up under the Act. It is certainly competent to the Authority to construe the terms of the contract of employment in order to determine what wages are to be paid, and even if the contract of employment has been terminated, it is open to him to construe its terms in order to determine whether any sums are payable by reason of the termination. It would also be open to him to determine whether a person has been employed or not, because the question of contract of employment and the terms of the contract can only arise provided the person making relief was employed. The mere denial of the factum of employment cannot oust the jurisdiction of the Authority. If the employer denies or disputes the fact that the servant was employee by him, it will be for the Authority to decide that question, and it is only after the question of employment has been decided that the question would arise as to what are the terms of the contract and what is the liability of the master under the terms with regard to wages. The jurisdiction of the Authority really is to determine the terms of the contract in so far as they relate to the payment of wages and in so far as he has to decide the liability of the employer to pay wages under the terms of the contract. But that jurisdiction does not extend to determining the question as to whether the contract has terminated as alleged by the employer or the contract is still subsisting as alleged by the servant. The Court observed:‑
"(6) We would like to make it clear, as the matter is of considerable importance, as to what we think is the jurisdiction of the Authority under the statute. It is certainly competent to the Authority to construe the terrors of the contract of employment in order to determine what wages are to be paid, and even if the contract of employment has been terminated, it is open to him to constrse its terms in order to determine whether any sums are payable by reason of the termina tion. It would also be open to him to determine whether a person has been employed or not, because the question of contract of employment and the terms of the contract can only arise provided the person seeking relief was employed. The mere denial of the factum of employment cannot oust the jurisdiction of the Authority. If the employer denies or disputes the fact that the servant as employed by him, it will be for the Authority to decide that question, and it is only after the question of employment has been decided that the, question would arise as to what are the terms of the contract and what is the liability of the master under the terms with regard to wages. It has been suggested by Mr. Seervai that this construction of the statute really confines the jurisdiction of the Authority only to cases where wages are admitted, and Mir. Seervai says that if the Legislature intended that the Authority should only try cases of admitted wages, there was nothing easier than for the Legislature to have so stated. It is not correct that our decision leads to the conclusion that the jurisdiction of the Authority is so limited or restricted because there may be various uses within its jurisdiction where the liability to wages is denied or disputed and which the Authority would still be competent to decide. The question as to whether X amount or Y amount is due under the terms of the contract is a case where wages may not be admitted. The employer may sari that Y amount is due, and the Authority would have to decide on a true construction of the terms of the contract as to what is the amount due. Therefore, the jurisdiction of the Authority really is to determine the terms of the contract in so far as they relate to the payment of wages and in so far as he has to decide the liability of the employer to pay wages under the terms of the contract. But that jurisdiction does not extend to determining the question as to whether the contract has terminated as alleged by the employer or the contract is still subsisting as alleged by the servant."
24. The decision of the Lahore High Court referred to above was specifically considered by a Division Bench of Nagpur in Bhagwat Rai v. Union of India and another (A I R 1953 Nag. 136) referred to subsection (2) of section 15. It was observed
"Thus the proviso prohibits only the making of a direction for the pay ment of "compensation" in the case of delayed wars and does not prohibit the making of a direction regarding the refund of the amount deducted or the payment of the delayed wages laid, down in sub section (3) of section 15. The proviso also does not suggest that any `bona fide' disputes as to the amounts payable are to by tried by the civil Courts. On the other hand it wants the authority to satisfy itself if the delay was due to a `bona fide' error or bona fide dispute as to the amount payable to the employed persons."
The said view was followed by this Court in Shaukat Ali v. Islamic Republic of Pakistan (P L D 1960 Lah. 144).
The question before the Supreme Court in A. V. D'Costa Divisional Engineer, G. I. P. Railway v. B. C. Patel and another (A I R 1955 S C 412), was whether the Authority under the Payment of Wages Act has the power to direct the appellant or his superior officers to revise the classification to its to upgrade the petitioner from the category of the daily wage earner to that of a monthly wages scheme. The following answer was given :‑
"(10) In our opinion, the scheme of the Act as set forth above shows that if an employee were to state that his wages were, say Iris. 100 per month, and that Rs. 10 had been wrongly deducted by the authority responsible for the payment of wages, that is to say, that the deductions could not come under any one of the categories laid down iii section 7(2), that would be a straight case within the purview of the Act and the authority appointed under section 15 could entertain the dispute. But it is said on behalf of the respondent that the authority has the jurisdiction not only to make directions contemplated by subsection (3) of section 15 to refund to the employed person any amount unlawfully deducted but also to find out what toe terms of the contract were so as to determine what the wages of the employed person were.
There is no difficulty in accepting that proposition. If the parties entered into the contract of service say by, correspondence and the contract is to be determined with reference to the letters that passed between them, it may be open to the authority to decide the controversy and find out what the terms of the contract with reference to those letters were. But if an employee were to say that his wages were Rs. 100 per month which he actually received as and when they fell due, but that he would be entitled to higher wages if his claims to be placed on the higher wages scheme had been recognized and gives effect to, that would not, in our opinion, be a matter within the ambit of his jurisdictions.
The authority has the jurisdiction to decide what actually the terms of the contract between the parties were, that is to say, to determine the actual wages; but the authority has no jurisdiction to determine the question of potential wages."
The extent of jurisdiction of the Authority under the Payment of Wages Act came up for adjudication once again in the case Anthony Sabastin Almeda v. R. M. Tdylor and another (A I R 1956 Bom. 737). A Division Bench of that Court had following to say on the point: ‑‑
"In order to decide this question we have carefully to bear in mind the nature of the jurisdiction that the Authority under the Payment of Wages Act exercises. He constitutes a Court or a Tribunal of summary jurisdiction and the clear object of the Legislature in setting up this Court or Tribunal was to give facilities to the employee to recover his wages as expeditiously as possible.
Gross delays in a civil Court are notorious and it was but proper that a workman getting small wages should not be prevented from recovering them merely because the employer took up a refractory attitude and drove the employee to a civil Court to litigate his rights. Therefore, it could never have been the object of the Legislature that the Authority under the Payment of Wages Act should try and decide complicated questions which should ordinarily and normally be heard by a civil Court. What the authority has to determine is whether there has been an illegal deduction of wages.
In order to determine that he has to determine what are the wages to which the employee is entitled and again to determine that, he must decide what the contract between the employer and the employee is which entitles the employee to receive wages. Under these circum stances, there is no dispute between the employer and the employee as to the contract which regulates the conditions of service of employment. The dispute is as to what the employee is entitled under that contract. The employer may take up the contention that a certain amount is not due to the employee under the contract.
It would be open to the Authority to decide what is the quantum of wages due and whether that quantum has been paid or not. We considered the ambit of the jurisdiction of the Authority under the Payment of Wages Act in A. R. Serin v. B. C. Patil 53 Dom. L R 674: (A I R 1951 Bom. 423(A) and we laid down that the jurisdiction of the Authority really is to determine the terms of the contract in so far as they relate to the payment of wages and in so far as be has to decide the liability of the employer to pay wages under the terms of the contract.
In that case the question that arose was whether the Authority had the jurisdiction to determine whether the contract was terminated as alleged by the employer or the contract was still subsisting as alleged by the employee and we held that the Authority had no such jurisdiction. The question that now arises is in a sense different from the question that arose in Serin's case. What the authority is now asked to decide is not what is the contract between the employer and the employee but which is the contract which regulates the terms of employment between the parties.
In our opinion, the jurisdiction of the Authority is limited to decide what is contract in the sense of construing the contract in order to determine the liability of the employer to pay wages. But when the employer and the employee come before him and rely on different contracts it is not within his jurisdiction to decide which of the two contracts holds the field, which of them is subsisting and under which of them the employer is liable to pay wages.
It is only when there is no dispute as to the contract that subsists and regulates the rights and liabilities of the parties that the jurisdiction of the Authority arises to determine the quantum of wages. But when the very basis of the relationship is in dispute and in controversy, the legislature did not intend that a Court of summary jurisdiction should decide that important question."
A Full Bench of Bombay High Court in Viswanath Tukaram v. General Manager, Central Railway and others (A I R 1958 Bom. 111), while reiterating the above view observed
". . . the primary function of the Authority was to determine what the wages of the employee were and whether there had been a delay in payment of those wages or a deduction from those wages, and in order to determine the wages it may be necessary to determine what the terms of the contract were under which the employee was employed and under which he was claiming his wages. It may also be necessary, we pointed out, to decide whether the employee was employed by the employer or not because the question of a contract can only arise provided there was employment. Therefore, in order to determine what the contract was, what the terms of the contract were, what were the wages due under the contract, it might become necessary for the Authority to determine whether in the first place there was an employment or not."
25. In view of the above discussion I hold that the Authority under the Payment of Wages Act has jurisdiction under section 15 of the Act to determine what the terms of the contract between the parties are, and if the terms of the contract are admitted and the only dispute is whether or not a particular employee falls within one category or another that would be incidental to the decision of the main question as to what the terms of the contract are. Where the terms of the contract are admitted it is for the Authority to decide whether an employee come within one category on another. The Authority has jurisdiction to decide: what actual terms of the contract between the parties were that is to say, determine the actual wages. The Authority would have jurisdiction t construe the contract in order to determine the liability of the employ to pay wages. In my opinion the jurisdiction of the Authority is limited to decide what is contract in the sense of construing the contract (impugned letter) in order to determine the liability of employer to pa wages. But when the employer and the employees come before him an rely on different contract it is not within the jurisdiction of the Authority to decide which of the two contracts holds the field, which of them subsisting and under which of them the employer is liable to pay wages. It is only when there is no dispute as to the contract (impugned letter) the subsists and regulate the rights and liabilities of the parties (vis‑a‑vis payment of recreation allowance during recreation leave in this case), the jurisdiction of Authority arises to determine the quantum of wages. Bu when the very basis of the relationship is in dispute and in controversy, the Authority which is a Court of summary jurisdiction would have n jurisdiction to decide that important question. The Authority in the instant case had jurisdiction therefore to construe the letter/order of the President granting recreation leave and recreation allowance to the employees and give a finding whether the employees were entitled to receive full pay a recreation allowance during recreation leave and whether pay/wages during that recreation leave would also include running allowance admissible "running staff".
26. The further question on which there has been some controversy is whether a writ can be issued when the decision of the inferior Tribunal or the Court is erroneous or when all that can be said in a case is that the Tribunal decided the case wrongly in interpreting the impugned letter in the way it has done (as in the instant case). With regard to the character and scope of the writ of certiorari (order under Article 199(1)(a)(ii)1 of the present Constitution) and the conditions under which it cars issued, the following propositions may be taken as established:
"(1) Certiorari will be issued for correcting errors of jurisdiction, when an inferior Court or Tribunal acts without jurisdiction or excess of it, or fails to exercise it.
(2) Certiorari will also be issued when the Court or Tribunal act illegally in the exercise of its undoubted jurisdiction, as when it decides without giving an opportunity to the parties to be heard or violates the principles of natural justice.
(3) The Court issuing a writ of certiorari acts in exercise of a supervisory and not appellate jurisdiction. One consequence of this is that t Court will not review findings of fact reached by the inferior Court or Tribunal, even if they be erroneous. This is on the principle that a Court which has jurisdiction over a subject‑matter has jurisdiction to decide wrong as well as right, and when the Legislature does not choose to confer a right of appeal against that decision, would be defeating its purpose and policy, if a superior Court were to rehear the case on the evidence and substitute its own findings in certiorari."
In Rex v. Northumberland Compensation Appeal Tribunal Ex parte Shaw (1952 K B 338 (Q)), in laying down that an error of law was a ground for granting certiorari the learned Judges emphasized that it must be apparent on the face of the record.
Denning, J., who stated the power in broad and general terms observed ‑
"It will have been seen that throughout all the cases there is one governing rule : 'certiorari' is only available to quash a decision for error of law 'if the error appears on the face of the record."
The position was thus summed up by Morris, J.‑
"It is plain that 'certiorari' will not issue as the cloak of an appeal in disguise. It does not lie in order to bring an order or decision for rehearing of the issue raised in the proceedings. It exists to correct error of law 'where revealed on the face of an order or decision', or irregularity, or absence of, or excess of, jurisdiction where shown."
Supreme Court of Pakistan in Muhammad Hussain Munir v. Sikandar (P L D 1974 S C 139), affirmed the same view and observed: ‑
"It is not controverted that the matter before the learned Single Judge fell to be dealt with under paragraph (ii) of sub‑clause (a) of clause (i), Article 98 of the 1962 Constitution. That being so, the learned Judge could have set aside the order, if he had reached the conclusion that the revisional order of the learned Member, Board of Revenue was "without lawful authority and of no legal effect". Those are expressions of art and refer to jurisdictional defects as distinguished from a mere erroneous decision whether on a question of fact or even of law. It is well‑settled that where a Court or a Tribunal has jurisdiction and it determines that question, it cannot be said that it acted illegally or with material irregularity merely because it came to an erroneous decision on a question of fact or even of law. One of the earliest leading case on the point is the Privy Council decision in Amir Hussain Khan v. Sheo Sakhsh Singh 11 I A 237. This case concerned the revisional jurisdiction of the High Court under section 622 of Civil Procedure Code, 1882, which was in the same terms as section 115, Civil Procedure Code, 1908. The High Court has the power to interfere in its "supervisory jurisdiction under that section, if a subordinate Court has acted without jurisdiction, or has failed to exercise its jurisdiction or in exercise of its jurisdiction has acted illegally or with material irregularity. The High Court's supervisory jurisdiction under Article 198(2)(a)(ii) of the 1962 Constitution (or for that matter under Article 199(1)(a)(ii) of the present Constitution) having regard to its nature or content is assailable to its jurisdiction under section 115, Civil Procedure Code except in two important respects : First ; the former jurisdiction being a creation of the Constitution stands in a higher pedestal than that under section 115, C. P. C. Second : the former jurisdiction has a wider reach than the jurisdiction under section 115, Civil Procedure Code, which is confined to subordinate Courts. However, that may be, it is wholly wrong to consider that the above Constitutional provision was designed to empower the High Court to interfere with the decision of a Court or tribunal of inferior jurisdiction, merely because in its opinion the decision is wrong. In that case, it would make the High Court's jurisdiction indistinguishable from that exerciseable in a full‑fledged appeal, which plainly is not the intention of the Constitution‑makers."
27. The only attack upon the order was the Authority under the Payment of Wages Act and the Labour Court was that its decision was wrong and erroneous in so "running as it sought to give "running allowance" as part of wages to the running staff" during recreation leave. No jurisdictional defect was pointed out in the impugned orders. This is an ample basis for refusing the writ in the instant case.
28. A writ of certiorari will not be available where the error is merely formal or technical or where the errors cannot be said to errors of law apparent on the face of the record, but they are mere errors in appreciation of documentary evidence or affidavits, errors in drawing inferences or omission to draw inferences (from documents or letters o policy) or in other words errors which a Court sitting as a Court of appeal only, could have examined and, if necessary, corrected.
In my opinion the petitioner has failed to make out a case for the issuance of an order in the nature of a writ of certiorari (under Article 190(1)(a)(0) of the Constitution).
29. For the foregoing reasons and without entering into other questions which have been raised by learned counsel for the parties I find that this writ petition has no merit and should be dismissed. It is hereby dismissed.
30. Since the respondents have been dragged into this protracted litigation for the last many years 1 feel that they should also have the costs of the case. I order accordingly.
31. Before I part with this judgment I feel impelled to make a few observations not on the merits of the case but on Governmental disposition to litigation, the present case being a specimen of a serious deficiency. In this country the State is perhaps the largest litigant today and huge expenditure is involved on litigation which ultimately has to be borne by the public exchequer. The State undertakes economic activities in a widening public sector and inevitably gets involved in dispute with private individuals. But it must be remembered that the State is no ordinary party trying to win a case against one of its own citizens by book or crook for the State's interest is to meet honest claims, vindicate a substantial defence and never try to score a technical victory or points or overreach a weaker party, which no doubt a citizen is, to avoid a just liability or secure an unfair advantage simply because our legal system provides ample legal devices for such an opportunity. The State is essentially a virtuous litigant. It must look with unconcern on immoral forensic successes and if on merits the case is weak, State must show a willingness to settle the dispute regardless of prestige and other lesser motivations which move private litigants. In my view the State should be deeply interested not only in justice but social justice as well. The way the respondents have been dealt with in this case (cases) is a sad reflection on the Railway Administration and the respondents' ultimate victory in this Court is but a sad justification for these observations. It would have been much better and more wholesome if an attempt was made to take this case (all these cases) out of the Courts and sort out this controversy by reasonable adjustment specially when this very Railway administration had earlier adopted a more favourable and beneficial construction of the impugned letter.
S. Q. Petition dismissed.
SCHEDULE A
List of 90 cares in which no appeal had been filed under section 17 of the Payment of Wages Act, 1936.
_______________________________________________________________________
S. No. Case No. Petitioner Respondent
_______________________________________________________________________
1. W. P. 3402/1979 Divisional Superintendent, Vs. Iftikhar Ahmad son
Pakistan Railway of Niaz Ahmad.
Lahore.
2. W. P. 3403/ 1979 Ditto ,, M A. H. Siddique son of
Mansoor‑ul‑Haq.
3. W. P. 3404/1979 Ditto Muhammad Hamayun son of Haji Shameer.
4. W. P. 3405/1979 Ditto Abdul Samad Khan son of A. Aziz Khan.
5. W. P. 3406/1979 Ditto Muzaffar Hussain son of
Ch. Ahmad Hasan.
6. W. P. 3407/1979 Ditto Abdul Ghafoor Rana son of Rana Noor Din.
7. W. P. 3408/1979 Ditto Karam Ali Khan son of
Yousaf Khan.
8. W. P. 3409/1979 Ditto B. A. Tahir son of
Qamar Din.
9. W. P, 3410/1979 Ditto Muzaffar Hussain son of
Muhammad Husain.
10. W. P. 3411/1979 Ditto Imtiaz Hussain son of Sh.
M. Iqbal.
11. W. P. 3412/1979 Ditto Muhammad Amin son of
M. Ibrahim.
12. W. P. 3413/1979 Ditto Ali Ahmad son of Ch.
Kamaluddin.
13. W. P. 3414/1979 Ditto M. Latif Alvi son of
Khushi Muhammad,
14. W. P. 3415/1979 Ditto Muhammad Ishaque son of Ch. Abdul Majid.
15. W. P. 3416/1979 Ditto Muhammad Rafi son of
Ch. Shahabuddin.
16. W. P. 3417/1979 Ditto Abdul Sattar Ch. son of
Ch. Hussain Ali.
17. W. P. 3418/1979 Ditto C. M.Yousaf.
18. W. P. 3419/1979 Ditto Muhammad Rafi son of
Muhammad Shall.
19. W. P. 3420/1979 Ditto Zia Ullah Khan son of
Muhammad Akhtar Khan.
20. W. P. 3421/1979 Ditto Muhammad Rafique son
Muhammad Ali.
21. W. P. 3422/1979 Ditto ,, Abdul Majid Punu, son of
Jalal Din.
22. W. P. 3423/1979 Ditto Ghulam Rasul Pawar son of Muhammad Sharif.
23. W. P. 3424/1979 Ditto Muhammad Aziz son of
Ch. Rehmat Ali.
24. W. P. 3425/1979 Ditto M. Iqbal Khan son of
Muhammad Hussain.
25. W. P. 3426/1979 Ditto Mukhtar Ali son of Noor
Ahmad.
26. W. P. 3427/1979 Ditto Ramzan Muhammad.
27. W. P. 3428,11979 Ditto Muhammad Siddique son of A. Aziz.
28. W. P. 3429/1979 Ditto Nazir Ahmad Khan son of Asadullah Khan.
29. W. P. 3430/1979 Ditto Muhammad Ishaque son. of M. Azizuddin.
30. W. P. 3431/1979 Ditto Muhammad Nawaz Khan son of Khadim Hussain.
31. W. P. 3432/1979 Ditto Abdul Majid son of
Inayat Ullah.
32. W. P. 3433/1979 Ditto Hameed Ahmad son
Ch. Faiz Ahmad.
33. W. P. 3434/1979 Ditto M. A. Siddique son of
Maqbool Ahmad.
34. W. P. 3435/1979 Ditto Ehsan Elahi Malik son of
M. Khalid.
35. W. P. 3436/1979 Ditto Muhammad Jamil son of
Jan Muhammad.
36. W. P. 3437/1979 Ditto Fateh Muhammad.
37. W. P. 3438/1979 Ditto M. Z. Zafar son of A.
Rehman.
38. W. P. 3439/1979 Ditto Siraj Din son of Feroz Din.
39. W. P. 3440/1979 Ditto A. Majid Rahi son
Khewa Khan.
40. W. P. 3441/1979 Ditto Ch. Bashir Ahmad son of
Abdur Rehman.
41. W. P. 3442/1979 Ditto Muhammad Rafique son of Amir Ali.
42. W. P. 3443/1979 Ditto M. Saleem Shakir son
Ghulam Nabi.
43. W. P. 3444/1979 Ditto Sultan Mahmood son of
Ghulam Muhammad.
44. W. P. 3445/1979 Ditto Mohammad Latif Nagra son of Ch. Suba Khan.
45. W. P. 3446/1979 Ditto Sabir Ali son of Ch. Rehmat
Ali.
46. W. P. 3447/1979 Ditto Ahmad Din son of Charag
Din.
47. W. P. 3448/1979 Ditto Abdur Rashid Rana son of Zahoor Din.
48. W. P. 3449/1979 Ditto Abdur Rehman son of
Ghulam Rasul.
49. W. P. 3450/1979 Ditto Abdul Latif son of Dr.
Shah Muhammad.
50. W. P. 3451/ 1979 Ditto Mohammad Akbar Mali son of A. Yar Khan.
51. W. P. 3452/1979 Ditto Bashir Ahmad son of
Mehr Din.
52. W. P. 3453/1979 Ditto Hakim Ali Ch. son of
Qutab Din.
53. W. P. 3454/1979 Ditto Muhammad Jamil son of
M. Ismail.
54. W. P. 3455/ 1979 Ditto Barkat Ali Kamboh son of Kamal Din.
55. W. P. 3456/1979 Ditto ,, Mohammad Shafi son of
Mohammad Bakhsh.
56 W. P. 3457/1979 Ditto Ghulam Haider Shah son of Atta Mohammad.
57. W. P. 3458/1979 Ditto Saeed Ahmad son of Ch.
Sardar Mohammad.
58. W. P. 3459/1979 Ditto Siddique Ahmad son of
Ch. Bashir Ahmad.
59. W. P. 3460/1979 Ditto Altaf Hussain son of
Ghulam Nabi.
60. W. P. 3461/1979 Ditto Soofi Bashir Ahmad son of Mohammad Yaqub.
61. W. P. 346211979 Ditto Mohammad Hanif son of
Ghulam Mohammad.
62. W. P. 3463/1979 Ditto Abdul Hamid son of
M. Fateh Muhammad.
63. W. P. 3464/1979 Ditto Muhammad Iqbal Akhtar son of Abdul Ghafoor.
64. W. P. 3465/1979 Ditto S. B. Mirza son of Abdul
Ghani.
65. W. P. 3466/1979 Ditto Nazir Ahmad son of Ali
Bakhsh.
66. W. P. 3467/1979 Ditto Abbas Hussain Shah son of Mohammad Hussain.
67. W. P. 3468/1979 Ditto Naseer Alam son of Sheikh
A. Aziz.
68. W. P. 3469/1979 Ditto ,, Sher Mohammad son of
Fateh Muhammad.
69. W. P. 3470/1979 Ditto S. Manzoor Hussain Shah son of Noorullah Shah.
70. W. P. 4162/1979 Ditto Mohammad Tufail son of
Nizamuddin etc.
71. W. P. 2684/1979 Ditto Bashir Ahmad Ch. son of
Abdul Hakeem.
72. W. P. 2685/1979 Ditto Ghulam Alison of Rehmat.
73. W. P. 2686/1979 Ditto Abdul Ghafoor son of
Noor Elahi.
74. W. P. 2687/1979 Ditto Saeed Ahmad son of Ahmad.
75. W. P. 2688/1979 Ditto Gulfraz Khan.
76. W. P. 2689/1979 Ditto Abdul Majid Khan son of
Durran Khan.
77. W. P. 2690/1979 Ditto Shah Nawaz son of Maiz
Ullah Khan.
78. W. P. 2691/1979 Ditto ,, Abdul Ghafoor son of
Ghulam Muhammad.
79. W. P. 2692/1979 Ditto Jamal Din son of Lal Din.
80. W. P. 2693/1979 Ditto Bashir Ahmad Tanvir son of Chiragh Din.
81. W. P. 2694/1979 Ditto Muhammad Ibrahim Khan son of Mohammad Umar
Khan.
82. W. P. 2695/1979 Ditto Mushtaq Hussain son of
Ghulam Hussain.
83. W. P. 2696/1979 Ditto Ali Muhammad son of
Gul Muhammad.
84. W. P. 2697/1979 Ditto Abdur Rahim son of
Abdul Latif.
85. W. P. 2698/1979 Ditto Hathi Khan son of Allah
Dad Khan.
86. W. P. 2699/1979 Ditto Abdul Waheed son of
Abdul Karim.
87. W. P. 2700/1979 Ditto ,, Ghulam Mohammad son of Gul Mohammad.
88. W. P. 2701/1979 Ditto Muhammad Awaz Khan son of Surat Khan.
89. W. P. 2702/1979 Ditto Mohammad Hafeez Khan son of Said Mohammad.
90. W. P. 4229/1079 Ditto Raja Mohammad Hayat son of Raja Nawaz Khan etc.
_______________________________________________________________________
SCHEDULE B
78 cases in which appeals were filed but dismissed as time barred or for non‑prosecution.
_______________________________________________________________________
S. No. Case No. Petitioner Respondents
_______________________________________________________________________
1. W. P. 3925/1979 Divisional Superinten. Vs. Muhammad Ashraf son dent, Pakistan Rail‑ of Siraj‑uddin. way, Lahore.
2. W. P. 3926/1979 Ditto Ehsan Ahmad son of
Ramzan Khan
3. W. P. 3927/1979 Ditto Asghar Ali son of Farid Bux.
4. W. P. 3928/1979 Ditto M. Abdul Waheed son of
A. A. Din.
5. W. P. 3929/1979 Ditto Muhammad Ashraf son of
Aziz Din.
6. W. P. 3930/1979 Ditto Mr. Nasrullah Khan son of Fazal Din.
7. W. P. 3931/1979 Ditto Muhammad Yousaf Khan son of A. H. Khan.
8. W. P. 3932/1979 Ditto Haji M. A. Ghani son of
Hussain Bux.
9. W. P. 3933/1979 Ditto Anwar Ali Shah son of
Muhammad Siddiq Shah,
10. W. P. 3934/1979 Ditto S. Chaman son of Sardar
Masih.
11. W. P. 3935/1979 Ditto Mumtaz Ali Mirza son of
M. Mehr Din.
12. W. P. 3936/1979 Ditto Muhammad Latif son of
Imam Din.
13. W. P. 3937/1979 Ditto Wali Muhammad son of
Faqir Muhammad.
14. W. P. 393811979 Ditto Amanullah Baig son of
Mirza War Baig
15. W. P. 4048/1979 Ditto Muhammad Awnr Bajwa son of Allah Bux.
16. W. P. 4419/1979 Ditto Ejaz Hussain son of
Muhammad Hussain
17. W. P. 4420/1979 Ditto Muhammad Yousaf Pal son of Muhammad Azam.
18. W. P. 4421/1979 Ditto Muhammad Din son of
Nawab Din.
19. W. P. 4422/1979 Ditto Ehtashamul Hassan son of
Riazul Hasan.
20. W. P. 4423/1979 Ditto Muhammad Yaqub son of
Ch. Lal Din.
21. W. P. 4424/1979 Ditto Iftikhar Ahmad son of
Ghulam Muhammad.
22. W. P. 4425/1979 Ditto Abdul Wahab son of
Karim Bux.
23. W. P. 4426/1979 Ditto Abdul Latif Mugbal :on of Allah Din.
24. W. P. 4427/1979 Ditto Zawar Hussain son of
Fayyaz Hussain.
25. W. P. 4428/1979 Ditto Muhammad Haoif son of
Maula
26. W. P. 4429/1979 Ditto Bashir Ahmad Khan son of
Sardar Khan.
27. W. P. 4430/1979 Ditto M. Ismail Miskey son of
M. M. Yousaf.
28. W. P. 4431/1979 Ditto Amanullah son of Khushi
Muhammad.
29. W. P. 4432/1979 Ditto M. M. Asghar son of
Abdul Aziz.
30. W. P. 4433/1979 Ditto Abdur Rehman son of
Muhammad Bux.
31. W. P. 4645/ 1979 Ditto Sardar Ali Rizvi son of
Akbar Hussain.
32. W. P. 4646/1979 Ditto Mushtaq Ali son of
Rehmat Ali.
33. W. P. 4647/1979 Ditto Muhammad Jamil son of
Jan Muhammad.
34. W. P. 4648/1979 Ditto Akhtar Jilani son of
Ghulam Jilani.
35. W. P. 4714/1979 Ditto Rehmat Ali Gill son of
Ali Muhammad.
36. W. P. 4715/1979 Ditto Niamat Ali son of Ali
Muhammad.
37. W. P. 4716/1979 Ditto Nisar Ahmad Khan son of
A. Aziz Khan.
38. W. P. 4717/1979 Ditto Mr. R. A. Toor son of
G. M. Khalid.
39. W. P. 4718/1979 Ditto Muhammad Ashraf son of
Muhammad Hussain
40. W. P. 4926/1979 Ditto Abdul Waheed son of
Abdul Hameed.
41. W. P. 4927/1979 Ditto Sabir Javid son of Bashir
Ahmad.
42. W. P. 4928/1979 Ditto Talib Hussain son of
Ghulam Hussain.
43. W. P. 4929/1979 Ditto Ahmad Ali son of
Muhammad Boota.
44. W. P. 4930/1979 Ditto S. Akhtar Hussain Shah son of S. Muhammad
Hussain.
45. W. P. 5204/1979 Ditto Mukhtar Ahmad son of
Fazal Elahi.
46. W. P. 5205/1979 Ditto Bashir Ahmad Navid son of Ilam Din.
47. W. P. 5206/1979 Ditto Shahabuddin son of
Ghafar Ahmad Khan.
48. W. P. 5207/1979 Ditto Abdul Latif Khan son of
Turat Khan.
49. W. P. 5208/1979 Ditto S. Iqtiza Hussain son of
Haider Hussain.
50. W. P. 5209/1979 Ditto Ghayyur Hussain son of
A. A. Safdar.
51. W. P 5210/1979 Ditto Abdul Sattar Mian son of
Ghulam Muhammad.
52. W. P. 5211/1979 Ditto Muhammad Ayub son of
Sultan Ali.
53. W. P. 5212/1979 Ditto M. R. George son of Mr.
Ganga Ram.
54. W. P. 5213/1979 Ditto Iqbal Noor Ullah son of
Ghulam Muhammad.
55. W. P. 5214/1979 Ditto Shafiq Ahmad son of
Abdul Aziz.
56. W. P. 5215/1979 Ditto Alauddin son of Faridud
Din.
57. W. P. 5216/ 1979 Ditto M. Hafeez Khan son of
M. Muhammad Din.
58. W. P. 5217/1979 Ditto ,, Muhammad Bhatti, son of Fazal Din.
59 W. P. 5218/1979 Ditto ,, Abdul Majid Rajput son of Ataullah.
60. W. P. 5246/1979 Ditto Gulzar Ahmad.
61. W. P. 5247/ 1979 Ditto Abdur Rehman son of
Shadi Khan.
62. W. P. 5248/1979 Ditto Khalilur Rehman son of
Nazir Ali.
63. W. P. 5249/1979 Ditto Muhammad Sadiq Bhatti, son of Hasan Khan.
64. W. P. 5250/1979 Ditto Abdul Hussain son of
Abdul Hafeez.
65 W. P. 5251/1979 Ditto Muhammad Siddique son of Maula Bux.
66. W. P. 5252/1979 Ditto Habibullah Khan son of
Muhammad Shafi.
67. W. P. 5253/1979 Ditto Muhammad Usman son of Niaz Muhammad.
68 W. P. 5254/1979 Ditto Muhammad Sharif.
69. W. P. 5255/1979 Ditto Muhammad Akbar son of Abdul Waheed.
70. W. P. 5256/1979 Ditto S. Ahmad Hussain son of Nathe Shah.
71. W. P. 5257/1979 Ditto Zahoor Ahmad son of
Shah Muhammad.
72. W. P. 5258/1979 Ditto Ahdul Ghafoor son of
Muhammad Din.
73. W. P. 5259/1979 Ditto Muhammad Aslam son of
Shah Muhammad.
74. W. P. 5260/1979 Ditto Khushi Muhammad son of Ghulam Muhammad.
75. W. P. 6549/1979 Ditto ,, Muhammad son of
Ch. Mehar Din.
76. W. P. 6550/1979 Ditto ,, Muhammad Sharif son
Faiz Muhammad
77 W. P. 6551/1979 Ditto ,, Mushtaq Ahmad son of Ch.
Muhammad Ali.
78. W. P. 4749/1979 Ditto ,, Ghulam Masih.
_______________________________________________________________________
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