ASHRAF SUGAR MILLS LIMITED Versus ABDUL GHAFFAR
JUSTICE (R) SAGHEER AHMED QADRI, CHAIRMAN.--- The facts necessary to dispose of this revision petition are that the respondent Abdul Ghaffar son of Wali Muhammad Ex-AFM of the petitioner-mills filed a claim under section 15(2) of the Payment of Wages Act, 1936 in June, 2008 claiming Rs.3,20,700/- as deducted amount due to be paid in different categories which he in application mentioned in categories "a to m".
It was further mentioned in the claim by the respondent that applicant resigned on 28.11.1998. He was asked that his all wages including gratuity etc., will be paid in near future. He requested repeatedly but was made rolling stone, however, was finally refused in June, 2008.
2. This petition was replied by the petitioner-mills raising six preliminary objections that the petition was filed without any cause of action, with mala fides as well as barred by law. On factual side all the assertions made by the respondent were refuted and were not accepted as submitted in the claim with a prayer that petition be dismissed.
3. The learned Authority/ trial court out of pleadings of the parties framed three issues including relief.
(1) Whether the application is time barred by law or not? OPR
(2) Whether the applicant is entitled to any payment? OPA
(3) Relief.
4. The respondent Abdul Ghaffar appeared as his own witness as AW-1 and stated that he resigned from the service on 28.11.1998. His dues including gratuity, additional pay and leave encashment were not paid and were being delayed under different pretexts; that in January, 2008 revision petitioner finally refused to clear outstanding dues orally by Admin. Manager. The respondent claimed Rs.3,20,700/- the detail of which is given in his statement as well as in his petition. He submitted clearance certificate Ex.P.1 and resignation Ex.P.2. He was cross-examined and his learned counsel closed the evidence vide statement dated 05.05.2010.
On behalf of the petitioner Muhammad Anwar clerk appeared and stated that the respondent had been performing his duties till 20.11.1998, later on, he absented was issued show-cause notice but no reply was submitted. Thereafter, inquiry was held and after ex parte proceedings he was terminated from the service. Nothing was outstanding as claimed by the respondent through his petition. He was cross-examined and learned counsel for the petitioner closed the evidence.
5. The learned Authority/ trial court vide its judgment dated 05.03.2011 allowed the claim of the respondent to the extent of Rs.36008/-. Feeling aggrieved the petitioner-mills preferred an appeal which was decided by the learned Presiding Officer, Punjab Labour Court No.08, Bahawalpur vide judgment dated 22.07.2011. After setting aside the judgment dated 05.03.2011 learned Appellate Court remanded the matter to the learned trial court to first decide the question of limitation in filing the claim before it.
6. The learned trial court in post remand proceedings further recorded the statement of the respondent Abdul Ghaffar as Aw-1 wherein he after reiterating his earlier claim got exhibited affidavits of two persons namely Abdullah and Pervaiz as Ex.P.3 and Ex.P.4 along with postal receipt Ex.P.5 and application Ex.P.6.
The petitioner-mills according to the records were not able to produce any evidence as their right to adduce the evidence was closed.
7. The learned trial court vide judgment dated 05.04.2014 found the claim filed by the respondent hopelessly time barred and dismissed the same. Feeling aggrieved the respondent Abdul Ghaffar preferred an appeal which was decided by the learned appellate court vide judgment dated 19.06.2014 whereby the judgment passed by the learned trial court was set-aside and claim submitted by the respondent was accepted and allowed to extent of Rs.3,20,700/- along-with the compensation. Feeling aggrieved the petitioner-mills has preferred this revision petition.
7.(sic)Learned counsel for the petitioner contends that after remand the learned Authority vide judgment dated 05.04.2014 dismissed the claim of the respondent having preferred being time barred; that the respondent preferred an appeal which was decided by the learned Appellate Court vide impugned judgment dated 19.06.2014 whereby in Para 29 it was observed that under Order VIII, Rule 3 of C.P.C. as the petitioner did not submit a specific answer to the claim and it was an evasive denial, hence the claim of the respondent was presumed as accepted. It was further argued that the learned appellate court did not advert to the question of limitation in the light of law applicable on the subject i.e. 15(2) of Payment of Wages Act, 1936. Learned counsel referred Paras 30 to 36 of the impugned judgment wherein the learned appellate court basing on a judgment of the honourable Supreme Court of Pakistan which was not applicable on the facts and circumstances allowed the claim while imposing costs Rs.25000/-, one time penalty which was not permissible under the law. Learned counsel further referred section 15(3) of Payment of Wages Act, 1936 which provides compensation which the authority may being fit, 10 times of the deducted amount and in case of delayed payment only Rs.10 as penalty but the learned appellate court did not consider these aspects of law. Learned counsel further referred section 15(2) and (3) of Payment of Wages Act in the light of section 5 of the Act ibid and under Para 12(4) of Standing Orders, Ordinance, 1968 whereby the due date for payment was defined and with respect to the present facts and records according to the respondent's own petition as he allegedly resigned on 28.11.1998, hence the petition was patently time barred taking the said point as starting point from running of the limitation; that only ground urged that the respondent had been pursuing the petitioner mills for payment of his wages was without any evidence except on the basis of two affidavits of persons who did not appear before the court and postal receipts that too showing the date in February, 2008 is not sufficient to explain the delay in filing the petition, hence the appellate court clearly committed illegality. Learned counsel further argued in respect of the claim of the respondent details given in the petition wherein in first point (a) Rs.6500/- was a claim for monthly pay which was admissible, however, he submits that increase payment of pay Rs.20000/- in Para (b) is not clear nor any evidence was lead that what was the rate on the basis of it was calculated as well as encashment leaves for 42 days are concerned learned counsel referred 49-B of Factory Act. Learned counsel contends that as far as notice pay Rs.7000/- is concerned, he referred resignation Ex.P.2 wherein the respondent submitted resignation and given 24 hours instead of one month period, hence he was bound to pay one month salary which he did not, hence this claim was not allowed; that the termination order was not challenged by the respondent, hence he was not entitled for gratuity as learned authority has no power to set aside the same; that house rent does not fall within the definition of wages according to section 2 clause VI (a) of Payment of Wages Act; that costs also is not included to the definition of wages; that bonus 10-C for the year 1997-98 was the claim of the respondent but learned counsel states that to disprove the same petitioner did not submit any evidence, hence it cannot be disproved; that there is no evidence in respect of overtime claimed by the respondent. Prayed that while allowing this revision petition the impugned judgment passed by the learned appellate court be set-aside.
9. Learned counsel respondent referred Ex.P.1 a clearance certificate issued by the office of the petitioner's mill. Learned counsel for the respondent contends that earlier before the learned trial court application for condonation of delay was moved on 29.09.2009 but it was not considered by the learned trial court in judgment; that respondent subsequently while appearing before the learned appellate court also moved an application for condonation of delay on 07.05.2014 wherein it was agitated that the respondent had been pursuing in the office of the petitioner's mill and he had been remained delaying on different tacts for the payment of the claim of the respondent, hence in the light of documentary evidence specifically a clearance certificate Ex.P.1 which was not cross-examined by counsel for the petitioner, hence the stance of the respondent was proved; that under para 12(6) of Standing Orders, Ordinance and section 15(2) and (3) of Payment of Wages Act it is provided that gratuity in all circumstances is to be paid to the employee. Prayed that instant revision petition be dismissed while upholding the judgment passed by the learned appellate court.
10. I have heard learned counsel for the parties and perused the records available on the file minutely.
11. As already mentioned that the respondent Abdul Ghaffar through his claim sought the payment of his alleged withheld wages/other benefits since 28.11.1998 as according to him he resigned on said date while on contrary it was agitated on behalf of the petitioner-mills that due to his absence he was terminated from service. There is no denial to the fact that this petition/ claim was filed by the respondent in June, 2008 and petitioner-mills in their written reply specifically raised a preliminary objection that claim was barred by law (limitation). The learned trial court on the basis of pleadings of the parties framed issue No.2 relating to limitation. Although the onus was on the revision petitioner to prove the limitation whereas under the law it was basic duty of the respondent/claimant to prove his claim within limitation as prescribed under Section 15 of the Payment of Wages Act, 1936. To further elaborate the point of limitation it is appropriate at this stage to reproduce the relevant provision of Section 15 of the Act ibid:
15. Claims out of deductions from wages or delay in payment of wages and penalty for malicious or vexatious claims:- (1) .
(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 [or of any dues relating to Provident Fund or gratuity payable under any law] has been delayed, such person himself, or any legal practitioner, or any official of a registered trade union authorized in writing to act on his behalf, or any Inspector under this Act [or of any heirs of an employed person who has died] 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, 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 . (Underlining is mine).
12. The factual aspects that on one hand the respondent claimed that he on 20.11.1998 submitted his resignation while petitioner-mills agitates that he from said date absented from duty and later on his services were terminated after conducting an inquiry. The claim filed before the learned trial court on 12.06.2008 after about eight years of the alleged resignation/ termination of the respondent from service. The respondent did not submit any application for condonation of delay along with claim under section 15(2) of the Act, ibid, however, an application for condonation of delay was moved on 29.08.2009 but its reply was not sought nor submitted by the petitioner-mills on record. The contents of said application for condonation of delay are hereby reproduced:
BEFORE THE AUTHORITY UNDER PAYMENT
OF WAGES ACT, BAHAWALPUR.
Abdul Ghaffar v. Ashraf Sugar Mills.
APPLICATION FOR CONDONATION OF DELAY IF ANY .
Respectfully prayed as under:-
1. That petitioner was resigned from his service, whereby he was asked to pay his resignation benefits in near further on account of mutual verbal compromise. However, in the month of January 2008, he was paid only one-month salary in the garb of gratuity while remaining wages was refused and deducted illegally. Therefore claim application was filed on 9.6.2008, upon the refusal and deduction of his wages. So claim application was admitted by this Authority/and notice was issued after satisfying the contents and arguments of counsel for the applicant. Written reply was field by respondent, in which, objection of limitation was also raised. Issued were framed and matter was fixed for recording of evidence of the petitioner considering the points raised in the written rely including limitation. As such, after fixation of case for evidence of petitioner and too at the time of recording of evidence of the petition on the point of limitation, which is not sustainable in the eyes of law.
2. That since the titled application was entertained and admitted under proviso second of subsection (2) of section 15 of Payment of Wages Act, 1936, after satisfying the Authority therefore, the claim application is within time. However, in order to avoid any complication, the application for condonation of delay is being filed.
3. That it is settled proposition of law that matter should have decided on merits ignoring the technically including limitation.
4. That valuable right of the applicants/petitioner is involved in the tilted claim application, in case, same is not decided on merits, in that event, it will cause irreparable loss to the applicant.
In view of the matter, it is prayed that application for condonation of delay may kindly be accepted and delay if, may be condoned in the interest of justice and matter may please be decided on merits in the interest of justice.
Petitioner.
Through counsel
MUKHTAR AHMED MALIK
ADVOCATE HIGH COURT,
BAHAWALPUR.
13. If the statement of the respondent while appearing as Aw-1 is seen which was recorded on 05.05.2010 and cross-examined on 09.06.2010, there is no mention about the payment of one month pay in garb of gratuity rather it was stated by the respondent:
During cross examination the respondent although denied that he was terminated but stated:
14. In post remand proceedings the respondent again appeared as Aw-1 and again reiterated the same stand that he had been pursuing his matter with the mills-authorities, hence the matter was delayed. He submitted affidavits of two persons namely Abdullah and Pervaiz as Ex.P.3 and Ex.P.4 who allegedly sworn that the respondent had been pursuing his matter with the petitioner-mills; authorities and ultimately he sent an application to Lahore Head Office against non-payment of his dues. Both of said persons never appeared before the court to prove their affidavits, these hence had no lawful affect and these statements cannot be accepted as correct. Application Ex.P.6 also seems after thought effort by the respondent to make-up deficiency about limitation in filing the claim beyond the period of limitation.
15. Interestingly the respondent before the learned Appellate Court on 07.05.2014 moved another application for condonation of delay on the same grounds. The Para 2 of the said application is hereby reproduced:
2. That the applicant regularly visited the respondent mills for the recovery of his dues up to 2008 regularly and its proof has been produced on courts file. (2 affidavits and receipts of post office).
16. If the provision of proviso first annexed with subsection (2) of section 15 of the Act ibid are seen it is specifically provided that the 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 wages was due to be made as the case may be. There is no cavil to the proposition if admitted as claimed by the respondent himself that he resigned the service on 28.11.1998 or the assertion by the petitioner that his services were terminated from the same date, the claim of the respondent was alleged to have been due on the said date, therefore, the claim must have been filed under subsection (2) of section 15 of the Act, ibid within three years on or before 28.11.2001. The petition was made in June, 2008 at-least seven years beyond the period of limitation and the only assertion that the respondent had been pursuing the petitioner-authorities for payment of dues is not plausible explanation. The learned appellate court did not consider these aspects rather did not touch the question of limitation and decide the appeal on irrelevant consideration.
17. It is specifically provided under section 3 of the Limitation Act, 1908; that if a petition is preferred beyond the period of limitations, keeping in view the concession provided under sections 4 to 25 of the Act, it ordinarily is to be dismissed irrespective of the facts that any objection in this respect is raised or otherwise. Under section 76 of PIRA, 2010 the provisions of section 5 of the Limitation Act, 1908 is made applicable under this special law. It is now settled by the superior courts of this country that a party seeking condonation of delay in filing a petition etc is to explain the delay of each and every day with certainty as after expiry of the limitation period provided in a statute a valuable right is created in favour of the opposite side. The petitioner has not given any plausible explanation of delay in filing of this petition. This delay shows the negligent conduct of the petitioner in this respect. Even otherwise it has now been settled by the superior courts of this country that the question of limitation is not a mere technicality rather it goes to the roots of a litigation until it is proved that cause of action was agitated within a time prescribed by law. In a recent judgment cited as (2008 SCMR 8) titled Muhammad Islam v. Inspector General of Police Islamabad and others , the honourable Supreme Court of Pakistan taking in consideration all the previous judgments passed by the honourable Supreme Court of Pakistan held:
"The question of limitation cannot be considered a "technicality" simpliciter as it has got its own significance and would have substantial bearing on merits of the case. The law of limitation must be followed strictly. In this regard we are fortified by the dictum laid down in Chairman, District Screening Committee, Lahore and another v. Sharif Ahmed Hashmi (PLD 1976 SC 258), S. Sharif Ahmed Hashmi v. Chairman Screening Committee, Lahore and another (1978 SCMR 367), Yousaf Ali v. Muhammad Aslam Zia and 2 others (PLD 1958 SC (Pak) 104), Punjab Province v. The Federation of Pakistan (PLD 1956 FC 72), Muhammad Swaleh and another v. Messrs United Grain and Fodder Agencies (PLD 1964 SC 97), Chief Kwame Asante v. Chief Kwame Tawai (PLD 1949 PC 45), Hussain Bakhsh and others v. Settlement Commissioner and another (PLD 1969 Lah. 1039), Nawab Syed Raunaq Ali and others v. Chief Settlement Commissioner and others (PLD 1973 SC 236), Chief Settlement Commissioner, Lahore v. Raja Muhammad Fazil Khan and others (PLD 1975 SC 331), WAPDA v. Abdul Rashid Bhatti (1989 SCMR 467), Federation of Pakistan v. Muhammad Azim Khan (1949 SCMR 1271), Inspector-General of Police Balochistan v. Jawad Haider and others (1987 SCMR 1606 ), WAPDA v. Aurangzeb (1988 SCMR 1354) Muhammad Naseem Sipra v. Secretary, Government of Punjab (1989 SCMR 1149), Muhammad Ismail Memon v. Government of Sindh and others (1981 SCMR 244), Qazi Sardar Bahadar v. Secretary, Ministry of Health, Islamabad and others (1984 SCMR 177), Smith v. East Elloe Rural District Council and others (1956 AC 736) Province of East Pakistan and others v. Muhammad Abdu Miah (PLD 1959 SC (Pak), 276) and Mehr Muhammad Nawaz and others v. Government of Punjab and others (1977 PLC (C.S.T) and Fazal Elahi Siddiqi v. Pakistan (PLD 1990 SC 692)".
18. The judgments cited by the learned appellate court are not applicable on the facts and circumstances of the present case. The learned appellate court did not exercise the jurisdiction vested in it rather failed to exercise the jurisdiction, hence while setting aside the impugned judgment dated 19.06.2014, the judgment passed by the learned trial court/ authority dated 05.04.2014 is hereby restored. Resultantly, the claim having been filed time barred is hereby dismissed. File be consigned to the records room after due completion.
MQ/8/PLT Revision dismissed.