Since the same points of law and facts are involved in both the appeals these are disposed of by the same order.
2. The appellant has filed the said two appeals on 16-4-1978 and 20-4-1978 respectively against the orders dated 22-3-1918 passed by the Authority under Payment of Wages Act in Cases Nos.
35/77 and 36/77 under section 15 of the Payment of Wages Act by which orders the learned Authority granted Rs. 4,920 to respondent Ashiq Ali and Rs. 5,418 to respondent Iftikhar Hussain towards deducted Wages illegally and compen--sation. The appellant had challenged the said orders on the ground that the Authority had no jurisdiction to decide the matter being time barred and its jurisdiction was barred under the Pakistan Essential Service (Maintenance) Act, 1952 and the respondents being civil servants in view of the WAPDA. Amendment Act, Ordinance, 1975. It is further asserted that Superintending Engineer being the employer and Officer entitled to promote the respondents was not joined as party. It is further asserted that the respondents were not entitled to the said claims of wages because their pay scales were not yet determined by WAPDA.
3. The contentions of the respondent is that the Authority had the jurisdiction to decide the claim of the respondents and they were entitled to the amounts decreed.
4. The facts in brief are that both the respondents were serving as machine attendant and the pay scale of machine attendant and operator grade-2 was same on 1-1-1909. WAPDA revised the pay scales of these two posts and thereby allowed operator grade-2 to get Rs. 300 while machine attendant were allowed to continue in the old scale of Rs. 250. The respondents made representations in this respect which was not allowed on the ground that the pay scale of machine attendant was not revised by WAPDA. Both the respondents were promoted as operator grade-2 on 22-12-1973 and respondent Iftikhar Hussain continued in that post till 23-I-1975 while respondent Iftikhar Hussain continued upto 14-6-1975 but they were not paid the salary of operator grade-2 at Rs. 300 p.m. But were allowed to draw old salary of machine attendant at Rs. 250 p. m. And thus they were paid less Rs. 50 p. m. And thereby respondent Ashiq Ali claimed Rs. 800 and Iftikhar Hussain claimed Rs. 900 as illegally deducted wages along with compensation. The respondents filed Suit No. 552-72 in the civil Court, Hyderabad which was abated by order of the Court dated 25- 12-1975 as per Exhs. P-3 and P-7 due to the fact that the respondents as WAPDA Employees were treated as civil servants under the W. P. WAPDA Amendment Ordinance, 1975. Thereafter respondent Ashiq Ali filed Appeal No. 5 (K)/76 before the Services Tribunal Islamabad which appeal was dismissed in limine due to the fact that the respondent was a workman under Civil Servants Act, 1973, and that order is produced as Exh. P-5. Respondent Iftikhar Hussain had filed Appeal No. 6(K)-76 before the Services Tribunal. Islamabad which was also dismissed similarly on 9-4-1976 as per order Exh. P-4. Thereafter the respondents filed applications under section 15 of the Payment of Wages Act on 16-6-1976 before the Authority but withdrew them on 25-5-1977 with permission to re-file them. Thereafter the present applications were filed before the Authority on 28-5-1977 resulting in the said orders which are appealed against.
5. The respondent had claimed salary of Rs. 3,000 p. m. With effect from 1-1-1969 in their capacity as machine attendant which was not allowed by the lower Court on the ground that pay scale of machine attendant was not revised by the WAPDA. No appeal is filed by the respondents against this finding.
6. The claim of the respondents was that they hail actually worked as operator grade-2 from 22-12- 1973 and Ashiq Ali continued to work in that post upon 23-4-1975 while Iftikhar Hussain continued to work upto 14-6-1975 and thus they were paid the old pay of machine attendant thereby a sum of Rs. 50 p. m. Was paid less and hence Ashiq Ali has claimed Rs. 800 while Iftikhar Hussain had claimed Rs. 900. The appellant witness Muhammad Usman has admitted that the respondents were paid less Rs. 50 p. m. Although they were entitled to Rs. 300 p. m. As operator grade-2. The respondents have produced order dated 22-12-1973 Exh. P-6 to the effect that both the respondents were appointed as operator grade-2 from that date. Another order Exh. P-7 shows that respondent Ashiq Ali was appointed as operator grade-1 from 22-4-1975 while Iftikhar Hussain was appointed as operator grade-I on 14-6-1975, as per Exh. P-5. The respondents has produced office order dated 23-1-1969 as Exh. D-4 along with table of scales Exhs. D-1 and D. 4/2 which show that the pay scale of operator grade-2 was fixed in 1969 as Rs. 300-20-500-25-750. Thus the pay of scales of operator grade-2 having been fixed in 1969 the respondents were entitled as per admission of the appellant himself and said documents to the salary of Rs. 300 p. m. From 22-12- 1973 but they were actually paid at rate of Its. 250 p. m. This claim is disputed by the appellant on the ground that pay scales were not revised by the WAPDA. And hence the claim was not justified.
This contention cannot be accepted as the pay scale of machine attendant was not revised but the pay scales of operator grade-2 was duly revised in which posts the respondents were working and as such the Authority appears to be justified in granting the said claims along with the compensation.
7. The jurisdiction of the Authority is challenged firstly on the ground that the WAPDA, including appellant establishment was declared as Essential Service under section 3 of the Pakistan Essential Services (Mainte--nance) Act, 1952, and hence the jurisdiction of the Authority was barred under section 7-A of the said Act and matter could have been decided by N. I. R. C. As the competent authority under this Act. Section 7-A of the said Act bars the provisions of other Act provided they are contrary to the provisions of that Act. It has -been held in a Division Bench of our High Court as reported in PLD 1978 Kar. 64 that section 7-A of the said Act will not bar the jurisdiction under any other law in a case in which the two provisions do not over lap each other. Recovery 6 of deducted wages under Payment of Wages Act is in no way contrary to the provisions of that Act. Thus I come to the conclusion that the jurisdiction of the Authority under Payment of Wages Act is not barred under section 7-A of the Pakistan Essential Service (Maintenance) Act, 1952.
8. It is also contended on behalf of the appellant that Superintending Engineer being the employer and person authorised to promote the respondent should have been joined as party and without him the applications could not be allowed by the lower Court. No service rules showing that the Superintending Engineer had the exclusive powers as mentioned above are produced. The two appellants are superior to the Superintending Engineer and they had fixed the pay scales and as such they could legally be said as employer under sections 15(3), 3 and 19 of the Payment of Wages Act. This objection of the appellant regarding not joining necessary party therefore cannot be accepted.
9. The jurisdiction of the Authority is also challenged on the ground that the respondents were civil servants by virtue of W. P. WAPDA Amendment Ordinance, 1975 for the purposes of Civil Services Tribunal Act, 1973 and as such the respondents should have filed their claim before the Services Tribunal and the Authority had no jurisdiction to entertain it. In his support the learned counsel for the appellant has relied on a Single Bench ruling of our High Court as reported in WA PDA v.
Presiding Officer, Labour Court No. v. Hyderabad and others (PLD 1979 Kar. 95), to the effect that jurisdiction of the Labour Courts and the Authority under Payment of Wages Act was barred under the said WAPDA Amendment Ordinance, 1975 as the employees of the WAPDA were civil servants.
On the other hand the contention of the respondents is that the respondent's were workmen under Civil Servants Act, 1973 and as such the Authority had the jurisdiction to entertain their claim. In their support they produced a Single Bench ruling of the Lahore High Court as reported in WAPDA, Lahore v. Commissioner for Workmen's Compensation and Authority under the Payment of Wages Act, Lahore and others (1978 PLC 305), in which it was held that the appellant establishment was treated as Factory within the meaning of Factories Act read with section 2(j) of Civil Servants Act and as such applicants were workmen and hence the Authority under Payment of Wages Act had the jurisdiction and the Services Tribunal had no jurisdiction in spite of the WAPDA Amendment Ordinance, 1975.
10. The relevant provision of WAPDA Amendment Ordinance, 1975 is given as under :- "1(B).-Service under the Authority is hereby declared to be service of Pakistan and every person holding a post under the Authority, not being a person who is on deputation to the Authority from any Province shall be deemed to be a Civil Servant for the purposes of the Service Tribunal Act, 1973 (LXX of 1973)."
According to section 2-A of Service Tribunal Act, 1973 "Civil Servants" has the same meaning as in Civil Servants Ordinance, 1973 and that Ordinance is replaced by Civil Servants Act 1973. According to section 2-B of the Civil Servants Act, 1973 it is laid down in sub-clause (3) as under, to the effect that the said persons will not be Civil Servants".
"(iii) A person who is a worker or workman as defined in Factories Act, 1934 or the Workmen's Compensation Act, 1973."
According to the said WAPDA Amendment Ordinance, 1975 the employees of the WAPDA were treated as Civil Servants for the purposes of Services Tribunal Act, 1973 and under the later Act the definition of Civil Servants as given in Civil Servants Act, 1973 is adopted and as such a person who is a worker under clause 2-A (iii) of Civil Servants Act cannot be treated as a servant for the purpose of Services Tribunal Act, 1973 as per WAPDA Amendment Ordinance, 1975. In view of this interpretation of the specific provision of law I am inclined to rely on Single Bench ruling of the Lahore High Court as reported in 1973 PLC 305. It is admitted position that the appellant establishment is treated as Factory under Factories Act and as such the respondents will be workmen and not Civil Servants. Thus I hold that the Authority had the jurisdiction to entertain the claim of wage of the respondents under Payment of Wages Act as they were workmen. The contention of the appellant therefore that the jurisdiction of Authority was barred under WAPDA Amendment Ordinance, 1975 cannot be believed.
11. It is also argued on behalf of the appellant that the respondents applications in the lower Court were time barred for about 4 years: The claim of respondents was for the period from 22-12-1973 to 23-4-1975 in case of Ashiq Ali and from 22-12-1973 to 14-6-1975 in case of Iftikhar Hussain. The applications before the lower Court were filed on 28-5-1977 which is apparently after 3 years but the respondents had previously filed applications on 16-6 76 which were withdrawn on 25-5-1977 with permission to refile them. This fact is not a denied by the appellant. Thus the first applications appears to be within limitation period of 3 years as required under the proviso of section 15(2) of the Payment of Wages Act. As detained above the respondents had first approached the civil Court and then Service Tribunal which shows that they were taking steps to get redress from the competent Court. The respondents has also made an application for condonation of the delay under section 5 of the Limitation Act before the lower Labour Court which was allowed and thus the Authority had legally condoned the same. Even if there were some delay of few days. The learned Advocate for appellant has relied on ruling reported in PLJ 1973 Quetta 129 and PLD 1973 Kar. 6181 in which it was held that each day's delay in filing the matter must bet explained. As discussed above I do not find any delay in filing first appli--cations and a few days delay after withdrawal of the first applications with I permission to refile must have been made in due course and applicants, cannot be treated as time barred and if the same is treated as delay it is already condoned by the lower Court. Thus I come to the conclusion that the applications under section 15 of the Payment of Wages Act filed by the respondents before the Authority were not time barred.
12. In view of the aforesaid discussion of the facts and the law I come to the conclusion that the Authority under Payment of Wages Act has rightly and legally allowed the applications and claims of delayed wages and compensation as given above. The appellants have failed to establish that the orders of the lower Court were not justified on law and facts. Consequently both the appeals are not maintainable and the same are dismissed.