1. This is an application from Muhammad Nizamuddin son of Abdul Qadir under the Payment of Wages Act against the Divisional Superintendent, P. W. R., Lahore for the refund of Rs. 25 deducted from his monthly wages by the respondent and compensation amounting to ten times of the deductions. The petitioner also filed an application for grant of stay against the respondent forbidding him to make further deductions pending the decision of the case. My predecessor vide his order dated 3-8-1965 issued a stay order directing the Railway Administration not to make any deductions from his monthly wages and framed the following four issues:-
(1) Whether there was an express entrustment of the goods to the petitioner within the meaning of section 7, subsection (2), clause (c) of Payment of Wages Act, 1936 if not, what is its effect. O. P. X.
(2) Whether the respondent was legally justified to deduct the amount in dispute. O. P. R.
(3) Whether the petitioner took all precautionery measures in the matter to prevent the damage to the consignment and also the claim against the Railway Department.
(4) Relief.
2. Briefly the facts of the- case are that the petitioner Muhammad Nizamuddin was employed as a goods clerk drawing Rs. 175 p.m. On 5-8-1963 a consignment of jute matting and carpets was received by him for booking. While the consignment was still lying on the railway station, it was damaged by rain and the sender firm who bad brought the consignment, claimed damages from the Railway Authorities and received Rs. 1,0C0 from P. W. R. The respondent imposed a penalty of Rs.
3. 500 on the petitioner and started making deductions from his monthly wages at the rate of Rs. 25 p.m. Aggrieved of the order the applicant filed this application in the Court under the Payment of Wages Act. That applicant produced two witnesses and after making his own statement before the Court, closed his evidence. The respondent produced only two witnesses and in spite of the under- -taking given by him to the Court on 2-2-1966 to produce more evidence, he abruptly closed his case on 26-2-1966. The parties then filed written arguments in the Court.
4. I have gone through the evidence produced by the parties and have also read the written arguments filed by them. In his statement the petitioner has stated that on 5-4-1963, he booked 26 Rolls of jute matting and carpets for Sargodha. Due to the non-availability of labour he could not despatch the consignment. He obtained a risk-note on Form A from the sender to the effect that the bundles were insecurely packed and that "the contents were liable to damage, get loose, shortage, and wastage". It is Exh.P-5 on he file. In his statement the applicant has stated that it was the responsibility of the Goods Supervisor to arrange for the labour. He has produced Exhs.P-2, P-3 and P-4, showing that he sent a memo for the supply of the labour for loading but the Labour was not supplied to him with the result that the consignment was damaged due to rain. The Railway Department paid Rs. 1,000 as damage to the sender and the petitioner was directed to pay Rs. 500 by instalment at the rate of Rs. 25 each. The petitioner has also alleged that no enquiry was held against him by the respondent before this penalty was imposed on him. He has stated that he was charge-sheeted afterwards and in view of risk-note Exh.P-5 obtained from the sender, the Railway Department was not liable to pay him any damage. He has produced M. Nazir Hussain Commercial Inspector, P. W. R., Lahore (P., W. 1) who has stated that the Labour goods shed was within his jurisdiction for the purposes of enquiries. He bas stated that he made an enquiry in respect of this consignment and made his report Exh. P-1 and discussed the matter with the A. T. O. and brought to his notice that the number of coolies working in the shed, were inadequate, insufficient and not commensurate with the sanctioned- strength: The respondent has produced only two witnesses. Mr. Walayat Shah, Goods Supervisor has stated that as Goods Supervisor, his duty was general supervision over the staff, goods, and transit working. He has stated that the Loading Clerks were working under him and their duty was to accept packages for despatch as early as possible. In case the packages were not despatched these were to be kept in safe custody. In his cross-- examination this witness has stated that he was not Goods Supervisor in the month of August. He has stated that he was not aware of the labour position and other conditions prevailing in August 1953. This defence witness has also stated in his cross-examination that this case did not occur in his time and he was not aware of the facts.
5. On the other hand he has supported the petitioner by stating that the booking is stopped when there is extraordinary congestion in the goods sheds. The only other defence witness named M.
6. Sirajuddin, Goods Supervisor has stated that he was outward incharge in the Goods Sheds, Lahore in August 1963. He- has stated that the duty of the petitioner was to receive and despatch the goods and keep them in safe custody. To a Court question this witness has stated that it was wrong to say that there was no space in the sheds at the time the jute matting was booked by the petitioner. In his cross-examination this witness has stated that according to Exh. D-I, which was his duty sheet, his job was to see that all booked packages were despatched daily. He has further stated that whatever complaint or memo. was received from the petitioner, the same was forwarded to the Goods Supervisor. He has admitted that he did not take any action for the clearance of the booked packages. As this defence witness made contradictory statement before the Court he was asked to clarify his position. He replied that as two years had passed, he had no clear memory about the case. This means that he came to the Court to make the statement without clear memory and consequently he made contradictory statements. If he had no clear memory about the case he should not have come to the Court to make any statement. The conduct of the respondent in bringing him to the Court is very objectionable. The respondent closed the defence abruptly in spite of the statement of his representative in the Court that he will produce more evidence in his defence.
7. It is proved from the evidence that the Goods Supervisor was overall incharge of the loading-work and it was his job to see that the consignment were cleared daily. It was his job to supply labour to the Goods Clerk for loading the consignments. The risk-note Exh. P-5 clearly shows that the petitioner booked the consignment at the risk of the sender as the bundles were insecurely packed and were liable to be damaged. There is sufficient evidence on the file to show that the goods sheds wet congested and the supply of labour for loading was insufficient. Consequently Issues Nos. 1, 2 and 3 are decided against the respondent. I, therefore hold that the respondent was no justified in imposing the penalty of Rs. 500 on the petitioner and I order that the deductions made from his monthly wages before the issue of stay orders by this Court should be refunded to the petitioner. The order passed by P. W. R. in this case imposing penalty of Rs. 500 on the petitioner is declared null and void. No compensation is awarded to the petitioner for the deduction and the parties should bear their own costs.