This revision petition under Section 115 C.P.C. is directed against the judgment and order dated 11.09.2008; whereby learned Additional District Judge-IV, Haripur dismissed the appeal of petitioner and maintained judgment and order dated 19.07.2007 passed by learned Civil Judge. Haripur by returning plaint under Order VII, Rule 10 CPC.
2. Petitioner instituted a suit for declaration to the effect that he has a lawful right of adjustment/promotion/re-designation in SPS-IV a grade in non-technical cadre w.e.f. 22.12.1991 with protecting gross salary at his transfer from P.M.T.F. to H.E.C./Defendant No. 1 as well as for further promotion in executive pay scale EPS-1 w.e.f. 15.07.1998 and in executive pay scale (EPS-11) w.e.f. 26.01.2000 instead of his promotion on the said .dates in SPS-II and SPS-III with all wages, allowances and benefits of the said scales. Respondent appeared and contested the suit. The learned Civil Judge-IV Haripur after hearing the parties vide judgment and order dated 19.07.2007 returned the plaint to the plaintiff under Order VII, Rule 10 C.P.C. Feeling aggrieved, petitioner preferred appeal which also met the same fate vide impugned judgment and order. Hence, this revision petition.
3. Learned counsel for petitioner contended that neither the petitioner is a civil servant under Civil Servant Act, 1973 nor a workman but both the Courts below have failed to appreciate the legal proposition involved in the case and wrongly returned the plaint under Order VII Rule 10 CPC. It was further argued that the appellate Court has wrongly held that period of limitation for making recourse to avail proper remedy within 90 days would accrue from the date of decision of Federal Tribunal and not from dismissal of appeal by Supreme Court. It was concluded that petitioner's case was not covered under .Section 15 of Payment of Wages Act. Suit for declaration was competent and both the Courts below were not justified to return the plaintto the petitioner.
4. On the other hand learned counsel for respondent supported the impugned judgments and orders. He argued that respondent/ factory is a statutory body and petitioner's appeals was rightly dismissed by the Federal Services Tribunal and the apex Court. It was also argued that suit was not maintainable and was rightly turned down by the Courts below on the question of jurisdiction and limitation.
5. Arguments heard and record perused.
6. Admittedly, the plaintiff preferred appeal under Section 4 of Service Tribunals Act, 1973 before, Federal Service Tribunal but the same was dismissed vide judgment dated 18.09.2003. The petitioner preferred CPLA No. 396 of 2006. Leave was granted but subsequently Supreme Court of Pakistan on 01.11.2006 dismissed the appeal. Thereafter petitioner filed declaratory suit on 15.12.2006.
Petitioner is neither a civil servant under Civil Servant Act, 1973 nor a workman under the Labour Laws.
7. Two questions; one relating to limitation and the other to jurisdiction are required to be resolved for the purpose of just decision of the case in hand. Learned counsel for petitioner has invited the attention of this Court to the order of apex Court dated 01.11.2006 which reads as under:-- "Learned counsel for the appellant states that in view of judgment of this Court in Muhammad Mubin-ul-Islam and others Vs. Federation of Pakistan and others (PLD 2006 SC 602), the appeal is abated. Accordingly the appeal stands dismissed. However, the appellant can seek remedy before appropriate forum, if so advised."
It is thus more than clear that the period of 90 days as provided in a the dictum laid down in PLJ 2006 SC 1372 would run from the date of 01.11.2006 when the appeal stood abated and accordingly dismissed and not prior to the date of dismissal of appeal. The suit filed by, the petitioner before Civil Court is held well within time
8. Now taking up the question of jurisdiction as to whether a declaratory suit filed under Section 42 of Specific Relief Act read with Section 9 C.P.C. was competent or the claim of petitioner could be adjudicated by an authority under Section 15 of the Payment of Wages Act, 1936, it would be advantageous to seek guidance from various judicial precedents.
In the case of Rand Usman Ali and another Vs. 'National Bank of Pakistan (1982 CLC 1234) it was held that "under Section 42 of the Specific Relief Act a declaration can be granted to any person entitled to any legal character or to any right to any property or legal status. The position, office, rank, grade or pay and the benefits arising from such office are treated foundation of an employee's right. If there is any change in the condition of service or rank and grade and such variation is to the detriment of such employee, then his legal character is affected. In such circumstances a declaration can be sought. Reference can be made to the case of Pakistan Vs. Muhammad Abdul Qaddus. In the case of District Board Lahore Vs. Agha Muhammad Khan (PLD 1957 Lahore 781), it was held that the office which a person holds, his rank as well as the grade of pay to which he is entitled, are all parts of his legal character for they are personal attributes of a person which are the foundation of his rights".
In another case Khawaja Muhammad Akbar and 5 others Vs. Khawaja Fateh Muhammad and 15 others reported in 1993 MLD 76, it was held that question of jurisdiction is to be decided on the basis of averments contained in the plaint and not on the averments contained in the written statement.
While determining jurisdiction, Court has to look into the cause of action and nature of claim brought before it by plaintiff.
In the case of Divisional Superintendent, Pakistan Railways Lahore Vs. The Authority under Payment of Wages Act, Lahore (1981 PLC (CS) 42) it was observed in para 25 of the judgment as under :- "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 or another. The Authority has jurisdiction to decide what actually terms of the contract between the parties were, that is to say, to determine the actual wages. The Authority would have jurisdiction to construe the contract in order to determine the liability of the employer to pay wages. 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 employer to pay wages. But when the employer and the employees come before him and 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 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 this 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. But when the very basis of the relationship is in dispute and in controversy, the Authority which is a Court of summary jurisdiction would have no 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 as recreation allowance during recreation leave and whether pay/wages during the recreation leave would also include running allowance admissible to "running staff'.
The Supreme Court in a case of Lawrencepur Woollen and Textile Mills Ltd. Vs. Government of the Punjab and others reported in PLD 2004 Supreme Court 416 has observed "that Authority under the Payment of Wages Act is empowered to exercise certain powers and to take judicial proceedings as are vested in a civil Court under the Civil Procedure Code, 1908 but only for a very limited purpose. Authority does not have inherent powers which are available to a Court of justice.
Authority cannot render binding judgments on complicated questions of law. Process of investigation or adjudicating the claim of certain employees f giving a direction for payment of wages is not a trial of suit at law".
9. Keeping in view the dictum laid down by the superior Courts and being conscious of the maxim "ubi jus ibi remedium" (where there is a right there is a remedy), I am of considered view that both the Courts below erred in law by returning plaint to the petitioner and not adjudicating the matter on merits in accordance with law.
10.Consequently, this revision petition is allowed, impugned judgments and orders of both the Courts below are hereby set-aside and case is remanded back to the trial Court for decision on merits in accordance with law.