' This petition under Article 199 of the Constitution calls in question the legality of orders dated 13-9- 1975 and 24-5-1975, passed by respondents Nos, 1 and 2 respectively, whereby respondents 3 to 6 were held entitled to payment of gratuity, and direction for payment was made to the petitioner.
2. Briefly stated, the relevant facts of the matter are that respondents 3 to 6 were employed in Warcha Salt Mines, Sargodha, as registered miners till the transfer of their miner books, as envisaged under Standing Order 5, of Miners Standard Orders, 1955, on the dates mentioned hereunder:- {{TABLE }} Name Date of trans. Of Miner Book Hashim Ali 2-11-1971 Muhammad Khan 22-12-1970 Boota Khan 15-1-1971 Muhammad Yousaf 5-8-1971 {{TABLE}} ' The transfer regarding their miner books were allowed by the petitioner with direction that provident fund lying to their credit would be paid to them. Respondents 3 to 6 filed separate applications before respondent No, 2 for payment of gratuity at the rate of one month's salary for every year of service rendered by them under the provisions of the Payment of Wages Act, 1936, which were allowed by respondent No, 2, and vide his orders dated 24-5-1975 direction for payment of the amount of gratuity determined was issued to the Management. The petitioner assailed the aforementioned orders in for separate appeals under section 17 of the Payment of Wages Act, 1936, which were dismissed on 13-94975 by respondent No. 1.
3. Learned counsel for the petitioner contended that the applications of the respondents Nos, 3 to 6 were manifestly barred by time, but respondents Nos, 1 and 2 did not decide the point of limitation in accordance with law. It was further submitted that the authority under the Payment of Wages Act had erroneously assumed jurisdiction in the matter. It was pointed out that when respondents Nos, 3 to 6 were permitted to transfer their miner books admittedly in the year 1970-71, the limitation for making application under section 15 of the Act was six months from the date on which the deduction from wages was made, or payment of wages was due to be made. The amendment in the Act extending the period of limitation to three years came into force on 28-10-72 by virtue of the Payment of Wages (Amendment) Ordinance, 1972, and by that date six months had already expired in the cases of respondents Nos, 3 to 6, as such they could not claim the benefit of the amendment in the law extending the period of limitation. It was argued that the amendment did not apply retrospectively so as to deprive the petitioner of a right already accrued in its favour, it was pleaded that in any case, Muhammad Khan and Boota Khan transferred their miner books on 22-10-1971 and 15-1-1971, whereas they filed application before the Authority in the month of March, 1974, admittedly after the lapse of three years, and their applications were clearly barred by time. It was also submitted that as per definition of "wages" under section 2(vi) of the Payment of Wages Act, gratuity was not included in the definition of wages and the power to adjudicate upon the claims arising out of the payment of dues relating to gratuity payable under the law was introduced by the amendment in section 15 of the Payment of Wages Act by the Ordinance dated 28-10-1972. The amendment not being retrospective, the authority at appointed under the Payment of Wages Act, therefore, had no jurisdiction to decide cases relating to claims of gratuity of respondents Nos, 3 to 6. It was also argued that the only provision of law for payment of gratuity to workmen was under Standing Order 12(6) of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, but under the proviso to the Standing Order 12(6) it was clearly stipulated that where a provident fund scheme had been established by the employer under which the contribution of the employer was not less than the contribution of the worker no gratuity would be payable. It was asserted that since respondents Nos, 3, to 6 had already received benefit of provident fund for every year of service, therefore, they were not entitled to payment of gratuity. It was also argued that the office order dated 6-10-1967 related to payment of gratuity to staff of salt mines and did not relate to registered miners, who3e terms and conditions of employment were regulated by "Standing Orders relating to Miners in Salt Range Division of 1955". It was lastly argued that the gratuity was never paid to registered miners as was apparent from the evidence on the record and also from Demand No, 18 mentioned in the demand notice and from the agreement arrived at between the Management and the workers which was made effective from 31-3-1972, allowing the payment of gratuity to the retiring miners.
4. Learned counsel for respondents Nos, 3 to 6, on the other hand, contended that the office order dated 6-10-1967 endured for the benefit of the miners also, but the Management discriminately deprived them of the amount of gratuity. It was submitted that before the amendment in section 15 of the Payment of Wages Act, the remedy for enforcement of the recovery of the amount of gratuity lay in civil Court, but the Legislature later on provided special forum where claims for payment of gratuity could be instituted and the authority was made competent to award the amount claimed.
5. I have considered the arguments advanced by the learned counsel for the parties, with reference to documents on the tile. It is established that the respondents were permitted the transfer of miner books to their relations during the year 1970-71 and the cause of action to claim gratuity accrued at that time. The law relating to enforcement of payment regarding outstanding dues or delayed payment of the dues by the employer prescribed six months time from the cause of action. Since the respondents did not lodge claim during the period of six months, their applications filed in the year 1974 were clearly barred by time. The amendment in the law, which extended time for three, to lodge claim came into force on 28-10-1972 by virtue of the Payment of Wages (Amendment) Ordinance, 1972, and by that date the period prescribed, I. e. Six months, had already expired, but on the date of applications, the law in force provided three years time for preferring claims.
5. The precise question for determination, therefore, is whether in the circumstances of the case, the general principle that law of limitation as in force at the time of institution would apply for decision, would be attracted, or where the claimants lost their right to institute proceedings on the date when some other law came into force that right could be revived by repeal of the statute and further that the law of limitation being procedural would operate retrospectively.
7. On the point formulated above, it is significant to observe that where the right to sue was already lost on the date when new enactment is enforced that right cannot be revived by the repeal of the statute under which the limitation for institution had already expired. The principle that law of limitation being procedural should be deemed to be retrospective, would not apply where right to sue was already barred before enforcement of new statute relating to limitation. On an identicai point in Mst. Fattan Bi and 2 others V. Fateh Muhammad and 6 others, it was held at page 466:- "Even if there had been any enactment of a fresh statute of limitation after the repeal of Act I of 1920, the principle that law of limitation being a procedural law should be deemed to be retrospective, will not have applicability to a case where the right of suit was already barred before the enactment of such new statute of limitation. As held in Bank of India v. Muhammad Ashraf and others PLD 1965 Kar. 69, the matter is to be decided in accordance with law of Limitation as in force at the time of institution of that matter and not according to law prevailing at the time when cause of action arose. But this principle will apply where the right to institute that proceeding had not become barred on the date when the amended Act was enforced. The principle of law, therefore, is that where a plaintiff or petitioner has lost his right to institute proceeding on the date when some other Act comes into force, that right is not revived by the repeal of the statute under which the limitation for those proceedings has expired."
' It is also noteworthy that the amendment introduced by the Ordinance, 1972 was neither made retroactive in application, nor appeared so by clear intendment and, therefore, cannot be construed retrospective in operation. On this point, the Supreme Court of Pakistan in the case of Income-tax Officer v. Sulaiman Bhaj, held at page 82:- "No rule is more firmly established than the rule with regard to retrospective operation of a statute law. It is a fundamental rule of law that no statute shall be construed to have a retrospective operation unless such a construction appears very clearly in the terms of the Act, or arises by necessary and distinct implication."
The amendment in section 15 of the Payment of Wages Act by Ordinance 1972, being prospective, the claims of respondents Nos, 3 to 6, being already barred by time, respondent No, 2 had no jurisdiction to entertain them. It is also clear that the registered miners were paid provident fund by the employer and proviso to section 12(6) of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, barred the payment of gratuity in such circumstance to them. The miners were never paid gratuity, as is evident from the demand notice served on the Management and the subsequent agreement arrived at between the workers and the employer to make payment of the gratuity to the retiring miners with effect from 31-3-1972. The interpretation of the office order dated 6-10-1967, spelt out by the learned counsel for the respondents, was not convincing because the payment of gratuity in that case related to staff of the Management, whereas the miners were regulated by the terms of Standing Orders relating to miners engaged in Salt Range Division, 1955. Respondents Nos, 1 and 2 did not appreciate the legal implications of the points involvcd in this case and passed orders patently contrary to law.1 2
8. The upshot of the above discussion is that the impugned orders passed by respondents Nos, 1 and 2 are set aside and are declared having been passed without lawful authority and of no effect, in the result, this petition succeeds and is accepted with no order as to costs.
PLD 1974 Lah. 458 PLD 1970 SC 80