' ABDUL GHIAS NOUSHERWANI (MEMBER).--- The appellant challenged the judgment dated 28-3- 2013 in case P/W Appeal No,1 of 2012 passed by Learned 3rd Labour Court Balochistan at Hub wherein dismissed appeal under section 17 of the Payments of Wages Act, 1936 and maintained the order of Authority.
2. The background of the instant appeal are that the appellants were employed with the respondent No,3 who were removed from their services on 1st January 2005 against which application under section 46 of IRO, 2002 was submitted before Learned Labour Court at Hub and the same was allowed by means of older dated 31-3-2007 and directed the respondent No, 3 to reinstate them with full back benefits. It is pertinent to mention here that against above mentioned judgment no appeal/revision filed by the respondent company. However they were reinstated without payment of back salary/benefits. For this purpose the appellant approached the same Learned Labour Court under section 62 of Industrial Relations Ordinance, 2002 for recovery of back benefits but it was dismissed vide order dated 29-2-2008 with directions to approach the Authority under the Payment of Wages Act. Being aggrieved by the above order filed revision petition before honorable High Court of Balochistan and it was disposed of by means of order dated 1-7-2008 where the revision was not pressed therefore it was withdrawn and dismissed. Thereafter the appellant filed revision petition which was disposed of on 3-3-2011 wherein this Tribunal sent the matter of both parties to the Authority of Payment of Wages Act (herein after referred as Authority) to compute the back-benefits in view of judgment of Learned Labour Court dated 31-3-2007. The Learned Authority computed the wages and the appellant being aggrieved challenged the order of Authority before Learned Labour Court and the same was dismissed maintaining the order of Authority.
3. The learned counsel for respondent at the very outset challenged the maintainability of revision petition on the averment that this Tribunal is appellate Tribunal having no jurisdiction in respect of revision. In support of his contention he submitted a reported judgment of Honorable Supreme Court of Pakistan in PLD 1981 Supreme Court 282. On the other hand the learned counsel for petitioner strongly opposed and referred section 55 subsection (4) of BIRA, 2010 and a reported judgment of honourable Karachi High Court reported in 2003 PLC 16.
4. The learned counsel for respondent referred the authority of honorable Supreme Court of Pakistan the operative portion is reproduced as under:--- "(b) Payment of Wages Act (IV of 1936)--- ---Ss. 15 & 17 (c)----Word "Finality" in S.17(c) of Act IV of 1936----Meaning---Finality attaching to order of Authority under S. 15 of Payment of Wages Act, 1936----Means that order of Authority can be challenged only by way of appeal to District court and not otherwise---No limitation however placed in respect of appellate order made by District Court as ordinarily constituted in which capacity such District Court subordinate to High Court.---[words and phrases]."
' The facts and circumstances of above mentioned authority are quite different and further that the word used "District Court" later on substituted as Labour Court. After above-mentioned decisions many other Labour Laws has been introduced for instance section 17 subsection (1-A) of Payment of Wages Act, 1936 is very important which is reproduced as under:-- "[(1-A) All appeals pending before any District Court under this section immediately before the commencement of Labour Laws (Amendment) Ordinance, 1974 shall on such commencement stand transferred to, and be disposed of by the Labour Court within whose jurisdiction the cause of action to which the appeal relates arose]"
5. Furthermore subsection (4) of section 55 of BIRA, 2010 empowers this Tribunal with regard to revision petition and the same is reproduced as under:-- "The Tribunal may, on its own motion at any time, call for the record of any case or proceedings under this Act in which a Labour Court within its jurisdiction has passed an order for the purpose of satisfying itself as to the correctness, legality, or propriety of such order, and may pass such order in relation thereto as it thinks fit"
' In view of above quoted law the revision petitions against the judgment/order of Learned Labour Court can be challenged before this Tribunal. Furthermore the learned counsel for petitioner referred an authority of Honorable Karachi High Court in 2003 PLC 16 the operative portion is as under:--- "Payment of Wages Act (IV of 1936)-- ----Ss. 15(2) & 17---Industrial Relation Ordinance (XXIII of 1969), S.38(3-a)---Constitution of Pakistan (1973), Art.199---- Constitutional petition---Deduction from dues---Appeal against--- Suo motu revisional jurisdiction of Labour Appellate Tribunal, exercise of---Employee who was to retire in 1982 after attaining superannuation age of 60 years, continued to work and draw salary etc. upto 1984 due to manipulation in his service record concerning his date of birth---On detection of said manipulation, employer deduct amount of over stay of two years from dues payable to employee---On filing application against said deduction under S.15(2) of Payment of Wages Act, 1936, Authority under Payment of Wages declared the said deduction as illegal and held the employee entitled to wages without deduction and also granted compensation for said illegal deduction---On filing appeal by employer against such order same was set aside by Labour Court---On filing revision against order passed by Labour Court, Labour Appellate Tribunal allowed the application of employee and set-aside order passed by Labour Court and restored the order passed by Authority---Validity---Manipulation, if any was made in service record with regard to date of birth of the employee, in the office of employer as service record was in the custody of employer and not in custody of employee---Said manipulation if allowed the employee to work for a further period of two years, responsibility of said manipulation was equally on the employer and employee who over stayed and worked for two years, was entitled to wages for said overstate period---Labour Appellate Tribunal in circumstances, had rightly set aside order of Labour Court and restored order of Authority whereby employee was held entitled to payment of wages for period of two years that employee over stayed with the employer---Employee was also entitled to refund amount illegally deducted from his dues."Further the honorable Lahore High Court in a reported judgment 2001 PLC 523 held:-- "(a) Payment of Wages Act (IV of 1936)-- ----Ss. 15 & 17---Constitution of Pakistan (1973), Art.199--- Constitution petition---Authority rejected claim of petitioner holding that petition was not competent---Appellate Court set aside order of the Authority and remanded the case---Order of Appellate Court remanding the case having never been challenged, same had attained finality---Such order of Appellate Court thus, could not be questioned in Constitutional jurisdiction of High Court and same could only be challenged either by way of revision before Labour Appellate Tribunal or through Constitutional petition before participating in the remand proceedings which was not done."
' In view of above mentioned law and verdict laid down by Superior Courts the contention of learned counsel for respondent is not sustainable under the law.
6. The learned counsel for respondent again made an attempt in respect of maintainability of instant revision on the averment that revision application was filed under section 55(8) of BIRA, 2010 which is meant for transfer of cases from one Labour Court to another. This objection is also not maintainable for the reason that it is settled principle IC of law that wrong quoting/non- quoting of Sections of law is not fatal whereof petition is liable to be dismissed.
7. The learned counsel for respondent referred a reported judgment of Balochistan High Court reported 2011 PLC 286 wherein held that such long period of a person being jobless is not recognized. From perusal of above mentioned authority it appears that full evidence was recorded but nothing mentioned in evidence that the employees were jobless during their termination. The above observation of honorable High Court of Balochistan has been made after examination of entire evidence. Furthermore the facts and circumstances of the referred case are different from that of in hand and such facts and circumstances will be discussed in coming Paras. Therefore this authority is not favorable to respondents.
8. Admittedly the basic judgment of Learned Labour Court dated 31-3-2007 was not challenge in any forum and the same was implemented to the extent of reinstatement of appellants/applicants. However the appellant/applicant again approached the learned Labour Court for recovery of benefits and the same was dismissed by means of order dated 29-2-2008 wherein the appellants were directed to approach the Authority. The appellant assailed the above- mentioned order before this Tribunal and by consent of the parties the matter was sent to the Authority by means of order dated 3-3-2011 under the Authority Payment of Wages Act to compute the back-benefits in view of judgment of learned Labour Court dated 31-3-2007.
9. The Authority perhaps without going through the judgment of learned Labour Court dated 31-3- 2007 and order of this Tribunal dated 3-3-2011 came to the conclusion as under:--- "At the conclusion, after having heard both the parties and going through the entire record including the written arguments submitted by the parties this Authority decide to compute the back-benefit as per Minimum Wages Ordinance, 1969, which was amended from time to time i,e, w,e,f, 1-1-2005 to 4-8-2007 (including lay off period) plus monthly medical allowance Rs,200 per month."
' The above-mentioned conclusion is totally contrary o the basic judgment of trial court and direction of this Tribunal. The parties/appellant did not approach Authority. Whereof the authority was empowered to compute the back benefits according to their own judicial mind but here in this case matter is quite different for the reason that the matter was sent to the Authority for computing the back benefits of the appellants in the F light of judgment of Labour Court dated 31- 3-2007 the operative portion I of the same is reproduced as under:-- "In view of above mentioned facts and circumstances of the case applications filed by the applicants are hereby accepted, the lay off for the period of 1-1-2005 to 14-3-2005 is declared as illegal and the applicants are entitled for full wages for that period. Similarly their termination was illegal and Respondent Company is directed to reinstate them in service with full back- benefits provided under the law."
'In the light of above judgment the Authority was bound to calculate the back benefits as directed in the above-mentioned judgment where the appellant/applicant was declared to be entitled for full wages of that period. The Authority though referred the above cited judgment but drawn its conclusion for minimum wages. Furthermore this Tribunal sent the matter to Authority for computing the back-benefits in view of judgment of Learned Labour Court and operative .portion of the said judgment is reproduced as under:-- "Thus in the light of above and consent of parties the Authority is directed to compute the back benefits in view of judgment of Labour Court dated 31-3-2007, and appellant shall pay the respondent amount which the authority would decide for the period in which the respondent was remained out of his job."
10. It will be important to mention here that the appellant/ applicant in their application under section 46 of IRO, 2002 read with section 12(3) of Standing Order, 1968 prayed for following relief:--- "(a) Allowed the application,
(b) Holds that lay off for the period of 1-1-2005 to 14-3-2005 is illegal and the appellants are entitled for full wages during that period.
(c) Declare and hold that the termination order are illegal.
(d) Direct the respondent company to reinstatement the applicant with full back-benefits.
(e) Any other relief under the circumstances of the case."
11. In the light of judgment of Learned Labour Court dated 31-3-2007 the all above relief were granted to the appellant/applicant but the Learned Authority as well as Learned Labour Judge perhaps overlooked above-mentioned relief and judgment resulted that Authority calculated the back benefits according to his own and the Learned Labour Court maintain its order which are not sustainable in the eye of law.
12. The Honorable Supreme Court of Pakistan in reported judgment 1994 PLC 388 after quoting the meaning of wages in different law and dictionaries held:--- "'Wages' means all cash remuneration payable to a workman, and includes dearness allowance, house rent, conveyance allowance, and any other fixed allowance, but does not include travelling allowance, gratuity or bonus.
' Now after amendment the definition has been changed as follows:--- 'Wages' means all cash remuneration payable to a workman, and includes dearness allowance, house rent, conveyance allowance, cost of living allowance, special allowances and any other fixed allowance, but does not include travelling allowance, gratuity or bonus."
' Therefore both the orders i,e, Authority dated 23-1-2012 and judgment/order of Learned Labour Court dated 28-3-2013 are set aside. Consequently appeal is partly allowed. The matter is remanded back to Authority to compute the back benefits of appellants strictly according to the judgment of Learned Labour Court dated 31-3-2007 and on principle of last pay drawn by the employees and verdict laid down in above cited authority by honorable Supreme Court of Pakistan.
Further the agreement between the company and CBA be considered which are available on record because the agreements were executed by the Company and CBA for all the Labours. With further direction to dispose of this matter within one month after receiving the copy of this judgment because the matter pertains to the year 2007. However the parties are left to bear their own cost.
13. The copy of order along with original record of trail court be sent to trial court and a certified copy be sent to Authority. Case after completion be consigned to record.