' The events and circumstances leading to the filing of this writ petition impugning the validity of the order of the Authority under the Payment of Wages Act, 1936 (IV of 1936), Faisalabad, respondent I, dated the 31st January, 1981, directing the petitioner to pay Rs, 7,151.93 as wages plus Rs, 2,848.07 as compensation, in all Rs, 10,000.00 to respondent 3 and of the Punjab Labour Court No, 5, Faisalabad, respondent 2, dated the 2nd July, 1981, dismissing the petitioner's appeal against the first mentioned order, may be shortly described as follows. Mst. Anwari Khatun, petitioner, is the proprietress of Noorani Cotton Factory, Toba Tek Singh. The factory was on lease with another firm, Noorani Cotton Corporation, from the 1st October, 1973. Jamil Ahmad, respondent 3, was employed as manager (commercial accountant) by Noorani Cotton Corporation. On the promulgation of the Cotton Ginning Control and Development Ordinance, 1976 (XXVI of 1976), the Government of Pakistan took over the factory on the 17th July, 1976, and handed it over to the Cotton Trading Corporation of Pakistan Limited, respondent 4. Respondent 3 continued to serve the factory till May, 1977, when he was transferred by. Respondent 4 to Javid Cotton Factory, Jhang, respondent 5, where be served till the 9th October, 1977. In the meantime Noorani Cotton Factory was restored to the petitioner on the 19th September, 1977, just after coming into force of the Cotton Ginning Control and Development (Repeal) Ordinance, 1977 (XXXI of 1977).
2. While working in Noorani Cotton Factory respondent 3 was receiving Rs, 500 as basic pay and Rs, 400 in lieu of fringe benefits including rent free house, electricity, medical allowance, etc., per mensem at the time the factory was taken over by the Government. His salary was reduced to Rs, 320 and he was given Rs, 308 per mensem to cover the fringe benefits during the time Noorani Cotton Factory and Javaid Cotton Factory were running under the aegis of respondent 4. Claiming, on the basis of the guarantee given by the provisions of section 16 of the Cotton Ginning Control and Development Ordinance, 1976, to be entitled to receive while serving respondent 4 the same pay and allowances he was getting when the factory had been acquired by the Government the respondent 1 to recover the amount by which his pay and allowances had been reduced from the 17th July, 1976, to the 9th October, 1977. Respondent 1 held the petitioner, vide order of the 31st January, 1981, to be liable to pay respondent 3 Rs, 7,151.93, which it considered to have been illegally deducted from his remuneration. It further directed the petitioner to pay Rs, 2,848.07 as compensation to respondent 3.
3. The petitioner's appeal against the order of respondent 1 to the Punjab Labour Court No, 5, Faisalabad respondent 2, being out of time by six days was dismissed by respondent 2. As the provisions of section 5 of the Limitation Act, 1908, were not applicable to the appeal delay could not be condoned.
4. Since the Punjab Labour Appellate Tribunal was not in existence and functioning the petitioner invoked the extraordinary jurisdiction of this Court to impugn the legality of the orders of respondents 1 and 2.
5. The main grievance of the petitioner was that respondent 3 had not served Noorani Cotton Factory beyond May, 1977, and, therefore, she could not be burdened with the liability of payment of his remuneration due for any period thereafter. Admittedly respondent 3 ceased to serve Noorani Cotton Corporation after May, 1977. He remained in the service of Javaid Cotton Factory, respondent 5, from May, 1977, to the 9th October, 1977, and thereafter, never joined Noorani Cotton Factory. In these circumstances by no provision of any law the petitioner can be made answerable for any pay and allowances to which respondent 3 was entitled for the period after May, 1977. The order of respondent 1 making the petitioner pay to respondent 3 salary and allowances due for the period after May, 1977, when he did not perform any service for Noorani Cotton Factory or the petitioner is clearly unlawful and cannot stand the test of scrutiny by this Court. However, as respondent 3 was to get the same emoluments which he was drawing when Noorani Cotton Factory was nationalized, the petitioner is bound to pay him enquivalent to the deductions made from his original salary and allowances from the 17th July, 1976, upto May, 1977. This amount come to Rs, 2,856.
6. There remains to be settled the question of maintainability of the writ petition in view of the petitioner's failure to avail of the remedy of appeal within time. The learned counsel for the petitioner contended that at the tail end of the trial of respondent's 3 application before respondent 1 the petitioner's husband died (which fact is correct) and due to the grief that befell the petitioner, she lost contact with her ounsel and could not get information touching announcement of the impugned order by respondent I in time and that as soon as she came to know of the decision she acted post haste to file appeal before the Labour Court. Relying upon the observations in Ferris' Law of Extraordinary Legal Remedies at page 186 that where the law gives an appeal, and the party is deprived of it without any fault or negligence on his part, certiorari will lie in lieu of or as a substitute for an appeal, if there is shown to be, in addition to such cause, meritorious case, the learned counsel argued that the petitioner did not exhibit any negligence in pursuing the remedy of appeal and that as the order of the Authority directing payment of amount of Rs, 10,000 by the petitioner to respondent 3 was patently unlawful, the same could be struck down to the extent it was invalid. To appreciate the petitioner's stand it may be advantageous to refer to the proceedings of respondent 3's application before the Authority after the conclusion of the parties' evidence. On 26th October, 1980, the bearing of the application was adjourned to the 11th November, 1980, for arguments. Respondent 2's counsel was heard on the last mentioned date and for hearing arguments of the counsel for the petitioner and other respondents the case was adjourned to the 29th November, 1980. The petitioner's counsel sought another adjournment on the ground that the petitioner's husband had died. After hearing arguments on the 21st December, 1980, the case was adjourned to the 5th January, 1981, for announcement of judgment. As the Authority could not write order the case had to be adjourned to the 19th January, 1981, and again to the 31st January,\1981. The perusal of the record indicates that neither the petitioner nor 'her counsel was present on the 5th and 19th January, 1981, when orders adjourning the case were passed, as also on the 31st January, 1981, when the impugned order was pronounced. The Authority did not issue any notice to the petitioner or her counsel giving information of the making of the impugned order. In these circumstances the explanation furnished by the petitioner for not filing the appeal in time appears to be correct. Element of negligence on her part in matter of filing appeal against the order of the Authority is missing. Therefore, the impugned order in so far as it has been passed by the Authority in excess of its jurisdiction causing manifest injustice to the petitioner can be declared to be unlawful by this Court in its extraordinary jurisdiction.
Consequently the impugned order obligin the petitioner to pay any amount exceeding Rs, 2,856 to respondent 3 I declared to be unlawful and of no legal effect. The parties are left t bear their own costs.