1. ' MUHAMMAD HALEEM, C.J.-- This appeal, by special leave, arises from the judgment of the Lahore High Court, Lahore, dated 6th of June, 1972, by which Civil Revision No, 383 of 1969, was dismissed with costs.
2. ' Leave to appeal was granted to consider:
(a) Whether the order, dismissing the claim under section 15(2) of the Payment of Wages Act, 1936, as time-barred, was appealable under section 17 of the said Act?
(b) Whether the order, on the premises that the application had already been entertained, fell under subsection (3)of section 15 so as to render it appealable under section 17 of the said Act?
(c) As to whether if the claim was time-barred, could the appellate authority and the High Court condone the delay, and pass an order on merits?
(d) Was the compensation awarded permissible in view of the ceiling in subsection (3) of section 15 of the said Act.
3. ' The respondent herein was employed as a Clerk in the Divisional Superintendent's Office, P.W.R., at Multan. His services were terminated by order, dated 28th of November, 1951, which order he challenged by filing a civil suit for declaration wherein he sought relief against the termination of his service. He succeeded and the suit was decreed, but on appeal it was set aside by the District Judge; and in second appeal, the High Court restored the order of the trial Court, which was also maintained by the Supreme Court. Accordingly, he was reinstated on 26th of February, 1962, and as he was not paid his wages for the period from 29th of November, 1951 to 26th of February, 1962, he filed an application under section 15(2) of the Payment of Wages Act before the Authority claiming a sum of Rs,18,236 as delayed wages and Rs,9,118 as compensation. The appellant resisted the claim on the ground that it was time-barred; and on merits it was averred that the withholding of the wages was justified as according to the existing rules and regulations. The authority framed two issues, the first related to the question of limitation-and the second as to whether the withholding was illegal. The Authority gave its finding on the second issue first in the affirmative, i,e,, that the withholding of the wages was illegal, but on the first issue again held that the application was hit by the bar of limitation and it also found no sufficient cause for condoning the delay in filing the application.
4. ' In appeal, the District Judge held that as no definite reply was given to the representations of the respondent, the cause of action did not arise for seeking a legal remedy, and, therefore, the delay was liable to be condoned. The case of General Manager, P.W.R. v. Sher Muhammad PLD 1966 W.P.
5. Kar. 483, was distinguished on the ground that as the respondent was not a party to the case hence what was decided therein qua the bar of limitation did not apply to his case. In the result, the appeal was allowed.
6. ' In Civil Revision, the High Court surmounted the bar of limitation upon holding that as the application was already entertained, in that, the written statement was filed, issues were struck and a finding given on the merits of the claim, therefore, the claim fell under subsection (3) of section 15, and hence the order passed by the Authority was appealable under section 17 of the Act. The High Court also held that there was sufficient cause for the condonation of delay because of the time spent in litigation and thereafter in making representations.
7. ' Having regard to the nature of the controversy, it will be necessary here to reproduce subsection
(2) and (3) of section 15 and section 17 of the Payment of Wages Act: "15(2). Where contrary to the provisions of this Act any deduction has been made from the wages of an employed person, or any payment of wages or of any dues relating to provident fund or gratuity payable under any law has been delayed, such person himself, or any legal practitioner., or any official of a registered trade union authorised in writing to act on his behalf, or any inspector under this Act, or of any heirs of an employed person who has died or any other person acting with the permission of the authority appointed under. Subsection (1) may apply to such authority for direction under subsection(3): ' Provided that every such application shall be presented within (three years) from the date on which the deduction from the wages was made or from the date on which the payment of the wages was due to be made, as the case may be: ' Provided further that any application may be admitted after the said period of (three years) when the applicant satisfies the authority that he had sufficient cause for not making the application within such period.
(3) When any application under subsection (2) is entertained, the authority shall hear the applicant and employer or other person responsible for the payment of wages under section 3, or give them an opportunity of being heard, and, after such further inquiry (if any) as may be necessary, may, without prejudice to any other penalty to which such employer or other person is liable under this Act, direct the refund to the employed person or, if the applicant is one of the heirs of an employed person the payment to such applicant, of the amount deducted, or the payment of the delayed wages, together with the payment of such compensation as the authority may think fit, not exceeding ten times the amount deducted in the former case and not exceeding ten rupees in the latter".
8. "17. Appeal.--(1) An appeal against a direction made under subsection (3) or subsection (4) of section 15 may be preferred within thirty days from the date on which the direction was made before the Labour Court constituted under the Industrial Relations Ordinance, 1969 (XXIII of 1969) within whose jurisdiction the cause of action to which the appeal relates arose.
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10. 17(2) Save as provided in subsection (1), any direction made under subsection (3) or subsection (4) of section 15 shall be final."
11. ' The first proviso to subsection (2) of section 15 lays down the limitation within which the application has to be filed whereas the second proviso authorises the condonation of delay for sufficient cause. Subsection (3) provides the procedure to be followed where an application under subsection (2) is entertained. Section 17 provides for an appeal against the direction mace under subsection (3) or subsection (4) of section 15. Here what is omitted is an appeal against an order refusing to entertain an application on the ground that it is barred by time or for sufficient cause the delay is condoned. The intention of the Legislature seems to be in that case where the application is beyond time and the authority fails to condone the delay under the second proviso to subsection(2), no appeal shall lie against that order under section 17. On the same footing where the delay is condoned still no appeal would lie on that ground and the matter would be liable to be adjudicated upon in the manner laid down by subsection (3). If this would not have been the intention a provision would have been made in section 17 as in the case of directions made under subsections(3) and (4). Clearly, therefore, an order dismissing the application as being barred by time or condoning the delay for sufficient cause does not qualify as a direction to make it appealable under section 17.
12. As to what the opening sentence of subsection (3) connotes, there can hardly be a doubt as to its meaning. The word "entertain" in legal parlance means 'adjudicate upon' or 'proceed to consider on merits'. This can only be achieved if the application is not hit by limitation for that closes the door for entry, into the field of an adjudication or decision on merits. Therefore, the prerequisite for entertianing an application under subsection (2), which is hit by limitation, is to first deal with the question of delay and its condonation if sufficient cause is shown. It is then that the authority has the jurisdiction under subsection (3) to proceed to deal with it on merits.
13. ' Merely hearing the other side in the wake of the incompetency due to limitation and hence giving to the party an opportunity to show sufficient cause for condoning the delay would not mean that the application was "entertained" under subsection (3) in the context of the adjudication of controversy or. Merits as the authority was by reason of the proviso enjoyed to resolve the question of limitation first. The High Court, accordingly, fell into an error when it gave the finding that it was not a case under subsection (2) but under subsection (3) of section 15 of the Act. Again the decision of question as to whether the application was barred, and there was no sufficient cause to condone the delay was not further justiciable for the reasons pointed out earlier, and both the appellate and the High Court again fell into an error in condoning the delay, which question was solely for the consideration of the authority and its decision was final. The authority also fell into an error when it gave its decision on merits before settling the question of limitation as it could not have done so without first condoning the delay. In this connection I would refer to the decisions of the Indian Jurisdiction which also hold that an order in terms of the provisos is not a direction and is not appealable.
14. ' In Prem Narayan v. Divisional Traffic Manager AIR 1954 Bom. 78, section 17 was construed and it was held: "The powers of the appellate Court under section 17 are confined to hearing an appeal from a direction made by the Authority under subsection (3) or subsection (4) of section 15"; ' and that an order condoning the delay under subsection 15(2) was not a direction but an order and no appeal lay against it.
15. ' In the Madras Provisional Type Foundry Workers Union v. Ramalinga Mudaliar AIR 1957 Mad. 68, it was held: "That the right of appeal arises only if the authority enters into the merits of the application and holds either in favour of the employer or employee."
16. ' In Khema Nand v. East Indian Railway AIR 1943 All. 243, it was held that there was no appeal against an order rejecting the application as time-barred under section 15. Hence the dismissal of application on the ground of limitation would not be regarded as being "entertained" as visualilsed by subsection (3).
17. ' The learned counsel for the respondent merely stated that the State should not plead limitation against a citizen, but upon what general principle does it rest, he was unable to say. Further he was not able to advance any legal argument against the proposition under consideration.
18. ' In view of or decision on the first question, it is not necessary to examine the others.
19. ' For all these reasons, we are of the view that this appeal must be allowed, and while setting aside the impugned orders, we restore the order of dismissal of the application by the authority, but with no order as to costs.