The above petition is heard alongwith the other two petitions bearing No, S. 2 and Nos, S. 3 of 1983 involving same questions and are disposed of by this order.
1. The petitioners in the above-mentioned three petitions were posted Pump Driver on 4th December, 1973 but subsequently were assigned duties connected with the generation of electricity. They, therefore, claimed that they became entitled to get generation allowance at 50% of their basic pay like other workers of the respondent No,
1. As these allowances were not paid in spite of repeated requests made by them the petitioners after failure to get grievances redressed through the Collective Bargaining Agents, moved on 17th January,1979 separate applications under section 15 of the Payment of Wages Act, wherein they claimed generation allowances as per details given in the schedule to their respective applications. They all claimed compensation ten times of the deducted payments. It may be mentioned that the petitioners in para. 2 of the their respective application had pleaded that though they were entitled to get generation allowances at 50 % of their wages as other workers have been getting since the date of appointment in the last joint meeting which took place on 28th September, 1978 the Director Labour of the respondent No, 1 agreed to refer the matter to their higher officers but nothing was heard. They also pleaded that despite persistent efforts the respondent No, 1 failed to make the payment of generation allowances to the petitioners since the date same became due to them. They, therefore sought the payment of the amounts claimed in their respective applications filed under section 15 of the Payment of Wages Act.
2. The above three applications came up before respondent No, 3, who by order, dated 12th July, 1980 dismissed them on the ground that the same were not maintainable as the applicants being employees of WAPDA were covered by Pakistan Essential Services (Maintenance) Act, 1952. Against the said orders, appeals were preferred and the appellate Court held that the Authority (the respondent No, 3) has the jurisdiction to try the said applications notwithstanding the provisions contained in the aforementioned Act of 1952. The appeals were thus accepted and with the observation that the petitioners were entitled to generation allowances the cases were remanded to the Authority for deciding the point of limitation and for determination of the amount payable to the petitioners as generation allowances.
3. Pursuant to the order of remand the respondent No, 3 (the Authority under the Payment of Wages Act) heard the parties and by order passed on 8th July, 1981 while observing that there was no delay and that the delay (if any) the same could not be laid at the door of the petitioners held that the applications made by the petitioners were not barred by time. It was further held that the petitioners were entitled to generation allowances from the date they worked as Pump Drivers.
Thus allowing the said applications the respondent No, 3 Authority directed the respondent No, 1 (WAPDA) to deposit the amount in the three cases filed by the petitioners (employees) as follows :-
(1) In C. P. S. 183 Rs, 8,830.98 for the period from 4th December, 1973 to 31st March, 1978 at Rs, 145 per month i. e. 50% of Rs, 290 per month. The petitioner was also allowed compensation at two times i. e. Rs, 17,661.92 besides directing payment of Rs, 100 as costs.
(2) In C. P. S. 2/83 filed by Hanifullah, the respondent No, 1 was directed to pay generation allowances for the period from 20th December, 1973 to 21st December, 1978 amounting to Rs, 8,756 at Rs, 145 i. e. 50 % of the wages of Rs, 290 per month with compensation two times amounting to Rs, 17,512 besides Rs, 100 as costs.
(3)In C. P. S. 3/83 filed by Mushtaque Ahmed the respondent was directed to pay generation allowances for the period from 20th December, 1973 to 21st December, 1978 Rs, 8,756 i. e. 50% (Rs, 145) of the wages of Rs, 290 per month with compensation at two times i. e. Rs, 17,512 besides Rs, 100 as costs.
4. Against the above orders the respondent No, I/WAPDA filed appeals on 15th August, 1981. It may be mentioned that the petitioners applied for the copies of the impugned orders on 8th July, 1981 which were made ready and delivered on 15th July, 1981. In the meantime on 6th August, 1981 the respondent No, 1 deposited with the respondent No, 3 Authority three cheques representing the amounts payable under the directions given in the orders passed on 8th July, 1981. These cheques were accepted by the Authority and the amounts thereof on their encashment were received by the Authority on 16th August, 1981 when the requisite certificates were issued on 16th August, 1981 to the present petitioners which they tiled with the appellate Court wherein the appeals had already been presented on 15th August, 1981. Relevant it would be to mention here that 14th August, 1981 was a day, when the Courts were closed.
5. The Labour Court No, VI at Hyderabad i,e, the respondent No, 2 heard the appeals. On the objection raised that the appeals when filed on 15th August, 1981 were not accompanied with the requisite certificates, it was observed that the compliance had been made with the requirements of section 17 of the Payment of Wages Act by depositing the cheques on 15th March, 1981 with the Authority who encashed the same on 16th August, 1981. The relevant certificates were thus issued on 16th August, 1981 which were filed in the appellate court on the same day. It was accordingly held that no blame could be placed upon the respondent No, 1 (WAPDA), who therefore could not be penalized for the alleged delay in issuance and producing the certificates dated 16th August, 1981 in appellate Court on the same day. Having observed as above the respondent No, 2 held that the applicants (employees) were entitled to generation allowances which were also given to the staff connected with the generation of the electricity.
' The respondent No, 2, the appellate authority, having held as above proceeded to consider the objections raised on behalf of respondent No, 1 that the applications filed before the authority/respondent No, 3 under section 15 of the Payment of Wages Act were not within time. The respondent No, 2 disposed of the said objections raised on behalf of respondent No, 1, with the observation that the applications for the period beyond 20th January, 1976 were barred by time.
Consequently it was held that the applicants were entitled to generation allowances for 3 years preceding the date of filing of the applications I. e. For the period 20th January, 1976 to 20th January 1979 (when applications were made) at the rate of Rs, 145.
' It was further held for the reasons given in the impugned orders, that the employees were not entitled to payment of any compensation from the employers (WAPDA). As the above orders have been impugned by invoking the constitutional jurisdiction of this Court it would be relevant to reproduce the reasons for the orders passed by respondent No, 2, which read as follows :- "The application was moved on 20th January, 1979. The proviso below subsection (2) of section 15 of Payment of Wages Act says that every application under section 15 shall be presented within 3 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. Second proviso speaks about the condonation of delay. The respondent did not move the Authority for condonation of delay.
Hence the application under section 15 of the said Act for the period beyond 20th January, 1976 is clearly time-barred. I therefore hold that the respondent is entitled to have the generation allowances for the period 20th January, 1976 to 20th January, 1979 at the rate of Rs, 145 per month.
In this way the respondent is entitled to have from the appellant an amount of Rs, 5,220. I do not agree with Mr. Rizvi that after my order, dated 31st January, 1981 the appellant should have paid the amount of generation allowance to the respondent and that his omission to do so would make him liable to pay the compensation. Under my order, dated 31st January, 1981 I had remanded the matter to the authority and the exact amount was yet to be calculated. There was no occasion for the appellant to make payment of the disputed amount to the respondent. 1 therefore hold that respondent is not entitled to get any compensation."
6. In these constitutional petitions, the findings of the appellate Court disallowing the claim of the petitioners for generation allowances for the period upto 20th January, 1976 i. e. For the period beyond three years of the filing of the applications under section 15 of the Payment of Wages Act have been challenged by the employees. They have also prayed for declaration that they are entitled to generation allowances for the period from 4th December, 1973 to 19th January, 1976 which was disallowed by respondent No, 2 as barred by time. It was further prayed that it may be declared that they are entitled to payment of compensation as ordered by the respondent No, 3.
7. Mr. Fasahat Hussain Rizvi, the learned counsel for the petitioners raised the following two grounds in support of these petitions :-
(1) That the appeals preferred by respondent No, 1 (WAPDA) before the respondent No, 2 under section 17 of the Payment of Wages Act were barred by time.
(2) That the applications made by the petitioners were not barred by time and that impliedly the delay was condoned by the Authority which decision could neither have been the subject-matter of appeals nor could be adjudicated upon by the respondent No, 2 in appeals.
8. As regards the point No, 1 raised as above the learned counsel submitted that the orders were passed by respondent No, 3 under section 15 of the Payment of Wages Act on 8th July, 1981 for which application for grant of certified copy was made on the same day but the copying charges were not deposited till 15th July, 1981. According to the learned counsel after taking into consideration the period of these 7 days the apnea] filed on 15th August, 1981 would be barred by time.
' The plea of the learned counsel raised as above cannot succeed as it has not been shown that the costs for the copies bad not been deposited before 15th July, 1981 or that any intimation about payment of the costs was given to the respondent No,
1. The deposit of the cost for the copies applied for, therefore, cannot be presumed to have been caused by any delay on the part of the respondent No,
1. The period spent by the respondent No, 1 was obviously requisite for obtaining the copies and the same is therefore to be excluded while computing the period of limitation for filing appeals. Moreover no such plea appears to have been taken before the concerned appellate Court, which new plea therefore cannot be allowed to be raised for the first time in these constitutional petitions.
9. The next contention of the learned counsel was that the appeals filed on 15th august 1981 were barred by time. It was argued that the appeals were filed by the employer on 15th August, 1981 but the memos. Of appeals were not accompanied by a certificate of the Authority to the effect that the appellant /employer had deposited with the said authority the amount payable under the direction appealed against. Reliance was placed on proviso to section 17 (a) of the Payment of Wages Act.
10. I have carefully considered the above arguments. It may be mentioned as already noted above that 14th August was a closed day, and therefore, the appeals presented on 15th August, 1981 would be within the time.
' As regards the objection that the certificate was filed by respondent No, 1 on 16th August, 1981 it would be seen that the respondent No, 1 had deposited the cheques for the requisite amounts as in all the three cases on 15th August, 1981, i,e, within the time available for filing the appeals. The cheques were accepted but were encashed/proceeds received by the Authority on 16th August, 1981 and as such the certificates were issued by the Authority on 16th August, 1981 and on that very day the same were filed before the appellate Court where the appeals had already been filed on 15th August, 1981. It therefore, cannot be validly argued that the appeals were barred by time and I do not find any reason to disagree with the findings given by the Appellate Tribunal. Even otherwise, even if the finding given by the said appellate tribunal of competent jurisdiction is erroneous (as alleged) in the circumstances, I find no valid reason to interfere with same in exercise of the constitutional jurisdiction.
11. As regards the ground No, 2, the learned counsel for the petitioners submitted that the applications filed under section 15 :of the Payment of Wages Act were within time inasmuch as the petitioners were persistently making representations and were holding meetings with the officers of the respondent No, 1 and that the last meeting was held on 28th August, 1978 which however did not produce any result. Accordingly on the advice of the Collective Bargaining Agents the petitioners were compelled to file their applications in the Court of the respondent No, 3 on 17th January, 1979 under section 15 of the Payment of Wages Act. If was accordingly argued that neither the applications nor any part of the claim made in the said applications could be said to be barred by time.
' It would however, be observed that the so-called representations made by the petitioners could not have the effect of extending the period prescribed for making applications under section 15 of the Payment of Wages Act. The proviso to subsection (2) of section 15 lays down that every such application shall be presented within three years from the date on which the deductions from the wages were made or from the date from which payments of wages were due to be made, as the case may be. It is not disputed that the deductions from wages were made every month when the same became due and thus the claim for the generation allowances for the period beyond three years of the filing of the applications would be barred by time unless it is shown that the delay was condoned under the second proviso to subsection (2) of section 15 of the Payment of Wages Act, which reads as follows :- "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."
' A perusal of the order passed by respondent No, 3 would show that after remand of the case to determine if the applications made were within time, the respondent No, 3 held as follows :- "From the above discussion I am satisfied that the applicants (Muhammad Habib, Hanifullah and Mushtaque Ahmad) had been vigorously perusing their claim through their Union and it was the WAPDA which did not care to settle it. As such I am inclined to hold that there is no delay and if any the same cannot be laid at the door of the applicants. Thus I hold that the application is not barred by time. The issue No, 1 is decided accordingly."
12. The above order would show that the respondent No, 3 had proceeded to hold that there was no delay and that even if there was any delay the same could not be laid at the door of the applicants and accordingly it was held that the applications made were not barred by time. Neither any prayer or any application was made by the petitioners for condonation of the delay nor the respondent No, 3 condoned the delay as provided by proviso to subsection (2) of section 15. The appellate tribunal, on the contrary, expressly held that the applications under section 15 of the Act for the period beyond 20th January, 1976 were clearly barred by time.
13. The learned counsel for the petitioners however argued that the appellate tribunal had no jurisdiction to go into the question of condonation of delay by the Authority in filing the applications under section 15 of the Act as the power to condone the delay is conferred upon the Authority under second proviso to subsection (2) of section 15 against which no appeal is competent.
Reliance was placed by the learned counsel on the case of Prem Marayan v. Divisional Traffic Manager .
' It will however, be observed that the above cited case does not help the case of the petitioners as the respondent No, 3 had not condoned the delay in filing of the applications under section 15 of the Payment of Wages Act. The perusal of the order itself would show that the said authority had proceeded under the assumption that the applications were not barred by time for the reason that the petitioners had been making-representations and were trying to get remedy outside the Court.
The learned counsel for the petitioners also referred to the case of Pakistan v. Abdul Hamid wherein the Honourable Supreme Court while disposing of the point of delay in filing the writ petition held that the petitioner was not lacking in diligence in not making representations throughout the period from 1949 when he suffered injury upto 1957 when he filed his petition in the High Court. The point under consideration in the said case before the Honourable Supreme Court related to delay in filing constitutional petition (for which no period is prescribed). The said principle cannot be applied to delays on the part of the petitioner in moving the Authority under section 15 of the Payment of Wages Act within the period prescribed by the law. The lapse of time obviously created valuable rights in favour of the other party.
14. Having disposed of the objections raised by the learned counsel to the impugned orders as above, and being of the view that the findings of fact reached by the respondent No, 2 are based upon appreciation of material on record and the order having been passed with jurisdiction, the same cannot be impugned before this Court in exercise of its extraordinary constitutional jurisdiction even if the said orders for any reason could be described as erroneous. Reference may be made here to the case of Muhammad Hussain Munir and others v. Sikandar wherein the Hon'ble Supreme Court laid down the principle as follows :- "It is wholly wrong to consider that the Constitutional provision was designed to empower the High Court to interfere with the decision of a Court or tribunal of inferior jurisdiction merely because in its opinion the decision is wrong. In that case, it would make the High Court's jurisdiction indistinguishable from that exercisable in a full-fledged appeal, which plainly is not the intention of the Constitution makers. When there is jurisdiction to decide a particular matter then there is jurisdiction to decide it rightly or wrongly and the fact that the decision is incorrect does not render the decision without jurisdiction."1 2 3 ' For the above reasons, I find that these three petitions cannot succeed which are accordingly dismissed. In the circumstances there will be no order as to costs. AIR 1954 Bom. 78 PLD 1961 SC 105 PL D 1974 SC 139