1. ' Abdul Rauf had preferred a claim under section 15 of the Payment of Wages Act before the Authority under Payment of Wages Act, Hyderabad claiming a sum of Rs.1,547 towards unpaid salary, bonus etc. And also compensation to the extent of 10 times. The plea of the respondent/applicant before the learned Authority was that he was refused payment of salary for the period from 8-2-1975 to 13-4-1975 though other persons who had also remained absent on account of strike in the mill had been paid the salary. His second claim is that he was also refused payment for the period commencing from 1-3-1977 to 14-3-1977. He was also refused notice pay for one month amounting to Rs.315. According to him he had tendered his resignation on 11-6-1977 but he was not relieved and so he repeated his request on 13-9-1977. He pleaded that since he was not relieved on the expiry of one month of the submission of the resignation, he was entitled to the payment of one month notice pay. He also pleaded that Rs.300 paid to him towards bonus were illegally deducted and further that he was entitled for Rs.300 towards bonus for the year 1976-77 because the other workers had also been paid. He also claimed a sum of Rs.30 towards 5% annual profit and Rs.100 towards gratuity.
2. ' The claim of the respondent/applicant was resisted on behalf of the appellant/opponent. It was pleaded that the learned Authority had no jurisdiction to entertain the application of the respondent/applicant because he was not covered by the Factory Act and so the provisions of Payment of Wages Act were not attracted. On merits it was pleaded that the applicant had been paid all what was due to him and so he could not maintain his claim before the learned Authority.
3. ' After prolonged proceedings the application of the respondent/ applicant Abdul Rauf was allowed by order dated 12-9-1984 and so the same has now been assailed in this appeal.
4. ' I have heard Mr. S.M. Yakoob, Representative for the appellant and Mr. Abdul Rauf in person. I have also carefully gone through each document on record.
5. ' At the very outset I would like to dilate upon the legal objection advanced on behalf of the appellant. It has been urged before me that admittedly the respondent/applicant was working as a clerk and the department in which he was employed, had nothing so do with the factory itself and so he was not regulated by the provisions of Factory Act. Learned Representative also submits that the applicant/respondent is no doubt governed by the provisions of I.R.O., 1969 and also either by the Standing Orders, Ordinance 1968 or by West Pakistan Shops and Establishment Ordinance.
6. However, since he was not connected with any manufacturing process, he cannot approach the Authority under Payment of Wages Act. After carefully examining the submissions advanced on behalf of the appellant I have no hesitation in repelling this submission because admittedly the applicant/respondent was shown to have been employed as a Timekeeper of the mill and so it cannot be argued that he had nothing to do with the factory itself. In fact, the job of a Timekeeper is directly connected with the production in the factory and so the applicant/respondent was definitely a factory worker. Accordingly, his case was amenable to the provisions of Payment of Wages Act.
7. ' Reverting to the merits of this case I would take up each claim of the applicant/respondent. The first claim as has been brought by the applicant/respondent during the course of argument is that he was entitled to a sum of Rs.2,010 towards increment from 1972 onwards. Admittedly this claim was not advanced in his application preferred before the learned Authority. However, he informed me that he had moved an application for amendment of his claim but the learned Authority refused to permit the amendment. According to the applicant/respondent this Court is now competent to go through this claim. He has attempted to take shelter under the provisions of section 115, C.P.C. And has also shown me a very old authority of India. I feel that if this authority is also taken into consideration the same will not help the applicant/ respondent, inasmuch as in the said reported case the only point which has been discussed and decided is that any decision on any interlocutory applications 'would not bring the said decision within the term "case decided" and so no revision application would be permissible. The applicant/respondent has submitted that since the refusal of amendment was on an interlocutory application, he would not prefer an appeal and so this point can now be agitated in this Court. However, he could not show me any law whereby he can advance his claim which was firstly rejected by the lower Court and against which rejection no appeal was preferred. As stated above, the applicant/respondent had not preferred any claim in respect of any claim and further that he also did not show his grievance for not granting him the increment. Accordingly, he had lost the right to claim the increment in the appeal preferred by the other side. Moreover even otherwise this claim of the applicant/ respondent was not maintainable in law for two reasons, firstly, it was barred by limitation having been preferred after 3 years of the accrual of the cause of action, and, secondly, he did not tender any evidence in support of his claim. In view of this matter, the claim of the applicant/respondent for increment cannot be entertained at this stage.
8. ' The second claim of the applicant/respondent is for non-payment of his salary for the period from 8-2-1975 to 13-4-1975 amounting to Rs.350. Mr. Yakoob submits that the applicant/respondent had not attended during this period because of general strike in the mill and since no such worker who had not attended the duty was entitled to salary, the applicant/respondent was rightly refused the salary for this period. The applicant/respondent, on the other hand, submits that persons belonging to a particular class or caste were paid salaries notwithstanding their absence during this period and so, on the same analogy, he was also entitled for the salary. I enquired from the applicant/respondent if he had actually performed his duties but he could not say if at all he had been on duty during this period. I have also considered the evidence of his witnesses and I find that all these witnesses have categorically stated that the persons who had attended the duties were paid the salary. P.W. Ismail had denied the suggestion of the applicant/respondent that only Memon or Katchees, were paid the salaries though they did not attend their duties. The record as produced by the appellant before the learned Authority on 10-3-1981, also proved that the applicant/respondent remained absent during this period of strike and so he was not entitled to the payment of wages unless there had been any settlement or any award by any authority. Mr. Yakoob has rightly submitted that if at all any specific person had been paid any payment irrespective of the presence or absence of such a person, it might be an ex gratia payment but it would not create any right in the applicant/respondent to claim this amount. I would therefore not find any substance in the claim of the applicant/respondent for this period. In fact the learned Authority also did not apply his independent mind while allowing this claim of the applicant/respondent. This claim of the applicant/respondent is accordingly rejected.
9. ' The second claim of the applicant/respondent is for Rs.147 for the period from 1-3-1977 to 14-3- 1977. Since Mr. Yakoob has conceded for the payment of this amount to the applicant/respondent, I need not go into the evidence on this point.
10. ' The claim of the applicant/respondent for Rs.315 in respect of notice pay has been raised on behalf of the appellant on the ground that admittedly the applicant/respondent had tendered his resignation himself and the appellants had not terminated him. The applicant/ respondent however submits that he had submitted his resignation on 11-6,-1977 and so he should have been relieved on 11-7-1977. Since he was not relieved from his duty, he was entitled to one month's notice pay. I am afraid, I cannot agree with the findings of the learned Authority on this point as the same are based on no evidence and are also against specific law on this point. Admittedly the applicant/ respondent was relieved as per Exh. P.9 on submission of his resignation and the appellant did not terminate his services. The applicant/ respondent has also not been able to show any document to prove that he was actually terminated from service. Since the applicant/respondent himself resigned from his job, he was not entitled to any notice pay and so his claim for notice pay is accordingly rejected.
11. ' It has been pleaded by the applicant/respondent that he was once paid Rs.300 towards bonus but the same was later on deducted from his wages. The learned Authority, without considering the material on record, held this deduction as illegal. Mr. Yakoob has drawn my attention to an award granted by N.I.R.C. On 28-5-1974 Exh. 32 and submits that Rs.300 were paid to the applicant/respondent on the basis of this award. However, subsequently on appeal this award was set aside by the Full Bench of N.I.R.C., and this decision of the N.I.R.C. Was maintained in the Constitutional Petition filed by the workers union.
12. ' Learned Representative therefore submits that the amount which was paid on the basis of an award was rightly recovered from the applicant! Respondent. The applicant/respondent has not been able to satisfy me how he would be entitled to the payment of this amount of Rs.300 in view of the fact that the award on the basis of which this amount was paid was set aside by the superior Courts. The learned Authority did not advert to this important legal aspect of the case and so Mr. Yakoob has rightly criticised the findings of the learned Authority. The claim of the applicant/respondent is, therefore rejected.
13. ' The applicant/respondent has claimed a sum of Rs.105 towards gratuity as according to him instead of gratuity on the basis of 20-days a year, he was paid gratuity equivalent to 15 days a year. Mr. Yakoob has conceded to this claim and so this amount is allowed.
14. ' The last claim of the applicant/respondent is for bonus for the year 1976-77 to the extent of Rs.300 and also Rs.30 towards annual participation fund. The applicant/respondent submits that he was entitled to this bonus, because the appellant had earned substantial profit in this year and further that they had agreed to pay bonus as per Exh. D/31 executed on 3-4-1978. Mr. Yakoob concedes for the payment of bonus and participation fund but strictly in accordance with the terms of settlement referred to above. He submits that according to this settlement there were two categories of workers viz. The workers on the date of settlement and the workers who were not in employment at that time but were serving during the financial year of 1976-77. According to the record of the appellant as pointed out to me now the applicant/ respondent would be entitled to a sum of Rs.32.93 as bonus which is calculated at 15% to be distributed to the workers under the provisions of S.O. 10-C. Similarly, according to the record of the appellant, the applicant/respondent would be entitled to Rs.8.82 towards 5% participation fund. I have gone through the evidence on record and I do not find any material which proves the entitlement of the applicant/respondent as claimed by him. Since the applicant/respondent has also based his claim on settlement Exh. D/31 or the profit earned by the appellant, he would be entitled only to the amount referred to above towards bonus and participation fund.
15. ' As pointed out above, since the learned Authority did not appreciate the evidence at all and also did give no reasons to show that the applicant/respondent was illegally deprived of certain wages, he had no authority to award any compensation particularly when the above claim which is now granted by me as well was being offered by the appellant even during the course of proceedings before the learned Authority. I, therefore, set aside the findings in respect of compensation amount as well.
16. ' In view of the above and with the above modifications in the impugned order this appeal is accordingly disposed of.