Muhammad Din Inkisar, Sami Khan Tariq, Muhammad Afzal Hayat and Ghulam Hussain Butt, respondents Nos. 3 to 6 (hereinafter referred to as the respondents) filed four separate petitions under section 15 of the Payment of Wages Act, 1936, for the recovery of different amount in each case on account of advance increments, under the Incentive Scheme, which were not allowed to them despite their repeated requests. The respondents in their respective applications also asked for penalty to the extent of ten times the alleged deducted wages. Respondents Nos. 3, 4 and 5 are employed as Stenographers in the Headquarters Office, Pakistan Railways Lahore, while respondent No.6 is employed as Office Superintendent (Bills)in Cairns Hospital, Pakistan Railway, Lahore. Applications under section 15 of the Payment of Wages Act were, of course, filed before the Authority under the Payment of Wages Act, Lahore, and in the applications the Chief Officer (Administration and Budget) and the Chief Personnel Officer, Pakistan Railways, Lahore, were impleaded as respondents.
2. It was alleged in all the four applications of the respondents that under the Incentive Scheme, as notified vide notification, dated 15/16 December, 1961, they were entitled to four advance increments in each case as they acquired qualifications for higher responsibilities after their recruitment, inasmuch, as they graduated during the course of their service. It was further alleged that they requested the Chief officer and the Chief Personnel Officer time and again for the payment of the wages indicated above but without any success.
3. The Chief Officer (Administration and Budget) and the Chief Personnel Officer, Pakistan Railways, Lahore viz. The petitioners herein, resisted the applications of the respondents before the Authority under the Payment of Wages Act, mainly on two grounds. Firstly, that their claims were time-barred and secondly that notification, dated 15/16 December, 1961, had been superseded by another notification of 22-1-1966, under which the Stenographers were not entitled to get benefit of advance increments under the Incentive Scheme.
4. The learned Authority under the Payment of Wages Act framed the necessary issues arising out of the parties pleading and after hearing the parties, vide his consolidated judgment, dated 4-1- 1979, he found that the claims of the respondents were not time-barred and that their wages were withheld wrongfully. He consequently allowed them the deducted wages amounting to Rs.43,186.16, with five times compensation, in all amounting to Rs.2,59,116.96.
5. The petitioners preferred an appeal before the Appellate Authority, viz. The Punjab Labour Court No.2, Lahore, but the learned Presiding Officer, Punjab Labour Court No.2, Lahore, vide his judgment dated 18-2-1979, dismissed the appeal as being barred by time. The aforesaid judgments, dated 4- 1-1979 and 18-2-1979, passed respectively by the Authority under the Payment of Wages Act, Lahore, and the learned Presiding Officer, Labour Court No. 2, Lahore, have been assailed through the present Constitutional Petition, by invoking the extraordinary jurisdiction of this Court.
6. It has been vehemently argued on behalf of the petitioners that as a matter of fact the respondents were civil servants within the meaning of Civil Servants Act, 1973, and in their case the Payment of Wages Act, 1936, was not applicable, therefore, the Authority under the Payment of Wages Act, had no jurisdiction in the matter. The claims of the respondents in regard to their increments pertained to their terms and conditions of service and, therefore, fell exclusively within the jurisdiction of the appropriate Service Tribunal. Reliance has been placed on Mufti Mushtaq Ahmad v. The Federation of Pakistan PLD 1981 SC 172. In this case a Ticket Collector, performing duties at the relevant time of clerical nature in the office of Stationmaster, was held to be a civil servant and not a workman. It was, therefore, concluded that the Service Tribunal was vested with the jurisdiction in the matter Muzaffar Abbas Naqvi etc. v. Islamic Republic of Pakistan etc. 1980 PLC 904 and the Divisional Superintendent, Pakistan Railways, Karachi v. Mrs. Nasim Sadiq 1982 PLC 747 have also been cited. In the former case, a Draughtsman permanently employed in Railway Headquarters Office was held not to be a workman but a civil servant while in the latter a nurse employed in the Railway Hospital was considered as a civil servant and not a workman.
7. Hafeezud Din v. Mian Khadim Hussain and another PLD 1965 Lah. 439 has also been relied upon to show that an order passed without jurisdiction is a nullity in the eye of law. It is, however, noteworthy that in the circumstances of the present case, the petitioners did not question the jurisdiction of the Authority under the Payment of Wages Act before the said Authority of the Appellate Court. As already stated above, in their written statements the petitioners raised the plea of limitation and the one that on merits the respondents were not entitled to the payment of wages claimed by them. Both these objections were, of course, repelled by the Authority. We cannot also lose sight of the fact that for determining the question as to whether an employee of the Railways is a workman or a civil servant, one has to see as what duties are being performed by such employee. This question is therefore, a mixed question of law and fact. Objection in this behalf was, therefore, required to be raised before the Authority under the Payment of Wages Act so that the said Authority could determine with reference to the duties being performed by the respondents that if they were workmen or civil servants. In Mufti Mushtaq Ahmad v. The Federation of Pakistan PLD 1981 SC 172 in view of the duties which were being performed by the employee at the relevant time it was found that he was a civil servant and in his case the Service Tribunal had the exclusive jurisdiction. In Ghulam Mohi-ud-Din v. Chief Settlement Commissioner and two others PLD 1964 SC 829 it was held that if a party knew that the Tribunal before which his cause was pending had no jurisdiction but did not raise objection about the jurisdiction of the Tribunal and allowed him (the Tribunal) to commit an illegality, such party cannot subsequently be allowed to challenge the illegality through a Writ Petition. It was further observed:- "The principle upon which the writ is refused in such cases is not that jurisdiction has been conferred on the Tribunal concerned by waiver and acquiescene but that even though the impugned order is without jurisdiction the person seeking to have it quashed should not be granted that discretionary relief as he had stood by and allowed the Tribunal to usurp a jurisdiction which it did not possess knowing that the Tribunal concerned was committing such an illegality in consequence of something done by that person himself." in the District Controller of Stores v. Punjab Labour Appellate Tribunal, Lahore and 2 others 1983 SCMR 155 it was observed:- "The plea of the Railway before the High Court was that the respondent was a civil servant and as such the Labour Court had no jurisdiction to entertain his application. The learned Judge of the High Court observed that the question whether the respondent was a civil servant was one mixed of fact and law and that as the point had not been pressed during the appeal before the Labour Appellate Tribunal, the Department was deemed to have accepted the finding of the Labour Court and it was no longer open to them to reagitate the matter in the constitutional jurisdiction."
In the Petition for Leave to Appeal before the Supreme Court, in the aforementioned case, it was observed:- "The contention before us is two-fold; the first being that the respondent was a civil servant and as such not amenable to the jurisdiction of the Labour Court and the second, that his removal having been from the post of ledger-keeper, he could be re--instated to that post and not to that of a Ward-keeper. On the first point, we see no reason to interfere with the view taken by the High Court."
8. In the light of the above discussion, it is concluded that as it was a mixed question of law and fact that if the respondents were workers or civil servants and as this question was not raised before the Authority under the Payment of Wages Act and the Labour Court it cannot be allowed to be raised in the Constitutior1at Petition.
9. It has also been urged on behalf of the petitioners that there as no justification to allow the wages claimed by the respondents and ore so alongwith five times penalty. This is a finding of fact arrived by the learned Authority under the Payment of Wages Act that the respondents were entitled to the wages claimed by them. This finding is based on the conclusion that under the Incentive Scheme advance increments were allowed to other members of the personnel branch of the Headquarters Office. The respondents were positively found to be members of the said branch.
This finding cannot be interfered within exercise of Writ Jurisdiction. Regarding penalty, it may be observed that despite repeated requests by the respondents they were being refused the benefit of advance increments, from 1961, by the petitioners to such circumstances, the award of compensation equal to five times the deducted wages cannot be regarded as illegal or perverse.
In Assistant Works Manager (B) Pakistan Railways v. Authority under the Payment of Wages Act and 2 others 1983 PLC 822 it was held by this Court: - Taking into consideration the long period of 9 years spent by the respondent to recover the illegal deductions made and the mental torture and virtual starvation to which he was subjected by the attitude of the Railway Authorities, it was held that respondent No.3 was entitled to receive compensation at four times the actual amount of wages deducted. It is true that compensation at four times the wages due does appear to be slightly large and compensation not exceeding the total wages due, which itself was a large amount, would have been more than fair, but this being a matter within the jurisdiction of the Authority and the appellate Court I would not like to interfere. In view of the finding given by both the lower Courts, the grant of compensation to respondent No.3 is neither illegal or perverse, but in fact fully justified.
10. In view of the above, it is concluded that no exception can be taken to five times compensation ordered by the Authority under the Payment of Wages Act, in exercise of extraordinary jurisdiction.
11. It has been next urged that the learned Presiding Officer, Punjab Labour Court No.2, has not considered the petitioners plea for condonation of delay in its true perspective and has arbitrarily dismissed their appeal as being barred by time.
12. The Authority under the Payment of Wages Act, passed order regarding payment of wages and five times of compensation against the petitioners on 4-1-1979. They deposited the amount on 13- 12-1979 and filed appeal on 15-2-1979. The appeal was, therefore, obviously barred by time. In their application under section 5 of the Limitation Act, for condonation of delay, it was submitted on behalf of the petitioners that in fact the order appealed against came to their notice on 21-1-1979, and that the delay in filing the appeal also occurred due to the fact that the amount awarded in favour of the respondents could be deposited only on 13-2-1979. Both these pleas were considered by the Appellate Court, i.e. Punjab Labour Court No.2, Lahore. The pleas did not find favour with the said learned Court as it was found that the order was announced on 4-1-1979 and there was nothing to suggest that it was announced later on. The appellate Court also observed that the appellants (petitioners herein) were required to deposit the amount in question before the expiry of the period of limitation prescribed for appeal and their failure to do so could not be availed of by them. As regards the condonation of delay, the impugned order by the Authority under the Payment of Wages Act purports to have been announced on 4-1-1979. If the petitioners, on account of their negligence or negligence on the part of their counsel, learnt about this order subsequently, they cannot claim condonation of delay on this ground. In Kaley Khan v. Jamia Masjid Akse Jamil 1982 SCMR 88 it was observed:- All the Courts below did not accept the plea as sufficient to take the petitioner out of his relevant liability and held that if the counsel concerned had left the Court for sometime it was his duty to later find out as to what order had been passed in the case on that date. But as he never cared to do so it showed a clear negligence both on his part and as well as his client. Learned counsel has argued that this view of the Courts below is not correct. We find nothing wrong either in principle or on the factual aspect of the case above-mentioned.
13. In the light of the foregoing conclusions, it is found that there is no substance in the present Constitutional Petition, which is accordingly dismissed with no order as to costs.