This judgment shall dispose of an appeal, instituted by Muhammad Ashraf, ex-Driver, Ittefaq Sugar Mills, Sahiwal, against the findings of the Authority, Sahiwal, given by it on 16-1-1986, whereby his claim for the recovery of overtime wages was disallowed for want of jurisdiction and cross objections, filed by the management of Ittefaq Sugar Mills, Sahiwal, the respondent, against the appeal referred to above.
2. As the record shows, the appellant moved the Authority for the recovery of Rs.10,728.15 as overtime wages for the period from 31-7-1982 to 1-3-1984. His claim was resisted by the respondent on various grounds such as non-applicability of Payment of Wages Act, 1936, hereinafter to be called the Act, to the appellant on account of his average monthly wages exceeding Rs.1,000, non employment of the appellant in the factory premises, in difference of his claim to the definition of wages and the termination of his service alongwith denial of appellant's claim on merits.
3. The Authority proceeded with the matter as provided by law. Ultimately, it came to the conclusion that the appellant is no more in the service of the management. Being not an employed person, in terms of section 1(4) and section 15(2) of the Act, he cannot claim anything from the management through the Authority. Accordingly, it dismissed the application outright by means of the judgment which has now been assailed in the appeal under consideration.
4. According to the appellant, the Authority has failed to interpret the law properly. The Authority has relied on the judgment of learned Punjab Labour Court No.2, Lahore, which is quite different from the facts of the case now in hand. He is fully entitled to move the Authority as such findings of the Authority may be set aside.
5. On the other hand, as stated in the cross objections, the management version is that the appellant has no locus standi to move the appeal. Moreover, the appeal is not only incompetent for being against the respondent different from that one impleaded in the Court below, but also suffers from deficient court-fee. Similarly, the management further contended that the appeal has not been presented properly. Being against facts also it should be dismissed with costs.
6. In order to assess the view points of both the parties, I have gone through the record of the Authority and heard the arguments of their learned counsel. Keeping in view the facts and law, my finding is that the appellant has got a good case. As is evident, the Authority has relied on sections 1(4) and 15(2) of the Act which are reproduced below for ready reference:- Section 1(4)
"It applies in the first instance to the payment of wages to persons employed in any factory and to persons employed (otherwise than in a factory) upon any railway by a railway administration or, either directly or through a sub-contractor by a person fulfilling a contract with a railway administration."
Section 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 any of the 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 --------------------------------------- Provided further ----------------------------------- The Authority is of the opinion that the words "employed person" used in section 1(4) and the words "an employed person" used in section 15(2) of the Act refer to necessary relationship of employment between the parties for pressing the claim. In case, the employee has been removed from service, in any manner whatsoever, he is no more an employed person, therefore, he cannot take recourse to the Authority. If we take recourse to the relevant provisions of the Act deeply, we can easily take into grip the weekness of this interpretation. There have been used the words 'provident fund or gratuity' payable under any law in section 15(2) of the Act. We know that the provident fund or gratuity becomes due only after disruption of the relationship of employment between the parties. It will be useful to refer to the provisions of Standing Order 12(6) and (7) of the West Pakistan Industrial & Commercial Employment (Standing Orders) Ordinance, 1968, which provides for gratuity as well as provident fund. The same run as under:- Standing Order 12(6): ---Where a workman resigns from service or his services are terminated by the employer for any reason other than misconduct, he shall in addition to any other benefit to which he may be entitled under this Ordinance or in accordance with the terms of his employment or any custom, usage or any settlement or an award of a Labour Court under the Industrial Relations Ordinance, 1969 (XXIII of 1969) be paid gratuity equivalent to twenty days wages calculated on the basis of wages admissible to him in the last month of his service, if he is a fixed rated workman or the highest pay drawn by him during the last twelve months if he is a piece rated workman for every completed year of service or any part thereof in excess of six months: Provided that where the employer has established a Provident Fund to which the workman is a contributor and the contribution of the employer is not less than the contribution made by the workman, no such gratuity shall be payable for the period during which such Provident Fund has been in existence.--- Standing Order 12(7): ---A workman shall be entitled to receive the amount standing to his credit in the Provident Fund, including the contribution of the employer to such fund, even if he resigns or is dismissed from service.--- The gratuity as well as provident fund become due when the workman resigns from service or his services are terminated by the employer. The direction for the payment of these dues after the employment finishes means that the person retains with himself the locus standi to P move the Authority for recovery of his dues. It is why the provisions of section 15(2) of the Act have been laid down for the same. If the interpretation given by the Authority is accepted, the provisions of Standing Order 12(6) and (7) and the provisions of section 15(2) of the Act regarding gratuity and provident fund shall become redundant.
7. Further, reference to the definition of wages given by the Act is quite necessary. The Act defines the wages as under: - ---Wages--- means all remunerations, capable of being expressed in terms of money, which would if the terms of the contract of employment express or implied were fulfilled, be payable whether conditionally upon the regular attendance, good work or conduct or other behaviour of the person employed or otherwise to a person employed in respect of his employment or of work done in such employment, and includes any bonus, or other additional remuneration of the nature aforesaid which would be so payable and any sum payable to such person by reason of the termination of his employment, but does not include:-
(a) the value of any house accommodation, supply of light water, medical attendance or other amenity or of any service excluded by general or special order of the Provincial Government.
(b) any contribution paid by the employer to any pension fund or provident fund;
(c) any travelling allowance or the value of travelling concession;
(d) any sum paid to the person employed to defray special expenses entailed on him by the nature of his employment or
(e) any gratuity payable on discharge."
The word 'termination' used in the last line of the definition of wages is significant. It gives a scope to the Authority put forward by me. The termination means end of relationship of employer and employee In spite of an end to that relationship, the definition leaves a room for recovery of his wages which accrue on termination. If the ex-employee is not given the opportunity to move the Authority, then the use of words 'termination' in the definition of wages shall not serve any purpose.
8. The discussion still goes a step further. The framer of law has provided us the West Pakistan Payment of Wages Rules, 1960, hereinafter to be called the Rules. Rule 2(j) of the Rules has given the definition of person employed. It provides as under:- "Person employed excludes all persons to whose wages the Act does not apply".
This provision has two-fold meaning. It firstly refers to section 1(6) of the Act existing as under:- "Nothing in this Act shall apply to wages payable in respect of a were period which, over such were period, average more than one thousand rupees a month."
It has provided certain limits in terms of average pay. The person having pay more than prescribed limit cannot take help of the Authority.
Secondly, it refers to the provisions of the sections 1(4) and 15(2) oil the Act, quoted above. The person who cannot claim wages such as gratuity and provident fund and the wages due on termination in the light of definition of wages cannot be called a person employed. If he can claim the same under the Act from the Authority, then he is to be considered person employed irrespective of the termination, dismissal or removal from service in any manner whatsoever.
9. The words "person employed" used in section 1(4) and 'an employed person' used in section 15(2) of the Act have also two aspects to be noted here. These words include the persons not only employed at the time of institution of application but also persons who remained I employed previous to the presentation of the application. The Authority has overlooked the last mentioned aspect of these words. If it is not kept in mind, it shall create contradiction with the words used in the definition of wages and section 15(2) of the Act and definition of employed person given in the Rules.
10. With reference to the provisions of section 15(2) of the Act, the, respondent can take another plea. He may say that the interpretation of section 15(2) if at all in the said manner is to be accepted, it will cover the cases of ex-employees only to the extent of providei7t fund and gratuity.
It shall not cover any other dues because it is silent about them. This view is also to be repelled.
Section 15(2) has used the words "such person" for both type of claimants. The same covering the both is to be interpreted accordingly. Further, read together, with the view that person employed includes the person who previously remained employed the proposition becomes more clear.
11. The respondent has raised certain objections in addition to the denial of locus standi of the appellant to move the Authority which I must discuss here. The most important objection among the same is pertaining to the court-fee. It is maintained that the appeal is deficient in court-fees consequently it inviters order against it. The objection is without any force. The court-fee has been provided by Rule 21(iv) of the Rules which comes to Rs.5. The appellant has affixed the same on his appeal which is, therefore, quite proper. The next objection to be noted is about the identity of the respondent. The management says that the application before the Authority was against the Manager while the appeal has been filed against the Managing Director. In the given form, it is incompetent. This objection is equally without any force. The application before the Authority was against the Managing Director and the appeal is also against nun.
12. The other objection taken by the respondent pertains to locus standi which I have discussed already.
13. The respondent has attacked the appeal on merits as well. I need not discuss the same because the Authority has not given any finding in this connection. This is a matter for consideration of the Authority before it is agitated in this Court.
14. For what has been discussed above, my conclusion is that the Act leaves a room for persons whose services have been finished in any manner whatsoever, to have recourse to the Authority for getting necessary relief from the management. The decision of the Authority is not sustainable in the eye of law, consequently, accepting the appeal, I hereby set it aside. The case is remanded to the Authority for decision on all the other issues raised in the pleadings. The cross objections in the face of this decision fail which are hereby dismissed. In case, the appellant's claim is decreed, the respondent shall 'be entitled to reagitate the objections which pertain to the merits of the appellant's claim.