' The revision captioned above reports that the decision dated 31-8-1987 recorded by learned Presiding Officer, Punjab Labour Court No, 8, Bahawalpur in its appellate jurisdiction under section 17 of the Payment of Wages Act is wrong and improper.
2. The petitioner claimed bonus for 1973 under Order 10(c) of the Standing Orders Ordinance, 1968 amounting to Rs,7,443. The application brought by the petitioner under section 15(2) of Payment of Wages Act was dismissed by the learned Authority on 14-7-1987 on the ground that wages of the petitioner were exceeding Rs,1,000 and that he belongs to the category of supervisor, therefore, was not covered by the definition of 'Workman' given in section 2(i) of Standing Orders Ordinance, 1968.
The learned lower appellate Court upholding the decision of the learned Authority also held that the petition was time-barred.
3. It has been argued by the petitioner that since no cross-objections were filed on behalf of the respondent, the learned lower appellate Court had no jurisdiction to take up the question of limitation and to say that the petition was time-barred. He relied upon 1984 SCMR 1311 and 1978 PLC 497. The rulings cited above support the case of the petitioner. It has been held that there is no provision under section 17 of the Payment of Wages Act that the appeal lies against the finding of the Authority whereby the petition has been held to be within time or the delay has been condoned. The observation made reads as under:-- "The intention of the legislature seems to be that in the 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."
In the second ruling it has been categorically held that without filing cross-objections question of limitation in appeal cannot be raised. In the present case also admittedly no cross-objections were filed. On the point of limitation learned counsel for the respondent has argued that according to the provision of law bonus under section 10(3) is to be paid after three months of the closing of the year, there for, the limitation started on 1-4-1974 and it being 3 years ended on 31-3-1977. He argues that since the petition was lodged on 30-8-1979 it was time-barred. The argument has no force.
Bonus under Order 10(c) is to be paid if the employer earns profits. This being so the workers are not in a position to know whether in a particular year the employer got earned profit, or not and if so to what extent. So the time starts from the date on which the employer declares whether it earned profit or not. The learned counsel for the respondent has not been able to point out any evidence on the record which may show that the petitioner came to know of the fact that the respondent had earned profit for the year 1973 on such a date and from that date the petition was time-barred. The learned lower appellate Court, therefore, rightly rejected the objection that the petition brought under section 15(2) was time-barred.
4. The next point raised by the learned counsel for the respondent is that the learned lower appellate Court wrongly refused to decide the question of res judicata on the ground that it was not pressed. He does not challenge the fact that the plea of res judicata was not pressed but has argued that even if it was so it was the duty of the Court to decide the same. He relies upon 1980 SCMR 469. The petitioner has not been able to cite any authority against the view taken in the ruling cited above. The Supreme Court relied upon 42 C W N 560 and held:-- "All this discussion will show that neither a Court can issue any order nor a party can agree that with regard to any particular operative judgment a plea of res judicata will not be raised in any future litigation. Such order or agreement as discussed above would be a nullity and inoperative."
' The facts of the case involved in 42 C W N 560 are: "The plaintiff had brought a suit for the recovery of a certain property basing his title on a purchase from the defendant and alleging that the defendant had inherited it From his grandfather as reversionary heir. The suit was dismissed. On appeal, the suit was allowed to be withdrawn with liberty to bring a fresh suit. On revision the High Court set aside the order of the Appellate Court and directed that the appeal to the Lower Appellate Court would stand dismissed but observed that any decision arrived at by the Courts below relating to the title as between the plaintiff and the defendant would not go against the parties in any subsequent suit that might be instituted by the plaintiff. Thereafter the plaintiff brought another suit on the basis of the same purchase but alleging that the defendant had acquired the property as heir to his father who had got it by a deed of gift from the defendant's grandfather.
' It has been further observed by Supreme Court that: "It is to be pointed out that the plea of res judicata being of the kind of public policy, the Courts have been allowing the same to be raised even in cases where it may not have been raised in Courts below or may have been abandoned provided material in support thereof is fully available on the record.
When once a matter has been decided between the same parties by a competent' Court, no fresh action can be brought on the same facts and on the same points between the same parties and where a party has not pressed the plea of res judicata even then the Court is obliged to record finding thereon one way or the other. The learned lower appellate Court therefore, wrongly refused to record the finding. Since the learned counsel for the respondent says that finding should be recorded, there is no other alternative but to accept the revision and to remand the case.
5. Learned counsel for the respondent has in support of the finding of the Courts below that the wages of the petitioner were exceeding Rs,1,000 argued that Cost of Living Allowance is to be added in the wages for the determination of the jurisdiction of the Authority under the Payment of Wages Act. He has also argued that bonus claimed under section 10(c) cannot be said to be wages and thus the Authority had no jurisdiction. He has made reference to explanation to Order 10(c) of the Standing Orders Ordinance, 1968. Since the case is being remanded this point should be resolved by the Court below first since for the first time it has been agitated in revision. The point being legal, can be entertained and decided by the learned lower Court below.
6. As a result the decision of the learned lower appellate Court is set aside and the appeal is remanded for fresh decision in the light of the observations made above.