AJMAL MIAN, C.J.--This petition is directed against an order, dated 29th November, 1982, passed by respondent No. 2 in Appeal No. 28 of 1981 setting aside the order dated 27-5-1981 passed by the learned Authority under the Payment of Wages Act, hereinafter referred to as the Act.
2. The brief facts leading to the filing of the above petition are that the petitioner is employed in Pakistan Railways. At the relevant time, he was working as the Head Correspondence Clerk at the Keamari Railway Station and was drawing Rs.948 as the wages including allowances (i,e. Rs.738 being the amount of the wages and the balance being the amount of allowances). It is the case of the petitioner that he applied for one-month leave for the period from 3-4-1978 to 2-5-1978, which was granted to him but when he returned, he was not paid his wages of the said month and also of the following month. He, therefore, filed an application for recovery of his wages for two months amounting to Rs.1,896 under the Act before the notified authority. The petitioner's above aforesaid application was granted on 25-3-1980 for a sum of Rs.7,584 which included the amount of compensation under subsection (2) of section 15 of the Act. Against the above order, respondent No. 3 filed an appeal, which was allowed by respondent No. 2 by its order dated 2-9-1980 and the case was remanded to the Authority under the Act on the following question:-- "Whether any leave was granted; sanctioned to the respondent by the present appellant, and if so, whether the respondent availed the same with prior permission of the competent authority after the proper delivery of the charge?"
3. After the above remand order, the Authority under the Act again allowed the petitioner's application on 27-5-1981 and this time it granted a sum of Rs.11,376 i.e. two months wages plus 7 times the amount of wages of a month. Against the above order, respondent No, 3 again filed an appeal which was allowed by the impugned order on the ground that the petitioner was a civil servant in terms of the Civil Servants Act, 1973. The petitioner filed an application before respondent No. 1 for exercising suo motu revisional power on 19th December, 1982, which was declined by an order of even date. The petitioner has, therefore, filed the present petition.
4. Mr. Ali Amjad, learned counsel for the petitioner has urged as follows:-- (i) That since the second appeal filed by the respondent No. 3 was time barred and as respondent No. 2 has no authority under section 5 of the Limitation Act or under the Act to condone the delay, the appeal should have been dismissed.
(ii) That respondent No. 2 was not justified in allowing a new plea as to the maintainability of the petitioner's application during the arguments in the second round of litigation.
(iii)That the petitioner is not factually a civil servant.
5. Adverting to the above first submission of Mr. Ali Amjad, learned counsel for the petitioner, that since the appeal of respondent No. 3 was time-barred and as section 5 of the Limitation Act was not applicable and as there was no power given under the Act to extend the period for filing of the appeal, respondent No. 2 could not have condoned the delay, it may be observed that respondent No. 2 in his impugned order on the basis of the personal affidavit of the learned counsel for respondent No. 3 has held that factually the case was fixed for order on 9-5-1981. The diary indicates that on 9-5-1981 no order was passed either in the form of the judgment or in the diary for re-fixing the date for announcing the order. The order was factually announced on 27-5-1981. The learned counsel for respondent No. 3 in the affidavit has also averred that no notice before pronouncing the order was given. The above position has not been controverted. In this view of the matter, respondent No. 2 was right in holding that there was justifiable reason to entertain the appeal. It was also averred by the Advocate for respondent No. 3 that for the first time the respondent had come to know about the order when the notice of the recovery was received in June, 1981. If we were to reckon the period of limitation from the date of knowledge, the above appeal was in time. The above contention has no force.
6. As regards the second submission of Mr. All Amjad, learned counsel for the petitioner, that respondent No. 2 was not justified to allow respondent No. 3 to raise a new plea as to the maintainability of the petitioner's application for the first time in the second appeal after the first remand order, it may be observed that he has invited our attention to the previous order of the appellate authority dated 2-9-1980 and pointed out that the case was remanded on the question reproduced hereinabove in para. 2 and, therefore, respondent No. 2 was not justified in taking up the above additional plea. It is true that in the above order dated 2-9-1980 respondent No. 2 had framed the above question for adjudication but it did not debar respondent No. 2 as the appellate authority to allow the raising of an additional plea in an appeal arising out of an order passed by the Authority under the Act. However, at the same time, the petitioner was entitled to have reasonable opportunity to meet the above plea and that the question, whether the petitioner was a civil servant in order to exclude application of the provisions of the Act, the question which needed consideration was, whether the petitioner was working in a district, sub-division or administrative office. The case of the petitioner is that he was working at the Keamari Railway Station, which does not fall in any of the above categories. There is no finding of respondent No.2 on the above aspect nor respondent No. 3 had produced any material to I indicate whether the Keamari Railway Station falls within any of the above 3 categories.
7. We would, therefore, allow the above petition and declare the impugned order as being without lawful authority and of no legal effect but would remand the case to respondent No. 2 with the direction to decide the appeal in the light of the above observations and also consider the question whether the amount of compensation awarded by the Authority under the Act, namely, 7 months wages was justified.