' This petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 calls in question the award, dated 12-3-1975 of the Authority under the Payment of Wages Act at Sahiwal directing the petitioner to pay the amount determined by it alongwith the penalty of 5 times unpaid amount.
2. The dispute arises out of an application under section 15 of the Payment of Wages Act, 1936 filed by respondents Nos.3 and 4 who were employees of Pakistan Railways claiming that they have been wrongly denied of overtime due to them which was part of their wages. The learned Authority after hearing the petitioner came to the conclusion that respondents Nos.3 and 4 were forced to perform work beyond the period of 8 hours for which they have not been paid wages and as such they were entitled to overtime. While awarding the same, as already observed, penalty of five times was also awarded. The order passed by the Authority under the Payment of Wages Act at Sahiwal, on 12-3-1975 was challenged by the petitioner by filing an appeal which was dismissed as being barred by time: The petitioner submitted an application for review of order, dated 4-11-1975 dismissing the appeal but that application was rejected on the ground that it was not maintainable as the Labour Court had no jurisdiction to review its judgment.
3. So far as the order for payment of actual amount for overtime, is concerned, the learned counsel for the petitioner had nothing to argue but he vehemently contended that in the facts and circumstances of the case, there was no jurisdiction vested in the Authority under the Payment of Wages Act to direct payment of compensation in addition to the amount actually due and at the most penalty of Rs,10 could be imposed upon the petitioner under section 15(3) of the Payment of Wages Act, 1936.
4. The learned counsel for respondents Nos.3 and 4 has, however, submitted that the appeal filed by the petitioner was dismissed as barred by time and as such the merits of the case could not be gone into. He has further argued that it has been found as a fact by the Authority under the Payment of Wages Act that the overtime was purposely withheld which amounted to deduction of wages and as such the Authority was competent to award compensation.
5. The obligation of the petitioner to pay overtime has not been disputed by the learned counsel for the petitioner. There is merit in his contention that in view of section 15(3) of the Payment of Wages Act, 1936, the Authority under the Payment of Wages Act could not have awarded any compensation for non-payment of overtime. From a reading of section 15(3), it would appear that the Authority can award compensation if it is of the view that amount has been deducted from the wages without any justification and not where payment of wages is delayed in which even a penalty of Rs,10 can be imposed.
6. The question, therefore, which calls for consideration is as to whether non-payment of any amount on account of overtime amounted to deduction out of wages. The answer to this question is in the negative. The question of deduction would arise if the settled amount of wages is withheld either wholly or in part and not when the liability to payment is yet to be established and the amount had not been quantified. In such a case what can be said at the most is that payment of that amount has been delayed and in that case the only penalty of Rs,10 can be imposed.
7. There is also merit in the contention of the learned counsel for the petitioner that even if the Authority could award compensation yet in view of sub-para. (a) of proviso to section 15(3), award of compensation in the present case was not called for as the question whether or not any amount was due or payable on account of overtime had not been determined by any Court or Tribunal and the dispute in this regard raised by the Pakistan Railways could be said to be mala fide.
8. So far as the submission of the learned counsel for respondents Nos.3 and 4 that appeal of the petitioner had been dismissed on the ground of limitation and as such the merits of the case cannot be gone into, suffice it to say that as has been found by this Court, the award of compensation was without jurisdiction and violative of section 15(3) of the Act. This Court can in exercise of jurisdiction vesting in it under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 strike down that impugned order of the Authority even if the appeal of the petitioner before the appellate Authority was barred by time. (See Khuda Bakhsh v. Khushi Muhammad and 3 others (PLD 1976 SC 208).
In view of what has been stated above, this petition is allowed to the extent that the award of compensation at five times unpaid wages is declared to be without any lawful authority and of no legal effect. Respondents Nos.3 and 4 shall, however, be entitled to receive the actual amount of unpaid wages from the petitioner, if already not paid. No order as to costs.