' For reasons to be recorded later, this 'Constitutional petition was accepted by me vide order dated 2-4-1997. Reasons for the short order are given below.
2. The relevant facts are that the petitioners in this writ petition belong to the skilled labour class working in the Loco Shops of Pakistan Railways, Mughalpura. Annual increments were allowed to the petitioners on 1-12-1983, 1-12-1984, 1-12-1985, 1-12-1986 but no increment was allowed on 1-12- 1987 and instead orders were passed that the recovery should be made from them in respect of the payments of the annual increment allowed on 1-12-1983. The petitioners made grievance petition before the learned Labour Court against unlawful deduction of wages. After recording of evidence the learned Labc.Ir Court accepted the petition vide order dated 13-11-1990, the operative part whereof is reproduced below: "I have heard learned counsel for the parties and have gone through the record with care. The objection raised by the respondents is based on section 22 of Payment of Wages Act does not hold any water. The law laid down in PLD 1976 Lahore page 528 is the complete answer the objection is overruled. No other preliminary ;objection was pressed, at the time of arguments. The impugned orders are Mark-B to Mark-B/8. The respondents have not produced the impugned orders. The impugned orders are not speaking orders. It only states that some amount has been paid in excess to the petitioners, why and how it was excess had not been explained. According to establishment principles and judiciary pronouncements no person can be penalized for no fault of his. If any excess amount was calculated and paid to the omission or fault involved cannot be attributed to the petitioners. In fact official/officer guilty of making calculation in excess is liable. Likewise the respondents were well within their right to recover the excess amount paid to the petitioners from the officer/official on whom the responsibility is fixed. Moreover, the order of recovery partakes the character of punishment. No body can be condemned unheard. Admittedly the petitioners were not given any opportunity to explain against the alleged excess payment and the order of recovery. The impugned orders perpetuates gross injustice. It is, therefore, struck down. The petition is accepted and the relief claimed therein is granted. No costs."
' Against the order passed by the Labour Court the Works Manager, Locoshop and the Divisional Manager, Pakistan Railway,. :tied appeal before the Punjab Labour Appellate Tribunal, which was accepted vide order dated 10-4-1991. The learned Appellate Tribunal accepted the appeal on the consideration that the decision to disallow the increment due on 1-12-1983 was persuant to the rule framed by the Pakistan Railways and it was not a discretionary order of the functionaries of the Railway Administration. This order of the learned Punjab Labour Appellate Tribunal has been impugned in this petition under Article 199 of the Constitution.
3. It has been contended by the learned counsel for the petitioners that the impugned order has been passed by the learned Appellate Tribunal on factually incorrect assumption that there was a pre-existing rule framed by competent Railway Authority to the effect that persons who availed leave without pay from 1-7-1983 to 30-11-1983 cannot be granted annual increment from 1-12-1983.
It is further submitted that the deduction from the wages of the petitioners would be unlawful because the increment already granted by the competent authority and received by the employees cannot be withheld and recoveries made subsequently. It is further submitted that before passing order of recovery of payments received by the petitioners for the increment allowed on 1-12-1983 no prior show-caused notice was issued. The orders of recovery/deduction of wages, were thus illegal and without jurisdiction. It is further submitted that the learned Labour Court had passed the order after recording the evidence of both sides and such an order could not have been set aside through cursory order merely by observing that there was a rule justifying the deduction/recovery. It is further argued that the learned Appellate Tribunal did not consider that is a result of conciliation with the Management through C.B.A. The Divisional Superintendent, Workshop has issued office order dated 20-12-1987 to the effect that the employees "who availed leave without pay from 1-7-1983 to 30-11-1983 be converted to leave with full pay, if due". The impugned order according to the learned counsel, has been passed by ignoring this material evidence available on record.
4. No written statement has been filed on behalf of the respondents despite the fact that the petition was admitted for regular hearing on 18-6-1991. Agha Taj Muhammad Advocate, however, appeared on behalf of the respondents and supported the orders passed by the learned Appellate Tribunal.
5. I have considered the arguments addressed at the Bar and perused the material on record. I am of the view that the impugned order passed by the learned Labour Appellate Tribunal cannot be sustained.
6. Farzand Ali, Head Clerk, Locoshop appeared as P.W.1 before the Punjab Labour Court on 6-11-1990.
He stated in the examination-in-chief "I also produced letters Exhs. R.W.1 to R.W.10 in support of the case of the Railways. As the petitioners had availed L.W.P. During the period commencing 1-7-1983 to 30-11-1983, therefore, their annual increment given to them in the year 1983 was withdrawn in the year 1988". In the cross-examination he admitted that "it is correct that D.S., Workshops issued a letter dated 20-12-1987 Exh. P2 that the petitioners who availed L.W.P from 1-7-1983 to 30-11-1983 be converted to L.F.P. If due". P.W.1 Gulzar Muhammad stated that no notification regarding L.W.P. Was issued by the Railway Authority. D.g.W.
Issued a notification on 20-12-1987. The employees whose increments were withheld were not served with any charge-sheet. In the cross-examination he was not confronted that any rule had been notified regarding L.W.P. The memo. Issued by the D.S.W. On 20-12-1987 (Exh.P2) reads as under: "Subject: ANNU AL INCREMENTS IN BSP-1983 REPS 1987 TO FORMER CLASS III AND CLASS-IV-STAFF.
' It has been decided that these staffs who availed L.W.P.. During the period from 1-7-1983 to 30-11- 1983, and were due L.F.P otherwise the L.W.P may be converted into L.F.P and debited in their leave account for the purpose of regularization of that period by the competent Authority for the grant of Annual increments to the affected staff, excepting those staff whose period of absence was regularised as L.W.P., as a measure of punishment under E&D Rules. The same principle may be adopted for the staff who availed L.W.P during the period from 1-7-1983 to 30-11-1987 to avail general commotion and resentment of Staff."
' I find that the above decision of the Divisional Superintendent which was exhibited on record has not been taken into consideration by learned Appellate Tribunal. Under this decision L.W.P. From 1- 7-1983 to 30-11-1983 was to be converted into L.F.P., if due. I also find that the learned Appellate Tribunal has passed the order under misconception that R.W. 8 was a Rule which required that an employee who had availed any spell of leave without pay during the period from 1-7-1983 to 30-11- 1983 would not be entitled to annual increment on 1-12-1983. The above-referred statement of R.W. 1 shows that he produced letters Exhs. R.W.1 to R.W.10. It means that Exh. R.W.8 relied upon by the learned Tribunal was merely a letter. There is already unquestioned statement of P.W.1 that no notification had been issued by the Railway Authority regarding L.W.P. It means that Exh. RW8 relied upon by the learned Tribunal was not a notified rule but was merely a letter issued in the Hierarchy of Railway Administration. Such unnotified letter cannot be considered to be a rule. Therefore, learned Tribunal has acted under misconception in believing that there was a valid rule issued by the Railway that persons who were on leave without pay from 1-7-1983 to 30-11-1983 could not be granted annual increment on 1-12-1983. This is the sole consideration on which the order of the learned Labour Court was set aside. Resultantly, the order of the Appellate Tribunal having been passed under misconception of fact is liable to be struck down. I further find that even if Exh. R.W.8 can be said to be a rule, it is not comprehensible that it existed prior to 1-12-1983. It is not possible that a pre-existing rule would say that employees who availed L.W.P. Dring the period from 1-7-1983 to 30-11-1983 would not be entitled to annual increment on 1-12-1983. Such a rule, if any, was framed after 1-12-1983. The established principle of law is that rules cannot have retrospective application. Therefore, no deduction can be legally ordered on the basis of a rule for governing a happening in the past. The increment had already been granted and availed on 1-12-1983. It could not be withdrawn with retrospective effect under a rule which did not exist on 1-12-1983. I further find that the policy decision of the D.S. Contained in memo. Dated 20-12-1987, which had been reproduced in earlier part of the order required to be considered but it has been completely ignored by the learned Labour Appellate Tribunal.
' For what has been discussed above, the impugned order dated 10-4-1991 passed by the learned Punjab Labour Appellate Tribunal, Lahore is declared to be without lawful authority and of no legal effect.