' By the present judgment are proposed to be disposed of three Revision Petitions (Nos.73 to 75/94).
The main judgment will be rendered in Revision Petition No,75/94. Rashid Ahmad etc. v. Pakistan Railways. There are as many as 28 petitioners in Revision Petition No,73 and 48 petitioners in Revision Petition No,74, the last of the series being No,75/94, in which were arrayed as petitioners Rashid Ahmad Khan and the legal heirs of Maqsood Ali, the latter having died and Rashid Ahmad Khan being alive. Unfortunately the litigation has stretched over years and decades and a number of petitioners have either expired or retired from service. The facts and legal propositions involved are identical, and it would, therefore, be convenient to decide all the three matters by a single judgment.
2. At the time of Partition of the sub-continent, the Railway employees were asked to opt for any railway service. The petitioners belonged to the East Indian Railway (E.I.R) and they opted for North- Western Railway (N.W.R.). They were absorbed in the said service, and later in the service of the Pakistan Railways, when we lost East Wing of the Country. There were two categories in EIR, I and II or A and B, and three categories of Guards in N.W.R., A, B and C. The petitioners, as they pleaded, were in the higher grade, which was Grade II or B. An assurance was given to them that the terms and conditions of their service in the new set-up would not be changed to their disadvantage. The petitioners made grievance of the fact that despite such an express undertaking, they were equated with a class, one grade lower, that is, category 'C'. A seniority list was issued in the year 1956, and they were bracketed with lower grade officers. Two persons, S. Ramzan Ali and Muhammad Jamil-ud-Din, B-Grade Guards, officiating as A-Grade Guards, but not confirmed in category 'A', filed a civil suit in the year 1956, before a Civil Judge 1st Class, Karachi, for their proper placement in the seniority list and for assignment of their due position in the cadre. The civil suit, which was stated to have been instituted in representative capacity, was decreed on 22-9-1962, in favour of the plaintiffs.
3. Grade ' A' and Grade 'C' categories were also known as Conductor Guards and Gunner Guards.
The latter class was getting salary for less than the one being drawn by former class. A notification had been issued in the year 1956 by the General Manager of the Pakistan Railways, and this had, according to the plaintiffs, impaired their career and minimized their promotion prospects. A declaration was sought by the plaintiffs that they be classified or grouped with Grade 'B' or Grade II Guards, (with prospects of promotion to higher category) and that the grouping or the seniority assigned to them in lower category was ultra vices, unlawful and in-operative.
4. Number of technical objections were raised by the Railways, but the same were overruled, and the suit was decreed by the Civil Court. On facts, it was maintained by the Railway 'Authorities', as defendants in the suit, that chances of promotion of the plaintiffs had not been marred or reduced, although they had not been held entitled to accelerated promotion, as was claimed by them. It was held by the Civil Court to be a representative suit. The Hon'ble High Court is stated to have granted permission to the plaintiffs to institute the suit, under Order 1, rule 8, C.P.C., in representative character. A notice under section 80, C.P.C. Had been issued and the suit was intended to guard the subsisting interests and the service benefits of all the affected persons, who had given an option in favour of Pakistan Railways Service, and whose seniority had allegedly been determined illegally. A decision pronounced by the Calcutta High Court and reported as AIR 1942 Calcutta 343 was quoted in favor of the above reasoning by the learned Civil Court. Arguments advanced by the Railways that the plaintiffs and other aggrieved persons were not all guards but were in fact "brakes-men' or ' gunner guards' or 'C' category guards was spurned as untenable, as the mere fact that those people were doing manual labor was not considered sufficient to pull them out of the category of Conductor Guards or ' A' Class Guards. As a guarantee had been given to the opted at the time of Independence, they were entitled to the same privileges and rights, which they had earlier been in enjoyment of. Reference was made to the Lahore High Court decision, rendered in Writ Petition No,936 of 1958. Irrespective of the pay, which an individual was earlier drawing; sanctity of his grade was safeguarded, so that he was not made to suffer, in the matter of his promotion and future prospects or avenues in the career.
5. The affected approached the Commissioner, Workmen's Compensation and the Authority under the Payment of Wages Act, under section 15 of the Payment of Wages Act, for recovery of their wages, from June, 1952 to June, 1956, and from March, 1974 to April, 1976. The ' Authority' announced its decision on 13-6-1977; and I would like to pay tributes to Mr. Shabbir Ahmad, for his brilliantly- written decision, which was announced on 13-6-1977, holding the affectees entitled to arrears of pay along with ten times compensation, for disbursement to them (or their heirs); and this was done, as observed by the 'Authority', to rectify glaring irregularities and to correct the mala fides on the part of the 'Authorities', and the officials had been granted compensation with a view to compensate them for their sufferings, which they had been made to undergo, owing to unending litigation. In the opinion of the 'Authority', the Civil Court's judgment had attained finality, as the Railway Department had tried its luck unsuccessfully in all the higher forums. The concerned officials were held entitled to arrears of their pay, as also to arrears of the mileage allowance.
6. The respondents, in the estimation of the 'Authority; had absolutely failed to discharge the burden of their liabilities. The objection raised against submission of the claims in improper form was rejected, as the applications had been made an prescribed form and details had also been given separately, as envisaged by section 15 of the Payment of Wages Act. The notification or the requisite order, having been issued in September, 1975, confirmed the petitioners in Grade II, with effect from 1-6-1952. Cause of action had accrued to them in September, 1975, and not from an earlier date, even though they had claimed their pay, arrears and mileage allowance, from 1952 to 1974. The Authority had previously on 15-7-1975 also awarded an amount in favor of Rasheed Ahmad and Maqsood Ali, and the appellate Court had turned down the appeal of the 'Authorities', who had even failed in their writ petitions. Had the seniority of the petitioners been fixed and their confirmation in grade been determined in as back as 1952, they would have included their claim to arrears in the petitions submitted afterwards. For the negligence of the respondents, it was observed, the petitioners should not be made to suffer. They could invoke the aid of the 'Authority' within three years' and they were held to have made the petitions in time.
7. One Obaidur Rehman was stated to have given an undertaking, on behalf of all, that they would not claim monetary benefits, if the decree of the Civil Court was put into effect. He was treated by the ' Authority' to be a self-styled president of an unregistered union, a collective body of the guards, but he was not examined in evidence, nor was the list of the people he was representing was procured from him. It was rightly held by the 'Authority' that the plea of stopple taken up the Railway people could not be upheld on the strength of mere surmises and conjectures.
8. Despite determination of seniority, the petitioners were not paid their wages and, in fact, the same were not even fixed, and as such the ' Authority' was justified in coming to the conclusion that the wages had been withheld or deducted by the Officers of the Railways. Reliance was placed rightly on 1973 SCMR 304 and PLD 1973 Lahore 56, pronouncing that a person who had wrongly been prevented from performing service in higher capacity, although he was entitled to it, would be justified to claim salary for the higher post. If the Government declines to admit the claim of the employee and subsequently revises its decision and concedes the same, the employee will be entitled to all the arrears of pay, for the period in question. Mala fides on the part of the Railway people were high-lighted and the 'Authorities' were held responsible for involvement of the affectees in longdrawn litigation, and the Railway Administration was, therefore, burdened with not only the arrears but also with the compensation.
9. When this decision of the 'Authority' was called in question by the Pakistan Railways, before the Punjab Labor Court No,2, Lahore, it was held that there was no justification for awarding even one time compensation to the affected. Payment had been made by cheque and the same was ordered to be returned to the Railways, so that only residual amount be paid to the claimants after re-verification of their claims. Excess amount was also directed to be recovered from the high-ups of the Railway Administration, owing to whose negligence or collusion, as opined by the Court, the Railways had been made to sustain such a colossal expenditure, which indeed was unwarranted and unjustified. It was also observed by the learned Labour Court that only those guards could file claims before the 'Authority' under the Payment of Wages Act, at Lahore, who were employed at Lahore, or who are being paid at Lahore. Those who had retired prior to 1-8-1973 were held disentitled to ask for recovery of their claims, although those who had died, but had been in service till 1-8-1973, were held entitled to claim arrears, through their successors, provided the claims had been made within prescribed period of limitation. Appellants before the Labor Court had also laid claim to the difference in the amount claimed and the amount awarded. Such difference was also ordered to be verified, although objection of Railway Authorities respecting submission of claims in improper form was not considered to be quite material. Similarly, the objection of the employees that the Divisional Superintendents, rather than Chairman, Pakistan Railways, should have filed the appeals was accorded no importance. The employees were treated as workmen, and not civil servants, but status of all of them in the matter of submission of their claims before the 'Authority' at Lahore was disputed. Representative character of the suit filed in the Civil Court at Karachi was also questioned. Competence of the claims submitted by the employees, for the second times, was also taken exception to.
10. It was on 1-8-1973 that the Railways, in supersession of all the previous notifications and orders, after good deal of initial reluctance, had honored the decree of the Civil Court at Karachi and implemented the revised seniority list prepared in May, 1968, conceding to those people the status of Guards Grade II or Grade 'B'. They were, therefore, entitled to have their pay fixed in the same scale and not in the scales of Guards Grade 'C' or D'. Claims of Rasheed Ahmad and Maqsood Ali were accepted by the 'Authority' on 15-5-1975. The appeal was also dismissed on 22-1-1976 and the writ petition met the same fate on 5-6-1976. It was dismissed in limine. Subsequently, Zawar Hussain, alongwith others, and Ejaz Ahmad Qureshi, with others, filed their claims as regards arrears of their emoluments before the ' Authority'. Rasheed and Maqsood too submitted their claims, for the previous period from June, 1952 to 1956, as also from 1974 to 1975, having received the claim from 1956 to March, 1974, already. In all the three cases, the learned 'Authority' accepted the claims and also awarded compensation, by an order announced on 13-6-1977. The Railways filed appeals, and the learned Appellate Court, at Lahore, by a consolidated judgment dated 12-9- 1977, allowed the appeals.
11. Civil Revisions (Nos. 352, 345 and 346 of 1977) were filed before this Tribunal. The Humble High Court, however, held that the orders passed by the Labour Court under the Payment of Wages Act, 1936 were not revisable by the Labor Appellate Tribunal. It was so pronounced in 1981 PLC 307. The revision petitions aforesaid lapsed and were dismissed on 1-3-1981. Three writ petitions (Nos.2126, 2127 and 1899 of 1981) were filed by Maqsood Ali, etc. Ejaz Ahmad etc. And Zawar Hussain etc. But were disposed of on 16-5-1993, with the observations that the writ petitioners should approach this Tribunal again. Actually, the Supreme Court of Pakistan had made a pronouncement in the case reported as PLD 1991 SC 385 that revision petitions could be entertained by this Tribunal and the High Court's decision above said was reversed, and the employees, therefore, again approached this Tribunal, for redressed of their grievances. Obviously, the law laid down by the superior Courts had stood in the way of the employees and by no stretch of imagination; therefore, the revision petitions could be treated to be time-barred. Observation made by Mr. Justice Fazal Karim will also endorse this view. While deciding Writ Petition No,17670 of 1993, the High Court has also adopted the view that section 115, C.P.C. Was not applicable to the revisions before this Tribunal, filed under section 38(3)(a) of the Industrial Relations Ordinance, 1969. The employees had been agitating their rights and pursuing all available legal remedies and had remained tagged and pitched in litigation with the ' Authorities' of the Railways, over several years; and it has rightly been pleaded by the learned counsel representing them that that their claims should not be chucked out on the technical ground of laches. Labour Laws having been enacted to bring an end to frustration and advance the wellbeing of the workmen, their whole struggle will crumble down, if their claims are knocked out on the strength of sheer technicalities. As a measure of abundant caution applications under section 5 of the Limitation Act for condonation of delay, if any, in the submission of the revision petitions have also been submitted and I am of the considered view that the apparent delay, with which the employees have approached this forum is condonable, by all means. Actually the previous revision petitions filed by these people may even be treated to be pending, as those were not disposed of on merits by this forum.
12. The Labour Court has certainly erred in observing that the civil suit at Karachi was not a representative suit. The spirit of the discussion made and the findings recorded by the Civil Court at Karachi, in the judgment dated 22-9-1962, leaves little doubt about the fact that collective cause of the class of guards was intended to be examined and protected, on factual as also legal plane.
The learned counsel for the respondent has quoted extensively from pages 3 and 4 of the Supreme Court judgment, reported as 1972 SCMR 1, a judgment cited by the learned counsel for the petitioners. An effort has been made to distinguish between the cases before this Tribunal and the pronouncement made by the apex Court in 1972 SCMR 1. It has rightly been urged that the employees have entitlement to enforce their rights and prefer claims to arrears, in accordance with the declaratory decree awarded by the Civil Court at Karachi. According to the petitioners, the ' Authorities' of the Railways, with ulterior considerations and mala fide intentions, suppressed from them the information about their confirmation and their proper placement in the list of seniority as the same was conveyed to them on 17-9-1975. They were actually declared or confirmed as Guards Grade II, from 1-6-1952. As such, on 17-9-1975, this enabled the employees to incorporate in their claims the periods of their initial posting, and they could not in time invoke the aid of the '
Authority under the Payment of Wages Act'. Against this background had the ' Authority' adopted a view against the ' Authorities' of the Railway Department and I do not think that the said forum was erratic in that behalf. The learned lower Court, in my considered opinion, has fallen in error in adopting a divergent view and in observing that the Railways have unnecessarily been burdened with compensatory amounts. Here, I am of the view that the 'Authority' has not extended to the employees any favorable treatment out of the way, or by way of indulgence.
13. Mandatory provision of law is that a certificate about deposit of the amount should be filed along with the appeal in the Labor Court. It is to be pointed out that in these cases the Labor Court did not insist on fulfillment of this imperative requirement of law. It has been held in 1983 PLC 1235 and 1987 PLC 454 that amount of compensation has to be deposited in cash within 30 days and payment or deposit made by cheque would not constitute a valid deposit, within the meaning of proviso (a) of section 17(1) of the Payment of Wages Act, 1936. Deposit of the amount in cash is condition precedent for conferring on the Labor Court the jurisdiction in the matter of entertainment of appeal against an order of the ' Authority'.
14. The ' Authority' has substantially dealt with the question of entitlement of the employees to certain amounts of compensation, besides arrears of emoluments. In the case PLD 1976 SC 781. It has been observed that the value of Pakistani currency having sharply declined, the eligible persons will in fact get only a small fraction of what was the purchasing value of the amount in question, if payment thereof had been made and not stranded over a pretty long period, and with the passage of time the equities will lean heavily in favour of the affectees and against those who have been responsible for standing in the way of payment of the amount. On one pretext or the other, the ' Authorities' have been hampering the payment and even conferment of due seniority upon the eligible persons, although the matter should have been dealt with in a magnanimous manner and impediments on frivolous and flimsy grounds should not have been created in the way of the officials to get, in time, whatever was due.
15. I agree with the learned counsel for the petitioners, when he maintains that the judgment of the learned lower Court also suffers from inconsistency, as on the one hand it has been pronounced that the Chairman Pakistan Railways, being Incharge of the affairs of the Railways, is the, proper person, having been impleaded by the employees, and on the other hand it has been said that the petitioners all did not work within the domain of the Authority under the Payment of Wages Act, and they could not all approach the 'Authority' at Lahore. It is to be noted that the Chairman is the Head of the Department, having territorial limits of his authority extending through the length and breadth of the country. The Headquarters of the Railways were earlier at Lahore, although the same have in recent years been shifted to Islamabad. The apparent incompatibility in the observations made in the impugned judgment would itself be enough to vitiate its sanctity. The employees were thus not precluded from preferring their claims before the 'Authority' under the Payment of Wages Act, at Lahore.
16. The learned lower Court seems to have fallen Trey to some confusion in that regard, and is unnecessarily endeavouring to propel them to other far-off places for claiming their arrears. It has been pronounced in PLD 1983 Lahore 326 that if the Court concerned has taken down all the available evidence, discussed it, and arrived at a correct decision, the question of lack of territorial jurisdiction will be relegated to obscurity. The matter has been examined threadbare by the '
Authority' the Labor Court, as also the High Court, in Writ Petition No,2126 of 1981, disposed of on 16- 5-1984. It would amount to entering upon the whole exercise afresh, if the affected are obliged to approach the competent forums at other places, as already said, for redressed of their grievances or enforcement of their rights. Several out of them are no longer alive, and a number of others have retired from service, and those who are luckily living have become very old and infirm and can hardly walk and stand without supports, and one cannot but take mercy upon them. They have been through the grinding machinery of legal process in seeking justice over decades together; and, if they, or their dependents, ultimately succeed in securing their emoluments (arrears, as also compensation) the ' Authorities' of the Railways should not grudge it.
17. I, however, realize, at the same time, that Pakistan is a poor country and the Railway Department is known to be always running in deficit, although responsible for its malfunctioning are the officers or the personnel of the Railways themselves. I think if the Department, ultimately, is inclined or prepared to part with the amounts, which the petitioners lay claim to, without further delay, six times instead of ten times of the emoluments (difference in pay, as also mileage allowance) ought to be awarded to them as compensation. If, however, the 'Authorities' of the Railways are still hesitant or reluctant to make payment of the compensation to the affected, the latter may be held entitled to more than that, say, eight times or even ten times the amount due as compensation, depending on the length of further period, over which the payment is with-held. I feel, it will take quite some time for the 'Authorities to calculate the amounts payable, especially the mileage allowance of each claimant; but the exercise shall be taken in hand right now and calculation completed within a period of six months, so that the process of actual payment is not delayed further.
18. The learned Labor Court, in rendering the impugned decision has seemingly committed material irregularities entailing miscarriage of justice, and the decisions are, therefore, liable to interference and rectification by this Tribunal, in exercise of its provisional jurisdiction. I would allow the revision petitions and set aside the consolidated judgment of the Labor Court, disposing of the three cases. The petitioners are also held entitled, for obvious reasons, to claim costs of the litigation throughout.