' The brief facts out of which the present writ petition arises are that the petitioner's husband was appointed by the respondents as Building Inspector on 6-1-1988. The respondents dismissed the husband of the petitioner on 12-1-1991. The petitioner's husband being aggrieved flied departmental appeal before the Appellate Authority which was accepted by the Appellate Authority vide order dated. 27-10-1996. The husband of the petitioner was reinstated by the Appellate Authority vide the above said order. The husband of the petitioner did not receive the salary during his life time and petitioner's husband died on 17-1-1999 leaving behind the petitioner and four children. The petitioner filed an application under section 15 of the Payment of the Wages Act, in the Court of Workman Commissioner on 14-10-2000 which was accepted by the said authority vide order dated 31-10-2001. The respondents being aggrieved filed an appeal before the Punjab Labour Appellate Tribunal, Lahore which was partly accepted vide judgment dated 18-9-2002. The petitioner being aggrieved filed this writ petition.
2. The learned counsel of the petitioner submits that the petitioner filed an application before the Workman Commissioner under section 15 of the Payment of the Wages Act, 1936. The respondents have only remedy to file an appeal against the order of the Workman Commissioner under section 17 of the said Act before the Labour Court within 30 days. The respondents filed appeal after 44 days before the Punjab Labour Appellate Tribunal, Lahore, which was not competent. The learned Punjab Labour Appellate Tribunal, Lahore, erred in law to entertain the appeal of the respondents.
3. The learned counsel of the respondents submits that petitioner's husband was reinstated by the Appellate Authority vide order dated 26-5-1996 which was produced by the respondents before the Workman Commissioner and exhibited as Exh. R/4. According to the order dated 26-5-1996 petitioner's husband was reinstated in service from 23-5-1996 and the intervening period was treated as leave without pay and the unspent period would not be considered towards seniority.
The same was communicated to the petitioner's husband and the petitioner's husband submitted an application to assume the duty on 29-5-1996' on the basis of the aforesaid order -but this fact was not properly construed and read by the Wrokman Commissioner. The order dated 26-5-1996 was passed by the Appellate Authority whereas the order dated 27-6-1997 relied upon by the petitioner is passed by the chief Officer therefore, same is not the order of the Appellate Authority of the petitioner's husband. He further submits that the Workman Commissioner decided the case under Order 12(8) of West Pakistan Standing Orders, 1968 and the same was decided by the Wrokman Commissioner against which the respondents have only remedy to file appeal before the Punjab Labour Appellate Tribunal, Lahore, under section 30 of the Workman and Compensation Act, 1923. He further submits that the petitioner's husband was not workman and respondents' organization does not fall under the Factories Act, 1934 as is evident from the findings of the Workman Comissioner on issue No,4. He further submits that Workman Commissioner has no jurisdiction to entertain the application of the petitioner in view of sections 43 and 44 of the Punjab Local Government Ordinance, 1979 and Punjab Local Government Rules, 1997. He further submits that even under section 15 of the Payment of the Wages Act, petitioner is entitled only the payment for the period of three years whereas petitioner has to file application under section 15 of the Payment of the Wages Act within three years and is entitled for the salary outstanding for the period of three years. The petitioner admittedly filed application before the Workman Commissioner on 14-10-2000. He further urges that petitioner did not take a plea qua the maintainability of the appeal of the respondents before the Punjab Labour Appellate Tribunal, Lahore, therefore, petitioner is estopped to agitate the said plea before this. Court. In support of his contention, he relied upon Qazi Muhammad Saqib Khan v. Ghulam Abbas (2003 M LD 131). He further urges that the petitioner before the Workman Commission was not maintainable. In support of his contentions, he relied upon the following judgments:-- ' Jafakash Mazdoor Union Town Committee Sharqpur v. The Chairman Town Committee, Sharqpur.
(2001 PLC 38).
' Syed Niaz Hussain Shah Bakhari, Technician v. Oil And Gas Development Corporation Limited.
(2003 PLC 29).
' Malik Rashid Ahmad v. Member Board of Revenue (1987 SCM R 721).
4. The learned counsel of the petitioner in rebuttal submits that the respondents did not pass any operative order except the order dated 27-10-1996. The petitioner's husband was reinstated by the Departmental Appellate Authority and the respondents requested to create a new post, therefore, the operative order was passed by the respondents only on 27-10-1996. He further submits that petitioner's husband was not employee of the Board, therefore, petitioner has only remedy to file a petition before the Workman Commissioner under section 15 of the Payment of the Wages Act. He further submits that the petitioner filed the application before the said Authority under section 15 of the Payment of the Wages Act.
5. I have given may anxious consideration to the contentions of the learned counsel of the parties and perused the record.
6. It is better and appropriate to reproduce section 15(2) Proviso I and II and section 1(4) to resolve the controversy between the parties:-- ' Section 15(2) Proviso-1 "Provided that every such application shall be presented within three years from the date of which the deduction from the wages was made or from the date of which the payment of the wages was due to be made as the case may. Be."
' II. Provided further that any application may be admitted after the said period of three years when the applicant satisfies the Authority that he had sufficient cause for not making the application within such period."
' Section 1(4): ' It applies to the payment of the wages to a person employed in any factory and to a person employed (otherwise than in a factory) upon any Railway by a Railway Administration or either directly or through a special contractor, by a person fulfilling the contract with the Railway Administration."
7. It is admitted fact according to the petitioner, petitioner's husband was reinstated on 27-10-1996 and according to the respondents, petitioner's husband was reinstated on 26-5-1996. The petitioner's husband died on 17-1-1999. The petitioner filed this application on 14-10-2000. The petitioner did not file any application alongwith the petition for condonation of delay before the Workman Commissioner. It is settled principle of law that delay cannot be condoned without filing the application as per principle laid down by the Honourable Supreme Court in Ata Ullah Malik v.
The Custodian Evacuee Property West Pakistan and others (PLD 1964 SC 236). It is also admitted fact that Workman Commissioner decided the case keeping in view the Order 12(8) of the West Pakistan Standing Orders, 1968, coupled with the fact that the petitioner filed application before the Workman Commissioner under the provisions of the Payment of Wages Act, 1936. The respondents have to file appeal under section 17 before the Punjab Labour Appellate Tribunal, Lahore, It is settled principle of law that question of law can be raised at any stage of the proceedings as per principle laid down by the Honourable Supreme Court in Abdullah Khan and others v. Nisar. Muhammad Khan and others (PLD 1965 SC 690). It is also admitted fact that petitioners did not agitate the question of maintainability of the c appeal of the respondents before the Punjab Labour Appellate Tribunal, Lahore. It is also admitted fact that the petitioner's husband is a civil servant by virtue of section 44 of the Punjab Local Government Ordinance, 1979, therefore, the Workman Commissioner has no jurisdiction to entertain the application of the petitioner. In arriving to this conclusion, I am fortified by the law laid down in Syed Imran Raza v. Administrator Zila Council, Gujranwala and others (1997 SCM R 1460) and WAPDA and another v. Muhammad Arshad Qureshi (1986 SCM R 18). It is also settled principle of law that writ petition is not maintainable where the substantial justice has C been done between the parties. 'The petitioner's claim was partly accepted by the Punjab LabOur Appellate Tribunal. The respondents did not challenge the order of the Punjab Labour Appellate Tribunal, Lahore, before this Court. In this view of the matter, writ petition is dismissed and the judgment of the Punjab Labour Appellate Tribunal, Lahore, is up held. The respondents are directed to pay the outstanding of the petitioner in terms of the judgment of the Punjab Labour Appellate Tribunal, Lahore, positively within one month from today.
' With these observations, the writ petition is disposed of.