1. A joint application was filed by Messrs Akbar Khan, Mir Anwar Hussain and Mir Haider against (1)
2. Managing Director, M. C. P., 26-Gulberg Road, Lahore. (2) Area General Manager, M. C. P., C-24-B Federal 1B' Area, Karachi (3). The Deputy General Manager, M. C. P., WAPDA Colony, Jamshoro and Principal Earth-Moving Training Academy, M. C. P., WAPDA Colony, Jamshoro, Sind, under sections 15 and 16 of Payment of Wages Act, 1936.
3. The brief contents of the application is that all the applicants are working as practical Instructors under Opponent No. 3 and the applicants were not fixed in the consolidated pay scales effective from 1-2-1962 and were refixed in the year 1974 and the arrears of refixation as claimed by the applicants.
4. Rs.
(1) Mr. Akbar Khan2,979.00
(2) Mr. Anwar Hussain3,369.00
(3) Mr. Mir Haider2,632.00 and as the same was not paid, this application was filed.
5. On the pleadings of both the parties the following issues were framed :--
(1) Whether the applicants are covered under the Payment of Wages Act, 1936.
(2) Whether the application is time-barred.
(3) Whether this Court has got jurisdiction to try the matter.
(4) Whether the applicants are entitled to relief claimed, if so to what extent.
(5) What should the order be.
6. The following documents were produced on record by both the parties :--
(1) Copy of letter dated 10-7-74 from Addl. Chief Secretary Government of Sind Irrigation and Power Deptt. To Chief Engineer, Irrigation Sukkur regarding Revision of pay scales for practical instructors of Earth moving Training School, M. P. O., WAPDA, Jamshoro as Exh. P. 1.
(2) Copy of application by the applicants dated 11-11-1974 address--ed to Addl. Chief Secretary, Government of Sind, Irrigation and Power Deptt. Requesting for payment of arrears as Exh. P. 3.
(3) Pay envelop and monthly pay record of Anwar Hussain show--ing difference of pay paid to the applicant No. 2 Anwar Hussain as Rs. 350 as Exh. P. 2.
(4) Copy of letter addressed by Addl. Chief Secretary of Irrigation & Development Deptt. To Section Officer (SP-II), Government of Sind F. D., Karachi regarding grant of consolidated pay scale and National Pay Scale to the Practical Instructors of the Earth--moving Training School M. P. O. WAPDA, Jamshoro as Exh. P. 4.
(5) Copy of letter dated 19-7-1975 addressed by Workshop Accoun--tant M.C.P. Jamshoro to the Principal, Earth-Moving Training School, M. C. P., Jamshoro regarding the calculation if liable to the applicants are Exh. P. 5.
(6) Copy of the letter addressed by Deputy General Manager, M. C. P., Jamshoro to the Superintending Engineer, Mechanical Circle Sind, Hyderabad with copies of Principal, Earth-Moving Training School & Workshop Accountant regarding liability of the claim/arrear pertaining to M. P. O., WAPDA period and also to be paid by M. C. P. As Exh. P. 6.
(7) Copy of letter by the Additional Chief Secretary dated 10-8-76 addressed to the Chief Engineer, Irrigation Sukkur Barrage, Sukkur, regarding payment of the arrears by the WAPDA as Exh. P. 7.
(8) Copy of Telex dated Nil sent by P. O. M. C. P., Karachi to the Manager Equipment and Disposal with C. C. To Personnel Manager, M. C. P., Lahore for payment of the arrears to the applicants as Exh.
7. P. 8.
(9) Copy of certificate of Registration issued by the Sind Board of Technical Education regarding registration of Earth-Moving Training School as Exh, P. 1.
8. I have gone through the entire evidence and the arguments forwarded by both the parties:-- Issues Nos. 1, 2 and 4: Issues Nos. 1, 2 and 4 as they are inter linked.
9. "The opponents had contended that the applicants are civil servants and as such they are covered under Essential Services Act, 1951 and also that the application is not properly stamped and hence not maintainable.
10. But during the entire evidence the respondents have not produced any documents or have been able to prove that the applicants are Civil Servants or are covered under the Essential Services Act.
11. On the contrary the applicant has stated in his statement and cross-examination that M. C. P. Is not a Factory but a company and his job is to practically dismantle the machine and put it back and to take the trainees to the field job. The defence witness Mr. Muhammad Younus has also admitted in the cross-examination that M. C. P. Is an independent Entity main--taining its own accounts and funds and are not subjected to the control of the Government Department. Further he adds that M.
12. C. P. Is basically a Contractors firm registered with Sind Technical Board of Education has no bearing or effect on the terms and conditions of the application. I have not produced any notification giving the cover of Essential Services to the Opponent's firm."
13. From all these statements it is nowhere evident that the applicants are Government servants and are basically workers employed by the Con--tractors to impart practical /technical training and are workers hence they are duly covered under the Payment of Wages Act as they have their own terms and conditions are not governed by the Service Rules and also the funds from which are paid wages as stated by the D. W. In his cross examination was not subject to Government contract.
14. Hence I hold that the application is maintainable as it is properly stamped and the applicants are workers only covered under Payment of Wages Act and also the jurisdiction is not ousted as High Court has held in Authority PLD 1978 Kar. 64 : "we are inclined to the view that there would be inconsistence between the two methods, only where the wages and conditions of service have actually been regulated under the said Act, and that mere issuance of a Notification applying the provisions of the said Act, to any class of employees or the framing of Rules by the Federal Government under section 6 of the said Act (Essential Services Act) delegating its powers to prescribe or regulate the wages and condi--tions of service of employees to whom the provisions of the Act, have been made applicable, would not necessarily mean, without actually regulating their wages, and conditions of service under the said Act (Essential Services Act), that the provisions of the said Ordinance, relating to their wages and the terms and conditions of employment, and their right to seek redress in respect of such matters, under the said Ordinance, would stand excluded 1978 PLC 30 : "these provisions i.e. Provisions of section 7-A of the Essential Services Act, 1952 cannot by any stretch of imagination, be deemed to be ousting the provisions of the Payment of Wages Act, are not in any manner contrary to those of the Essential Services Act, 1952. Section 7-4-applications of provisions---provisions of section 7-A, held, does not oust operation of Payment of Wages Act, that the jurisdiction is not ousted of this forum.
15. Issue No. 3; The applicants has claimed arrears of pay since 1-12-1962 but the claim was decided upon by the respondents in 1974 after such corres--pondence. The applicants have filed present application on 27-3-1978 as the claim was pending for want of fixation and the same was decided in year 1974. 1 hold that the cause of action arose in year 1974 and as such it was not accepted by the applicants and correspondence was again initiated by the application as per Exh. P. 3 letter dated 11-10-1974. 1 hold that the matter is within time as that matter was again shuttled back and forth till a decision was reached vide Exh. P. 7 letter dated 1976 and Exh. P. 2-1976. There the claim was very much alive and was still pending to be settled till the final filing of the application hence I hold that the applications is within time as the claim was not finally decided till the filing of the application and the applicants were also not informed of the latest decision by the respondent till 1978 but the correspondence was resting with the respondents for decision.
16. Issue No. 5; The respondents have made a part payment to the applicant as per Exh. P. 2 which the pay envelope of applicant Anwar Hussain showing difference of pay paid to the applicant amounting to Rs. 360 Exh. P. 6 is the letter of Deputy General Manager who is their immediate boss and respondent No. 3 and he has accepted the liability of payment in the letter as arrears are pertaining to M. P. O., WAPDA period and as such will be paid by this formation. The formation being now M. C. P. Hence the liability was accepted by the responsible Officer of the Company and the claim was worked out by the legal account officer and forwarded to the Principal Earth-Moving Training School as per Exh. P. 5 amounting to Rs. 8,980 in all. Again Exh. P. 8 is a letter of con-- firmation of the claim and sent by the Personnel Officer for arranging payment. Hence all these documents prove the credibility of the claim and I do not agree with the contention of the respondents that these documents are classified as the Respondents D. W. Has stated otherwise and the only objection that is sustainable is that these documents were procured without official permission, which has no bearing on the case as the documents are copies of the original documents pertaining to the case of the applicants and are not classified. There in the light of these docu--ments the applicants are entitled to the claim as worked out by the respondents themselves.
17. Issue No. 6; Therefore, I hold that the applicants are entitled to the arrears as detailed below :- Rs.
(1) Mi. Akbar Khan2,979,00
(2) Mr. Anwar Hussain3,369.00
(3) Mr. Mir Haider2,632.00. as per amended claim allowed on 13-5-1978 and I also allow Rs. 500 each to the applicant as cost on account of the expenses and cost/relief incurred by the applicants in persuing their matter. In all I order the respondent to deposit Rs. 10,380 in this Court forthwith.