' MAJIDA RAZVI, J.---This petition has been filed with the following prayer:-- "1. Declare and hold that assumption of suo motu revisional jurisdiction by respondent No,2 in the matter of Payment of Wages Act is illegal, unlawful and without jurisdiction and decision delivered by the said respondent being without jurisdiction is null and void;
2. Declare and hold that the provision of Payment of Wages Act are not applicable to Municipal Servants including respondent No,1 and decision delivered by the learned Authority dated 30-6- 1987 is illegal and void ab initio;
3. Any other relief or reliefs as this Hon'ble Court may deem fit under the circumstances of the case."
2. The brief facts are that the respondent No,1 was employed as sweeper in the Health Department of the petitioner and was posted at Slaughter House at Landhi. He was employed in July, 1967 at the age of 45 years and accordingly he attained age of 60 years in July, 1982 and accordingly should have retired. But it was found that some interpolation was made in regard to his date of birth in the service book and his year of birth was changed from 1922 to 1924 and, as such, the said respondent No,1 continued to work upto 20-5-1984 drawing his salary and all the benefits and retired on 21-5- 1984. The petitioner forwarded his retirement papers to the Assistant Director, Local Fund Audit for the settlement of his accounts and it was there that the interpolation in regard to the date of birth was detected and the papers were returned to the petitioner. This duly continued for a few months after the retirement of the respondent No,1 when on 20-10-1984 he wrote a letter to the petitioner that as his pension dispute is pending for some time and he has come to know that there is a dispute in regard to his age, as such, whatever extra money he has withdrawn be deducted from his dues and the matter should be finalised and the amount be paid to him. On this application, the Audit Department deducted a sum of Rs,16,940.82 for his over stay and made the balance payment to the said respondent. Later on, after receiving the said amount, the respondent No,1 made an application under subsection (2) of section 15 of the Payment of Wages Act, 1936, challenging the deduction made by the petitioner and the said Authority vide its order dated 30-6- 1987 held that the sum of Rs,16,940.82 deducted by the appellant was an illegal deduction as the applicant was entitled to his wages and further granted a compensation for the said illegal deduction. The total amount including Rs,16,940.82 coming to Rs,67,763.28. Against this order the petitioner filed an appeal before the Sindh Labour Court at Karachi which, vide order dated 19-10- 1987, set aside the order of the Authority dated 30-6-1987 and refunded the amount deposited by the petitioner. Respondent No,1 filed a Revision Petition bearing No,KAR-454 of 1987 before the Labour Appellate Tribunal who allowed the suo motu revision application of the respondent No,1, set aside the order passed by the Labour Court and restored the order passed by the Authority. It is against this decision that the petitioner has filed the present petition.
' The contention of Mr. Yasin Kiyani, learned counsel for the petitioner that the impugned decision is without jurisdiction and is arbitrary as under section 38(3)(a) of IRO, 1969 suo motu jurisdiction could be only invoked if the proceedings were under the IRO and not matters arising out of Payments of Wages Act and as such the impugned judgment is null and void and liable to be set aside.
' On the other hand, Mr. S.A. Charm, learned counsel for the respondent No,1 contended that the authority was correct in awarding the wages which have been deducted by the petitioner and also in awarding compensation as the respondent No,1 has suffered due to non-payment of his dues.
' Mr. Muneeb Ahmed Khan, the learned A.A.-G., however, was fair enough to concede that even if there was manipulation in the service book of the respondent No,1 the same must have been manipulated with the connivance of some of the officers of the petitioner as is evident from the evidence of the representative of the petitioner who deposed before the Court and as such the respondent No,1 is entitled to receive his wages for the two years that he worked with the petitioner.
' We have heard the counsel and have perused the decisions/orders passed by the Authority, the Labour Court and the Tribunal which has been impugned herein.
It has been admitted by the representative of the petitioner while deposing that the manipulation in the service book in regard to the date of birth of the respondent No,1' was made in the office of the petitioner. Obviously, the service books are not in the custody of the employees but are always with the employers and, if any manipulation was made in regard to the date of birth of the respondent No,1 it must have been made with the tacit approval and connivance of the officers of the petitioner as stated by the learned A.A.-G. This manipulation allowed the respondent No,1 to work for a further period of two years. As such, the responsibility of manipulation is equally on the petitioner.
' Be that as it may, the fact is that the respondent No,1 has asked for those two years and as such is entitled to his wages. We may point out to Ground (e) of the petitioner wherein the petitioner has stated that "the petitioners have not deducted the amount at their own as the matter was yet pending before them but on voluntary application of respondent No,1...And without prejudice if the respondent No,1 was entitled to any amount then he was only entitled to the principal amount of Rs,16,940.82". This indicates that the petitioner, realising the fact that the respondent No,1 had worked with them for the two years that he over stayed, is entitled to his wages. The conduct of the petitioner in sending the papers of the respondent No,1 to the Audit Department, without referring to the period of over stay, also indicates the same intention.
In the circumstances we are of the considered view that the respondent No,1 is entitled to receive his wages for the period of two years that he over stayed with the petitioner. We, therefore, up hold 'the order of the learned Sindh Appellate Tribunal and declare that the respondent No,1 is entitled to refund of a sum of Rs,16,940.82, which was illegally deducted from his dues. The above are the reasons for short order passed on 4-9-1998.
' SARMAD JALAL OSMANY, J.--- I agree.