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1992PLC117

 

[Karachi High Court]

 

BejoreWasir Aslam Zahid and Qaiser Ahmad Hamidi. JJ

 

A.F. FERGUSON & CO.

 

versus

 

DISTRICT COURT, KARACHI and 20 others

 

Constitutional Petition No. D-641 of 1983, decided on 26th October; 1991.

 

 

Rehan Aqueel for Petitioner.

 

Nemo for Respondents Nos. 1, 2 and 21.

 

Ali Amjad for Respondents Nos. 3 to 20.

 

Date of hearing: 30th September, 1991.

 

 

JUDGMENT

 

QAISER AHMED HAMIDI, J.—The question that has been raised in this constitutional petition filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, read with Article. 9 of the Provisional Constitution Order, 1981, relates to the interpretation of section 12 of the West Pakistan Shops and Establishments Ordinance, 1969, when read together with section 6 of the Employees’ Cost of Living (Relief) Act, 1973.

 

2. The facts arc simple and may be briefly summed up. The petitioner is a professional firm of Chartered Accountants. On or about 16-6-1980, the respondents Nos.3 to 20 who were employees in the workmen category in the establishment of the petitioner firm filed applications before the Authority under section 12 of the West Pakistan Shops and Establishments Ordinance, 1969, the respondent No.2, claiming that the petitioner firm had not given Rs.35 p.m. as cost of living allowance to them under the Employees’ Cost of Living (Relief) Act, 1973. The petitioner firm contested these applications and besides various other pleas raised the plea of limitation. Since the said 18 applications were for the same claim and based on the same allegations, the respondent No.2 consolidated all the applications. The issue of limitation was treated as preliminary and was decided vide order dated 31-3-1981. The objection taken by the petitioner firm was overruled for the following reasons:–

 

“Mr. Osmani conceded that in their written statement they have claimed that cost of living allowance of Rs.35 p.m. has been paid to the applicants and that the applications have been filed frivolously and vexatiously. He also conceded that the photostat copies of documents filed by the opposite-party and on which they intended to rely have not been admitted by the counsel of other side and hence the contention that opponents have paid the COLAS required legal evidence and proof. It was also conceded by him that the payment of cost of living allowance is a continuous and regular liability and responsibility of the employer under section 4 and no limitation under section 6 of the Ordinance has been prescribed. The argument cannot therefore be accepted in vacuum.

 

To show increase in Dearness Allowance and to claim set off from the Dearness Allowance so paid, the opponents have given photostat copy of extract from the Payment Registers of the applicant and having presented such copies of documents for acceptance or denial after the issues were framed, there is hardly any basis for the present application. This is hardly rational in labour matters when the purpose is to compel, employers to make the full. payment of wages to certain class of employees covered by the Act.

 

Mr. Osmani also conceded that the authority cannot travel beyond the scope of the issues already framed by the free consent of patties and free admission that the application is maintainable under section 6 of the Cost of Living (Relief) Act, 1973 as under section 9-of this Act, they employer is liable to punishment if contravention has been committed and section 10 provides for taking cognizance of the offence by the Court. Since the payment of COLAS by the employers has been trade the responsibility under the coercive. provisions and machinery provided under the Act and hence the bar of limitation by implication cannot be pressed into service. So, if it is established by the applicants that payment of Cost of Living Allowance has been with-held and that. . such payment is recoverable- under the Act of1974, -then, they will :..` succeed and if not, they will fail in their claim: The cost of living allowances have been paid or not will require evidence. In case, payment has not been made, then premium of such non-payment of cost of living allowance cannot be legitimated by the plea of limitation. was therefore unable to see force in such a technical argument and I had. come to the conclusion that there was no substance in this application which is hereby rejected and repelled.”

 

3. The cases then proceeded and common evidence was led. On the assessment of evidence the respondent No.2 awarded Rs.35 p.m. to be paid to each of the above respondents as cost of living allowance with effect from 1-8-1973. This order dated 20-1-1982 was challenged by petitioner firm before the District Judge, Karachi, the respondent No.l, before whom the only point which was agitated was the issue of limitation and the same was, rejected for the following reasons:–

 

“Subsection (2) of section 12 of the Ordinance is applicable when a claim is tiled by an employee for the wages which has been withheld contrary to provisions of said Ordinance. These applications however are not filed under the said Ordinance, but are filed under Employees’ Cost of. Living Act, 1973 before the Authority, appointed under subsection (t) of section 12 of the Ordinance as provided under section 6 of the Employees Cost of Living Act, 1973. Section 7 of this Act clearly lays down, that the Cost of Living Allowance shall not form part of wages. Section 4 of the said Act lays down, that every employer shall be responsible for the payment of the cost of living allowance required to be paid under this Act. No period of limitation has been fixed under this Act for claiming the Cost of Living Allowance admissible under this Act. Under section 9 penalty has been provided for the employer, who contravenes any provision of this Act. Thus the period of limitation as laid down under subsection (2) of section 12 of the Ordinance for claim of wages, would not be applicable in a case of application for claim of the relief as provided under the Act. No limitation is provided for preferring the claim under the Act. In 58 Madras 340 it is held, that Laws of limitation are creatures of statute, and the Courts have no jurisdiction to import a rule of limitation where the legislature has failed to prescribe a period.

 

Under Article 112 of the Limitation Act the limitation for a suit for which no period of limitation is provided elsewhere in this schedule is six years from the date, when the right to sue accrues. Under section 23 of Limitation Act, in the case of continuing breach of contract and in the case of a continuing wrong independent of contract a fresh period of limitation begins to run at. every moment of the time, during which the breach or the wrong, as the case may be, continues. The respondents became entitled to receive the relief under the Act every month after its publication on 7th January 1974 in the Gazette extraordinary. Non-payment of relief to the respondents raises a fresh cause of- action against them every month. It also appears from the record that respondents had been moving the appellant for the payment f the relief under the said Act.

 

As already pointed, the appellants have specially pleaded limitation only under subsection (2) of section 12 of the Ordinance, which a. already discussed above, is not applicable to the present proceedings. The plea of limitation raised by the appellant is therefore rejected.”

 

4. It is in these circumstances that the petitioner firm has invoked the constitutional jurisdiction of this Court with the prayer that the orders passed by respondent No .2 dated 20-1-1982, and by respondent No. 1 dated 5-6-1983 be set aside, quashed and/or declared null and void as being without lawful authority.

 

5. Since the decision of the present petition hinges on the interpretation of section 6 of the Employees’ Cost of Living (Relief) Act, 1973, and section 12 of the West Pakistan Shops and Establishments Ordinance, 1969, it would be convenient to read the mateial provisions which are in the following terms:-

 

“6. Claims for recoverd or delay in payment. of cost of living allowance.-

Where contrary to the provisions of this Act, the Cost of Living Allowance of any employee has been withheld or delayed, such worker himself or through any other person authorised by him in this behalf may apply–

 

(a) in the case of an establishment to which the West Pakistan Shops and Establishments Ordinance, 1969 (W.P. Ordinance NO.VIII of 1969), for the time being applies, to the authority appointed under subsection (1) of section 12 thereof having jurisdiction and the provisions of the said section and sections 11, 13, 21, 23, 30 and 32 of that Ordinance shall so far as may be and with the necessary modifications, apply for the purpose of recovery of the cost of living allowance; and 1 (b)- m any other case, to the authority appointed under subsection (1) of section 15 of the Payment of Wages Act, 1936 (IV of 1936), having jurisdiction and the provisions of the said section and sections 6, 16, 17,18,19, 22, 23 and 26 of the said Act shall, so far as may be and with the necessary modifications, apply for the purposes of recovery of the cost of living allowance.”

 

6. Section 12 of the West Pakistan Shops and Establishments Ordinance, 1969; reads as follows: .

 

“12. Claims arising out of delay in payment of wages and penalty, for malicious or vexatious claims. (1) Government may, by notification in the official Gazette, appoint any person to be the Authority to hear and decide for any specified area all claims arising out of delay in the payment or non-payment of the wages of employees in that area.

 

(2) When contrary to the provisions of this Ordinance, wages of any employee have been delayed or withheld, such employee himself or through any other person, whom he may authorise in this behalf, may within four months from the day on which such payment was to be made, apply to the Authority appointed under subsection (1):

 

Provided that an application may be admitted after the said period of four months but not later than six months, if the applicant satisfies the Authority that he had sufficient cause for not making the application within such period.

 

(3) When any application under subsection (2) is entertained, the Authority shall hear the applicant and the employer or other person responsible for the payment of wages or give them an opportunity of being heard and, after such further inquiry if any, as may be necessary, may without prejudice to any other penalty to which such employer or other person is liable under this Ordinance, direct that payment be made to the applicant of delayed wages together with the payment of such penalty, not exceeding fifty rupees, as the Authority may fix:

 

Provided that no direction for the payment of penalty shall be made in the case of delayed wages if the Authority is satisfied that delay was due to–

 

(a) a bona fide error or bona fide dispute as to the amount payable to the employee; or

 

(b) the occurrence of an emergency, or the existence of such exceptional circumstances that the person responsible for the payment of the wages was unable to make prompt payment; or

 

(c) the fault of the employee.

 

(4) If the Authority hearing any application under the section is satisfied that it was either malicious or vexatious, the Authority may direct that a penalty not exceeding fifty rupees be paid to the employer or other person responsible for the payment of wages by the person presenting the application.

 

(5) Any amount directed to be paid under this section may be recovered–

 

(a) , if the Authority is a Magistrate, by the Authority as if it were a fine imposed by him as Magistrate; and

 

(b) if the Authority is not a Magistrate, by any Magistrate to whom the Authority makes application in this behalf as if it were fine imposed by such Magistrate.

 

(6) An appeal against a direction made by the Authority under subsection (3) or subsection (4) may be preferred to the District Court within thirty days of the date on which the direction was made:–

 

(a) by the employer or other person responsible for the payment of wages under section 11 if the total sum directed to be paid by way of wages and penalty exceeds one hundred rupees; or

 

(b) by an employee if the total amount of wages claimed to have been withheld from or from the unpaid group to which he belonged, exceeds fifty rupees; or

 

(c) by any person directed to pay a penalty under subsection (4).

 

(7) If there is no appeal, the direction of the Authority made under subsection (3) or subsection (4) shall be final, and where there is an appeal as provided in subsection (6), the decision in appeal shall be final.

 

(8) An Authority appointed under subsection (1) shall, for the purpose of determining any matter referred to in subsection (3) or subsection (4)-

 

 

(a) have all the powers as are vested in a Civil Court under the Code of Civil Procedure, 1908 (V of 1908), for enforcing the attendance of witnesses; compelling the production of documents, and the taking of evidence; and

 

(b) be deemed to be a Civil Court for all the purposes of section 195 and Chapter XXXV of the Code of Criminal Procedure, 1898 (V of 1898).”

 

7. On going through the provisions of section 6 of the Employees’ Cost of Living (Relief) Act, 1973, and taking into consideration section 12 of the West Pakistan Shops and Establishments Ordinance, 1969, we have not discovered the result which the learned counsel for the petitioner asks us to hold by putting a wide interpretation to the words “and the provisions of the said section” used in clause (a) of section 6 of the Employees’ Cost of Living (Relief) Act, 1973, meaning thereby that subsection (2) of section 12 of the A West Pakistan Shops and Establishments Ordinance 1969, which prescribes the period of limitation, would apply to such proceedings. Apparently no period of limitation is prescribed for making a claim under section 6 of the Employees’ Cost of Living (Relief) Act, 1973. The Limitation Act, 1908, does not apply to matters not dealt with by it and since such laws take away the existing rights they should be applied in favour of the rights sought to be defeated. The Employees’ Cost of Living (Relief) Act, 1973, is a beneficial legislation and the Courts should be generous towards the persons who are benefited out of this legislation.

 

8. Subsection (2) of section 12 of the West Pakistan Shops and Establishments Ordinance, 1969, takes its colour from the words “when contrary to the provisions of this Ordinance” wages of an employee have been A delayed or withheld. The words “this Ordinance” are specifically referred to the West Pakistan Shops and Establishments Ordinance, 1969, and period of limitation prescribed under subsection (2) of section 12 relates to wages of an employee which have been delayed or withheld contrary to the provisions of the West Pakistan Shops and Establishments Ordinance1969 and: not otherwise.

 

9. Efforts should also be made to avoid a construction which renders any part of statute redundant or surplus. The words “shall so far as may be and with the necessary modifications, apply for the purpose of recovery of Cost of Living Allowance” used at the end of clause (a) of section 6 of the Employees’ Cost of Living (Relief) Act, 1973, again make it clear that the provisions contained in sections 11, 12, 13, 21, 23, 30 and 32 of the West Pakistan Shops and Establishments Ordinance, 1969, are to be applied for the purpose of recovery of the Cost of Living Allowance with the necessary modifications. The provisions of the Employees’ Cost of Living (Relief) Act,. .1973, therefore, cannot be interpreted in such a manner as to bring about a result -so plainly contrary to the object of the legislation.

 

10. To sum up we consider that the words “and the provisions o-t the said section” used in clause (a) of section 6 of the Employees’ Cost of Living (Relief) Act, 1973, must of necessity be construed in a more restricted sense and the context in which subsection (2) of section 12 of the West. Pakistan Shops and Establishments Ordinance, 1,969i occurs:

 

11. It will not be out of place to mention here that `the payment’ of cost of living allowance is a continuous and regular liability of the employers. The respondents Nos3 to 20 had, therefore, a recurring cause of action and in case of a legislation which was for the benefit of workmen the legislative purpose should not be unduly curtailed by straining the language a little too far.

 

12.. In view of what we have stated above, there is no room left for the C argument that the claim of respondents Nos.3 to 20, being barred by time, the orders passed by respondents Nos.2 and 1 respectively ‘were illegal. The petition has got no merits and is accordingly dismissed with no order as to costs. By a short order dated 30-9-1991 we had dismissed this petition. This judgment would furnish the detailed reasons-.

 

 

AA./S-1125/K Petition dismissed.

 

 

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