THE HIGH COURT OF SINDH, BENCH AT SUKKUR

IN THE HIGH COURT OF SINDH BENCH AT SUKKUR

Constt: Petition No.D–4795 of 2016

DATE OF

HEARING

ORDER WITH SIGNATURE OF JUDGE.

1. For hearing of CMA No.15584/16

2. For hearing of main case.

01.12.2020

Mr. Ghulam Abbas Akhtar Advocate for petitioners.

Mr. J.K Jarwar Advocate for respondent No.1

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The perspective of the petitioner’s case is that the respondent No.1 served in the Pakistan Railways Department for more than 29 years and retired from service in the capacity of Upper Division Clerk Sukkur, drawing pay Rs.4860/- per month. The petitioner No.1 was Pay Master of the respondent No.1 under Section 3 of the Payment of Wages Act and was responsible to correct the payment while petitioner No.2 was bill passing authority. It is further averred that during service the respondent No.1 was required in theft criminal case and remained under suspension. He then filed grievance application before Labour Court-VII which was dismissed, thereafter he filed appeal before Tribunal and learned Tribunal set-aside the order of Labour Court and reinstated him by awarding him fifty percent back benefits. The respondent No.1 later on filed an application u/s 15 before the Commissioner Workman’s Compensation under payment of Wages Act, 1936, the respondent No.2 for redressal of his grievance who accepted the prayer of respondent No.1 and matter travelled to this Court.

2. Learned Counsel for petitioners submits that the petitioners filed written statement by denying the claim of the respondent No.1 by stating that the respondent No.1 remained under suspension from 13.11.1982 to 24.07.1985, he was not paid subsistence allowance during the period of suspension as such he was not having any due salary as well as Annual increments and no illegal deduction has been made as alleged. He prayed for dismissal of order dated 04.03.2010 and 01.09.2016. That the copy of the order dated 04.03.2010 was not supplied to the petitioner despite filing of applications in this regard and eventually application u/s 11 was filed which was dismissed by order dated 24.07.1985 which order has also been impugned herein.

3. Conversely, learned Counsel for respondent No.1 submits that the respondent No.1 filed an application u/s 15 of the payment of Wages Act, 1936 before the respondent No.2 and prayer of the respondent No.1 was acceded to with directions to sanction annual increments in favour of respondent No1 for the period mentioned in para-3 and to work-out service Gratuity after correction fixation of pay and to pay Rs.80,100/- as arrears with 500/- as to cost of the case which order has not been challenged by the petitioners before any forum therefore, instant petition is not sustainable in the eye of law and is liable to be dismissed.

4. Heard learned Counsel for parties and perused the material available on record meticulously.

5. From the perusal of comments, it reveals that respondent No.2 passed order dated 04.03.2010 and prayer of the respondent No.1 was accepted and issued directions to the petitioners to sanction annual increment in favour of respondent No.1 in the light of his claim mentioned in para-3 of his application filed by him u/s 15 of the Payment of Wages Act, 1936 which order has not been assailed by the petitioners in any legal forum or authority in reply to the application filed by respondent No.1 u/s 15 of the Payment of Wages Act, 1936 in respect of recovery of decretal amount as per order dated 04.03.2020. While deciding the said application the respondent No.2 specified that “If the employer his representative fails to appear on the specified date, the authority may proceed to hear and determine the application exparte”, however, in this case the order was not passed as exparte but reply of respondents/Railway (hereinabove called as petitioners) was received and they cross examined the applicant/respondent No.1 as well, they failed to submit counter-affidavit and their witnesses did not turn-up for cross examination or sworn the affidavit nor the petitioners have challenged the order dated 04.03.2010 through their application dated 14.01.2016 i.e after lapse of about 06 years instead of one month mandatory period and application for recalling was disallowed due to legal requirements. Even otherwise the respondent No.1 filed grievance application before Labour Court-VII which was dismissed and he filed appeal before Appellate Tribunal and Tribunal vide order dated 14.11.1989 reinstated him and awarded 50% percent back benefits from the date of removal from service. Against such order, the petitioners filed Constitution Petition No.D-45 of 1990 before this Court and this Court vide order dated 21.03.1990 observed that no case for interference is made out and petition was dismissed in limine.

6. The respondent No.1 in his order dated 01.09.2016 specifically mentioned that since main order dated 04.03.2010 has not been challenged by the petitioners before appellate authority/Court hence attained finality, directed the petitioners to implement said order. For the sake of convenience the concluding para of order dated 01.09.2016 passed by respondent No.1 is being re-produced as under;

“Therefore, since the main order has not been challenged by the respondent before appellate authority/Court hence attained finality therefore, this execution application is allowed and the respondent is directed to implement the order dated 04.03.2010 and deposit the decretal amount in this Court within 30 days. In case of non-compliance the amount will be recovered as arrears of land revenue as per law”

7. Learned Counsel for the petitioner was called upon by this court to justify the order of suspension (whereby the subject increments were withheld) with the same allegation eventually leading to dismissal which stood dismissed by the final order attained finality to which the learned Counsel was unable to reply.

In view of above, the petitioners have failed to point out any illegality or material irregularity committed by the respondent No.2 while passing orders dated 04.03.2010 and 01.09. 2016. Consequently, instant Constitution petition stands dismissed being devoid of any legal substance.

J U D G E

Ihsan.