1991 PLP 853 (PLC(CS))

NA. Talpur for Respondents. Date of hearing: 5th May, 1991. This is an appeal against the order of learned Presiding Officer, Sindh Labour Court No. VI at Hyderabad, dated 2-12-1990, whereby the grievance application of the appellant was rejected.

2. I have heard Mr. Bashir Awan, the learned Advocate for the appellant and Mr. NA. Talpur, learned Advocate for the respondents and have also gone through the record and proceedings of the case.

3. The brief facts of the case are that the appellant was employed by the respondents initially as a Technician in Grade IV, but, was re-designated as Plant Operator in the same Grade IV with effect from 20-2-1982. The respondents in pursuance of a settlement with C.BA., revised the grades of its employees including the grade of the appellant vide order, dated 28-6-1984 effective from 14-6-1984; under which the grade of the appellant was revised from IV to V with effect from 14-6-1984. However, the respondents did not give the revised grade to the appellant, who thereafter served grievance notice upon the respondents and filed the grievance application before the learned Labour Court; which was resisted by the respondents inter alia on the grounds that the grievance notice was time-barred and that the promotion was not a guaranteed right.

4. It is not disputed that the grade of the employees of the respondents was revised by Annexure A/1, dated 28-6-1984, effective from 14-6-1984. The Plant Operators are shown at Item No.

22. Their existing grades were IV and VI; while the revised grades were V, VI and VII. Mr. NA. Talpur, the learned Advocate for the respondents has relied upon the note opposite this item, which into brackets reads "subject to performance, nature of job, qualification and service". This note has to be read in the light of the qualification contained in the last para of Annexure A/1, which reads as under:-- "The case of these workers who are already in their new starting or subsequent new grade can be considered) or placing in subsequent grade individually and purely on the basis of good performance, above average attendance, qualifications and length of service."

5. It would be seen that in old grades as well as in new grades the Plant Operators could be placed in 3 grades. The note in brackets relates to the question as to in which grade the Plant Operator is to be placed or to be promoted. No doubt promotion would be subject to performance, nature of job and qualification and service, but, the placement in the minimum revised grade would be automatic as the employee cannot be placed in a grade, which is lower than the minimum grade provided for the post which the employee holds. Under the revised grades the minimum grade for the post of Plant Operator is Grade V. There is no provision under the revised grades for placing the Plant Operator in Grade IV..

6. Mr. NA. Talpur, the learned Advocate for the respondents contends that promotion is not a vested right of the workman, which he can enforce through the Labour Court under section 25-A, I.R.O., 1969. In support of his contentions, he has relied on a decision of this Tribunal in the case of Muhammad Ayub Chandio v. Secretary to Government of Sindh, Communication and Works Department and 3 others, reported in 1985 P L C 872 and in the case of Zakir Hussain v. Managing Director, Karachi Water and Sewerage Board and another reported in 1985 P L C

261. Similar view was held by this Tribunal in the case of SA. Baseer v. Divisional Superintendent, Pakistan Railways, Sukkur and 3 others reported in 1981 P L C

494. It may be noted that in the present case, the appellant does not claim promotion but, in the prayer clause of his grievance application, he has prayed for direction to the opponent organisation to revise the grade of the applicant from IV to V in terms of its own policy Annexure A/1 and make the payment of the consequential benefits whatsoever In para. 3 of the grievance petition, the appellant has averred that this revision of grades took place in pursuance of the settlement. In the reply statement, the respondents have not specifically denied this averment and have not asserted that this revision of grades was not in pursuance of the settlement. The rights guaranteed under the settlement can undisputedly be enforced through the Labour Court under section 25-A of Industrial Relations Ordinance, 1969.

7. The question that requires consideration is whether this prayer of the appellant to be put in higher Grade V amounts to promotion. Mr. NA. Talpur, learned Advocate for the respondents has relied upon the decision of Honourable Supreme Court of Azad Jammu and Kashmir, reported in 1990 P L C (C.S.)

598. In that case under Rule 17(1) of the Rules of Business of Azad Jammu and Kashmir Government; the promotion to higher grade could not be given without consultation with the Public Service Commission, so also the promotion from non-gazetted post to gazetted post or from gazetted post to a higher grade. Therefore, their Lordships had held, that mere upgradation of post did not result in the promotion of service of person concerned unless it was done in consultation with the Public Service Commission, as required under Rule

17. There are no such Rules in the instant case. Mr. NA. Talpur had relied upon Annexure R-2 which is an office order, dated 13-9-1987, which is with regard to the policy regarding promotion of the workers. This office order cannot be retrospectively applied to the cases due for consideration for promotion in 1982. Mr. Talpur has also relied upon a case of Zakir Hussain Syed v. Secretary to Government of Pakistan, Ministry of Culture, Archaeology, Sports and Tourism reported in 1983 P L C (C.S.) 119; wherein the post of Director was upgraded from 19 to 20 and Mr. Zakir Hussain Syed who occupied the post of Director claimed to be placed in Grade

20. It was held by the learned Service Tribunal that it could not be taken for granted that merely because the pay scale for the Director was prescribed in NPS 20, it automatically became applicable to the appellant. Unless the appellant was formally appointed in Grade 20, upgradation of the post from Grades 19 to 20 would not automatically upgrade him also. It may be pointed that civil servants have got their own Rules of Service and Promotion, which are not applicable to the workmen. In the instant case, it is not the case of promotion, but, it is a case of re-fixation of grade and pay. The Plant Operator prior to the revision of the grades was getting minimum pay scale of Grade-IV though he could be promoted or even appointed in Grades V and VI depending upon his qualifications etc. However, by revision of the pay scale the minimum pay that the Plant Operator was entitled to get was of Grade V though he could be placed in or promoted to Grade VI or VII depending upon his qualification etc. It is not disputed that appellant was working as Plant Operator, when the Grades were revised. Even, if he was not promoted, he was entitled to get the minimum grade and pay fixed for the post of Plant Operator after revision of grades, which was Grade-V. His promotion would be in Grade VI or VII but revision of his pay in Grade V cannot be considered as a promotion. This was a right conferred upon the Plant Operators including the appellant, after revision of pay scale and grades under which the minimum pay scale payable to the Plant Operator was of Grade V. The appellant, therefore, became entitled to have his salary fixed in Grade V from the date, the revision of pay scale became effective.

8. Mr. Talpur has also raised objection that the grievance notice given b; the appellant on 16-9-1989 was barred by time. Right to get the pay in the prescribed scale is a right that accrues to a workman every month. It is continuous right and its denial is a continuous wrong. It is not disputed that ever upto the date of grievance notice, the appellant was not given new grade viz. Grade V, therefore, he continued to remain aggrieved though he could not claim the amount of difference of salary for mere than 3 months prior to the grievance notice. Admittedly, the appellant proceeded on ex-Pakistan leave on 1-10-1984 and returned back on 8-8-1986 and during that period he was serving in another Cement Factory without permission of the employer. If he had committed any misconduct by such an act, he could have been punished for that in accordance with Law and Rules, but a right conferred upon him cannot be denied to him for that reason. The right for fixation of his salary in Grade-V accrued to the appellant from 14-6-1984, before he left Pakistan on 1-10-1984. Thus, the right when it accrued to him he was in Pakistan and in service of the respondents. It may be pointed that the appellant was given Grade V vide order, dated 10-7-1990, Annexure R-5.

9. In view of the above discussion, I allow this appeal and direct that the salary of the appellant be fixed in Grade V from 16-4-1984 and he should be given difference of his salary so fixed and the salary drawn by him uptodate since 3 months before the service of the grievance notice. H.B.T./1915/Lb. S Appeal allowed.