1982 PLP 52 (PLC)

This is an appeal against the decision dated 14th July, 1977 of Punjab Labour Court No. 1, Lahore.

2. Iftikhar Ahmad, appellant was employed as Clerk while Muhammad Talib Nawaz, appellant was employed as a Cashier by Habib Bank Limited, Mall Branch, Lahore. The Management, vide their letter dated 14thJune, 1976 Exh. D‑1 decided to hold test for promotion of, (a) clerical staff to officer cadre. (b) the typist and steno‑typist to steno‑typist and stenographer cadre. (e) non‑clerical staff to clerical cadre. The Chief Managers were then required to prepare lists of eligible candidates of all categories to take part in the test. The criteria was mentioned in Exh. D‑

1. The Chief Manager concerned prepared a list Exh. D‑2 on 22ndJune, 1976 consisting of 41 persons. The name of Iftikhar Ahmad figured at Serial No. 8 while that of Muhammad Talib Nawaz figured at Serial No.

31. The appellants did trot participate in the test on 18thJuly, 1976 because their contention was that all the 41 eligible persons were liable to the considered for promotion without precondition of participation in the test. Both the appellants filed separate petitions under section 25‑A of Industrial Relations Ordinance, 1969 on 27thJune, 1976 before the Labour Court, which vide order dated 25thNovember, 1976 consolidated both the petitions and recorded evidence only in the petition of Iftikhar Ahmad. The Labour Court finally dismissed both the petitions by one decision dated 14thJuly, 1977.

3. Aggrieved by the above decision Iftikhar Ahmad and Muhammad Talib Nawaz. appellants have preferred this anneal.

4. The learned counsel for the respondents raised a preliminary objection that the appeal was not competent even though the cases had been consolidated. He relied on the judgment of the Lahore High Court in the case of Devi Ditta Mal and another v. Official Liquidator, Amratsar Bank Limited (in Liquidation) and others (A I R 1921 Lah. 346), wherein it was held that where an order dealt with two separate cases, two appeals were necessary.

5. Moreover, I find that the order dated 25thNovember, 1976 of the Labour Court consolidating both the petitions, was also without juris diction in view of my decision in the case of Messrs Packages Limited, Kot Lakhpat v. Yaqoob and 5 others (P L J 1978 Tr. C. (Lab.) 329).

6. In view of the above, the learned counsel for the appellants stated that he would not press the appeal on behalf of Muhammad Talib Nawaz but would only press the appeal of Iftikhar Ahmad because the proceedings were recorded in his case. Under these circumstances, the appeal filed by Muhammad Talib Nawaz is, accordingly, rejected.

7. Now I am left with the appeal of Iftikhar Ahmad only. In the petition filed by Iftikhar Ahmad, appellant the prayer was that he be considered for promotion in accordance with the provisions of the Wage Commission Award and that the condition imposed by the respondents to successfully get through the test was illegal and void of his legal rights. Thus, from the above it is clear that the appellant was not seeking promotion as a matter of right but was seeking to enforce the right of consideration for promotion.

8. The first point for determination is as to whether the Wage Commission Award of 1975, which came into force from 1stJanuary, 1975, was applicable. Under section 38‑A of the Industrial Relations Ordinance, 1969 the Federal Government is competent to appoint a Wage Commission. Under section 38‑D of the said Ordinance, the decision of the Wage Commission is deemed to be an Award of the Commission. Under section 38‑1 of the said Ordinance, the provisions of sections 38‑A, 38‑B, 38‑C, 38‑D, 38‑E, 38‑F, 38‑G and 38‑H shall have the effect notwithstanding anything inconsistent therewith contained in any other law or in the terms of any award, agreement, or contract of service, whether made before or after the coming into force of the Industrial Rela tions (Amendment) Ordinance, 1974.

9. The expression "notwithstanding" has been given in the judgment .of the Supreme Court in the case, The Federation of Pakistan v. Saeed Ahmad Khan and others (PLD1974SC 151) wherein it was observed:‑

"Let us now examine as to what exactly has been done by President's Order No. 3 of 1973 and Article 269 of the permanent Constitution, The President's Order No. 3 of 1973 has merely added in the last but one line of clause (3) of Article 261 of the Interim Constitution after the words shall be deemed' the words, 'notwithstanding any judgment of am Court' and then in the last line after the words taken or done added and, hall not be called in question in any Court' and provided that the above mentioned two additions shall be deemed always to have been so interested.' It will be noticed that no change has been made in the earlier provisions of this clause at all. What then is the result? Does the clause, as now amended, mean anything more than this that the ouster of jurisdiction will operate with regard to those acts which under the earlier provisions `shall be deemed, notwith standing any judgment of any Court, to be and always to have been validly made' ? If so then obviously the ouster will not apply to any act, order, proceeding or thing done which is not to be so deemed to have been validly made. The question, therefore, still remains as to what is to be deemed under these provisions of clause (2) to have been validly done, taken or made. The words `notwithstanding any judgment of any Court' were, it appears, introduced to take away the effect of the decision of this Court in the case of Miss Asma Jilani under which these acts would have been invalid."

10. Thus, it is clear that the expression "notwithstanding" in sec tion 38‑1 takes away the effect of any other law or any terms of any award, agreement or contract of service whether made before or after the coming into force of the Industrial Relations (Amendment) Ordinance, 1974, if they are inconsistent with the provisions of sections 38‑A to 38‑H of the Industrial Relations Ordinance, 1969. In other words the award is to supersede all other laws or award etc.

11. According to the Award, it was made applicable to all Banks and Financial Institutions from 1stJanuary, 1975. By resolution dated 28thMay, 1974, the Government of 111akistan decided to appoint a Pay Commission for Banks and Financial Institutions. The Commission issued questionnaire to Press on 25th July 1974 to elicit the views of Trade Unions, federations and associations and Head of the Nationalised Banks and also of the public at large. Questionnaires Nos. 11 and 12 are only rele vant for the purpose of this case. Questionnaire No. 11 reads as under:‑-- "What criteria are followed at present in the matter of promotion of an employee from a lower to a higher appointment? " Questionnaire No. 12 reads as under:‑-- "What criterion should be applied in making promotion from clerical grade to officer's grade? Should the promotion be based on seniority‑cum‑fitness or on a qualifying examination and per formance?"

12. In October 1974 the Pay Commission prepared a programmed to interview the representatives of various Trade Unions etc. By 2nd November, 1974 the Pay Commission interviewed the representatives of a number of unions, federations and associations at Quetta and Karachi. On 7th November, 1974, the Government of Pakistan in the Ministry of Finance, Planning and Development notified the Constitution, under sub section (1) of section 38‑A of the Industrial Relations Ordinance, 1969, of a Wage Commission in respect of Workers' of the Banks which had vested in the Federal Government under subsection (1) of section 5 of~ the Banks (Nationalisation) Act, 1974 (XIX of 1974). The personnels C notified for the Wage Commission were the same as appointed earlier in connection with the Pay Commission for Banks and Financial institutions. The Wage Commission, thereupon adopted the‑ questionnaire sad the replies received from various institutions and gave the Award in para. No. 237 (page 123) as under:‑ "Promotion shall be made on the basis of experience, length of service and overall performance of an employee. If an employee officiating in a higher post shows signs of deterioration he may be reverted to the next lower grade."

13. The appellant relied on the above paragraph and that is why he did not join in the test.

14. According to the questionnaire, the Wage Commission had to decide whether the promotion was to be based on seniority‑cum‑fitness or on a qualifying examination and performance. The Wage Commission decided that the promotion be based solely on seniority‑cum‑fitness, and not a qualifying examination and performance.

15. The learned counsel for the respondents during the course of arguments, produced a photostat copy of the letter dated 5th April, 1979 issued by the Deputy Secretary, Ministry of Finance, Government of Pakistan, Islamabad to Mr. M. A. K. Yousafi, Chairman, Pakistan Banking Council, Karachi, wherein it was mentioned that it had been E decided that the selection of clerical staff for promotion to the lowest rank of officers would be made on the basis of a written test by a Selec tion Committee. Therefore, according to the learned counsel, the Mana gement of the Bank was justified in issuing the letter whereby it was de cided to hold a test for promotion. This contention has no force because the letter from the Deputy Secretary cannot override the Wage Commis sion Award.

16. The learned counsel for the respondents referred to para. 119 of the Second Wage Commission Award, which came into force on 1stJanuary, 1978. Para. 119 is given on page 44 of the said Award, accord ing to which, the Wage Commission felt that upgradation of any category of employees of all Banks and financial institution to officers' cadre did not fall within its jurisdiction and as such the Commission was unable to take cognizance to this matter. Second Wage Commission Award is not applicable because the cause of grievance arose; in 1976 when the first Wage Commission Award was in force, under which there was no such declaration.

17. The learned counsel for the respondents further contended that appellant bad no right guaranteed or secured to him under the Award of the Wage Commission, because such an Award is not an Award as defined in section 2(ii) of the Industrial Relations Ordinance, 1969, accord ing to which, "Award" means determination by a Labour Court, Arbi trator or Appellate Tribunal of any Industrial Dispute or any other matter relating thereto and includes an interim award. In order to determine this point it would be feasible to reproduce section 38‑D of the Industrial Relations Ordinance, 1969, which reads as under:‑-- "Decision of Wage Commission to be deemed to be an Award of the Commission.‑A decision of the Wage Commission published under section 38‑C shall be deemed to be an award of the Full Bench of the Commission and the provisions of this Ordinance applicable to such award, including the provisions of section as 51 and 55, so far as may be and with the necessary modifications, shall apply to the decision of the Wage Commission." According to section 51 of the Industrial Relations Ordinance, 1969, money can be recovered under an Award as arrears of land revenue. According to section 35 of the said Ordinance, whoever willfully fails to implement any term of an Award would be punished with imprison ment for a term, which may extend to one year or with a fine which may extend to Rs. 500 or with both. Since in section 35‑D, the Award of the Wage Commission would be an Award in the terms of sections 51 and 55 of the Industrial Relations Ordinance, 1969, therefore, the Wage Commis sion Award is an Award within the meaning of Industrial Relations Ordi nance, 1969 and as such a right guaranteed or secured under the said Award is enforceable under section 25‑A of the Ordinance. In view of the above, the contention of the learned counsel for the respondents has no going any test. Appeal accepted.