1998 PLP 376 (PLC)

Asmat Kamal Khan for Appellant. Nemo for Respondents. Date of hearing: 31st March, 1997. By way of the instant appeal has been impugned soundness of the decision dated 21-7-1996, rendered by the learned Labour Court No. 1, Lahore, dismissing Manzoor Hussain's grievance petition, under section 25-A, Industrial Relations Ordinance, 1969, for lack of jurisdiction.

2. Manzoor Hussain was employed in March, 1981, as sewerman, in the Department of Communications and Works, Government of the Punjab, On 1-6-1982 he was promoted as tube well operator. In the seniority list of the work-charged establishment, he figured at serial No.

55. The same is Exh.R-3. He was further promoted as Mechanic Grade-1, in BPS-6, on ad hoc basis, on 31-1-1985 (Exh. P-1/R-1). President of the Punjab P.W.D. Labour Union, however, on 28-1-1987, lodged a protest, representing, as per Exh P-2/R-4, that despite being very junior, Manzoor Hussain had been given promotion. Thereupon, on 21-9-1986 (Exh. R-2), the Selection/Promotion Committee considered the case and found him to be unfit for regularization. The Committee comprised of a Superintending Engineer and two Executive Engineers. His promotion was not approved and his reversion was recommended. He was posted in 5th Provincial Division, Lahore, against an existing vacancy; vide order dated 30-9-1986 (Exh.P-3). On 2-10-1986, per Exh.P-5, Manzoor Hussain asked for withdrawal of the order of his reversion. Afterwards, he approached the Chief Minister; and the Secretary to the Chief Minister passed an order (Exh.P-6) on 25-10-1986 in his favour.

3. The Superintending Engineer, however, told the Chief Engineer on 6-1-1987 (Exh.P-7) that Manzoor Hussain had not been approved for regular promotion as 54 other persons were senior to him. Superintending Engineer was asked to investigate the matter, as to how Manzoor Hussain had been promoted as Mechanic Grade-I; and disciplinary action was required to be taken against the delinquent.

4. Cause of action accrued to Manzoor Hussain on 30-9-1986, when he was reverted. He should have issued the grievance notice within three months. He had addressed an application on 2-10-1986 (Exh.P-5), and wanted that the same be regarded as grievance notice; and the learned lower Court has bestowed a favour upon him in that behalf, but at the same time has held that the notice had not been served on the employer. The application afore-said had been entered in the daily diary or the relevant register, maintained in the office of the Superintending Engineer; and in the opinion of the learned lower Court, this fact alone did not establish that service, as required by law, had been affected upon the employer. I would, however, differ. If the application is treated as a valid notice, its entry in the relevant register will serve to show that it had reached the hands of the officer, to whom it had been addressed.

5. Having come to the conclustion that the application dated 2-10-1986, in the nature of the grievance notice, had not necessarily been received by the employer, the learned lower Court has declined to enter upon discussion of the validity of the grievance petition and whether it had been filed within time. It has also been opined that for coming to a Labour Court, by invoking the provisions of section 25-A, Industrial Relations Ordinance, 1969, an aggrieved person must be a workman, and such status must specifically be pleaded and categorically be proved by leading satisfactory evidence. A fact, not pleaded, cannot be proved. Manzoor Hussain is found to have not taken up such a plea either in his pleadings or in his deposition. According to the assessment made by the learned Labour Court, Manzoor Hussain has been unable to establish this important fact and he cannot, there fore, have recourse to the Labour Court, by making a grievance petition under section 25-A (ibid). Reference by the learned Court has been made to a number of reported decisions of superior Courts.

6. I find that even on merits, Manzoor Hussain has no chance of success. The mere fact that he was not afforded an opportunity of hearing, before his reversion, would not give rise to a cause in his favour. He had been asked to establish before this Tribunal as to how did he justify his promotion, in supersession of as many as 54 persons, and he had miserably failed to do so. Rule of audi alteram partem cannot, therefore, be invoked in his favour by the so-called aggrieved official, who says that the Chief Minister could pass any order that was suitable in his discretion. I am afraid, such 'slogan' or argument cannot be endorsed by a Court of Law. An authority, how high so ever, has to act in accordance with law, rules and regulations of service, and principles of natural justice. Those senior to Manzoor Hussain had legitimately felt aggrieved over their supersession and even the body or the union of the workmen had considered it necessary to raise protest against the act. favouring Manzoor Hussain, out of the way, even if the authority so doing was no less a person than the Chief Minister of the Province. Highly placed officers of the department had given the matter an objective consideration and passed a proper and purposeful order; and it could not be said that they had shown favour to someone or disfavour to another; and by no standard of interpretation of Rules could the impugned act/order of the Chief Minister be clothed with legality or validity. Manzoor Hussain was rightly reverted and taken to his original position. He should wait for his turn, before he may aspire for a higher post.

7. The impugned order is not susceptible to reversal or interference by this Tribunal; and the appeal has no merit. The same is hereby dismissed, although with no order as to costs. H.B.T./895/Lb.P Appeal dismissed.