1988 PLP 775 (PLC)

"The greed of the applicant is evident from the fact that 90 promotees Senior Assistants were allowed similar increments by memo dated 13‑11‑1986 w.e.f. 1‑9‑1986. His line of argument is that none has come before the Court except this person. What he emphasizes of clause 53 that the settlement includes Junior Assistants and Assistants does not include Senior Assistants. He has been given the ex‑gratia increment and no right accrues to him. What he explains that the increments allowed to the applicant were not under any settlement but on the assurance of C. B. A. which was oral assurance. He has also referred to case law of 1977 P L C page 236, 1974 P L C page 213 and referred the evidence of Steel Hill witness Mr. Hamid Pervez. He has also further referred that the agreement dated 23‑4‑1984 regarding cause of action accrued earlier cannot give him the right. He has referred to clause 54 of agreement dated 31‑1‑1987 to show that it was agreed that to resolve the irregularities, advisory committee will be formed with the name of Anamoly. He has particularly referred by underlining his legal approach that hundred of workers will follow the cases on this pretext that the Steel Mill, in two agreements assured to consider the case of anamoly and so their right is guaranteed, such cannot be the spirit.

14. Mr. Ch. Rasheed contended that the witness of the respondent has admitted in the cross‑examination that re‑fixation, upgradation, grant of increments, time scale promotions were under the settlement and it was guaranteed. He has referred clause No.76(B) agreement of 1984 to show that it was agreed that the fixation in the new grade will be carried out on point to point basis. It is correct that there was .no clause in the settlement that the fixation of pay under the upgradation is to be carried out on point to point basis. Mr. Ch: Rasheed Ahmed has however pointed with legal emphasis that the removal of anamoly under clause 17‑A of the settlement of 1984, stood incorporated in the subsequent settlement of 1986 in context of clause 95 read with clause 54 that the anamoly removal was guaranteed.

15. Regarding time limitation he has also overcome the limitation by asserting that anamoly was removed partially from 1‑9‑1986 instead of 15‑11‑1983 and the payment being made in December, 1986. The cause of action arose from the date of the payment of arrears and the notice dated 8‑2‑1987 is well within time.

16. Number of questions of law have arisen, namely the time limitation, what is the effect of the anamoly under the previous settlements and subsequently followed in the settlements, whether the pay was fixed by referring to circular of 15th November, 1983 in context of agreement of 1982, what was the sanctity attached? Whether .the previous orders superseded as shown in letter of 25th August, 1985 carry any legal meaning? Whether the case of Mr. Khursheed is distinguishable? Whether the time scale promotion upto Pay Group‑VII cannot be granted as there is no other group? Finally what is the effect of the agreement of 31-1-1987 with reference to the cause of action and riot produced before the Court? Whether the Anamoly Committee was of advisory mature and not binding on the management Whether the rules can supersede Standing Order's 3 arid 4 where it is said that Standing Orders can be modified by means of collective agreement and not otherwise. Provided no such agreement shall take away or diminish any‑ right or benefit. cannot be 'granted as there is' no other group Finally what is the effect' of the agreement" of 31‑1-1987 with reference' to the cause of action and riot produced before the Court? Whether' the Anamoly Committee was of advisory mature and not binding on the management? Whether the rules‑ can‑‑supersede Standing Order's 3 and 4 where it is said that Standing Orders can be modified .by means .of collective agreement and not otherwise. Provided no such agreement shall take away or diminish any right or benefit.

17. The case of Mr. Zulfiqar Ali Khan has certain distinguishing features, and .therefore the decision in the case of ,Rashid Ali Khan, in We service ‑matter is to, form the part .of , the record of this case also as a judgment of tile Court of law when it has discussed the effect of the settlements, and the‑documents which are brought in that case have been more of assistance in, this case also. The difficulty the Court faces that some documents are being produced by the respondent in one case and some are not produced in other case. For example what has been, stated in the arguments of the respondent that Anamoly Committee was made under clause 54 of the agreement dated. 31‑1‑1987 by, which the barrier between direct recruits of Senior. Assistants and promotees have been removed, only to the extent of awarding increments.

18. The main point of contest. In the petition that has been looked into there is no reference of the agreement of 31‑1‑1987, when the petition is filed on 13-4-1987 by, the applicant. Mr. Zulfiqar. This shows that applicant had the knowledge of this agreement 'but he wants decision under the latest agreement of 1988 which is from 23rd April, 1986 to 22nd April, 19887 referring to clause‑54, to be read with previous settlements and the circular of 1983. 'Why the Court has emphasized that decision Of Rashid Ali, also to be read in this case because that the Minutes of the Meeting and the finding of agreement of 1987 has been, made as a part of the record.

19. Briefly Clause‑54 is very clear that the' Anamoly Committee will be of advisory nature to remove irregularities and clause 51 speaks that every employee is given time scale promotion after five, years and therefore, no further discussion is necessary in that, clause. This was the actual language and the word used is "every Karkun Firstly What is the effect of that circular of 1983 which was issued under the agreements of 1982 regarding trade grade structures promotions and recruitment rules. Clause-17 which is to be applied in this case reads that the revised rank structure of the clerical staff will be as under and further provided that the pay of the existing incumbents will be fixed in Pay Group 1V and V namely Senior Assistants. Assistants and Junior Assistants thereby indicating that they will reach these groups of V, VI, V11, In other words what is to be said plainly that this privilege as per agreement was for the promoted persons from the lower groups and not of, those Senior Assistants already in Pay Group for whom there was executive position. It is, therefore, Mr. Zulfiqar Ali Khan who was also Junior Clerk and joined on 27-6-1975 and promoted as Senior. Clerk and then Assistant and Senior Assistant from 15‑11‑1983 is aggrieved that he should be given the entitlement of increments from 1983: He has become aggrieved and challenged the action that injustice, be removed. What he has said, he has said correctly in contrast to the case of one Khursheed Alam. It will be seen that he was promoted' from the lower grade and invokes the jurisdiction of the settlements, which have the legal effect, if the settlements have also the legal sanctities under the provisions of the Industrial Relations Ordinance. In other words, the Court concisely observed that the legal effect of settlements has not the same legal force if there is statutory provision regarding the rights to be secured and protected under sections 3 and 4 of the Standing Orders that the C. B. A. if has made agreements but it takes away the right or benefit available to the workman, that agreement to that extent shall be examined. Similarly the time limitation does not affect for the redress if those anamolies are not removed and have become again the spirit of the settlements time to time, for, otherwise the previous settlements will serve no purpose for the judicial ambitions. In other words, such peculiarities cannot be taken advantage by the respondent of this technical lapse that the redress is lost, because limitation operates. What is to be seen is, of the legal and a factual grievance for taking cognisance by the Labour Court, to advance, the remedy, for otherwise, the word "injustice" to be removed shall rest in a mind of the litigant and the Court as well, that justice has not been done. The Labour Court therefore, is of the view, that everything is to be seen in judicial perspective and what is said more that the respondent cannot unilaterally supersede the previous orders what is reflected in the letter of 25th August 1985, though copy is sent to the President C. B. A. who may have concurred. But sections 3 and 4 of the Standing Orders if protect the workman that he is affected, the Court of law will intervene.

20. So to be precise, if the increments have been given to affected Senior Assistants as shown in the letter of 22nd September, 1986 or to be paid. But whether are to be paid from 1986 as shown in the letter or from the date he has claimed.

21. The chart of Khursheed Alam shows in contrast that he was appointed after Mr. Zulfiqar Ali. His pay was fixed on 6‑7‑1979 but not of Mr. Zulfiqar Ali. He was given time scale promotions on 2‑7‑1984, whereas Mr. Zulfiqar Ali received promotion only once on 1‑3‑1979 and earned the increments and finally there was change in designation on 15‑11‑1983. Prior to this he has been given two ordinary promotion on 2‑8‑1976 and on 1‑3‑1979. No word has been used of time scale promotion as in the case of Mr. Khursheed Alam., who is drawing more pay on upgradation, from 15‑11‑1983.

22. Now what is the effect of the agreement what Mr. Yakoob has referred of 31‑1‑1987. Mr. Yakoob has made this statement that the case of the applicant was placed before the Anamoly Committee. It did not decide in his favour, for there was no anamoly.

23. What is important to be mentioned here that agreement of 1987 has not come before the Court or even was the cause of action. Firstly the anamoly is to be removed by the committee under the settlements but this does not mean that the Labour Court has no jurisdiction to sit and to give the opinion if the anamoly was not removed in terms of settlement of what the wrong interpretation made to show that there was no anamoly in light of circular of 1983 in case of Rashid All the effect of the agreement of 1987 has been discussed, and therefore, despite the arrangement made to remove the barrier between promotees and Senior Assistants regarding increments which is between them and this agreement was not the cause of action, the Labour Court is still of the opinion that the circular of 1983 of 15th November should be followed, with effect from the date, when the fixation of the pay group was the intention of the settlement that is from 15th November, 1983 and not from 1986. In the words of Mr. Hamid Pervez, this is also the position that the grades of the Junior Assistants and Assistants were revised from 15‑11‑1983 which is one of the reasons in difference of pay between Senior Assistants and Assistants. What Mr. Hamid Pervez further has said by referring to Annexure‑G comparing the case of Khursheed Alam that the management considered the humanitarian feelings and granted the benefit of increments to the applicant on the representation that there was difference of pay as to the junior people in grade as well as the length of service. He has also further stated that this decision was taken by the management without recommendation of the Anamoly Committee. If this statement is seen of Mr. Hamid Pervaz it finds that there was anamoly but it was not removed.

24. At the next place Mr. Ham id Pervez has also said that the Senior Assistants were allowed number of increments to off‑set the financial loss. These additional increments were given to off‑set the loss as compared to the Assistants who were junior. This difference of pay between Assistants and Senior Assistants was the result as a result of upgradation of Pay Group of Assistants effective from 15‑11‑1983 and further on time scale promotion.

25. With this background Mr. Zulfiqar has shown the grievance given in the Notice of Grievance in this manner: "As a result of the fixation of pay of Assistants on ~ point to point basis I was left behind in pay by my juniors. I submitted application for removal of anamoly. It was proved that anamoly was created from 15‑11‑1983. My request was. considered and it was decided to grant number of ex‑gratia increments but he found that he was granted increment from 1‑9‑1986 instead of 15‑11‑1983."

26. In paragraph 8, he has said that agreement between Pakistan Steel Mill Management and C. B. A. which was to be effective from 23‑4‑1986 and announced by C.B.A. in General Body Meeting on 1‑2‑1987. This agreement as per clause‑53 all the Junior Assistants and Assistants were granted arrears of increment from 15‑11‑1983 but he was denied this entitlement.

27. So irrespective of the effect of the agreement of 1‑2‑1987 the pay would have been fixed as per circular of 15‑11‑1983 by granting increments and not from 1986.

28. But the important aspect which has come before this Court is that this agreement of 1‑2‑1987 of which the Steel Mill representative has also spoken in his arguments, which is not produced before this Court but in case of Rashid Ali it appears that Mr. Zulfiqar All has also relied on that agreement. The Labour .Court has been shown the agreement of 1986 whose date of enforcement is shown from 23rd April, 1986 to 22nd April, 1988. This is the first time Mr. Zulfiqar has said that C. B. A. announced the agreement of 23‑4‑1986 in General Body Meeting on 1‑2-1987. In other words, what the Court finds that Mr. Yakaob is also speaking of the same agreement of 1986 but this aspect of the announcement has not been shown in the petition. Petition only speaks of agreement of 1986 and what the Court finds in its preamble that agreement was accepted and approved to have the force from 23rd April, 1986 to 22nd April, 1988.

29. Even if this agreement of 1‑2‑1987, was the same agreement of 1986 whereas the respondent in the arguments has shown the agreement dated 31‑1‑1987, it is not known which agreement they are relying on whether new agreement has been made after agreement of 1986 or it has the same shape and first time announced on.1‑2‑1987 or it was an agreement dated 31‑1‑1987 what has been pointed by Mr. Yakoob.

30. However the Court has reached this conclusion that in the context of the agreement of. 1986 operative from 23rd April, 1986, clause 53 is very clear that the arrears of increments shall be paid from 15‑11‑1983. This is a term of the settlement and remains binding, to remove the anamoly what had accrued under the circular of 1983 and anamoly was not removed.

31. The Steel Mill representative has said that the notice of grievance is not according to law. This notice is dated 8‑2‑1987 (Annexure‑H). The question is when the cause of action arose. The petition is filed on 13‑4‑1987. The cause of action according to applicant, firstly arose on. 13‑11‑1986 when the payment was received in December, 1986 and on 8‑2‑1987 the petition was submitted. The petition shows it has been submitted on 13‑4‑1987. The applicant had sent the notice of grievance on 8‑2‑1987. He therefore speaks of the notice of grievance which is dated 8‑2‑1987. He has wrongly said that grievance petition was submitted on 8‑2‑1987. But what has been seen that in clause‑F he has said that agreement between Pakistan Steel Mill and CBA was announced on 1‑2‑1987. If this intervening event has taken place and the respondent itself has referred that some agreement has come on 31‑1‑1987 of which the Anamoly Committee was made under clause‑54, and his name was not found for the entitlement of the arrears the application is in time. Whether the Court follows the agreement of 1986, that is a different aspect but what has been relied upon by the respondent itself the limitation is. not affecting the petition.

32. In conclusion therefore, the pay which had been fixed of Rao Zulfiqar Ali Khan, on the basis of the circular of 15‑11‑1983, by granting increments is to be from that date and not from 1986. These will not be called as ex‑gratia increments, if he has established the right.

33. However the Court also refers the decision of Rashid Ali Khan and Mr. Anwar Qureshi, to be read with this decision, for these are announced prior to this case and these judgments refer the settlements and exhaustively deal with the sensitive questions of service matters and the view points of the counsel. These being the public documents now are referred as a decision to be read also with the case of Rao Zulfiqar Ali Khan, with the independent conclusion, arrived at in his case. Application is allowed to that extent. A.E./1214/Lb.S Application allowed partly.