1998 PLP 368 (PLC)

Muhammad Nawaz for Appellant. Ali Hussain Khan for Respondents. Date of hearing: 21st April, 1997. By the present judgment are proposed to be disposed of two similar appeals, captioned above, facts and legal propositions involved being almost identical. By the decision dated 23-10-1993, the learned Labour Court, Rawalpindi had accepted the grievance petitions of Ghulam. Muhammad and Nadir Ali. The latter died and was replaced by his legal heirs, Mst. Nazir Begum etc. (widow and daughters).

2. Ghulam Muhammad was employed as Electric Cooly on 29-7-1958 and promoted as Electrical Examiner on 10-1-1974 and claims to have been performing duties of Air Conditioned Coach Attendant, Since 1962, after having acquired the requisite training in the field. Late Nadir Ali was appointed as Helper on 28-8-1963 and pleaded having qualified as Air Conditioned Coach Attendant on 23-12-1975 and to have been working in that capacity, till his death on duty, in the year 1996. Although these persons were entitled to confirmation, having rendered service in the capacity of A.C.C. Attendants, they were not confirmed, despite the fact that they had been writing to the 'Authorities' and reminding them incessantly in the matter. They, therefore, separately filed grievance petitions under section 25-A of the Industrial Relations Ordinance, 1969, after having served the 'Authorities' with grievance notices.

3. The Authorities maintain that there being available no post of A.C.C. Attendant, Ghulam Muhammad and Nadir Ali could not possibly be confirmed as existence of the posts was evidently a prerequisite for regularization or confirmation asked for by the employees. It is also urged that promotion or confirmation is not claimable as of right. This is, however, a frail assertion, the reason being that the superiors cannot be allowed to act in the sphere in an arbitrary and fanciful or whimsical manner, and they have got to be judicious, fair and just, in taking decision in that regard. Employee's right to regularisation or confirmation or promotion is certainly justiciable and right of a person to serve in a higher capacity has to be recognized, and if it is not done, he will be entitled to approach the higher 'Authorities' in the same hierarchy, and even to knock at the doors of a court of law.

4. Reliance has been placed, by the employee on the Industrial Court Award, published in the official Gazette on 13-10-1966, and Government Notification dated 18-1-1975, both of which documents are available on record. All the employees, being not work-charged or temporary, could claim confirmation on the posts on completion of three years' service there, and the posts were also to be made permanent. Even if, for some reason, confirmation could-not be conceded to the incumbents of such posts, they were entitled to get all the benefits which members of confirmed staff could claim. Reference in this regard was also made to 1989 PLC 382.

5. It is not disputed that these persons had got the necessary training in Air Conditioning, and they have also been attached with Air-Conditioned Coaches. In the written statements submitted by the learned counsel for the Railways, it is conceded that when the cadre of A.C.C. Attendants became non-existent in the Railway Establishment, Ghulam Muhammad and Nadir Ali continued working in the Air-Conditioned Coaches and the duties remained the same, as in substance they were to take care of electric supply and to ensure that the same was regular and orderly. They were working as Electrical Examiners, as posts of A.C.C. Attendants or ACC Supervisors had been abolished, and a correction slip in the personnel Manual Volume-I had been inserted.

6. In the arguments, in writing, tendered by the learned counsel for the respondents, an exhaustive discussion has been made, in relation to the entitlement of the employees to claim confirmation, as also resultant monetary benefits. In a case reported as 1983 PLC 103, the Hon'ble Judge of the Lahore High Court pronounced that payment to an employee must be made for the work done. Junior Booking Clerks of Pakistan Railways, in Grade No. 5, were required to work as Reservation Clerks, in Grade No. 8, and the Labour Court and this Tribunal had upheld their plea to be paid salary in Grade No.8. The contention raised by the Pakistan Railways to the effect that no sanctioned post of Reservation Clerk was available and the employee's entitlement to work there or draw salary for the higher post, therefore, could not be recognized, was repelled by the superior Court, and it was even observed that failure on the part of the 'Authorities' in fulfillment of paper formality, being no fault of the aggrieved employee, higher post should be created, and the employer could not raise plea of non-existence of posts.

7. The learned counsel relied on a number of other rulings, as 1984 PLC 1706, 1985 PLC 74/81 (Labour Appellate Tribunal Punjab), 1986 PLC 142 (Labour Appellate Tribunal Sindh), and 1989 PLC 382 (PLAT). In certain cases the Railway employees were held entitled to confirmation on having served in a particular capacity or one year even, but three years' service was normally found to be sufficient for the purpose, as also for computing pension and other retirement benefits, in the event of retirement or demise of an employee. Endeavour has been made to distinguish the "ratio of these cases, as against the findings recorded or the verdict given in the cases published as PLD 1986 SC 35 and another ruling reported as PLD 1993 Lahore 70(76). Seniority List Exh. P-2, and the letter on the subject addressed by the Rawalpindi Divisional Office of the Pakistan Railways, Exh. P-3 have specifically been referred to by the learned counsel though the same related to the Rawalpindi and Peshawar Divisions.

8. Mileage allowance is paid to only those persons who either hold the posts of A.C.C. Attendants or are made to travel with trains and the reference to the pay bills as such would be somewhat relevant, provided the same are not deficient. These persons were mentioned in the pay bills, as Assistant Electrical Examiners, as also A.C.C. Attendants. It is maintained that justification for creation of posts of A.C.C. Attendants even could not be ruled out, if such posts had ceased to have existence. The A.C.C.As. were declared as members of the 'running staff' and were held entitled to the mileage allowance, in the Award published in the Government Gazette dated 13-10-1966. This became final, as it was not challenged in any higher forum. The President of Pakistan had on 15-9-1977 in Pakistan Railways Gazette No. 18 (at page 625), ordered grant of mileage allowance, as also salary of A.C.C. Attendants, to the members of the staff running over a distance exceeding 100 miles. In the Chapter No.3, P.R. Personnel Manual (Rule No.2, page 483) also the A.C.C.As. were declared as 'running staff' members, in the terms of the Industrial Court Award, notified in the Gazette dated 13-10-1966. It is submitted that this category would not have found mention in the Manual, if it had become extinct, Separate scales of pay have also been prescribed in the Manual for Electrical Examiners and Assistant Electrical Examiners, which fact will also serve to show that recognition had been given to the posts of A.C.C.As. In the instant cases, certain rulings of the Supreme Court and the High Court, it is submitted, cannot be cited as precedents, as facts are some-what different. There are in existence 12 sanctioned 'posts of, A.C.C.As. in Rawalpindi Division, and only 8 persons were working there. This fact is established by the documents Exhs. P-2 and P-3, as available on the files of the lower Court. The plea that 'running allowance' may also have been paid to these persons, like other members of the running staff, as S.T.Es., Guards, Drivers etc., cannot possibly be repulsed.

9. Having given my careful consideration to the rival contentions, I am driven to the conclusion that the Labour Court has endeavoured to appreciate the case in its true perspective, and has not fallen in error, in returning verdict in favour of the grievance petitioners. The appeals filed by the Railway 'Authorities' are devoid of all merit and are hereby dismissed with costs.

10. I would particularly lay emphasis upon early calculation and payment of arrears of, mileage allowance and other service benefits to the helpless legal heirs of late Nadir Ali, who unfortunately expired, while on duty, on the spot, when, train met with accident. H.B.T./899/Lb.P Appeals dismissed.