1989 PLC 515 (PLP)

Muhammad Nawaz was not maintainable.

6. Undoubtedly the Head Office has passed the order of promotion. The relevant paras 1 and 2 of section 25‑A of the Industrial Relations Ordinance, 1969 read as under:‑ 25‑A(I). Redress of individual grievances.‑‑(I) A worker may bring his grievance in respect of any right guaranteed or secured to him by or under any law or any award or settlement for the time being in force 10 the notice of his employer in writing either himself or through his Shop Steward or (Collective Bargaining Agent) within three months of the day on which cause of such grievance arise. (2) Where a worker himself brings his grievance to the notice of the employer, the employer shall, within fifteen days of the grievance being ,brought to his notice, communicate his decision m writing to the worker." These paras indicate that a worker is to bring his grievances to the notice of his in writing. The employer has been defined in section 2 clause (viii) of the Industrial Relations Ordinance 1969 which reads as under:‑ 2(viii) "Employer" in relation to an establishment means any person or body of persons, whether incorporated or not, who or which employs workmen in the establishment under a contract of employment and includes‑‑ (a) an heir, successor or assignee as the case may be, of such person or body as aforesaid. (b) any Person responsible for the management, supervision and control of the establishment. (c) in relation to an establishment run by or under the authority of any department of the (Federal Government) or Provincial Government, the authority appointed in this behalf or, where no authority is appointed, the Head of the Department. (d) in relation to an establishment run by or on behalf of a local authority, the officer appointed in this behalf or where no officer is so appointed, the Chief Executive Officer of that authority; Special provision.‑‑For the purpose of distinction from the category of "workers or workmen" officers and employees of a department of the (Federal Government) or a Provincial Government or a local authority, who belong to the superior, managerial, secretarial supervisory or, agency staff and who have been notified for this purpose in the official Gazette shall be deemed to fall within the category of employers. (e) in relation to any other establishment, the proprietor of such establishment and every director, manager, secretary, agent or officer or person concerned with the management of the affairs thereof." The petitioner is the assignee and the person responsible for the management, supervision and control of the establishment. He is the employer of Muhammad Nawaz Sabu, who had filed a grievance petition. In this manner, the grievance petition was rightly directed against him and the grievance notice was validly served to him. There was no necessity of makin the Head Office as a party to his petition.

7. It remains to be determined whether the right of promotion is a right guaranteed or secured to Muhammad Nawaz Sabir, who had filed the grievance petition. The learned counsel for the petitioner has cited Muslim Commercial Bank Ltd. Karachi v. National Industrial Relations Commission and 2 others 1981 P L C 538 and has represented that right of promotion is not a vested right. In this precedent written test was not found violative of para. 237 of the Wage Commission Award. 8.The learned counsel for the respondents has referred to Iftikhar Ahmad and others v: President, National Bank of Pakistan and others P L D 1988 S C 53, in which it was held that an employee whose terms are governed by an award made by the Wage Commission can seek redress for his grievance before a Labour Court. This authority has also set at rest the controversy, whether the bank employees, who were covered by the definition of a worker could place their 6 grievance before the National Industrial Relations or a Labour Court. Both the parties have admitted that both respondents Nos. 3 and 4 were workers. Therefore, they can lodge their grievance before the Labour Court. 9: Para. 237 of the Wage Commission Award is reproduced below for the facility of reference:‑ "

237. 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."

10. In this connection sections 38‑A and 38‑G, I.R.O may be reproduced for the determination of the fact whether the grievance of promotion could be taken to the Labour Court. 38‑A. Wage Commission.‑‑(1) The Federal Government may, whenever it so considers necessary by notification in the official Gazette, constitute, a Wage Commission for fixing rates of wages and determining all the other terms and conditions of service in accordance with the provisions of this Ordinance in respect of the workers of a bank or such other workers as the Federal Government may, by notification in the official Gazette specify. 38‑G. Decision of the Wage Commission to be binding on all employers.‑‑The decision of the Wage Commission shall be binding on all employers concerned with the decision in relation to their workers i and every such worker shall be entitled to be paid the wages and governed by the terms and conditions determined by the Wage Commission." In section 38‑A the Wage Commission was deputed to fix the rate of wages and determine the other terms and conditions of service in respect of the workers of a bank, and in section 38‑G it has been enacted that every worker, according to the decision of the Wage Commission, shall he entitled to be paid the wages and governed by the terms and conditions determined by the Wage Commission. In this manner, for the workers of the banks, promotion is cardinal condition of service which has been regulated by section 237 of the Wage Commission Award.

11. It has been argued that respondent No. 4 was promoted after securing more marks in the written test than respondent No. 3 and he had earned the right of promotion. Para. 237 deals with the promotion and the reversion of a worker. We are not concerned with the reversion in this case. Promotion can be made on the basis of the following:‑ (i) experience; (ii) length of service; and (iii) overall performance of an employee. Experience and length of service has nothing to do with it written test. Overall performance of an employee means his past performance upto the date of hill promotion which can be evaluated by his past A.C.Rs. and the overall performance of an employee cannot be extended to the taking of a written test. li was so held in a recent judgment namely, 1‑labib Bank Ltd., Karachi and 2 others v. National Industrial Relations Commission Islamabad and 2 others 1988 P L C

18. The wording of section 237 ibid is enough to conclude that the promotion can be earned on the basis of experience, length of service and overall performance of an employee. The prescription of a written test is violative of the provision contained in para. 237 ibid. In this manner, both the learned lower forums have not committed any illegality so as to warrant the interference by this Court in the exercise of its extra ordinary writ jurisdiction. I, therefore, see no merit in this writ petition and dismiss the same with cost‑ throughout. A.A./Z‑86/L Petition dismissed.