1988 PLP 674 (PLC)

Habib Bank Employees Union, the respondent No.2, filed an application under section 34 of the Ordinance before the Presiding Officer, Labour Court, Abbottabad, Camp Haripur, on 16‑3‑78, complaining that the employees of the Bank could not be subjected to written test/examination for the purpose of promotion from Clerical to Officers' cadre under paras. 237 and 238 of the first Wage Commission award that it was a guaranteed right of the employees in terms of the award to be promoted to the officers' cadre on the basis of their experience and overall performance without subjecting them to a written test or interview. The Union, respondent No.2 also filed a complaint before the National Industrial Relations Commission (5ereinafter referred to as the Commission) under section 38(D)(E)(G), read with section 55 of the Ordinance, against the appellant for violation of the paras.237 and 238 of the first Wage Commission award. The Commission transferred the Petition under section 34 of the Ordinance, pending before the Labour Court, to the Commission for disposal under section 38(E) of the Ordinance. The two matters were consolidated and the Senior Member of the Commission by his order dated 21‑1‑1980 held that test/interviews held by the Petitioners, for the promotion of employees from clerical to officers' cadre for judging their suitability for promotion were in violation of paras 237 and 238 of the first Wage Commission Award, 1975. The operative part of this order of the learned Senior Member of the Commission is reproduced hereunder: ‑ "In the first instance as is evident from question No.12 of the questionnaire issued by the Pay Commission, the holding of qualifying examination was under consideration by the Commission, and if this condition was intended to be introduced, the Commission should have so specifically mentioned in para. 237 of the report. Then again a particular word may have different meanings and it is to be seen in what context the word has been used. The word "experience" has been assigned different meanings in the dictionaries. In my opinion, the most appropriate meanings that can be assigned can be as follows:‑ "trial; experiment; repeated trial; long and varied observation, personal or general; wisdom derived from the changes and trials of life; the passing through of any event or course of events by which one is affected; an event so passed through; anything received by the mind as sensation, perception, or knowledge: " Seen in the context of the above meaning, the word "experience" would mean the test and trial already undergone by the employees during the course of their employment by handling different types of files and by performing various kinds of work. Experience cannot therefore be equated with holding of the written examination. Moreover, if written examination is allowed to be a pre‑condition, it would tend to undermine and nullify the recommendations made by the Wage Commission in para.

237. An employee of comparatively, less experience and length of service would supersede his colleagues by bringing better marks in written examinations. In this way the very Purpose of marketing experience, length of service and overall performance as basis of promotion would be defeated." The direction given was in the following terms:‑ "I, therefore, direct the Respondents to promote the employees with effect from their due dates of promotion in accordance with the provisions as contained in paras. 237 and 238 of the said Wage Commission Award without holding any tests or interviews. " An appeal was taken to the Commission under section 22(B) of the Ordinance, against the decision of the learned Senior Member. The Commission upheld the judgment of the learned Senior Member and dismissed the appeal. The operative part of the order of the Commission, reads as hereunder:‑ "The question before us relates to the interpretation of the Award as a whole and paragraphs 237 and 238 in particular. No doubt, the holding of written examination has its virtves, but the question whether written test should be prescribed as criteria for promotion was considered by the Commission as is implicit in question No.12 of the questionnaire circulated to elicit the public opinion. The significant omission of any reference to a written qualifying examination in paragraph 237 of the Award, leaves us in no doubt that the Commission rejected the written test on a criterion. We therefore, cannot accept this submission of the learned counsel." The Constitutional Petition filed by the appellant in the High Court of Peshawar was dismissed observing as follows:‑ "The net result of the above discussion is that we are of the confirmed opinion that the learned respondent No.1 had jurisdiction to entertain and adjudicate upon the matter which was brought before it by the respondent No.2 herein and we do not find any illegality or jurisdictional error it the impugned judgments to warrant our interference." Mr. Abdul Hafiz Lakho, Advocate, the learned counsel for the appellants, raised a number of legal questions with regard to the jurisdiction of the Commission, the locus standi of the respondent No.2 and the merits of the claim. It was contended on the strength of decision given in Karachi Pipe Mills Ltd. v. Sind Labour Appellate Tribunal and 2 others (P L D 1984 Kar. 503) that an application under section 34 :vas not at all competent before the Commission or the Labour Court and instead the workers affected or the collective bargaining agent, on their behalf should have resorted to proceedings under section 25‑A because the award, if at all, guaranteed the rights to workmen and not to the Union or collective bargaining agent. None of the rights guaranteed to the Union or the Collective bargaining agent was jeopardized or threatened. Further it is contended that the Commission could not have got transferred the proceedings pending before the Labour Court to itself and as held in Iftikhar Ahmad and others v. President, National Bank of Pakistan and others (P L D 1988 S.C.53) even the Labour Court was competent to deal with the matter and it has jurisdiction to entertain the same. According to the learned counsel Pay Commission had issued the questionnaire and the Pay Commission had submitted to the Government, the recommendations in respect of the officers of the Bank. The same Pay Commission while functioning as a different statutory commission, as a first Wage Commission, under section 38(A) of the Ordinance had on the basis of that questionnaire proceeded to formulate the terms and conditions of the workmen employed in the Banks and other financial institutions. The jurisdiction of tte Wage Commission was restricted to workmen and the terms and conditions of service with regard to the prospect of promotion of workmen as officers could not be said to be the terms and conditions of workmen but of the officers. Such terms and conditions being outside the jurisdiction could have no legal efficacy or force. In fact these decisions of the first Wage Commission laid down the criteria for promotion within the cadre or group of workmen from one post to another, none falling outside the category of workmen. Besides it is contended that the Wage Commission's decision was limited in point of time to three years and as would appear from the view taken by the third Wage Commission, the decisions do not relate to officers and the fourth and fifth Wage Commission awards left the matter to be decided by the Court where it was pending. He has also on the merits contended that promotion to a higher post is the discretion of the employer and written test for judging the suitability and fitness of an individual could not be considered violative of the award itself. He has relied on the decisions in Allied Bank of Pakistan Ltd. and others v. Labour Appellate Tribunal, Lahore and 2 (1982 P L C 1), S. Zahid Ali v. The Pakistan Ordnance Factories Board, Wah Cantt and another (P L D 1971 Lah. 229) and Asif Ali v. Vice Chairman, Pakistan Railways, Lahore and others (1980 S C M R 11) in support of this proposition. Qazi M. Anwar and Mr. J. D. Akbar Jee, Advocates for the respondents, have on the other hand, contended that the Habib Bank was estopped by its conduct, in taking up these or such pleas on merits because in different proceedings between the same Bank in Labour Courts in Peshawar and then in the High Court of Peshawar, the appellants had undertaken not to take the written test and instead rely only on the interviews, in order to get over an interim order, which was thereafter modified with the concurrence of the parties. The contention of the two learned counsel is that the first Wage Commission had taken full view of the controversy with regard to the examination and had given its decision which was the award and it could not be interpreted in any manner different from the meaning given to it by the Commission. Mr. Akbar Jee, Advocate, further contended that even if the first Wage Commission had no jurisdiction over officers because the matter was industrial dispute and the award reflected a settlement it could as well cover within its ambit and scope, the officers in so far as promotion to that category was concerned. That was only an alternative position. According to the learned counsel, the award relates to the terms and conditions of the employees/ workmen and not at all to the officers. We propose confining the discussion to the points taken note of, in the leave granting order and to go only incidentally and so far as necessary to the other questions raised in this appeal. The provisions of the Ordinance which are relevant for resolving the legal controversy arising in this appeal are section 38‑A(l), section 38‑C(2), section 38‑D and section 38‑G, which are reproduced hereunder:‑ "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‑C. Publication etc. . . Of the , decision of the Wage Commission. (1) . (2) The decision of the Wage Commission published under subsection (1) shall come into operation on such date as may be specified in the decision, and where no date is so specified, it shall come into operation on the date of its publication and shall remain in force for three years or until it is modified or varied by a later decision of the Wage Commission published in the manner provided in subsection (1), Whichever is later." "38‑D. Decision of the 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 Sections 51 and 55, so far as may be and with the necessary modifications, shall apply to the decision of the Wage Commission. '138‑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 and every such worker shall be entitled to be paid the wages and governed by the terms and conditions determined by the Wage Commission. " The definition of "industrial dispute" in section 2 clause (xiii) of the Ordinance is in the following terms:‑ "Industrial dispute' means any dispute or difference between employers and employers or between employers and workmen or between workmen and workmen, which is concerned with the employment or non‑employment or the terms of employment or the conditions of work of any person; and is not in respect of the enforcement of any right guaranteed or secured to him by or under any law, other than this Ordinance, or any award or settlement for the time being in force. An examination of these statutory provisions makes it abundantly clear that the jurisdiction of the Wage Commission set up under section 38‑A and the definition of "Industrial dispute', reproduced above limit the jurisdiction of the Wage Commission to matters concerning B the workmen or to employers of such workmen. The only question therefore, that remains to be examined in this context is, whether the terms and conditions relating to promotion to a higher post are the terms and conditions of service of the post from which the promotion is to take place or of the higher post to which the promotion is to take place. If it is a term and condition of the lower post, then the Wage Commission had the jurisdiction but if it is a term and condition of the higher post i.e. of that lower grade of officers then in that, case the matter would be outside the jurisdiction of the Wage Commission. In service matters, the view of this Court has consistently been that the terms and conditions relatable to the prospects or promotion, do not form part of the service conditions of the post from which promotion is to take place but they form part of the terms and conditions of the higher post to which promotion is to take place. For example, if a Head Clerk is eligible for promotion as an Officer after 10 years' service, then it will not be a term and condition of the service of the Head Clerk but it will be the tern and condition of the service of officer, that is the eligibility condition of the officers will be that they must be Head Clerks with ten years experience as such. Two decisions of this Court on the subject take note of the law. In Muhammad Umar Malik v. Federal Service Tribunal (P L D 1987 S C 172) it was held that the eligibility for promotion is not a term and condition of those seeking promotion. The other case is of Faizullah Khan v. Government of Pakistan (P L D 1974 S.C. 291). In the circumstances the jurisdictional constraints on the Wage Commission limit these paragraphs of the award of promotion to workmen r within the category of workmen and not to any category outside the jurisdiction of the Wage Commission. The view taken of these recommendations by the 3rd Wage Commission appears to be legally, correct and sound. As regards the power of the Federal Government to issue directives of the nature impugned by the workmen, we find from the very facts of this case, that a Pay Commission had been appointed for the Gazetted Officers and the Government was seized of‑ its recommendations in respect of the officers. The exact instructions in extenso are not available on the record but the substance of it has been reproduced. Section 10 of Banks (Nationalization) Ordinance, 1974 makes general provisions pertaining to management and subsection (6) thereof is reproduced hereunder:‑ "A bank, its board of directors, chairman, local boards, executive committee, and chief executive by whatever name called shall in the discharge of their functions act on sound business principles and be guided by such directives in matters of policy involving the public interest as may be given to it by the Federal Government, which shall be the sole judge as to whether or not any matter is a matter of policy involving the public interest: Provided that no such directive shall be in contravention of the provisions of the State Bank of Pakistan Act, 1956 (XXXIII of 1956), or the Banking Companies Ordinance, 1962 (LVII of 1962), or any other law relating to banking business." The instructions impugned before us itself show that it was made or the recommendations of the Pay Commission of Banks and Financial Institutions. It pertains to introduction of a uniform promotion policy, for promotion of officers and executive of nationalized commercial banks. Clause (a) thereof provides the conditions of recruitment to the lowest rank of officers and the recruitment conditions were within the jurisdiction of the Federal Government, the Wage Commission dealing with the workmen have nothing to do with that category of officers. It, therefore, clearly falls within the scope of section 10(6) of the Banks Ordinance and on that view of the matter, the promotion and the examination for recruitment of officers could be prescribed. It is generally within the power of the employer to prescribe qualifications and terms and conditions for promotion in order to ensure efficiency and competence but such a power can be controlled by superior constitutional, legal or binding dispensation. In the case of the officers of the Bank, no such prohibition is found to exist and, therefore, the efficacy of the Federal Government instructions remains un effected. As regards the contention of the respondent with regard to the conduct of the appellant in other proceedings before the Labour Court and the High Court, and the terms on which the interim order was got vacated that has no bearing or relevance to the legal questions arising in this appeal. The questions relate to jurisdiction and power and the conduct of the parties in different proceedings is altogether immaterial. As the legal questions arising on the merits of the case have been answered by us, we do not consider necessary to examine the preliminary objections with regard to the competence of the proceedings initiated by the Union under section 34 before the Labour Court and the Commission and the power of the Commission to transfer the proceedings from the Labour Court to itself. in view of the discussion above, the appeal is allowed, the impugned decision of the Commission is set aside. No order as to costs. M.B.A. /H‑35/S Appeal allowed