1991 PLP 690 (PLC(CS))

Khalilur Rehman, Representative for Appellant. Gul Muhammad Soomro, Representative for Respondents. Date of hearing: 24th September, 1990. This is an appeal against the order dated 1‑4‑1990, passed by the learned Presiding Officer, First Sindh Labour Court at Karachi, whereby the grievance petition of the appellant was dismissed.

2. I have heard Mr. Khalilur Rehman, Representative for the appellant and Gul Muhammad Soomro, Representative for respondents and have also gone through the record and proceedings of the case.

3. The brief fact of the case are that vide order dated 12‑4‑1988 the Secretary, Karachi Transport Corporation with the approval of the Managing Director upgraded/recategorised the post of appellant Mr. Anees Ahmed Khan from Senior Clerk (BS‑7) to Deputy Accountant (BS‑11) with immediate effect. He was also given seniority as Deputy Accountant from the date of upgradation. By order dated 21‑4‑1988, the Secretary/K.T.C. kept the order dated 12‑4‑1988 in abeyance. By another order dated 21‑6‑1988 the order of upgradation was cancelled.

4. Being aggrieved by this order the appellant served grievance notice upon the respondents and then filed grievance petition before the learned Labour Court.

5. The main contention of Mr. Khalilur Rehman is that the order having been acted upon could not be rescinded. He has relied upon the Exh. AW‑1/1 which is joining report dated 12‑4‑1988 and also Exh. AW‑1/2, dated 12‑4‑1988 under whiqh Dr. Ishtiaq Ali Langah, Medical Officer, KTC accepted the appellant's duty report and the appellant was taken on duty/post w.e.f. 12‑4‑1988. Under section 20 of the West Pakistan General Clauses Act, 1956 a power to issue order includes a power to amend or rescind the order. However, the Superior Courts have interpreted this provision and held that the power to rescind the order is vested in the authority so long no decisive step is taken in pursuance of the original order. Reliance is placed on the case of Shahbaz v. Crown P L D 1956 S C46 and also on the case reported in P L D 1964 S C 503.

6. In the instant case decisive step was taken inasmuch as order dated 12‑4‑1988 was acted upon and the appellant was taken on duty in the upgraded post of Deputy Accountant by the Medical Officer. Therefore, the authority who issued the order could not rescind the order. Further, I find the order dated 12‑4‑1988 upgrading the appellant was issued with the approval of the Managing Director who is the competent Authority, whereas the other two orders dated 21‑4‑1988, whereby firstly [lie order dated 12‑4‑1988 was held in abeyance and by the second order it was cancelled do not show that these orders were issued with approval of the competent Authority. Therefore, these orders are not tenable.

7. It appears that some other Clerk being aggrieved by the order of upgradation of the appellant had moved an application/appeal before the competent authority. It is contended by Mr. Gul Muhammad Soomro, that the upgradation of the appellant was illegal as he was junior most. Be that as it may, the proper course for the respondents was to issue show‑cause notice to the appellant in the appeal filed by the Clerk and then decide the appeal on merits and if the aggrieved Clerk was senior he could have been upgraded in place of the appellant. This proper and legal course has not been observed by the respondents but short cut method was adopted which could not be upheld.

8. Consequently the impugned orders passed by the respondents and the learned Labour Court arc set aside and the appellant is ordered to be reinstated as Deputy Accountant (BS‑11). This order would not affect the rights of others who may be senior to the appellant. The appeal of the aggrieved Clerk may be decided by the respondents in accordance with their rules and regulations.

9. With regard to the back benefits under the circumstances of the position the appellant is awarded 50% back benefits. M.Y.H./1760/Lb. S Appeal allowed.