2020 PLP 239 (PLC)

MUHAMMAD KAMRAN KHAN MULAKHAIL, J.

Through this judgment, we propose to decide the Constitutional Petitions Nos.964 to 970 of 2017, as common question of law and facts is involved in all these petitions.

2. Facts relevant for disposal of the constitutional petitions are that the respondents/employees (detail whereof was already provided in the grievance petitions) were appointed in the office of the then Water and Power Development Authority (WAPDA), which was subsequently bifurcated in various companies throughout country, while in the province of Balochistan, the Quetta Electric Supply Company (QESCO) was duly formed and the respondents/employee continued their services under the supervision of said company, against different posts, namely, Line Superintendent-I, Assistant Private Secretary, Head Clerk and SSO-I. The respondents/grievance-petitioners, who were working against their posts from the last so many years, filed the separate grievance notices to the petitioners for restoration of their promotion orders, which were turned down vide office orders dated 19.04.2016 (impugned herein), and thereafter, they filed grievance petition under section 41 of Balochistan Industrial Relations Act (BIRA), 2010, before the 1st Labour Court Balochistan, Quetta, on the grounds; that they (respondents) were initially appointed on different posts and from the last so many years were/are working against the said posts and subsequently were also promoted on the posts of Junior Engineers vide office orders dated 13-11-2014, on the basis of having B-Tech (Hons) degrees and ever-since are/were rendering satisfactory services; that in pursuance of their promotions, they assumed their duties as Junior Engineer and since then are also drawing salary of BPS-17; that unfortunately after lapse of one and half year, they received another office orders dated 19-04-2016, whereby their promotion orders were withdrawn by declaring them ab initio void. Resulting into filing the grievance petitions before the 1st Labour Court Balochistan, at Quetta.

3. The grievance petitions were vehemently contested by the petitioners by filing replies, wherein besides raising preliminary legal objection with regard to jurisdiction, the respondents' stance was also repudiated on merits. The 1st Labour Court Balochistan, Quetta out of pleadings of the parties and on the basis of divergent pleas, framed the following issues:

1. Whether the petitioners were promoted after fulfillment of coddle formalities against the vacant posts and the Order dated 19-04-2016 is illegal?

2. Whether the petitioners are entitled for the relief claimed for?

3. Relief? Thereafter, the Labour Court recorded evidence of the respective parties, heard arguments and finally accept the grievance petitions by directing the petitioners-company to restore the promotion order of the petitioners and allow them to work on their respective positions/posts without any revengeful action. Being aggrieved thereof, the petitioners/company filed appeals before the learned Labour Appellate Tribunal, Balochistan, which were dismissed by the learned Appellate Tribunal through the judgments impugned herein. Hence, the instant constitutional petitions, have been preferred.

4. Learned counsel for the petitioners contended that the learned Labour Court without having a jurisdiction to entertain the cases of the QESCO's employees, who being civil servants under Section 17(1-B) of the WAPDA Act, 1958 cannot invoke the jurisdiction of a labor court, but both the courts below have erred in law by entertaining the grievance petitions of the respondents, when the objection so raised was also not attended by the learned Labour Court Tribunal; that the learned forums below, while rendering the concurrent findings, acted against the principles laid down by the Hon'ble superior Courts in different cases; that decision of the learned Labour court was based on misreading and non-reading of the facts as well as frivolous interpretation of law. He, therefore, urged for setting aside the impugned judgments passed by both the courts and dismissal of grievance petitions of the respondents. Conversely, the arguments advanced by learned counsel for the petitioners, were seriously opposed by the learned counsel for the respondents, he argued that the grievance petitions were rightly entertained which were according to law, and therefore, were rightly upheld by the learned appellate court; that the respondents were promoted as Junior Engineers (BPS-17), but subsequently their promotion orders were withdrawn, while they are still working against the said post and drawing their salary. He vehemently urged for dismissal of the constitutional petitions.

5. We have heard learned counsel for the parties and examined the material available on record with their able assistance.

6. The petitioner before the labour court had also raised an objection that the respondents being the Civil Servant under Section 17 (1-B) of the Wapda Act, 1958, thus the labour court had no jurisdiction to entertain the grievance petitions of the respondents. In view of the objection raised by the petitioner, we intend to attend and address this objection in the first stance. It is an undisputed fact that the QESCO being formed by the WAPDA, was incorporated as a public limited Company on 13th May, 1998, under the Companies Ordinance, 1984, The QESCO, has still not framed its own Rules and thus, having no statutory rules, it has adopted the rules of WAPDA. As far as the respondents' nature of work is concerned, they being appointed as Line Superintendent, Steno, UDC, their respective jobs were manual in nature and they have no authority of hire and fire, nor their duties come within the meaning and definition of officers, rather comes within the definition of section 2(dd) of Balochistan Industrial Relations Act, 2010. Which stipulates: "Section 2(dd) "worker" and "workman" mean a person not falling within the definition of employer who is employed (including employment as a supervisor or as an apprentice) in an establishment or industry for hire or reward either directly or through a contractor whether the terms of employment express or implied and for the purpose of any proceedings under this Act in relation to an industrial dispute includes a person who has been dismissed, discharged, retrenched, laid-off or otherwise removed from employment in connection with or as a consequence of that dispute or whose dismissal, discharge, retrenchment, lay-off, or removal has led to that dispute but does not include any person who is employed mainly in managerial or administrative capacity."

7. The Hon'ble Supreme Court has also elaborated the word 'workman' in its judgment 'Ganga R. Madhani v. Standard Bank Ltd.' (1985 SCMR 1511), wherein it was held: "

10. It is, thus, obvious that it is the nature of work performed by an employee that is the deciding factor in determining as to whether or not the employee is a 'workman'. The test for determining this has been succinctly laid down in Chairman Brooke Bond v. General Secretary Union PLD 1969 Lah. 717, in the following words :-- "A 'Workman' is employed in an industry to do skilled or unskilled work which is 'manual or clerical' Manual work entails physical exertion to distinguish from the mental or intellectual exertion involved in the clerical work. But both the manual and clerical work, in the sense these terms are used here, connote that it is more or less a routine work not requiring any great amount of initiative, imagination, direction, central and supervision in discharging the same. The true nature of the duties performed by the employee is the determining factor in ascertaining if he was a workman or not within this definition. In case the manual work forms only a small and auxiliary part of his responsibilities or he is incidentally required to prepare a statement maintain a register or submit a report, he cannot be considered to be a workman if otherwise his main and primary duties do not belong to this category. The true test, therefore, is to look to the direct, immediate and the substantial part of the work for which he is employed and not the sundry duties incidentally performed by him. The true answer to this question will, therefore, depend upon the proved facts in each case." The duties performed by the respondents being line superintendent are undisputedly manual in nature, while the Steno and UDC perform their duties as maintaining office record and work under the direction of their superior officers. While the QESCO being a company and not having its own statuary rules, coupled with the fact that the work performed by the respondents, brings them within the definition of Section 2(dd) of BIRA, 2010, thus, the Labour Court is/was having the jurisdiction to entertain the grievance petitions of the respondents.

8. The respondents' grievance was that they being appointed as LS, participated in the departmental promotion exams, and obtained B-Tec and other degrees during course of service, as such, they were promoted to the post of Junior Engineer (B-17) vide office No. CEO/QESCO / DG(HR and Admn.) 58202-01 dated 13th November 2014, whereas, the remaining respondents were working against the post of Steno and UDC, were promoted as A.D (Admn.) and Assistant and posted at different places against vacant posts, but the petitioners vide office Order No.16619-48, dated 19th April 2016 withdrew their promotion orders. Perusal of the case file reveals that the respondents were working in different position in QESCO, who were promoted after fulfilling the requisite qualification and on the recommendation of Board of Directors, followed by a subsequent approval of the Chief Executive Officer QESCO. However, the petitioners without issuing any show-cause notice or conducting any inquiry, even without affording any opportunity of personal hearing and even without approval of the competent authority, issued the impugned withdrawal order dated 19-04-2016. It is imperative to add here that the petitioners in their written statement filed before the Labour Court stated that "the respondents' promotion orders were issued without observing rules, regulations/quota, therefore, the BoD having competent jurisdiction (sic) has been pleased to pass orders for withdrawal of such void promotions". However, the petitioners failed to annex any document with their written statement to show any illegality or irregularity committed while passing the promotion orders of the respondents. Suffice to add here that once the promotion had been granted and the respondents commenced their work as promoted appointees, a right was accrued to them and, therefore, before passing an adverse order against them, they should have been provided a fair opportunity of hearing.

9. It is worthwhile to add here that the courts below, while accepting the grievance petitions of the respondents, set aside the order dated 19.04.2016 and directed the petitioners to restore the promotion orders of the respondents and allow them to work on their respective posts without any revengeful action. A Court/Tribunal was not empowered to pass any direction to the authority for issuing promotion order of the respondents. Promotion is not an automatic right, but it depends upon so many other factors, such as, competence, availability of post and antecedent etc, none of these factors is less important than seniority, therefore, for promotion all these factors, on case-to-case basis, are to be determined. The promotion on the basis of qualified education/degree cannot be claimed, nor the courts below were competent to pass order for promotion, rather it is the exclusive domain of the authority to consider the case(s) of any individuals for promotion. While in the instant case, the situation varies to that of the case of promotion. In the instant case the respondents' promotion orders were already issued and they were/are performing their duties against the promoted positions for more than one and half years, but, subsequently the promotion orders were withdrawn, however, as discussed hereinabove, the said withdrawal of promotion order was not based on any explicit reason. In the light of above discussion, we are of the considered view that the petitioners have failed to make out any case for interference in the decisions/orders of the Labour Court and that of the learned Labour Appellate Tribunal Balochistan, which appeared to have been passed in accordance with law. Consequently, the petitioners are directed that the petitioners shall be restored back to their positions to which they were posted prior to issuing of the impugned office order dated 19.04.2016. In view of above discussions and reasons, the petitions stand dismissed, but, with no order as to costs. ZC/32/Bal. Petitions dismissed.