1992 PLP 1250 (PLC(CS))

Mazhar Ali Chohan for Respondent. Date of hearing: 17th December, 1990. This is an appeal against the order of the learned Presiding Officer, Sindh Labour Court No. VI at Hyderabad dated 5-5-1990, whereby the grievance petition of the appellant was rejected.

2. I heard Mr. S.P. Lodhi, learned Representative for the appellant and Mr. Mazhar Ali Chohan, learned Advocate for the respondent. I have-also gone through the record and proceedings of the case.

3. Briefly the facts of the case are, that the appellant was admittedly a Driver working with the respondents and was made regular from 1-7-1982. He was given move-over in BPS-8 from 1-12-1987 vide Annexure `A'/1 dated 9-1-1988. However in pursuance of Circular of Finance Department, Govt of Sindh, dated 14-7-1988 Annexure `R/4' this order of move-over was amended by an another order dated 7-2-1989 Annexure `A/2' whereby the move-over was allowed to the appellant from 1-12-1988 instead of 1-12-1987. Aggrieved by this order the appellant served a grievance notice upon the respondents and then filed the grievance petition before the learned Labour Court. The respondents resisted the application on the ground, that the appellant was a civil servant as decided by the Finance Department vide Circular dated 21-8-1976 and therefore the Court had no jurisdiction and that the order Annexure `A/2' was legal.

4. The learned Labour Court has held, that it had jurisdiction as appellant was a workman. No appeal or cross-objection has been filed against this finding of the learned Labour Court. As such this finding has attained finality and I need not discuss this issue further.

5. The next question that requires consideration is whether the respondents could amend the order of move-over of the appellant and change the date of move-over from 1-12-1987 to 1-12-1988. It is not disputed that this order Annexure `A/2' was issued in consequence of 4Circular of Finance Department, dated 14-7-1988, Annexure `R/4', in Para 2 it was clarified that every employee is required to stay at the maximum of his scale for one year to be eligible for move-over to the next higher scale. However this Circular was also issued after the order of moveover Annexure `A'/1' was issued by which the appellant was given move-over from 1-12-1987. The question arises is whether the authority who issued the letter Annexure `A/2' amending the first order had powers to amend or vary its previous order. Such power is vested in authority under section 20 of the West Pakistan General Clauses Act, 1956. However the power to rescind to add, or vary previous order is subject to condition, that no decisive step is taken in pursuance of the previous order. Their Lordships of Federal Court in Shahbaz v. Crown, PLD 1956 F.C. 46 have held that "if a decisive step is taken other considerations would arise, but if that step is yet to be taken, we see no reason to restrict the power to modify or cancel." In the case of Lt. Col. G.L. Bhattacharya v. State, PLD 1963 Dacca 422 Full Bench of the then Hon'ble High Court of East Pakistan had held, that "the crux of the matter is whether the order has been acted upon, that is, whether authority exercising such power has done that which is necessary for it to make the order effective. When such a step has been taken the order was acted upon thereby conferring a right upon the prisoner. Therefore, the subsequent order of cancellation can have legally no effect whatsoever."

6. The order of move-over from 1-12-1987 was passed on 9-1-1988 and it could not be possible nor it is the case of the respondents, that this order was not acted upon till 7-2-1989, when the order Annexure `A/2' was passed amending the Annexure `A/2'.

7. The second question, that requires consideration is, whether the Notification /Circular of Finance Department dated 14-7-1988 clarifying their earlier Circular dated 12-6-1986 could have retrospective effect. It is a settled principle of interpretation of statutes that they are construed to have prospective effect only unless the contrary is clearly intended. The position of statutes enacted by legislature is much stronger than, that of rules or notification which are subordinate in nature. This Circular if issued an exercise of power under a statute cannot be made retrospectively effective unless the statute under which it was issued clearly so provides and gives such powers to the rule making authority to make the rule or notification applicable retrospectively. No such statute has been produced or cited which gave such powers to the Government or any other authority to issue notification making it retrospectively applicable. If the Circular issued is a matter of policy, it would be governed by the provisions of section 20 of General Clauses Act as interpreted by the superior Courts.

8. The order of move-over passed by the competent authority on 9-1-1988 gave move-over to the appellant from 1-12-1987 and as such the same authority had no power to amend the order subsequently after it has been acted upon. Mr. Chohan submits that the plea that the authority had no power to amend his previous order was not taken by the appellant either in the Labour Court or in Memo of Appeal in this Tribunal. This is a legal point, which can be raised by the party or can be considered by this Tribunal even at the stage of appeal.

9. In view of the above discussions, the appeal is allowed and the impugned order of learned Labour Court is set aside. The appellant is ordered to be given moveover from 1-12-1987 and be allowed future increments accordingly and also be paid the difference of pay or arrears if any. The order be implemented within three months. M.Y.H./1816/Lb.S Appeal allowed.