1981 PLP 125 (PLC)

The above letter (Exh. R‑2) was further based upon Letter No. MAF, 37/178/78, dated 15‑4‑1978 issued by the Pakistan Banking Council. The relevant portion from this letter is also reproduced below :‑ . . . . . . . . . . . The Ministry of Finance vide its Letter No. 259‑I F. XI/78 dated 5th April, 1978, have inter alia, laid down the promotion policy for clerical staff'/officers of Banks and give the following decision for immediate implementation. (a) Selection of clerical staff for promotion to the lowest rung of officers will be made on the basis of a written test by a selection committee consisting of a Member of the Executive Board, a Regional Head and a Zonal Head. Officials possessing sufficient grounding and experience as detailed below will be considered for promotion." 'The Banking Council issued the above letter on the basis of a directive of the Finance Ministry of Pakistan's Letter No. 259/IF. XI/78, dated 5‑4‑1978.

3. Muhammad Ilyas, General Secretary of the Union appeared as P. W. 1 and also relied upon documents Exhs. P‑1 to P‑

5. The Management did not produce any witness but relied upon Exhs. R‑1 to R‑

3. The Labour Court wide impugned decision dated 6‑2‑1980 accepted the petition in the‑terms of the prayer by observing that holding of written test and interview for promotion in the given context by the Management was illegal and unjustified and the desiring candidates in reference were to be promoted in view of the criteria laid down in para. 237 of the Wage Commission Award 1974‑

75. Feeling aggrieved with the impugned decision, the Management has filed the present appeal.

4. On 3‑5‑1980 when the arguments were partly heard, it was found that the, impugned Circular Letter dated 31‑3‑1979 (Exh. P‑5) was in fact basically based upon the instructions contained in Letter No. 259‑IF. XI/78 dated 5‑4‑1978 issued by the Ministry of Finance, Government of Pakistan, Islamabad. It was, therefore, thought necessary and desirable that in order to determine the validity of the basic letter dated 5‑4‑1978 the Ministry of Finance should be impleaded as party. Accordingly, the Ministry of Finance, Islamabad was impleaded as a party and necessary notice was issued in this behalf. In compliance Mr. Zia Mahmood Mirza, Advocate, appeared on behalf of the Ministry of Finance and stated pit the bar that the Ministry was not prepared to withdraw the impugned instructions contained in letter dated 5‑4‑1978 and wanted to contest the grievance petition on merits as well as on legal plane.

5. I have beard at length the counsel for the parties and have also perused the entire material available on the record.

6. Mr. Zia Mahmood Mirza, counsel for the Finance Ministry, has contested that the Labour Court had no jurisdiction in this case. According to him, under section 38‑D of the Industrial Relations Ordinance, 1969, the decision of the Wage Commission is to be deemed to be an Award of the Full Bench of the National Industrial Relations Commission (hereinafter referred to as the Commission). He further relies upon section 22‑A (11) of the, Industrial Relations Ordinance, 1969 that the matter was within the exclusive jurisdiction of the Commission. This section reads as under:‑ "22‑A.‑(11) Save as provided in subsections (10‑a) and (12) no Registrar, Labour Court or Tribunal shall take any action, or entertain any application or proceedings, in respect of any matter which falls within the jurisdiction of the Commission." No doubt according to section 38‑D of the Industrial Relations Ordinance, 1969, a decision of the Wage Commission published under section 38‑C is to be deemed to be an Award of the Full Bench of the Commission and similarly under section 22‑A (11), the Labour Court or the Tribunal or the Registrar shall not take any action or entertain any application or proceedings in respect of any matter which falls within the jurisdiction of the Commission, but the question which directly arises for consideration is whether the present petition of the respondent‑Union under section 34 of the Industrial Relations Ordinance, 1969 read with para. 237 of the Wage Commission Award, falls within the jurisdiction of the Commission or not. If it falls within the jurisdiction of the Commission then undoubtedly the Labour Court or the Tribunal will have‑no jurisdiction in the mater, but if on the other hand, that applica tion does not fall within the jurisdiction bf the Commission then the jurisdiction of the Labour Court shall not be ousted. The powers and the; functions of the Commission are enumerated under sections 22‑A (8) and 22‑C; of the Industrial Relations Ordinance, 1969. I repeatedly asked Mr. Zia Mahmood Mirza to point out any provision from the Industrial Relations Ordinance, 1969 under which present application of the respondent‑Union filed under section 34 could fall under the jurisdiction of the Commission but he failed to do so. I myself have minutely, gone through the relevant provisions of the said Ordinance but find no direct and positive provision to cover such application of the respondent-Union. I am conscious of clause (c) of subsection (8) of section 22‑A of the Industrial Relations Ordinance, 1969, which reads as under :‑ "22‑A. (8) (c) to adjudicate and determine an industrial dispute to which an industry‑wise Trade Union or a Federation of such Trade Unions is a party and any other industrial dispute which is in the opinion of the Federal Government of national importance and is referred to, it by that Government." There are two parts of this clause. First part deals with such industrial dis putes in which one of the parties is an industry‑wise Trade Union or Federa tion of such Trade Unions. According to second part, any other industrial dispute which in the opinion of the Federal Government is of national im portance can be referred to the Commission by that Government. In the instant case both the parts of the clause are not attracted as the respon dent‑Union admittedly is neither an industry‑wise Trade Union nor a Federa tion of such Trade Unions. It is only a Local Union of Sahiwal Zone of Allied Bank of Pakistan. It is an admitted fact even by the opposite‑party that there is neither any industry‑wise Trade Union nor any Federation of such Trade Unions in the Allied Bank of Pakistan. From plane reading of this clause it can reasonably be inferred that the present petition of the respondent‑Union is not covered by this clause. Conversely, if the respondent‑Union had been an industry‑wise Trade Union or a Federation of such Trade Unions on such application had been moved by some industry‑wise "Trade Union or a Federa tion of such Trade Unions for the same relief, then it would be covered by this clause and consequently the Commission alone will he; competent to adjudicate upon the same and the Labour Court will have no jurisdiction in the matter. A perusal of section 34 makes the intention of the Legislature absolutely clear and there is no ambiguity of any kind in this behalf that such petition before the Labour Court was competent.

7. In view of the above factual and legal position the respondent‑Union could not approach the Commission for the required relief which obviously would have no power to adjudicate upon the same and conversely the Labour Court alone was fully competent to adjudicate upon the dispute in this case under section 34 of the Industrial Relations Ordinance, 1969.

8. According to the scheme of the Industrial Relations Ordinance, 1969 there are generally two types of cases conlemplated under it‑one of civil nature requiring adjudication and determination of certain rights in industrial disputes and the other of criminal nature like unfair labour, practice. If in an industrial dispute one of the parties is an industry‑wise Trade Union or a Federation of such Trade Unions then the Commission alone will be com petent to adjudicate upon such disputes and in all other cases the matter will go before the Labour Courts. If the grievance is of individual nature then the matter would lie under section 25‑A and if it is of collective nature by a Collective Bargaining Agent then the provisions of section 34 of the Industrial Relations Ordinance, 1969 shall be attracted. As regards the criminal action the jurisdiction of the Commission in certain types of cases is exclusive while in others even the Labour Courts, and the Tribunal are competent to take such action.

9. Regarding the enforcement or infringment of the Wage Commission Award, generally there can be two types of cases which can be agitated before the Commission or the Labour Court‑one for enforcement of certain rights guaranteed by .the Award which can be enforced either under section 25‑A or under section 34 of the Industrial Relations Ordinance, 1969. If one of the parties is an industry‑wise Trade Union or a Federation of such Trade Unions then the Commission alone will be competent to adjudicate upon such disputes and in all other cases the Labour Court alone will have the jurisdic tion to adjudicate upon such disputes: The other category of cases for violation or infringment of certain provisions of the Wage Commission Award will also lie before the Commission for taking criminal action. In the instant case admittedly the respondent Union is neither an industry‑wise Trade Union nor a Federation of such Trade Unions and, therefore, the respondent‑Union has rightly invoked the jurisdiction of the Labour Court under section 34 of the Industrial Relations Ordinance, 1969 and conversely the Commission will have no jurisdiction in the matter.

10. Keeping in view the relevant facts and circumstances of the case and the provisions of the Industrial Relations Ordinance, 1969 the position factu ally and legally boils down to this that if there is any allegation of contraven tion or violation of any provision or part of Wage Commission Award and the action proposed is of criminal nature then the Commission alone will be competent to deal with such matter. If, however, the aggrieved party wants enforcement of a particular provision or part of the Award and one of the parties is an industry‑wise Trade Union or a Federation of such Trade Unions or where in the opinion of the Federal Government the industrial dispute is of national importance and the same is referred to it by that Government then again the Commission alone will have the jurisdiction in such matters while in ail other matters the Labour Court will be competent to exercise its jurisdiction under section 34, if invoked by the Collective Bargaining Agent and under section 25‑A by an individual or individuals. In the instant case, as mentioned above, the respondent‑Union moved the application under section 34 read with para. 237 of the Wage Commission Award before the Labour Court with the 'specific prayer that the appellant‑Bank be restrained for ever from compelling the employees of the Bank i.e., members of the respondent‑Union to compulsory undergo test in connection with their depart mental promotion and that the impugned circular with all its unlawful terms and conditions be tendered to be cancelled and the Bank authorities be ordered to promote the employees without any test and interview as the law required. This being the legal factual position, the Labour Court was fully competent to deal with the application filed before it under section 34 of the Industrial Relations Ordinance, 1969. 10‑A. Another argument which supports the above inference is that under section 34 any C. B. A. or any employer may apply to the Labour Court for the enforcement of any right guaranteed or secured to it by or under any law or any Award or settlement. A plane reading of this section shows that the aggrieved party has to show that the right, enforcement of which is being claimed, is guaranteed or secured by or under any law or any Award or settlement. In the instant case, we are concerned with the right guaranteed or secured by `any award'. The words used under sections 34 and 25‑A are "any award". According to Mr. Zia Mahmood Mirza, the word "award" here means the award as defined under section 2 (ii) which means the determi nation by a Labour Court, Appellate Tribunal or Arbitratar of any industrial dispute or any matter relating thereto. His argument is that in the definition of Award, the award, which is deemed to be an Award of the Commission is not included in the definition and, therefore, the Labour Court had no jurisdiction in the matter. Present section 34 was substituted by Ordi nance XIX of 1970. It reads as under :‑ "

34. Application to Labour Court.‑Any Collective Bargaining Agent or any employer may apply to the Labour Court for the enforcement of any right guaranteed or secured to it or him by or under any law or any award or settlement." Original section 34 is also reproduced below :‑ "

34. Application to Labour Court.‑Any party to an industrial dispute relating to a matter arising out of any right guaranteed or secured to an employer or workman by or under any law for the time being in force or an award or settlement may apply to the Labour Court for adjudication of the dispute." In the original section 34 the words were "an award" while in the present section the words are "any award". Now we have to examine the significance of the word "any". According to Mr. Mirza, "any award" under sections 25‑A and 34 means one of the Awards mentioned in the definition in section 2(ii) of the Industrial Relations Ordinance, 1969. I am not inclined to agree with him. The word `any' is not confined to merely awards mentioned in sec tion 2(ii) or any particular type of Award but it is wider in scope to embrace almost any type of award under the Industrial Relations Ordinance, 1969 and consequently decision of the Wage Commission, which under the law is deemed to be an Award of the Full Bench of the Commission, shall be covered by the expression `any award'. The word `any' excludes limitation and qualifications. It will not exclude any award covered by the Industrial Relations Ordinance, 1969 or conversely it will cover all awards. The word `any' connotes wider generality. If the Legislature wanted to exclude any particular type or class of awards then they could use different language and not `any award'. In the context `any award' will mean any valid award in existence under the Industrial Relations Ordinance, 1969 without exclusion of any particular award. The words used by the Legislature in the original and the present sections 34 are clear enough to demonstrate the intention of the Legislature. In the original section the words used are an award'. Under that section one could argue that the expression "an award" means as defined under section 2(ii) only, but by changing the word `an' into `any', the inten tion of the Legislature is quite clear that they wanted to cover all or any kind of Award contemplated by the statute. If the Legislature wanted to exclude the Wage Commission Award they could easily do so in section 34 or 25‑A by adding the words "except the award of the Commission", but the Legis lature have put no such exception or restriction in the said sections. In this view of the matter it can reasonably be held that the expression `any award' does not only mean an award of the Arbitrator, Labour Court or the Tribunal but it will include all valid awards under the Industrial Relations Ordinance, 1969 including the decision of the Wage Commission which is deemed to be an award of the Commission and consequently, the Labour Court will have jurisdiction for the enforcement of the said award.

11. The first Wage Commission was set up by the Federal Government under section 38‑A and its decisions were published under section 38‑C of the Ordinance. Under section 38‑G, the decision of the Wage Commission is to be binding on all employers concerned in relation to their workers and every such worker is entitled to be paid the Wages and governed by the terms and conditions determined by the Wage Commission. Under section 38‑1 it is provided that the provisions of sections 38‑A, 38‑B, 38‑C, 38‑D, 38‑E, 38‑F, 38‑G and 38‑H shall have effect notwithstanding anything inconsistent there with contained in any other law or in the terms of any award, agreement or contract of service. From a mere perusal of these provisions it is abundantly clear that the Wage Commission's decision has the overriding effect over any other existing law or agreement etc. In other words, the Award of the Wage Commission is to supersede all other laws or awards etc. Consequently, all the agencies of the Government, concerned, employers and employees are bound to follow, implement and act according to the decision of the Wage Commission. In view of clear provision of law neither the Ministry of finance nor the Pakistan Banking Council nor any other agency of the appellant Bank had any power to alter the decision of Wage Commission. Mr. Mirza and the counsel for the appellant Bank had not denied the legal position, but vehemently contend that issuance of the impugned letter by the Ministry of Finance and subsequent letters based upon it do not infringe the provisions of para. 237, rather advance the same object. Paragraph 237 is reproduced below:- "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." From the perusal of the above, it is clear that according to the Award, the basis of promotion were experience, length of service and overall performance of an employee, whereas according to the impugned letter of the appellant Bank, an employee before his promotion was required to undergo a written test and interview. It is not denied that the Commission had earlier issued questionnaire and one of the questions includedt his issue. Questions Nos. 11 and 12 of the questionnaire are relevant and reproduced below : ‑ "(11) What criteria are followed at present in the matter of promotion of an employee for a lower to a higher appointment? (12) What criteria should be applied in making promotion from clerical grade to officer's grade? Should the promotion be based on seniority cum‑fitness or on a qualifying examination and performance." The above shows that the Commission was aware of this demand by certain employers but in spite of that, after collecting the relevant material and ascertaining the views of the parties concerned, the decision which the Com mission finally took in the form of paragraph 237 did not include written test and interview. The reason is obvious that through such tests and interviews the possibility of showing certain favour and disfavour to particular indivi duals cannot be excluded. In fact it is this apprehension that the respondent union and some other Unions in the country have challenged the validity of the impugned letter. In the circumstances, find no substance in tits contention ; rather it is crystal clear that holding of written test and interview for promotion of certain class of employees is in clear violation of para. 237 of the Wage Commission Award and, therefore, liable to be set aside. Already my learned predecessor in once, Labour Appellate Tribunal, Peshawar, Senior Member of the National Industrial Relations Commission and some Labour Courts have taken this view and no decision to the contrary has been cited on behalf of the appellant‑Bank.

12. Another argument advanced on behalf of the appellant‑Bank is that on enforcement of Second Wage Commission Award on 24‑7‑1978, the first Award of 1975 ceased to be operative, if not expressly at least impliedly and, therefore, it is not open to the respondent‑Union to rely upon para. 237 of the First Award. There is .no force in this contention because Second Wage Com mission in para. 115 of the Award has adopted paras. 226 to 238 of the First Wage Commission Award regarding recruitment and promotion. Para. 237 of that Award is one of such adopted paras. Hence para. 237 is still operative and binding upon the parties concerned.

13. The upshot of the above discussion is that the impugned circular dated 31‑3‑1979 (Exh. P‑5) issued by the appellant Bank, circular dated 24‑3‑1979 (Exh. R‑2) issued by the Allied Bank of Pakistan Limited, Central Office, Karachi, Letter No. MAF. 37/178/78 dated 16‑4‑1978 issued by the Pakistan Banking Council, and the Letter No. 259/117. XI/78 dated 5‑4‑1978 issued by the Finance Ministry of Pakistan are clearly without lawful authority being contrary to paragraph 237 of the Award and, therefore, are declared to be void and of no legal effect. The result is that this appeal fails and the same is hereby dismissed with no order as to costs. Appeal dismissed.