1984 PLP 76 (PLC)

‑‑ Ss. 25‑A & 38(3)‑Advance increment‑Scheme of incentive in vogue in Pakistan Railway for benefit of advance increment on passing B. A. examination‑Clarification issued subsequently that increment admissible only if examination passed in first or second division and not in third division‑Labour Court accepting grievance petition of employee claiming such benefit after passing examination is third division but examination passed prior to subsequent clarification‑No evidence on record that petitioner exercised his right for advance increment prior to clarification Order of Labour Court, in circumstances set aside and case remanded by Appellate Tribunal for decision afresh after opportunity of evidences to parties on such point. Syed Intisar Hussain for Appellant. Respondent in person. Date of hearing : 10th August, 1983. The decision dated 23rd September. 1982 passed by the learned Presiding Officer, Punjab Labour Court No. 9, Multan has been chal lenged in this appeal, whereby the grievance petition of the respondent for four advance increments under the incentive scheme on account of getting degree of Bachelor of Arts was accepted.

2. An incentive scheme was introduced on 22hd January, 1966 by the appellant as an impetus for the employees to improve their qualification. The respondent passed B. A. examination on 27th May, 1981 in III -division. In the scheme there was no restriction of division. However, clarification was made on 25th July, 1981 to the effect that qualification for class‑III employee for advance increments was the qualification meant for class‑II and class‑I servants i. e. B. A. in 1st or 2nd division. The appellant has challenged the decision of the learned Lower Court on the ground that after clarification only 1st and 2nd class graduates were entitled to advance increments. The competent authority that issued the clarification had jurisdiction to amend the scheme but could not effect any change in it by way of clarification. There was no indication in the original scheme that B. A. examination be passed in IInd or 1st division for getting advance increments. The clarification, therefore, is to be taken as an amendment. An amendment cannot adversely affect the rights accrued under the original law. The respondent passed B. A. examination before clarification/amendment was made. But yet it is to be seen when the respondent came forward to exercise his right under the scheme. No copy of the application claiming advance increments and no receipt under which the said application was received by the appellant is on the record, It is, therefore, not known if the right was exercised before or after the amendment. If the respondent has exercised the right before the amendment dated 25th July, 1931 he is likely to suffer if the impugned order is reversed. The learned lower court should have before accepting the petition examined this aspect of the case. It is, therefore, proper to afford an opportunity to the parties to produce relevant and effective evidence on the point.

3. As a result of what has been observed above, I accept the appeal and. setting aside the impugned decision of the learned lower Court, remand the case with the direction that after affording proper opportunity to the parties to produce evidence, the case be re-decided after determining whether the respondent exercised his right to claim advance increments before or after the clarification/ amendment dated 25th July, 1981. A. E.