1. ' JUSTICE (RETD.) TANVIR AHMED KHAN (CHAIRMAN).--Petitioner through this petition filed under section 33 read with Section 63 of the IRO, 2002 has taken exception to the office order dated 1st December, 2003 whereby earlier Office Order No,P&GS/MZ/0681 dated 8-5-2003 through which 12 members of the union i,e, Record Sorters and Naib Qasids and Qasids of Multan Zone were upgraded as P.C. Operators/Typists in Grade-4 was cancelled. It was further ordered that the recovery qua the payment already made should be effected from the staff members.
2. ' Facts briefly are that the petitioners is a registered trade union and is affiliated with the State Life Insurance Employees Federation of Pakistan. The later being C.B.A. Entered into a memorandum of agreement with the respondent-Management on 15th of July, 1997. It was agreed between both the signatories that Naib Qasids and Record Sorters having intermediate qualification and requisite typing speed would be given Grade-4, Junior Office Assistant-Typist, if there existed any vacancy. It would be appropriate to reproduce the extent words of the settlement, which are in the following terms:-- ' It has also been mutually agreed that Naib Quasids, Quasids and Record Sorters, who are Intermediate and have the requisite typing speed shall, if there exist vacancies, be placed in grade-4, Junior Office Assistant-Typist, after proper selection procedure. It has also been emphasized and agreed that in future no appointment of persons in Grade-1, 2 and 3 shall be made if the incumbents are Intermediate."
3. ' Thereafter subsequent settlements took place between both the sides for the years 1999-2001, 2001-2002 and 2003-2004 and every time the aforementioned clause was incorporated in every settlement. Even in the memorandum of agreement pertaining to years 2001-2002 it was also agreed that the vacancies should be created for those employees who were working in Grade-1, 2 & 3 and come up to the mark of criteria as agreed in the settlement of 1997-98. The aforementioned clause was also reiterated therein.
4. ' Subsequently a Selection Committee was constituted through order dated 10th of February, 2003 comprising of Incharges of P&GS, PHS and B&A of the respective Zones. It was further stated through this letter that the Selection Committee shall undertake exercise of up-gradation in accordance with the settlement which shall be completed on priority basis latest by 28th February, 2003. The Selection Committee conducted the requisite tests and submitted its report to the Competent Authority who in turn issued an office order dated 8th of May, 2003 and upgraded 12 employees as Typist/P.0 Operators in Grade-4. Thereafter the aforementioned 12 employees embarked upon new duties and started functioning and taking benefits of the same.
5. ' The respondent cancelled order dated 8th of May, 2003 and issued direction for the recoveries of the amount already paid through order dated 1st of December, 2003. The petitioner being President of the Union took exception to the order dated 1-12-2003 through the present petition.
6. ' I have considered the contentions of both the sides and have gone through the documents appended with this petition. Admittedly the clause qua upgradation was initially settled, between the Federation and the Management in the agreement firstly in the year, 1997. Thereafter the same was incorporated in every settlements. The respondent Establishment did not constitute any Selection Committee as agreed in the year, 1997 for a considerable period in accordance with the terms of the settlement. This might be due to non-existence of vacancies. However, subsequently as mentioned in the preceding paragraphs it was also agreed to create vacancies. The Selection Committee was ultimately constituted which submitted its report for upgradation in accordance with the terms of settlement. It was acted upon and the employees who satisfied the criteria, started getting the benefits.
7. ' The argument of the learned Counsel appearing for the respondent that the, Regional Heads made recommendation of up-gradation under the pressure of the union during the time when there existed no vacancy is devoid of any force. He has referred to certain letters of union's office- bearers wherein they stated about the frustrated feelings and despondency prevailing amongst the workers due to the non-honouring of the settlement. The plea that the union threatened the management and because of the same the up gradation was made by the authority did not reflect from the letters written by the Union office bearers to the management. Naturally the workers would certainly be frustrated because the agreement entered as far back as in the year, 1997 was not being implemented/honoured. There was even an agreement that the vacancies should be created but the respondent Management for the reasons best known to them put the matter in cold storage. The order up-gradation was ultimately passed on 8-5-2003 whereby a valuable right accrued to the incumbents/workers. They started getting benefits of the same.
8. Admittedly only those workers were upgraded who had the requisite qualification of Intermediate and also satisfied the other requirements of Selection Committee wherein a serious deliberation was held. The impugned order dated 1-12-2003 has been passed in a slipshod manner and no reason whatsoever has been advanced for the same. It has simply been stated that the order of up-gradation was null and void. It would be appropriate to reproduce the impugned order, which is in the following terms: "Office Order No,P&GS/MZ/0681 dated 8-5-2003 vide which Record Sorters and Naib Quasids were upgraded as P.C. Operator/Typist in Grade-04, has been cancelled ab initio by the directives of Principal Office Karachi.
9. ' The upgradation of those staff members will be treated as null and void, and their service is assumed to be continuing in the same cadre as it was on 7-5-2003. Recoveries will be made from same staff members if applicable."
10. ' It is pertinent to mention over here that Section 24A of the General Clauses Act, 1897 cast a duty upon all the administrative bodies to give reasons for their action. It would be appropriate to reproduce the same, which is as under: "24A. Exercise of power under enactments.---(1) Where, by or under any enactment, a power to make any order or give any direction is conferred on any authority, office or person such power shall be exercised reasonably, fairly, justly and for the advancement of the purposes of the enactment.
(2) The authority, office or person making any order or issuing any direction under the power conferred by or under any enactment shall, so far as necessary or appropriate, give reasons for making the order or, as the case may be, for issuing the direction and shall provide a copy of the order or, as the case may be, the direction to the person affected prejudicially."
11. ' The impugned order has admittedly been passed mechanically without advancing any reason and without giving any opportunity of D hearing to the aggrieved employees.
12. ' The other argument of the learned Counsel that the Regional Heads were given date of 28th of February, 2003 which was the cut off date before which the recommendation had to be made has got no force. The cut off date was only directory in nature and by no stretch of imagination it could be termed as mandatory. The recommendations on the basis of which the Zonal Heads issued the orders of upgradation cannot be set aside simply on the ground that the said recommendations were made after 28th of February, 2003. Learned Counsel appearing for the respondents has failed to substantiate his argument that since the recommendations were made after cut of date as such it loses all its force. Further more the employees who were benefited by this up-gradation had been deprived of right in clear violation of natural justice without providing any opportunity of hearing. It would be appropriate to reproduce the determination of Judges of Hon'ble Supreme Court of Pakistan reported in 1997 SCMR 15--Chairman Election Committee/Principal, King Edward Medical College, Lahore and 2 others v. Wasif Zamir Ahmad and another:-- "It is well-settled that once a right is created in favour of a litigant, in due course of time, it cannot at all be taken back arbitrarily. In the case in hand, admission was given to respondent No,1 by accepting his credentials and in the result, necessary dues were accepted by the concerned authorities. The learned High Court was eminently justified in accepting the plea of respondent No,1 to meet the ends of justice."
13. ' The plea of the respondents that since the recommendations were made beyond target date and consequent to the same order for up-gradation was made on 8-5-2003 which in the circumstances was void in nature as such the same could be revoked at any time without providing any opportunity is devoid of any force. Admittedly the 4ettlements between the Federation and the management respecting the upgradation were made voluntarily during successive periods and the same was culminated by issuing the upgradation order on the recommendation of the Committee by the competent authority. The recommendation of the Committee and its consequent implementation through up gradation order is an out come of the settlements reached between the parties. Such an order by no stretch of imagination can either be termed as void or illegal. Had it been an illegal order the competent authority could rescind the same. However, in the present circumstances when the impugned up-gradation has been the result of settlements between the parties it could not have been undone in the manner acted upon by the respondents. Reliance in this respect is placed upon a dictum of the Hon'ble Supreme Court of Pakistan reported in 2003 PLC (C.S.) 1262 wherein it was held as under: "It is settled proposition of law that no right can be claimed on the basis of an illegal order and such an order despite having taken effect, neither would change its status nor create any right enforceable in law and in the light of principle that the authority which possesses the power of passing an order is also empowered to vary, amend or rescind, the said order can be undone with no legal bar. However, in case of a legal order, this power can only be exercised till a decisive step is taken to give effect to the order and once the order is given effect, the authority would loose the powers to retrace its steps. The result is that a legal order which creates some right in favour of a person, on taking effect cannot be withdrawn, rescinded or varied to the disadvantage of said person but an order which has no legal force even if is acted upon can be recalled, rescinded and withdrawn at any subsequent stage and thus principle embodied is section 21 of the General Clauses Act, 1956 cannot be made applicable equally to all legal and illegal orders. There is a distinction in the benefit derived under a legal order which is recognized in law as a legal right whereas the benefit arising out of an illegal order cannot be given such recognition."
14. (Under lines are mine)
15. ' Further as already stated there was as agreement between both the sides to create vacancies to implement the settlement already reached in 1997/1998, as such it does not lie in the mouth of the respondents to say that there were no vacancies.
16. ' The respondent in the arguments has also taken exception to the locus standi of the appellant, as the union could not espouse the cause of individual worker under section 33 of the Industrial Relations Ordinance, 2002. At the cost of repetition, it is pointed out that in this case the settlement was reached between the State Life Insurance Employees Federation and the management. The petitioner-Union as already stated is a constituent of the aforementioned Federation. The settlements were reached by the Federation, which is C.B.A. For the benefits of employees of the constituent unions. The petitioner-Union being member of the Federation is bound by the decision arrived at by the Federation with the management.
17. ' Since the settlement qua the upgradation of the employees after its implementation was cancelled in an arbitrary manner by the Establishment, the petitioner-Union being constituent of Federation has got every right to agitate the same. This cancellation was effected arbitrarily to damage the cause of union who by their consistent struggles succeeded in getting the relief. It would be appropriate in this case to reproduce the observations of the Commission which were subsequently approved by the Full Bench in case reported as 2005 PLC 219 Mazdoor Union Neelam Glass Industries Limited v. Neelam Glass Industries Limited.
18. "The Industrial Relations Ordinance, 2002 is a special law and it is procedural in nature. It was promulgated with the principal object of formation of trade union so as to cultivate better relations/interaction between the employer and employees. The foremost aim of this Ordinance is to speedily settle the dispute between the workers and employer so that industrial peace can flourish. Furthermore, Ordinance is a beneficial legislation and is to be interpreted as already stated to ameliorate the plight of teeming millions workers who because of their meagre means cannot effectively pursue their cause. In the course of determination of C.B.A., the workers entrust through their votes to the former the right of guard their terms and conditions of service.
19. ' It would be appropriate to reproduce the dictum of the Hon'ble Supreme Court of Pakistan in a case reported in PLD 2000 SC 207 Lahore Development Authority v. Abdul Shafique and others wherein the Ordinance was termed as a beneficial legislation. The dictum is in the following term; "The I.R.O. Is basically beneficial legislation which provide for protection of the rights of labour classes. Its object amongst other is to ameliorate the conditions of workers. Such a legislation has to be construed liberally and beneficially. A restricted constructure of the provisions of the I.R.O.
20. Would deflect manifest objective of the legislation".
21. ' It is true that the petitioner union is not C.B.A. But the Federation, which entered into settlement with the management, was C.B.A. The constituent unions in the circumstances have got every right to ensure the implementation of settlement entered into with the Management by their Federation.
22. This would go a long way in dispensing substantial justice to the workers and also avoid multiplicity of litigation.
23. ' The law for this purpose has assigned a pivotal/prime role to the C.B.A. To look after the terms and conditions of employees/workers under the Ordinance, A C.B.A. After its certification according to section 20(13) of the Ordinance is entitled to perform the following functions:--
(a) Undertake collective bargaining with the employer or employers on matters connected with employment, non-employment, the terms of employment or the conditions of work, other than matter which relate to the enforcement of any right guaranteed or secured to it or any award or settlement;
(b) Represent all or any of the workmen in any proceedings;
(c) Give notice of, and declare a strike in accordance with the provisions of this Ordinance; and
(d) Nominate workmen on the Boards of Provident Funds and Workers' Participation Fund of their respective establishment or industry.
24. ' To run the office of C.B.A. And to perform its function in a suitable manner the Ordinance has also provided him the funds which are generated out of deductions made by the employer from the wages of the workers under section 21 of the Ordinance in accordance with a formula agreed upon between the C.B.A. And the workers. The arguments of the learned counsel for the respondents that the Union has got no lucus standi to file this petition under section 33 of the Ordinance as it can only move such an application for the enforcement of any right, guaranteed or secured to it by or under any law or any award or settlement while an individual worker may make such an application under section 46 of the Ordinance is devoid of any force. The cases relied upon by the respondents are distinguishable not only on the facts involved therein but the same were also decided under section 34 of the repealed Industrial Relations Ordinance, 1969 which provision was different from the present dispensation under section 33 of the Ordinance. The present dispensation under section 33 of the Ordinance is in the following terms: "Any collective bargaining agent or any employer may apply to the Labour Court for the redressal of any grievance or enforcement of any right guaranteed or secured to it or him by or under any law or any award or settlement."
25. ' Section 34 of the repealed Ordinance of 1969 in its original form was in the following terms:-- "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."
26. ' However, it was subsequently substituted by Ordinance XIX of 1970 and was couched in these terms:-- "Any collective bargaining agent or any employer or workman 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".
27. ' Further through an amendment promulgated by Industrial Relations (Amendment) Act XXIX of 1973) the words "or workman" were deleted.
28. ' However, as stated above in section 33 of the present Ordinance the words "for the redressal of any grievance" have been incorporated. This demonstrate that the C.B.A. Who is entitled under section 20(13) to represent all or any workman in any proceedings have also been authorized under section 33 of approach the Commission for the redressal of any grievance. The union being constituent of the Federation enjoys the similar right to approach this Commission. The word 'any' connotes wide generality and excludes limitation or qualification. In PLD 1971 Lahore 537 at 548 Mr. Manzur Qadir v. Mst Amtul Hussain and 2 others, the word 'any' has been defined as under:- "The interpretation of the word "any" as meaning "specific" or "particular" is neither supported by judicial Dictionaries nor by dictionaries of the English Language. According to Black's Law Dictionary (3rd Edition) "any" means some one out of many, an indefinite number. According to Stround's Judicial or qualification and is a word which excludes limitation or qualification and is "as wide as possible". According to the "law Lexicon of British India" complied by Aiyar (1940 Edn.) the word "any" may have one of the several meanings, according to the circumstances, it may mean "all" "each" "every" "some" or "one or more out of several". In Webster's New International Dictionary, of the English language "any" has inter alia been explained as indicating a person, thing, event etc. Given category but whichever the chance may select". Thus the word "any" cannot necessarily be equated with "Specific" or "Particular".
29. ' The word 'grievance' has been defined in Webster's Dictionary as a real or imagined cause for complainant.
30. ' In Shorter Oxford English Dictionary, it has been defined as under:-- "The infliction of wrong or hardship on a person; injury oppression; a cause or source or injury. The state or fact of being oppressed, injured or distressed, distress; suffering pain. A circumstance or state of things felt to be oppressive in mod. Use, something (real or supposed) which is considered a legitimate grounds of complaint".
31. ' In Black's Law Dictionary the word 'Grievance' is defined as under:-- "In labour law, a complaint filed by an employee regarding working conditions and for resolution of which there is procedural machinery provided in the union contract. Any injury, injustice or wrong which gives ground for complaint because it is unjust, discriminatory and oppressive".
32. ' It is also to be appreciated that in section 33 the word 'or' has been used disjunctively after the word grievance which demonstrates that the C.B.A. Apart from applying for the enforcement of any right guaranteed of secured to it by or under any law or any award or settlement, can independently approach for the redressal of collective grievance of the workers. Furthermore the settlement, subject-matter of the present case has emanated according to the respondents out of the bilateral talks between the Federation and employer. It does not now lie in the mouth of the respondents to say at this juncture, that the Union which admittedly is constituent of Federation cannot file the present application respecting the afore-mentioned settlement.
33. ' There is one more important factor, which cannot lightly be ignored. That the rules and regulations are only meant to stream line the procedure and administer the course of justice but not to thwart the same. It has been time and again stated that Courts have always preferred a decision of the case on merits particularly so when valuable rights of the parties are involved and technical knock-out has always been discouraged. Reliance in this respect is placed upon 2001 SCMR 159 Chaudhry Ghulam Ghaus through Legal Heirs v. Saifullah and anoter, PLD 2002 SC 491 Muhammad Anwar Khan and 5 others v. Chaudhry Riaz Ahmad and five others respondents PLD 1963 SC 382 Imtiaz Ali v. Ghulam Ali, PLD 1975 SC 678 Manager Jammu and Kashmir State, Property in Pakistan v.
34. Khuda Yar and another. It would be as appropriate to re-produce the determination of Full Bench of Lahore High Court in the last mentioned case which is in the following terms:- "The proposition could hardly be disputed that the principle objection behind all legal formalities is to safeguard the paramount interest of justice. In fact while considering the importance of legal technicalities and rules of procedure in the administration of justice, it is inevitable or recall the various evolutionary stages in the transition from justice without law of primitive society to justice in accordance with law of Modern Society and the conflict between equity and law in judicial history.
35. It cannot be denied that legal precepts were devised with a view of impart certainty, consistency and uniformity to administration of justice and to secure it against arbitrariness, errors of individual judgment and mala fide."
36. ' Resultantly for what has been stated above, the order dated 1st December, 2003 is hereby set aside.