' JUSTICE (RETD.) TANVIR BASHIR ANSARI (CHAIRMAN).--- This judgment shall also decide cases Nos.IT/S/6-88 of 2001/C titled Shahid Ahmad v. Pakistan Herald Publication (Pvt.) Ltd., Karachi and No,IT/7/6-89 of 2001/C titled Shafi-ud-Din Ashraf v. Pakistan Herald Publication (Pvt.) Ltd., Karachi as identical questions of law and fact are involved in all the three cases.
2. Briefly the facts are that the petitioner(s) filed an application under section 13 read with section 12 of the Newspaper Employees (Conditions of Service) Act, 1973 and section 51 of Industrial Relations Ordinance, 1969 praying therein that the petitioner(s) is entitled for further move-over along with the payment of the amount claimed as arrears in the petition.
3. Safdar Ali Khan, petitioner claims to have been granted Grade-I by virtue of move-over on 1st July, 1996. He reached the maximum of Grade-I on 30th June, 1999 and that after completion of one year satisfactory service, he was entitled to move-over to the special grade with effect from 1st July, 2000 along with all accruing monitory benefits in accordance with the relevant prevailing Wage Board Award.
4. Shahid Ahmad, petitioner claims that he moved over to Grade-II with effect from 1st July, 1996. He reached the ceiling of this grade on 30th June, 1998 and after completing one year satisfactory service on 30th June, 1999, he was entitled to the next move-over to Grade-I along with all monetary benefits with effect from 1st July, 1999.
5. Shafi-ud-Din Ashraf, petitioner claims that he moved over to Grade-II on 1st July, 1997. He reached the maximum of Grade-II on 30th June, 1999 and after completing one year satisfactory service, he became entitled to move-over to Grade-I with effect from 1st July, 2000 along with all monitory benefits.
6. The respondent-Establishment contested the respective claims of the petitioner(s) and filed parawise comments raising preliminary legal objection as well as controverting the claim on facts.
The respondent-Establishment raised the following objections of law and fact against the maintainability of the petition(s):--
(a) That the petition aiming at adjudication and determination of an alleged claim was not competent.
(b) That the petitioner had earlier filed a petition on the same cause of action which was withdrawn by him from this Tribunal on 14th June, 2001 and that a fresh petition was barred.
(c) Those successive move-overs were not permissible under law. Only one move-over was permissible and that the claim of the petitioner(s) amounted to seeking promotion in the garb of successive move-overs.
7. On the other hand, it has been contended by the petitioner(s) that successive move-overs is clearly spelt out from the various Wage Board Awards. In this connection, a judgment passed by this Tribunal on 25th May, 1995 in Case No,IT-1-215/95 was relied upon wherein it was held that the Wage Board Awards do not place any embargo to more than one move-overs. It is submitted that not only this order went unchallenged and uncontested, it was even acted upon by the respondent-Establishment in a very large number of cases. A list of as many as 40 employees has been placed on the record who have been granted more than one moveovers along with accruing financial benefit. As regards the objection that having withdrawn an earlier petition on the same cause of action, the present petition was not competent, it is urged that vide order, dated 14th June, 2001, the petitioner was allowed to withdraw the petition with permission to file a fresh petition.
According to this very order, the respondents did not raise any objection to the said prayer. It is submitted that the present petition was not barred on any account.
8. The respondent-Establishment has submitted data in respect of as many as 39 employees (included in the list of 40 employees submitted by the petitioners). These lists indicate that the conferment of higher grades to the employees was by way of promotions and that in no case move-over was granted more than once. The lists provided by the respondent-Establishment are marked as Mark-1 To mark-39.
9. The main thrust of arguments on behalf of the respondent-Establishment as made by Mr. Muhammad Hamayun, Advocate is that the claim of successive move-overs is not competent under the law. It is submitted that move-over contemplated by the Wage Board Awards is limited to a particular grade and cannot be availed of repeatedly without a formal promotion to the next higher grade. According to the learned counsel distinction between move-over and promotion has to be borne in mind and that the petitioners shall not be entitled to claim promotion as of right in the garb of successive move-overs.
10. In support of his submission the learned counsel for the respondent has referred to the policy governing civil servants to contend that the same is not permissible under the provisions of the ESTACODE.
11. He further submits that the concept of move-over for newspaper employees emerged for the first time in the 2nd Wage Board Award and was substantially in line with the policy governing the civil servants. In this respect the learned counsel has referred to para.9(viii) of the 2nd Wage Board Award which reads as under:-- "Any employee who reaches the maximum stage of the pay scale applicable to his grade shall, after completion of one year satisfactory service, be automatically given the pay scale of the next higher grade while continuing to perform duties of original post till he is formally promoted in the ordinary course to a higher post."
' According to the learned counsel this provision clearly prohibits a successive move-over and that till formally promoted, an employee will be entitled to one move-over only in the next higher grade."
12. The learned counsel for the respondent further submits that the alteration/deviation in the subsequent Wage Board awards have unjustifiably opened the door for interpretation that successive moveovers is permissible.
13. As regards conferment of successive higher grades to the employees mentioned in Mark-1, to Mark-39, he submits that in most of the said cases, if not all, the move over has been granted only once while the conferment of the higher grades other than the move-over were given by. Way of formal promotions.
14. On the other hand Mr. Faiz Muhammad Ghanghro, the learned counsel for the petitioners has placed reliance upon an order, dated 25-5-1995 passed by this Tribunal in Case No,IT-1-215 of 1995 where it was held that bare reading of para.77(ii) of the 5th Wage Board Award would show that an employee who has reached the maximum stage of his pay scale applicable to the grade, after completion of one year's satisfactory service would be entitled to move-over to the next higher grade. It was found therein that para.77(ii) (ibid) does not contemplate only one move-over as this is a recurring process. It was concluded therein that there is no embargo in the 5th Wage Board Award to more than one move-overs.
15. It is contended by the learned counsel that the provisions regarding move-over in the 6th as well as the 7th Wage Board Award are in pari materia with para.77(ii) of the 5th Wage Board Award.
It is further contended that no newspaper establishment challenged this judgment of the learned Chairman, ITNE and are thus, precluded to challenge it now. Not only this, the learned counsel for the petitioners has relied upon the list of 40 employees along with their successive move-overs into next higher grade/grades to urge that the respondents have accepted this position regarding successive move-over and has even implemented the same.
16. It is further submitted that the analogy referred to by the respondent in respect of civil servants to contest the right of successive move-overs in the case of newspaper employees is not apt for the reason that the Wage Board Awards are protected under the Newspaper Employees (Conditions of Service) Act, 1973 which is a special law and shall apply with full force in case of Newspaper Employees. The ESTACODE being applicable to civil servants only shall have no application to the case of newspaper employees.
17. Arguments have been heard and record perused.
18. The concept of move-over for the newspaper employees was introduced in the 2nd Wage Board Award notified on 6th July, 1974. Under the heading of Fitment, para.9(viii) provided as under:- "Any employee who reaches the maximum stage of the pay scale applicable to his grade shall, after completion of one year's satisfactory service, be automatically given the pay scale of the next higher grade while continuing to perform duties of original post till he is formally promoted in the ordinary course to a higher post. For the purpose of Fitment in the pay scale of the next grade without actual promotion to such higher grade, the pay of the employee concerned shall be fixed in the higher pay scale at a stage which is without equal to basic pay of the lower grade. If there be no such stage his pay shall be fixed in the next higher grade."
' A perusal of this provision would show that the employee who reaches the maximum stage of the pay scale applicable to his grade, after completion of one year's satisfactory service be automatically given the pay scale of the next higher grade till formally promoted to a higher post.
19. This was altered in the 3rd Wage Board Award published on 28-6-1980. Para.9(ii) (ibid) provided as under:- "Any employee who reaches the maximum stage of his pay scale applicable to his grade, after completion of one year's satisfactory service shall automatically move-over to the next higher grade, fixing his pay as such stage as falls next above is existing pay in the lower grade."
20. Similar position obtains in the 4th Wage Board Award notified on 16-10-1985 where the relevant provision is contained in para.46(ii) which is reproduced as under:-- "Any employee who reached the maximum stage of his pay scale applicable to his grade, after completion of one year's satisfactory service in the said grade shall move-over to the next higher grade where a higher grade exists, fixing his pay at such stage as falls next above is existing pay in the lower grade."
21. In the 5th Wage Board award notified on 13-10-1991 the provision regarding move-over is contained in para.77(ii) which is reproduced as under:-- "Any employee who reaches the maximum stage of his pay scale applicable to the grade, after completion of one year's satisfactory service shall automatically move-over to the next higher grade, fixing his pay at such stage as falls next above is existing pay in the lower grade."
22. The 6th Wage Board Award was notified on 13-3-1996 and provides for move-over in para.73(i) which reads as under:-- "Any employee who reaches the maximum stage of his pay scale applicable to , the grade, after completion of one year's satisfactory service shall automatically move-over to the next higher grade, fixing his pay at such stage as falls next above is existing pay in the lower grade."
23. Lastly the 7th Wage Board Award notified on 18-1-2001 contains a similar provision for move- over which is provided in para.52(i) and is reproduced as under:-- "Any employee who reaches the maximum stage of his pay scale applicable to the grade, after completion of one year's satisfactory service shall automatically move-over to the next higher grade, fixing his pay at such stage as falls next above is existing pay in the lower grade."
24. A comparison and minute perusal of provisions regarding the move-over in the 3rd, 4th, 5th, 6th and 7th Wage Board Awards would show that no embargo is intended to be placed on more than one move-overs. A further scrutiny reveals that while in the 3rd and the 4th Wage Board Awards the words used are 'any employee who reaches the maximum stage of his pay scale applicable to his grade, in the 5th, 6th and 7th Wage Board Awards the word "his" appearing before the term grade has been amended to the word "the" before the term grade.
25. This modification is not without significance. .It implies that any employee who reaches the maximum stage of his pay scale applicable to the grade, after completion of one year's satisfactory service shall automatically move-over to the next higher grade. This leaves no manner of doubt that whenever an employee reaches the maximum stage of his pay scale whether in the lower grade or in the moved-over grade shall be entitled to a further move-over once he reaches the maximum stage of his pay scale in that grade.
26. The Chairman, ITNE had earlier decided Case No,IT-1-215 of 1995 on 25-5-1995 and has held that the Wage Board Awards do not place any embargo to more than one move-overs. This order continues to occupy the field as it was not challenged by any party before any available forum.
27. It is importantly pointed out by the learned counsel for the petitioners that the respondent- Establishment has consistently followed the principle of successive move-overs in as many as 40 listed cases. The respondent-Establishment has on the other hand itself filed data in respect of as many as 39 employees (Mark-1 to Mark-39) but has tried to demonstrate that all those cases pertained to the grant of a higher grade through formal promotions and only one move-over. The learned counsel for the respondent-Establishment has not been able to substantiate the claim of formal promotions as neither any promotion orders have been placed on the record nor any proceedings of the relevant Departmental Promotion Committee have been produced. In this view of the matter it stands proved from the record produced even by the respondent- H Establishment that successive move-overs have been made in a large number of cases by the respondent.
28. The upshot of the above discussion is that there is no embargo on successive move-overs in the Wage Board Awards and that large scale move-overs have been granted by the respondent without any let or hindrance. Further no reliance can be placed upon the provisions of ESTACODE in this behalf as ESTACODE applies to civil servants only while Newspaper employees are governed by the Wage Board Awards which stand protected under NECOSA, 1973 and have the status of a special law qua the Newspaper employees.
29. The other objection raised by the respondent that as the petitioners had earlier filed petitions on the same cause of action and had withdrawn the same and that the present petitions were not competent on this score, suffice it to say that in the order, dated 14-6-2001 the petitioner was allowed to withdraw the petition with permission to file a fresh petition. In this view of the matter but objection is devoid of force and is hereby rejected.
30. The last contention that the petition is aiming at adjudication or determination of an alleged claim and is thus, not competent is also without merit. The petitioners are not seeking interpretation of any provision of the award or law. They are merely seeking the implementation of the relevant Wage Board Award vis-a-vis its provision's with regard to move-over. The contentions raised by the respondent-Establishment against the implementation of the move-over provisions are ill-founded.
31. Resultantly the petitions are accepted and the respondent is directed to grant move-over to the petitioner Safdar Ali Khan to the special grade with effect from 1st July, 2000 along with all accruing monetary benefits as per the 7th Wage Board Award, petitioner Shahid Ahmad to Grade-I with effect from 1-7-1999 along with all monetary benefit according to 6th and 7th Wage Board Award and petitioner Shafi- ud-Din Ashraf, move-over to Grade-I with effect from 1-7-2000 with all monetary benefits under the 7th Wage Board Award.