1. By means of this petition, the petitioner has assailed the impugned promotion order dated 11-07- 2005 passed by the Respondents No, 1 to 3 and allegedly benefiting the Respondents No, 4 to 10.
The petitioner has contended that he was recruited as Assistant Admin Subordinate Grade-V on 16-07-1989 and with the passage of time, was promoted as Senior Supervisor Admn Subordinate Grade-VII in the year 2001. The petitioner further contended that he is a highly qualified person having a Masters degree in Political Science, MBA in Finance and Computer Diploma Courses of 06 months each in ACMA Foundation-I and II Part. The petitioner further contended that under the Rules and as per settlement arrived at between the Management and the CBA, the employees belonging to subordinate cadre are entitled for promotion to the next higher grade (Executive Grade-I) on the basis of seniority cum fitness as well as qualification and the petitioner having a better qualification compared to the Respondents No, 4 to 10 and also being senior to them for all intents and purpose, was entitled for promotion to the post of Assistant Admn Officer/Assistant Officer Grade-I of the Executive Cadre but due to his lawful trade union activities and for being a member of Mazdoor Ittehad Group of SNGPL Employees Union, has been victimized and has been denied the right of promotion without assigning any reason. The petitioner has explained as a ground of attack against the impugned action that as per Rule 4.3. of SNGPL Executive Service Rules, the post of Assistant Officer is to be filled by promotion by a Committee to be constituted under Rule 5.3 / 5.3.1 and criteria for promotion has been laid down in Rule 7 /7/1 according to which promotion cases are to be considered and recommended by a Promotion Committee and no selection committee is required to be constituted for the purpose and no selection work can be carried out by the Promotion Committee which is however, required for direct recruitments to the said post.
2. It was contended that as per rules, promotion to the selection post has to be made on the basis of merit, fitness and seniority. It was further contended that as per Condition No, 2 (II) of the Rules, 27% quota is allowed for the promotees. It was further contended that the Respondents No, 4 to 10 were, recruited much after the recruitment of the petitioner and during his entire service career, he was never communicated any adverse remarks except warning letter and withholding of increment for one year in the year 1999 which penalty was withdrawn and the increment was allowed to the petitioner when he was promoted in Grade-VII as Senior Supervisor. The petitioner further contended that as per settlement arrived at between the management and CBA in the year 1999, Settlement No, 9 was with regard to promotion and appointment in the executive cadre. The petitioner further contended that to his utter surprise the Respondents No, 1 to 3 issued the impugned promotion orders in the cadre of the petitioner thereby promoting the Respondents No, 4 to 10 and has contended that he is senior to them and has better qualification while no reason has been assigned for fair promotion. The petitioner's contention is that by way of the selection he has been badly victimized due to his lawful trade union activities although the Respondents No, 4 to 3 had no authority to change the terms and conditions of employment to his disadvantage on this ground hence this petition.
3. The Respondents No, 1 to 3 contested the petition inter alia on the grounds that this Commission has no jurisdiction as the matter in issue relates to the terms and conditions of service hence barred under Article 212 (2) of the Constitution of Islamic Republic of Pakistan; that the assessment of suitability and fitness for promotion is a matter of subjective evaluation which is within the sole competence of the management and is free from intervention of Courts while the promotion from one grade to the next higher grade cannot be claimed as of right and that the petition is misconceived and based on bald allegations of unfair labour practice and victimization. On facts it was averred that the petitioner was called for preliminary interview alongwith 1.26 other candidates as pet settlement 1999/01 and he secured 64% marks in the preliminary interview and was called for second interview alongwith 74 other candidates out of which 63 were in the administration cadre and 12 in personnel cadre and rest of 52 candidates failed to qualify for final interview call for promotion. It was contended that the petitioner never agitated at that juncture that the exercise of preliminary interview was illegal and not in conformity with the settlement as he himself participated and qualified in that interview. He also participated in the final interview but failed to secure the qualifying marks while 09 employees who secured 60 marks or above were selected for promotion in executive cadre. It was contended that the petitioner cannot approbate and reprobate. The allegation of victimization of the petitioner and unfair labour practice upon him was denied as incorrect and it was averred that as per agreement clause 9.1 the petitioner falls under the seniority and suitability/fitness category and he was considered for promotion form subordinate executive cadre alongwith other candidates and that seniority to Respondents No, 4 to 10 was not the only criteria for promotion.
4. The Respondents No, 4 to 10 also raised objections regarding jurisdiction of this Commission with reference to Section 2A in the Service Tribunals Act, 1973 contending thereby that the petitioner is a civil servant and the question of promotion relates to the terms and conditions of service, Section 49(4)(e) of the IRO, 2002 provides redressal of grievance arising out of victimization on account of trade union activities which is not in existence in this case, that the petitioner has not approached this Commission with clean hands and that this Court not being a Court of general jurisdiction, cannot take cognizance if there is no likelihood of unfair labour practice. On merits it was contended that the Respondents No, 5, 6, 7, 9 and 10 have been promoted on the basis of qualification as per the union settlement while the Respondents No, 4 and 8 were promoted under seniority and suitability/fitness criteria as per rules and under clause 9.1 of settlement 1999/01 which was arrived at between the management and the union. It was also contended that the petitioner was not an office bearer of any union while the allegation of unfair labour practice was also denied as incorrect. With regard to the rules in question the stance of the Respondents No, 1 to. 3 was adopted.
5. All the contesting parties produced evidence in support of their respective claims. The petitioner himself appeared as PW-1 and submitted his affidavit in evidence Ex-P/1 which bears a true account of his statement which is online with the averments of his petition which have already been described in detail in Paragraphs No, 1 and 2 of this order hence the same need not be repeated at this stage. He also produced certificate of his office bearership Ex-P/2 and memorandum of agreement Ex-P/3. He was cross examined at length with regard to the statement which shall be discussed letter. With that the petitioner's evidence concluded. The Respondents No, 1 to 3 produced in their evidence Mr. Zahid Saeed General Manager SNGPL as RW-1 who also produced his affidavit in evidence Ex-R/2 whereby he deposed that the promotion in the respondent company is made under the promotion policy framed in accordance with the settlement executed with the CBA for the year 1999/01 according to which, as per clause 9.1, any subordinate working in Grade-WI and having minimum two years experience is eligible for promotion which is made on the basis of merit cum fitness while under clause 9.2, of the settlement the eligibility is assessed on basis of qualification where after fitness is assessed on the subjective criteria by the promotion committee. It was also stated that the management does not get involved in trade union activities and has no knowledge of the trade union activities of the petitioner. The witness deposed that the petitioner never served any charter of demand and that Nasir, Farooq Ali respondents and the petitioner fall under clause 9.1 whereas the remaining respondents fall under qualification/eligibility criteria. The witness deposed that the petitioner was assessed fairly without any discrimination.
6. On behalf of Respondents No, 1 to 10 Nasir Respondent No, 8 appeared as RW-2 who referred to a settlement between the CBA Union and the management and deposed that as per settlement. 37% quota was reserved for promotion by seniority and eligibility, 27% for improved qualification during service and the remaining quota was fixed for promotion, recruitment and blood relationship and on the basis of this criteria about 127 employees were called for inter view for promotion in the executive cadre out of which 12 were called from his department (Personnel Department) who included employees senior to him and also senior to the petitioner and were not promoted. He names such employees as M. Fahim, M. Younis and Abid Hussain. The witness also stated that there are two trade unions in existence in the respondent establishment namely Pir Muhammad Group and Progressive Group whereas there are other groups as well which were vanished before the election. The witness stated that he was also affiliated with Pir Muhammad Group of the Employees Union while Mazdoor Ittehad Union does not have any office situated in the Head Office while fake telephone numbers have been given on the letter head pad of this group. In this regard the witness produced telephone bills Ex-R/3 and Ex-R/4 and stated that these ate installed at different places having no concern with the trade union. With that the evidence of Respondents No, 4 to 10 was concluded. At the end of the trial I heard arguments while the learned counsel for the parties also produced written arguments which have also been perused.
7. The petitioner by means of this petition has called in question the promotion order dated 11-07- 2005 whereby the Respondents No, 4 to 10 were promoted allegedly in supercession of the petitioner's' seniority. He has based his claim on two grounds;, firstly that there was a settlement between the CBA union and the management arrived at in the year 1999 with regard to promotions and appointments in the executive cadre whereby 27% vacancies in Grade-I, in the executive cadre were required to be filled in from amongst serving employees subject to acquiring certain educational qualifications and secondly the petitioner was ignored for promotion due to his lawful trade union activities. So far as the first ground is concerned there is no denial of the fact that this settlement was acted upon. The required number of seats were given to the serving employees by way of promotion who are Respondents No, 4 to 10. In this regard the petitioner has himself conceded in Para 5 of the petition that the Respondent No, 1 to 3 (Employers) issued promotion orders to the Respondents No, 4 to 10 and has contended that the said respondents are neither better qualified than the petitioner nor are senior to him and no reasons has been assigned while promoting those respondents or for ignoring the petitioner. He has contended that he has been victimized due to his lawful trade union activities and due to affiliation with Mazdoor Ittehad Group of SNGPL Employees Union CBA. The petitioner therefore, has no case so far as the implementation of the aforesaid settlement is concerned. He is left with only one claim that he has been victimized due to his lawful trade union activities and superseded by Respondents No, 4 to 10 inspite of his better qualification. In this regard the petitioner remained content with his solitary statement while appearing as PW-1, he introduced his evidence through affidavit in evidence Ex-P/1 which need not be repeated as it is a reproduction of his petition which has been fully detailed in the opening paragraphs of this order. However, certain admissions on his part would indicate that he has not been ignored due to his lawful trade union activities.
8. On the one hand there is no convincing evidence that the petitioner is a trade unionist in a manner that his trade union activities have annoyed the respondents (Employers) so much that they were out and out to keep him away from promotion. Neither any office bearer of his trade union has been produced to verify his trade union activities nor he himself proved any such exercise by way of trade union activities which could justify his claim that he has been ignored due to that trade union activity. It goes with out saying that for an employer the better way to get rid off an active trade unionist is to promote him and therefore, had there been any malafide on the part of the respondents (Employers) for keeping the petitioner away from promotion due to his trade union activities they could have better choice to promote him and issue him a notice not to indulge himself in trade union activities being now a member of the executive cadre.
9. Coming to his claim about trade union activities, although the petitioner denied a suggestion incorrect that he never remained a member of the executive committee of the trade union that he claims or that he never took part in any agitation against the management as a member of executive committee of his group or that he never took part in any strike against the management being a worker of the union but yet he never deposed about any such action which he might have taken in this regard. On the contrary he admitted correct that he never took part in any hunger strike and that he was never a party to any delegation which might have met the management in connection with the problems of the workers as this was the duty of the senior leader of the union and that he never pursued any case of a worker as a union leader before this Commission or any Labour Court. He also admitted correct that he never participated in any election of the trade union and never submitted or signed any demand notice on behalf of the union. He even does not know what is a demand notice. All these admissions are sufficient to prove that the petitioner is not an active trade unionist and his activities as such are not the ground for ignoring him for promotion.
10.There is also sufficient evidence in the form of admissions on the part of the petitioner that the Respondents No, 4 to 10 were also members of the same trade union and there were certain others as well who were senior to the petitioner and had better qualification and were ignored. In this regard the petitioner admitted correct that 127 employees were called for interview initially for their promotion in the executive cadre and that 75 of them had qualified for the second interview. He admitted correct that one Zamir E.No, 4936 was also called for interview and that he had not been able to qualify for the second interview. The petitioner admitted correct that the said Zamir is senior to him. So far the qualification of the Respondents No, 4 to 10 viz a viz the petitioner, he admitted correct that he does not know the qualification of either Mudassar Respondent No, 7 or the remaining respondents then how he can say that, he was better qualified than those. In addition to that the petitioner admitted correct that his increment was withheld in the year 1999 and in pursuance of a settlement arrived at between the CBA and the management on 15-042003, the management had restored all the increments which were withheld in the year 1998-99 and 2000.
The petitioner further admitted correct that inspite of those punishments mentioned in his affidavit in evidence he was promoted in BPS-7. He admitted correct that he was called for interview and had qualified for the second interview and he was again summoned but he was not found fit for promotion in the executive cadre. He admitted connect that for promotion in the executive cadre the workers serving in BPS-8 and 9 were also called for interview and they were senior to the petitioner as well but out of them only two were selected for promotion namely Mehmood Umer Qureshi and Fahim whereas the remaining were not selected. The respondents (Employers) to justify their action produced Mr. Zahid Saeed Chief Personnel Officer of the SNGPL who vide his affidavit in evidence Ex-R/2 stated that under Clause 9.1 any subordinate who is working in Grade-7 and has minimums two years experience is eligible for promotion which is made on the basis of merit cum fitness while under Clause 9.2 of the settlement eligibility is assessed on basis of qualification and thereafter fitness is assessed on the subjective criteria by the promotion committee. He also stated that the management did not get involved in trade union 'activities and has no knowledge about such activities of the petitioner.
11.All this discussion leads to an irresistible conclusion that on the or he hand the petitioner is not involved in any kind of trade union activities which has annoyed the respondents (Employers) so much that they were bent upon ignoring the petitioner and as I have already observed earlier that in that case the adviceable action was to have promoted the petitioner but since there is no such thing made out from the petitioner's evidence that he was an active or staunch trade unionist and on the other hand it is established that employees senior to the petitioner only in terms of grade and qualification were ignored. The petitioner alongwith many others was invited for short listing and for qualifying for the second interview also. He was summoned for the second interview but he could not get the marks better than the other respondents hence ignoring him was not a result of trade union activities on the part of the petitioner or as an act of unfair labour practice on the part of the respondents (Employers). Instead it is a result of the assessment of the petitioner's work, qualification and that of other employees including the Respondents No, 4 to 10.
12.The law on the subject is clear that the provisions of the IRO, 2002 did not confer general jurisdiction upon the benches of this Commission to entertain all kind of grievance petitions although they may not be relatable to unfair labour practice. I am fortified on this point by a judgment reported as PLD 1988 SC at page 53. However, this Court can intervene in matters of victimization of a worker on account of his trade union activities. In this regard his solitary statement is on record to establish which too is not enough to hold that he is involved in any such trade union activities and a bald statement of the litigants have not been given any importance by the honourable superior Courts of the Country. It was held by the Honourable Supreme Court of Pakistan in a judgement reported as 2001 PSC 1708 that seniority is not the only criteria for promotion and that the Court can also order for consideration of a certain employee for promotion which has been done in this case. There is another aspect of the matter that on the part of this Commission a promotion order already passed cannot be set aside and the concerned authority can be asked to consider the matter of an aggrieved person. I am fortified on this point by an authority of law reported as 2004 PLC (CS) at page 724. The petitioner has already been called for interview admittedly and was considered for twice but was not found it.
13. For all the foregoing reasons since the petitioner has not been able to establish any malafide due to acts of unfair labour practice on the part of the Respondents No, 1 to 3, for ignoring the petitioner due to his trade union activities, I find no merits in this petition, hence the same is dismissed.