' These appeals arise from the decision dated 22nd January, 1978 delivered by the learned Presiding Officer, Punjab Labour Court No, I, Lahore, whereby the grievance petitions of the respondents, in the above-mentioned appeals, who were employees of the P. R. T. B. Were accepted and the order dated 16th October, 1974, whereby 159 employees were appointed as Ticket Examiners was set aside and the following directions were issued :-
(1) The existing staff (as existing on 16th October, 1974) of Checkers, Inspectors and Chief inspectors shall be redesignated as Ticket Examiners, Senior Ticket Examiners and Assistant Traffic Manager (Checking) with effect from 16th October, 1974 and shall be given the grades approved in the 19th PRTB meeting held on 16th July, 1974.
(2) All the persons directly recruited for the posts of Ticket Examiners, Senior Ticket Examiners and Assistant Traffic Manager (Checking) shall be retrenched and the employer may adjust them against the vacant posts of Conductors and Junior Clerks, if possible.
(3) All the Booking Clerks, Junior Clerks, Duty Clerks, Time Checkers, Statement Checkers and Fuel Clerks, who were promoted as Ticket Examiners in the order dated 16th October, 1974 shall be reverted to their substantive posts. Of course, they would be entitled to be promoted in their own clerical line.
(4) All the posts falling vacant shall be filed in accordance with the policy of promotion laid down in the settlement of 1969, read with West Pakistan Road Transport Board Staff Promotion Rules, 1959."
' It was further observed that the petitioners before the Labour Court would not stand automatically promoted to the posts of Ticket Examiners.
2. As all the above nine appeals arise from the same decision of the Labour Court, they are being decided through this common judgment.
3. The employees who brought the grievance petitions before the lower Court were either conductors or checkers. Their case was that they were entitled to be promoted as Ticket Examiners in 1974, but were ignored. In the beginning there was only one Commercial establishment namely, Punjab Road Transport Board, which was on 1st February, 1977 bifurcated and Punjab Urban Transport Corporation was established and all the units of Lahore Omnibus Service were transferred to the said Corporation. This change had taken place during the pendency of the petitions before the Labour Court. On account of this change the P. U. T. C. Was also impleaded as respondent to the grievance petitions. Needless to say that the employees of the P, R. T. B. Were governed by the W. P. Road Transport Board Staff Promotion Rules, 1959. Their channel of promotion, according to the rules, is given in the lower Court's order and need not be recapitulated here. The channel of promotion of a conductor was either Junior Clerk, or Booking Clerk, or Checker.
A conductor promoted to the post of Clerk had channel of promotion in the clerical line to Junior Clerk, Senior Clerk, Deputy Accountant or Superintendent. If a conductor was promoted to the post of checker then his channel of further promotion was Head Checker, Inspector, and Commercial Inspector. It is evident that according to the channel of promotion, a Junior Clerk could not have been promoted to the post of Checker or Commercial Inspector. The percentage was fixed according to rule 5(11) as 75% from the lower grade, if suitable candidates were available. The remaining vacancies were to be filled in by direct recruitment. With respect to the clerical staff the provision is made in rule 11 which reads thus "recruitment and promotion percentage will be as under :-
(a) Junior Clerks to be recruited direct ;
(b) Senior Clerks to be promoted from amongst the Junior Clerks, direct recruitments to be resorted to only when a suitable candidate is not available.
(c) Assistant-75 per cent by promotion from amongst the Senior Clerks and 25 per cent by direct recruitment ;
(d) Head Assistant 50 per cent from amongst the Assistants and 50 per cent by direct recruitment :
(e) Deputy Superintendent-This post will be treated as Selection Post."
4. The employees believing that the P. R. T. B. Was filling in the vacancies by direct recruitment, instead of making promotions from the lower grade, raised an Industrial dispute in 1969, demand No, 6 of which was as under :- "Direct recruitment system and unlawful promotion system should be stopped. Those individuals who had been directly recruited or were promoted illegally as Assissant Traffic Managers, Station Superintendents, Foremen, Mechanics, Fitters, Traffic Assistants, Time Keepers, Time Checkers, their appointments/promotion orders should be cancelled. The vacancies thus caused should be filled in by the existing employees with due regard to their seniority and experience."
' This demand alongwith others was accepted by means of a settlement dated 27th December, 1969. The settlement arrived at on demand No, 8 reads as under :- "Agree that subject to suitability 100 per cent posts in the subordinate cadre will be filled in by promotion and direct recruitments will be resorted to only when suitable subordinates are not available. The promotions complained of will be reviewed in the light of the above decision."
' The above-mentioned decision on demand No, 6 was accepted by the Board in its meeting dated 11th January, 1970 and amendments in the Staff Promotion Rules were ordered to be made. It does not appear if any period, up to which the settlement was to continue, was fixed, therefore, the period for which it could remain effective was one year according to section 40(2) of the Industrial Relations Ordinance, 1969. The Board sent a notice on 12th November, 1973 to the General Secretary of the Road Transport Employees' Union to the following effect :- "Please note that the memorandum of settlement signed on 27th December, 1969 between the Road Transport Corporation, Lahore and Road Transport Employees' Union (Registered), Lahore will stand terminated on the expiry of two months' period from the date of issuance of this notice."
5. On the expiry of the period of two months from the notice the Board formed an opinion that the settlement of 1969 had come to an end and it was at liberty to deviate from the decision made in the settlement in respect of cent per cent promotion from the lower grade. On 7th June, 1974 in a meeting the Board decided that all the checkers be raised to that of Inspectors fixing the grade at Rs, 225-400 and they be entrusted with administrative powers of giving punishment of censure for minor irregularities. The decisions which were made on the above-mentioned date were :- (0 The post of Checkers be abolished.
(ii) The following will be the revised set up of the Checking Staff :-- Designation No, of Posts Pay Scale
1. Chief Inspector. 1 in each service 350-20-550 (ATM scale)
2. Senior Inspector As per present 225-15-300/16-380/20- ' strength of 400 plus Rs, 50 as ' Inspectors. Special Allowance.
(iii) The incumbents can be transferred from one place to another.
(iv) The following administrative powers were granted and this removed the checking staff from the category of workers :
(a) Chief Inspector To censure for minor traffic irregularities.
(b) Senior Inspector -do-
(c) Inspector -do- GRANT OF LEAVE (i) Chief Inspector 7 days casual leave medical leave supported by M. C. Of M.O.
PRTB to the staff working under him.
(ii) Senior Inspector 5 days casual leave to the staff working under him."
' Further amendment was made in the-'new Checking Scheme by the Board on 17th July, 1974 and the following explanatory note was placed before the Board :- "The proposed Checking System as formulated in the explanatory note was discussed and following decisions were taken :-
(i) All existing pasts of Chief Inspectors, Inspectors and Checkers are abolished, from the date, the Scheme is implemented and selection appointments are made.
(ii) The following is the revised set up of the New Checking Scheme :- DESIGNATION PAY SCALE
1. A. T. M. (Checking) A. T. M. Scale.
2. Sr. Ticket Examiner. 225-15-300-EB-16-380-EB-20--480 plus Rs, 50 Special Allowance.
3. Ticket Examiner. Same as that of Senior Ticket Examiner except S. Allowance.
(iii) M. D. Is hereby empowered to assess the requirement of each service and H. Qrs. Office and fix the strength.
(iv) The incumbents can be trnnsferred from one place to another.
(v) The following administrative powers were granted in the best interest of the Board :-
(a) A. T. M. (Checking) ' To censure for minor traffic irregularities,
(b) Senior Ticket Examiner.
(c) Ticket Examiner.
A. T. M. (Checking) -do--do- ' 7 days casual leave/medical leave supported by M. C. Of M.
0. P. R. T. B. To the staff working under him.
(i) Senior Ticket Examiner. 5 days casual leave to the staff working under him.
(vf) Two pairs of uniforms of Khaki drill and appropriate shoulder badges be provided for summer season and a warm coat in winter season subject to standard uniforms Rules in other respects.
(vii) Two motor cycles/scooters be provided to each Service. C. T.
0. Will arrange procurement of either Honda, Suzuki or any other through Awami Autos Limited.
(viii) The posts shall be filled by selection keeping in view the past record/reputation of Departmental candidates and suitable candidates from outside."
' The Board gave the following approval : "The Board approved amendment in the new checking scheme as contained in the Explanatory note. It resolved that 30% of the appointments to the posts under the new checking scheme be made from outside and the remaining 70% to be filled in from amongst the existing staff. On request from the Labour Representative, the Board allowed him one week within which period he is to give his views on the implementation of this scheme."
6. It is manifest from the new checking scheme that the settlement as well as the Staff Promotion Rules were deviated from-. According to scheme, the post of Assistant Traffic Manager (Checking), S. T. Es. And. T. Es. Took the place of the posts of Chief Inspectors and Checkers. The grades of the substituted posts were enhanced and powers to censure for minor traffic irregularities and granting of casual leave were given. The posts of Chief Inspectors, Inspectors and Checkers were abolished. For the implementation of the new checking scheme a Selection Committee was formed as it was decided that the new posts would be filled in by selection. 104 checkers, 3 Inspectors, 18 clerks and two conductors were posted as Ticket Examiners. Some of the posts were filled in by direct recruitment also. The respondents felt aggrieved on account of direct appointment as it was in derogation of the settlement of 1969 and this was the cause of bringing the grievance petitions before the Labour Court.
7. The main question, therefore, involved is whether the settlement by the issuance of notice by the Board came to an end and the Board was free to deviate from the decision arrived at in the settlement and was competent to adhere to direct appointment. As far as this point is concerned, this matter stands already finalized. The Board, as mentioned in the lower Court's judgment, had brought an application under section 34 of the Industrial Relations Ordinance, 1969, in which it was decided on 8th January, 1976 that the settlement referred to above was still effective and that all the vacancies in the subordinate cadre would be filled in by promotion and not. By direct recruitment. The said decision was challenged in writ petition No, 1013 of 1976 but it was upheld.
Nothing has been said on this point by the learned counsel for the appellants. Before the lower Court, however, it was argued that the decision of the Board's application given under section 34 and the decision of the writ petition No, 1013 of 1976 was not binding on the appellants as the parties were not the same. This argument was repelled back by the lower Court for sound reasons.
Needless to say that the C. B. A. Is the representative of all the employees and in cases where the C.
B. A. Is a party, all the workers are represented and bound by the decision. The Board itself was the petitioner in that case and by no stretch of imagination it can be said that the same is not bound by the decision. The writ petition was filed by the Board, so there is no force in the argument that the appellants are not bound by the decision pronounced in the writ petition. In some other case there can be a scope to take different view, but since the matter stands finally resolved in the present case by the previous decision of the High Court in the writ petition, no contrary view can be taken. Not only that the settlement of 1969 did not become inoperative on the expiry of the two months from the date of notice served by the appellants upon the C. B. A. But another settlement dated 23rd April, 1970 (Exh. P. W. 3/2) in which demand No, 6 was repeated and accepted in toto also debars the appellants to deviate from the decision arrived, at in the settlements of 1969 and 1970. Even if it be said that by the service of notice the settlement of 1969 became inoperative on the expiry of two months from the date of notice, the settlement of 1970 is still in the field as this is not the case of the appellants that the notice of termination was served in respect of the said settlement also. The learned lower court, therefore, has rightly held that the previous decisions of the High Court and the Labour Court operate as res judicata on the point whether the settlement of 1969 stands terminated or is operative. The Labour Court has relied upon 1972 PLC 190 in which it was held that by the service of two months' notice a settlement does not become absolutely inoperative, but only becomes negotiable. As I have mentioned above, the point involved in this case stands already finalised, therefore, there is no scope to hold contrary view, not there is any necessity of further discussion, or taking the benefit of any ruling. So far as the present case is concerned, there is no scope to record a contrary finding and to express personal views on the point. The observation made in the order disposing of the earlier petition brought by the Board and in the decision of the writ petition was that two months' notice to terminate the settlement had not been served upon the C. B. A. At that time R. T. C. Labour Union was the C B A and no notice was served upon it. So even this cannot be said that the settlement was revoked by the Board. The Board, therefore, was bound to fill in the vacancies by cent per cent promotions in the subordinate cadre and could not make direct appointments even in a single case so far as the subordinate cadre is concerned.
8. It has also been argued that since the settlement was incorporated in rules, it came to an end and cannot be said to be in the field. This argument on the face of it is fallacious. As a matter of fact it was unnecessary to incorporate the decision of the settlement in the rules, because the settlement itself was effective and did not require to be incorporated in rules, to make it effective.
The other thing is that the simple reason that the decision arrived in the settlement was incorporated in the rules is not sufficient to say that the settlement came to an end. There is no provision in the Industrial Relations Ordinance, 1969 to the effect that if a settlement or an award is incorporated in the rules, it comes to an end and the decisions arrived at through them can be undone by changing or repealing the rules. However, I do not find any force A in this observation of the learned lower Court that even if it be said that the settlement has terminated the rights of promotion guaranteed to the employees by the settlement remain alive and are not extinguished with the termination of the settlement. If it bad been held that the settlement had come to an end, then the old rules would have revived and promotion could be made only to the extent of 75 per cent vacancies and the remaining could be filled in by direct appointment. The rights secured by the settlement could have been only to this extent that the incumbents already promoted by the principle of cent per cent promotion under the settlement could not have been reverted.
9. On behalf of the P. U. T. C. It has been argued that since the establishment came into being on 1st February, 1977, it could not have been made party to the dispute, nor it is bound by the settlement t which it was not a party. There is no force in this argument. In the beginning there was only one establishment namely P. R. T. B. And all the employees were under it, but by bifurcation PUT C came into existence and some of the employees of P. R. T. B. Became the employees of the new establishment. Since P. U. T. C. Came into being during the pendency of the grievance petitions, Order XXII, rule 10 of C. P. C. Is attracted and on account of devolution of interests in the P. U. T. C. It became necessary party and without it the decision could not have been effective. P. U. T. C. Was impleaded as party to watch itself its interest and to contest the grievance petitions of the respondents. If P. U. T. C. Had not been impleaded as party even then it would have been bound by the decision, because upon the devolution of interests it was its duty to come forward and to contest the petitions. In its absence the PR TB was still competent to fight the cases for the benefit of P UT C so far as those respondents are concerned, who became the employees of the said establishment. Likewise, the P. U. T. C. Is also bound by the settlement arrived at between the C. B. A.
And the P. R. T. B. Interest devolved upon the P. U. T. C. Subject to all agreements, contracts, assets and liabilities. It cannot avoid the liabilities and accept the assets only. It is bound by all the agreements and settlements agreed upon between the PR TB and any other body.
10. Another point raised is that the appellants who were not party to the grievance petitions before the Labour Court are not bound by the decision since they were not beard. There are two sets of these appellants. Some are those who were already in service and were given new posts in the new scheme and some were directly appointed. So far as those appellants are concerned who were already in service, they are bound by the decision of the Labour Court, inasmuch as the C B A which represented all the workers was a party. So far as those appellants are concerned who were not already in service and were not represented by the C B A, no doubt, were not heard by the Labour Court, but since they are party to these appeals and have been heard, they would be bound by the decision of this Court. If their appointment is not warranted by the settlement of which the board is bound, the mere fact that they have been taken in service and were not parties to the grievance petitions before the Labour Court, cannot be a ground for setting aside the decision of the Labour Court. When their employer had no authority to appoint them, the very appointment is illegal and thus confers no right. If they have any right since they are party to the appeals, they have had opportunity to push forward their right but they have failed to do so. They were at liberty to show that their employer was not bound by the settlement. It, therefore, cannot be said that they are being condemned unheard.
11. The next point raised by the learned counsel for the appellant is that the grievance notice was time-barred. The line of his argument is that when it was decided that the vacancies would be filled in by the Selection Committee, the grievance was caused to the respondents at that time and from that date, the grievance notice is time-barred. It has not been shown that any notice of the meeting in which such a resolution was passed, was given to the C. B. A. No notice of the decision made in the said meeting was conveyed earlier. It was placed on the notice board on 16th October, 1974 and from the said date the grievance notices are within time. By the abolition of posts of checkers, the checkers were put in the surplus pool on 21st October, 1974, therefore, either from 16th October, 1974 when the decision was placed on the notice board or from 21st October, 1974 when the checkers were put in the surplus pool, it came to the knowledge of the C. B. A. That the terms of the settlement had been violated. It has not been proved that the C.B.A. Had the knowledge of the new development much earlier. The petitions, therefore, were not barred by time.
12. It has also been argued by the learned counsel for the appellants that the lower Court has wrongly held that the new checking scheme and the abolition of the previous and creation of new posts amounts to resignation of posts. The duties assigned to the previous posts are almost the same as assigned to the new posts with a small variation and addition of some more powers. It was a device in the cloak of recites organization to avoid the application of the settlements. Since the settlements are in force, their purpose cannot be defeated by any kind of device. The scheme in reality was a resignation of posts as held by the Labour Court.
13. As a result. Of the observations made above, I uphold the decision of the Labour Court and finding no force in the appeals, dismiss them. The directions given by the Labour Court shall stand.
Since considerable time has elapsed resulting in so many changes by way of promotion and new appointments but this difficulty may be resolved by mutual understanding of the parties. If the parties cannot agree upon a point, the directions given by the learned Labour Court shall be followed and strictly complied with.