' AJMAL MIAN, J.-The petitioner through this petition has impugned the orders, dated 21st January, 1977 and dated 28th June, 1977 passed by respondent No, 2 i. e. The Presiding Officer, Labour Court No, VI, Hyderabad and respondent No, 3 7. e. The Chairman, Sind Labour Appellate Tribunal, at Karachi respectively in Application No, 256/76 and Appeal No, Hyd-82 of 1977, respectively.
2. The relevant facts leading to the filing of the above petition are that deceased Kazi Khan Muhammad son of Muhammad Sharif was a permanent employee of the petitioner-bank and at the relevant time was working as Sub-Accountant with effect from 4th January, 1974. It was the grievance of the deceased that he was granted increment of Rs, 30 per month 1st July, 1974 but subsequently it was withheld. It was also alleged by him that he had been deprived of his increment which became due on 1st July, 1974, 2nd November, 1974 and 1st July. 1975 in violation of the service rules and so also the promotion. Deceased Kazi Khan Muhammad filed aforesaid application under section 25-A of the I. R.
0. 1969 before the Vith Labour Court, Hyderabad, which was resisted by the petitioner. However, the learned Labour Court by its order, dated 2Ist January, 1977 granted the above application and directed the petitioner to release the withheld amount of increments and benefits and also to promote deceased Kazi Khan Muhammad. The petitioner being aggrieved by the above order filed Appeal No, Hyd-82/77, which was dismissed by the learned Sind Labour Appellate Tribunal by its aforesaid order, dated 28th June, 1977. The petitioner being aggrieved by the above two orders has filed the present petition on 30th July, 1977. It seems that during the pendency of the above petition said Kazi Khan Muhammad expired and, therefore, his legal heirs, mother, widow, son and daughter i. e. Respondents 1 (a) to 1 (d) were brought on record.
2. (a) In support of the above petition Mr. Mansoorul Arfin, learned counsel for the petitioner has contended as follows :-
(i) That deceased Kazi Khan Muhammad's application was time-barred and, therefore, should have been dismissed by the learned Labour Court and by the learned Sind Labour Appellate Tribunal.
(ii) That since the increment claimed by deceased Khan Muhammad was not guaranteed or secured to him by or under any law or any award or settlement, both the Courts erred in allowing the increment.
(iii) That there was no right of promotion guaranteed or secured to Kazi Khan Muhammad under any law or any award or settlement for the time being in force, he could not have been granted the relief of promotion by the two Courts below.
(b) On the other hand Mr. Shamsi, learned counsel for the legal heirs of deceased Qazi Khan Muhammad has contended as follows (0 That there are concurrent findings on the questions of limitation, increment and promotion by two competent Courts, this Court in exercise of writ jurisdiction cannot interfere with, as the same cannot be said to be in excess of jurisdiction or in violation of any provision of law.
(iii) That deceased Kazi Khan Muhammad was entitled to increment as well as to promotion under the rules and non-granting of the same by the petitioner warranted the granting of the above reliefs by the two Courts.
3. As regards the first contention of Mr. Mansoorul Arfin, it may be observed that he has referred to section 25-A of the I. R.
0. Sub section (1) of the above section provides that a works may bring his grievance in respect of any right guaranteed or secured to him by or under any law or any award or settlement for the time being in force to the notice of his employer in writing, either himself or through his shop steward or collective bargaining agent within three months of the day on which cause of such grievance arises. It may further be observed that subsection (2) provides that whereas worker himself brings his grievance to the notice of an employer, the latter shall within 15 days of the grievance being brought to his notice, communicate his decision in writing to the worker, whereas subsection (3) deals with the case where a worker brings his grievance to the notice of the employer through his shop steward or collective bargaining agent, in such a case under the above subsection the employer is obliged to give a reply within 7 days of grievance being brought to his notice. It may also be pointed out that subsection (4) provides that if the employer fails to communicate his decision within the period specified in subsection (2) or as the case may be in subsection (3) or if the worker is dissatisfied with the said decision, the worker or the shop steward may take the matter to his collective bargaining agent or to Labour Court or as the case may be, the collective bargaining agent may take the matter to the Labour Court and where the matter is taken to Labour Court, it shall give a decision within 7 days from the date of the matter being brought before it as if such matter were in an industrial dispute. It also provides that the worker who desires to so take the matter to the Labour Court shall do so within a period of two months from the date of communication of the employer, or as the case may be, from the expiry of the period mentioned in subsection (2) or subsection (3) as the case may be.
' In the instant case the Labour Court had taken the view that "It was only on 27th December, 1975 when the applicant came to know the ill-intention of the respondent that his legal grievance notice on the respondent. The period of limitation commences from the date of denial of such rights of the applicant by the respondent and in no case, the applicant was informed by the respondent about the denial of his guaranteed rights prior to 27th December, 1975 and, therefore, it was the actual date from which the limitation period has started".
The above finding was concurred by the learned Single Labou Appellate Tribunal. In our view, the question of limitation is not purely a question of law but it is a mixed question of fact and law. The two Courts were Courts of competent jurisdiction and they have taken the view that the application was filed within limitation period. The above view may be erroneous but cannot be said to be in excess of jurisdiction or it suffers from want of jurisdiction. If it is to be held that the cause of action accrued on 27th December, 1975, admittedly the application was within time. However, it was vehemently argued by Mr. Mansoorul Arfin that the alleged cause of action accrued to late Kazi Khan Muhammad on the dates when he was allegedly entitled to the increments and the promotion and, therefore, the view found favour with the two Courts is not sustainable in law. It may again be observed that at the most the view found favour with the two Courts can be said to be erroneous but this cannot be interfered with in a writ jurisdiction. Mr. Mansoorul Arfin has referred to the case of Messrs Saleem Sons Ltd. v. Second Sind Labour Court, Karachi in which a Division Bench of the erstwhile High Court of Sind and Baluchistan took the view that no application under section 18 of the West Pakistan Industrial and Commercial Employment (Standing Orders)
Ordinance (VI of 1968) was competent unless the applicant strictly complies with its requirements including the period as to the filing of the application.
' On the other hand, Mr. Shamsi has placed reliance on the case of Lyallpur Sahiwal Bus Service (Regd.) Lahore v. Appellate Authority and 2 others and the case of Messrs Bottlers Ltd., Lahore v.
Khushi Muhammad and 5 others . In the first case a Division Bench of the Lahore High Court has held that erroneous view of law taken cannot he scrutinized by the High Court under Article 98 of the late Constitution of Pakistan, 1962 and a defect of limitation is not a defect of jurisdiction wherefore any erroneous view of law taken on such point, or an erroneous assumption of fact upon which jurisdiction of the Court concerned depends can be interfered within a writ under Article 98.
In the second case Shafiur Rahman, J. (as he then was) while construing section 25-A held that authority having jurisdiction to entertain a matter has jurisdiction to C decide question of limitation rightly or wrongly. Mr. Shamsi has also pointed out the difference between the language employed in section 18 of the West Pakistan Industrial and Commercial Employment (Standing Orders)
Ordinance, 1968 and subsection (1) of section 25-A. In our view, it is not necessary to go into the question of the difference in the language employed in the two enactments. It will suffice to observe that we are in respectful agreement with the view found favour by Shafiur Rahman, J.
Which is directly on the interpretation of section 25-A.
4. As regards the second contention of Mr. Mansoorul Arfin that the increment was not a right guaranteed or secured to deceased Kazi Khan Muhammad under any law or any award of settlement for the time being in force, it may be observed that the learned Labour Court has placed reliance on rule 23 of the National Bank of Pakistan (Staff) Service Rules, 1973 which reads as follows :- "Increment ; subject to their service being approved, the annual increment in the pay of employee shall accrue and be granted on the first of January, or any other date each year as may be specified by the competent authority."
' However, it was urged by Mr. Mansoorul Arfin that since this is not a statutory rule, it cannot be urged that the right undar the above rule is guaranteed or secured under any law. On the other hand Mr. Shamsi has pointed out that before the Labour Court as well as before the learned Sind Labour Appellate Tribunal the case of the petitioner was that the above rules were statutory rules.
He has invited our attention inter alia to paras. 1 and 2 of the memo of appeal filed by the petitioner before the learned Sind Labour Appellate Tribunal, which read as follows :-
(1) "That the appellants Organisation is a statutory body having been brought into existence by an Ordinance No, XIX of 1949 and has the statutory Rules of Service and Conduct in effect for their workmen.1 2 3
(2) That the respondent in appeal is a workman employed as Sub-Accountant. His terms and conditions of service are regulated by the National Bank of Pakistan (Staff Services) Rules, 1973 together with the directions contained in the Wage Commission Report, 1974-75."
A perusal of the above-quoted paras. Clearly indicates that the petitioner's case before the learned Sind Labour Appellate Tribunal was that the rules in question are statutory rules. However, it was urged by Mr. Mansoorul Arlin that since it is a point of law, it can be urged in a writ petition notwithstanding that a contrary view was urged by the petitioner before the two Courts below. In our view, for the purpose of the present Petition, the petitioner are bound by their own admission.
They cannot be allowed to urge in a Writ petition contrary to what was urged before the two Courts below. It is not necessary for us to go into the question, whether factually they are statutory rules or not. The fact remains that both the parties proceeded on the assumption that the same were statutory rules before the two Courts and in view of the express averment of the petitioners that they were statutory rules, they cannot be permitted to urge otherwise in this petition. However, they are at liberty to urge otherwise in other cases at the appropriate stage. In this view of the matter, in our view the concurrent finding of the two Courts that the respondent's increment was withheld for no reason is in accordance with the evidence on record. Nothing was brought on record before the Labour Court or even before the Appellate Tribunal which could disentitle deceased Kazi Khan Muhammad to the increment which he was entitled under the above rules. It may again be observed that in any case Labour Court as well as the learned Sind Labour Appellate Tribunal were the Courts of competent jurisdiction to adjudicate upon the question of entitlement of the increment. There is nothing illegal or contrary to the rules in the view found favour by the two Courts.
5. Reverting to the question of promotion, it may be advantageous to reproduce hereinbelow rule 21 which reads as follows :- "(1) All promotions shall be made on the merits of each case and no employee shall have claim to be promoted to any particular post or grade by virtue of seniority alone. Should an employee officiating in a higher post show signs of deterioration while he is so officiating, he shall be liable to immediate and summary reversion to the grade of his previous appointment."
' It may be noticed that in the above rule it has been provided that promotion shall be made on merits of each case and no employee shall have claim to be promoted to any particular post or grade by virtue of seniority alone. It further provides that should an employee officiating in a higher post show signs of deterioration while he is as so officiating, he shall be liable to immediate and summary reversion to the grade of his previous appointment. Mr. Shamsi has relied upon the case of Crescent Jute Products Ltd. Jaranwala v. Muhammad Yaqub etc. in which the Hon'ble Supreme Court while construing the phrase "shall go into all the facts of the case" used in subsection (4) of section 25-A held that the above words clearly signify that the Junior Labour Court has full and complete powers to enter into question of fact and to arrive at its own conclusions regardless of there being no illegality of procedure in the domestic proceedings. On the basis of the above observation, it has been vehemently urged by Mr. Shamsi that the Labour Court was competent to go into the question, whether deceased Kazi Khan Muhammad was deprived of the promotion which he was entitled to. It m may be observed that the old view was that a Labour Court cannot go behind the proceeding of a domestic inquiry against an employee if the procedure followed was in accordance with the rules. This view was disapproved by the Supreme Court in the above- reported case of 1978. However, this does not lay down that if an employee's right to promotion is not guaranteed or secured to him under any law or any award or settlement for the time being in force, he can be granted that right. The Labour Court or the Labour Appellate Tribunal cannot grant something which is not guaranteed or secured under any law or any award or settlement for the time being in force in terms of subsection (1) of section 25-A of the I. R.4
0. It may be observed that Service Rule 21 quoted hereinabove does not guarantee or secure a right of promotion in favour of petitioners' employees and, therefore, both the Courts have acted excess of jurisdiction Mr. Mansoorul Arfin has referred to the case of Abdul Wahid v. Pakistan through the Secretary to the Government of Pakistan, Ministry of Finance Islamabad and another the case of Agricultural Development Bank of Pakistan, Karachi v. Staff Union and another and the case of Brooke Bond, India (Private) Ltd. v. Their Workmen . In the first case Karam Elahee Chohan, J. Sitting as S B in the Lahore High Court while construing the question of promotion of railway employees held that promotion was always matter of discretion and not of right and, therefore, cannot be enforced through Writ Petition under Article 98 of the late Constitution of Pakistan, 1962.
In the second case a learned Single Judge of this Court while dealing with the question of promotion in respect of staff of Agricultural Development Bank of Pakistan, held that it is not open to the officials of the Union to guide bank as to how promotion should be made and no right of promotions claim, guaranteed or secured to particular category of officials. In the third case a Full Bench of the Indian Supreme Court held that normally the promotion of the workman is a management functio,n but there may be occasions where industrial adjudication may have to interfere with promotion made by the management, where it is felt that the persons superseded have been so superseded on account of mala fide or victimisation but even after recording finding of mala fide or victimization, it is not the function of the Tribunal to consider the merits of various employees itself and then to decide whom to promote or whom not to promote. It was further held that the proper course for a Tribunal is to set aside the promotion and ask the management to consider the cases of superseded employees and decide for itself whom to promote but the Tribunal cannot order the promotion of certain other employees over and above those promoted by the management.
6. It is by now a well-settled principle of law that a promotion cannot be claimed as a matter of right except in those cases where promotion is guaranteed or secured on the basis of seniority alone.
' But where the promotion is to be granted on the basis of seniority-cum-fitness, an employer has the discretion to take into consideration various factors while considering the question of promotion inter se between different employees. If he by passes a particular employee bona fldely, his action cannot be challenged. However, if the supersession is motivated for malafide reason, the same may be impugned before a competent Tribunal but the Tribunal cannot itself promote but may set aside the promotion of the persons, who were not entitled to the promotion in supersession of an aggrieved person and may direct the authority concerned to reconsider the case. In the instant case nothing has been brought on record to indicate that the alleged non- granting of promotion was actuated for mala fide reason. No particulars as to the act constituting mala fide were disclosed in the application or in the evidence. We are, therefore, of the view that both the Courts could not have granted the relief of promotion.
7. For the aforesaid reason the Petition is allowed to the extent of declaring that the granting of relief of promotion to deceased Qazi Khan Muhammad was without lawful authority and of no legal effect. In the circumstances of the case there will be no order as to costs. PLD 1973 Kar. 1 PLD 1970 Lah. 775 1979 PLC 424 PLD 1978 SC 207 1974 PLC 120 PLD 1975 Kar. 876 1966 PLC 4495 6 7 1 2 3 4 5 6 7