JUDGMENT Inam-ul-Haq, J.-The decision dated 13-5-1986 recorded by the lear- nd Presiding Officer, Punjab Labour Court No. 7, Gujranwala has been challenged, whereoy the respondent was directed to be reinstated in service with all back benefits.
2. The facts are that the respondeat weat on four months' sanctioned leave for the period from 29- 1-1983 to 28-5-1983. He is alleged to have applied for extension of the leave for one yea*- which was refused. He m*ce another application for leave oa 12 6-1983. It was rej cted and information was sent but it cime back undelivered. He v:d Ex. R-6 requested for being given medical aid. He was in ormed vide Ex R-7 asking him to appear before the Railways doctor but the said letter too came back unseived vine report Ex. R-8 as he could not be found Charge sheet was sent which too came back undelivered.
3. In the written statement objection was raised on behalf of the appellant that no grievance notice had been served. The respondent produced -.Income evidence but the learned lower court left the point undecided. If the point is taken up and decided in apoeal, the unsuccessful party may loose right of appeal. So the case is liable to be remanded. Needless to say that the question whether a grievance notice had been served or not is important as without the service of such notice Labour Courts have no jurisdiction to adjudicate upon the real dispute between the parties
4. As a result, the appeal is accepted and setting aside the impugned decision, the caS.L.R. 1987 Labour and Service Casta 82 [Karachi] Present: Sajlad AH Shah, J.
RICE EXPORT CORPORATION OF PAKISTAN LIMITED rtrtus MUHAMMAD RASIB and another C. P No. 22 of 1986, decided on 2nd December, 1986.
(a) Federal Employees Benevolent and Group Insurance Act (II of 1969) --S. 2(5)-Family-Two sons of a deceased worker found to be major and excluded from the ^efiniti >n of family by the Board of trustees-- H"ld: The Board has wrongly assumed that the requirement in the define tion excludes adult sons becau e protection is given to minor sons only- This i* incorrect for the reason that only minor brrthers of deceased are included and protected which means ad it brothers will not be entitled- Definition vives complete cover to all legitimate children of deceased irre pective of age relating to which rider of minority is not provided -it was obviously therefore wrong on the part o Board to have given a finding *bat because sons of deceased were m*jor and self dependent as such th-y were exclud'd from the definition of family. (Para. 7)
(hi Federal Employee Benevolent and Group Insurance Act (II of 1969) ---- Ss. 2 (7), 15, lo(l) and (it Claim rejecte.t by Board of Trustees on the ground that nomination by the deceased was detective-Legality of snob order-Held s It is the bounden duty of the Board to determine the claim fil ally and the same cannot be rejected out ot hand on the around that nomina ion made by deceased in the relevant form was defective - Even if nomination is defective, still the Board is duty bound to determine and pay the claim in accordance with the procedure. (Para. 8)
(c) West Pakistan Industrial and Commercial Employment (Standing orders) Ordinance (VI of 1968) as amended by Ordinance (IX of 1972) ---- O, 10-A and 10-B read with Federal Employees Benevolent and Group Insurance Act (II of 1969) Applicability of Act or Ordinance in the case of Central Government Employees-Held : it can now be said that Standing Orders IP-A and10-B we ea added as Central Law for the first time on 13th April, 1972 by Ordinance IX of 1972 making amendment in the old law namely West Pakistan Industrial and Commercial Employment (Standing Oiders) Ordinance VI of 1968. As against this the Federal Employees Benevolent Fund and Group Insurance Act, 1969 which was promulgated on 3rd Febiuary, 1969 was already in existence before coming into being of Standing Orders 10-A and 10-B-Both are central laws and cover the same subject matter of Group Insurance-Act No. II of 1969 mentim d above is not oi ly prior in point of time but is a special law for the reason that it covers Federal Employees-Compared to this 10 B Standing Order is general in nature and has not repealed Act No. II of 1969. (Para. 13)
(4) Federal Employees Benevolent and Group Iasurauce Act (II of 1969) ---- Ss -t(4)(e) and 3 read with West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (Vi of 1968) as amended by Ordinance IX of 1972- Applicability of the Act to the Employees of Corporation controlled by Federal Government-Held : Minute reading of both these laws will show that the said insurance Act of 1969 will undoubtedly apply to the Petitioner's Corporation which is specified for that purpose specifically as contemplated under section 2(4)(e) of that Act. Section 3 of the said insurance Act of 1969 further provides that provisions of this Act and rules framed the ensure shall have effect notwithstanding anything contained in any other law, rule, order, notification, contract or other document or instrument. (Para. 14)
(e) Federal Employees Benevolent and Group Insurance Act (II of 1969) ---- S. 3 real with West Pakistan Industrial & Commercial & Employment (Standing Orders) Ordinance (VI of 1968) Order l0-B-Words "other benefits" appearing in section 3 of the Act -Applicability of the Act or Ordinance-Held: Perusal of contents of both the laws show that the intention of the law makers is to give one particular benefit only under one law and it cannot be repeated under two or more laws Keeping (his principle in view of Section 3 of the said Insurance Act is read carefully then it would appear that if a particular benefit like Group Insurance is recoverable under the said Act then only t.Iat law Will apply jut if there are other benefits, not obtainable under the said Insurance Act but obtainable under any other law rela ing to pension, provident fund, gratuity then such benefits can be recovered under that other law-Such intention is prominently clear because at the end of this Section the words used are "otherwise than under this Act", (Para, l4)
For the Petitioner s Obaid-ur-Rehman, Advocate.
For the Respondent : Cb. Rasheed Ahmad, Advocate.
Date of hearing : 20th and 21st October, 1986.
Sajjad All Shah, J.-This Constitutional Petition calls in question two orders passed by Commissioner for Workmen's Compensation and Authority under the Payment of Wages Act, Karachi impleaded in this petition as respondent No. 3. Order passed earlier in point of time is dated 10-12 1984, in which it is held that petitioner namely M/s Rice Export Corporation of Pakistan Limited have got the employees insured with Board of Trustees, Federal Employees Benevolent and Group Insurance Funds at Rawalpindi as contemplated under the Federal Employees Benevolent and Group Insurance Act, 1969, as such application claiming recovery of Group Insurance amount should be sent to the Board set up under that law for disposal. It is further mentioned in the said order that if a person is entitled to an amount of Group Insurance less than Rs. 15,000 as provided under section 10-B of the Standing Order then the employer shall pay the balance. Second order impugned is dated 2-2-1986 passed by respondent No. 3 which is to the effect that since the Board of Trustees of Group Insurance have failed to allow the claim employer was directed to deposit the amount within a fortnight from the date of that order. Against the two orders mentioned above, petitioners who are employers namely Rice Export Corportion of Pakistan Limited have filed this Constitutional Petition in which they have impleaded Muhammad Rasib as Respondent No. 1, Boird of Trustees constituted under Federal Employees Benevolent and Group Insurance Act, 1969 as Respondent No. 2 and Commissioner for Workmen's Compensation Authority under the Payment of Wages Act as respondent No. 3.
2. Briefly stated the relevant facts are that Bhuda Bux father of respondent No. 1 Muhammad Rasib was working as a labourer with petitioners (hereinafter to be referred as employcers) and died a natural death on 17*9-1982. During his life time Khuda Bux nominated his son Muhammad Rasib to receive benevolent grant and the sum assured in the event of his death as required under section 19 of Federal Employees Benevolent and Group Insurance Aet, 1969. Subsequently Muhammad Rasib filed an application before the respondeat No. 3 mentioned above under Standing Order 10-B of Standing Orders Ordinance, 1968 read with Section 10 of the Workmen's Compensation Act, 1923.
Employers at the very out set in that forum contested that Standing Order 10-B would not apply for the reason that their Corporation as such is specified under the Federal Employees Benevolent Fund and Group Insurance Act, 1969 as contemplated under Section 2(4,(e) vide Notification dated 18-8-1976. It was further contended that under the law mentioned above employees were compulsorily insured with the Board of Trustees set up under section 4 of that Act and only that Board was competent to determine and allow claim of Group Insurance in respect of deceased Khuda Bux. It appears from the order dated 10-2-1984 that the contention raised on behalf of employers was accepted and direction was made for making the claim before the Board mentioned above but rider was added to the effect that if a person is entitled to an amount of Group Insurance less than Rs, 15,000 as provided under section 10 B of the Standing Order, the employers shall pay the balance.
Grievance is made against this rider clause because it is inconsistent with the contention of the employees that they are governed by the Federal Employees Benevolent Fand and Group Insurance Act, 1969 and Section 10-B of the Standing Order will not be attracted in the instant case.
However, claim came for consideration before the Board of Trustees and was rejected vide order dated 4th June, 1985. Parties again appeared before the respondent No. 3, who vide order dated 2- 2-1986 allowed the claim of son of deceased Khuda Bux and directed employers to depoisit the amount in that forum and notice was also issued to City Deputy Collector for taking steps for recovery of the money. The Constitutional Petition was admitted in this Court vide order dated 6-3- 1986 and stay was granted subject to the deposit of Rs. 15,000 in the Court which was done on 20- 4-1986.
3. I have heard at great length Mr. Obaidur Rehman, Advocate for petitioners/employers and Mr. Chowdhry Rasheed Ahmad, Advocate for respondent No. i.
4. There is no dispute about the fact that petitioners Rice Export Corportion of Pakistan Limited are specified by name as surh by the Federal Government to be a body corporate or organisation as contemplated under section 2(4)(e) of the Federal Employees Benevolent Fund and Group insurance Aet, 1969 (II of 1969) (hereinafter to be reterred as the said insurance Act) vide notification dated 18th August, 969, Now if the said Insurance Act applies then under section (4) thereof Board of Trustees hs been set up, which is further empowered under section (7) to settle all claims for benevolent grant and sums assured under the said Act and all matters connec ed with such claims and to sane ioa grant from the Benevolent Fund to the employees or their familes in accordance with the provisions of the said Act and the rules and powers have been given for several other functions with reg ird to Insurance Fund as well. So far Group Insurance is concerned, Section 15 provides that in the event of death of an employee, occurring by whatsoever cause, during the continuance of his employment, the Board shall pay to the family of the deceased employee a sum specified in the Second Schedule. Sec ion 17 further provides that there shall be established a fund to be called the Federal Employees Iusurance Fund which shall vest in and be held and administered by the Board. Section 19 further provides that on the death of an employee, the sum assured shall be paid to such member or members of his family as he might have nominated in accordance with the rules in full or in the shares specified by him at the time of making the nomination. Subsection (2) of section 19 further provides that where no valid nomination made by the employee subsists at the time of his death, the sum assured shall be paid to such member or members of his family subject to such conditions imposed with a view to ensuring that the sum is justly and equitably utilized for the maintenance and benefit of all the members of the family as may be prescribed or may consistently with the rules, be determined by the Board or any officer authorised by the Board in that behalf.
5. Going back to Section 15 which relates to Group Insurance it is stated therein that in the event of the death of an employee, the Board shall pay to the family of the deceased a sum specified to the Second Schedule. In the Second Schedule on one side classes of employee are mentioned with reference to their last pay and on the other side sum* are specified to be paid at Group In>urance In the circumstance it appears that factually it has to be ascertained as to what was the last salary of the deceased a d on that basis sum of Jroip insurance could be determined for payment.
6 From what is stated above, I am of the view that contention of the employers is right that in this case ckim had to bs enteitained by the Bord under the Imu ance La# mentioned above. 1 have also seen claim of Muhammad Rasib having rejected bv the Board vide order? Dated 4th June, 1985 on the grounu that M/s Muhammad Rasio and Muhammad Tahsib both sons of late Khuda Bux are major and self dependent, hence they are not covered by the definition oi family members as pr vided under section (S) >a) of the said Insurance Act. 1969 I am afraid that interpretation assumed by the Board is both tactually and legally incorrect. Section 2(5) of the said Act defines "family*' to mean ;-
(o) in the ease of a male employee, the wife or wives, and in the case of a female employee the husband of the employee ; and
(b) the legitimate child en. Parents, minor brothers, unmairied, divorced or widowed sisters of the employe# wholly dependant upon him."
7. The Board has wrongly assumed that the requirement in the definition excludes adult sons became protection is given to minor sons only . This is incorrect for the reason that only minor brothers deceased of are included and protected which means adult brothers will not be entitled.
Definition gives complete cover to all legitimate children of deceased, irrespective of < ge relating to which rider of minority is not provided. It was obviously thnefore wrong on the part of Boaid to have given a finding that because sons ot deeeaseo were major and self dependent aa such they were excluded from the definition of family.
6. In the record of this Constitutional petition annexure "C* is photocopy of form of nomination which was filed by the deceased emyloyee before his death and was filed in the office. This form shows that he had nominated only his one son Mb hammaa Rasio. This action of the deceased was in accord with Section i9 (1) ot the said Insurance Act which allows nomination in full or shares specified by the deceased at the time of making nomination. Subnotion 2 ot Section 19 further provides that where no valid nomination made by the employee subsists at the time of bis death, the sum assured shall te paid to such member or members of his family subject to such conditions imposed with a view to ensuring that the sum is justly and equitably, utilised for the maintenance and benefit cf all members ot the family as may be prescrifed or may coosisteatly with the rules be determined by the Board or any officer authorised by the Board in that be alf. This clearly hows that it is the bounden duty of the Board to determine the claim finally and the same cannot be rejected out of hand on the ground that nommation made by deceased in the relevant form was defective.
Even if nomination is defective, still the Board is duty bound to determine and pay the claim in accordance with the procedure mentioned above.
9. The controversial point in this petition is that according to Mr. Obaidur Rehman, this case is governed by the Insurance Act men ioned above and fiction IQ-B of the Standing Order is barred and would not be attracted. On the other hand Mr. Chowdhry Rasheed Ahmad contends against the proposition mentioned aiove and according to him Secti n 10-B of the Standing Order is available regardless of the fact whether the said Insurance Act applies or not. In order to determine this question, it is necessary to examine the history of both there enactments.
10. The Federal Employees Benevolent Fund and Group Insurance Act No II of 1969 is a federal law and was promulgated in the year 1969 Tb preamble of this Ac. Shows that it was promulgated to establish a Benevolent Fund for the common benefit > f employees of the Federal Government and certain autonomous bodies to provide for their Gr up Insurance. "Gro'p Insurance" is not specifically defiaed in this Act but the scheme of the Act indicates that it is joint insurance >>f Groups or Groups oremployess for common b nefit. As against the> WP. Indu'trial and t ommercial Employment (Standing Orders) ordinance, 1968 was an force as a provincial law and subsequently in t-e year 1969 Martial Law was proclaimed and the onstituti n of 1962, which was operative at that timr, was abrogated. In the year 197" province of West Pakistan (Dissolution) Order 1570 was promulgated, whereunder Province of West Pakistan then in existence was dissolved and in its place four new Provincial were set up. Article 19 of that order envisaged continuaion of all exiling laws, so far applicable and with necessary adaptation, until altered repealed or amenoed by the appropriate Legislature or other competent authority. Labour laws (Amendment) Ordinance IX of 1972 was promulgated by the President of Pakistan, preamble of which is as under :- 'Whereas it is expedient further to amend certain laws relating to industrial relations and the Walfare of workers ; And whereas the national interest of Pakistan in relation to tho economic and financial stability of Pakistan and the achievement of uniformity requires Central legislation in the matter ; Now, therefore, in pursuance of the Proclamation of the 25th day of March. i969, read with the Proclamation of the 20th day of December 1971, and'he Provisional Constitution Order, and in exerci*e of all powers enabling him in that behalf, the President is pleased to make and promulgate the following Ordinance."
11. In the preamble mentioned above proclamation of 25th day of March. 1969 contemplates declarati in of imposition of Mart'al Law in the country by General Agha Muhammad Yahya JLhan which further provides in paragraph 5(a) that all laws before the abrogation of the Constitution shall continue in force. Second proclamation dated 20th day of December 1971 mentioned in the preamble as stated above, relates to the assumption of powers of Chief Martial Law Adbiinistiator and the command of al< armed forces of Pakistan by Mr. Zulfiqar All Bhutto The third enabling provision micti mad in the preamble stated above is Provisional C nsutution Order waieh was promulgated on 4th April 1969 by the Chief Martial Law Administrator providing that notwithstanding the abrogation of the Constitution, the State of Pakistan shall be governed as nearly as may be ia accordance with that Constitution subject to any Regulation of Order parsed by the chief Martial Law A ministrator providing further that the fundamental rights set out in Chapter I of part II of the said Constitution shall stand obrogated.
12. It appears that from time the when Labour laws (Amendment) Ordinance, 1972 was promulgated, status of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 changed and it became a central law. Subsequently this subject of labour laws was brought on the concurrent legislative list in the Interim Constitation of 1972 and the Constitution of Islamic Republic of Pakistan 1973.
13. It can now be said that Standing Orders 10-A and 10-B were added as Central Law for the first time on 13th April 1972 by Ordinance IX of 1972 making amendment in the old law namely West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance vl of 19o8. As against this the Federal Employees Benevolent Fund and Group Insurance Act, 1969 which was promulgated on 3rd February, 1969 was already in existence before coming into being of Standing Orders 1 -A and 10- B. Both are central laws and cover the same subject matter of Group Insurance. Act No. II of 1969 mentioned above is not only prior in point of time out is a special law for the reason that it covers federal em. Ployees-Compared to this 10-B Standing Order is general in nature and has not repealed Act No. II of 1969. ^ 141S no^ ?Lear tha their is no conflict between the two lows men- E?In^hV?Aand oth la,ws can *PP1>' side y side. The question will arise a,WKW11 ^ in a particular case. If it is resolved that the case is covered by the Insurance Act No-II of 1969 then that law will is>%^plMunri2tS;"din8 order l0'B Parucul*rl? When recovery
14. Subject matter of both the laws stated above is same which is Group Insurance Minute reading of both these laws will show that the said Insurance Act of 1969 will undoubtedly apply to the petitioner's Corporation which is specified for that purpose specifically as contemplated under Section 2 (4) (e) of that Act. Seotion 3 of the said Insurance Act of 1969 further provides that provisions of this Aet and rules framed thereunder shall have effect not withstanding anything contained in any other law, rule, order, notification, contract or other document or instrument j but nothing herein contained shall affect the right to receive any pension, provident fund, gratuity or other benefits accruing to the employee on his retirement or invalidation or to his family upon his death, otherwise than under this Aot. Attempt was made to interpret Section 3 as stated above to mean thats it does not bar receipt of ''other benefits' accruing to the employee upon his death, as such Standing Order 10-B shall apply regardless of the fact whether Group Insurance can be obtained under the said Insurance Act or not. This interpretation is unacceptable for the reason that perusal of contents of both the laws show that the intention of the law makers is to give one particular benefit only under one law and it cannot be repeated under two or mare laws. Keeping this principle in view if Section 3 of the said Insurance Act is read carefully then it would appear that if a particular benefit like Group insurance is recoverable under the said Act then only that law will apply but if there are other benefits, not obtainable under the said Insurance Act but obtainable under any other law relating to pension, provident fund, gratuity then such benefits can be recovered under that other law. Such intention is prominently clear be cause at the end o? This Section the words used are "other wise than under this Act"
1987] Ghulam Sustain Baloch v, Govt, of Sind thro, C, Sect/, L> St S, 89
16. In the instant case I hold that the said Insurance Act No. II of 1969 will apply and Group Insurance can be claimed from the Board set up under section 4 thereof. Impugned orders dated 1042-1984 and 2-3-198$ passed by respondent No. 3 are hereby quasbed as having been passed Wfthoat lawful authority and respondent No. 2 namely Board of Trusteed, Federal-Employees Benevolent and Group Insurance Funds is directed to consider the claim of Respondent No. 1 Muhammad Rasib strict# according to the provisions of the said Group Insurance Act and rules framed there under Within one month from the date of this order as hds been observed in earlier paragraphs of this judgment. In the result, as (6 this petition is allowed but there will be no order costs.
K.LJt. 1987 Labour and Service Cases 89 [Karachi] Present j Justice (Rtd ) Munamr AH Khan, (Chairman) Muhammad Ibrahim Lakhiar and Dr. A. Q. Qazi (Member)
GHULAM HUSSAIN BALOCH versus GOVERNMENT OF SIND, through Chief Secretary and another Appeal No. 61 of 1965, decided, 4#I7tb September, 1986.
(a] ) Sind Civil Services ---- Rule- Departmental appeal - Appeal made to Chief Minister through proper channel instead of to Chief secretary- Held: Since the Chief Secretary who was competent authority to hear the appeal against the impugned order, was brought into the picture by reuting the memo of appeal through him, it can not be held that the present appeal has been hied without sriMMStinf the departmental remedy available to the appellant. (Para. 4)
(b) Sind Civil Servant Act 1973 --S. 23-Period for making representation against seniority list-Condonation of delay-Contention that as the representation of the appellant was decided on merits, hence the authority deciding it has impliedly condoned the delay in making the representation-Hetd ; The period for nuking such representation is given in S, 23-It does not contain any potter to extend that period. (Para 5)
(e) Sind Civil Servant (P.C.S.) Rales 1975 ---- R. 10(1)&(2) Appellant appointed as Assistant Engineer on ad hoc basis in 197- Regularised in 1978-R spondent No. 3 promoted as Assistant Engineer in 197S- Seniority-'Held a The respondent No 3 ranks senior to the appellant in the grade of Assistant Engineer and has rightly been placed above him in the seniority list. (Para. 8)
For the Appellant: Manzoor Ali Khan, Advocate.
For the Government: Abdul Ghafoor Mangi, Assistant Advocate General. Fpr the Respondent No. 3 : Hussain Adil Khatri. Advocate, Date of hearing ; 17th September, 1986.
Jastice (ltd.) Manawar Ali Khan, (Chairman).-By this appeal, appellant Ghulam Hussain Baloch has sought to challenge the Governments' order No. E. 11 (C&W) 11-1/74/168, dated 31st March, 1985 whereby his prayer for giving him seniority over respondent No. 3 Liaquat Ali Baloch in the grade of Assistant Engineers was rejected. The facts giving rise to the present appeal may be stated as follows. Consequently upon his selection by the Federal Public Service Commission, the appellant was appointed as Assistant Director (Technical) in grade 17 in the Ministry of Fuel, Power and Natural Resources, Federal Government on 4-7-i973. While he was still on probation, the Sind Government wrote to the Federal Government to lend his service on deputation for appointment as Executive Engineer (Mechenical) in grade 18. Although the Federal Government expressed its inability to allow him to go on deputation during the period of his probation yet he was relieved on his own request by permanently serving nis connections with the Federal Government. On learning about the inability of the Federal Government to send the appellant on deputation, the Sind Government hurriedly sent a teleprinter message prohibiting the relieving of the appellant, as under the rules he could not be appointed to the post under reference by direct recruitment. Since the appellant bao already been relieved by the Federal Government he reported to the SindG overnment for duties However, he was accommodated by the Sind Government as Assistant Engineer in grade-17 on ad hoc basis, subject to regularisation of his appointment by Public Sevica Commission vide order dated 5-6-1974 subsequently his case was referred to the Public Service Cummission for regularisation but the same was returned with adviee that the appellant should apply for the post when it was advertised by the Commission. It appears from the summary dated 7-2-1075 submitted to the Chief Minister that in early 1974 on requisition of the Department, the Public Service Commission had recommended 17 selectees, for Assistant Engineers' posts, who with approval of the Chief Minister were appointed to the said posts. The ad hoc appointment of the appellant having obviously been made subsequent to these appointments, he could not apply for any of the said posts and as such his appointment remained ad hoc until it was regularised under MLO-55 in 1978. In the mean-time no direct appointment of Assistant Engineer was made on recommendation of the Public Service Commission and therefore the appellant got no opportunity to have his appointment regularised earliar. However, before the regularisation of his appointment in 1978, two Supervisors namely Aftab Ahmad Memon and Liaquat Ali Baloch (respondent No. 3) were promoted to grade-17 as Assistant Engineers on 4-3-1975 and 12-3-1975 respectively.
Accordingly they became senior to the appellant in the Assistant Engineers grade. But the appellant case is that at the time of their promotion only one post was reserved for promotion and consequently the promotion of the respondent No. 3 was illegal. He has averred that the said respondent No. 3. Could be promoted only in 19&0 to the post vacated by Mr. Aftab Ahmad Memon.
In this way the appellant claims to be senior to the respondent No. 3, though he has been shown junior to him in the seniority list of Assistant Engineers. The appellant agitated for assignment of proper place in the seniority list he'eupon he was informed by the impugned order referred to above that his plea that he was senior to Liaquaft Ali Baloch had been rejeoted. The appellant preferred appeal to the Chief Minister against the said order but as no decision was taken within 90 days he has come in the present appeal.
2. We have heard the learned counsel for the parties at great length and have also perused all the documents relevant for disposal of the appeal.
3. It would appear that the appellant's prayer substantially is that the impugned order referred to above and all other orders on which the said order is based be set aside and the appellant be assigned seniority over respondent No. 3 in the Assistant Engineer's grade. The impugned order sought to be reversed reads as under : "I am directed to refer to your applications dated 20-2-1983 and 2-8-1984 on the subject and to inform you that your submissions have been examined by the Regulation Wing in services and General Administration Department and your plea for claim of seniority over Mr. Liaquat Ali fialocu stands rejected."
4. Before considering the case or the appellant on merits, we would like to dispose ef two preliminary objections raised by the learned counsel for the respondent No. 3. His first objection was that departmenral appeal required to be filed against the impugned order was not made to the proper forum instead < f the Chief Secretary it was made to the Chief Minister. It may be observed that although the appeal was addressed to the Chief Minister, yet it was routed through proper channel which obviously means the Chief Secretary. Since the Chief Secretary who was competent authority to hear the appeal against the impugned order, was brought into the picture by routing the memo of appeal through him, it can not be held that the present appeal has been filed without exhausting the departmental remedy available to the appellant. Thus the objection f the respondent's counsel was without force.
5. The other objection of the learned counsel for the respondent No. 3 was that the appellant had not challenged the seniority of responcent No. 3 in time, therefore his representation made in 1983 challenging the seniority for the first time could not be entertained, and the appellant would be deemed to have accepted his seniority position via-a-vts respondent No. 3 No doubt it is appellant's own admission that promotion of Liaquat Ali Baloch (respondent No. 3) took place on 12-3-1975 vide para 13 of Memo of Appeal, which however, is silent as to when the appellant made application challenging the seniority of respondent No. 3. In absence of such mention in the Memo of Appeal, the only document available to us for ascertaining the dates of appellant's representations against the seniority of the respondent No. 3 is the impugned order. It clearly shows that the appellant had made two applications, one on 20 12-'983. And another on 2-8-1984.
Thus he had challenged the seniority of the respondent No. 3 far the first time on 20-12-19b3, about 8 years after the promotion of the said respondent and consequent assignmient of seniority to him.
Obviously his such application was hopelessly time-barred But the argument of the learneo Counsel for the appellant was that since the belated representation made by the appellant was considered on mer191)7] Ghulam Hussain Baloch v. Govt. Of Sind thro. C. Sooty. L.A 6. 93 belonging to the same service or grade serving in the same department or office or not as may be prescribed. The word "prescribed" is defined in clause (g) of sub-section (l) of the said Act Which means p escribed by rules. The requisite rules relating to seniority are called Sind civil Servant (Probation, Confirmation and Seniority) Rules 1975 (hereinafter referred to as the 1975 Rule), As provided in sub-rule (1) of rule 1U of these rules, seniority of a Civil Servant shall be reckoned from the date of his regular appointment Sub-rule (2) of the said rule says that no appointment made on ad hoc basis shall be regularised retrospectively. 'Keeping the above rule in mind, the appellant can claim his seniority only from the date of his regular appointment Which falls in 1978. On the other hand the respondent No. 3 was promoted as Assistant Engineer in grade 17 on 12-3-1975 as has been admitted by the appellant himself in para 13 of his memo of appeal. His promotion was made in pursuance of the approval given by the Chief Minister ride summary of Secretary, Communication and Works Department, dated 7-2-1975. It is clear from the said summary that Liaquat Ali Baloeh (respondent No. 3) was one of the Supervisors who were cleared and recommended by the Departmental Promotion Committee. It is further clarified in the shine summary that he was promoted against one of the posts reserved for promotion. Thus the Petition stated in the summary belies the argu puts advanced on the appellant's behalf that the promotion of the respondent No. 3 was defective in as much as that it was neither cleared by Departmental Promotion Committee nor -was made against the quota reserved for promotion, The promotion of respondent No. 3 being in order, he entered in the 'grade of As istant ngineer by virtue of his promotion in ) 975 i.e. About three years earlier than the appellant's entry jp tbp said grade.
Accordingly we are convinced that the respondent No. 3 ranks senior to the appellant in the grade of Assistant Engineers and has rightly been placed above him in the seniority list. As a result of this conclusion, appeal is dismissed.
10 Before parting with the case We cannot help making some observations. This case presents a glaring example of a great hardship. The appellant has been the worst sufferrer. His woes began, the moment he gave up his regular appointment of the Federal Government in the hope of getting a higher post of grade 18 under Sind Government. However, his hopes proved abortive. No doubt he too showed undue haste in serving his connections with the Federal Government but we feel that in a case like the present one the appellant was entitled to equitable treatment at the hands of the Provincial Government. After all the said Government had shown its keenness to provide him in grade 18 post. As disclosed in the summary dated 27-3-1974, the then Minister for Communication and Works had even suggested the creation of a post of Executive Engineer, Mechanical for making direct appointment of the appellant that post. However be was accommodated in grads 17 post and that too on ad hoc basis, If there were legal difficulties in the way of his direct appointment to grade-18 post, he should have at least got the lower post of grade-17 in a regular manner, so that his seniority in that grade would have counted from the date of his appointment. The appellant could have been straight away appointed in grade-17 on regular basis by excluding his post from the purview of the Public Service Commission with approval of the Chief Minister, particularly when the unfortunate officer had already gone through the examination of the Federal Public Service Commission before his appointment in grade 17 post under the Federal Government. This wa permissible under rule 10(6) of 1974 Rules read with rule 5 of Sind Public Service Commission (Function) Rules, 1974. Some how this procedure was not followed for the reasons best known to the relevant authorities. As a result the appellant languished on ad hoc basis for about four years when his app untment was regularised under MLO 55 in 1978. The more tragic aspect of the appellant's case is that during the period of his ad hoc appointment, bis two juniors who were merely supervisors when the appellant entered the service of Federal Government in grade 17 were promoted to grade 17 posts and become senior to him. They were Messrs Aftab Ahmad Memon and Liaquat Ali Baloch.
11. If so desired, the Government can help the appellant even at this belated stage. As provided in clause (a) of sub-section (2) of Section 9 of the said Act, pr motion to a selection post is made only on merit. The grade 1a post is obviously a selection post. If the Government is convinced that appellant in view of his background, qualifications and performance should be given preference to his immediate seniors including the sespoadent Mo. 3 for promotion, he should he promoted to grade 18 post before them. If this is done, the Goverument's action is not likely to be challenged for two reasons : firstly it is settled law that promotion can not be claimed as matter of right and secondly the Service Tribunal which is the only forum available to civil servants for adjudication for their service matters has no jurisdiction to go into fitness of any civil servant for promotion.
12. Given tinder our hands and the seal of this Tribunal on this 25th day of September, 1986 at Karachi.
K.L.R. 19S7 Labour and Service Cases 94 [Karachi] Present ; Ali Nawaz Budhani, J.
GLAXO LABORATORIES (PAK.) LTD. EMPLOYEES UNION vessus GLAXO LABORATORIES (PAK.) LTD. Through General Manager Appeal No. Kar. i51/83, decided on 31st August 1986, Indastrial Relations Ordinance, (XXIII of 1968) ---- S. 25-A ; 25-A (10) and S 34-Appellant, CBA Union of respondent applied under S. 34 to allow over time at double rate to such workers who perform over time beyond their normal working hours - Maintainability of the application u/s 34-Held : Only Collective Bargaining Agent or Employer can apply to the Labour Court for enforcement of any right guaranteed or secured to him or to it by or under any law or any award or settlement and not to the workman-So, section 34, I.R.O. 1969, does not apply where workman is agitating his own case or the case of other workman-He can only agitate under section 25-A or under section 25-A (10) of I.R.O. 1969-Application net maintainable. (Para. 7)
For the Union : Rasheed Ahmad, Advocate.
For the Management: Qamaruddin Hassan, Advocate.
Date of hearing : 31st August, 1986.
DECISION Ali Nawaz Budbani, J.-This is an appeal filed by Glaxo Laboratories (Pak.) Ltd. Employees Union, Karachi, against the impugned order, date-'* 29-3-1983, passed by the Sind Labour Court No. V, Karachi, who had dismissed an application under section 34, I.R.O. 1969, submitted before it by the appellant union.
2. The brief facts of the case are that the appellant union which is the C.B A. File, an application under section 34 of the Industrial Relations Ordinance, 969, espousing the cause of the workers that the respondent establishment be directed to pay them overtime wages for the work done over and above normal working hours of the factory at iwice the ordinary rate of pay with retrospective effect after calculating the hourly rate of wages of the employees on the basis of their daily normal working ho rs and further for the payment of compensation for withholding the overtime wages for the last several years. That every worker is performing his duty assigned to him and thit they are doing the overtime beyond the normal working hours and were being compelled to stay for overtime till late hours. That the workers doing work over and above , the daily normal working hours be treated as overtime and the workers be paid their overtime wages at twice the ordinary rate of pay under section 47 of the Factory Aet for the work done in excess of tbeir aetual normal working hours, while the respondent establishment were paying overtime wages arbitrarily to the workers only at the ordinary rate of pay and not twice the ordinary rate of pay for the work done in excess of normal working hours upto 9 hours a day and/or in excess of 4s hours a week, That any work taken from the workers over and above the normal hours of the respondents factory, is an overtime work and the workers are always entitled to claim "extra pay for overtime" under section 47 of the Factories Act, means twice the ordinary rate of pay for the work done in excess of the ntrmal working hours of the factory. That the appellant union was making demands from time to time but respondent establishment paid no heed to it, therefore, it sent a letter, dated 9-2-19X1 to the respondent establishment and made this demand but the respondent establishment refused to accept the claim of the workers by their letters, dated 25-2-1981, hence the appellant union filed ' an application before the learned Labour Court under section 34, of IRO 1969.
3. The respondent establishment resisted the claim of the appellant union on the ground that an application under section 34 of the IRO iV69 of the appellant union was not maintainable as it has got no right guaranteed or securd to it under any law, award or settlement to enforce their alleged claim under section 34, I.R.O. 1969 and that the claim of the appellant union was not covered or regulated by sec (ion 47 of the Factories Act, 1934 and further that the claim of the union was barred by the collectively bargained settlement, dated 7-V-1980 arrived at between the C.B. A, appellant Union and the respondent establishment. That the eontinuence past practice of payment of overtime at single rate for , aplieation of the appellant union, under section 34, I.R.O. 1969, was not maintainable and liable to be dismissed.
9. The upshot of the above discussion is that I maintain tha impugned order and would dismiss this present appeal.