DECISION ' This is a revision application filed under section 38(3-a) of the Industrial Relations Ordinance, 1969, praying therein that the case record of Application No, 13 of 1987 be called from the Fifth Sind Labour Court at Karachi and the order, dated 10-9-1987, be set aside.
2. The facts of the case, in brief, are that the respondent is admittedly a workman employed in Class III by the applicants. He graduated from the University of Karachi in the year 1979 and applied for the grant of four advance increments under the Incentive Scheme sanctioned by the applicants in 1966. The respondent was granted four advance increments with effect from 14-5-1979 vide letter dated 14-12-1985 by the Divisional Superintendent, Pakistan Railways at Karachi. However, vide letter dated 29-1-1987 the present applicants directed the Divisional Superintendent, Pakistan Railways, Karachi, who was his subordinate to withhold the above benefits and to recover the amount already paid to the respondent with effect from 14-5-1979. Aggrieved by this order the respondent served grievance notice and thereafter filed grievance application against the present applicants which was allowed by the learned Presiding Officer, Labour Court No, V, Karachi, vide order dated 10-9-1987.
3. I have heard Mr. Ch. Fazal-i-Hussain, learned counsel appearing for the applicants and also gone through the documents filed by him along with the revision application.
4. Admittedly the impugned order was appealable but no appeal was filed. However, this revision application has been filed after more than 15 months. Ch. Fazal-i-Hussain submitted that in spite of this delay and non-filing of the appeal the revision application would be maintainable. In his support he has mainly relied upon the Division Bench decision of the Sind High Court reported in the case of Sami Pharmaceutical Ltd. v. Sind Labour Appellate Tribunal and 3 others 1985 PLC 754.
In the reported case an appeal was filed in the Tribunal against the order of the learned Labour Court which was withdrawn by the appellant but subsequently Revision application was filed under subsection (3-a) of section 38 of the I.R.O. Their Lordship observed:-- "The provisions of subsection (3-a) of section 38 have been incorporated with the object to give power to respondent No, 1 to rectify miscarriage of justice in a fit case without any constraint."
Their Lordships placed reliance on the case of Messrs Norwich Union Fire Insurance Society Ltd. v.
Muhammad Javed Iqbal and another PLD 1984 Kar. 519, in which also similar view was taken by the High Court. Be that as it may, revisionary powers are discretionary and this Tribunal may exercise, in a fit case, those powers only when there has been apparent miscarriage of justice. In the instant case, admittedly, the respondent was granted by the applicants four increments under the Incentive Scheme and he was drawing it for some time before the same were withdrawn. Mr. Fazal-i-Hussain contended that the respondent was not entitled, under the Incentive Scheme, to these increments, as he did not possess the requisite qualifications, as prescribed under the Incentive Scheme. It is submitted that the respondent had admittedly obtained B.A. Degree in Third Division. Under para. 332 of the Pakistan Railways Personnel Manual Vol. I, 'the phrase "acquisition of qualifications prescribed for Class II Officers" occurring in Part (D) of the Incentive Scheme, as contained in Appendix II, implies that if a Class III employee acquires the same qualifications which entitle a Class II Officer for a benefit under the said scheme, he will get the benefits as indicated in the aforementioned para. (D) thereof provided the qualifications are acquired after entering in Class III service'. Para. (C) of the Incentive Scheme provides for the qualification required for advance increments to Class II Officers. Under class (II)(a) of this para. The employee is entitled to advance increment on acquisition of the minimum qualifications necessary for recruitment to Class I service. Para. (D) of the Incentive Scheme provides that Class III staff of all Departments will be entitled to four advance increments on acquisition of qualifications prescribed for Class II Officers. In other words the respondent as Class HI Officer would be entitled to four advance increments if he had acquired qualifications necessary for recruitment to Class I service. It is submitted by Mr. Ch. Fatal-i-Hussain that minimum qualification required for Class I Service is B.A.
In First or Second Division. He has produced advertisement of Federal Public Service Commission dated 4-7-1979 for recruitment of posts of Grades 17 and 16 under the Federal Government. Para. 5 of the advertisement provides "candidate must hold at least a Bachelor's degree in any faculty of one of the Pakistani Universities or an equivalent degree or comparable educational qualifications of a foreign University." There is a Note under this para to the effect that:-- "No candidate who has obtained a Third Division (or 'D' grade where result is declared under Semester system) in his Bachelor's Degree will be eligible for the examination except in cases where he has obtained a higher Division in Master's or Law Degree or where, from time to time, the Federal Government may relax this condition in respect of under developed, under represented areas."
' It further provides:-- ' That for the competitive examination this relaxation would be admissible to candidates from the following areas/regions:-
(i) Sind (Rural)
(ii) Baluchistan
(iii) Federally Administered Tribal Areas.
5. It may be pointed out that this plea was not specifically taken before the learned Labour Court in the reply statement. It appears to have been raised at the time of arguments only but reliance was not placed on the advertisement of Public Service Commission but on a Circular dated 25-7-1981.
The above advertisement of the Federal Public Service Commission relates to all the services but is relatable in certain cases. It would be a question of fact as to whether the respondent did come under the relaxation or not. As no plea was raised by the applicants in their written statement consequently no evidence was produced by the respondent.
6. It may also be pointed out that the increment granted to the respondent was withdrawn admittedly because of the instructions contained in Notification dated 25-7-1981 which provides that 'holders of BA. Degree in 3rd Division (or `D' grade where result is declared under semester system) are not eligible for appointment as Class I Officers in a particular Department, the Class III staff of the Department who obtained same position, is not entitled for advance increments under the Incentive Scheme prescribed for recruitment to Class I service. 'This plea of circular was taken before the learned Labour Court which plea was rejected on the ground that this circular was not applicable as it was issued in 1981 and had no retrospective effect whereas the respondent was given increments from 1979. The learned Labour Court has relied upon the decision of the Punjab Labour Appellate Tribunal in the case of Divisional Superintendent Railways, Multan v. Nazar Muhammad. Ch. Fazal-i-Hussain further submitted that this decision has been challenged before Lahore High Court and admitted that same was still pending and that decision of Punjab Labour Appellate Tribunal has not been set aside as yet. Even the advertisement of the Public Service Commission is dated 4-7-1979 whereas the right to advance increment accrued to the respondent prior to this date and he was granted increments from 14-5-1979. The recruitment rules prevalent on that time have not been produced.
7. Mr. Ch. Fazal-i-Hussain also relied upon the order of their Lordships of the Supreme Court in Civil Petition for Leave to Appeal No, 197 of 1987 against the judgment of Federal Service Tribunal 'to consider as to what is the correct interpretation of para. (C) 'Cass IT Officers' and para. (D) 'Class III Staff' occurring in the Incentive Scheme as re-introduced by Railway Board's letter dated 22nd January, 1966.' This order also does not help Mr. Ch. Fazal-i-Hussain because no decision has yet been taken on the question under issue by their Lordships of the Supreme Court but simply leave to appeal has been granted.
8. It would appear that at this belated stage in revision application certain points are raised by the learned counsel which are not only points of law but also mixed questions of fact and law. The plea that is being raised now by Mr. Ch. Fazal-i-Hussain was not specifically raised before the learned Labour Court consequently no evidence was recorded on that plea. The respondent had been granted advance increments which he had been drawing from 1979 till the same were withdrawn by the impugned order in 1987. In my opinion under the circumstances of this case this is not a fit case where this Tribunal should exercise its provisional jurisdiction to re-open the case on a question which involves mixed question of law and fact specially when the applicants slept over their right of appeal and allowed the order of the learned Labour Court to attain finality. The revision application is, therefore, dismissed in liminc.