The respondent Mr. Nazir Ahmed who is currently serving as Assistant Accountant in the office of Director, WAPDA Accounts Training Institute, Lahore was employed as a Junior Clerk in WAPDA on 9th July 1959. Subsequently on 5th March 1961 he was promoted as a Senior Clerk and was posted in the Office of the Regional Accountant, Peshawar. On 15th August 1964 he was as a temporary arrangement, ordered to officiate as Accounts Assistant in his own pay scale plus 122 per cent. Of the pay of the post of the Accounts Assistant. This arrangement continued till 1965. The respondent could not get regular promotion because he was simple matriculate and had not qualified the prescribed test. In May, 1970 he was however promoted as Assistant in the General Clerical Cadre.
In March 1972 he qualified the prescribed departmental examination and in the same month he was promoted as Assistant Accountant.
2. On 13th May 1974 Nazir Ahmed respondent filed an application under section 25-A of the Industrial Relations Ordinance, 1969 against the appellants i.e., (1) the Chairman, WAPDA, Lahore (2); The Chief Accoun--tant (Power), WAPDA, Lahore; and (3) The Regional Accountant (North)
Power, WAPDA, Peshawar. He claimed that he should be promoted as Accounts Assistant in the pay scale of accounts Assistant with effect from 15th August 1964 the date on which he was asked to officiate as Accounts Assistant and that he be allowed to draw the pay of the post as he actually worked against the post of Accounts Assistant and not of Assistant. He alleged in the application that the order dated the 15th August 1964 whereby he was ordered to officiate as Accounts Assistant was made keeping in view his seniority and that thereafter he actually continued serving as Accounts Assistant and not as Assistant, the post to which he was promoted in papers since November 1970.
3. The appellants resisted the petitioner's application before the learned Court below and pleaded inter alia that the application was not competent because the notice as required under section 25- A of the Industrial Relations Ordinance had not been served and that the application was barred by the. The plea that the respondent was not a workman was also taken. On merits it was alleged that the order dated the 15th August 1964 was purely a temporary arrangement. The respondent was not promoted at that the as he was not qualified for promotion. The respondent himself adopted to be promoted as Assistant m the clerical line and he was so promoted in Novem--ber 1970. He qualified the departmental examination prescribed for the post of Accounts Assistant in 1972, and was promoted as Accounts Assistant in May 1972.
4. Muhammad Sharif, Abdur Rehman and Nazir Ahmad. Respondent himself appeared as respondent's witnesses before the learned lower Court while Muhammad Yaqub, Assistant of the Office of the Chief Accountant, Muhammad Sharif, Junior Accountant and Muhammad Aslam Sheikh, Accountant testified on behalf of the applicant before the, said Court. Relevant documentary evidence was also produced by the parties.
5. After considering the parties' evidence the learned Court below found that the respondent was sufficiently senior and he was promoted as Accounts Assistant since 15th August 1964. He continued serving as such. In the light of these observations of the learned lower Court, the respondent's petition was accepted with back benefits on 26th February 1975. The present appeal is directed against the aforesaid order of the lower Court dated the 26th February 1975.
6. I have carefully gone through the records of the case verbal as well as documentary evidence produced by the parties before the lower Court has been minutely analysed. The parties have been heard at a considerable length. It is noteworthy that the appellants besides resisting the respondent's application before the lower Court on merits raised a preliminary objection to the effect that the application was not competent as notice required under sec--tion 25-A was not served by respondent on the appellant. The learned lower Court has unfortunately recorded no findings on this point. Section 25-A (1) clearly provides that a worker may bring this grievance in respect of any right guaranteed or secured to him by or under any law or any award or settlement for the the being in force to the notice of his employer in writing either himself or through his shop steward or Trade Union within three months of the day on which cause of such grievance arises. In the under-consideration case no such notice has been served on the employer by the respondent personally or through his shop, steward or Trade Union. This is obviously not a case of termination and therefore subsection (6) of section 26-A ibid which serves as exception to subsection (1) has no application in this case. It therefore follows that service of notice as contemplated in subsection
(1) was a must in this case before filing of an application under section 25-A. The learned counsel for the respondent has argued that the respondent in para. 13 of his application under section 25-A has alleged that he had made several representations to the officers concerned to promote him in the scale of Accounts Assistant with effect from 15th August 1964. The contents of this para. Have not been denied by the appellants in their written statement. These representations, according to the respondent's counsel account to serve as grievance notice within the meaning of subsection
(1) of section 25-A. I find no force in this contention of the learned counsel for the respondent because nothing is indicated in paragraph 13 of the application as to when the alleged representations were made and whether the officer to whom the representations were made was an employer within the meaning of section 25-A. Moreover, if the representations were made several years ago, the application of the respondent under section 25-A filed on 13th May 1974 cannot be treated as within the. In Standard Printing Press Workers' Union v. Standard Printing Press (P L 11974 Tr. C. (Lab.) 393) it has been held by Sind Labour Appellate Tribunal that an application under section 25-A was maintainable only when the grievance notice is given. It was further held that absence of grievance notice to an employer renders application under section 25-A incompetent.
7. In the under-consideration case, as already stated, no grievance notice has been given to the employer before filing of an application before the lower Court. In the absence of grievance notice application of the respondent filed before the learned Court below is legally incompetent.
8. In this view of the matter, I would accept the appeal on this short ground that no notice was served by the respondent on the employer before filing an application under section 25-A before the lower Court, Impugned order is accordingly set aside and the application filed by the respondent before the learned Court below under section 25-A is dismissed as being legally incompetent.