1. This is a petition under section 34 of the Industrial Relations Ordi--nance, 1969. The petitioner is the Employees' Union, Pakistan Central Cotton Committee, Lyallpur. Their grievance is that their employer does net follow the policy relating to appointments and promotions in accordance with rule 5 of Pakistan Central Cotton Committee (Staff Service Rules, 1972 framed under section 15 of the Cotton Cess Act, 1923. For ready reference this Rules is reproduced below :- "5. Appointment.-(1) Appointments to existing or newly created posts shall be made in one of the following ways:-
(a) by direct recruitment;
(b) by promotion on seniority-cum-fitness basis; and
(c) by borrowing services from other Government Departments or autonomous organisations.
(2) The following shall be the method of appointment:-
(a) Appointment to posts in Category I shall be made by the Central Government.
(b) In Categories II and III, 50% posts shall be reserved for departmental promotion and 50% posts for direct recruitment, except where it is found that departmental candidates do not fulfil the special require--ments of the posts on research side.
(c) Appointment by promotion shall be made according to the rules laid down for promotion.
(d) Appointment to posts in Category IV shall be made by direct recruitment.
(e) Appointment to pasts in Category II shall be made by the Export sub-committee constituted from the to the by the Committee.
(f) Appointment to posts in Category III shall be made by the Vice-- President of the Committee on the recommendation of the Selection Board, which shall include the Head of the Institute, Research Centre, or the Division in which the appointment to the post is to be made.
(g) Appointment to posts in Category IV shall be made by the Secretary, in respect of the Secretariat, Director, in respect of the institute and the presiding officer in respect of the scheme concerned.
(3) All appointments shall ordinarily be made at the minimum of the the scale of the post, but in case when a person recruired possesses additional experience or spedal qualification or both, the competent authority may allow, for reasons to be recorded in writing, a higher initial pay in the the scale of pay."
2. According to the above Rule the appointments are to be made either by direct recruitment, or by promotions or by borrowing services from other Government Departments etc. All the employees are classified in Rule There are four categories of the employees. In Category No. I, the Secretary and the Directors are included. In this case we are concerned with Categories No. II and III.
3. According to rule 5, quoted above in categories No. II and III, 50% posts shall be reserved for departmental promotions and 50% posts for direct recruitment except where it is found that Departmental candidates do not fulfil the special requirements of the posts of research side.
4. The grievance of the Union is that in category No. 11 and III the employer did not promote the departmental employees to the extent of 50% posts and always resorted to have direct recruitment. In these circumstances the Union prayed to enforce Vie above guaranteed rights by issuing directions to the employer to bring the quota of Departmental promotion at par with the quota of direct recruitment and until the same is not brought at par the direct recruitment should be banned. There is another prayer that the persons who are working on deputation should also not be allowed to be absorbed in the service of the employer.
5. The petition was resisted by the respondent namely; Pakistan Central Cotton Committee, Karachi (herein called employer). Two legal objections were raised, firstly, no rights guaranteed or secured to the Union had beer, infringed and so the petition is not maintainable and secondly that i.e pre- determined or pre-existing rights exist and that the prayer pertains to matters which require adjudication and determination and so no petition under section 34 of the Industrial Relations Ordinance, 1969 is maintainable. On the merits of the case it was stated that the employer was following rules 5 with respect to appointments and promotions and no cause of action --arises to the Union.
6. Mr. Mahmood A. Ghani the learned Labour Representative, appearing on behalf of the employer argued that that section 34 covers rights guaranteed or secured to a Collective Bargaining Agent and so only these rights can be enforced but this section does not cover any rights guaranteed or secured to the workers and that their remedy was to move the Junior Labour Court under section 25-A to enforce any such right. According to him the rights of a Collective Bargaining Agent were to raise an industrial dispute, i.e., it can give a notice of demand under section ''6 or it can give a notice of strike under section 28 or it can negotiate with the employer or to go to a Labour Court for an award under section 32. In brief, his argument was that it was not the right of a Collective Bargaining Agent to demand that the quota of departmental promotion be brought at par with the quota of direct recruitment under rule 5 mentioned above.
7. The scheme of the Ordinance is such that it has classified the rights of the employees in to categories. First, those rights which have been guaranteed or secured to the workers under any law, any award or settlement for the the being in force. Second, those rights which are not created by any law, award or settlement and about which an in Juatrial dispute may be raised. It will be beneficial to give the definition of the industrial dispute here:- "'Industrial dispute' means any dispute or difference between employers, and employees or between employers and workmen or between workmen and workmen, which is concerned with the employment or non-employment or the terms of employment or the conditions of work of any person; (and is not in respect of the enforcement of any right guaranteed or secured to him by or under any law, other than this Ordinance, or any award or settlement for the the being in force;---.
8. It is clear that an industrial dispute is concerned with the employment or non-employment or the terms of the employment or the conditions of work of any employee. It is specifically given that an industrial dispute does' not concern to any matter in respect of enforcement of any right guaranteed or secured to him by or under. Any law or any award or settlement. In the present case it is admitted at that rights have been guaranteed to the employees under the Pakistan Central Cotton Committee (Staff Service) Rules, 1972 because they are statutory Rules. It was also admitted that it was the right of the employee to demand enforcement of Rule 5(2)(b) which says that in category II and 111 50 % posts shall be reserved for departmental promotion and 50 % posts for direct recruitment. The question is whether such a right can be enforced by the workers individually or whether this right can be enforced by the Collective Bargaining Agent. In case this right can be enforced by a workers individually than he must file a petition in the Junior Labour Court under section 25-A of the Ordinance. But if this right can be enforced by the Collective Bargaining Agent then the application must be under section 34 of the Ordinance. These sections are:- "25-A. Redress of Industrial grievances.-(1) A worker 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 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.
9. (2)---------................
(3) ...........................
(4) If the employer fails to communicate a decision within the period specified in subsection (2) or, as the case may be, subsection (3), or if the worker is dissatisfied with such decision, the worker or Shop Steward may take the matter to his Trade Union or the Junior Labour Court or as the case may be, the Trade Union may take the matter to the Junior Labour Court and where the matter is taken to the (Junior Labour Court), it shall give a decision within seven days from the date of the matter being brought before it as if such matter were an industrial dispute.
(5) ...........................
(6) ...........................
(7) ...........................
34. Application to Labour Court.-Any Collective Bargaining Agent or any employer may apply to the Labour Court for the enforcement of any right guaranteed or secured -to it or him by or under any law or any award or settlement."
10. The heading of section 25-A, i.e. "redress of individual grievance" clearly denote that this section would apply only where a worker has individual grievance. Obviously this section will not apply if the grievance is collective. For instance if any worker is removed from service he can file a petition before the Junior Labour Court under this section for re-Instatement. Similarly if any worker has any grievance about his promotion and increment he can ask for a redress under the said section.
11. Where the grievance is not indivi--dual but it relates to all the workers of an establishment, they cannot invoke the provisions of section 25-A. The only section available for a grievance which is collective, is section 3;-A. As far as the rights guaranteed or secured are concerned they may be in respect of all the workers. If the interpretation, which has been given by Mr. Mahmood A. Ghani is taken as correct, it shall mean that if the workers want to unforce a collective right they cannot seek any remedy under the Ordinance. This cannot be the intention of the Legislation. My view is that if there is an individual grievance; section 25-A would come into play but where the grievance is collective of the workers of an establishment, then section 34 would b., attracted.
12. In the present case the rights guaranteed or secured under Rule 5(2)(b) relate to all the employees therefore the only remedy available to them is to move the Labour Court under section 34 through the Collective Bargaining Agent. I hold that the petition is maintainable. Both the legal objections raised by the employer are rejected.
13. On merits it was admitted by the employer that Rule 5 (2) (b) is applicable and that the employer is bound to reverse in category II and III 50% posts for the Departmental promotion stated that this Rule has been continuously Two lists were placed on record to saywere far less than the direct recruitment. In these is accepted and respondent is directed to bring the promotion at par not brought at par the direct recruitment shall be banned. Of course the employer shall be entitled to create exception to this direction where it is found that the departmental candidates do not fulfil the special requirement for the posts on research side.
14. The second relief claimed by Union relates to the deputationist. There is no right guaranteed to the Union that the deputationist cannot be absorbed. The petition to this extent is dismissed.