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Appeal No. SUK-381 of 1977, heard on 19th December, 1977.

-----S.25-A-Scope-Remedy available only .to enforce right secured by law, award or settlement-promotion claim-Can be agitated only if a vested right-Promotion subject to suitability- Determination of fitness and subjective exercise of Management's discretion-Court not to interfere-Promotion according to operative settlement to be given to workers subject to fulfilment of qualifications, experience and suitability-petitioner claiming promotion on basis of seniority-promotion made by Management on basis of suitability after considering merits of all including petitioner-Management, in circumstances, held, best Judge to take such subjective decision in such domestic matter concerning administration of establishment.

The Agricultural Development Bank of Pakistan, Karachi v. Staff Union and Another 1975 P L C 855 : 1974 P L C Note 136 at p. 73 ; 1972 SCMR127andPLD1974SC151 rel.

-- Mala fides-plea neither raised in grievance notice to employer nor before Labour Court-plea not allowed at appellate stage-Industrial Relations Ordinance (XXIII of 1969), Ss. 25-A & 37.

P L D 1974 S C 151 ref.

Ali Amjad for Appellant.

A Hafeez for Respondent.

Date of hearing : 19th December 1977.

This is an Appeal by one Haji Ali Khan, a Chowkidar at the respondent Sugar Mills at Naudero, District Larkana and it is directed against an order of the learned Sind Labour Court No. VII, sitting at Sukkur rejecting the appellant's application under section 25-A of he Industrial Relations Ordinance, 1969.

Briefly, the facts are that the appellant has been serving at the respondent Sugar Mills in District Larktina since 2nd February, 1974. On 1st June, 1974 his appointment was confirmed and he was made a regular Chowkidar. There are in all 30 Chowkidars employed for this Mill and the appellant stood at No. 5 on the Seniority List. On 30th July, 1975 the appellant was recommended by the Management' for promotion to the post of Senior Chowkidar ; however, he did not get the post for on 16^th January, 1977 the Management appointed one Sikandar Ali at Serial No. 18 of the Seniority List as their Head Chowkidar. On 31st January, 1977, 5 Chowkidars senior to Sikandar Ali made a joint representation to the Project Manager of the Mills against Sikandar Ali's appointment and on 19th May, 1977 those Senior Chowkidars who were senior to the appellant Haji Ali Khan relinquished in writing their rights of seniority over him and declared that they would have no objection if Haji Ali Khan is promoted to the post of Head Chowkidar. However, there is on record of the lower Court an affidavit by one Mohammad Jumman, a Chowkidar senior to the appellant stating that the appellant Haji Ali Khan has secured the signatures of his senior Chowkidars through fraud and misrepresentation. On 20th May, 1977 the appellant sub mitted his Grievance Notice to the respondents and on 9th June, 1977 he filed his application under section 25-A of the Industrial Relations Ordinance, 1969, which was dismissed by the Lower Court. Hence, this present Appeal.

3. I have heard Mr. Ali Amjad, Advocate on behalf of the appel lant and Mr. A. Hafeez on behalf of the respondent-Mills.

4. It seems to me that the short point for determination in this Appeal is as to whether the Appellant Chowkidar has any right secured or guranteed to him under any Award or Settlement so as to entitle him to promotion to the post of Head Chowkidar. I have perused the affidavit of Mr. Inamul Haque, the Office Assistant (Labour) at the Larkana Sugar Mills and 1 have seen the abstract of Demand No. 18 of the Peace Agreement between the Management and the Employees' Union of Larkana Sugar Mills, Naudero, made on 1st December 1975. This Demand No. 18 deals with Seniority Promotion' and states that "it has been agreed that promotion will be made from amongst the workers/ staff provided the person concerned fulfils the requirement qualifications and experience for the post and is otherwise suitable". Mr. Inamul Haque has stated that the promotion of Sikandar Ali to the post of Head Chowkidar was ordered by the Administration of the Mills in accordance with this Demand No. 18 of the Peace Agreement signed by the Employees Union of Larkana Sugar Mills and the Management and he has added that the suitability of all the concerned incumbents including the appellant was considered and matter decided on merits. In his cross-examination, he has said that "There is no adverse entry in the Service Book of Sikandar Ali". Thus, it appears to me that the Management of the respondent-Mills who, after all, in a domestic matter such as this concerning the administration of their own Mills are the best Judges on this point, have taken this subjective decision which, as it is in accordance with Demand No. 18 of the Agreement, should be acceptable to all the Chowkidars concerned.

5. There remains for consideration the question as to whether in a purely subjective matter such as this relating to the running and the management of a Sugar Mills, this Court or for that matter any Court, of Law can interfere and impose its own decision upon the Management and the Administrators of the Mills themselves. My attention has been invited to a series of reported cases on this point and I will briefly refer to them. Agricultural Development Bank of Pakistan, Karachi v. Staff Union and another (1975 P L C 885), it has been held that "In the matter of promotions, it is not open to the Union to guide the Bank as to how promotions should be made and that the Labour Court could not interfere with the selection made by the Bank as no such right to promotion had been guaranteed or secured to the Sub-Accountants/Investigators nor was there any Award or Settlement with regard to the promotions of Sub -Accountants/Investigators to these posts". 1974 P L C Note 136 at p. 73 my learned predecessor Mr. Inamullah Khan Judge held that a " work man in order to succeed either under section 25-A or section 34 of the Ordinance has in the first place to establish that he has a right guranteed or secured under any Law, under any Award or Settlement". Then, in 1972 S C M R 127 a Full Bench of our Supreme Court has held that the petitioner in that case had not acquired any vested right to Seniority and hence could not ask for enforcement of such right. From these Rulings, 2 points emerge firstly that a petitioner in cases of promotions such as this must first have a vested right before coming to Court and secondly that the Court would not interfere in a matter where the subjective exercise of the Management's discretion is concerned.

6. A final point urged by the appellant's Advocate was mala fides on the part of the Management. The appellant in his Grievance Notice as well as in his application under section 25-A of the I. R. O., 1969, has not breathed a word of mala fides against the Management and in these circumstances, it is difficult for his Advocate now at the eleventh hour to make out a case for him on this point. Besides, as pointed out by Mr. Hafeez on behalf of the respondent Mills, Sikandar Ali the successful rival Chowkidar has not been made a party to these proceeding's and hence not only is this present matter bad for misjoinder but further any allegation of mala fides becomes irrelevant. Mr. Hafeez invited my attention to a case reported in P L D 1974 S C 151 and specially to head note (d), appearing on page 156, where it is stated that "mala fides is one, of the most difficult thing to prove and the onus is entirely upon the person alleging mala fides to establish it" and later "mala fides must be pleaded with particularity".

7. For all these reasons, then, I reached the conclusion at the end of the hearing of this matter in Court that there is no force in this present appeal which stands dismissed. This judgment contains the reasons for that order.

Appeal dismissed.

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