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Appeal No. SUK‑520 of 1980, heard on 16th November, 1980.

‑‑‑ S. 25‑A‑Grievance notice to employer ‑ Railway employee making representation against seniority but receiving no reply hence filing grievance notice after about seven months of publication of seniority list‑Such employee, held, entitled to wait for reasonable time for decision on his representation‑Four months', time spent in waiting, held, reasonable‑‑Grievance notice, in circumstances, held, in time.

‑‑ Sec. V. para. 3 (b) (1)‑‑Incapacitated workman‑Absorption of-- Seniority in grade in which absorbed‑U. D. C. absorbed as T. C. R. Grade II‑Seniority neither to be given from original date of joining service or date of absorption‑Determining factor‑Pay‑Shall rank junior only to those T. C. R. Grade II who on date of his absorption ‑were in receipt of rate of pay not less than that granted to him.

S. M. Alvi for Appellants.

Shabbir Ahmad Awan for Respondent No. 1.

Date of hearing : 16th November, 1980.

In the year 1973, while the first respondent was working as U. D. C. in the Sukkur Division of the Railways, he sustained an injury to his spinal cord, in consequence of which he was medically declared incapacitated for the work of U. D. C., which involved constant sitting. The first‑As,, respondent was thereupon posted in the C. R. Section, but as his duties in that section involved constant sitting, at his request, he was absorbed as T. C. R., Grade II, with effect from 27‑10‑1975, Seniority List of the staff in the T. C. R. was published on 3‑9‑1977, in which the first respondent was assigned seniority at Serial No. 72‑A. The first respondent made representation against the fixation of his seniority only from the date of his absorption in the T. C. R. Section and claimed that he should be given seniority from the date of his entry in the service. As the Railway admi nistration did not take any action on his representations, he brought a grievance petition before the learned Labour Court under section 25‑A, I. R. O., after serving a grievance notice upon the Railways, claiming seniority as well as promotion. The learned Labour Court has allowed the grievance petition of the first respondent to the extent that it has directed that his seniority in the T. C. R. be fixed with effect from 9‑9‑1951, the date of his original appointment in service, and has held that he is senior to the 48 employees in the T. C. R. whose names appear in Annexure B' to the memorandum of appeal. Aggrieved by this decision, the Railway administration has preferred an appeal to this Tribunal.

2. I have heard Mr. Alvi, the learned counsel for the appellant, and Mr. Shabbir Ahmad Awan, who appeared for the first respondent. The other respondents have remained un-represented.

3. Mr. Alvi has assailed the impugned decision of the learned Labour Court on the grounds‑

(i) that the first respondent's grievance petition is not maintainable as he failed to serve a grievance notice upon the appellants within 3 months of the cause of action having arisen, as provided in sec tion 25‑A, I. R. O. ; and

(ii) that the first respondent has been assigned seniority in the T. C. R., Grade II, strictly in accordance with the rules.

4. In support of his first contention, Mr. Alvi submitted that admittedly the seniority list, by which the first respondent claims to be aggrieved, was published on 3‑9‑1977, but the grievance notice was sent by him on 17‑4‑1978, and was actually received by the appellants on 23‑4‑1878. Mr. Alvi contended that as the grievance notice was served beyond the period of 3 months within which period such notice is required to be served upon the employer, the first respondent's grievance petition is not maintainable. Mr. Shabbir Ahmad Awan, on the other hand. submitted that immediately after the publication of the seniority list on 9‑9‑1977, the first respondent made a representation, dated 10‑9‑1977, and when he failed to get any response to his representation, he served a grievance notice upon the appellants. The receipt of this representation has been admitted by the appellants in their reply statement and it has been further asserted in the reply statement that the said appeal was carefully considered. It is, however, not known when the decision on this appeal was given and whether the decision was communi cated to the first respondent. Since it is the contention of the first respondent that he received no response to his representation, which allegation is not specifically denied by the appellants, the first respondent was entitled to wait for a reasonable period and then serve a formal grievance notice upon the appellants. If the period of about 4 months is considered reasonable fort waiting for the decision on the appeal or representation, the limitation foil the service of the notice would commence after the expiry of the said period of 4 months. On that basis, the service of the grievance notice by the first respondent, dated 17‑4‑1978, would appear to be in time.

5. In support of his second contention, Mr. Alvi relied upon the provision of paragraph 3(b) (1) of Section V of Advance Chapter No. 1 of Personnel Manual. The said paragraph reads as follows :‑

"(b) Men incapacitated for service in any class by accident, ill‑health, failure of eyesight, etc., and transferred to another class.‑(1) In such cases no guarantee can be given of their employment as this must depend on vacancies. Endeavours will, however, be made to find for them posts for which they, in this incapacitated state, may be suitable and in which they can be usefully and efficiently employed without risk of injury to themselves, their fellow‑workers and the travelling public. The pay and seniority of an employee so appointed to a post will be fixed with due regard to the following considerations :‑

(i) That the appointment made does not in any way deprive an efficient and deserving employee who can reasonably look forward to advance ment in that line.

(ii) That the pay of an employee when appointed to a lower grade shall be fixed on the maximum of the grade or on a stage in that grade equivalent to or not below the rate of pay he is actually in receipt of, whichever is less.

(iii) That the appointment will be made on probation for 3 months and he will be retained in that service if his service during the period of probation is satisfactory. If his work is not satisfactory he will be retired as having been physically incapacitated for further service.

(iv) That the employee will rank junior to all in receipt of the rate of pay granted to him on such appointment. After deciding which post an employee is incapacitated for service in a class can be considered for and the rate of pay therein which can be given to him, he will be asked to apply for the post. If he does not apply for the post, he will be granted leave due preparatory to retirement and if, during that period, no better post can be found for him without detriment to the legitimate claims of other staff, be will be retired on the expiry of that leave and granted gratuity/special contribution under the Rules, If, however, such an employee refuses to accept a suitable post which may be offered to him and retires with less than 15 years' service, it shall be open to the Administration to hold that he is not eligible for gratuity/special contribution.

Explanation.‑A post shall be regarded suitable if it is so considered from the point of view both of the Administration and the employee having regard to its character and rate of pay. A slight and temporary loss of pay in the posts offered shall not of itself render that post as unsuitable."'

6. A. bare perusal of the above paragraph makes it clear that an employee transferred from one cadre or from one category of employment to another on account of being incapacitated for his former employment would rank junior in his new cadre to all in receipt of the rate of pay granted to such incapacitated employee on such appointment/transfer. The first respondent therefore, according to the above rule, is to rank junior as T. C. R., Grade II, to only such employees as were in receipt of rate of pay not lower than was awarded to him on the date of his entry in that cadre. However, this was not done and instead his seniority has been reckoned from the date of his entry in the cadre, i. e,. with effect from 27‑10‑1975. Mr. Alvi submitted that this was done because the first res pondent could only be absorbed as T. C. R., Grade II, on his passing T. 10 course. It is an admitted position, however, that the first respondent was exempted from passing this course on 7‑7‑1977. As such, even if the passing of such course or exemption from such course be a precondition for absorption as T. C. R., Grade II, the first respondent was entitled on 7‑7‑1977 to rank senior to all T. C. Rs., Grade II, who on that date were drawing rate of pay less than him, as provided in paragraph 3(b) (1) of Section of the Advance Chapter No. I of the Personnel Manual. It appears that this has not been done.

7. Mr. Bashir Ahmad Awan, on the other band, contended that the rule applicable to the first respondent would not be the one relied upon by Mr. Alvi but rule 1 of Section V of Advance Chapter No. 1 of Personnel Manual. The said rule, however, applies to transfer made only for the public convenience or on very rare occasions at the request of employees and would appear to be inapplicable to persons transferred on account of incapacity, whose cases are dealt with in rule 3(b)(1).

8. The learned Labour Court has held that the first respondent was entitled to count his seniority as T. C. R., Grade II, from the date of his original entry in service from 1951. Since this finding is wholly inconsistent with the provisions of rule 3(b) (1), which have been reproduced in extenso above, the view taken by the learned Labour Court cannot be sustained. Mr. Alvi, the learned counsel for the appellants, has referred me to the judgment of their Lordships of the Supreme Court in Cr. Misc. No. 39 of 1971, which was an offshot of the well-known Guard's case. In the judgment in question, their Lordships of the Supreme Court, while clarifying their judgment in the main case, have pointed out that they bad not intended to have laid down that the principle of determining seniority according to entry into the grade had to be adopted in all cases, regardless of any special rule that may be found to govern particular cases. In the instant case, as already pointed out, the special rule applicable to the case of the first respondent is contained in paragraph 3(1)(b) of the Advance Chapter No. 1 of the Personnel Manual:

9. In the result, while setting aside the decision of the learned Labour Court, I would direct that the first respondent be given seniority, with effect from 3‑7‑1977, in the cadre of T. C. R., Grade II, in accordance with rule 3(1) (b), that is, he should only rank junior to such persons in the said cadre who on the said date were in receipt of rate of pay not less than what was granted to him.

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