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Appeal No. LHR‑765 of 1977, decided on 28th May, 1978.

‑‑‑Promotion‑‑Settlement providing higher posts to be filled only by promotion‑‑Senior ignored on grounds of ill‑health‑‑Medical certificate declaring him fit for duty‑‑Grievance petition of senior thus ignored, in circumstances, 'held, rightly accepted by Labour Court directing management to promote him from date junior promoted with all back benefits‑‑Industrial Relations Ordinance (XXIII of 1969), Ss.25‑A & 380).

Shafiq Ahmad Malik for Appellant.

Muhammad Zaman Qureshi for Respondent.

Date of hearing: 17th April, 1978.

This is an appeal against the decision dated 26‑9‑1977 of Punjab Labour Court, No.1, Lahore.

2. Muhammad Akram, respondent joined service as a Driver on 28‑1‑1964. He was promoted to the post of Assistant Yard Master on 6‑12‑1965. In 1975 the post of Yard Master fell vacant. The respondent was not promoted but instead one Shahbaz Khan was promoted as Yard Master on 20‑5‑1975. The respondent issued a grievance notice Exh. P.4 dated 23‑5‑1975 and then filed a petition under section 25‑A of Industrial Relations Ordinance, 1969 on 28‑6‑1975 before the Labour Court, which accepted the same and directed the appellant to promote the respondent to the post of Yard Master with effect from 20‑5‑1975 with all the back benefits allowed to him.

3. While the above petition was still pending another person Muhammad Amin Butt was promoted as Yard Master on 9‑6‑1975. The respondent served another grievance notice Exh.P.3 on 28‑7‑1975 and, thereafter, filed the second petition under section 25‑A on 2‑9‑1975.

On 26‑9‑1975 Mr. Muhammad Zaman Qureshi, counsel for the respondent, before the Labour Court made a statement that he did not want to prosecute the second petition under section 25‑A as the relief claimed had already been granted in the first case. That petition was dismissed as having been withdrawn.

4. Aggrieved by the above decision of the Labour Court in the first petition, Punjab Road Transport Board through Managing Director, appellant has preferred this appeal.

5. In the first petition the respondent had claimed seniority to Shahbaz Khan, which fact was not denied by the appellant. On 27‑12‑1969 a settlement was arrived at between the appellant and the C.B.A. Union before the Conciliator in an industrial dispute. The copy of the settlement is Exh. P.1. Under demand No.6, it was agreed that subject to suitability hundred per cent posts in the subordinate cadre would be filled in by promotions and direct recruitment would be resorted to only when suitable subordinates were not available. The promotions complained of would be reviewed in the light of the above decision.

6. On the basis of the above settlement, Road Transport Corporation issued the order, dated 17‑1‑1970, changing the rules as under: ‑‑

"The R.T.C. agreed that 100% posts in the subordinate cadres will be filled in by promotions and direct recruitment will be resorted to only when suitable subordinates are not available. Suitable amendments to Staff Promotion Rules are being issued separately."

(sic) that the respondent had a right of promotion to the post of Yard Master. This fact was also admitted by the appellant.

8. The first point for determination is as to whether the respondent was senior to Shahbaz Khan. In this connection the respondent relied on the seniority list Exh.D.l produced by the appellant, in which the dates of appointment and promotions of three incumbents are given as below: ‑ ---

9. The above list clearly shows without any manner of doubt that the respondent was senior to both Shahbaz Khan and Muhammad Amin according to the date of promotion as Assistant Yard Master. Israr Ahmad (D.W.1), Assistant Establishment, who appeared on behalf of the appellant, clearly stated that the respondent was the senior most, because he was promoted to the post of Assistant Yard Master in 1965, whereas the other two employees were promoted in 1971 and 1974.

10. The next point for determination is as to whether the respondent could have been ignored for promotion on account of his being a heart patient. In this connection the appellant had placed on the record seven leave applications Exhs. D.2, D.3, D.4, D.5, D.11, D.12 and D.13. These applications show that the respondent had applied for leave from 7‑5‑1969 to 12‑6‑1969 and, thereafter, from 8‑6‑1973 on medical grounds. In all these applications the name of the disease is not clearly mentioned. In Exh. D.2 it was stated that he felt pain in his chest and so suffered from heart trouble. The first period of suffering was 36 days in 1969 and second period was 12 days in June, 1973. After the first period was over the respondent was referred to doctor Abdul Aziz, Professor, Tuberculosis and Chest Diseases. The said doctor gave the following opinion on 16‑7‑1969:‑‑

"The employee has already availed one month's leave under question. After going through his papers of chest and E.C.G. etc., I endorse that the leave of one month granted to him was necessary. He is fit for duty now but is recommended light duty if possible for the next four weeks."

11. When the respondent obtained leave in 1973 he was not referred to any medical expert. On the basis of the above leave, he was ignored and not promoted. It appears that in 1969 he had some minor chess trouble and that is why he was referred to Tuberculosis and Chest Expert. After the expiry of his leave he was, in fact, given no light duty because he worked as Assistant Yard Master. According to Dr. Abdul Aziz, he was medically fit. In 1975 Dr. Rauf Yousaf, Hear Specialist, Lahore gave a certificate to the respondent that there was no evidence of heart disease and that he was quite fit physically.

12. In view of the above medical evidence, it cannot be said that the respondent was unfit for promotion on the ground that he was medically unfit.

13. Under these circumstances, I find no merit in this appeal, which is hereby dismissed.

A. E.

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