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Appeal No. RI‑81 of 1985, decided on 7th July, 1985.
‑‑‑S. 17 (1‑B)‑West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S. 2(i)‑‑Industrial Relations Ordinance (XXIII of 1969), Ss. 2(xxviii), 25‑A & 18(3)‑‑WAPDA employee‑‑Jurisdiction of Labour Court‑‑Employee covered by definition of workman‑‑Labour Court returning grievance petition for presentation before Service Tribunal but Service Tribunal holding that petitioner being a workman was not within its jurisdiction‑‑Remedy in circumstances, held, open in Labour Court‑‑Petitioner claiming promotion on basis of Settlement‑‑Grievance petition, held, maintainable.
‑‑‑Ss. 25‑‑A & 38(3)‑‑Findings of National Industrial Relations Commission that WAPDA employee (petitioner‑appellant) was not entitled to promotion as no rules regarding promotion were framed by WAPDA‑‑Does not operate as res judicata to grievance petition filed before Labour Court after framing of rules‑‑Promotion of a junior creates fresh cause of action even if once case of promotion has been decided by Court and fresh cause can be agitated again‑‑Labour Court dismissing grievance petition of WAPDA employee claiming promotion on basis of settlement and rules‑Findings of Labour Court not supported by evidence on record‑‑Appellate Tribunal, in circumstances,. Setting aside order of Labour Court and directing WAPDA to consider appellant for promotion and to promote him in accordance with rules if found fit for promotion.
Mian Mahmood Hussain for Appellant.
Mian Khalid Ahmad for Respondent.
Date of hearing: 3rd July, 1985.
The decision, dated 3‑10‑1982 has been challenged, whereby the grievance petition of the appellant was dismissed by Labour Court, Rawalpindi.
2. The appellant claims promotion on the basis of settlement as well as under the rules framed by WAPDA. The application of the appellant was returned to the appellant for presentation to Services Tribunal holding that the Labour Court had no jurisdiction. The appellant applied to Services Tribunal but it has been held that the said Tribunal has no jurisdiction, therefore, the appellant has, in the present appeal, prayed for the acceptance of the previous petition.
3. The learned counsel for the respondent has raised an objection that this Court having no power of review cannot hear the appeal, on account of previously holding that the Labour Courts have no jurisdiction. The objection is not well founded. According to section 17(1‑B) of the WAPDA Act, all persons employed in WAPDA have been declared civil servants for the purposes of Service Tribunals Act of 1973. For this reason it was previously held that the Labour Courts have no jurisdiction. This is noteworthy that WAPDA's employees have been declared civil servants not for all purposes but only for the purposes of Service Tribunals Act. Since the Service Tribunal has held that it has no jurisdiction, the other Courts have jurisdiction. Now it is to be seen whether the Labour Courts have jurisdiction or not. This is not the case of the respondent that the appellant is not covered by the definition of workman given under section 2 (xxviii) of the Industrial Relations Ordinance, 1969 or section 2(i) of the Standing Orders Ordinance. Since the Service Tribunal has held that it has no jurisdiction, the remedy open to the appellant is in Labour Court.
4. The learned lower Court has held that principle of res judicata applies to this case, inasmuch as the appellant went to N.I.R.C. with the prayer of promotion and the said forum held that vide, order Exh. P.17, dated 7‑1‑1978, the appellant was not entitled to promotion as WAPDA had not framed rules about the promotion. Now WAPDA has framed promotion rules, therefore, the grievance petition made by the appellant is based on this fresh ground and no question of res judicata on account of dismissal of his petition by the N.I.R.C. arises. Even otherwise if once the case of promotion has been decided by the Court, H it can be agitated again if the employee covered has been ignored and the juniors have been promoted and in such circumstances the Court can issue direction to consider the case for promotion. On 16‑1‑1978 a junior to the appellant was promoted. On 11‑5‑1981 still another person namely, Abdul Latif was promoted, vide order, copy of which is Exh. P.12. According to the appellant, they are junior to him. So, the appellant got fresh cause of grievance on the promotion of the juniors.
5. The learned lower Court has also held that there is no right guaranteed by any settlement or award on the basis of which the grievance petition may be accepted. The appellant bases his right on the settlement, copy of which is Exh. P.7. According to this settlement, Graduate B.Sc. (Engineers) with first Division having at least 3 years' experience and the ones holding second division having four years' experience can be promoted as Graduate Engineer. The learned lower Court has not said that the said settlement has not conferred any right upon the appellant. Apart from it, order Exh. P.10, dated 6‑11‑1977 of WAPDA is‑ helpful to the appellant. The latter is to the effect that all Graduates should be promoted immediately. The appellant being a Graduate, the order issued by the employer is helpful to him. It can be said that Exh. P.10 gives him a guaranteed right to be considered for promotion. So, it is wrong that there was no right guaranteed by any settlement or law. The learned lower Court has observed that the appellant was considered for promotion but was not found fit. The learned counsel for the respondent has not been able to point out that any each objection was raised by WAPDA. He also has not been able to point out any evidence from which the observations made by the learned :over Court may have been supported. The appellant, therefore, has a right to be considered for promotion.
6. As a result of the observations made above, the appeal is accepted and setting aside the impugned order of the learned lower Court, the respondent is directed to consider the appellant for promotion and to promote him in accordance with rules if he is found fit for promotion.
A.E.
Appeal accepted.
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