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Appeal No. SUK‑110 of 1983, decided on 22nd July, 1985.

‑‑‑Ss. 2(xxviii) & 25‑A‑‑West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S. 2(1)‑-Workman‑‑Grade 1 Sub‑Engineers doing manual work were workmen and Labour Laws, held, applied to them‑‑Status of such employee being workmen having not been challenged before Labour Court they were rightly deemed as workmen.

‑‑‑S. 25‑A‑‑Extraordinary Pakistan Railway Gazette, dated 18‑1‑1975 and 24‑1‑1980‑‑Promoted employees of railway not confirmed even after five years of such promotion‑‑Railway employees were to be confirmed after completion of three years' service‑‑Cause of action having accrued to promotees after completion of three years' service‑‑Grievance petition, held, was well within time after deduction of three years' statutory period required for confirmation.

‑‑‑S. 25‑‑Grievance notice‑‑Denial of receipt by employers‑‑Such notice sent through registered post A/D‑‑Acknowledgement having been correctly addressed and signatures on such acknowledgement in token of receipt‑‑Documentary proof, held, was sufficient to prove contention that proper grievance notice had been served.

‑‑‑S. 25‑A‑‑Promotion of employees subject to examination alleged by employees but denied by employer of such factum of examination and promotion ‑‑Factum of examination and promotion as consequence, held, not proved‑‑However, promotion of employees and their service for full five years in such capacity and their right to promotion after three years' promotion not denied.

‑‑‑Para. 336‑‑Premature increment‑‑Promotees, held, were entitled to premature increment.

‑‑‑S. 25‑A‑‑Extraordinary Pakistan Railway Gazette, dated 18‑1‑1975 and 24‑1‑1980‑‑Reversion of promotee employees‑‑Such promotees entitled to confirmation after completion of three years' service, held, were not legally reverted and would be deemed to have been con armed after completion of three years' service as promotee.

1981 P L C 494 and 915 distinguished.

Shabbir Ahmad Awan for Appellants.

Manazar Alam for Respondents.

Date of hearing: 10th April, 1985.

The instant appeal arises out of the following facts. The learned Labour Court No. VII at Sukkur allowed the grievance petition of Abdul Aziz and 7 others under section 25‑A, I.R.O., 1969, by the order, dated 2‑3‑1983.

2. Briefly the facts are that 8 petitioners now respondents were working as Wiremen Mistries in Pakistan Railways and on 27‑5‑1977, they were promoted as Electrical Chargemen (now designated as Sub Engineer Grade I (Electrical). However, Abdul Aziz, the respondent was promoted on 1‑9‑1977. The contention in the grievance petition is that the respondents were promoted against the permanent posts, through regular selection upon written and oral tests and were posted in Diesel Loco Shed, Rohri. In the event of that promotion, they were not allowed one annual increment as promotion benefit on the pretext that after confirmation they will be allowed benefits. They served in all for five years when there was neither confirmation nor the benefits of confirmed employees were allowed to them. That in the year 1981, on their representations their cases were referred to Headquarters but without any fruitful result. Ultimately the respondents gave grievance notice to the appellants but no reply was given to them. Hence, they filed the grievance petition.

3. In the written reply the appellants Nos. 1 and 2, dated briefly that the respondents were being utilized as Sub‑Engineer Grade 1 (Electrical) from 27‑5‑1977 and 1‑9‑1977 under local arrangement against 67% quota reserved for direct recruitment. The respondents were appraised of this condition at the time of their promotion that the promotion would not confer any right upon them and they would be reverted to their original posts without notice as and when regular staff was available. There was no selection or written test. The grievance notice was denied by the appellants.

4. Exh. 3 is the affidavit of M.A. Siddiqui, one of the respondents, while Exh. 4 is the affidavit of Altaf Hussain on behalf of the appellants in the Labour Court. The Advocates were heard in this appeal.

5. The first question which was argued by the learned counsel of the appellants is that the respondents were not workmen inasmuch as they were in Grade‑1 as Sub‑Engineers. This contention is repelled by the fact that the respondents were working and doing manual work within the definition of workman under Standing Orders and the Industrial Relations Ordinance, 1969. The Labour Laws do apply to them and the status of their being workmen has not been challenged by the appellants in the Labour Court. Therefore, it was held by the Labour Court that they were workmen and the Labour Laws do apply to them.

6. The second point argued and contested by the appellants is that the grievance application was time‑barred. The learned counsel for the respondents argued that non‑confirmation of the respondents is a continuous cause of action as long as the grievance exist. The respondents including Abdul Aziz were promoted on 27‑5‑1977 and the respondent, Abdul Aziz was promoted on 1‑9‑1977 and their cause of action for non‑confirmation is a continuous one as long as the grievance exists. I would rather agree with the findings of the learned Labour Court and also in view of the fact that Government's directions are that they are to be confirmed after completion of three years service. The Government published an Extraordinary Pakistan Railway Gazette, I dated 18‑1‑1975 and also Railway Board's letter published in the Extraordinary Pakistan Railway Gazette, dated 24‑1‑1980. It would be advantageous to reproduce the relevant portion from the Gazette, dated 18‑1‑1975, which reads as under:‑‑

"The following decisions of the Government are published for the information of railway staff:‑‑

(1) Confirmation of staff:‑‑The Government has decided that all staff, except work‑charged staff or those working in the temporary projects, with three years service should be confirmed and the posts against which they are working should be made permanent as far as possible. All others who cannot be so confirmed should be given all the benefits /privileges of confirmed staff."

7. It is also necessary to reproduce the relevant portion from the Gazette, dated 24‑8‑1980, which reads as under:‑‑

"Sub:‑‑Confirmation of Staff.

Ref.‑‑Railway Board's Letter No.E‑72‑PM‑1/1‑11, dated ‑3rd January, 1975.

In terms of para. 1 of Railway Board's Letter No. B‑74‑UT‑1‑6‑1, dated 18th December, 1974, it has been decided by the Government that all the staff except work‑charged staff or those working in temporary projects, within 3 years service should be confirmed and posts against which they are working should be made permanent as far as possible and all others who cannot be so confirmed should be given all the benefits/privileges of confirmed staff.

(2) The intention of the Government's decision referred to above is to confirm all staff who have 3 years' service by bringing the posts against which they are working on permanent footing and to give benefits /privileges of confirmation to those who cannot be confirmed for want of permanent pests but have 3 years' service, so that they may not suffer on account of their non confirmation, but since no specific date has been indicated by the Railway Board from which this decision is to be implemented, the same has been enforce, with effect from 1st January, 1975, i.e. the date on which it has been notified to all concerned, as per rules."

8. In view of the decisions of the Government, reproduced above from the Gazette notification, it would be clear that the cause of action accrued to the respondents after completion of 3 years service on the post on which they were working after promotion. Briefly, the matter boiled down to the fact that the grievance notice Exh. 1‑B has been given by the respondents to the appellants and the grievance application, Exh. 1‑A of the respondents is not time‑barred.

9. However, the appellants have denied to have received the grievance notice. The respondents have filed copy of the grievance notice Exh. 1‑B and also they have filed the acknowledgements and also the postal receipts to prove their contentions that they were sent by registered post acknowledgement due. The acknowledgements are correctly addressed to the appellants Nos. 1 and 2 and also their signatures are in token of the receipt. The postal receipts Exhs. 1‑E and 1‑F are bearing the addresses of the respondent No. 1. This documentary proof by the respondents is sufficient to prove their contentions that they have given proper grievance notice. The acknowledgement, as such, cannot be doubted.

10. The contention of the respondents, vide affidavit of M.A. Siddiqi is that they were selected after they sat in the examination, i.e. written paper and oral test. In this, they had produced the examination papers and the test which was held on 14‑5‑1977. This contention, though impressive yet it has no sufficient character as long as one does not know whether the respondents sat in the examination and the test, dated 14‑5‑1977. Although they were promoted on 27‑5‑1977 and the presumption would be that they did sat in the test but in view of the denial of the appellants, this point is not sufficiently proved. However, it is not denied that the respondents were promoted and they served on promotion for five full years and the Government notification quoted above, apply to them in all force.

11. On promotion, the respondents were entitled to premature increment as provided under para. 336 of the Personnel Manual No They were legally entitled to this in rement and the Labour Court has also allowed it and I find no reason to interfere.

12. 'The respondents, Abdul Aziz and Azizuddin were reverted during the pendency of their grievance petitions before the Labour Court. The respondents came with the grievance petition on 13‑3‑1982, whereas they were reverted on 16‑11‑1982. The Labour Court has ordered and directed that the action of reversion of these two respondents should not come in their way as they are held to be entitled to be confirmed against promoted posts as Sub‑Engineers Grade‑I (Electrical) on completion of 3 years' service against those posts. They are, therefore, equally entitled after complextion of three years as they were not legally reverted. The enforcement of Government notification was mandatory unless for some reasons they find that the respondents were disqualified. As regards the contention that 67 per cent posts were reserved for direct recruitment, this contention loses its face when for five full years the respondents waited for their confirmation. The Railway Department found no suitable persons for fresh recruitment during these five years.

13. I am referred to 1981 P L C 494 and 915. The judgments if this Tribunal are distinguishable and do not apply in this particular case.

14. The result is that I would not interfere with the impugned order of the Labour Court and would dismiss this appeal.

A.A.

Appeal dismissed.

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