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Application No. 122 of 1984, decided on 31st August, 1985.

‑‑‑S.25‑A‑‑Petition to Labour Court‑‑Limitation runs from date of cause of action‑‑Petitioner claiming promotion on grounds that juniors promoted‑‑Petition not made within prescribed period of limitation despite knowledge about promotions‑‑None communication of adverse remarks in A.C.R. forming grounds of unfitness for promotion of petitioner, in circumstances, held, cannot be used as defence against limitation and knowledge of promotion of juniors would create an estoppels against petitioner.

‑‑‑S. 25‑A‑‑Grievance petition‑‑Cause of action‑‑Settlement providing promotions on basis of seniority‑cum‑efficiency‑‑Petitioner considered unfit for promotion on basis of service record‑‑No right, in circumstances, held, violated to give cause of action‑‑Grievance petition claiming promotion dismissed by Labour Court.

‑‑S. 25‑A‑‑Grievance notice‑‑Representation for redress of grievance if requirement of Rules of Establishment for exhausting remedy before going to Court of law‑‑Part of service rules‑‑Cause of action remains in continuity till decision on representation‑‑No rules of service requiring exhausting remedy by representation‑‑Representation would be considered as in nature of grievance notice.

M.M. Kazim for Applicant.

Kamal Mansoor Alam for Respondents.

This is an application under section 25‑A, I.R.O. filed by Mr. Kafeel Ansari against Pakistan Steel Mills Corporation and others for giving direction to the management to give him the proper grade, pay scale, designation, status, promotion and up-gradation, with all the benefits from the relevant dates.

2. He has impleaded nine persons namely Ikramuddin, Shahid Hussain, Mr. Hakeem Khan, Mr. Qasim Ali, Mr. Munawar Hussain, Sabir Ali Shah, Muhammad Aqeel, Mr. Talib Hussain as the respondents.

3. He claims to be a permanent workman in the Corporation having joined as a store‑keeper on 7‑8‑1976.

4. Prior to his employment, he was up graduate and had ten years experience in the stores.

5. He claims that his record was exemplary and has earned good confidential reports.

6. On January 10, 1979, promotion policy was notified by the General Manager to the President of the C.B.A. union.

(a) That assistants with three years service will be promoted as junior officers.

(b) Assistants with five years service would be promoted as Assistant Managers. .

(c) Junior Officers on completion two years service would be automatically promoted as Assistant Managers.

7. Promotion policy referred in the letter of 10‑6‑1979 was recognized, secured, and guaranteed in the settlement between C.B.A. and the management on 5th January 1980.

8. The applicant claims, that the pay scale, grade and status of store‑keepers and the then Assistants were again redesignated as Senior Assistants by virtue of settlement between C.B.A. Union and the Corporation on 7‑7‑1982.

9. Since the applicant joined Pakistan Steel Mills Corporation, large number of emplyees formerly designated as Assistants and subsequently Senior Assistants have been promoted as Assistant Managers and Junior Officers through various orders which were notified on 5th May, 1979 and 4th July, 1979.

10. Subsequently also large scales, promotions have been made as Assistant Managers, Junior Officers in the years 1979, 1980, 1981, 1982, 1983 and 1984, through number of orders notified on 28‑11‑1979, 20‑9‑1980, 9‑9‑1981, 28‑12‑1981, 13‑1‑1982 and 25‑1‑1982 (Annexures A/5, A/6, A/7 and A/8).

11. That the applicant claims that so many of those promoted as Assistant Managers and Junior Officers are junior to the applicant Mr. Ansari namely Mr. Mustafa Khursheedi, Mr. Asghar Malik working as Assistants from 21‑8‑1976 and 30‑9‑1979.

12. Large number of the employees in grade of Assistants and equal grades were promoted as Junior Officers and also direct recruits appointed as Junior Officers were given the grades of Assistant Managers.

13. Therefore, in view of the promotion policy as recognized by the settlement of 1979 and 1980, he is eligible for promotion on completion of 5 years service from 7‑8‑1981.

14. He has also claimed that employees of the Corporation in grades of Assistants and equivalent of the year 1969 appointed on the minimum salary of Rs.400 while those who were designated as foreman and came late in 1975 were, appointed on the basis salary of Rs.325 reaching maximum Rs.550 as against scale of 400 in case of Assistants reaching maximum of Rs.750. He has referred to the Annexures‑A/11, A/12, A /13 in the case of Foreman Muhammad Rafiq Beg, and Mehmood Ali Khan.

15. Applicant further claims that in the year 1975 Ministry of Production had issued order for uniform pay scale and other conditions of service as also upgradation of the persons employed and to be employed in the grades equivalent and not below the foreman in the State Enterprise Establishment including Pakistan Steel. Respondent Corporation partly complied with the orders and upgraded the employees designated as foreman to the pay scale of 550 reaching maximum of Rs.1,250. It was further revised by the Board of Directors to Rs.80a reaching the maximum of Rs.1,250 in the year 1979. Employees in the post of foreman were also promoted as Assistant Engineers but those orders of the Federal Government were not implemented by the Corporation in respect of the Assistants and equivalent grades, namely the store‑keepers.

16. Mr. Ansari also claims that when he was appointed in the Corporation, the qualification, prescribed, for the post of Assistant Manager, bar the Ministry of production was two years experience, with graduation. It is, therefore, he also claims promotion, as Assistant Manager on the basis of two years service. He has also referred the Ministry of Production's Circular, dated December 22, 1975.

17. Mr. Ansari also claims that vide order, dated 26‑1‑1984 number of store‑keepers were promoted to the grade of Junior Officers and those who are shown as respondents are junior to him. He has referred copy of the order, dated 26‑1‑1984 in this connection. He has also claimed that those who have been promoted through various orders including the order, dated 26‑1‑1984 have less experience and less qualification. He has further described that the classification of post given in Pakistan Steel Mills Corporation in the Service Regulation, there is post of Assistant Manager and not post of Junior Officers. He has also referred letter, dated December 29‑, 1976 from the Chairman of the respondent Corporation of the Ministry of Pakistan which reads:

"To post of Junior Officer was usually reserved for inexperienced graduate and if it is required two years service as Assistant Manager for promotion as Deputy Manager."

This letter is referred as Annexure A‑17.

18. Mr. Ansari, therefore, with all this background claims that he is eligible for promotion as Assistant Manager from 7‑8‑1978 in accordance with the Ministry directives and he claims to be entitled to the pay scale of Rs.550 reaching of Rs.1,250 and also eligible to upgradation revision and promotion. Alternatively he also claims that even on the basis of promotion policy, dated January 10, 1979 and protected under C.B.A. settlement of 1980, applicant is eligible for promotion as Assistant Manager from the date of the completion of 5 years service on 7‑8‑1981 and to further promotion. His grievance is that he has been ignored against those 9 persons who are not only junior to him but also with less qualification. He made representation but with no effect.

19. Corporation has filed reply alongwith other respondents.

20. Corporation has taken this defence that:‑

(1) Application is time‑barred.

(2) That application under section 25‑A is not maintainable.

(3) Applicant is working in supervisory position and is not a workman.

21. He has denied paras 3, 4 and 5 with specific denial that promotion policy is liable to change and has been modified from time to time. These are the cases where seniority is not only the criteria for promotion but suitability is one of the grounds. According to the corporation Store Personnel have their own seniority. They have not denied the revision of pay scales. They have also stated that there is a post of Junior Officer in the establishment and Service Regulations have been notified. In other words the corporation's defence is that promotion is given on the basis of over all suitability.

22. Respondents Nos. 3, 5, Q, 7, 8 and 10 have filed the reply statement and stated that seniority alone is not sufficient for promotion it is the overall suitability. They also claim that they have requisite qualification. They have also stated that he is not fit for promotion.

23. Respondent No. 5 have also stated that he is B.Sc. and promotion is based on the suitability. Respondent No. 2 has also taken the Same defence showing that he has requisite qualification and shown that his qualification is B.A.LL.B. None of the respondents have stated specifically that they were senior but have claimed that seniority and promotion suitability is to be considered. They have placed reliance on the seniority list maintained by the respondents which is mentioned in para. 3.

REASONS:

(1) Mr. Ansari has filed this petition that he has put up 10 years experience, as a store‑keeper since his appointment, on 7th August, 1976, with further academic qualification of graduation, and, therefore, he may be given the promotion like other officers, as junior officer and even to consider his entitlement to the higher rank in view of his services which are exemplary.

(2) He has referred to the letter of the General Manager of June 10, 1979 and also the settlement made between the C.B.A. union and the management of June 10, 1979 and 5th January 1980 for such entitlement.

(3) He has also the grievance that large scale promotions have been made as Assistant Managers and Junior Officer in the years 1979, 1980, 1981, 1982, 1983 and 1984 through various orders.

(4) His grievance being that Mr. Mustafa Khursheed and Mr. Asghar Malik were junior to him, who were promoted on 28‑11‑1979. He has also further challenged their promotions to the post after that period. Finally, he has referred to the Federal Ministry of Production, Order, for the uniformity in the pay scale and other conditions of service, as also upgradation of the persons employed and to be employed in the grades equal and not those below foreman in the State Enterprise Establishment. He has referred to the revision of the pay scale in the case of foreman but according to him, no implementation has been made in response, to the orders, in respect of the Assistants and the equivalent, store‑keepers and, therefore, this is discrimination.

(5) Mr. Kamal Mansoor Alam who has represented the Steel Mill has contended, that Mr. Ansari's petition is time‑barred. No petition is filed within the time of the cause of action. The second contention is that applicant Mr. Ansari has not provided, the copies of grievance notice to the management as required under the provisions of section 25‑A, I.R.O. which is the basic requirement for seeking redress in respect of the right which he claims to have been secured and guaranteed.

(6) Mr. Kamal Mansoor Alam has also further contended that promotion as it is the well‑settled law, is the right of the employer. He can refuse the promotion or to grant promotion which is based on seniority cum‑fitness. Mr. Kamal Mansoor Alam has contended that promotion cannot be claimed as a right by the employee when the employer has to consider fitness/ suitability to the organization, besides the seniority is an additional factor. According to Mr. Kamal Mansoor Alam Mr. Ansari's confidential remarks given by the superior officers are not pleasant and, therefore, he was not given the promotion by the Departmental Promotion Committee which is evident from the minutes of the meeting where Mr. Ansari store‑keeper though placed in seniority list as number 9 is not recommended for the promotion due to lack of recommendation. This Annexure has been filed as R‑1.

(7) Finally Mr. Kamal Mansoor Alam has contended that Mr. Ansari is not a workman to attract the jurisdiction of the Labour Court. His position is that of supervisory nature as admitted by him and, therefore, petition deserves dismissal. Mr. Kamal Mansoor Alam has also referred on the question of seniority‑cum‑fitness certain decisions of Courts and the Honourable Supreme Court and Appellate Tribunal which he has referred prominently 1981 P L C 494, 1980 P L C 832, 1982 PLC 1, 1983 P L C 206, 1983 P L C 297, P L D 1978 Kar. 703 and 1972 SCMR 127.

(8). With this background of the case law Mr. Kamal Mansoor Alam has also drawn the Court's attention to the settlement itself by referring para. 24 of the document which the applicant himself has accepted. Clause C, according to him refers that promotion, of subordinate staff should be, on the basis of seniority and fitness. This document is Annexure A‑2.

(9) On the other hand Mr. Ansari's representative has contended that confidential remarks which have been given to the applicant by superior authority were not communicated to Mr. Ansari. If there was any adverse entry, this cannot be the basis of the refusal of promotion. Regarding other objection Mr. Kazim Mirza has contended that grievance notice is in accordance with law and the application is filed in time challenging the promotion of the other officers on the basis that if Mr. Ansari as store‑keeper was entitled to promotion in view of the memorandum of June 10, 1979 where his post being equal to Assistant, he deserves to be promoted when he is highly qualified as a graduate and his long service be counted towards eligibility of promotion and has referred the settlement of 1982, to show that upgradation grade, and status, of store‑keepers and the then Assistants redesignated as Senior Assistants has become equivalent.

(10) In view of the submissions raised by both the counsels, the main question is that if the relief asked for is regarding promotion of Mr. Ansari and his eligibility, the question that arose for consideration is whether promotion is the vested right of the employee. If the promotion policy as found in Annexure A‑2, in para. 4, has remained the same in subsequent settlement, then the condition itself provided in clause C. The employer has made it clear that the promotion from the subordinate employees as well as in the case of direct recruits shall be on the basis of seniority /efficiency.

(11) What is efficiency is the question of fact to be determined in each case of the employee. If reference is made to the confidential remarks the copies of which had been placed on the record, it appears that Mr. Kafeel Ansari's work has not pleased the superiors. He has been warned many times and even in one remarks it has been pointed that he does not apply his professional skill and he cannot control the junior staff and he poses to possess the knowledge which he does not have and he is doing the work which is the lack of confidence.

(12) In these warnings he has, another confidential remark which is given by the superior officers as the countersigning authority on the remarks given by the immediate officer showing that the performance of Mr. Ansari has not been upto the mark and he is not fit for promotion. These remarks which may be pointed were examined by the Departmental Promotion Committee who were the better judges to find out what efficiency is required on the part of employee and what found proper in their judgment for the professional capability of a particular employee and to suit the organisation. This may also be mentioned here that the witness has also said that the A.C.Rs. were not genuine. The evidence of respondent witness regarding comments on A.C.Rs cannot be given any importance when he was not superior authority to have written the A. C.Rs.

(13) These remarks, it may be mentioned here have not been washed out or expunged. There is nothing in the representation of Mr. Ansari to show after 1979 on the promotion of officers through any corres pondence or other wise drawing the management's attention to the super cession and to show that his record was pleasant and when he fought for it in time or came to the Court when his 2 colleagues Mr. Mustafa Khursheed and Mr. Asghar Malik were promoted. According to his own saying that first promotion was earned in 1979 in respect of those persons who were junior to him. When the cause of action arose, is the settled law that application is to be filed in the Labour Court within three months from the date when the cause of action arose. The cause of action is to be understood from the time when the promotions were due to him, were denied to him. If according to Mr. Ansari the promotions have taken place from 1979 to 1984, why he has given rise to latches in coming to the Labour Court for seeking the redress, because for every cause of action section 25‑A has provided limitation which is also valuable right accrued in case of such petition filed by employee or otherwise within the legal provisions. He has filed representation in 1984 in the month of April. In other words he can challenge only those promotions which are the latest of 1984.

(14) Mr. Ansari has contended that in the absence of the acknowledg ment of service of the A.C.Rs., the A.C.Rs cannot be used against him and, therefore, he has cause of action from the time when he made the representation and there was no communication of the reply from the employer. In the first place the Court is of the view that confidential remarks for all the years and the promotion of other officers of 1979 cannot be in the ignorance of the knowledge of the applicant in such huge organization where Mr. Ansari himself has admitted that they were promoted in 1979. In other words if Mr. Ansari found that they were not fit or 'he was a fit man and ignored, no petition was filed for redress. This, therefore, cannot be used as a defence that he had no knowledge of the confidential report of adverse entries. In other words this creates an estoppel.

(15) Consequently, the promotion earned, of store‑keeper of the year 1984 is also based on seniority‑cum‑fitness. Mr. Ansari, therefore, cannot claim promotion when the Departmental Promotion Committee has examined his A.C.Rs. and found him unsuitable to the post of the higher rank. Promotion is not the right of the‑ applicant but it is a preragative of the employer who determines the suitability. No right is violated to give him cause of action.

(16) Mr. Ansari has also contended that pay of foreman were revised and, therefore, the pay of Assistants or Senior Assistants be also revised at para like foreman. He has referred of 1969 Assistants. They were appointed on the minimum salary of 4‑00 p.m. reaching the maximum of Rs.750. Foremen were appointed in 1969 on the salary of Rs.325 reaching the maximum of Rs.550. According to Mr. Ansari there was a circular of the Ministry of Production that pay scale be uniformed not in the case of foremen but also equivalent to the post of Assistants and Senior Assistants. He has referred to the revision of the pay of foremen from 550 reaching the maximum of Rs.1,250 vide memorandum, dated 17th March, 1979. In the year 1979 the pay scale for foremen was further revised to Rs.800 reaching the maximum of Rs.1,250. They were also promoted as Assistant Engineers. But no pay was revised of the Assistants or equivalent to the rank of foremen in view of the Government's orders regarding uniformity in the pay scale in respect of the Assistants and its equal grade store‑keeper.

(17) The Court is of the view that store‑keeper is a different cadre in departments and foreman is a different cadre and, therefore, uniformity of scale can only be imagined in the case of a cadre which is equal to the foreman and not in the case of Assistants in cadre of store‑keeper whose cadre is completely different there is no provision in the settlement between the union and the management to claim such uniformity even in the case of store‑keeper whose conditions of service and the pay are different initially on the basic appointment.

(18) Regarding Mr. Kamal Mansoor Alam's contention that Mr. Ansari was holding the position of a supervisor and not a workman. The Court has referred certain extracts of the evidence. In the cross examination of Mr. Rafeel Ansari he has made the following admissions:

"No person is working under me. I have experience of supervisory work. I have checked the work of store."

(19) There is also cross‑examination of Mr. Aslam Zaidi. He has stated in affidavit in evidence that applicant as a store‑keeper was not doing any manual or clerical work. He was performing superisory duties of checking and controlling work of staff assigning duties of staff, taking work from the subordinate, detailing staff for overtime work. The applicant is also under his subordination. The staff namely Assistant Store‑keeper, Artisans, Store men helpers, coolies. In the cross examination, witness has said that applicant is working in the survey section. He was working as supervisor. He refers to Annexure R.8. The witness has further clarified that it is not correct that this report was prepared by Mr. Ansari or he was writing report and maintaining register or there was no subordinate under him in this section. Except this evidence of the witness no other document has been produced by the management namely the chart of duties of the store‑keepers to show that Mr. Ansari was working as a supervisor and he had sanctioned staff. Simply to check the store cannot alter its position as the store keeper. The management has to show what were specific duties of supervision, on the basis of appointment order that his initial job was of supervisory nature. In the absence of the duties given in chart specifically assigned to him of the supervisory nature. The Court is not inclined to take different view that his post was of supervisory nature purely and not of clerical or manual nature. The objection, therefore, of the management is not upheld.

(20) Regarding grievance notice, which is the basic requirement, the Court has referred the evidence of Mr. Ansari. Mr. Ansari himself has admitted in the evidence that he was to be promoted in the year 1978 and got the grievance first time in the year 1978. Yet, he did not file petition in the Labour Court under section 25‑A, I.R.O. within the period of cause of action. If it is contended by Mr. Ansari the cause of action arose to him after latest promotion in the year 1984 of which he has challenged in the Labour Court, throughout his petition, he has not disclosed that he served the notice of grievance. Para. 24 of his pleadings shows that he made representation to the Chairman and the General Manager to seek the management's indulgence for the entitlement of his promotion on the basis of seniority and fitness. Mr. Kamal Mansoor has contended that representation cannot be termed as the notice of grievance strictly when the representation is a part of his service rules in the Steel Mill. Therefore, for any grievance the employee has, to exhaust his first remedy by sending, the representa tion. If representation is refused he has the cause of action. Indeed there is no word written of grievance notice in the representation, sent to the Chairman or General Manager but the representation is also in the, form, of prayer, to consider his promotion by giving sympathetic consideration. There is no word in the representation that if the representation is not allowed he is to go to Labour Court ff3r redress to create cause of action in continuity. In the view of the Labour Court, if the rules have not been shown by Mr. Kamal Mansoor Alam that representation was one of the essential conditions, for the employee first to exhaust remedy before going to the Court of law. The r‑presenta tion may be the considered part of service rules, as the natural sequence on the denial of the request made to the authority to consider his entitlement, which he is legitimately entitled. The cause of action remains in continuity. But if there is no such rule, then representation, is also in the nature of the notice, of grievance, to keep the cause of action alive, to seek redress in the Labour Court from the date when the employer has either refused to or failed to communicate decision and the employee gets the time limitation to file application in the Labour Court. The filing of petition in April, 1984, in the Court opinion appears to be in time.

(21) So fur as, the promotion is concerned the Court has already observed that the promotion earned by the officers in 1984, through recommendation of Departmental Promotion Committee cannot he claimed by Mr. Ansari on the basis of seniority alone when the fitness is the criteria for the promotion committee also to take into consideration r whether particular person, in spite of being senior from the date of " entry is still capable to handle the job of the high post. Both the settlements have emphasised the same line of action, that in the case of direct recruits as well as in the case of employees who ark likely to be promoted, the fitness is the main consideration for the assessment of the higher post.

In the result the applicant has no case. The application is dismissed.

A.E.

Application dismissed.

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