ABU SHAMIM M. ARIF Versus FIRST SINDH LABOUR COURT AT KARACHI

DECISION

By this Revision application the suo motu Revisional jurisdiction of this Tribunal is invoked and it is prayed that R & P of complaint No. 3 of 1991 pending before- the 1st Sindh Labour Court at Karachi be called and the legality, propriety and correctness of the order dated 16-3-1991 passed on that complaint issuing summons to the applicant; be considered.

2. I have heard Mr. Khalilur Rehman learned counsel for the applicant and Mr. Ehsan Ellahi Khan representative of respondent and have also gone through record and proceedings of complaint No. 3 and also the other relevant papers filed alongwith the revisional application.

3. The respondent admittedly filed a grievance petition bearing No. 144 of 1987 under section 25-A of I.R.O., 1969 before the learned Labour Court praying therein that the Court may be pleased to adjudicate and determine grievance application and order his promotion as foreman to be posted at pre -stressed Pipe Factory KDA, Karachi.

4. In the grievance application he had alleged that certain persons who were junior to him had been promoted but he was ignored. The learned Labour Court dismissed the grievance petition holding that promotion was not a guaranteed right and also because the respondent had already been promoted and therefore the grievance petition had become infructuous. In appeal this Tribunal vide order dated 18-10-1990 set aside the aforesaid order of the learned Labour Court holding that the promotion was a guaranteed right, if the respondent was senior and was found fit for promotion. This Tribunal directed the KDA, the respondent in that appeal, "that the case of the appellant for promotion be considered and decided by the respondent within 3 months in the vacancy caused by retirement of Nawab Jan in accordance with the procedure laid down in Rule 29 read with Rule 10 of the KDA Employees Service Regulation 1973". The fact that the respondent in the meantime had been promoted was noted but was not given mach consideration because the promotion was admittedly on ad hoc basis only.

5. Mr. Khalilur Rehman has contended that much before the order of this Tribunal dated 18-10-1990, the vacancy caused by retirement of Nawab Khan, had been filled on 4-1-1988 and the present incumbent of that post had not been made as a party to the proceedings before the Labour Court or Appellate Tribunal, therefore, they could not revert him in pursuance of this order, but instead, they regularised the ad hoc promotion of the appellant from retrospective date viz. from 7-11-1988, when the appellant has been promoted on ad hoc basis. He that the spirit of order of this Tribunal has been complied with contends it.

6. The contention of Mr. Ehsan Ellahi Khan is that this Tribunal had specifically directed the promotion of the respondent in the vacancy caused by retirement of Nawab Shah Jan and therefore this order of the appellant retrospectively regularising the promotion of the respondent did not fully comply with the orders of this Tribunal. The respondent in his grievance application had not specifically prayed for direction to be promoted in the vacancy caused by the retirement of Nawab Jan, though in para; 20 of his grievance application it is mentioned that the respondents had requested the applicant to promote him in the vacancy caused by retirement of Nawab Jan w.e.f. 14-9-1987, but no action had so far been taken. Be that as it may, the fact remains that the vacancy caused by the retirement of Nawab Jan. had been filled on 4-1-1988, much before the order of this Tribunal dated 18-10-1990, which fact was not brought to the notice of this Tribunal by either party. Had this fact even brought to the notice of this Tribunal the Tribunal would not A have specified the vacancy against which the respondent was to be promoted unless the present incumbent was also made a party and heard. The fact is admitted that after the order of this Tribunal, the respondent was promoted as foreman on regular basis retrospectively from 7-11-1988 which shows, that his prayer for promotion contained in the grievance application has been met with.

7. There does not appear to be any element of mens rea in the actions taken by the applicant after the orders of this Tribunal.

8. In view of above in my opinion no offence is prima facie made out against the applicant to justify or call for the issuance of process against him. The Revision Application is allowed and impugned order of learned Labour Court is set aside.

H.B.T./1966/Lb. S Revision allowed.