Rao ZULFIQAR ALI KHAN Versus Messrs PAKISTAN STEEL

ORDER

This is an application, a/s 25‑A Industrial Relations Ordinance, filed by Mr. Zulfiqar, Ali ,Khan against Pakistan Steel Mill praying for the directions to pay the arrears of the additional increment w.e.f. 15‑11‑1983 to 31‑8 1986, and to maintain the seniority of Mr. Zulfiqar Ali Khan to the junior employees.

2. .Applicant is a permanent workman, in the position as Senior Assistant, in Pay Group‑VII: His initial appointment was as Junior Clerk, on 27‑5‑1975 and subsequently. As a Senior Clerk by promotion which was' followed by re-designation as Senior Assistant from 15‑11‑1983.

3. In the year 1982; there was settlement between C.B.A. and the management, where it was agreed that Committee will be appointed to remove those anamolies which have occurred and makes such recommendation 'to the management. Consequent to those recommendations, the management issued office order dated15‑11‑1983. This order was followed by another order dated 28-11‑1983 and 5-12‑1983, by suggesting the formula for, the grant of respective Pay Groups' increments, and revised Pay Scales. On 28‑1‑1985 the office order was issued, granting one increment followed by the letter dated 25‑8-1985, , suggesting new formula for the fixation of pay on point to point basis, with the recommendation to receive the arrears from 1‑7‑1985. By this new suggestion the pay of the Junior Assistants increased, as against the Senior Assistants and there was , anamoly. The representations were made Broad based policy, was framed to remove the anamolies for the aggrieved Senior Assistants. Applicant applied on 24‑9‑1986 for the. removal of ,this irregularity. This was approved but he was at last that this was recognized from 15‑11‑1983 and not from 1‑9‑1986. As aiedhsequence of` this non‑payment of the arrears that only, increment was .given,. from 1‑9‑1986 when other Assistants and Junior Assistants were given the arrears from 15‑11‑1983.

4. Respondent has filed written statement. The first objection is that the application is barred by limitation and also is not maintainable, for, no right is secured u/s'. 25‑A

5. On the facts, it' is pleaded that the Senior Assistants, have general seniority in the Corporation, like Clerical staff instead of Department Complex‑wise given to the lower categories of the workers. The respondent further explains that for the time scale promotion, in the next higher pay group, pay group, VI1 is the last one. There is no time scale promotion from pay Group‑VI1, to the next higher Pay Group. But there is promotion from Pay, Group‑VII to the higher Pay Group, if there is vacancy, in the higher post suitability, and merit. The direct appointed; Senior Assistants cannot be compared with the Senior Assistants who are promoted with the service in the lower Pay Group, as such the worker's have earned' their increments by virtue of service in' previous Pay Groups prior to the promotions as Senior Assistants. The respondent has also given further comparison that direct Senior Assistants appointee may be senior to promotee Senior Assistants, in Pay Group. But his salary may be lower than the promotee who has earned level of salary in his previous Pay Group.

6. The respondent has referred circular of 22‑9‑1986, that the pay of all the affected promotees who are senior Assistants was fixed by allowing them increments to offset the financial advantage as compared to Junior Assistants and placed in Pay, Group‑VII as a result of time scale promotion, after their regular promotion as Senior Assistants. Consequently they were given the ,benefit as ,a result, of re‑fixation of pay from 1‑9‑1986.

The documents to which applicant has referred is the letter dated 15th 'November; '1983; by which he wants to show clause 38 of the agreement, with C.B.A. under which the Committee was 'formed dated 25th October 1982; ,to remove the anamolies and produce the trade grade structure. In this it is also shown, that the grades 1 to 7 ,were ,replaced . by, Pay Group with the scales of technical cadre skilled, semi‑skilled and, un‑skilled workers. In the case of non‑technical, cadre, the designation which, was followed in the recruitment rules was adopted. The‑ revised rank structure of the clerical staff was fixed in Group‑1V and V and VII showing the scale It was further provided that the selection grade will be given or the basis oaf seniority and fitness. There is another reference of the letter dated 28th November, 1983, where, it was shown that in context of part 17 of the circular of 15th November, 1983, the pay of Assistants and Junior Assistants may .be, fixed in Pay Group IV And V from 15 th November, 1983', Which will 'not affect the date of increment. This is important document, Where it is not shown whether' they will get the regular increment or otherwise But it was clarified that they will continue to earn their annual increments on due dates as before. In other words by fixation in Pay Group their increments were not effective earlier accrued. Then there is a reference of the letter of 5th December, 1983 in the context of the reference of 28th November, 1981 to show that the pay of Junior Assistants and Assistants Whose scales of pay have been revised may be refixed revised `according, to the formula given in that Annexure (Annexure‑C). Then there is a reference of the letter of 28th January. It was decided that the pay of all Junior Assistants ant Assistants will be fixed by applying the principle of the fixation of pay on promotion to ensure that whose monetary benefit, in the revised scale. Is less than' one increment in the revised scale shall be entitled to` receive one increment in that scale, In other words, it is shown that the scale which was revised on 15-11‑1983 by which monetary benefit was fixed arid 'subsequently if the 'pay was fixed on promotion as indicated in Annexure-D and the pay on fixation in the revised scale of 15‑11‑1983, was less, he will be entitled to one increment.

8. Then there is, another letter of 25th August, 1985 by which previous orders were superseded as the Competent Authority decided that the pay of Junior Assistants and Assistants will be fixed on point to point basis Arrears will be, paid :from 1‑7‑1985. This Annexure‑A referred to those previous orders made under the agreement of 1989 with the CBA. Neither the petitioner came to challenge this order before, this Labour .Court of 'earlier commitments so for affecting the‑ workman despite the CBA'‑s commitment, nor the earlier orders were followed.

'9. The last document is the, notice of grievance, suggestion of anamoly in the Pay 'Scale, of Senior Assistants arid the letter of 22nd September, 1986 showing that the anamoly created in the Pay Scale of some 'Senior Assistants; drawing less pay than‑so me of the Assistants. in Pay Group. VII on account of time scale promotion, each affected Senior Assistant may be. Compensated by the award of additional ex‑gratia increment so that his basic pay exceeds the basic pay of recently promoted Assistant who is reported to have been superseded in pay. The compensation will be to off‑set the financial disadvantage what the Senior Assistant has suffered as compared to the recently promoted Assistant. The date of the payment of difference will be from 1st September 1986. Applications were invited for the removal of such anamoly.

10. The letter of 13th November, 1986 further made clarification that the pay of all the affected Senior Assistants is fixed as shown in column 15 of the statement by allowing them increments to off‑set the financial disadvantage, they have suffered as compared to the Assistants junior to them in service and placed them in Pay Group VII as a result of time scale promotion after their regular promotion as Senior Assistants. They will get the benefit as a result of re‑fixation of pay only from 1986. From this letter it appeared that the letter of 25th August, 1985 was not followed but new situation arose by letter of 22nd September, 1986 to remove the anamoly on account of time scale promotion which created grievance to Senior Assistants.

11. Rao Muzaffar Ali Khan has explained its position, and the grievance, in his representation made to the General Manager by citing the case of one Khursheed Alam who joined Pakistan Steel on 27‑1‑1976 as Junior Assistant and promoted to the position of Assistant from 1‑7‑1979 and given time scale promotion from 2‑7‑1984. By this his pay increased due to the revision of the Assistants Pay Scale on 15‑11‑1983 and 9‑1‑1984. He has shown that he was appointed earlier on 27‑5‑1975, as Junior Assistant and was promoted as Assistant from 9‑8‑1976 and promoted as Senior Assistant from 1st March, 1979, tie prayed for the removal of anamoly by referring to the photo copy of the Finance Division 0. M. No.F/5(5) IMP(1)/77 and prayed for fixation of pay from 15‑11‑1983 and 9‑1‑1984 by revising the upgradation of Assistants' Pay Scale. He has also referred one document showing the contrast of his case with case of Khursheed Ahmed that he was promoted on 1‑3‑1979 but Khursheed's promotion was deferred. From the chart he has further shown that pay fixation of Khursheed Ahmed was made on 6‑7‑1979 as Senior Clerk. But in his chart, the word pay fixation is not shown, although they have joined as Junior Clerk initially. Mr. Khursheed Ahmed has been shown to have received two promotions, one on 1‑7‑1979 but shown as referred with regard to date in Annexure‑E‑2 and second time scale promotion he has got on 2‑7‑1984. Rao Muzaffar Ali Khan has received promotion only on 1‑3‑1979 only once in his chart. There is no mention of time scale promotion. What he has desired that his pay be fixed from 15‑11‑1983 and 9‑1‑1984 whereas on 6‑7‑1979 Mr. Khursheed Ahmed's pay has been fixed as a Senior Clerk. In 1983 Mr. Zao Muzaffar Ali Khan is shown as Assistant P.G.V.V11. The point that will follow that on 1‑3‑1979 Mr. Rao Muzaffar is in Pay Group‑VII and Mr. Khursheed Ahmed received regular promotion but it is not clear as shown deferred and again got the time scale promotion on 2‑7‑1984 in Pay Group‑VII. The difference in the pay has started when on 9‑1‑1984 he was drawing 1045/‑ and Mr. Khursheed Ahmed 1105/‑ and on 15‑11‑1983 he was drawing 820/‑ as Senior Assistant and Khursheed Ahmed shown as Assistant in Group‑VI drawing 840/‑ more than the pay of Senior Assistant on the same date with a different pay Group, otherwise prior to this Mr. Rao Muzaffar Ali Khan was drawing more salary with increments than Khursheed Ahmed.

12. Mr. Yakoob counsel for the Steel Mill, in the argument notes has admitted the allowing of four increments but from 1‑9‑1986 as paid to Assistants and Junior Assistants. Secondly he has pleaded that by clause 54 of the agreement dated 31‑1‑1987, there is no anamoly. He has not appeared before the committee.

13. He has referred the following view points as under:‑

"The greed of the applicant is evident from the fact that 90 promotees Senior Assistants were allowed similar increments by memo dated 13‑11‑1986 w.e.f. 1‑9‑1986. His line of argument is that none has come before the Court except this person. What he emphasizes of clause 53 that the settlement includes Junior Assistants and Assistants does not include Senior Assistants. He has been given the ex‑gratia increment and no right accrues to him. What he explains that the increments allowed to the applicant were not under any settlement but on the assurance of C. B. A. which was oral assurance. He has also referred to case law of 1977 P L C page 236, 1974 P L C page 213 and referred the evidence of Steel Hill witness Mr. Hamid Pervez. He has also further referred that the agreement dated 23‑4‑1984 regarding cause of action accrued earlier cannot give him the right. He has referred to clause 54 of agreement dated 31‑1‑1987 to show that it was agreed that to resolve the irregularities, advisory committee will be formed with the name of Anamoly. He has particularly referred by underlining his legal approach that hundred of workers will follow the cases on this pretext that the Steel Mill, in two agreements assured to consider the case of anamoly and so their right is guaranteed, such cannot be the spirit.

14. Mr. Ch. Rasheed contended that the witness of the respondent has admitted in the cross‑examination that re‑fixation, upgradation, grant of increments, time scale promotions were under the settlement and it was guaranteed. He has referred clause No.76(B) agreement of 1984 to show that it was agreed that the fixation in the new grade will be carried out on point to point basis. It is correct that there was .no clause in the settlement that the fixation of pay under the upgradation is to be carried out on point to point basis. Mr. Ch: Rasheed Ahmed has however pointed with legal emphasis that the removal of anamoly under clause 17‑A of the settlement of 1984, stood incorporated in the subsequent settlement of 1986 in context of clause 95 read with clause 54 that the anamoly removal was guaranteed.

15. Regarding time limitation he has also overcome the limitation by asserting that anamoly was removed partially from 1‑9‑1986 instead of 15‑11‑1983 and the payment being made in December, 1986. The cause of action arose from the date of the payment of arrears and the notice dated 8‑2‑1987 is well within time.

16. Number of questions of law have arisen, namely the time limitation, what is the effect of the anamoly under the previous settlements and subsequently followed in the settlements, whether the pay was fixed by referring to circular of 15th November, 1983 in context of agreement of 1982, what was the sanctity attached? Whether .the previous orders superseded as shown in letter of 25th August, 1985 carry any legal meaning? Whether the case of Mr. Khursheed is distinguishable? Whether the time scale promotion upto Pay Group‑VII cannot be granted as there is no other group? Finally what is the effect of the agreement of 31-1-1987 with reference to the cause of action and riot produced before the Court? Whether the Anamoly Committee was of advisory mature and not binding on the management Whether the rules can supersede Standing Order's 3 arid 4 where it is said that Standing Orders can be modified by means of collective agreement and not otherwise. Provided no such agreement shall take away or diminish any‑ right or benefit. cannot be 'granted as there is' no other group Finally what is the effect' of the agreement" of 31‑1-1987 with reference' to the cause of action and riot produced before the Court? Whether' the Anamoly Committee was of advisory mature and not binding on the management? Whether the rules‑ can‑‑supersede Standing Order's 3 and 4 where it is said that Standing Orders can be modified .by means .of collective agreement and not otherwise. Provided no such agreement shall take away or diminish any right or benefit.

17. The case of Mr. Zulfiqar Ali Khan has certain distinguishing features, and .therefore the decision in the case of ,Rashid Ali Khan, in We service ‑matter is to, form the part .of , the record of this case also as a judgment of tile Court of law when it has discussed the effect of the settlements, and the‑documents which are brought in that case have been more of assistance in, this case also. The difficulty the Court faces that some documents are being produced by the respondent in one case and some are not produced in other case. For example what has been, stated in the arguments of the respondent that Anamoly Committee was made under clause 54 of the agreement dated. 31‑1‑1987 by, which the barrier between direct recruits of Senior. Assistants and promotees have been removed, only to the extent of awarding increments.

18. The main point of contest. In the petition that has been looked into there is no reference of the agreement of 31‑1‑1987, when the petition is filed on 13-4-1987 by, the applicant. Mr. Zulfiqar. This shows that applicant had the knowledge of this agreement 'but he wants decision under the latest agreement of 1988 which is from 23rd April, 1986 to 22nd April, 19887 referring to clause‑54, to be read with previous settlements and the circular of 1983. 'Why the Court has emphasized that decision Of Rashid Ali, also to be read in this case because that the Minutes of the Meeting and the finding of agreement of 1987 has been, made as a part of the record.

19. Briefly Clause‑54 is very clear that the' Anamoly Committee will be of advisory nature to remove irregularities and clause 51 speaks that every employee is given time scale promotion after five, years and therefore, no further discussion is necessary in that, clause. This was the actual language and the word used is "every Karkun Firstly What is the effect of that circular of 1983 which was issued under the agreements of 1982 regarding trade grade structures promotions and recruitment rules. Clause-17 which is to be applied in this case reads that the revised rank structure of the clerical staff will be as under and further provided that the pay of the existing incumbents will be fixed in Pay Group 1V and V namely Senior Assistants. Assistants and Junior Assistants thereby indicating that they will reach these groups of V, VI, V11, In other words what is to be said plainly that this privilege as per agreement was for the promoted persons from the lower groups and not of, those Senior Assistants already in Pay Group for whom there was executive position. It is, therefore, Mr. Zulfiqar Ali Khan who was also Junior Clerk and joined on 27-6-1975 and promoted as Senior. Clerk and then Assistant and Senior Assistant from 15‑11‑1983 is aggrieved that he should be given the entitlement of increments from 1983: He has become aggrieved and challenged the action that injustice, be removed. What he has said, he has said correctly in contrast to the case of one Khursheed Alam. It will be seen that he was promoted' from the lower grade and invokes the jurisdiction of the settlements, which have the legal effect, if the settlements have also the legal sanctities under the provisions of the Industrial Relations Ordinance. In other words, the Court concisely observed that the legal effect of settlements has not the same legal force if there is statutory provision regarding the rights to be secured and protected under sections 3 and 4 of the Standing Orders that the C. B. A. if has made agreements but it takes away the right or benefit available to the workman, that agreement to that extent shall be examined. Similarly the time limitation does not affect for the redress if those anamolies are not removed and have become again the spirit of the settlements time to time, for, otherwise the previous settlements will serve no purpose for the judicial ambitions. In other words, such peculiarities cannot be taken advantage by the respondent of this technical lapse that the redress is lost, because limitation operates. What is to be seen is, of the legal and a factual grievance for taking cognisance by the Labour Court, to advance, the remedy, for otherwise, the word "injustice" to be removed shall rest in a mind of the litigant and the Court as well, that justice has not been done. The Labour Court therefore, is of the view, that everything is to be seen in judicial perspective and what is said more that the respondent cannot unilaterally supersede the previous orders what is reflected in the letter of 25th August 1985, though copy is sent to the President C. B. A. who may have concurred. But sections 3 and 4 of the Standing Orders if protect the workman that he is affected, the Court of law will intervene.

20. So to be precise, if the increments have been given to affected Senior Assistants as shown in the letter of 22nd September, 1986 or to be paid. But whether are to be paid from 1986 as shown in the letter or from the date he has claimed.

21. The chart of Khursheed Alam shows in contrast that he was appointed after Mr. Zulfiqar Ali. His pay was fixed on 6‑7‑1979 but not of Mr. Zulfiqar Ali. He was given time scale promotions on 2‑7‑1984, whereas Mr. Zulfiqar Ali received promotion only once on 1‑3‑1979 and earned the increments and finally there was change in designation on 15‑11‑1983. Prior to this he has been given two ordinary promotion on 2‑8‑1976 and on 1‑3‑1979. No word has been used of time scale promotion as in the case of Mr. Khursheed Alam., who is drawing more pay on upgradation, from 15‑11‑1983.

22. Now what is the effect of the agreement what Mr. Yakoob has referred of 31‑1‑1987. Mr. Yakoob has made this statement that the case of the applicant was placed before the Anamoly Committee. It did not decide in his favour, for there was no anamoly.

23. What is important to be mentioned here that agreement of 1987 has not come before the Court or even was the cause of action. Firstly the anamoly is to be removed by the committee under the settlements but this does not mean that the Labour Court has no jurisdiction to sit and to give the opinion if the anamoly was not removed in terms of settlement of what the wrong interpretation made to show that there was no anamoly in light of circular of 1983 in case of Rashid All the effect of the agreement of 1987 has been discussed, and therefore, despite the arrangement made to remove the barrier between promotees and Senior Assistants regarding increments which is between them and this agreement was not the cause of action, the Labour Court is still of the opinion that the circular of 1983 of 15th November should be followed, with effect from the date, when the fixation of the pay group was the intention of the settlement that is from 15th November, 1983 and not from 1986. In the words of Mr. Hamid Pervez, this is also the position that the grades of the Junior Assistants and Assistants were revised from 15‑11‑1983 which is one of the reasons in difference of pay between Senior Assistants and Assistants. What Mr. Hamid Pervez further has said by referring to Annexure‑G comparing the case of Khursheed Alam that the management considered the humanitarian feelings and granted the benefit of increments to the applicant on the representation that there was difference of pay as to the junior people in grade as well as the length of service. He has also further stated that this decision was taken by the management without recommendation of the Anamoly Committee. If this statement is seen of Mr. Hamid Pervaz it finds that there was anamoly but it was not removed.

24. At the next place Mr. Ham id Pervez has also said that the Senior Assistants were allowed number of increments to off‑set the financial loss. These additional increments were given to off‑set the loss as compared to the Assistants who were junior. This difference of pay between Assistants and Senior Assistants was the result as a result of upgradation of Pay Group of Assistants effective from 15‑11‑1983 and further on time scale promotion.

25. With this background Mr. Zulfiqar has shown the grievance given in the Notice of Grievance in this manner:

"As a result of the fixation of pay of Assistants on ~ point to point basis I was left behind in pay by my juniors. I submitted application for removal of anamoly. It was proved that anamoly was created from 15‑11‑1983. My request was. considered and it was decided to grant number of ex‑gratia increments but he found that he was granted increment from 1‑9‑1986 instead of 15‑11‑1983."

26. In paragraph 8, he has said that agreement between Pakistan Steel Mill Management and C. B. A. which was to be effective from 23‑4‑1986 and announced by C.B.A. in General Body Meeting on 1‑2‑1987. This agreement as per clause‑53 all the Junior Assistants and Assistants were granted arrears of increment from 15‑11‑1983 but he was denied this entitlement.

27. So irrespective of the effect of the agreement of 1‑2‑1987 the pay would have been fixed as per circular of 15‑11‑1983 by granting increments and not from 1986.

28. But the important aspect which has come before this Court is that this agreement of 1‑2‑1987 of which the Steel Mill representative has also spoken in his arguments, which is not produced before this Court but in case of Rashid Ali it appears that Mr. Zulfiqar All has also relied on that agreement. The Labour .Court has been shown the agreement of 1986 whose date of enforcement is shown from 23rd April, 1986 to 22nd April, 1988. This is the first time Mr. Zulfiqar has said that C. B. A. announced the agreement of 23‑4‑1986 in General Body Meeting on 1‑2-1987. In other words, what the Court finds that Mr. Yakaob is also speaking of the same agreement of 1986 but this aspect of the announcement has not been shown in the petition. Petition only speaks of agreement of 1986 and what the Court finds in its preamble that agreement was accepted and approved to have the force from 23rd April, 1986 to 22nd April, 1988.

29. Even if this agreement of 1‑2‑1987, was the same agreement of 1986 whereas the respondent in the arguments has shown the agreement dated 31‑1‑1987, it is not known which agreement they are relying on whether new agreement has been made after agreement of 1986 or it has the same shape and first time announced on.1‑2‑1987 or it was an agreement dated 31‑1‑1987 what has been pointed by Mr. Yakoob.

30. However the Court has reached this conclusion that in the context of the agreement of. 1986 operative from 23rd April, 1986, clause 53 is very clear that the arrears of increments shall be paid from 15‑11‑1983. This is a term of the settlement and remains binding, to remove the anamoly what had accrued under the circular of 1983 and anamoly was not removed.

31. The Steel Mill representative has said that the notice of grievance is not according to law. This notice is dated 8‑2‑1987 (Annexure‑H). The question is when the cause of action arose. The petition is filed on 13‑4‑1987. The cause of action according to applicant, firstly arose on. 13‑11‑1986 when the payment was received in December, 1986 and on 8‑2‑1987 the petition was submitted. The petition shows it has been submitted on 13‑4‑1987. The applicant had sent the notice of grievance on 8‑2‑1987. He therefore speaks of the notice of grievance which is dated 8‑2‑1987. He has wrongly said that grievance petition was submitted on 8‑2‑1987. But what has been seen that in clause‑F he has said that agreement between Pakistan Steel Mill and CBA was announced on 1‑2‑1987. If this intervening event has taken place and the respondent itself has referred that some agreement has come on 31‑1‑1987 of which the Anamoly Committee was made under clause‑54, and his name was not found for the entitlement of the arrears the application is in time. Whether the Court follows the agreement of 1986, that is a different aspect but what has been relied upon by the respondent itself the limitation is. not affecting the petition.

32. In conclusion therefore, the pay which had been fixed of Rao Zulfiqar Ali Khan, on the basis of the circular of 15‑11‑1983, by granting increments is to be from that date and not from 1986. These will not be called as ex‑gratia increments, if he has established the right.

33. However the Court also refers the decision of Rashid Ali Khan and Mr. Anwar Qureshi, to be read with this decision, for these are announced prior to this case and these judgments refer the settlements and exhaustively deal with the sensitive questions of service matters and the view points of the counsel. These being the public documents now are referred as a decision to be read also with the case of Rao Zulfiqar Ali Khan, with the independent conclusion, arrived at in his case.

Application is allowed to that extent.

A.E./1214/Lb.S Application allowed partly.