NASEER AHMED NASEER Versus Messrs PAKISTAN STEEL
ORDER
Mr. Naseer Ahmed Naseer, Mr. Syed Anwar Zaman and Mr. Shakeel Ahmed Khan have filed, claim, against Pakistan Steel Mill that their seniority be fixed from 1‑3‑1979 as the Apparatus Operator and also to pay them arrears of pay due to change of their cadre from fitter to apparatus Operator.
2. They have filed the following grievance. They claim that they are working as apparatus Operators. They were recruited to undergo training for six months which was extended by four months more. They were posted in Pay Scale‑IV. When they completed one year's service they were given Scale No.V. On 20‑11‑1980 they were transferred from Erection Phase to Operational Phase. The designations were also‑ changed from fitter to Apparatus Operator. Respondent recruited certain new persons to undergo special training for one year and were designated as apparatus operators. Two out of many were put to the training in the department of applicants who were confirmed and the date of regularization has been shown as 27‑12‑1981 end 18‑12‑1981.
3. The office order was issued to remove the anomaly in the pay scale and also about the date of the appointment.
4. Applicants submitted separate applications in light of the office order. Their view point was accepted and they were allowed Pay Scale‑VI from 1‑3‑1979.
5. This seniority was accepted with the appropriate pay scale and also the time scale promotion from 2‑3‑1984, after receiving a Pay Scale No. VI from 1‑3‑1979 to 1‑3‑1984. Another order was issued to the disadvantage of the applicants. Management considered the matter and awarded them seniority from 1‑3‑1979. Finally applicants requested the Operational Head to re‑designate them as supervisor on the basis of seniority.
6. It was again surprise to the applicants that they were given the date of joining as 20‑11‑1980 instead of seniority from 1‑3‑1979.
7. They have challenged the order of 10‑4‑1986 as illegal. They filed appeal before the Steel Mill. They received no reply. Applicants pursued the remedy at departmental level by submitting applications, appeals and notice of grievance.
8. Respondent has contended that application is barred by time. Two persons referred M/s. Kifayatullah‑ and Abdul Razzak who were selected as special trainees on different terms and conditions. Their case is distinguishable. They have also referred to the earlier letters that those were based on misrepresentation and subsequently rectified. They have also contended that joint letter cannot be considered as notice of grievance because it is not according to law.
REASONS:
1. First reference has been made to letter of 7‑1‑1978 where the apprentices were appointed as fitters, in Grade‑II at Rs.250 per month, of the Pay Scale 250/15‑490 from 1-1-1978 and it was also in terms and conditions that after completion of one year's service they will be entitled .to Pay Scale 310/25/560. The list shows 34 persons which shows the name of Shakeel Ahmad only, There is another letter of 20‑1‑1979 (A‑1) that as per terms and conditions and completing of one year's service the following fitters are allowed Rs.310 in the scale of 310‑25‑560 with effect from 1‑1‑1979. The names of Shakeel Ahmad, Anwar Zaman and Naseer Ahmed appear. There is third letter of 20th November 1980 which shows the posting and transfers against the Operational phase. They are shown apparatus Operators. Fourth document is A/4 dated 4th September, 1984 which are the decisions of the Anomaly Committee. Paragraph 9 speaks of foreman.
2. 5th letter is of 23‑4‑1985. This is request for removing anomaly in respect of scales allowed giving the examples of Abdul Razzak and Kifayatullah who got the greater scale.
3. There is 6th letter dated 13th June, 1985. This is explanation of the management that those allowed the scale were given training for longer duration.
4. There is seventh letter dated 15th October, 1985 that Mr. Naseer Ahmed, Mr. Shakeel Ahmed and Mr. Syed Anwar Zaman were given the scale of 350/25 (VF) from 1‑3‑1979 (A‑7).
5. There is 8th letter which is a decision giving the pay group‑VI to these three persons. In that the date of regularization is shown 1‑3‑1979.
6. There is 9th letter dated 3rd December, 1985 changing the decision that pay is re‑fixed from 20‑11‑1981 contrary to the decision taken in letter of 2nd December, 1985 but the date is changed which is very significant.
7. Then follow other letters. There is application of Naseer Ahmed dated 15‑12‑1985 as a protest. The next letter follows dated 26‑1‑1986 showing the final intention that previous scale given from 1‑3‑1979 of 350 may be treated as cancelled. Thereafter, there is application of Mr. Anwar Zaman to be re‑designated as supervisor. There is letter of 14th April, 1986 that he will be re‑designated as supervisor when the vacancy arises. There is letter of 18th April, 1986 that these three employees who joined as apparatus Operators to count seniority from 20‑11‑1980 only. There is another application of Naseer Ahmed Naseer, Anwar Zaman and Shakeel Ahmad in the form of appeal dated 14‑5‑1986. Final is the notice of grievance signed by all three applicants, R/1, R/2 and R/3 show the appointment orders of Muhammad Rafique including the memorandum of regularization of Abdul Razzak and Kifayatullah showing their scale of pay 480 and date of regularization 27‑12‑1981 and 18‑12‑1981 in the case of Abdul Razzak. This memorandum speaks of special training but only one year training. Finally there is R/4 which are the rules of promotion where the criteria and conditions for promotion and seniority are the guidelines.
REASONS:
1. In this case of seniority Mr. Naseer Ahmed, Syed Anwar Zaman and Shakeel Ahmed, have asked for two reliefs. They have claimed the seniority from 1‑3‑1979. Secondly the difference of the arrears of pay.
2. This is an admitted position that they were appointed as apparatus operators. They went under training for six months which was extended by four months more. After training they were posted in Pay Scale‑IV. When they completed one year's service they were given Pay Scale‑V.
3. On 20‑11‑1980 they were transferred from Erection Phase to operational phase. Their designation was changed from Fitter to Apparatus Operator in the same pay scale. Subsequently new persons were recruited. They were given one year's training. They were called as special trainees. They were regularized on 27‑12‑1981. They went before the authorities to remove the anomaly. The applicants were given Pay Scale‑VI from 1‑3‑1979 and their seniority was acknowledged and they were also given the time scale promotion from 2‑3‑1984. The management again reconsidered the matter. They changed the previous decision. They were given the seniority from the date of joining on 20‑11‑1980.
4. Ch. Rasheed Ahmed has taken the view of certain rules which are followed in the Steel Mill. His criticism is mainly directed, that firstly the rules of which the reference is made in the Annexure‑R/4 are not of statutory character, but also has emphasized on rule 7 of Part‑III which according to the Steel Mill management if is made by them the rule 7 has not been properly followed.
5. These rules are called Pakistan Steel Workmen Promotion Rules for regular union employees. "These shall come into force from the date of the notification." These rules supersede all previous orders, instructions on the subject.
6. In other words, to put it more simply if these rules have not been challenged or reversed, shall presently follow between both the workmen and the employer for giving, the legal effect. But the difficulty is felt, whenever such documents of importance are produced before the Court of law by the witness who represents, does not attest the document, it bears no signature of an authority concerned but a simple photostat copy as to where the rules have finally ended. In other words, incomplete documents before the Court of law, create lot of complications. But if this document on the basis of which both parties to the case have used this document with full sense of responsibility, as to the rules governing the structure, the Court derives the assistance.
7. The question before this Court is of the seniority and the pay scale. It is, therefore, in view of the contention of Ch. Rasheed Ahmad reference is made to rule 7. It reads as under:
"Seniority will count from the date of appointment in the Corporation or promotion to a particular grade. In the event of transfer from one cadre to the other at the request of the individual, the seniority in that particular cadre will count from the date of joining the cadre. In the case of those appointed as trainees probationers, seniority will be reckoned from the date of regularization.
There is a note to this effect that in case of delay in holding the DPC on any reason other than non‑availability of the post, ante‑date of seniority without effect on pay and allowances will be allowed to compensate than those promoted on normal case.
Rule 8 says that the employees will be eligible for promotion within their own trade. Management may approve promotion of an employee against the cadre other than his own in the interest of Corporation. In such event the seniority of employee from one sub‑cadre to other will not, be put to his disadvantage. Rule 9 deals with the promotion under Group system by giving time scale promotion on completion of five years service. Rule 10 speaks of the seniority, fitness and other qualifications of A.C.Rs. etc. as the criteria. Rule 11 is a promotion against vacancies on completion of three years satisfactory service on the basis of seniority and fitness. Rule 12 deals with the Departmental Promotion Committee and its discretion of recommendatory nature. Rule 13 deals with qualification. Rule14 deals with the accelerated promotions. Rule 15 deals with the selection grade. Rule 16 deals with the fixation of the pay. Rule 17 gives the power to the Board to modify or alter rules with the consultation of C. B. A. "
8. The obvious purport of the rules is that any alteration made in the rules is with the concurrence of the C. B. A. If these rules have not been altered, presently the rules follow.
9. Basically the natural rule should be the seniority should always be given to the person who joins first in time, to be considered from the date of appointment. If the rules otherwise prescribed are followed by the concurrence between both the parties those rules should follow unless altered, modified. In this respect reference to rule 7 has been rightly invoked by Ch. Rasheed Ahmed that the management itself has not followed its sanctity, if it is provided that if person is transferred from one cadre to the other at the request of the individual the seniority in that particular cadre will count from the date of joining the cadre.
10. The main case is that these applicants originally were the operators. They went through training. Thereafter, they were transferred on 20‑11‑1980 from Erection Phase to Operational Phase. The memorandum dated 7‑1‑1978 has shown the appointment of Mr. Shakeel Ahmed as Fitter. On 20th January, 1979 names of Shakeel Ahmed, Anwar Zaman and Naseer Ahmad are also shown as fitters and allowed the scale of 310/25/560 from 1‑.1‑1979. This was the initial appointment. Subsequently the postings and transfers were ordered against the Operational Phase Establishment dated 20th November, 1980. In this memorandum the names of Mr. Shakeel Ahmed, Mr. Naseer Ahmed and Mr. Anwar Zaman are shown as the apparatus Operators. There is also minutes of the meeting of the Anomaly Committee of 4th September, 1984 where in the case of foremen Anomaly Committee observed that those individuals who had applied for the post of foremen as Departmental candidates and were selected they joined in October 1981 as fresh appointees. Their pay was fixed at Rs.800. Number of juniors were promoted on 3‑1‑1982 and their pay was fixed at Rs.1,100. There is wide difference. The anomaly exists in the case of Anwari Khan Soori who was appointed on 27‑9‑1983 and those appointed on 4‑4‑1984 after the C.B.A. agreement.
11. Following these minutes these applicants had also made the representation that they joined in 1977 as Artisan. After training of 10 months they were allowed the scale of. Rs.250. After service of one year they were given scale of 310. When special training scheme was introduced the trainees were allowed the scale of 480, namely Abdul Razzak and Mr. Kifayatullah. They, therefore, felt the discrimination because they were early in the job. The request was rejected outright that because they were given a longer training they were given the higher scale.
12. Air Commodore Mr. Athar Hussain who was the General Manager A & P considered the case of these three applicants on 15‑10‑1985 taking the period of training from 22‑2‑1977 to 28‑2‑1979. These applicants were allowed the scale of 350/25, with effect from 1‑3‑1979. Then followed another memorandum of 8th December, 1985 where the Central Administration finally gave the decision of giving them pay Group‑VI after completing training from 28‑2‑1977 to, 28‑2‑1979. Similarly scale promotion was amended to be read as 2‑3‑1984 from pay group V to pay group‑VI.
13. This is a significant document further followed by another significant document where the pay of these applicants was revised from 20‑11‑1981. This was protested strongly by Annexure A‑8 by Naseer Ahmed. This Annexure A/8 shows the date of 2nd December and the second memo. shows the date of 3rd December. Surprisingly the 2nd December has been shown 8th December as the date of issue. There is no consistency. Thereafter, the memo of 21‑6‑1986 is the final decision of the Central Administration. It reads that the following operators are allowed the scale of 350/25/700 (pay Group‑VI) from 1‑3‑1979, the memo of even number dated 3‑12‑1985 be treated as cancelled. Then comes the letter of 10th April, 1986 where the General Manager A&P Mr. Qureshi writes as under:
"Three employees joined apparatus operator on 20‑11‑1980. They will count their seniority in this grade from this date only."
14. It will be seen that the pay group VI which was to be revised from 20‑11‑1981 subsequently was cancelled. The position returned that these applicants will be allowed the scale of 350 from 1‑3‑1979. The period of training was excluded.
15. Another aspect which has given the grievance to the applicants is that of seniority that why their seniority is considered from 20‑11‑1980 when they were regularized in 1979. The learned counsel Ch. Rasheed Ahmed has rightly contended that unless the particular employee requests, in view of rule 7 from one cadre to other, his seniority cannot be disturbed. The Court has yet to see the written commitment of these applicants that they took the voluntary choice to give up their earlier seniority after their posting in the Operational phase. The decision of the Central Administration revoking the earlier orders is not supported by the reasons to remove this anomaly based in the context of the rules, which they have framed. There are cases where period of training is included. There are cases where training period is not included. The seniority is the vested right of the employee. Before his seniority is disturbed he should have been heard, whether he exercised the choice.
16. Sections 3 and 4 of the Standing Orders Ordinance provide that in every Industrial or Commercial Establishment conditions of employment of workers shall be regulated in accordance with the Standing Orders. The Standing Orders may be modified by means of collective agreement but no such agreement shall have the effect of taking away right or benefit available to the workmen.
17. The Court also refers in this context the state of the mind of the respondent witness what he has said:
"He has not been given seniority because of terms and conditions. I see the Annexure‑A/1. There is no mention of the terms and conditions from which the seniority of applicants are followed. "
18. The witness further states:
I see Annexure A/2 at page 9 and see serial Nos.233, 237 and 242 to 251. By designation they are in same category. They are in the same category as these applicants. These applicants were given Pay Scale VI from 1‑3‑1979. These 15 people were given seniority from 1‑1‑1979 in Pay Scale‑V. I see Annexure‑A/3 according to which the date of pay scale is the same."
19. Consequently the unilateral decision of the Central Administration revoking the earlier order is not sustainable in view of rule 7. The evidence of the respondent's witness shows that al decision which they have taken can best be described what the following yardstick has been applied by them in this manner. What the witness says:
"By designation applicants and other 15 persons are the same, but the Pay Group is different in the existing pay group. Pay Group is the criteria. Applicants are given seniority, from the date of joining as apparatus operators. I produce the rule No.7. All mentioned in Annexure‑A/2 are transferred to the Operational phase on the same date. applicants are the exceptions in respect of seniority. All others have been given seniority from the date of joining."
20. The significant part is further summed up in these words, what the witness reflects his intention.
"The applicants did not request to be designated as apparatus operators. It is not correct that we have violated rule and withdrawn the seniority on the pressure of the rival union."
21. By their own statement, the view of Mr. Rasheed Ahmed is fully supported that whenever transfer takes place from one cadre to other, the consent of the individual is to be obtained, foregoing the seniority of the earlier cadre which admittedly there is no consent even in their own saying.
22. Regarding another aspect of the special training that they were appointed on regular basis on 7th April, 1982 cannot affect the seniority of the employee who is first in the job in his cadre and earned the merit by promotion in the next cadre. Inter se seniority may be different in the upper cadre of promotion, but nevertheless the first seniority to which he has gained the promotion must rank as the first seniority.
23. The contention of learned counsel Ch. Rasheed Ahmed, the Court fully supports which is based on justice and equity.
24. In the result the applicants are entitled to claim seniority from 1‑3‑1979 as given to them by the memorandum of 26‑1‑1986 and15th. October, 1985. The same is upheld. They will also be entitled to arrears on the basis of calculation in respect of the benefits accrued to them.
25. However, the Court may also add that although the rules provide that they were regularized from 1‑3‑1979 but generally the seniority, should be, from' the date of appointment because it has also come in some cases, that period of training has not been included. But in some cases it has been included. There is no uniformity but as the rules have been quoted and the applicants are satisfied of the seniority from 1‑3‑1979 and the rule 7 also provides that in the case of trainees, seniority is to be reckoned from the date of regularization. The position remains that they can claim seniority from 1‑3‑1979 which they themselves have accepted.
26. Finally the objection has come, that application is barred by time. Application is filed in the Court on 20‑7‑1986. Applicants filed appeal on 14‑5‑1986 followed by grievance notice on 1‑7‑1986. The employer did not communicate reply to the notice of grievance. If 20‑7‑1986 is taken as a time limitation, the notice of grievance immediately after filing appeal on 14‑5‑1986 is within three months' time of the cause of action and therefore the application is within time for the redress of grievance before the Labour Court under section 25‑A I.R.O. The application is not timebarred to call for interference.
27. Another legal objection has come, that to claim seniority is not the right, secured to attract the application of section 25‑A for the redress of the grievance. The contention is falacious Sections 3 and 4 of the Standing Orders Ordinance relate to the terms and conditions of the employees guaranteed under the Ordinance. Therefore, any violation of such right under the law applicable to the workmen becomes redress able wrong to attract the jurisdiction of the Labour Court for the purpose of advancing remedy.
28. In the result the application is allowed. The arrears if due as a result of this disadvantage when the seniority is fixed from 1‑3‑1979 be deposited in the Court within one month from the date of this order.
Order accordingly.
A.E./1217/Lb.S ??????????????????????????????????????????????????????????????????????????????????? Application allowed.