MUHAMMAD ANWAR QURESHI Versus Messrs PAKISTAN STEEL
ORDER
This is case under section 25‑A of the Industrial Relation: Ordinance 1969, against Pakistan Steel Mill for the relief, the applicant has asked for, to give the directions to the respondent Steel Mill to grant and extend, the benefit of policy, dated 15‑11‑1983, and remove the anomaly created by the office order dated 22‑9‑1986 and to award increment, what is given to other employees under the office order dated 13‑11‑1986.
2. Applicant is a permanent workman, taken as the Senior Assistant, by virtue of appointment‑in Pay Groups‑VII.
3. Junior Assistants were appointed in Pay Group‑IV, Assistants were appointed in Pay Group‑V and Senior Assistants were appointed in Pay Group‑VII. This arrangement continued till 15‑11‑1983, when the Pay Group‑IV and V were raised to V and VI, and these three categories finally came to be known in Pay Group‑V, VI and VII.
4. What is the grievance of applicant, which he has so summarized, `that the respondent did not follow the time scale promotion on completion of five years service, and good performance in each Pay Group, with the result that applicant under Group‑VI1 suffered the loss and also his increments.
5. When the respondent found, that the policy is not being followed on the sound lines, they invited applications to remove the anomaly by referring the example of the Assistants who were drawing pay more than them. Applicant submitted application referring the case of Syed Tanzeem Ali Zaidi who was shown, as Junior Clerk and then re‑designated as Junior Assistant and subsequently promoted to Assistant and finally came in Pay Group‑VII after enjoying the benefit of time scale promotion. The applicant also has given the comparison of Mr. Tanzeem Ali Zaidi that applicant is drawing the basic pay Rs.1,145 and Mr. Zaidi is receiving 1,345.
6. However, applicant has this grievance that the respondent in order to remove the anomaly, recommended the grant of time scale promotion but in the shape of exgratia increment. Benefit of increment was given to promotees but benefit was denied to direct recruits in Pay Group‑VII. It is, therefore, the applicant has grievance that the non‑awarding of time scale promotion is the cause of grievance and the applicant has suffered the loss due to lesser pay.
7. Respondent has filed the written statement, and contended that applicant, has no right under the law, settlement or award and, is affected by time limitation. On the factual aspect, it is pleaded, that the Senior Assistants have general seniority instead of departmentwise seniority given to the lower staff. There is no time scale promotion from Pay Group VII to next higher Pay Group. But promotion from Pay Group‑VII to the higher group depends on vacancy, in the higher post, on the basis of suitability on merits. The direct Senior Assistants cannot be compared with the Senior Assistants who are promoted and have put up a long service in their Pay Group, and earned the increments. The Senior Assistants as direct recruits may be senior but their salary may be less than promotees who have put up long service. However, the respondent contends that the respondent despite this position of law, issued; the circular and to give increment, to the affected persons to offset financial disadvantage, and placing them in Pay Group‑VII as a result of time scale promotion after their regular promotion. They were allowed the re‑fixation of pay from 1‑9‑1986 by the benefit they have to receive to offset the financial disadvantage. Respondent has made further clarification that the circular dated 22‑9‑1986 was issued and the pay of all the affected promotees Senior Assistants was fixed by allowing them increment to offset the financial disadvantage as compared to the Assistant Juniors to them in service and place in Pay Group VII as a result of time scale promotion after Weir regular promotion as Senior Assistants.
Following are the points for determination:
(1) ??????? Whether the applicant was a1So entitled to the benefit of increment when the position of the promotee Senior Assistants and direct appointees was same in Pay Group‑VII for the entitlement of increments?
(2) ??????? Whether the Senior Assistants who are direct appointees could not be compared with the promotee Senior Assistants, with the long service and the increment earned showed the more salary than the senior direct appointees and, in no way discriminatory?
(3) ??????? Whether the time scale promotion on the completion of five years service was followed in case of Senior Assistants under the rules and settlement?
(4) ??????? Whether the Anomaly Committee was constituted under the settlement with the approval of union and the management and agreed, in principle that time scale promotion be followed?
(5) ??????? Whether the Anomaly Committee gave the finding of ex‑gratis recommending to the management to be paid to the affected persons, and what was the legal position of ex‑gratis when the committee had given the recommendation that time scale promotion benefit be given to the affected persons?
(6) ??????? Whether the finding of the Anomaly Committee was of recommendatory nature and how for it was binding on management in the context of settlements and rules?
(7) ??????? What are the rules of the respondent with regard to the service structure of Senior Assistants by promotion and direct appointments with regard to time scales promotion and the position of different basic scale in each case?
(8) ??????? Whether application is time‑barred?
REASONS:
1. Decision of this case was deferred for, the case of another direct appointee Mr. Rashid .Ali, also raised the identical questions of law, the same settlements and the circulars. It is, therefore, the decision of the case of Rashid Ali, which is also announced at one time forms also the basis of this case, being the decision of the Court of law. Why the difficulty is felt that in the case of service matters, in some case full documents are produced and in other case full documents are not produced. The case being of its own nature where circular of 15th. November, 1983 under agreement of 1982 is placed with other settlement of 1988 which is said to be from 23rd April, 1988 as the last settlement. But there are other settlements of 1984 which are not produced in this case. This settlement of which this Court speaks clearly provides that final agreement was approved from 23rd April, 1986 to 22nd April, 1988.
2. So, the decision, in the case of Rashid Ali has discussed the entire aspect of law and also assistance in this case. This is also case of direct appointee in Pay Group‑VII. The case of Mr. Rashid Ali is also the same that he was direct appointee, in the same Pay Group.
3. After going through the settlements the Labour Court is of the opinion that circular of 15th November, 1983 under the agreement of 1982 was important document, by which it was clarified, that in addition to the normal promotions against vacancies time scale promotions will be made in all unionized categories from Pay Groups‑I to VII on completion of five years service and good performance in each pay group and then there are qualifications that those who are held against vacancies in Pay Group‑VII will be designated as supervisors, others will continue to be called skilled workers but given Pay Group‑VII till they are absorbed against clear vacancies. In this circular it was further provided that the revised rank structure of the clerical staff will be as under, showing that the pay of existing incumbents will be fixed at appropriate stage in Pay Groups IV and V, in category Senior Assistants, Assistants and Junior Assistants.
4. From this circular, it is prominently clear, that this privilege was given to the Departmental Promotees and not to those direct appointees already in Pay Group VII who were to be promoted against the higher position because there was no Pay Group above. The subsequent settlements also incorporated, the same provision of anomaly to be removed if not redressed and regarding time scales promotion Article 51 remained, the same commitment regarding time scale and, therefore, no further discussion was found on this subject. In other words it is understood that time scale promotion, was from the lower grade upto the last pay group for, the demand is explanatory in Article 51, that the employee who has reached his scale he should be moved over. In other words, the already Senior Assistants, had reached that Pay Group and for that above group was of the higher position of executive or to say an officer, on the regular promotion on the basis of good performance. This is the most important aspect, that good performance was the pre‑requisite condition. The language of the normal promotion and of the time scale promotion was basically the same illustrated in clause 11 of Annexure‑C dated 15th November, 1983. So, in the view of the Labour Court the increase of salary of the Departmental Promotee as against the direct Senior Assistant cannot be the criteria to judge why his salary is more, if he has earned the promotion and time scale promotion, with the increments when the Senior Assistants by direct appointment are already in Pay Group and only to wait, for the higher position to remove the inequity by the higher pay. What they have to follow is the spirit of the agreements, and the circular. If the anomaly was not redressed and incorroborated again in subsequent settlement, this is also no defence, that the limitation comes in the way after the expiry of a particualr settlement, for otherwise if particular right is created under the particular settlement with the concurrence of the C.B.A. that anomaly is to be removed. It is no defence also that there was no anomaly in the case of Senior Assistants by direct appointment already in Pay Group‑VII. What the Court of law takes the view that every employee has right to get the declaration, whether the right has accrued to him or not.
5. Similar is the case that Anomaly Committees are of advisory nature but if the committees are formed under the settlements, their sanctity of the finding is not lost.
6. What has happened in this case is that on 25‑7‑1987 Mr. Muhammad Yakoob made the statement before the Court of law that applicant is satisfied with the decision of the committee and they are working out figures to make the payment. On this statement, in the presence of the parties, Court of law passed the order and put up the matter to 25‑8‑1987. In case of Rashid Ali also. Exh. R/2 was brought which is also the Annexure‑F in the file of Mr. Anwar Qureshi to which the statement of Mr. Yakoob was made concerning Mr. Qureshi but followed to Rashid Ali, Maroof Ahmad and Shafiq Ghauri. This R/2 on the basis of which statement was made was in this language:
"Your case of anomaly was taken up by the Anomaly Committee constituted under the clause 54 of the agreement dated 31‑1‑1987, the competent authority is inclined to accept the recommendation of the committee provided same is accepted by you if you withdraw pending cases."
7. With this document was attached the minutes of the meeting under clause 54 of C.B.A. agreement dated 31‑1‑1987, held on 23‑6‑1987 and 29‑6‑1987. It was clarified that there is no distinction between direct recruits and promotees in this regard and the committee has agreed to compensate the loss suffered by them in the fixation of pay on the same principle applied vide circular dated 22‑9‑1986. Regarding time scale promotion it was cleared that their case is being considered for the higher grade.
8. What happened that no acceptance was communicated. No payment was made in view of Mr. Yakoob's statement and the case is fixed for Court's decision. Certain words have come for discussion. What is the word inclination. Why the word ex gratia is used? Whether the approval of the Chairman is necessary as against the Managing Director A & P who placed the offer on behalf of the competent authority. In the first place what the Court is of the view that this agreement of 31‑1‑1987 has not been referred in the petitions what has been referred of the settlements of 1986 which was to be effective from 23rd April, 1986 to 22nd April, 1988. None of the parties has been clear under which cause anomaly committee was created. But prominently it is shown that it was under clause 54 of 31‑1‑1987. There is another case also before this Court announced at the same time of Departmental Promotee regarding increments of Mr. Rao Zulfiqar Ali who has also given the different date that when the agreement was announced by C.B.A. He has made the reference in his notice of grievance. The dates have differed.
9. Mr. Yakoob also in his memo. of arguments has been referring the agreement of 31‑1‑1987. In other words, whether this is an agreement of 1986 or it is a separate agreement. It will also be seen that Ch. Rashid Ahmed has also referred to Annexure‑F regarding admission of the respondent, advancing this argument that the respondent have admitted the liability as to the payment of arrears. The Labour Court is of the view that this agreement was not the cause of action of the petition. What has happened that this has come during the pendency of the case and the same treatment has been given of paying the exgratia increment to the direct Senior Assistants like promotees to maintain the equity. But whether this offer is binding because the days have passed. What the Court repeats that any compulsion for withdrawing litigation though may be sincerely made with this spirit of compromise. But no employee can be compelled to withdraw the cases or not to go in litigation is against public policy. Nevertheless the spirit of conciliation if it 'was there ‑than that commitment is to be honoured and not to take refuge as a condition of the withdrawal of cases. Normally after the grievance is redressed person withdraws the case. Secondly the Court is of this view that if the Court holds under the previous settlements that they were already in Pay Group‑VII and there was no such anomaly after the Court declared, they cannot claim increments as a right but on the goodwill of the management which has taken the decision on its own, otherwise under the previous settlement they have to wait for promotion for higher position to remove inequities. The case of Rao Zulfiqar Ali Khan is distinguishable for, which was the right of a person as a promotee which was denied. Similarly the word Chairman is legally significant. He is the highest authority for the purpose of Steel Mill and works through delegation of powers for running the affairs. Therefore, if the Managing Director has said that competent authority is inclined to accept, it is sufficient reflection of his intention, for the word inclination can be given no other interpretation in the ordinary sense, where other sense will be that he has the tendency to accept the finding of the committee and to honour it. Further Mr. Muhammad Yakoob who has made the statement before the Court of law it carries great responsibility. When he made the statement, he must have consulted with the officers through legal process of his own department and to have made the statement before the Court of law, of which the order was passed within his sense of hearing. However, the Labour Court is of the view that in view of the previous settlements, what the view has been taken this commitment of exgratia is on the basis of the new agreement, otherwise they had to wait for promotion to the higher grade. Whether they have to adjust those increments at the time if they are promoted in higher post which will also increase their pay, will be question of fact again for adjudication for taking no double benefit.
10. In conclusion the case of Mr. S. Rashid Ali and Anwar Qureshi is same. Both are Senior Assistants already in Pay Group‑VII. The Court has taken the view in case of Rashid Ali that in previous settlements from 1982 to 1986 of which they have given the reference of the circular of 1983(15‑11‑1983) , what the Labour Court feels after reading the settlement, and the circular in question, there was no anomaly. The circular only referred the fixation of pay for promotees because the already Senior Assistants in Pay Group‑VII were entitled to promotion in higher rank which would have removed the disparity. His promotion was not given, firstly it is not the right. But if the settlement gave them right for the consideration above Group‑VII they would have come for declaration. So, there was no anomaly. But in this case and in case of Rashid Ali, the new situation developed that Mr. Yakoob made the reference of new agreement of 1987 in his note of arguments and his statement in the Court R/1 that as per this agreement they have removed the barrier between already Senior Assistants and the promotees regarding exgratia increments to be given on the same principle. But they have not honoured the commitment, for, taking the protection of the negative condition that the significance of the acceptance of the decision of the management and by the applicant at the tine limitation subject to the withdrawal A of the cases. Firstly, no such negative condition of the withdrawal of cases can be allowed by the Court of law which is against the spirit of the administration of justice that every person whether be at the lower tyre or above has the jurisdiction to come before the Court of law for the redress of grievance. Whether the grievance be real or ‑wrong it is for the Court of law to decide. Equally if the condition is between the management and the applicant, there is also no such compulsion between them. But this negative condition to be brought before the Court, for the legal enforcement, what the Court of law believes that it will be against public policy. No restraint can be placed on any person to go in the Court of law, which is the better judge to see the shortcomings or niceties.
11. In the result if they have made the commitment and made the reference of this agreement during the pendency of the case and emphasizing in the memo. of arguments both in case of Rashid Ali and this case, they have to honour this commitment. This agreement of 1987, of which they have made the reference of R/3 and R/4 and the statement of Mr. Yakoob, it appears that though the settlement was not referred in the petitions, the reference was made of agreements upto 1986 where the date of the commencement and the enforcement is given, obviously the management, wanted the decision on these documents as well. The Court, therefore, concludes what it follows and understands from these settlements, previously, there was no anomaly but they themselves have allowed the exgratia increments to make themselves binding. This is obligation and a rule of estoppel against them. This negative condition will not be given effect by the Court. But the clarification is given to assist them that automatic withdrawal would have taken place after their grievance was removed by them.
The application is allowed in view of the above observations that he should be given exgratia increments as committed. The case of Mr. Rashid Ali also be read in this case, so far Court's decision is concerned. Because number of documents have been produced in respect of the service matter of the same nature, of the same points involved for the convenience references of the Annexures, settlements, circular. These Annexures R/3 and R/4 were not produced in this case, therefore, difficulty was being felt to refer the decision of Rashid Ali which is being announced first. This being the public document, the Court can read in this case also in the administration of justice.
13. What is the effect of the statement of Mr. Yakoob, dated 25‑7‑1987, the Court has already referred this aspect in case of Mr. Rashid Ali. What was statement before the Court of law was recorded, which has the great legal sanctity and, much can be said, of non?compliance, by the concerned department. Application is also in time if the agreement of 1987 is also made the basis by the Steel Mill itself .
A. E./1213/Lb.S ?????????????????????????????????????????????????????????????????????????????????? Application allowed.