HABIB BANK LTD., KARACHI Versus NATIONAL INDUSTRIAL RELATIONS COMMISSION, ISLAMABAD
NAZIR AHMAD BHATTI, J.‑ ‑This constitutional petition filed by Habib Bank and others petitioners against National Industrial Relations Commission and others respondents under Article 199 of the Constitution of the Islamic Republic of Pakistan calls in question the judgment dated 3‑12‑1980 of the learned respondent No.1 whereby the appeal against the judgment dated 21‑1‑1980 of the Senior Member of the respondent No.1 was dismissed.
2. After the nationalization of the Commercial Banks and financial institutions the question of framing of policy for promotion of clerical staff as officers came under consideration of the Federal Government and certain decisions were taken which were conveyed to the Chairman of the Banking Council by the Ministry of Finance Government of Pakistan through letter dated 5‑4‑1978, according to which selection of clerical staff for promotion to the lower rank officers was to be made on the basis of a written test by a Selection Committee consisting of a Member of the Executive Board, a Regional Head and a Zonal Head and officials possessed of sufficient grounding and experience were to be considered for promotion. This policy decision of the Federal Government was enforced by the management of the Habib Bank Ltd. but the Habib Bank Employees Union of Abbottabad Zone considering the said decision as against the terms and conditions of service granted under the award of the Wage Commission constituted in 1974 challenged the said decision first before the Labour Court Abbottabad and subsequently also filed a petition before the learned respondent No.1 under section 34 of the Industrial Relations Ordinance, 1969 (hereinafter referred to as the Ordinance). The learned respondent No.1 also transferred to itself the petition which was pending before the Labour Court Abbottabad and the petition filed under section 34 was heard by the learned Senior Member of the respondent No.1 who vide judgment dated 21‑1‑1980 accepted the petition and declared the aforesaid policy decision of the Federal Government as invalid. The petitioners herein filed an appeal before the learned respondent No.1 but the same was also dismissed on 3‑12‑1980. Hence the present petition.
3. The Federal Government has been empowered under section 38‑A of the Ordinance to constitute a Wage Commissiol1, whenever it so considers necessary for fixing rates of wages and determining the other terms and conditions of service in respect of the workers of a bank or such other workers as the Federal Government may specify. In exercise of this power the Federal Government by a notification dated 7‑11‑1974 constituted a Wage Commission for Banks and Financial Institutions (hereinafter referred to as the "First Wage Commission") about which a resolution had already been passed by the Federal Government on 28‑5‑1974 and the Commission had started its work. The First Wage Commission submitted its report to the Federal Government which was published in the official Gazette on 9‑6‑1975 and was made enforceable with effect from 1‑7‑1975. The First Wage Commission was given some terms of reference inclusive of some terms of reference about the criteria to be followed by Banks in respect of promotion of clerical staff to the grade of officer, and to make recommendations regarding prospects of promotion in nationalized banks and financial institutions. In pursuance of the terms of reference the First Wage Commission issued a questionnaire to the Press on 25‑7‑1974 to elicit views of Trade Unions, Federations and Associations etc. and items Nos.11 any 12 of the questionnaire pertain to be followed in the matters of promotion. For the !fake of proper appreciation the aforesaid items of the questionnaire are reproduced below:‑
(11) What criteria are followed at present in the matter of promotion of an employee from a lower to a higher appointment?
(12) What criteria should be applied in making promotion from clerical grade to officer's grade? Should the promotion be based on seniority‑cum-fitness or on a qualifying examination and performance?
The recommendations of the First Wage Commission with regard to promotion of employees of banks are contained in paragraphs 237 and 238 of its report which are also reproduced below for proper appreciation of the matters in dispute: --‑
"237. Promotion shall be made on the basis of experience, length of, service and overall performance of an employee. If an employee officiating in a higher post shows signs of deterioration he may be reverted to the next lower grade.
238. The fact that an employee has rendered service in rural or unattractive areas will constitute one of the major considerations for purposes of promotion to higher positions."
The decisions of the First Wage Commission are contained in Chapter XVII of its report and paragraph 302 thereof and paragraphs 65 and 66 of the summary of the decisions pertain to promotion of employees. The said two paragraphs are also reproduced below:--
65. Promotion shall be made on the basis of experience, length of 943 service and overall performance of an employee.
66. The fact that an employee who has rendered service in rural or unattractive areas will constitute one of the major considerations for purpose of promotion to higher positions."
The decisions of the Wage Commission are binding on all employers concerned with the decision in relation to their workers and every such worker is entitled to be paid the wages and governed by the terms and conditions determined by the Wage Commission as provided under section 38‑G of the Ordinance.
4. It shall thus be seen that whatever decisions are made by the Wage Commission the same are binding on the employers concerned and the workers are entitled to be governed by the terms and conditions determined by the Wage Commission. In pursuance of this provision of the Ordinance the First Wage Commission had categorically decided that the promotion shall be made on the basis of experience, A length of service and overall performance of an employee. It is also noteworthy that the award of the Second Wage Commission made public by the Federal Government on 24‑7‑1978 has not made any change in the decision of the First Wage Commission regarding promotion of employees of banks and financial institutions.
Here it would be appropriate to reproduce the relevant portion of the policy decision of the Federal Government as follows:‑
"(a) Selection of clerical staff for promotion to the lowest rank of officers will be made on the basis of a written test by a selection committee consisting of a Member of the Executive Board, a Regional Head and a Zonal Head. Officials possessing sufficient grounding and experience as detailed below will be considered for promotion:‑
(i) Six years service, if Matriculate;
(ii) Four years service, if Intermediate; and
(iii) Two years service, if Graduate."
5. The learned counsel for the petitioners has contended that prescription of a written test was a prerequisite to determine overall performance of an employee and holding of a written test for the purpose of promotion was not inconsistent with the decisions of the First Wage Commission and in this respect he has relied upon the case of Asif Ali v. Vice‑Chairman Pakistan Railways Lahore and others 1980 S C M R 11. In this case the petitioner was required to appear in ability test for the purpose of promotion but he refused. We have very carefully gone through this judgment of the Hon'ble Supreme Court. The petitioner was a tracer in the Railways and was a technical man and his further promotion defended upon his technical skill for which ability test appeared to be necessary whereas in the case in hand no such plea was raised that the job after promotion required any technical and special skill. We are, therefore, of the opinion that the case cited by the learned counsel for the petitioners is not applicable to the facts and circumstances of this case.
6. The First Wage Commission was required by the Federal Government according to the terms of reference to make a recommendation with regard to promotion of employees. It issued a questionnaire wherein it distinctly invited suggestions for criteria to be followed in the matter of promotion, should the promotion be based on seniority‑cum‑fitness or on a qualifying examination and performance. The questionnaire would, therefore, clearly suggest that there were two criteria in the mind of the First Wage Commission with regard to promotion of employees; firstly, whether the promotion be based on seniority‑cum‑fitness; or secondly, on a qualifying examination and performance. The First Wage Commission had clearly distinguished between promotion based on seniority‑cum‑fitness and promotion based on a qualifying examination and performance. Its decision with regard to these two methods was that promotion shall be made on the basis of experience, length of service and overall performance of an employee. The First Wage Commission clearly discarded the idea of holding of a written test for the purpose of promotion. As such the aforesaid policy decision of the Federal Government conveyed to the Chairman Banking Council and given effect to by the petitioner No.1 herein was clearly in violation of the decision of the First Wage Commission. Needless to say that under section 38‑G of the Ordinance the decisions of the Wage Commission are binding on the employer. As such the petitioners were wrong in giving effect to the aforesaid policy decision of the Federal Government in reference to the decision of the First Wage Commission with regard to promotion of employees of Banks. The learned Senior Member of the respondent No.1 did not commit any illegality in holding the policy decision of the Federal Government as being invalid in his judgment dated 21‑1‑1980. Likewise the learned respondent No.1 also did not commit any illegality in dismissing the appeal of the petitioners on 3‑12‑1980.
7. The learned counsel for the petitioners further contended that the question of promotion of employees of the petitioners was an individual grievance and the Habib Bank Employees Union Abbottabad Zone, respondent No.2 herein, had no legal authority to file a petition under section 34 of the Ordinance and as such the petition before the learned respondent No.1 was misconceived. However, this objection was not raised before the learned respondent No.1 although the maintainability of application under section 34 of the Ordinance was raised repelled by the learned respondent No.1 and the learned Member thereof.
Sitting in our extraordinary Constitutional jurisdiction we cannot I allow the petitioners to take up this point for the first time before us. This was not their case before the original forums and they cannot be allowed to make out a new' case before the High Court. Even otherwise this right of promotion on the basis of experience, length of service and overall performance of an employee was granted to the employees by the award of the First Wage Commission and it could be legally and validly agitated by the Collective Bargaining Agent under section 34 of the Ordinance. We are, therefore, unable to accept this contention of the learned counsel for the petitioners.
8. The net result of the above discussion is that we are of the confirmed opinion that the learned respondent No.1 had jurisdiction to entertain and adjudicate upon the matter which was brought before it by the respondent No.2 herein and we do not find any illegality or jurisdictional error in the impugned judgments to warrant our interference. We would dismiss this writ petition with no order as to costs.
S.Q./561/P
Petition dismissed.