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Petitioner: QAMARUZZAMAN SUBHANI, SECRETARY IN MAYMAR HOUSING SERVICES (PVT.)LTD. VS Respondent: MAYMAR HOUSING SERVICES (Pvt) Ltd.
Court Name: Labour Court Judge(s): A. J. Bachani Title:QAMARUZZAMAN SUBHANI, SECRETARY IN MAYMAR HOUSING SERVICES
(PVT.)LTD. vs MAYMAR HOUSING SERVICES (Pvt) Ltd. Case No.: Application No, 214 of 1986, Date of Judgment:1988-01-09 Reported As: 1989 PLC 416 Result: Application partly allowed Judgment ORDER ' This is a case of Stenographer, who was employed in the Maymar Housing Services (Pvt) Ltd., to work with the Executive Director, in the pay scale of 1200/110/2300, purely in the Head Office, which he claims to have worked from 16-9-1981 to 10-9-1986, with brilliant record of his service. 2. In the long, and lengthy document which is a petition filed for the redress, he has brought certain facts which are given as follows. 3.He claims as a workman. He received his normal increment of Rs.110 in that scale under the memo issued dated 24-1-1983. After one year and seven months, that is on the 1st of May, 1983, he was asked to work with the Executive Director at two places namely the half day in the morning at Gulshan-e-Maymar and the Site Office and half day in the Head Office during afternoon. There was no such condition in the appointment order to work at two places though he agreed to work at two places if salary was increased to the ceiling of Rs.1,000. The management considered the request and revised the salary vide Memo dated 29-6-1986 that the special increment of Rs.220 is added to his basic salary at two different places working and also Rs.420 as special inconvenience allowance by promoting him as Secretary. 4. The respondent management, both in January 1984 and in January 1985, gave special increment of Rs.240 and special inconvenience allowance of Rs.420 on special consideration. 5. In January 1986, when he did not receive the information regarding his annual special increment, he placed the request dated 11-2-1986 to the Executive Director to know his decision of special increment, and remarked that increment is not his privilege, even Executive Directors have not received increment. This is supported by letter of 11-2-1986.
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6. Mr. Subhani again made another application by referring to rule 28 of the company regarding pay scale. But it was not responded. After about five months he submitted reminder asking for two increments of special nature for working in two places in the past for three times, two increments for suffering the torture, Rupees thirty thousand as an over time for sitting late beyond office hours from 9.00 a.m. To 5.00 p.m., average two hours daily under the written order of the Executive Director dated 16-1-1984. 7. After seven months silence, the respondent sent him the letter dated 4-8-1986 that applicant is not granted any increment because his performance during the year 1985 was not satisfactory. But in paragraph 4 of the letter of 23-7-1986 the respondent accepted the overtime sittings. 8. He has also referred to the Executive Director's handwritten note of 16-1-1984 for sitting late. Mr. Subhani followed the instruction, and sat two hours daily and demanded overtime payment. No reply was received, till he had filed notice of grievance dated 13-8-1986. The respondent sent the reply on 4-9-1986 and recognized the right of annual increment but refused to give special increment for working at two places. Mr. Subhani also accused Mr. Siddiqui by offering insinuations, of non-reliability, the usurpation of his right, reacting on his career of professional incompetency. Despite that he was not given the increments. This also was followed by the action on the notice of show cause dated 22-9-1986. He replied to the notice of show cause, denying the charge but only said that he wanted to paint as a mirror of the misconduct. These are the words, he has used even in this petition, which are also of considerable legal interest. Subsequently new Secretary was appointed on 28-8-1986 during his period of sickness. On 10-9-1986 he was released from the post of Stenographer in the Office of Executive Director and to report further instructions. He was not attached with the Director. But made to sit on the table without work and the table was insanitary not fit of his position to sit as Secretary. Subsequently orders of transfer were issued to work with the Officer of the lower grade dated 1-10-1986. 9. The transfer order according to Mr. Subhani was illegal. 10. He has prayed for three reliefs namely the special increment for working 11. At two places. Overtime payment of one lac five thousand and one forty nine and to be posted on original place of his posting and any other relief, what the Court finds fit in the circumstances. 12. Respondent filed the written statement and contended that the applicant has no secured right, to invoke the jurisdiction of the Labour Court. The claim of overtime is not maintainable in the Labor Court and thirdly the notice of grievance is not served according to law. If the letter of 13-8-1986 is the notice of grievance it is time-barred. They have not denied his position as a workman but supported that he was asked to work at both the places and asked for the increase in his salary. The respondent gave the special increment from 1st of May, 1983 due to his performance of duty and special inconvenience allowance and so there was increase of Rs. 640. 13. Respondent has also contended that the annual normal increment for the year 1985 was not announced for number of employees and they were given from 1st January, 1986 with retrospective effect. As regards rule No, 28 they have also made reference that this rule is applicable to normal increments and not to special increments to be claimed as a right. As regards the alleged overtime they have found the claim of Rs.1,000 per month as arbitrary. They have admitted the hand written note of the Executive Director of 16th January, 1984. They have denied that the letters dated 1st March, 1984, April 1984, January 1985, October 1985 were given to the respondent. They have also explained that the working times for office commenced at 8.00 and he used to report at 10.00 a.m. They have not denied the notice of grievance dated 13-8-1986. They have supported the notice of show cause and the pending enquiry regarding misconduct. They have not denied the service of letters dated 11-2-1986, 1-3-1986 and 23-7-1986. They have denied letter of 1-3-1984, 2-4-1984, 2-1- 1985 and 2-10-1985. They have denied that they were unfair in his posting or the transfer was
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unlawful. They have shown the insolence of Mr. Subhani to show the Purchase Manager as low rank officer. 14. Finally the notice of grievance of 13-8-1986 is said to be barred by limitation. 15. Following are the points for determination. 16. Whether the special increment for working at two places was the right of Mr. Subhani? 17. Whether he was entitled to overtime payment by working beyond the working hours and his claim is reasonable? 18. Whether his posting from the office of Executive Director was contrary to his appointment and what is the effect? 19. Whether application is barred by limitation? 20. Whether applicant was bound to work at two places according to the terms of appointment? 21. Whether applicant can seek remedy for overtime before the Labour Court. 22. General Relief? 23. REASONS 1. Mr. Subhani, who is the person aggrieved, has asked for three reliefs, one that his special increments, for working at two places have not been paid, secondly he is entitled to overtime by sitting beyond the office working hours and thirdly, he was posted contrary to the original posting, with Mr. M.G. Siddiqui, Exacutive Diector. 2. The question is, whether Mr. Subhani has brought the application for the redress of grievance, within time as required by law that is under section 25-A, I.R.O. 3. Before the Court examines the legal contentions of the aspect, his status as a. Workman is not denied that he was initially appointed as Stenographer, doing clerical nature of work, within the definition of a workman, applicable to the workmen in the commercial establishment under Standing Orders Ordinance, to which his conditions and the terms of his service have further been protected, in section 3, and section 4 and subsection (6) of Standing Order 2. The Court prominently refers section 3 which reads that the conditions of the employment of the workman and other incidental matters shall subject to other provisions of this Ordinance be regulated in accordance with the Standing Orders and section 4 reads that no modification of the Standing Orders between CBA, shall affect or diminish any right or benefit. 4. Subsection (6) of Standing Order 2 refers that every workman at the time of his appointment, transfer or promotion shall be provided with an order in writing showing the terms and conditions of service. 5. Then, what remedy he receives on the breach of his terms and conditions of service, he has remedy under section 25-A for the redress of grievance by virtue of subsection (3) of section 12 of the Standing Orders Ordinance that in the matter of remedy, the provisions of section 25-A shall apply. To be precise, Standing Order is a Provincial Statute, formerly applicable to the whole of the Province of West Pakistan and now there are Provinces after West Pakistan. Its preamble shows that it is the law relating to Industrial Establishments in Pakistan and I.R.O. Was a Federal Statute extending to the whole of Pakistan. 6. The remedies and the formation of the trade unions and their effect are regulated by the I.R.O. With the definition of workman differently given in both the Ordinances. Section 25-A of the LR.O further refers that any worker may bring the grievance in respect of any right guaranteed or secured to him by or under any law or any award or settlement, in writing---within three months of the day on which the cause of such grievance arises. In other words the emphasis is made of the time and when the cause of grievance arose, Thereafter, follows that employer, will within 15 days of the grievance communicate to the worker and then follows the desire of the worker to take the matter to the Labour Court within period of two months. To be precise, the entire process is to be
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completed within three months and secondly when the cause of grievance arose, for the further of redress in the Labour Court. 7. In this peculiar case, 3rd of August is supposed to be the notice of grievance, what has been said by Mr. Subhani himself Annexure-A. If Mr. Subhan has said that on 1st May, 1983 he was asked to work with the Executive Director at two places, and in view of those services, in his own saying, his salary was revised on 29-6-1986 by a special increment, in the basic pay and Rs.420 as special inconvenience allowance and in the month of January 1986 he did not receive information and asked for the clarification on his application of 11-2-1986, which was disposed of with the remark that the increment is not his privilege, whether the cause of action arose on that day. The Court will still put it in more simple terms that when the grievance arose, if the respondent's argument be that it was on 11-2-1986, whether application is defeated by doctrine of laches. Mr. Subhani has attempted to overcome this difficulty by explaining other intervening factors that another application was made dated 1-3-1986 quoting rule 28 and sat silently for five months, followed by the reminders and after seven months, first time on 4-8-1986 was replied to the query that his performance is not satisfactory, whether Mr. Subhani can say that grievance arose to him from that day finally, when all alone he was resting in his mind of the concept that his grievance continues till is finally replied, or the respondent can say that the grievance arose when he was denied the increment that it was not his right and subsequently the intervening period was explanatory to the reminders. Law of limitation, what the Labour Court understands has placed the limits within the provisions of section 25-A of three months by emphasizing on the word date and the word grievance and the cause, technically in the legal sense. The grievance means a final grievance which takes the matter in the Court of law and the word cause can be understood to me that when the employer gave its mind explaining that his record was not satisfactory and therefore the increment is not his privilege. If the respondent stretched the argument that grievance arose from that day when the claim was refused. What the Court feels that this may lead to injustice, for the employer taking the protection of the limitation, supposing does not reply and keeps him informed orally, gaining the time to defeat the spirit of justice or to take the protection of the limitation, it can manifestly lead to injustice to debar the workman from seeking grievance. It is, therefore, the Court feels that the actual cause of the grievance starts when finally the workman feels that there is no hope of redress from employer and can come to the Court from that date. The Court also takes this view that any person not educated in the sense and kept, in ignorance by the ingenuity of the other side will be far from seeking redress in the Court of law if his claim is legitimate. In this particular case, the letter of 4-8-1986 written by the Director, explaining very clearly that the special increment is not the right because he works in two places or his performance is not satisfactory will be the starting point of limitation from the first notice of grievance of 13-8-1986 when the petition is filed in the Court on 21-10-1986. If 13-8-1986 is the date of the notice of grievance and 4-9-1986 is the reply of the respondent which he was to communicate decision within 15 days, the application of Mr. Subhani is within time and not defeated by laches. The notice of September 1986 dated 8th September is also the notice of grievance in respect of other matters repeating the same increment and of overtime. But for the purpose of the Court's jurisdiction regarding limitation, first notice of grievance will be starting point in respect of these claims concisely. 8. The second important aspect of the case is whether Mr. Subhani is entitled to special increment because he worked at two places? Whether he is also entitled to overtime? 9. In this context the Court has the benefit of seeing the evidence of Mr. Siddiqui, Executive Director of the Housing Service and also the evidence of Mr. Muhammad Mujtaba Khan and the evidence of Mr. Subhani himself.
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10. Mr. Siddiqui has made the statement in his affidavit that Mr. Subhani's appointment as Stenographer on 15-9-1981 vide Letter No, 303, was in the pay scale of Rs. 1200/110/2300. He was asked to work as a typist in the place of a typist on leave to attend half duty with him and with other officers, when the normal working time was from 8.00 a.m. But as a special case he reported for duty by 10.00 a.m. And requested for the increase of salary which was dismissed with the grace to give him special increment of Rs.220 and Rs.420 as special inconvenience allowance. He was further promoted as Secretary in the scale of pay of Rs. 1,400/120/2,600. However, he lost efficiency and was asked to improve; regarding normal annual increment, it was under consideration. Mr. Siddiqui has also stated that it was not a privilege. His claim of overtime is false. He did not work beyond office hours. If any hand-written note is being taken as evidence that on 16-1-1984 he needed some information but Mr. Subhani had already left office. He has denied the letters of 1-3- 1984, 2-4-1984, 2-1-1985 and 2-10-1985. He has tried to justify that the overtime employees are expected to fill overtime sheets referred as A/3 to A/6. 10-A. Mr. Siddiqui has also been tested under cross-examination. The Court recalls these words in the letter of 8th September where Mr. Subhani has used the surplus language of highly exceptional nature unexpected of the subordinate, for example the language he has used that Executive Director is unreliable man and believes in telling lies, usurping rights and destroying professional career. He has to give the statement on Holy Quran in the Court whether he gave him late sittings. 11. The words "telling lies", is rather surplus use to vindicate the grievance, and rather offensive and defamatory, till declared by the Court of law. Regarding usurpation of the right, if the language would have been used, politely it would have reflected the mental level. Although it is a right of every person to protect the rights, if it affects the career ability. 12. However, in that context, the evidence of Mr. Mujtaba has been seen very closely by the Court. He has said very frankly that it is not correct that Mr. Subhani sits late about working hours from 9.00 to 5.00 p.m. He has explained that he used to sit late in office and was asked to go in the car if he can wait. He has further qualified that he had given instructions in writing that he should not leave but he did not follow the instructions. He explains the leave means after 5.00 O'clock. He has also very frankly stated that there is no bar that the same Secretary cannot work in the office. Mr. Mujtaba has not been very definite that he worked beyond 5.00 O'clock and has also taken definite stand that he was not given the order in writing that he can work at two places though he was working at two places, in the year 1985 and was granted special increment on that account. He has also referred the letter of 29-6-1983 regarding emoluments and referred the appointment letter Annexure-A. 13. The Court also further refers to the evidence of Mr. Subhani. ' What Mr. Subhani has stated, the Court also refers certain relevant extracts: "It is not correct that I was posted as a typist in the Divisional Office. I was posted with the Executive Director as Stenographer. On 29-6-1983 Director revised my emoluments by promotion as Secretary. I was given Rs.220 special increment because of working at two places and Rs. 420 special inconvenience allowance not because of satisfactory performance. ' These were not given under settlement or award of the Court. The management gave voluntary concessions. I was attached with the Executive Director but used to work with other Officers in the place of other typist if there was no typist. I had to sit late hours daily like other Secretaries by virtue of instructions in the Annexure-J. I had claimed overtime vide Annexures K to K-3. It is not correct that K to K-4 Annexures were not given to the management. I was transferred to Purchase Department. I did not join because I was Secretary to the Executive Director. There is no union in our organization." 14. To have the back ground of the evidence, when the Court refers to subsection (6) it is very clear in the provisions of Standing Orders that every workman, at the time of his appointment, transfer or
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promotion shall be provided with an order in writing, showing the terms and conditions of service. This is one of the secured guarantees under the Labour Statute, which is further read with sections 3 and 4 of the Standing Orders Ordinance that the terms and conditions of service of a workman shall be regulated in accordance with the Standing Orders. What the Court has found that the respondent has referred Annexures-E and E-1 to show the salaries and other allowances, on the subject Annual increment and followed by special increment of the satisfactory performance and further I n the context of the evidence of Mr. Siddiqui showing the salary on 15-9-1981 as Rs.1,200 with increment of 110/- reaching the ceiling of Rs. 2,300. 15. Mr. Subhani has produced the copy of the appointment letter Exh. A/1 from his side, confirming the same date of appointment by the same employer, to show the terms of appointment, the nature of jury and management's intentions, more clear and in comprehensive manner, for the Court to have the idea, whether the case of Mr. Subhani comes within the meaning of subsection (6) of section 2 of the Standing Orders, what has been emphasized, that is to say that every workman at the time of his appointment, transfer or promotion shall be provided with an order in writing showing the terms and conditions of service. 16. True, the respectability of the witness, Mr. M.G. Siddiqui regarding reliability of the evidence, in the Court of law cannot be disputed. The Court has found Mr. Mujtaba, in the context of his evidence, presenting, and the qualitative evidence. But with this divergence that certain points in his evidence are to be commented upon, what, is the effect of the production of the appointment letter, both by him and the Annexure-J, where the Executive Director has written to Mr. Subhani of course, in highly respectful tone, as against his own extravagant language using against the Director of the biggest concern. But notwithstanding that, the memo clearly shows that the instructions were there, that the Secretary should not leave the office, till his officer is in office. And further it was more of the order not to leave till the Officer leaves. This letter was in the context of the order dated 16-1-1984. But the tenor and the tone of the order reflected that it was more of directive nature to the subordinate. 17. With this data available, this is an accepted position, that if letter of appointment is produced, it has certain conditions. One of the prominent conditions in clause (7) says that the employee must clearly understand that his services will be transferable at the discretion of the management, depending upon exigency of work to any other department and on such transfer, his appointment will be governed by the Rules and Regulations as may be applicable to other employees in the department concerned. With this clause, clause (16) will be pertinent for reference that his employment, shall be subject to such employment, rule and regulation are presently applicable, to the employees of the company. On these terms and the salaries and allowances of which there is no dispute Mr. Subhani accepted the terms and hound itself. 18. With this clause, para 10 of the affidavit of Mr. Mujtaba Khan Manager Administration is read also shows that management admitted his working at two places and granted him special increment of Rs.220 per month in addition to the normal increment from 1st May, 1983 further supported by additional allowance of Rs. 420 as a special inconvenience allowance. In other words Rs. 420, inconvenience allowance seems to compensate Mr. Subhani which he also accepted. 19. But what the difficulty has been faced here that employer has said that special increment was not his privilege or his right, and therefore, they were right to refuse. 20. The appointment letter shown as a whole explained the basic feature that entire appointment of employee was to be followed by the rules and regulations of the company, of which, the copy was to be provided to the employee as well, which unfortunately, neither of them have produced for the Court reference, how the emoluments were regulated. This is also not denying the fact that conduct of Mr. Subhani in accepting the terms of salary allowances, impliedly presumes, that he had full satisfaction of the rules regarding the pay and allowances, he was drawing. The only
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course left now to the Court is to interpret clause (7) which was to be followed after he resumed the job. Mr. Subhani has made much of it that what was the exigency of work he was transferred to and not intimated. In the words of the manager of the company, the transfer, at two places that is from the office of Director to Site is not denied by the management. What was the exigency of work it was the better judgment of the employer regarding feasibility. It has been emphasized in para. 5 by Mr. Siddiqui that due to leave of typist in the Divisional Office/Site Office he ordered the applicant to attend half day duty at the Divisional Office. Mr. Subhani at the same time resumed the duty also, without emphasizing the, written order of the exigency of work, thus creating a position of the principle of waiver or acquiesce. At the same time his demand for the increase was limited to the special increment which he also accepted without taking one stand of additional salary. 21. The question, therefore, is whether in the first place he could be transferred. Clause (7) is very clear which he accepted with the conduct as discussed above. The next question follows whether special increment which was given as a grace could be claimed as a right. The Labour Court is of the opinion that in view of the clear clauses of the appointment order, the increment could not be claimed as a right. Whether he was entitled to salary by working at two places what the Labour Court finds strictly in light of the appointment order, the employer…
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