1990PLC197 (PLP)

The learned counsel for the respondents then argued that the petitioner‑Bank is not carried on by or under the authority of the Federal Government. He contended that the petitioner‑Bank which was established under section 3 of the Ordinance of 1949'had its own share capital and was run under the authority of its Central Board as provided in section 11 of the said Ordinance. His contention further is 'that this Board is answerable to Banking Council and not the Federal Government. He has further submitted that it can at the most be said that the petitioner‑Bank is `controlled' by the Federal Government but it cannot be said that the same is `run' by the Federal Government. It may be pointed out that the petitioner‑Bank is one of the Banks nationalised under the Banks (Nationalisation) Act 1974. Section 2 of the Act provides that it shall have the effect notwithstanding any thing contained in any other law for the time being in force. Section 5(1) of the said Act lays down that the ownership, management and control of all Banks shall stand transferred to and vest in the Federal Government. From these provisions it can safely be construed that the Nationalised Banks are the establishments carried on by or under the authority of the Federal Government. It may also be seen that word "carried on" is used in the proviso to section 1(4) of the Ordinance of 1968 and not the word `controlled' or `run'. Mr. Shahani has referred to the cases of National Shipping Corporation v. Sind Labour Appellate Tribunal and 2 others (1975 P L C 1) and I.C.P. Employees' Front Karachi v. Presiding Officer, Vth Sind Labour Court, Karachi (1977 P L C 154). In our view these cases have no direct bearing on the present cases. The upshot of the above discussion is that we hold that the petitioner‑Bank is carried on by or under the authority of the Federal Government and that the statutory Rules of 1973 do exist and are applicable. The provisions of the Ordinance of 1968 are therefore, not applicable to the present case but the services of the employees of the petitioner are governed by the National Bank of Pakistan (Staff) Rules 1973. Mr. M.L. Shahani has then argued that even if the provisions of the Ordinance of 1968 are not applicable, still the respondents are entitled to seek their remedy under the provisions of the Industrial Relations Ordinance of 1969 (hereinafter referred to as the I.R.O.). He has argued that admittedly the petitioner is a Commercial Establishment and the respondents are covered by the definition of `Worker' and `workman' as given in Section 2 (xxviii) of the I.R.O. He has further argued that the services of the respondents are governed by the National Bank of Pakistan (Staff) Service Rules of 1973, which are statutory Rules and which lay down a procedure for disciplinary action. Rule 39 of the above Rules lays down as under:‑‑ "

39. Disciplinary action‑‑procedure.‑‑(1) Before it is decided to impose any penalty on an employee under Rule 36 for an offence of which he has been reported guilty, he shall be called upon by the competent authority to render a written explanation of the charges against him and show cause by such date as may be specified in this behalf as to why disciplinary action should not be taken against him. The employee's explanation together with the charges against him shall be submitted to the authority competent to award the punishment. (2) The authority shall either enquire into the case himself or obtain an independent report on the case in writing from an officer or a committee of officers specially deputed by the authority to investigate the case. The report together with the employee's statement shall be laid before the authority who shall then consider the matter and award such punishment, if any, as he deems proper in the circumstances. The decision of such authority shall be conveyed in writing to the employee concerned: Provided that the requirements of sub‑rules (1) and (2) shall not apply:‑‑ (a) where the facts on the basis of which action is to be taken have been established in a Court of law; or (b) where the employee has absconded or where it is for any other reason impracticable to communicate with him; or (c) where the employee is caught in the course of the commission of a wrongful act and the circumstances attending the wrongful act are so manifest that compliance with the aforesaid sub‑rules would be a purposeless formality; and it will be just and proper for the authority to take an explanation of the employee and award punishment forthwith." His contention is that the above‑quoted Rule lays down a procedure for taking disciplinary action and guarantees and secures certain rights to the employees. From this he has further argued that the provisions of section 25‑A of the I.R.O., are attracted. It will be advantageous to reproduce the said provisions which read as under:‑‑ "25‑A. Redress of individual grievances.‑‑(1) A worker may bring his grievance in respect of vary right guaranteed or secured to him by or under any law or any award or settlement for the time being in force to the notice of his employer in writing, either himself or through his Shop Steward or Collective Bargaining Agent, within three months of the day on which cause of such grievance arises. (2) Where a worker himself brings his grievance to the notice of the employer, the employer shall, within fifteen days of the grievance being brought to his notice, communicate his decision in writing to the worker. (3) Where a worker brings his grievance to the notice of his employer through his Shop Steward or Collective Bargaining Agent the employer shall, within seven days of grievance being brought to his notice, communicate his decision in writing to the Shop Steward or, as the case may be, the Collective Bargaining Agent. (4) If the employer fails to communicate a decision within the period specified in subsection (2) or, as the case tray be, subsection (3), or if the worker is dissatisfied with such decision, the worker or Shop Steward may take the matter to his Collective Bargaining Agent or the Labour Court, or, as the case may be the Collective Bargaining Agent may take the matter to the Labour Court, and where the matter is taken to the Labour Court, it shall give a decision within seven days from the date of the matter being brought before it as if such matter were in an industrial dispute: Provided that a worker who desires to so take the matter to the Labour Court shall do so within a period of two months from the date of the communication of the employer or, as the case may be, from the expiry of the period mentioned in subsection (2) or subsection (3), as the case may be. (5) In adjudicating and determining a grievance under subsection (4), the Labour Court shall go into all the facts of the case and pass such orders as may be just and proper in the circumstances of the case. (8) If a decision under subsection (4) or an order under subsection (5) given by the Labour Court or a decision of the Tribunal in an appeal against such a decision or order is not given effect to or complied with within a week or within the period specified in such order or decision, the defaulter shall be punishable with imprisonment for a term which may extend to one year, or with fine which may extend to one thousand rupees.......... (9) No person shall be prosecuted under subsection (8) except on a complaint in writing:‑‑ (a) by the workman if the order or decision in his favour is not implemented within the period specified therein, or (b) by the Labour Court or Tribunal, if an order or decision thereof is not complied with. (10) For the purposes of this section, workers having common grievance arising out of a common cause of action may make a joint application to the Labour Court:' The learned counsel for the respondents has relied on the case of National Bank of Pakistan v. Nizamuddin Mahr (1980 P L C 1118) to support his above contention. We have examined the above said provisions of I.R.O. Although the provisions of the Ordinance of 1968 are not applicable to the case of the respondents for the reason that their services are governed by the National Bank of Pakistan (Staff) Services Rules, 1973, they cannot be deprived of the remedies available to them as under the provisions of the I.R.O., section 25‑A of the I.R.O.; D is the provision that provides for the forum before which the workman can take his matter for the redress. It would be pertinent to point out here that the words "under any law" as mentioned in subsection (1) of section 25‑A of the I.R.O., I would include the aforesaid Service Rules of 1973 as these rules being the Statutory Rules have the force of law. Further subsection (4) of Section 25‑A of I.R.O., enables the workers to take the matter before the Labour Court. It is an admitted position that the action has not been taken under the National Bank of Pakistan (Staff) Services Rules of 1980 which we have already held above are not the statutory Rules but can at the most be construed as departmental instructions. Thus the action initiated against the respondents by the petitioner, from the very inception, that is, the issuance of charge‑sheet and all subsequent proceedings are without lawful authority. On further examination of the aforesaid Sind Services Rules of 1973, we find that Rule 40 provides for filing of an appeal or application for review. Sub‑rules (1) & (2) read as under:‑‑ "

40. Appeals and applications for.‑review.‑‑(I) An employee shall have the right of appeal or of making an application for review, as provided in this rule against any of the penalties imposed upon him. (2) An appeal or, as the case may be, an application for review shall lie:‑‑ (a) in the case of employees in Category 1, to the Central Board which shall refer the same to a Standing Committee of three Directors consisting of one Government Director, one elected Director and the Managing Director. The Committee shall consider the application and submit its recommendations to the Central Board for such final orders as the latter may deem fit to make; (b) in the case of other employees, to an authority next higher to that which has passed the orders in question: Provided that in every case where the employee concerned so desires, he will have a right to be heard in person before the authority competent to hear the review or, as the case may be, the appeal." However, there is no provision in the said Rules which would exclude the applicability of the provisions of I.R.O., 1909, reliance is placed on the case of Trustees of the Port of Karachi v. Abdul Ghani (1983 S C M R 769). It has been held in this case:‑‑ "There is no provision in the Karachi Port Trust Act, 1886, which can be read to exclude the applicability of the Industrial Relations Ordinance, 1969, and for that matter section 25‑A of the Ordinance. It is true that an appeal is provided under section 23 of the Karachi Port Trust Act, 1886, but there is no apparent bar against the availability of section 25‑A of the Ordinance, and ought it be said that the two remedies are available, side by side, as prima facie the Industrial Relations Ordinance, 1969, by its scope, overreaches an establishment which satisfies the definitions of employer, worker or workman and the establishment. On this view of the matter, it is difficult to accept that the Karachi Port Trust Act is a special Act qua its workmen who are governed by it." On merits the Labour Court and the Labour Appellate Tribunal have given concurrent findings, which are not questioned by the learned counsel for the petitioner. We will, therefore, not interfere with the same. The upshot of the above discussion is that we hold that the Labour Court does have the jurisdiction to adjudicate in the present cases and their decisions are maintained. The present petitions are, therefore, dismissed. However, there will be no order as to costs. H.B.T./N‑222/K Petitions dismissed.