2018 PLP 16 (PLC N)

MOHAMMAD IBRAHIM KHAN, J.

For the bull's eye flat out allegations, Mr. Shafi Ullah (herein Respondent No.3) to have intentionally omitted to bring forward the balance of Rs.31,773/- in account No. 1869 on 18.l1.1993 to the prescribed page amounting to misconduct within the meaning of MCB Staff Service Rules, 1981. Subsequently made fraudulently two credit entries of Rs.11,000/- without specifying the date and entry of Rs.39,725/- on 18.12.1993 in the PLS Saving Account No.1869 at the relevant Page No. 478 of the same ledger with the intention to raise the balance to Rs.84,498/- committing this gross misconduct in the written statement handed over to the Inspection Circle Chief during their visit to Sakhakot Branch, following under the offence covered by the misconduct within the meaning of Bank Service Rules.

2. The inquiry report led to issuance of letter of dismissal bearing No. ROS/GEN/STAFF/65 dated 6th February 1994. Afterwards, grievance petition under section 25-A read with section 5l of the Industrial Relations Ordinance, 1969 for reinstatement of the Petitioner with all back benefits of service was preferred on 20.12.1994 before the learned Presiding Officer Labour Court Malakand Division at Saidu Sharif Swat. The Regional Manager, Muslim Commercial Bank Ltd. and the other Respondents including Chairman Disciplinary Committee were put on notice, who submitted their written reply raising various legal and factual grounds.

3. Consequent to, giving the parties their free hand, Shafi Ullah (herein Respondent No.3) was examined as PW-1, who has referred ' to various necessary documentations regarding inquiry letter, copy of which is Ex.PW-1/1. The inquiry conducted by the Inquiry Officer is Ex. PW-1/2, copy of charge sheet is Ex. PW-1/3, Representation made by the President of the CBA on behalf of Petitioner (herein Respondent No. 3) is Ex. PW-1/4 (Consisting upon 3 pages), affidavit of the Account Holder is Ex.PW-1/5, findings of the Inquiry Committee are placed on the record as Ex.PW-1/6, copy of dismissal order of the Petitioner (herein Respondent No. 3) is Ex. PW-1/7, copy of appeal is Ex. PW-1/8 and its reply is Ex.PW-1/9, copy of grievance notice is Ex. PW-1/10 and its reply is Ex.PW-1/11. Copy of transfer letter of the Petitioner (herein Respondent No.3) is Ex.PW-1/12 and copies of cutting of the newspapers are placed on record as Ex. PW-1/13 and Ex.PW-1/14 along with copy of criminal case registered against the Petitioner (herein Respondent No.3) as Ex. PW-1/15. Likewise copy in respect of the defaulting liabilities from different loaners is Ex.PW-1/16, copy of letter of General Manager is Ex.PW-1/17 and the last document is transfer letter Ex.PW-1/18. Inversely, Abdur Raqeeb, Officer G-1 M.C.B Manager Balambat Branch was examined as RW-1, who controverted the claim of the Respondent No.3 Shafi Ullah on many fold under the defence line. By the judgment contained in case No.155/S/1996, the dismissal order was held unjustified as it calls for interference by the learned Presiding Officer of the Labour Court, who set aside the same and Petitioner (herein Respondent No.3) was reinstated in service. Since the affidavit furnished after dismissal by the Respondent No.3 (hereinbefore called as Petitioner) to the effect that during intervening period he was not employed anywhere and being still unemployed, back benefits were also directed for its payment. In the wake of his long service having experience gained so far, he was awarded minor penalty of withholding of three years increments starting from 01.01.1994.

4. Next off, the Regional Manager, Muslim Commercial Bank Ltd. and the allied officers of the said Bank preferred an appeal before the Labour Appellate Tribunal the then N.W.F.P now Khyber Pakhtunkhwa Peshawar, bearing No. 52/1998 with C.M No.38/1998 titled as "Regional Manager Muslim Commercial Bank Ltd. and others v. Shafi Ullah" and appeal bearing No. 60 of 1998 titled "Shafi Ullah v. Regional Manager Muslim Commercial Bank Ltd. and others" was submitted by the Appellant (herein Respondent No.3), which were decided in terms of remand to the learned Labour Court for the determination of the maintainability and competency of the grievance petition filed under section 25-A of the Industrial Relations Ordinance in the light of the law laid down by the apex Court of the country reported in 1999 SCMR 373 and in case the Court holds the petition to be maintainable, then it should decide it afresh allowing the parties to adduce additional evidence on the point formulated above and determining the status of the Respondent Shafi Ullah (herein Respondent No.3) as a workman. On allowing appeal of the Appellants (Bank) the impugned judgment/order of the learned Labour Court dated 24.06.1998 was set aside. Whereas in the light of above observations the appeal preferred by Shafi-ullah Appellant (herein Respondent No. 3) was decided accordingly.

5. Later, after remand Shafi Ullah (hereinbefore called as Petitioner) was examined as PW-1. Tasbeeullah, Officer/Manager MCB Dargai was examined as RW-1. The grievance petition under section 25-A of Industrial Relations Ordinance, 1969 was taken up and decided on 12.04.2000, wherein as referred the dictums of the Hon'ble superior Courts the petition was once again accepted and order of reinstatement with full back benefits and wages was announced in favour of Shafi Ullah (herein Respondent No.3). Inter alia, the grievance petition was maintained as job description of Shafi Ullah Manager Grade-III was of the type of workman and punishment for miner mistake was held not commensurate with the guilt if at all there was any.

6. Yet another effort was made to the Chairman Labour Appellate Tribunal the then NWFP now Khyber Pakhtunkhwa by the Muslim Commercial Bank Authorities through Labor Appeal No. 11-M of 2013, which was decided on 19.02.2016, whereby in view of the authorities referred to in Para 9 of the esteem judgment, which is reproduced as under for ready reference:‑ "Keeping in view the above evidence it appears that the nature of job of the respondent was that "Workman" as he performed his duties as clerical in nature being manual and also other type of duties but the same were never supervisory or managerial in nature. Besides, low Grade Bank Manager or Officer with no power of hire and fire of making appointment and even granting leaves to subordinates was considered to be "Workman". The representative of Bank has not stated in his evidence that the respondent was having such power mentioned herein above. Even otherwise it is settled principle laid down by the superior Courts that Bank employees of Grad-I, Grade-II or Grade-III fall within the definition of workman. Help is sought from all the cases tilted "The President Habib Bank Ltd. Karachi and 3 others v. Syed Shafaqat Hussain Shakir" reported in 1998 PLC 390 and "Messrs Habib Bank Ltd. through President and others v. Azizullah Laghari" reported in 2012 PLC

401. It was held in the Supra judgment that being an employee of Grade-I, Grade-II or Grade-III fall within the definition of Workman and the appeal was declared dismissed.

7. This is perhaps the final round through present Writ Petition bearing No. 536-M of 2016 with C.M No. 814-M of 2016 presented by the high Officer of the Muslim Commercial Bank Ltd. This time amongst the previous contesting officers of the Muslim Commercial Bank a Senior Executive Vice President Human of Head Resources Department, as Petitioner No.1, General Manager MCB as Petitioner No. 2 and Regional Manger as Petitioner No.3 are party, while Incharge Personal Division MCB and Chainman Disciplinary Committee are not made part of this writ petition and in view to succeed and to set aside the judgments of learned Appellate Tribunals and prayer contained in the judgment of the learned Labour Court prayer set in is:- "Under the circumstances, it is most respectfully prayed that by accepting the present petition, impugned judgments and orders dated 19.02.2016 passed by the learned Respondent No.1 through which the judgment of Labour Court dated 12.04.2000 was confirmed be declared as illegal and without jurisdiction, against the settled provisions and propositions of law also based upon surmises and conjectures and be set aside the petition filed by the Respondent No. 3 before the Labour Court may kindly be ordered to be dismissed with special costs." "Pending disposal of the instant writ petition, operation of impugned judgment and order dated 19.02.2016 passed by the learned Respondent No. 1 may kindly be suspended, in the larger interest of justice." "Any other relief deemed judicious, conducive and appropriate may kindly be awarded to the Petitioners to meet the supreme ends of justice."

8. Learned counsel for the Petitioners who has all the way came from Lahore has been heard with composure and available record gone through with his able assistance.

9. For the reason that the Respondent No.3 Shafi Ullah was employed by the authorities of the Muslim Commercial Bank in the year 1973. During his posting, he remained Accountant/Officer Grade-III, he committed certain acts of misconduct and irregularities, so he was charge-sheeted and his reply was found unsatisfactory. Thereby Departmental inquiry was initiated against him and upon its completion, he was dismissed from service on 05.10.1998.

10. The first of its kind objection is with regard to that Shafi Ullah, (the Respondent No. 3) by his designation as Manager Grade-III, was assigned the duties of Accountant could not fall within the category of "workman", as such Managers are of the rank of Officers, hence on this score alone the grievance petition is not maintainable and it ought to be dismissed. According to the Workman's Compensation Act, 1923, it came, into force on the first day of July 1924, it defines the workman at Serial (n) of the definition clause, which reads as under: (n) "workman" means any person (other than a person whose employment is of a casual nature and who is employed otherwise than for the purposes of the employer's trade of business) who is-- (i) a railway servant as defined in section 3 of the Railway Act, 1890, not a permanent employed in any administrative district or sub-divisional office of railway and not employed in any such capacity as it specified II, or (ii) employee (***) on monthly wages not exceeding three thousand rupees in any such capacity as is specified in Schedule-II.

11. The referral authorities in the judgment contained in Labour Appeal No.11-M of 2013 titled as Muslim Commercial Bank Ltd. v. Shafi Ullah , under the para-wise discussion in Para 8 and in view of the judgments referred in Para 9 of the Supra judgment it would be mere repetition as obviously being an employee of Grade-III, the Respondent No.3 Shafi Ullah fall within the definition of workman . Here, learned counsel for the Petitioners referred to the wisdom contained in the judgment of Hon'ble Supreme Court of Pakistan cited as (2015 SCMR 434) "National Bank of Pakistan and another v. Anwar Shah and others", whereby similar matter pertaining to the affairs and status of the bank employees of the National Bank of Pakistan came for disposal. The appeal was allowed in terms that under the Industrial Relations Act, 2012 (Act No.X of 2012) the workman scope of the National Bank of Pakistan Officers of Grade-I to III were not "workman" on the basis of union's claim no declaration could be given, that the Officers in the establishment of National Bank of Pakistan were workmen. Order passed by National Industrial Relations Commission to the effect that Officers Grade-I to III were note workman was up-held and appeal was allowed accordingly. There is mark difference between the administrative service structure of all Bank employees of the National Bank of Pakistan with comparison to the private run business Banks like Muslim Commercial Bank and Habib Bank Limited and other similar privatized Banks, thus, Shafiulllah the Respondent No. 3 being an employee of the private Bank i.e. Muslim Commercial Bank there would hardly be much of the administrative capacity of the said manger as compared to the Grade-I to III officers of the National Bank of Pakistan and that of Muslim Commercial Bank Private Ltd. The National Bank of Pakistan (NBP) is a major Pakistani Commercial Bank with headquarter in Karachi. Although State owned, it operates as Commercial Bank while still continuing to act as trustee of public funds and as the agent to the State Bank of Pakistan. Whereas Muslim Commercial Bank Limited (formally Muslim Commercial Bank) previously named as (Manjoo Co-operative Bank) was incorporated by the Adamjee Group on July 9, 1947 under the Indian Companies Act, VII of 1913 as a Limited Company. It was nationalized in 1974, this was the first Bank to have been privatized in 1991.

12. Regarding jurisdiction criteria laid down for institution of the grievance petition before the Labour Court followed by the Honorable Labour Appellate Tribunal of the Khyber Pakhtunkhwa, suffice it to say, that at the time when this grievance petition under section 25-A read with section 51 of the Industrial Relations Ordinance, 1969 being preferred on 20th December 1994, by that time this important legislation of the Federal Government Industrial Relations Act, 2012 and then Khyber Pakhtunkhwa Industrial Relations Act (KPK XVI of 2010) were not in existence. It is also very much important that having not given its birth, the written reply submitted by the Petitioners Officers of the Muslim Commercial Bank Authorities have not set it as defence and no objection was raised at the relevant time. The grounds taken in appeal by the learned senior counsel when under such defence line was taken is to oust the jurisdiction of the Labour Court and sit in the jurisdiction of National Industrial Relations Commission (NIRC), this is a first objection in this writ petition. Conscious of the fact that with regard to question as to whether Provincial Labour Court or National Industrial Relations Commission (NIRC) would have jurisdiction in relation to such an industrial dispute. It has to be seen holding the jurisdiction and it is not nature of the dispute. Muslim Commercial Bank Private Ltd of course is a trans-provincial institution having its head-office in Karachi and operating its Branches in all the four (4) provinces including capital territory. Thus in view of the judgment contained in 2014 SCMR 535 "Pakistan Telecommunication Company Ltd. v. Member NIRC and others", the proper forum would be National Industrial Relations Commission (NIRC) which would have exclusive jurisdiction in relation to such an industrial dispute. Here the matter would again refer to with the Interpretation of Statutes, where the preamble of the Industrial Relations Act, 2012 speaks of it shall come into force at once on its promulgation on the 14th March 2012 on the strength of Gazette of Pakistan, Extraordinary, Page Nos. 161-216, 14th March 2012. At the very outset, provisions of the Industrial Relations Act, 2012 have over riding effect over all the provincial labour laws. In this behalf, further guidance can be sought from the Supra judgment of the Hon'ble Supreme Court of Pakistan.

13. According to the judgment of the Hon ble Balochistan High Court reported in PLD 1997 (Quetta) 69 Khudai Dad alias Mama and others v. The State and others , wherein the relevant citations are reproduced as under: (c) Interpretations of statues. Repeal of earlier law. Law having not been expressly repealed cannot be inferred to have been impliedly repealed, unless it is shown that the former and the latter laws are inconsistent and they cannot co-exist. (e) Interpretation of statues. Law altered during pendency of an action. Effect. When the law is altered during the pendency of an action, the rights of the parties are decided according to the law as it existed when the action was begun unless the new statute shows a clear, intention to vary such rights. Crowford's Interpretation of Laws para. 296 PLD 1965 SC 681 ref. ... Lower Court's order without jurisdiction. Appeal. Where a Court not having jurisdiction wrongly exercises such a jurisdiction, an appeal lies from that decision in the same manner as an appeal lies from a decision with jurisdiction. As by the time the legislation being pertain to the Industrial Relations Act, 2012 was not in field, therefore, the verdict of the learned Labour Court is within its jurisdiction and the Honorable Appellate Tribunal entertaining appeal would have the same jurisdiction as the appeal lies from such decision in the same manner as an appeal lies from a decision with jurisdiction.

14. The extension of the laws whether that be Khyber Pakhtunkhwa Industrial Relations Act, 2010 (KPK Act No. XVI of 2010), has been extended to PATA on 20.04.2017, whereas the Industrial Relations Ordinance, 2012 till so far has never been extended to PATA. Thus the applicability of the law of Industrial Relations Act, 2012 (Act No. X of 2012) in the preamble having over-riding effect over all the provincial laws shall have least concern for its effect and over-riding effect in this part of the country which is Tribal built administratively run by the Provincial Government.

15. For all reasons, prayer set in this writ petition is not of credence for its acceptance, hence the same stands dismissed in limine along with CM. HBT/76/P Petition dismissed.