1989 PLP 17 (PLC)

Javed Altaf for Petitioner. Farooq Zaman Oureshi for Respondent No.3. Date of hearing: 24th May, 1988. Muhammad Haleem Chohan, respondent No. 3 hereinafter referred to as the respondent, was working as Senior Assistant in Lohari Gate Branch of the National Bank of Pakistan, the petitioner herein, in the year 1979. A criminal case involving a fraud exceeding Rs.20,00,000, in the aforementioned Branch, was registered in May. 1979. During the course of investigation of the said case. Zahoor Ahmad Chishti, an employee of the petitioner-bank and an accused in the case, made a statement as a result whereof a few more criminal cases were registered by the F.I.A. In these cases, the respondent was also named as an accused.

2. During the course of investigation of criminal cases registered against the respondent, he was placed under suspension. He challenged his suspension by way of application under section 25-A of the Industrial Relations Ordinance. 1969, hereinafter referred to as the Ordinance. Subsequently, however the respondent withdrew the said grievance petition. He was considered absent from duty and his services were terminated vide order dated 19-12-1979 (Annex. A). This termination purported to be a termination simpliciter under Rule 15(2) of the National Bank of Pakistan Staff Service Rules, 1973. read with Paragraph 234 of the Wage Commission Award, 1975.

3. The letter of termination dated 1212-1979 was despatched to the respondent on two addresses, viz. his home address at Shahdara and his temporary residence in a flat provided to him in Samanabad by the employer The letters thus despatched were sent by registered post, under certificate of posting and by ordinary mail. Out of three letters sent at Shahdara address, two were returned with the report that the addressee was not available and in regard to third letter it was reported that the addressee himself was not available and his mother has refused to take delivery of the letter. So far as three letters which were sent at the address of the flat allotted to the respondent by the employer in Samanabad, two were returned as undelivered and in regard to third it was reported that his brother, namely, Muhammad Azam Chohan has refused to take delivery.

4. The respondent served a grievance notice on 20 4-1980. Subsequently, his grievance having not been redressed by the employer, lie filed grievance petition under section 25-A of the Ordinance, on 8-5-1980. The petitioner-Bank of course, resisted the grievance petition filed by the respondent and also raised the objection regarding limitation.

5. After recording the parties evidence and after hearing them, the learned Punjab Labour Court No. 1, Lahore, accepted the grievance petition of the respondent on 11-12-1980 and directed that he be reinstated with back benefits. The petitioner-Bank preferred an appeal challenging the order dated 11-12-1980 passed by the learned Labour Court. The learned Labour Appellate Tribunal stayed the enforcement of the Labour Court's order vide Tribunal's order dated 21-12-1980, but as the Tribunal's order could lawfully remain in force only for 20 days, the petitioner-Bank filed a writ petition, viz. Writ Petition No. 63 of 1981. In that writ petition, the Labour Court's order was staved till the decision of -the appeal by the Tribunal. The learned Labour Appellate Tribunal dismissed the appeal on 24-3-1982. Consequently, the present Constitutional petition has been filed whereby the orders dated I1-12-1980, passed by the learned Labour Court No. 1, Lahore, and order dated 24-3-1982, passed by the learned Labour Appellate Tribunal have been assailed. Mainly it was contended on behalf of the petitioner that terms aid conditions of service, including the ones pertaining to disciplinary action of the employees of the nationalized banks and other financial institutions in the country were governed by the award of the Wage Commission and that such an award, by virtue of the provisions of section 38 of the Ordinance, could only be enforced by the National Industrial Relations Commission. It was thus urged that the learned Labour Court and the learned Labour Appellate Tribunal lacked jurisdiction in the matter. It was also averred that the award of the Wage Commission did not fall within the ambit of the expression "award" as occurring in section 2 of the Ordinance and, therefore, a right guaranteed by the award of the Commission could not be enforced under section 25-A of the Ordinance. These contentions found favour with a learned Division Bench of this Court which was seized of all the cases filed by different nationalized banks challenging the reinstatement of their employees by the Labour Courts and the Labour Appellate Tribunal. The writ petition was thus allowed by the Division Bench of this Court on 10-4-1985. The detailed judgment was recorded in Writ Petition No. 719 of 1982.

7. The affected employees preferred appeals before the august Supreme Court of Pakistan. The learned Supreme Court accepted the appeals. It has been pleased to hold that the award of the Wage Commission, like any other award, is enforceable under section 25-A of the Ordinance and that the Ordinance is applicable to the workmen employed in nationalized banks. All these cases, have, however, been remanded to this Court for deciding the other issues involved in these cases.

8. So far as the present case is concerned, the points which have been raised on behalf of the petitioner-Bank are: (1) that the respondent after having been removed from service, ceased to be a workman under the Ordinance and, therefore, had no locus standi to file an application under section 25-A; (b) that under the provisions of Rule 15(2) of the National Bank of Pakistan Staff Service Rules, 1973, read with paragraph 234 of the Wage Commission Award, 1975, service of a permanent employee can be terminated as termination simpliciter without assigning any reason and without undergoing the formalities of show cause notice etc. Such termination, it has been urged, cannot be agitated by way of grievance petition under section 25-A of the Ordinance, and (c) that the services of the respondent were terminated on 19-12-1979; he was duly informed of his termination but he served grievance notice as late as 20-4-1980 i.e. long after the expiry of prescribed period of limitation; the delay in serving the grievance notice could not be condoned the grievance petition, in the circumstances, was barred by limitation.

9. In regard to the first contention that the respondent, after his termination from service, ceased to be a workman within the meaning of section 2 (xxviii) of the Ordinance and, therefore, had no locus standi to file an application under section 25-A ibid, reliance has been placed on behalf of the petitioner on the cases of (1) Superintending Engineer (Headquarters), Irrigation, Lahore. Zone, Old Anarkali, Lahore and another v. Punjab Labour Appellate Tribunal, Lahore and another 1987 P L C 180 and (2) Trustees of the Port of Karachi v. Muhammad Karim and another 1987 P L C

840. Both these authorities have been considered by the Supreme Court of Pakistan in its aforementioned judgment and the principle enunciated in the said authorities has not been approved. The Supreme Court has held that the provisions of the Industrial Relations Ordinance, 1969, are applicable to the employees of the nationalized banks who have since been dismissed. A close and considered analysis of the provisions of clauses (xxviii) and (xiii) of section 2 of the Ordinance read in the light of those of section 25-A(4) leads to an irrebuttable conclusion that a grievance arising out of dismissal/termination/removal of a workman taken before the Labour Court under section 25-A is to be deemed an industrial dispute and is to be decided as such by the Labour Court in exercise of its jurisdiction under section 25-A ibid. It would, therefore, follow that dismissed workman of a bank has a locus standi to challenge his dismissal/termination/removal before the Labour Court under section 25-A even if it be assumed that the provisions of Industrial and Commercial Employment Standing Orders Ordinance, 1968, are not applicable to the employees of the banks.

10. As regards the contention that the removal of the respondent from service was termination simpliciter in accordance with Rule 15(2) of National Bank of Pakistan- Staff Service Rules, 1973, read with paragraph 234 of the Wage Commission Award, 1975, and the grievance against such termination cannot lawfully be raised under section 25-A, it may be observed that the respondent was involved by the petitioner-Bank in criminal cases on the charge of fraud. His termination from service was ordered while those cases were still being investigated into. It was also considered that the service of the respondent could no longer be utilized and that he was absent from duty. 1n the circumstances, his service were terminated on 19-12-1979. The background of his termination, as detailed above, is thus indicative of the fact that this was not a case of termination simpliciter, as services no longer required within the meaning of Rule 15(2) of the National Bank of Pakistan Staff Service Rules, 1973 or for that matter Paragraph234 of the Wage Commission Award. Needless to add that the respondent was confirmed employee. He was not the junior-most one in his category at the time his services were terminated. Many persons junior to his were factually retained in service. It cannot, therefore, be said that his services were no longer required. His services were terminated because he was involved in criminal cases on the charge of fraud and also for the reason that he was absent from duty. In the criminal cases in which he was involved at the relevant lime, he has since been discharged after the completion of investigation. On the charge of absence from duty, no charge-sheet has ever been served on him nor he has been served with a show-cause notice in this behalf. On this charge (absence from duty), he could not obviously be removed from service without affording him an opportunity of show-cause. It would thus follow that it was merely a colourable exercise of employer's powers under Rule 15(2) of the National Bank of Pakistan Staff Service Rules, 1973, read with paragraph 234 of the Wage Commission Award, 1975. In National Machinery Manufacturers Ltd. v. P.D. Vyas and another 1966 P L C 95, a judgment from foreign jurisdiction, a workman was charge-sheeted for misconduct but the employer after domestic enquiry found that the evidence was insufficient to prove the alleged misconduct. He, therefore, withdrew the charge sheet and passed an order discharging the workman from service. The discharge purporated to be a discharge simpliciter. It was, however, held by the Bombay High Court that, in the circumstances, it could not be considered as a discharge simpliciter but it amounted to discharge for misconduct which could only be ordered after undergoing the prescribed formalities. In Glaxo Laboratories (Pakistan) Ltd. v. Pakistan and 35 others P L D 1962 S C (70, a worker was paid a month's salary in lieu of notice and it was canvassed on behalf of the employer that his removal from service should not be regarded as one by way of punishment but be taken referable to the contract of service between the parties which provided for termination of service by one month's notice on either side. It was, however, held by the Supreme Court of Pakistan that the case of the employer had consistently been that the services of the worker concerned have been terminated for wilful disobedience of lawful order. It was, therefore, treated as a disciplinary action for misconduct. It was ruled that payment of one month's pay did not change the original reason for termination of service. The reinstatement of the worker by the Labour Court was, therefore, held to be unexceptionable. In Osman Ghani v. Federal Service Tribunal and another 1986 S C M R 1875, it has been held that if while passing order of removal, the authority was found to have exercised its powers not bona fide but for some extraneous consideration, such an order would stand vitiated. The impugned order thus being mala fide in law was set aside. In the light of the foregoing discussion, it is concluded that factually the services of the respondent were terminated on account of his involvement in criminal cases although the order of termination of his services was given a colour C that as if services of the respondent were being terminated under paragraph 234 of the Wage Commission Award, 1975 read with Rule 15(2) of the National Bank of Pakistan Staff Service Rules, 1973.

11. About the question of limitation, as stated above, it has been mainly urged that the respondent was duly intimated about the termination of his services with effect from 19-12-1979 but he served grievance notice as late as 20 4-1980, although under section 25-A(1) of the Ordinance, the notice was required to be served within three months of the date on which cause of grievance arises. It has, however, been vehemently argued by the learned counsel for the respondent that six criminal cases were got registered by the petitioner-Bank against the respondent, vide F.I.Rs. Nos. 39/79 dated 26-5-1979, 56/79 dated 31-5-1979, 63/79 dated 7-6-1979, 71/79 dated 14-6-1979, 72/79 dated 14-6-1979 and 82/79 dated 28-6-1976; he was taken into custody; his application for bail was declined by the High Court on 8-10-1979 (Annex. R.-l2); the Supreme Court admitted him to bail on 15-4-1980 (Annex. R-l9). It has further been averred that the respondent learnt about the termination of his services on 16-4-1980, after his release from jail and thereafter he served the grievance notice on 20-4-1980. The learned Labour Appellate Tribunal after detailed analysis of the parties evidence and the other material available on records, has concluded that no communication, alleged to have been sent to the respondent through post on two addresses, informing him of the termination of his services, was received by him. The learned Tribunal has recorded a categorical finding to the effect that the acknowledgement receipt indicating that Muhammad Azam Chohan, the brother of the respondent, received communication or refused to receive such communication was a bogus one. The respondent has denied that if Muhammad Azam Chohan happened to be his brother. The learned Tribunal has also found that the petitioner-bank has failed to show that the respondent had a brother named Muhammad Azam Chohan. The findings thus recorded by the learned Tribunal are to be treated as findings on question of fact arrived at by a Tribunal of competent jurisdiction. Such findings certainly cannot be interfered with by this Court in exercise of its Constitutional jurisdiction. In the case of Muhammad E Hussain Munir and others v. Sikandar and others P L D 1974 S C 139, it was observed: "It was wholly wrong to consider that the constitutional provision was designed to empower the High Court to interfere with the decision of a Curt or tribunal of inferior jurisdiction, merely because in its opinion the decision is wrong. In that case, it would make the High Court's jurisdiction in distinguishable from that exercisable in a full-fledged appeal, which plainly is not the intention of the Constitution-makers. When there is jurisdiction to decide a particular matter then there is jurisdiction to decide it rightly or wrongly and the fact that the decision is incorrect does not render the decision without jurisdiction." In National Bank of Pakistan and another v. Muhammad Asif Ahmad and two others P L D 1985 Quetta 100, it has been ruled that Authority having jurisdiction to entertain a matter has also jurisdiction to decide question of limitation rightly or wrongly and that when Authorities having entertained the plea of limitation and decided the same by repelling objection on the score of limitation, the High Court was not justified to interfere with order of Authorities, in its Constitutional jurisdiction. By virtue of section 65-B of the Ordinance, the provisions of section 5 of the Limitation Act 1908 (Act No. IX of 1908), have been made applicable while computing the period within which an application is to be made, or any other thing is to be done, under this Ordinance. In the light of the above discussion, it is concluded that the grievance notice was served by the respondent on the petitioner-Bank well in time and if by any stretch of imagination it be assumed that the service of grievance notice was not within the prescribed period of limitation, then the delay deserved to be g condoned under section 5 of the Limitation Act, in view of the peculiar circumstances of the case inasmuch as the respondent was in jail when his services were ordered to be terminated and he learnt about the order of termination of his services on being released from jail on bail on 16-4-1980. He, therefore, duly served the grievance notice on 20-4-1980.

12. In view of the foregoing conclusions, there is no merit whatsoever in the present writ petition which, therefore, must fail and is accordingly dismissed. There shall be no order as to costs. S.Q./N-164/L Petition dismissed.